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Appeal No. 442 of 1974. (From the Judgment and Order dated the 17th of August, 1970 of the Punjab & Haryana High Court in Civil Writ No. 413/62). V.C. Mahajan and O.P. Sharma, for the Appellant. Harbans Singh, for Respondent No. 2. The Judgment of the Court was delivered by KHANNA, J. This is an appeal on certificate against the judgment of the Punjab 'and Haryana High Court whereby the High Court held that the appellant firm had failed to prove that it had stood dissolved on a date prior to the date of assessment, viz., March 12, 1962. The appellant firm carries on business as commission agents of cotton and food grains. In respect of the year 1959 60, the appellant did not submit any return under the Punjab General Sales Tax Act. A notice was thereupon issued to the appellant firm and the 753 case was fixed for July 1, 1960. The appellant challenged the validity of the assessment proceedings by means of a writ petition in the High Court. The High Court during the pendency of the petition, stayed the proceedings. Ulti mately, it seems, the writ petition was dismissed and the assessment proceedings were resumed on November 30, 1961. Various dates were fixed thereafter. February 17, 1962 was fixed as the final date of hearing. On that date, intima tion was given on behalf. of the appellant that the appel lant firm had ceased to do any work since February 1961. It was also represented that a formal document had been exe cuted on August 8, 1961. The assessing authority despite that intimation proceeded to make an order of assessment dated March 12, 1962. The appellant thereupon filed anoth er petition under article 226 of the Constitution in the Punjab High Court, praying for the quashing of the assess ment order. It was stated on behalf of the appellant that the appellant firm had been dissolved before the date of assessment order and as such, the sales tax authorities could not make an order for assessment. The High Court dismissed the petition on the ground that the assessment proceedings had been initiated long before the alleged date of dissolution of the firm. The appellant thereafter came up to this Court in appeal against the said decision of the High Court. This .Court set aside the judgment of the High Court, following its decision in the case of State of Punjab vs M/s Jullundur Vegetables Syndicate.(1) The case was remanded to the High Court as no definite finding had been given by the High Court regarding the dissolution of the appellant firm and about the fact as to whether the said dissolution had taken place before the date of the order of assessment, namely, March 12, 1962. After remand, the High Court called upon the sales tax officer to make an enquiry and submit a report on the point as to whether the appellant firm had been dissolved on August 8, 1961 as alleged by the appellant. The sales tax officer thereafter made an enquiry and submitted a report that the appellant firm had not proved its dissolution on August 8, 1961 or before the date of assessment order. The High Court, 'after receipt of the report, itself examined the matter and came to the conclusion that on the material on record brought by the appellant, it had not been proved that the appellant firm had stood dissolved on a date prior to March 12, 1962. It is the correctness of the above decision of the High Court which has now been assailed before us by the appellant in this appeal. We have heard Mr. Mahajan on behalf of the appellant and find no cogent ground to take a view different from that of the High Court. The High Court, in the course of its judg ment, has pointed out that though the assessment order was made on March 12, 1962 a large number of hearings took place between March 8, 1961, the alleged date of dissolution and March 12, 1962. At no hearing, was any intimation given by the appellant to the assessing authority that the firm had stood dissolved. All that was intimated on February 17, 1962 was that the firm had ceased to do work in February 1961 and (1) 119661 2 S.C.n. 457. 754 that a formal document had been executed on August 8, 1961. It was also not the case. of the appellant that all the six partners of the appellant firm, had signed that document. Another factor which weighed with the High Court was that though intimation is required to be given under section 16 of the Punjab General Sales Tax Act regarding the dissolu tion of a firm within thirty days of such dissolution no such intimation was given by the appellant firm until April 2, 1962, i.e., nearly eight months after the alleged date of dissolution. In our opinion, the facts and circumstances referred to by the High Court throw a considerable doubt. upon the correctness of the statement made on behalf of the appel lant firm ' that it had stood dissolved on August 8, 1961. It has to be borne in mind that the High Court was dealing with the matter on the writ side. In a writ petition, the SCOpe for interference with a finding of the departmental authorities is much more restricted and the court can nor mally interfere only if the finding is based upon no evi dence or is based upon extraneous or irrelevant evidence or is otherwise perverse. The same cannot be said of the finding of the sales tax authority embodied in its report sent to the High Court in the present case. We see no sufficient ground to interfere with the judgment of the High Court. The appeal fails and is dismissed. There will be no order as to costs.

In response to a notice from the assessing authority under the Punjab General Sales Tax Act that the appellant had not filed a return in respect of the assessment year 1959 60, the appellant claimed that the firm had ceased to do any work since February. 1961 and that a formal document to that effect was executed in August, 1961. The assessing authority made an order of assessment in March 1962. In a writ petition under Article 226 of the Constitution filed ' by the appellant; the High Court directed the Sales Tax Officer to enquire and report if the appellant firm had proved its dissolution in August 1961 or before the date of assessment order. The Sales Tax Officer reported that it had not, The High Court itself examined the matter and came to the s.me conclusion of that reached by the Sales Tax Officer. It also found that though intimation was required to be given under section 16 of the Act regarding the dissolution of the firm within 30 days of such dissolution no such intimation was given under April, 1962 and dismissed the writ petition. Dismissing the appeal to this Court, HELD: (1) There is no sufficient ground to interfere with the judgment of the High Court. The facts and circum stances referred to by the High Court throw a considerable doubt upon the correctness of the appellant 's statement that it had stood dissolved in August, 1961. [754 D & B] (2) The High Court was dealing with the matter on the writ side. In a writ petition, the scope for interference. with a finding of the departmental authorities is much more restricted and the court can normally interfere only if the finding is based upon extraneous or irrelevant evidence or is otherwise perverse. The same cannot be said of the finding of the sales tax authority embodied in its report sent to the High Court in the present case. [754 C]

Appeal No. 1464 of 1968. Appeal ,from the judgment and order dated March 18, 1968 of the Patna High Court in C.W.J.C. No. 816 of 1967. A. K. Sen, Bhola Sen, D. Parkar Gupta, Om Khetan, B.P. Maheshwari and R.K. Maheshwari, for the appellant. M.C. Chagla and R.C. Prasad, for respondents Nos. 1 and 2. M.C. Chagla, D.P. Singh, S.C. Agarwal, Uma Dutta and section Chakravarti, for respondent No. 5. Sobhugmal Jain and Krishna Sen, for respondent Nos. 6 to 8. The Judgment of the Court was delivered by Hegde, J. This appeal by certificate arises from the decision rendered on 18th March 1968 by the Patna High Court in C.W.J.C. No. 816 of 1967. That was a petition filed by the appellant under article 226 of the Constitution praying, inter alia, that the High Court may be pleased to quash the two orders made by the Cane Commissioner, Bihar on November 14, 1967 under which he excluded 99 villages from the area reserved by him in favour of the appellant under cl. 6 of the Sugar Cane (Control) Order 1966 (to be hereinafter referred to as the 'order ') and included those villages in the area reserved in favour of New Siwan Mill (5th respondent in this appeal). The High Court dismissed that writ petition. The appellant Co. was established in 1903. Though its sugar mill is in U.P. it used to draw its sugarcane requirement mainly from the neighboring areas in Bihar State. The mill in question is within about 100 yards of the Bihar border. The appellant 's case is that for the last over 30 years the 208 villages of Bihar, with which we are concerned in this appeal had been the principal source of its supply of sugarcane and that the Bihar authorities used to reserve those villages for it. The appellant claims to have spent huge amount in the development of sugarcane growing areas in the said 208 villages in the course of years. It also claims to have advanced large sums to the sugarcane growers in the said villages, such sums to be adjusted later on against the price of the sugarcane purchased. In 1955 the Central Govern 810 ment promulgated the 'order ' in exercise of its powers under the Essential Commodities Act. One of the main purpose of that order was to regulate the supply and distribution of sugarcane. Reservation of the said 208 villages in favour of the appellant continued under that order. But in view of the agitation carried on by the 5th respondent and others, .during the two seasons 1962 63 and 1963 64 those villages were kept unreserved. Hence any factory was free to make purchases in that area. Even during that period the appellant continued to get its supplies from that area. On February 3, 1964, there was a meeting of the Cane Commissioners of Bihar and U.P. with the object of deciding on a long term basis the question of allotting sugarcane grown in the border area among the sugar factories situated near the Bihar U.P. border. In that meeting it was decided inter alia that the aforementioned 208 villages should be reserved in favour of the appellant; at the same time some of sugarcane growing areas in U.P. were reserved for some of the Bihar sugar mills. Accordingly the Cane Commissioner of Bihar passed orders reserving the aforementioned 208 villages for the appellant for two seasons i.e. 1964 65 and 1965 66. For the New Siwan mill (5th respondent) 100 more villages were reserved in Guthani area. The representation of the New Siwan mill for reserving the 208 villages mentioned earlier was rejected by the Cane Commissioner. The powers of the Central Government under cls. 6, 7, 8 and 9 of the 'order ' were delegated to the several States and the Cane Commissioners mentioned in the notification issued by the Central Government on July 16, 1966. The State Government of Bihar and the Cane Commissioner of Bihar are amongst the authorities to whom the powers under those clauses were delegated. By its order of November 4, 1966, the State Government of Bihar rejected the representation made by New Siwan mill by its application of February 17, 1966 asking for reservation of the 208 villages mentioned earlier. Thereafter by his order of December 30, 1966, the Cane Commissioner Bihar reserved those villages for the appellant under el. 6(1)(a) of the 'order ' for two seasons (1966 67 and 1967 68). The New Siwan mill challenged the validity of that order in C.W.J.C. No. 63 of 1967 in the Patna High Court. The appellant filed its counter affidavit in that proceeding on March 21, 1967. The application was heard in part on Aprii 13, 1967 and April 14, 1967 but thereafter the case was adjourned. Later the appellant learnt that the 5th respondent had moved the Chief Minister of Bihar to revoke the reservation made in favour of the appellant. Apprehending that the appellant 's interest may be jeopardised, one of the Directors of the appellant company wrote to the Chief Minister on June 15, 1967 praying that the reservation made in favour of the appellant should 811 not be disturbed. Subsequent to that, the appellant made numerous other representations both to the Chief Minister as well as to the Cane Commissioner. One of the Director of the appellant company met the Chief Minister as well as his Private Secretary. Meanwhile the 5th respondent was also making representations, to the Chief Minister as well as to the Cane Commissioner. From the records produced before us, it is clear that the Cane Commissioner was firmly of the opinion that there was no justification for disturbing the reservation made in favour of the appellant. He strongly recommended to the Chief Minister against interfering with the said reservation. According to him it was in the interest of the Sugar industry as well as that of the Sugar mills in Bihar not to disturb the agreement arrived at the meeting of the Sugar Cane Commissioners of U.P. and Bihar. From the records. produced before us it is seen that one of the grounds urged by the 5th respondent in support of his plea was that while it was a Bihar mill, the appellant was a U.P. mill and as such the Bihar villages should be reserved for its use. From the note submitted by Shri Taring Sahai, an officer in the Cane Commissioner 's department, to the Assistant Cane Commissioner on July 5, 1967, it is seen that the Chief Minister was interesting himself ' in the controversy between the appellant, and ' the 5th respondent. That is also clear from the note submitted by section Asanullah another officer in the same department to the Cane Commissioner ' on 7 7 1967. It is unnecessary to refer to the correspondence that passed between the Cane Commissioner and the Chief Minister but one thing is clear from that correspondence that while the Cane Commissioner was firm in his opinion that the agreement entered into between him and his counter part in U.P. should be respected, the Chief Minister was inclined to alter the reservation made in favour of the appellant. In the notes submitted by the Assistant Cane Commissioner to the Cane Commissioner we find the following statement: "As verbally ordered by the Cane Commissioner in the background of the above notes of the Assistant Cane Commissioner in connection with the discussions held with the Chief Minister the undersigned examined the geographical positions given in the map. 208 villages of Bihar are reserved for Pratabpur mill. They are divided as follows: (a) Mirganj police station . 87 (b) Siwan police station . 106 (c) Darauli police station . 15 Total . 208 ", 812 In the note submitted by the Cane Commissioner to the Chic Minister on October 27, 1967, it is stated: "As per order, the above two suggestions (Ka and Kha) have been given for division of 208 villages between the New Siwan Mill and the Pratabpur Mill. According to one (Ka) the New Siwan Mill gets 121 villages and according to the second proposal (Kha) it gets 99 villages. As it is clear from the notes of the Assistant Cane Commissioner, the Chief Minister has ordered that most of these 208 villages may be given to the New Siwan Mill. This order is carried out under proposal 'Kha ', but under it, about 20 22 such villages come as are at a distance of only 2 3 miles from the Pratabpur Mill and the farmers of those villages can also have some objection on account of it. Hence only after obtaining a clear order from the Chief Minister, the necessary notification will be issued. Sd/ Illegible 27 10. " On November 7, 1967, the Chief Minister passed the following order on the above note. "I agree with the notes as at Kha of page 33. 99 villages be left to the New Siwan Mill and 109 villages to the Pratabpur Mill. None of the two mills will have the right to keep the weigh bridge of sugar cane collecting centre in the area of each other. Sd/ Mahamaya Pd. Sinha 7 11 67. " On the basis of this direction the Cane Commissioner made the impugned orders on November 14, 1967, which were duly published in the Gazette. In the High Court the validity of the order made by the Cane Commissioner on November 14, 1967 was challenged on six different grounds i.e. (1 ) that the Cane Commissioner had no jurisdiction to pass those orders; (2) in passing those orders, the Cane Commissioner practically abdicated his statutory functions and mechanically implemented the directions issued by the Chief Minister; (3) the orders are vitiated as the proceeding before the authority culminating in those orders was a quasi judicial proceeding and the authority had failed to afford a reasonable opportunity to the appellant to represent against the orders proposed to be made; (4) even if the proceeding in question should be 813 considered as an administrative proceeding as the orders made involve civil consequence and the proceeding having not been conducted consistently with the rules of natural justice, the impugned orders cannot be sustained; (5) those orders were passed mala fide and lastly (6) they are discriminatory against the petitioner and hence hit by article 14 of the Constitution. The High Court rejected every one of the contentions. It came to the conclusion that the Cane Commissioner who had the power to make reservations under cl. 6 of the 'order ' had also the power to modify Or cancel those reservations in view of section 21 of the General Clauses Act; the impugned orders were that of the Cane Commissioner both in fact as well as in law; the proceeding before the Cane Commissioner which resulted in making the impugned orders is a purely administrative proceeding; even if it is considered to be quasi judicial proceeding, reasonable opportunity had been given to the appellant to represent its case and in fact it had represented its case fully and effectively; the plea of mala fide is unsubstantiated and the orders in question did not contravene article 14 of the Constitution. In this Court Shri A.K. Sen, learned Counsel for the appellant attacked the impugned order on the following grounds: (1) The orders in question though purported to have been made by the Cane Commissioner, were in fact not so; the Cane Commissioner merely acted as the mouth piece of the Chief Minister; in truth he had abdicated his statutory functions and therefore the orders are bad; (2) Every proceeding to modify any reservation made under cl. 6 of the 'order ' is a quasi judicial proceeding. As the impugned modifications were made without affording the appellant reasonable opportunity for representing its case they are bad in law; (3) Even if the said proceeding is considered as an administrative proceeding, the impugned orders are liable to be set aside on the basis of the rule laid down by this Court in State of Orissa vs Dr. (Miss) Binapani Dei and Ors. (1), and ( 4 ). The impugned modifications contravene article 301 of the Constitution. Shri Sen did not address any arguments on the last ground formulated by him. Therefore we shall not deal with the same. The contentions of Shri M.C. Chagla, learned Counsel for the State of Bihar as well as the 5th respondent were as follows: Though the Cane Commissioner had consulted the Chief Minister, the impugned orders were really made by the former, hence it cannot be said that he had abdicated his statutory func (1) ; 814 tions. According to him, the proceeding before the Cane Commissioner was administrative in character and to such a proceeding rules of natural justice are not attracted. He further urged that even if it is held that the said proceeding was a quasi judicial proceeding, there was no contravention of the principles of natural justice as the appellant had represented his case fully both before the Chief Minister as well as before the Cane Commissioner. Before we proceed to examine the contentions advanced on behalf of the parties, it is necessary to refer to the relevant provisions of law. Clause 5 of the 'order ' which deals with the power to regulation, distribution and movement of sugarcane reads as under: (1) The Central Government may, by order notified in the official gazette: (a) reserve any area where sugarcane is grown (hereinafter in this clause referred to as reserved area) for a factory having regard to the crushing capacity of the factory, the availability of sugarcane in the reserved area and the need for production of sugar, with a view to enabling the factory to purchase the quantity of sugarcane required by it; (b) determine the quantity of sugarcane which a factory will require for crushing during any year; (c) fix, with respect to any specified sugarcane grower or sugarcane growers generally in a reserved area, the quantity or percentage of sugarcane grown by such grower or growers, as the case may be, which each such grower by himself or, if he is a member of a co operative society of sugarcane growers operating in the reserved area, through such society; shall supply of the factory concerned; (d) direct a sugarcane grower or a sugarcane growers ' cooperative society supplying sugarcane to a factory, and the factory concerned to enter into an agreement to supply or purchase, as the case may be, the quantity of sugarcane fixed under paragraph (c); (e) direct that no gur (jaggery) or khandsari sugar or sugar shall be manufactured from sugarcane except under and in accordance with the conditions specified in the licence issued in this behalf; (f) prohibit or restrict or otherwise regulate the export of sugarcane from any area (including a reserved 815 area) except under and in accordance with a permit issued in this behalf. (2) Every sugarcane grower, sugarcane growers ' co operative society and factory, to whom or to which an order made under paragraph (c) of sub clause (1) applies, shall be bound to supply or purchase, as the case may be, that quantity of sugarcane covered by the agreement entered into under the paragraph and any wailful failure on the part of the sugarcane growers ' cooperative society or the factory to do so, shall constitute a breach of the provisions of this Order: Provided that where the default committed by any sugarcane growers ' co operative society is due to any failure on the part of any sugarcane grower, being a member of such society such society shall not be bound to make supplies of sugarcane to the factory to the extent of such default. Clause (11 ) deals with delegation of powers. It reads: "The Central Government may, by notification in the Official Gazette, direct that all or any of the powers conferred upon it by this Order shall, subject to such restrictions, exceptions and conditions, if any, as may be specified in the direction, be exercisable also by: (a) any officer or authority of the Central Government; (b) a State Government or any officer or authority of a State Government." As seen earlier, the Central Government had delegated its power under cl. (6) to the State Government of Bihar as well as to the Cane Commissioner, Bihar. In the matter of exercise of the power under rule 6(1) the State Government and the Cane Commissioner are concurrent authorities. Their jurisdiction is co ordinate. There was some controversy before us whether a Cane Commissioner who had reserved an area for a sugar factory for a particular period can alter, amend, or modify the area reserved in the middle of the period fixed. As seen earlier 208 villages With which we are concerned in this case were reserved for the appellant for two seasons i.e. 1966 67 and 1967 68. The contention was that the Cane Commissioner could not have interfered with that reservation within that period. The High Court has come to the conclusion that the Cane Commissioner who had the power to make the reservation in question must be held to have had the power to alter or modify that reservation. But it is not necessary for us to pronounce on this question as we are of the opinion that the 816 impugned orders though purported to have been made by the Cane Commissioner were in fact made by the Chief Minister and hence they are invalid. We have earlier seen that the Cane Commissioner was definitely of the view that the reservation made in favour of the appellant should not be disturbed but the Chief Minister did not agree with that view. It is clear from the documents before us that the Chief Minister directed the Cane Commissioner to divide the reserved area into two portions and allot one portion to the 5th respondent. In pursuance of that direction, the Cane Commissioner prepared two lists 'Ka ' and 'Kha". Under the orders of the Chief Minister, the villages contained in list 'Ka ' were allotted to the appellant and in list 'Kha ' to the 5th respondent. The Cane Commissioner merely carried out the orders of the Chief Minister. It is true that the impugned orders were issued in the name of the Cane Commissioner. He merely obeyed the directions issued to him by the Chief Minister. We are unable to agree with the contention of Shri Chagla that though the Cane Commissioner was initially of the view that the reservation made in favour of the appellant should not be disturbed, he changed his opinion after discussion with the Chief Minister. From the material before us, the only conclusion possible is that the Chief Minister imposed his opinion on the Cane Commissioner. The power exercisable by the Cane Commissioner under cl. 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by cl. (6) read with cl. (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior. In Commissioner of Police, Bombay vs Gordhandas Bhanji(1) this Court struck down the order purported to have been passed by the Commissioner of Police in the exercise of his powers (1) ; 817 under the Bombay Police Act and the rules made thereunder as the order in question was in fact that of the Government. The rule laid down in that decision governs the question under consideratiing. This Court reiterated that rule in State of Punjab vs Hari Kishan Sharma(1). Therein this Court held that the State Government was not justified in assuming jurisdiction which had been conferred on the licensing authority by section 5 (1 ) and (2) of the Punjab Cinemas (Regulation) Act. For the reasons mentioned above we hold that the impugned orders are liable to be struck down as they were not made by the prescribed authority. This takes us to the question whether the proceeding which resulted in making the impugned orders is a quasi judicial proceeding or an administrative proceeding. There was some controversy before us whether a proceeding under el. 6(1) of the 'order ' is a quasi judicial proceeding. It is not necessary for us to decide that question as in this case we are only concerned with the proceeding which resulted in making the impugned orders. In that proceeding the only question before the authorities was whether all or some of the villages reserved for the appellant should be taken out from the reserved area and reserved for the 5th respondent. The plea of the 5th respondent was that all those villages should be reserved for it whereas the appellant insisted that the reservation made in its favour should not be disturbed. Whether there was a lis between the appellant and the 5th respondent at an earlier stage or not, we are of the opinion, as soon as the 5th respondent moved the Government for altering or modifying the reservation made in favour of the appellant, a lis commenced. The dispute that arose between the appellant and the 5th respondent had to be decided on the basis of the objective criteria, prescribed by cl. 6 of the 'order ' i.e. (1) the crushing capacity of the appellant mill; (2) the availability of the sugarcane in the reserved area and (3) the need for the production of sugar. There is hardly any doubt that the modification of the reservation made in favour of the appellant would have had serious repercussions on the working of the appellant 's mill. It was bound to affect its interests adversely. Hence it is not possible to accept the conclusion of the High Court that the proceeding before the Cane; Commissioner was not a quasi judicial proceeding. The impugned orders are similar to orders revoking or modifying licenses. It would not be proper to equate an order revoking or modifying a licence with a decision not to grant a licence. Therefore Shri Chagla is not right in his contention that (1) ; 818 in this case we are called upon to deal with a privilege and not right. As observed by S.A. De Smith in his Judicial Review Administrative Action (2nd Edn.) at p. 211: "To equate a decision summarily to revoke a licence with a decision not to grant a licence in the first instance may be still more unrealistic. Here the "privilege" concept may be peculiarly inapposite; and its aptness has not been enhanced by the manner in which it has been employed in some modern cases. It is submitted that the courts should adopt a presumption that prior notice and opportunity to be heard should be given before a licence can be revoked. The presumption should be rebuttable in similar circumstances to those in which summary interference with vested property rights may be permissible. That the considerations applicable to the revocation of licences may be different from those applicable to the refusal of licences has indeed been recognised by some British statutes and a number of judicial decisions in other Commonwealth jurisdictions. " In Province of Bombay vs Kusaldas section Advani and Ors.(1) Das, J. formulated the following tests to find out whether proceeding before an authority or a tribunal . 'is a quasi judicial proceeding : (i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act; , 'red (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi judicial act provided the authority is required by the statute to act judicially. These tests were adopted by this Court in Shivji Nathubhai vs The Union of India and Ors.(2). Therein this Court was (1) ; at p. 725. (2) ; 819 considering the validity of cancellation in review by the Central Government a mining lease granted by the State Government. In that context this Court held that even if the act of the State Government in granting a mining lease was an administrative act, it was not correct to say that no right of any kind passed to the lessee until the review was decided by the Central Government where a review had been applied for. Rule 52 of the rules framed under the Mines and Minerals (Regulation and Development) Act, No. 53 of 1941 which gives the aggrieved party the right to a review created a lis between him and the lessee and, consequently, in the absence of anything to the contrary either in rule 54 or the statute itself there could be no doubt that the Central Government is required to act judicially under rule 54. This Court in Board of High School and Intermediate Education U.P, Allahabad vs Ghanshyam Das Gupta and Ors.(1) held that where the statute in question is silent as to the manner in which the power conferred should be exercised by the authority acting under it, the exercise of power will depend on the express provisions of the statute read alongwith the nature of the rights affected, the manner of disposal provided, the objective criteria, if any, to be adopted, the effect of the decision on the persons affected and other indicate afforded by the statute. The mere fact that the Act in question or the relevant Regulations do not make it obligatory on the authority to call for an explanation and to hear the person concerned is not conclusive on the question whet her the authority has to act as a quasi judicial body when exercising its power under the statute. On applying the various tests enunciated in the above decisions, there is hardly any doubt that the proceeding before the Cane Commissioner was a quasi judicial proceeding. In this connection reference may be usefully made to the decision of the Court of Appeal of New Zealand in New Zealand Dairy Board vs Okitu Co operative Dairy Co., Ltd.(2). We are referring to that decision because the facts of that case bear a close resemblance to the facts of the present case. Therein as a result of a Zoning Order made by the Executive Commissioner of Agriculture in May 1937, the respondent dairy company, carrying on business in Gisborne and the surrounding district, and the Kia Ora Co operative Dairy Co. Ltd. became entitled to operate exclusively in a defined area in the Gisborne district. They were excluded from operating outside that area. The zoning conditions so established continued to exist until 1950, when the appellant Board issued the zoning orders which were impugned in that case. It may be noted that the zoning orders were made in the exercise of the statutory power conferred on the appellant board. [1962] Supp. 3 S.C.R. 36. (1953) New Zealand Law Reports p. 366. 820 Before 1942, the respondent Co. was approached by the Health Department with a request that it undertakes the treatment and supply of pasteurised milk to the public ' schools, and it was informed that other dairy companies had declined the proposal. the company complied with the request, after overcoming the difficulties of finance. The scheme was put into operation. In 1942 the respondent company put up a treatment plant and expanded its business. This expansion resulted in an annual turnover in the company 's milk department going upto about A 90,000 as against pound 43,000 in its butter department. In March, 1950, the Kia era company, by letter, expressed its desire that the appellant Board (which had been substituted by regulation for the Executive Commission) should examine the question of cream and milk supplies in the Gisborne and surrounding districts. This letter was, in substance, an application to the Board to review the whole question of zoning and to require the respondent company to cease the manufacture of butter. Moreover the letter set out the circumstances in a manner prejudicial to the respondent company. After various meetings and negotiations between the appellant Board, companies concerned, and interested parties, at none of which were the contents of the Kia Ora company 's letter to the Board disclosed to the respondent company, no agreement was reached. The result of discussions with the Kia Ora company and detailed replies to complaints were given to the Board by the respondent company, and its letter ended with a statement to the effect that it would appreciate the privilege of appearing before the full Board with the object of stating its case more fully or of answering any questions. The Board ignored this specific request. At a full meeting of the Board held on May 31, 1950, the Board decided that only one butter factory should operate in the Gisborne district. On August 3, the Board by resolution, decided to give notice of its intention of issuing a zonal order to operate as from October 1, 1950 assigning to the Kia Ora company the cream collection area over which the two companies then operated. On August 29, the respondent company wrote to the Board protecting against its proposal and asking for recession of the Board 's resolution and ,for an opportunity of being heard. On September 2, 1950, the appellant Board in exercise of the power conferred upon it by Regulation 716 of the Dairy Factory Supply Regulations, 1936 and in terms of its resolution of August 3, 1950, made Zoning Order No./20 which was the subject of the proceedings before the Supreme Court of New Zealand. That order was to come into force on October 1, 1950. Its effect was to assign exclusively to the Kia Ora Co. the area defined in Zoning Order (No. 30) of 1937 as that in which the two companies could jointly collect cream produced in supplying dairies situated in that area, and ' to prohibit the res 821 pondent dairy company after October 1, 1950 from collecting or receiving any cream so produced for the purposes of manufacture into cream or butter. The respondent company and others presented a petition to the Parliament praying for relief and remedy by way of legislation either in the direction of reversing and setting aside the Board 's decision in the matter of the zoning order or setting aside such decision and rehearing of the matter by an independent tribunal. The petition was heard by a select Committee of the House of Representatives, which decided to make no recommendation on the petition. On August 4, the Board made an amended Zoning Order (No. 120A) postponing until June 1, 1951, the date of the coming into operation of Zoning Order No. 120 already made, but otherwise confirming that order. The respondent company commenced an action against the Board claiming (a) a declaration that Zoning Orders Nos. 120 and 120A issued by the Board were invalidly passed and were of no legal effect; (b) an order of certiorari to remove into the Supreme Court and quash the zoning orders; and (c) an injunction restraining the Board from carrying out its intention of promulgating the zoning orders or from proceeding further or exercising any jurisdiction in accordance with the same. The action was heard by Mr. Justice Hay, who found that, in the conduct of the inquiry instituted by the Board, following the application made to it by the Kia Ora Company, there was, in the various respects mentioned in the judgment, a departure from those principles of natural justice which were incumbent on the Board; and in particular, the plaintiff company was denied a hearing on the crucial issue as to whether or not a zoning order should be made. The learned Judge held that the plaintiff company was entitled to succeed in the action in respect of all the reliefs it claimed and he gave the judgment in its favour with costs against the Board. The Court of Appeal affirmed by majority the judgment of the learned trial judge. The Court held that the New Zealand Dairy Board in making its zoning order No. 120 on September 1, 1950 was determining a question affecting the rights of the respondent company and further that the order of the Board was that of a body that was, at least primarily, an administrative body and the question whether such a body was under a duty to act judicially in the course of arriving at an administrative decision was to be determined on the true construction of the authorising legislative provisions and the conditions and circumstances under which, and in which, the jurisdiction fell to be exercised. It held that on the facts and circumstances of the case the power exercised by the Board vitiated as the Board had failed to conform to the principles of natural justice in making the zoning order in question and hence the same is unsustainable. The decision 822 Of the Privy Council in James Edward Jeffs and Ors. vs New Zealand Dairy Production and Marketing Board and Ors. (1) proceeded on the basis that the aforementioned decision of the Court of Appeal is correct. Shri Chagla contended that even if we are to hold that the power exercised by the authorities in making the impugned orders had to be exercised judicially, on the facts of his case we must hold that there was no contravention of the principles of natural justice. He took us to the various representations made by the appellant. According to him the appellant had stated in its representations to the authorities all that it could have said on the subject. Therefore we should not hold that there was any contravention of the principles of natural justice. It is true as observed by this Court in Suresh Koshy George vs The University Kerala and Ors.(2) that "the rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the tribunal and the rules under which it functions. " In this case what has happened is that both the appellant as welt as the 5th respondent were making repeated representations to the Chief Minister as well as to the Cane Commissioner. The representations made by the 5th respondent or even the substance thereof were not made available to the appellant. The proposal to split the reserved area into two or the manner in which it was proposed to be split was not made known to the appellant and his objections invited in that regard. The appellant complains that the manner in which the area had been divided had caused great prejudice to it. Its grievance may or may not be true but the fact remains that it had no opportunity to represent against the same. Hence the appellant is justified in complaining that the principles of natural justice had been contravened. In view of our finding that the proceeding which resulted in the making of the impugned orders was a quasi~judicial proceeding, it is unnecessary to decide whether the impugned orders could have been validly made in an administrative proceeding. We see no merit in the contention advanced on behalf of the 5th respondent that the Cane Commissioner was not competent to reserve the area in question for the appellant as its mill is in U.P. The reserved area is in Bihar. The Cane Commissioner of Bihar had power to reserve that area for any sugar mill whether situated in Bihar or not. [1967] A.C. 551. (2) ; 823 The contention of Shri Chagla that as no orders had yet been passed under cls. 6(c) and (d) of the 'order ' the ,appellant cannot be considered as an aggrieved party is not correct. As soon as a portion of the area reserved for the appellant was ordered to be taken away and added to the reserved area of the 5th respondent, the appellant 's interest was adversely affected. Therefore it is immaterial for the appellant what orders are passed under sub cls. (c) and (d) of el. 6 of the 'order ', because it can no more get any sugarcane from the area in question. What hurts the appellant is the impugned orders and not the further orders that may be passed. For the reasons mentioned above this appeal is allowed and the orders impugned quashed. The State of Bihar as well as the 5th respondent shall pay the costs of the appellant both in this. Court as well as in the High Court. G.C. Appeal allowed.

The Sugar Cane (Control) Order, 1955 was promulgated by the Central Government in the exercise of its powers under the Essential Supplies Act. Under cl. 6 of the Order the Central Government could reserve any area where sugarcane was grown for a factory taking into account various relevant 'factors. Clause 11 allowed the Central Government to delegate its power under el. 6, and the Central Government by a notification dated July 16, 1966 delegated the said power to the several State Governments and the Cane Commissioners of those States. The appellant was a sugar mill situated in U.P. near the border of Bihar State. For a long time its source of supply of sugarcane had been the neighboring area of Bihar State consisting of 208 villages. For the seasons 1966 67 and 1967 68 the 5th respondent a sugar mill situate on the Bihar side of the order sought to have the area reserved for itself but by order dated November 30, 1966 the request was rejected by the State Government. In December 1966 the Cane Commissioner, Bihar passed an order under el. 6(1) of the Sugar Cane (Control) Order reserving the said area of 208 villages for the appellant for the seasons 1966 67 and 1967 68. The 5th resportdent made representations to the Chief Minister. Acting on directions given by the Chief Minister the Cane Commissioner, Bihar passed orders on November 14, 1967, whereby by a notification in the Bihar Government Gazette 121 of the aforesaid villages were reserved for the appellant and 99 villages for the 5th respondent. The appellant filed a writ petition in the High Court challenging this order of the Cane Commissioner but the petition was rejected. With certificate appeal was filed in this Court. The contentions urged on behalf of the appellant were: (i) The orders in question though purported to have been made by the Cane Commissioner were in fact not so, and were therefore invalid; (ii) Every proceeding to modify any reservation under cl. 6 is a quasi judicial proceeding. As the impugned notifications were made without affording the appellant reasonable opportunity for representing its case they were bad in law; (iii) Even if the said proceeding was considered an administrative proceeding the impugned orders were liable to be set aside on the basis of the rule laid down by this Court in State of Orissa vs Dr. (Miss) Binapani Dei, ; HELD: (i) From the material on record the only conclusion possible was that the Chief Minister imposed his opinion on the Cane Commissioner. The power exercisable by the Cane Commissioner under cl. 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the 808 functions of the Cane Commissioner. In this case what had happened was that the power of the Cane Commissioner had been exercised by the Chief Minister, an authority not recognised by el. (6) read with cl. (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and to some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve . them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior. [816] Commissioner of Police, Bombay vs Gordhandas Bhanji, ; and State of Punjab vs Hari Kishan Sharma, A.I R. , applied. (ii) As soon as the 5th respondent moved the Government for altering or modifying the reservation made in favour of the appellant, a lis commenced. The dispute that arose between the appellant and the 5th respondent had to be decided on the basis of the objective criteria, prescribed by el. 6 of the order i.e. (1 ) the crushing capacity of the appellant mill; (2) the availability of the sugarcane in the reserved area and (3) the need for the production of sugar. There could hardly be any doubt that the modification of the reservation made in favour of the appellant would have had serious repercussions on the working of the appellant 's mill. It was bound to affect its interests adversely. Hence it was not possible to accept the conclusion of the High Court that the proceeding before the Cane Commissioner was not a quasi judicial proceeding. [817 E H] Province of Bombay vs Kusaldas section Advani & Ors., ; at p. 725, Shivji Nathubhai vs The Union of India, ; , Board of High School and Intermediate Education U.P. Allahabad vs Ghanshyam Das Gupta & Ors., [1962] 3 Supp. S.C.R. 36. New Zealand Dairy Board vs Okitu Co operative Dairy Co. Ltd., (1953) New Zealand Law Reports. p. 366, and James Edward Jeffs & Ors. vs New Zealand Dairy Production & Marketing Board & Ors., [1967] A.C.p. 551, referred tO. (iii) In the present case both the appellant and the 5th respondent were making repeated representations to the Chief Minister as well as to the Cane Commissioner. The representations made by the 5th respondent or even the substance thereof were not made available to the appellant. The proposal to split the reserved area into two or the manner in which it was proposed to be split was not made known to the appellant and his objection invited in that regard. It had no opportunity to represent against the same. Hence the appellant was justified in complaining that the principles of natural justice had been contravened. [822 D F] Suresh Koshy George vs The University of Kerala & Ors., ; , referred to. (iv) The appellant 's interest was adversely affected by the impugned order and the contention of the respondent that as no orders had been passed under cls. 6(c) and (d) of the 'order ' the appellant could not be considered as an aggrieved party. was not correct. [823 A] 809 [The Court did not consider it necessary to decide the questions (a) whether the impugned orders could have been validly made in an administrative proceeding, (b) whether the Cane Commissioner who. had the power to make the reservation in question also had the power to alter or modify that reservation]

No. 7 of 1972. Under Article 32 of the Constitution of India for a writ In the, nature of habeas corpus. H. K. Puri, for the petitioner. D. N. Mukherjee and G. section Chatterjee, for the respondent. The Judgment of the Court was delivered by Khanna, J. This is a petition through _jail for the issuance of ' a writ of habeas corpus by Nishi Kanta Mondal who has been ordered by the District Magistrate, 24 Parganas to be detained under section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President 's Act No. 19 of 1970), hereinafter referred to as the Act. The order of detention reads as under "GOVERNMENT OF WEST BENGAL OFFICE OF THE DISTRICT MAGISTRATE 24 PARGANAS ORDER No. 352/71 Dated, the 6 7 71 Whereas I am satisfied with respect to the person known as Shri Nishi Kanta Mondal, son of Shri Radhanath Mondal of Daccapara, P. section Bongaon, Dt. 24 Parganas that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, I therefore in exercise of the powers conferred by sub section (1) read with sub section (3) of section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President 's Act No. 19 of 1970), make this order directing that the said Nishi Kanta Mondal be detained. Given under my hand and seal of office. Sd/ DISTRICT MAGISTRATE 24 PARGANAS 6 7 71" In pursuance of the above order, the petitioner was arrested on July 8, 1971 and was served with the order as well as the 226 grounds of detention on the same day. On July 10, 1971 the District Magistrate sent report to the State Government about his having passed the order for 'the detention of the petitioner. The grounds of detention and other necessary particulars were also sent along with the report. The State Government, after considering the report and other particulars, approved the detention order on July 17, 1971. Representation made by the petitioner against his detention was received by the State Government on July 30, 1971. The representation was considered by the State Government and rejected on August 5, 1971. The case of the petitioner was placed before the Advisory Board on August 6, 1971. The petitioner 's representation was also sent to the Advisory Board. The Advisory Board, after considering the material placed before it as well as the representation sent by the petitioner and after giving him a hearing in person, submitted its report to the State Government on September 14, 1971. Opinion was expressed by the Advisory Board that there was sufficient cause for the detention of the petitioner. The State Government passed an order on October 5, 1971 confirming the order for the ,detention of the petitioner. The confirmation order was there,after communicated to the petitioner. The petition has, been resisted by the State of West Bengal and the affidavit of Shri Chandi Charan Bose, Deputy Secretary, Home (Special) Department, Government of West Bengal has been filed in opposition to the petition. Mr. Puri has addressed arguments amicus curiae on behalf of the petitioner, while the respondent State has been represented by Mr. D. N. Mukherjee. The first contention which has been advanced by Mr. Puri is that the Act was enacted by the President in exercise of the powers conferred by, section 3 of the West Bengal State Legislature (Delegation of Powers) Act, 1970. According to section 3 of the last mentioned Act, the power of the Legislature of the State of West Bengal to make laws, which 'had been declared by the Proclamation to be exercisable by or under the authority of Parliament, was conferred on the President. In the exercise of the said power, the President could, from time to time whether Parliament was or was not in session, enact. as a President 's Act, a Bill containing such provisions as he considered necessary. Some other formalities, detailed in section 3, were also required to be complied with by the President, but it is not necessary for the purpose of this case to 'refer to, the. Section 2 of the aforesaid Act defined "Proclamation" to mean the Proclamation issued on the 19th day of March, 1970, under article 356 of the Constitution by the President, and published with the notification of the Government of India it) the Ministry of Home Affairs No. G.S.R. 490 of the said date, It is urged 227 by Mr. Puri that the above mentioned Proclamation was revoked by the President by another Proclamation in the beginning of this month. On account of the revocation of the Proclamation, the President 's Act No. 19 of 1970, according to the learned counsel, ceased to have effect. As such, the petitioner could not be kept in detention in pursuance of the order made under that Act. There is, in our opinion, no force in the above contention because it is based upon the assumption that the law made by the President ceases to operate immediately upon the revocation of the Proclamation. This assumption is not correct and runs contrary to clause (2) of article 357 of the Constitution. According to that clause, "any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub clause (a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under article 356, have been com petent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of one year after the Proclamation has ceased to operate except as respects thing done or omitted to be done before the expiration of the said period, unless the provisions which shall so cease to have effect are sooner repealed or reenacted with or without modification by Act of the appropriate Legislature". The above provision makes it plain that the period for which a law made under article 3 5 6 (I remains in force is not co terminous with the duration of the Proclamation. It has not been disputed that the President was competent under clause (1) of article 356 of the Constitution to enact Act No. 19 of 1970. The said Act, in view of the provisions of clause (2) of article 357, shall continue to remain in force in spite of the revocation of the Proclamation dated Mach 19, 1970 and would cease to have effect only on the expiry of on, , year after the Proclamation has ceased to operate except as respects things done or omitted to be done before the expiration of the said period, unless the provisions of the Act are sooner repealed or reenacted with or without modification by Act of the appropriate Legislature. As the aforesaid period of one year has not expired and as the provisions of the Act have not been repealed or re enacted with or without modification by Act of the appropriate Legislature, the impugned Act should be held to be still in force. In view of our finding that the Act (Act No. 19 of 1970) is still in force, it is not necessary to consider the question as to what would be the legal position in respect of subsisting detentions after the Act ceases to have effect in accordance with article 357(2) of the Constitution. 228 Argument has then been advanced by Mr. Puri that the im pugned detention order was not in conformity with section 10 of the Act as it did not specify the date of detention. Section 10 reads as under : "10. In every case where a detention order has been made under this Act, the State Government shall, within thirty days from the date of detention under the order, place before the Advisory Board, constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer specified in sub section (3) of section 3, also the report made by such officer, under sub section (4) of section 3. " According to the learned counsel, the words "within thirty days from the date of detention under the order" in the section indicate that it is imperative on the part of the detaining authority to specify the date of detention in the order. We find ourselves unable to accede 'to this submission. All that section 10 contemplates is that the State Government should within 30 days from the commencement of the detention place before the Advisory Board the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where an order has been made by an officer specified in sub section (3) of section 3, also the report made by such officer under sub section (4) of section 3. There is nothing, however, in the section which makes it obligatory on the part of the detaining authority to specify the date of the commencement of detention. Detention starts from the time a detenu is taken into custody in pursuance of the detention order. In most of the cases it may be difficult to state in the detention order as to when the detention WOuld commence because the detaining authority cannot be certain at the time of the making of the detention order about the date on which the person ordered to be detained would be taken into custody. The possibility of the person ordered to be detained avoiding or delaying his apprehension by absconding or concealing himself cannot be ruled out. In case the contention advanced on behalf of the petitioner were to be accept , the detention order would cease to be enforceable in case the person. ordered to be detained cannot somehow be apprehended on the date mentioned in the order. We find it difficult to draw such an inference from the language of section 10 of the Act. The words "from the date of detention under the order", in our opinion, have reference to the date of the commencement of the detention in pursuance of the detention order. 229 Lastly, it has been argued by Mr. Puri that the grounds of detention are not germane to the objects for which a person can be ordered to be detained under the Act. In this connection, we find that, according to the grounds of detention which were furnished to the petitioner, he was being detained as he was acting in a manner prejudicial to the maintenance of public order as evidenced by particulars given below : "On 12 2 71 at about 02.00 hrs. , you and some of your associates being armed with bombs and other lethal weapons attacked Shri K. K. Naskar, I.A.S., S.D.O., Bongaon and his guard by hurling bombs and thereby causing injuries to the guard constable when they came out on hearing sounds of explosion of bombs near the quarters of Shri section C. Sarkar, Magistrate 1st Class, Bongaon, at Amlapara near Bongaon Court. You, thereby, created a panic in the locality and disturbed the public order. (2) On 23 2 71 between 10.45 hrs. and 02.15 hrs Bongaon Police on receipt of a secret information searched a house at Subhaspalli, Bongaon and recovered 3 high explosive bombs and some explosive materials from you and your associates possession." According to section 3 of the Act, the State Government may. if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order it is necessary so to do, make an order directing that such person be detained. District Magistrates and some other officers under subsection (3) of section 3 of the Act have been empowered, if satisfied as provided in sub section (1), to exercise the powers conferred by the said sub section. According to clause (d) of sub section (2) of section 3 of the Act, for the purposes of sub section (1) the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order" inter alia means : "committing, or instigating any person to commit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the or the , where the com mission of such offence disturbs, or is likely to disturb, public order. " It is manifest from the above definition that the expression "acting in any manner prejudicial to the maintenance of public order" would include the commission of an offence under the when the commission of such offence disturbs or is likely to disturb public order. Particulars 230 supplied to the petitioner regarding the incident of February 12, 1971 show that the petitioner and his associates hurled bombs near the quarter of the S.D.O., Bongaon and caused injuries to his guard, as a result of which panic was created in the locality and public order was disturbed. The particulars regarding the incident of February 12, 1971 clearly bring the case within ambit of clause (d) of sub section (2) of section 3 of the Act. As regards the second incident of February 23, 1971 we find that the particulars show that three high explosive bombs and explosive materials were recovered from the possession of the petitioner and his associates on search of a house. The particulars thus show that the petitioner was guilty of an offence under the . It is also obvious that the use of high explosive bombs was likely to disturb public order. The fact that the high explosive bombs were, recovered from the petitioner and his associates and taken into possession before they could be used would not take the case out of the purview of clause (d) The earlier incident of February 12, 1971 gives a clear indication of the propensity of the petitioner to use and explode such bombs. The recovery of the high explosive bombs from the possession of the petitioner prevented him from using and exploding the bombs and disturbing public order. As the object of detention is to prevent the detenu from acting in any manner prejudicial to the security of the State or the maintenance of public order, the grounds of detention supplied to the petitioner, in our opinion, should be held to be germane to the purpose for which detention order can legally be made under the Act. In order to detain 1 person with a view to pit vent him from acting in any manner prejudicial to the security of the State or the maintenance of public order, as contemplated by section 3 (2) (d) of the Act, it is sufficient that the detaining authority considers it necessary to detain him in order to preve nt him from doing any of the acts mentioned in clause (d). If the past conduct and antecedents of the person concerned reveal a tendency to do the acts referred to in clause (d), the order of detention would be upheld, even though because of some supervening cause like prompt action by the police, the public order is not actually disturbed. We, therefore, find no infirmity in the impugned detention order. It also cannot be said that the detention of the petitioner is not in accordance with law. The petition consequently fails and is dismissed. K.B.N. Petition dismissed.

The petitioner was detained under section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President 's Act 19 of 1970) as he was acting in a manner prejudicial to the maintenance of public order. The particulars supplied to the, petitioner showed that he and his associates hurled bombs as a result of which panic was created in the locality and that high explosive bombs were recovered from the possession of the petitioner and his associates. In the petition for the issue of a writ of habeas corpus it was contended on behalf of the petitioner that (1) on the revo cation of the Proclamation under article 356 of the Constitution, President 's Act No. 19 of 1970 ceased to have effect and, as such, the petitioner could not be kept in detention in pursuance of the order made under the Act , (ii) the impugned detention order was not in conformity with section 10 of the Act as it did not specify the date of detention and (iii) the ground , of detention were not germane to the objects for which a person can be ordered to be detained under the Act. Dismissing the petition, HELD : (i) The period for which a law made under article 356 (1) remains in force is not co terminous with the duration of the proclamation. In view of the provisions of clause (2) article 357, President 's Act 19 of 1970 shall remain in force in spite of the revocation of the proclamation and would cease to have effect only on the expiry of one year after the proclamation has ceased to operate unless the provisions of the Act are sooner repealed or reenacted by Act of the appropriate State Legislature. [227E] (ii) There is nothing in section 10 which makes it obligatory on the part of the detaining authority to specify the date of the commencement of the detention : The words "from the date of detention tinder the order" have reference to the date of the commencement of the detention in pursuance of the detention order. [228E F] (iii) According to cl. (d) of sub section (2) of section 3 the expression "acting in any manner prejudicial to the maintenance of public order" would include commission of an offence under the , or the . The particulars supplied to the petitioner clearly bring the case within the ambit of clause (d) of subsection (2) of section 3 of the Act. [229H] In order to detain a person with a view to preventing him from acting in any manner prejudicial to the security of the state or the maintenance of public order, as contemplated by section 3 (2) (d) of the Act, it is sufficient. 225 that the detaining authority considers it necessary to detain him in order to prevent him from doing any of the acts mentioned in clause (d). If the past conduct and antecedents of the person concerned reveal a tendency to do the acts referred to in clause (d), the order of detention would be upheld, even though because of some supervening cause like prompt action by the police, the public order is not actually disturbed. [230E G]

Appeal No. 4541 of 1991. From the Judgment and Order dated 6.8.1991 of the Punjab and Haryana High Court in C.W.P. No. 2415 of 1991. Dr. Anand Prakash, Mrs. Veena Birbal and Raj Birbal for the Appellants. D.R. Sehgal, S.K. Bagga and Mrs. S.K. Bagga for the Respond ents. The Judgment of the Court was delivered by VERMA, J. The respondent, Jagjit Singh Mehta, is em ployed at present in the Bank of India as an officer in Junior Management Grade Scale 1 and posted in a Branch Office of the Bank in District Giridih in the State of Bihar. The respondent was earlier employed in the clerical cadre of the Bank and was posted at Chandigarh. According to the policy contained in Annexure B read with notice dated March 28, 1988 (Annexure C), on promotion from the clerical cadre to the Officers ' Grade, the respondent had to indicate his preparedness for posting anywhere in India according to the availability of vacancies. The respondent readily indi cated his preparedness to be posted anywhere in India by Annexure D dated April 19, 1988 when the respondent was posted as a Clerk at Chandigarh prior to his promotion as an Officer. After getting the promotion as an officer and being posted in Bihar on the above basis, the petitioner filed Civil Writ Petition No. 2415 of 1991 in the High Court of Punjab and Haryana for a direction to the Bank to transfer him from the Bihar Zone to the Chandigarh Zone on the ground that his wife is employed as a Senior Accountant at Chandi garh. The writ petition has been allowed by a Division Bench (M.R Agnihotri & D.S.Mehra, JJ,) of the High Court by a cryptic order dated 6.8.1991 which reads as under : "After hearing the learned counsel for the parties, we allow this petition and direct the respondents by issuing a writ of mandamus commanding the Bank of India to transfer the peti 495 tioner and post him somewhere near Chandigarh as his wife is posted as a Clerk in the office of the Advocate General, Punjab, Chandigarh. This shall be done within a period of two months. No costs. " The petitioner Bank of India is aggrieved by the above order of the High Court. Special leave is granted. In the face of Regulation 47 of the Bank of India (Officers ') Service Regulations, 1979 according to which every officer is liable for transfer to any office or branch of the Bank of India or to any place in India and the clear provision for such a transfer in the policy (Annexure B) read with notice dated March 28, 1988 (Annexure C), it is difficult to sustain the High Court 's order. However, learned counsel for the respondent placed reliance on para 4 (vi) of a Memorandum dated April 3, 1986 (AnnexureH) of the Government of India containing guidelines for posting of husband and wife at one station which are meant to be fol lowed also by all the Public Sector Undertakings. Learned counsel urged that according to the statutory provisions contained in the and the Bank of India (Officers ') Service Regulations, 1979 made thereunder, the Bank is bound to follow the guidelines and directions issued by the Cen tral Government in this behalf. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the deci sion in accordance with the administrative needs. In the case of All India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other 's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the adminis tration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one 496 station, they cannot as of right claim to be relieved of the ordinary incidents of All India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was. prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the Officers ' grade and thereafter he seeks to be relieved of that necessary incident of All India Service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consid er this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administra tive needs and the claim of other employees. The High Court was in error in overlooking all the relevant aspects as well as the absence of any legal fight in the respondent to claim the relief which the High Court has granted as a matter of course. The High Court 's order must, therefore, be set aside. Consequently, the appeal is allowed, the impugned order of the High Court is set aside and the respondent 's writ petition is dismissed. No costs. P. Appeal allowed.

Regulation 47 of the Bank of India (Officers ') Service Regulations, 1979 provided that every officer was liable for transfer to any office or branch of the Bank of India or to any place in India. The respondent was posted as a clerk in the appellant Bank at Chandigarh. At the time of his promotion to the Junior Management Grade Scale 1, he gave an undertaking for posting anywhere in India, and was consequently posted as Branch Officer in the State of Bihar. Thereafter, he filed a writ petition in the High Court claiming his transfer to Chandigarh Zone on the ground of his wife being employed at Chandigarh. The writ petition was allowed. The Bank filed appeal by special leave to this Court. It was contended on behalf of the respondent that para 4 (vi) of Memorandum dated 3.4.1986 of the Government of India contained guidelines for posting of husband and wife at one station which were meant to be followed also by all the Public Sector Undertakings, and, according to the provisions of the Banking Compa 493 nies (Acquisition and Transfer of Undertakings) Act 1970 and the Bank of India (Officers ') Service Regulations, 1979 made thereunder, the bank was bound to follow the guidelines and directions issued by the Central Government. Allowing the appeal of the Bank, this Court, HELD: 1. Although the guidelines require the two spouses to be posted at one place as far as practicable the desirability of such a course being obvious yet that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible; nor does it mean that their place of posting should invaria bly be one of their choice even though their preference may be taken into account while making the decision in accord ance with the administrative needs. The only thing required is that the departmental authorities should consider the feasibility of a suitable posting along with the exigencies of administration and enable the two spouses to live togeth er at one station if it is possible without any detriment to the administrative needs and the claim of other employees. [pp 495 E; 496 BC] 2. After accepting a promotion or any appointment in an All india Service, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of the serv ice and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. While choosing the career and a particular service the couple have to bear in mind this factor and be prepared to face such a hardship particularly when they belong to different services. They have to make their choice at the threshhold between career prospects and family life. [pp 495 F H; 496 A] 3.1 In the instant case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion and thereaf ter sought to be relieved of that necessary incident of an All India Service on the ground that his wife had to remain at Chandigarh. [p. 496 AB] 3.2 In the face of Regulation 47 of the Bank of India (Officers ') Service Regulations, 1979 according to which every officer is liable for transfer to any office or branch of the Bank of India or to any place in India and the clear provision for such transfer in the policy read with the notice dated March 28, 1988, the High Court 's order cannot be sustained. [p. The High Court was in error in overlooking all the relevant aspect as well as the absence of any legal right in the respondent to claim the relief which it granted as a matter of course. [p. 496 CD]

Civil Appeal No. 2229 of 1978. From the Judgment and Order dated 12 10 1978 of the Bombay High Court in Election Petition No. 2/78. N.N. Keshwani and Ramesh N. Keshwani for the Appellant. A.K. Ganguli for the Respondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. This appeal is filed under section 116 A of the Representation of the People Act, 1951 (Act No. 43 of 1951) (hereinafter referred to as 'the Act ') against the judgment of the High Court of Bombay (Nagpur Bench) in Election Petition No. 2 of 1978 by which the election of the appellant to the Maharashtra Legislative Assembly from the Armori Constituency (No. 151) in Chandrapur District at the general election held in February, 1978 was set aside. 1137 The Armori Constituency was reserved for Scheduled Tribes. The appellant and respondents Nos. 1 to 4 were the candidates at the election. As the appellant secured the highest number of votes, he was declared as having been elected by the Returning Officer. In his nomination paper, the appellant declared that he belonged to 'Mana ' community. Respondents Nos. 1, 2 and 4 declared themselves as belonging to 'Pradhan ' community and respondent No. 3 claimed that he belonged to 'Raj Gond ' community. After the result of the election was declared, respondent No. 1 who had secured the next highest number of votes at the election filed an election petition under section 81 of the Act before the High Court of Bombay calling in question the election of the appellant. One of the grounds urged in the petition was that the appellant did not belong to any of the Scheduled Tribes specified in Part IX of the Schedule to the Constitution (Scheduled Tribes) Order, 1950 (hereinafter referred to as 'the Order ') as it stood at the time of the election and was not, therefore, qualified to be chosen to fill the seat which was reserved for Scheduled Tribes. It was alleged that the appellant belonged to Kshatriya Bidwaik Mana community and not to the 'Mana ' community referred to in Entry No. 18 of Part IX of the Schedule to the Order. Respondent No. 1 also claimed that in the event of the appellant 's election being declared as void, the Court should make a declaration that he (respondent No. 1) himself had been duly elected. The High Court upheld the contention of respondent No. 1 that the appellant did not belong to any of the Scheduled Tribes referred to in Part IX of the Schedule to the Order and declared his election as void. The other prayer made by respondent No. 1 that he should be declared as elected was, however, rejected. Aggrieved by the judgment of the High Court, the appellant has come up in appeal to this Court. It should be mentioned at this stage that in the general election held in the year 1967, the appellant was declared as a successful candidate from the very same constituency which was a constituency reserved for Scheduled Tribes at that time also and that on an election petition being filed against the appellant, the High Court held that he did not belong to any of the Scheduled Tribes mentioned in the appropriate part of the Schedule to the Order at that time and therefore he was not qualified to contest the election. Accordingly his election was set aside. In the appeal filed before this Court, the judgment of the High Court was affirmed vide Dina vs Narayan Singh.(1) In the course of the decision of this Court, it was held that the appellant belonged to 'Kshatriya Bidwaik Mana ' community and not to the 'Mana ' community 1138 referred to in Entry No. 12 of Paragraph 5 of Part VII A of the Schedule to the Order as it stood at the time of the said election for the reasons to which we shall advert hereafter. In the election petition out of which this appeal arises, respondent No. 1 pleaded that the appellant belonged to 'Kshatriya Bidwaik Mana ' community which was not a tribe mentioned in the Schedule to the Order and that the appellant was not a member of the 'Mana ' community referred to in Entry No. 18 of Part IX of the Schedule to the Order as it stood at the time of the election in question. It was further alleged that the said 'Mana ' community was a sub tribe of Gond tribe and it had no relationship with the 'Kshatriya Bidwaik Mana ' community to which the appellant belonged. The appellant denied the above allegation that there were two types of Manas viz. (a) 'Mana ' a sub tribe of 'Gond ' referred to in Entry No. 18 of Part IX of the Schedule to the Order and (b) 'Kshatriya Bidwaik Mana ' community. He further contended that the 'Mana ' community to which he belonged had been included in that Entry after the Schedule to the Order was amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976. In order to appreciate the rival contentions, it is necessary to make a brief survey of the law bearing on the question. Article 332 of the Constitution provides that seats shall be reserved for the Scheduled Castes and the Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam and Nagaland, in the Legislative Assembly of every State and that the number of seats for the Scheduled Castes and the Scheduled Tribes so reserved shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved, bears to the total population of the State. The expression 'Scheduled Tribes ' with which we are concerned in this case is defined in clause (25) of Article 366 of the Constitution as such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of the Constitution. Article 342(1) of the Constitution provides that 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 the Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. It was in pursuance of this constitutional provision that 1139 the President issued the Order specifying the tribes or tribal communities which should be deemed to be Scheduled Tribes in relation to the several parts of India. Article 342(2) of the Constitution confers the power on the Parliament to modify by law the order issued under Article 342(1) by including in or excluding from the list of Scheduled Tribes specified therein any tribe or tribal community or part of or group within any tribe or tribal community. Section 5(a) of the Act provides that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless, in the case of a seat reserved for the Scheduled Tribes of that State he is a member of any of those tribes and is an elector for any Assembly constituency in that State. The area in which the appellant and respondents Nos. 1 to 4 are residing is situate within the area known as Gadchiroli and Sironcha Tahsils of the Chandrapur District of the State of Maharashtra. Prior to the amendment made in 1956, Entry No. 12 in the relevant part of the Schedule to the Order read as "Gond including Media (Maria) and Mudia (Muria)". By the Scheduled Castes and Scheduled Tribes (Amendment) Act 63 of 1956, the said Entry No. 12 was substituted by Entry No. 12 in Paragraph (5) of Part VII A of the Schedule to the Order which was as follows: "12. Gond, including Arakh or Arrakh Kandra Agaria Kalanga Asur Khatola Badi Maria or Koitar Bada Maria Koya Bhatola Khirwar or Khirwara Bhimma Kucha Maria Bhuta, Koilabhut Kuchaki Maria or Kollabhuti Bhar Madia (Maria) Bisonhorn Maria Mana Chota Maria Mannewar Dandami Maria Moghya or Mogia or Monghya Dhuru or Dhurwa Mudia (Muria) Dhoba Nagarchi Dhulia Nagwanshi Dorla Ojha Gaiki Raj Gatta or Gatti Sonjhari Jhareka Gaita Thatia or Thotya Gond Gowari Wade Maria or Vade Maria. " Hill Maria The 30th tribe amongst the tribes included within the broad classification of 'Gond ' tribe is 'Mana ' tribe. As mentioned earlier, the claim of the appellant that he belonged to the said tribe in the previous case 1140 was negatived. In August, 1967, a Bill was introduced in the Lok Sabha proposing to amend the Schedule to the Order. By that Bill, it was proposed to substitute the Schedule to the Order as it stood then by a new Schedule. Part VIII of the new Schedule related to Maharashtra. Entry No. 22 in that Part read as follows: ___________________________________________________________ Tribe Synonym Sub tribe __________________________________________________________ 1 2 3 ___________________________________________________________ "22. Gond Koitur Arakh Kalanga Bada Madia Kandra Bhatola Koya Chhota Madi Khirwar Dandami Mad Kucha Madia Dhulia Kuchaki Madia Dhuru or Dwa Machalir Madia Dhoba Mana Dorla Mannewar Gaiki Mudia Gaita Nagarchi Gatta or Gi Nagwanshi Naikpod Ojha Sonjhari Jharekha Thatia or Thotia." _________________________________ __________________________ In the proposed Entry, 'Mana ' community was shown as a sub tribe of 'Gond ' tribe. With the concurrence of the Rajya Sabha, the Bill was referred to a Joint Committee of the Parliament presided over by Shri Anil K. Chanda. The Report of the Joint Committee on the Bill was presented to the Lok Sabha on November 17, 1969. In so far as the amendments proposed to the Schedule to the Order were concerned, the Joint Committee inter alia observed at Paragraph 20(ii) thus: "20(ii). The Committee feel that the proposal to specify the tribes, the synonyms and the sub tribes in three separate columns will not be appropriate. As in the case of Schedule Castes Orders, the Committee are of the view that it would be best to follow the wording of article 342(1) of the Constitution and specify. "The tribes or tribal communities, or parts of, or groups within, tribes or tribal communities". Each of the Scheduled Tribes Orders have been modified accordingly, and in the lists of Scheduled Tribes the main tribe name is written first followed by the synonyms and subtribes in alphabetical order." 1141 The Joint Committee also recommended that the Mana sub tribe referred to in the Bill should be excluded from the Schedule to the Order altogether. Thereafter the matter was again considered by the Parliament. In the Statement of Objects and Reasons dated May 12, 1976 attached to the Bill, it was stated as follows: "Under the Scheduled Castes and Scheduled Tribes Orders some communities have been specified as Scheduled Castes or as Scheduled Tribes only in certain areas of the State concerned and not in respect of the whole State. This has been causing difficulties to member of these communities in the areas where they have not been so specified. The present Bill generally seeks to remove these area restrictions. However, in cases where continuance of such restrictions were specifically recommended by the Joint Committee on the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1967, no change is being effected. The Committee had also recommended exclusion of certain communities from the lists of Scheduled Castes and Scheduled Tribes. These exclusions are not being made at present and such communities are being retained in the lists with the present area restrictions. Such of the communities in respect of which the Joint Committee had recommended exclusion on the ground that they were not found in a State are, however, being excluded if there were no returns in respect of these communities in the censuses of 1961 and 1971. . ." Thereafter the (Act No. 108 of 1976) was passed by the Parliament and it had come into force before the election in question was held. By the above Act, the entire Schedule to the Order as it stood prior to the amendment was substituted by a new Schedule consisting of XVI parts. Part IX of the new Schedule relates to the State of Maharashtra. Entry No. 18 of Part IX of the new Schedule corresponds to Entry No. 22 of the Bill referred to above and to Entry No. 12 in Paragraph (5) of Part VII A of the Order as it stood prior to the amendment. Entry No. 18 of Part IX of the Schedule to the Order after the amendment reads thus: "18. Gond; Rajgond, Arakh, Arrakh, Agaria, Asur Badi Maria, Bada Maria, Bhatola, Bhimma, Bhuta, Koilabhuta, Koilabhuti, Bhar, Bisonhorn Maria, Chota Maria, Dhandami Maria, Dhuru, Dhurwa, Dhoba, Dhulia, Dorla, Gaiki, Gatta, Gatti, Gaita, Gond Gowari, Hill Maria, Kandra, Kalanga, 1142 Khatola, Koitar, Koya, Khirwar, Khirwara, Kucha Maria, Kuchaki Maria, Madia, Maria, Mana, Mannewar, Moghya, Mogia, Monghnya, Mudia, Muria, Nagarchi, Naikpod, Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thatia, Thotya, Wade Maria, Vade Maria. " It is seen from the above Entry that 'Mana ' community is one of the communities included in the group of communities headed by Gond community. It appears that the recommendation of the Joint Committee to exclude it from the Schedule to the Order was not accepted by the Parliament. If the Schedule to the Order had not undergone any change, there would not have been any room for argument that the appellant was a person belonging to a Scheduled Tribe eligible to contest as a candidate at an election to fill a seat from the reserved constituency as the question was conducted by the judgment of this Court in Dina 's case (supra). Mr. M. M. Phadke, learned counsel for the appellant, however, argued that a comparison of Entry No. 12 as it stood prior to the amendment and Entry No. 18 as it stood on the date of the election in question would show that the Parliament while substituting the Schedule by a new Schedule by Act No. 108 of 1976 intended to make a departure from the old law and that every person who belonged to any 'Mana ' community whether it had any affinity with Gond tribe or not would be entitled to the privilege of contesting at the election from the reserved constituency. The question for consideration before us therefore is whether by reason of the amendment made in the year 1976, persons belonging to the Mana community to which the appellant belonged and which was not a Scheduled Tribe before such amendment can be considered as persons belonging to a Scheduled Tribe after such amendment. Apart from Article 366(25) of the Constitution, there is no other definition of the expression "Scheduled Tribes". Scheduled Tribes are, therefore, only those which are deemed under Article 342 of the Constitution to be Scheduled Tribes. Hence in order to find out whether a community is a Scheduled Tribe or not, we have only to see the order which is made under Article 342 of the Constitution. Mr. M. N. Phadke, learned counsel for the appellant drew the attention of the Court to the omission of the word 'including ' which according to him, had been used in Entry No. 12 of the Schedule as it stood prior to the amendment to indicate that the communities mentioned after it were those having affinity with the 'Gond ' tribe, from the new Entry No. 18 of Part IX of the Schedule to the Order and 1143 contended that the group of communities mentioned in Entry No. 18 need not necessarily be those having mutual affinity amongst them. On the above basis, it was urged on behalf of the appellant that a person belonging to any 'Mana ' community should be treated as a person belonging to a Scheduled Tribe even though it had no affinity with the 'Gond ' tribe. We find it difficult to agree with the submission made by him. Sometimes, the word 'including ' is used in a definition to give an extended meaning also to the word defined. In Dilworth vs Commissioner of Stamps(1), Lord Watson observed that when the word 'include ' is used in an interpretation clause to enlarge the meaning of words or phrases in a statute "these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include". Sometimes the word 'includes ' is used as a synonym for 'means ' and not as a word of extension, but limitation. This again is clear from the following observations of Lord Watson in the decision referred to above: "But the word 'include ' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include ', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions." In South Gujarat Roofing Tiles Manufacturers Association & Anr. vs State of Gujarat & Anr.(2) this Court interpreted the expression 'includes ' found in Entry No. 22 which had been included in Part I of the Schedule to the by the Gujarat Government as being equivalent to 'means '. It is significant that even when it was possible to give an extended meaning to the expression 'Mana ' appearing in Entry No. 12 in the Order before the amendment relying on the presence of the word 'including ' in that Entry, this Court gave a restricted meaning to it and held that only that 'Mana ' community which had affinity with the Gond community could be considered as a Scheduled Tribe and that Kshatriya Bidwaik Mana community to which the appellant belonged could not be treated as a Scheduled Tribe. Now that the word 'including ' has been omitted from the present Entry No. 18, is it open to construe it as including communities which had no affinity with the principal tribe 'Gond ' mentioned first in that Entry? 1144 We do not think that it is possible to do so. Even though the proceedings of the Joint Committee cannot be relied upon for the purpose of construing the Order, they may be looked into to ascertain the circumstances in which the several communities were grouped under one Entry or the other. The extract from the proceedings of the Joint Committee quoted above shows that in order to avoid confusion, the Committee recommended to follow the words in Article 342 of the Constitution and to enlist the "tribes or tribal communities or parts of, or groups within, tribes or tribal communities" under specific Entries. It also recommended that the main tribe should be mentioned first in any Entry followed by its synonyms and its sub tribes in alphabetical order. Even without the aid of the proceedings of the Joint Committee, it is possible to arrive at the same conclusion in the context in which the word 'Mana ' is found in Entry No. 18. Part IX of the Schedule to the Order as it stands today contains 47 Entries. In certain entries only one community is mentioned and in certain others. two or more communities are mentioned. It is obvious that certain communities have been grouped together under a single entry in the light of Article 342 of the Constitution which requires parts of or groups within a tribal community also to be specified in the order issued thereunder. It is, therefore, reasonable to hold that the communities mentioned against any specific entry are those which have mutual affinity amongst them. It is also not possible to hold that by replacing the Schedule to the Order by a new Schedule by the , the Parliament intended to treat persons belonging to 'Kshatriya Bidwaik Mana ' community also as Scheduled Tribes. If really that was the intention, the Parliament would have mentioned 'Mana ' community under an independent entry. The inclusion of the 'Naikpod ' community amongst the group of communities in Entry No. 18 for the first time also is of no special significance since the appellant has admitted in the course of his evidence that 'Naikpod ' is also a tribe, found alongwith other Scheduled Tribes in that area and it is not stated that the said tribe has no affinity with them. It may have been omitted from the order earlier due to oversight. A reading of the Schedule to the Order also shows that where there are two communities with the same name, one having affinity with a tribe and the other not having anything to do with such tribe and both are treated as Scheduled Tribes the community which has affinity with another tribe is shown alongwith it in the same group against a single entry and the other is shown against a different entry. This is illus 1145 trated by the inclusion of the 'koya ' community having affinity with 'Gonds ' in Entry No. 18 and the 'koya ' community having no such affinity in Entry No. 33 of Part IX of the Schedule to the Order. If the Parliament intended to treat the appellant 's community also as a Scheduled Tribe, it would have shown 'Mana ' community under a separate entry. No such entry is found in the Schedule. Some arguments were addressed at the Bar on the basis of the difference in the punctuation marks used in Entry 12 and in entry 18. It is well known that punctuation marks by themselves do not control the meaning of a statute when its meaning is otherwise obvious. Hence we do not feel that we should deal with it in greater detail having regard to the nature of this case. We are, therefore of the view that the 'Mana ' community included in Entry No. 18 can only be that which has affinity with 'Gonds ' and any other community which also bears the name 'Mana ' but does not have any such affinity cannot be deemed to fall within the scope of 'Mana ' in Entry No. 18. The appellant has categorically admitted in the course of his evidence that there was no connection between his community and Gonds. His evidence is, "We have no concern with the Gond community also. The customs and traditions with regand to marriage of our community are different from those of the Gonds". He has also stated in his deposition that 'I have no concern whatsoever with Gonds. There are sub castes amongst Gonds. Some of them are Arak, Gowari, Raj gond, Bada Magia, Madia, Ojha and Wanjari. It is not true that Mana is a sub caste of the Gonds. There is no community known as Gond '. That the appellant was a member of the 'Mana ' community which has the qualification of 'Kshatriya ' is established by his admission in his deposition that he was a member of the Kshatriya Mana Shikshana Sahayak Mandal, Chandrapur. Although in another part of his statement of objections, there are some contradictory statements, the following plea in para 9 of the said statement makes it obvious that there is a community called Kshatriya Bidwaik Mana community: "9 As to Para 11 : It is admitted that the respondent No. 1 was the Vice President for some time and also an active worker of the Kshatriya Bidwaik Mana Shikshana Sanastha. The object of the said institution was not limited to spread education amongst the boys belonging to Kshatriya Bidwaik Mana community, and it is denied that the said 1146 society has been founded in order to give educational facilities to the students belonging to this community only". In the appeal filed by the appellant where the question was whether he belonged to a Scheduled Tribe or not, this Court observed: "That there are sub tribes amongst the Gonds is not denied. Names of some of those sub tribes are included in Entry 12 of Item 5 of Part VII A of the Schedule is also a matter which is beyond dispute. The customs, manners, form of worship, and dress of the members of the Maratha Mana community are all different from the customs manner, form of worship and dress of the Gonds. No rational explanation has been suggested why the Parliament should have, while including under Entry 12 several sub tribes of Gonds, specified Mana under that entry, if Manas had no affinity at all with Gonds. The appellant was uncertain about the claim that he was making. In the nomination paper filed by him he claim to be a Gond (Mana). His subsequent explanation that he did so because the rules so required cannot be accepted as true. He relied upon the status of a Mana in the belief that all Manas were intended to be given the benefit of the privileges conferred by the Scheduled Tribes Order. He described himself as a Gond (Mana). Realizing thereafter that his community had no affinity with the Gonds he stated that he was not a Gond; that he had nothing to do with the Gonds, and that his community had also nothing to do with the Gonds. He rested his claim solely upon the description in Entry 12 in item 5 of Part VIIA of the Schedule. But the form in which the entry is made prima facie indicates that in the view of the Legislature, Mana was a sub tribe of Gonds and a Mana who was a member of the sub tribe of Gonds alone was entitled to the privileges conferred by the Schedule to the Scheduled Tribes Order. We therefore agree with the High Court that the appellant, merely because he belonged to the Mana community amongst the Marathas, is not eligible to stand as a candidate for election to the Maharashtra Legislative Assembly from the reserved seat of the Armori constituency in Gadchiroli tahsil of Chanda District. " The position has not since changed even though the Schedule to the Order is substituted by a new Schedule. There has only been a 1147 re arrangement of the Schedule with slight modification which has no effect on the question at issue in this case. The High Court was, therefore, right in rejecting the case of the appellant that he belonged to a Scheduled Tribe, and in setting aside his election to the Maharashtra Legislative Assembly. In the result the appeal fails and is hereby dismissed with costs. P.B.R. Appeal dismissed.

Entry 12 of Part IX of the Schedule to the Constitution (Scheduled Tribes) Order 1950 prior to its amendment in 1956 read as "Gond including Media (Maria) and Mudia, (Muria)". By the Scheduled Castes and Scheduled Tribes (Amendment) Act 63 of 1956 the said Entry was substituted by Entry 12 in Paragraph 5 of Part VII A of the Schedule to the Order. It read as "12 Gond, including: Arakh or Arrah. Mana. " "Mana" was the 30th community amongst the communities included in that Entry. In 1976 the entire Schedule to the order as it stood prior to the amendment was substituted by a new Schedule. Entry 18 of Part IX of the new Schedule corresponding to Entry 12, prior to the amendment, showed 'Mana ' community as one of the communities included in the group of communities headed by "Gond" community. In the election to the State Assembly held in February, 1978 the appellant was declared successful from a constituency reserved for Scheduled Tribes. In his election petition impugning the appellant 's election respondent No. 1 who was the unsuccessful candidate challenged the election on the ground that the appellant did not belong to any of the Scheduled Tribes specified in Part IX of the Schedule to the 1950 Order as it stood at the time of the election and was therefore not qualified to be chosen to fill the seat reserved for the Scheduled Tribes. The High Court set aside the appellant 's election. In appeal to this Court it was contended on behalf of the appellant that while the word "including" in Entry 12 of the 1950 Order as it stood after its amendment in 1956 showed that the communities referred to therein were those having affinity with the Gond Tribe and its omission in Entry 18 as amended in 1976 showed that the group of communities mentioned in this Entry, need not necessarily be those having mutual affinity amongst them so that a person belonging to any "Mana" community should be treated as a person belonging to a Scheduled Tribe even though it had no affinity with the "Gond" tribe. Dismissing the appeal ^ HELD: 1. The High Court was right in setting aside the appellant 's election on the ground that he did not belong to a Schedule Tribe. [1147 B] 1136 2. (a) Even when the Order, before its amendment in 1976 used the term "including", this Court giving a restricted meaning to "Mana", held that only 'Mana ' community which had affinity with the 'Gond ' community could be considered as a Scheduled Tribe and that 'Kshatriya Bidwaik Mana ' community to which the appellant belonged could not be treated as a Scheduled Tribe. [1143F G] (b) A reading of Part IX of the Schedule to the Order shows that certain communities had been grouped together under a single Entry in the light of Article 342 of the Constitution which requires part of or groups within a tribal community also to be specified in the Order. Therefore the communities mentioned against any specific Entry are those which have mutual affinity amongst them. [1144C E] (c) Merely because a new Schedule had been substituted for the old one it cannot be said that Parliament had intended to treat persons belonging to "Kshatriya Bidwaik Mana" community also as a Scheduled Tribe. Where there are two communities with the same name one having affinity with a tribe and the other not having anything to do with it and both are treated as Scheduled Tribes, the community which has affinity with another tribe is shown along with it in the same group against a single Entry and the other is shown against a different Entry. Therefore the Mana community included in Entry 18 can only be that which has affinity with 'Gonds ' and any other community which also bears the name 'Mana ' but does not have any such affinity cannot be deemed to fall within the scope of 'Mana ' in Entry 18. [1144H, 1145C D] 3. The term "including" is sometimes used in a definition to give an extended meaning to the word defined. Sometimes it is used as a synonym for "means" and not as a word of extension but limitation. [1143C D] Dilworth vs Commissioner of Stamps, [1899] A.C. 99 at pp. 105 106, South Gujarat Roofing Tiles Manufacturers Association & Anr. vs State of Gujarat & Anr. , ; , referred to.

ivil Appeal No. 584 of 1982. From the Judgment and Order dated 21.9.1979 of the Punjab and Haryana High Court in Civil Writ Petition No. 2247 of 1979. A.B. Rohtagi and M.S. Mann for the Appellant. Harbans Lal and Ashok K. Mahajan for the Respondents. The following Judgment of the Court were delivered by K. RAMASWAMY, J. I wholly agree with my learned brother Saikia, J. with regard to the reasoning and the conclusions. He has succinctly stated the facts of the case and the relevant provisions of law and they need no reiteration. I would add only few points which I deem relevant to be dealt with. As regards the applicability of the limitation of six months period prescribed under Rule 18 for the exercise of the revisional power by the State Govt. under Section 42 of the Act, assailing legality or propriety of the scheme prepared or confirmation thereof or repartition made in pursuance thereof, it could be angulated from yet another perspective. Indisputably Section 42 was amended by the Amendment Act of 1960 incorporating after the words any order passed "(Scheme prepared or confirmed or repartition made)". Rule 18 was made in exercise of the rule making power by the subordinate legislation. After the amendment of Section 42 was made to exercise the revisional power by the State Govt. against the schemes prepared or confirmed or repartition made, correspondingly, no amendment to Rule 18 was made bringing within its ambit scheme prepared or con firmed or repartition made in pursuance thereof. It is unnecessary to go into the question whether Rule 18 was declared to be intra vires or not. We proceed on the footing that Rule 18 is ultra vires and applies to the exercise of the revisional power by the State Govt. under Section 42. The omission to amend the Rule is an indication of the legislative animation that the limitation of six months prescribed under the Rule 18 would be confined to be ap plicable only to "any order passed by any officer under the Act. Thereby, by necessary implication the prescription of the limitation of six months for filing revision petition against the scheme prepared or confirmed or repartition made in pursuance thereof would stand excluded. It is no 580 doubt true as contended for respondents that the Consolida tion Officer who has prepared the scheme or confirmed it or modified or repartition made when it is objected to by the affected party, has to consider the objections and, as a part thereof by necessary implication, has to assign reasons and the record must contain reasons. But the legislature made a dichotomy between the orders passed and scheme pre pared or confirmation thereof or repartition affected in pursuance thereof. He is not free to take arbitrary deci sion. Assigning reasons are sine quo non for application of the mind though he does not appear to communicate the rea sons therefore. But to an order passed assigning reasons in its support and communication thereof are necessary concomi tants and this was made manifest when Section 19, 20 and 21 are looked into. As regards the exercise of the power under Section 19 and 20 the statute does not envisage passing any orders. But when exercise of the power in Sub sec. 20 of 21, the officer is enjoined to pass orders and appeals are provided within the prescribed limitation against those orders to the appellate forums. This, also, is an indication of the fact that the limitation of six months is confined to the orders to be revised under section 42. It is undoubted that the scheme prepared or confirmed or modified or repartition made in pursuance thereof are amena ble to the revisional jurisdiction under section 42. The State Govt. would consider the legality or propriety of the reasons or the grounds on which the scheme was initially prepared or confirmed or modified or repartition made in pursuance thereof. But that does not mean that it is an order made and the limitation of six months prescribed under Rule 18 would get attracted to the revision filed against the scheme prepared or modified or repartition made in pursuance thereof. Thus I have. little hesitation to hold that the prescription of limitation of six months under Rule 18 would be confined only to order passed by any officer under the Act; it would not apply to the revision filed against the scheme prepared or confirmed or reparti tion made in pursuance thereof. It is undoubted that when there is no limitation pre scribed for exercise of the revisional power under Section 42 against the schemes prepared or confirmed or repartition made, it would be exercised within a reasonable time. What is a reasonable time is always a question of fact depending upon the facts and circumstances in each case. When legisla ture chose not to fix a particular period of limitation by judicial dicta it is not permissible to limit to a particu lar period. The long lapse of time may be a fact for the revisional authority to take into 581 account in the light of the facts and circumstances obtain able in an appropriate case. No absolute or precise period of limitation could be predicated or laid. Take for instance the facts of this case. the previous Sarpanch is a benefici ary from the impugned order and has chosen not to take steps to have the scheme impugned by filing a revision under Section 42 of the Act. The Gram Panchayat, being a juristic person, could not by itself except through the executive authority take. any action against the scheme prepared by the Consolidation Officer to assail its legality or proprie ty by filing the revision. The revision petition was filed soon after the new Sarpanch came into office. Take another instance of a case where the officer concerned and the person benefitted, in confabulation, have made a scheme and repartition affected in pursuance thereto and kept it in dark to the knowledge of the person affected by the scheme prepared or the partition made. Until the person affected had actual knowledge, it is not possible to become award of it. The limitation begins to run from the date of the knowl edge of the fraud so played. It is always open to the af fected person to come forward and say that for the first time he became aware of the scheme prepared or partition made in pursuance thereof only when his rights are sought to be interfered with or exercise of the enjoyment of the property is interdicted. Therefore immediately within a reasonable time thereafter he is to file a revision before the State Govt. Having had the knowledge of the impugned action if he stood by without taking any further action, it is always open to the other party to bring it to the notice of the State Govt. of the ground or the circumstances under which the revision petitioner when he became aware of the scheme prepared or the repartition made and he deliberately chose to acquiesce to it and if the State Govt. is satisfied of the same, unless satisfactory explanation for the delay is given, the State Govt. may decline to interfere with the impugned action or may decline to entertain the revision petition itself. Thus it could be seen that each case has to be angulated on its own given facts and circumstances as to the reasonable period of limitation within which the revi sional power is to be filed. Even though more than 5 years time had elapsed from the date of the preparation of the scheme till date of the filing of the revision under Section 42, there is sufficient ground in this case for the new Sarpanch in not filing a revision within six months from the date of the original scheme and the State Govt. is well justified in exercising the power under Section 42. The High Court is unjustified in interfering with the order passed by the Consolidation Officer. Accordingly, the appeal is al lowed. No costs. 582 K.N. SAIKIA, J. This appeal by special leave is from the Judgment of the High Court of Punjab and Haryana at Chandi garh dated 21.9.1979 in Civil Writ Petition No. 2247 of 1979 allowing the petition and setting aside the order of the Director, Consolidation of Holdings dated 8.2.1979. The appellant Gram Panchayat, hereinafter referred to as the 'Panchayat ', was the owner of 1200 Bighas of land in village Kanonda, Tehsil Bahadurgarh, District Rohtak. A Scheme of consolidation of holdings, hereinafter referred to as 'the Scheme ', of the village was confirmed on 15.1.1974 under section 20 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), hereinafter referred to as 'the Act '. The Panchayat, there fore, moved an application under section 42 of the Act on 20.9.1977 for setting aside the Scheme, objecting to the utilisation of the land of value of /2/ (two annas) and allotments made to the other rightholders for their benefit. On 24.1. 1979 a Mushtehri Mundadi was made for information of all the villagers concerned, but the rightholders were absent and ex party proceedings were taken against them. The Panchayat 's case was that under the said Scheme the Panchay at land was consolidated, repartitioned and allotted to persons who did not have any right to hold the land. Be sides, the land of Dharat containing two wells and a big house being religious place of worship was also partitioned under the Scheme and consequently the Panchayat has been reduced to a landless person, financially weakened and rendered incapable of rendering service in the village. After hearing the parties the Director in his order dated 8.2. 1979 observed that it was evident from the perus al of the record that the Scheme of Consolidation of the village was confirmed on 15.1. 1974 whereas the application had been filed on 20.9. 1977 and as such the application had been filed too late. After the expiry of six months period the application was time barred. However, he said in his order: "In this case only to benefit some land own ers, the land of the value of two annas has been allotted due to which the deserving persons have been left over and they have not been given even Abadi plots. Apart from this the Panchayat had no other land to cultivate, due to which the Panchayat is unable to devel op the agricultural schemes and in these circumstances of the matter I condone the delay in filing the present application. " 583 He accordingly set aside the Scheme and remanded the case to the Consolidation Officer under section 21(2) of the Act with some directions. Against that order the respondents moved the High Court of Punjab and Haryana in Civil Writ Petition No. 2247 of 1979 urging, inter alia, that the Director of Consolidation of Holdings had condoned the delay without there being any ground for the same and that, in doing so, he had acted illegally and with material irregu larity. The High Court held that from the observations of the Director it was evident that the delay was condoned on extraneous considerations as no reason whatsoever was given by the applicant in the application filed before him under section 42 of the Act as to why it was filed after the period of limitation. In that view of the matter, holding that the Director of Consolidation of Holdings had acted illegally and with material irregularity in condoning the delay, the High Court by the impugned order dated 21.9.79 allowed the writ petition and quashed the order of the Director of Consolidation of Holdings dated 8.2.1979. Mr. A.B. Rohtagi, the learned counsel for the appel lant, submits that the High Court erred in setting aside the Director of Consolidation 's order applying to the confirma tion of the Scheme the period of limitation of six months as prescribed in Rule 18 of the East Punjab Holdings (Consoli dation and Prevention of Fragmentation) Rules 1949, herein after referred to as 'the Rules ', inasmuch as that rule speaks only of orders and not of confirmation of the Scheme; and that a Full Bench of the Punjab and Haryana High Court in Jagtar Singh vs Additional Director, Consolidation of Holdings, Jullundar, , taking the view that the bar of limitation under Rule 18 does not apply to those petitions under section 42 in which the legality or validity of a scheme prepared or confirmed or repartition made is challenged has overruled AIR 1982 Punjab and Har yana 148 and that Full Bench decision has since been followed in Mr. Rohtagi further submits that on merits also there was ample justification for the Director to have taken the view it did inasmuch as Panchayat lands were taken into consolidation and repartitioned and allotted to persons who had no right to obtain the land thereby impoverishing the Panchayat and rendering it incapa ble of giving any help to the villagers. Mr. Harbans Lal, learned counsel for the respondents submits that the Full Bench decision that the limitation under rule 18 does not cover an order confirming a scheme is not tenable inasmuch as confirmation of a scheme is only by an order as contemplated under rule 18, and an applica tion challenging that order of confirmation has, there 584 fore, to be made within six months thereof; and that even assuming that there was no bar of limitation, an application had to be made within a reasonable time which, according to learned counsel, would be 'about two years '; and that by any standard the appellant 's application under section 42 was belated and could not have been allowed. Lastly, counsel submits that there were three earlier applications dismissed by the Director under section 42 of the Act, including one by the Panchayat itself, and the Director had no power to review his own order. The questions to be decided therefore are, whether for the purpose of limitation under rule 18 of the Rules confir mation of a scheme would be an order as envisaged in the rule; if it was not an order, whether the Director was justified in setting aside the scheme and remanding the matter to the Consolidation Officer; and whether the Direc tor 's order was one of review of his earlier order and as such beyond his jurisdiction. To decide the first question we may conveniently refer to the provisions of the Act and rule 18 of the Rules. Section 42 of the Act empowers the State Government to call for proceedings under the Act. It says: "42. Power of State Government to call for proceedings:The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repar tition made by any officer under this Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit: Provided that no order or scheme or repartition shall be varied or reversed with out giving the parties interested notice ' to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration. " From a perusal of this section there arises no doubt that under it the State Government may for the stated purpose call for proceedings wherein any order is passed, scheme prepared or confirmed or repartition made by any officer under this Act. Under the proviso the State 585 Government shall not vary or reverse any order or scheme or repartition without giving the interested parties opportuni ty of being heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration. There is therefore no doubt that this section envisages proceedings wherein order is passed, scheme prepared or confirmed or repartition made. These are the distinct proceedings for the purpose of exercising jurisdiction under this section. Rule 18 deals with limitation for application under section 42, and it reads: "18. Limitation for application under section 42: An application under section 42 shall be made within six months of the date of the order against which it is filed: Provided that in computing the period of limitation, the time spent in ob taining certified copies of the orders and the grounds of appeal, if any, filed under sub section (3) or sub section(4) of section 21, required to accompany the application shall be excluded: Provided further, that an applica tion may be admitted after the period of limitation prescribed therefore if the appli cant satisfies the authority competent to take action under section 42 that he had sufficient cause for not making the application within such period. " From a perusal of this rule there arises no doubt that for applying this rule the application has to be one under section 42 of the Act and it has to be against an order and under the first proviso a certified copy of the order is required to accompany the application and in computing the period of limitation of six months, the time spent in ob taining the certified copy is to be excluded. While the Division Bench comprising P.C. Jain and Tewa tia, JJ of the Punjab and Haryana High Court in the instant case applied the period of limitation to the confirmation of the scheme and in that view of the matter set aside the Director 's order, the Full Bench comprising P.C. Jain, Acting C.J., Tewatia and Tiwana, JJ. held: "A bare perusal of rule 18 of the Rules would show that .it provides limitation only for petitions filed against orders 586 passed. There is no reference in the Rules to a scheme prepared or confirmed or repartition made. The fact that in section 42 of the Act the words 'scheme prepared or confirmed or repartition made ' have been added as a result of amendment, cannot justify the conclusion that in Rule 18 of the Rules these words have also to be read. " We respectfully agree with this view. Rule 18 has to be interpreted as we find it and the words of the rule are simple, precise and unambiguous and no more is necessary than to understand these words in their natural and ordinary sense. Two different meanings cannot be given to the same word 'order ' namely, that in section 42 it does not include scheme prepared or confirmed or repartition made; while in rule 18 it would include them. The Full Bench therefore rightly held that rule 18 of the Rules does not apply to those proceedings in which the legality or validity of the scheme prepared or confirmed or repartition made is chal lenged. The Full Bench rightly approved the decision in Haqiqat Singh vs Addl. Director, Consolidation of Holdings, AIR 1981 Punjab & Haryana 204, wherein it was held that a reading of section 42 as well as the scheme of the Act unmistakably pointed out that the statute made a clear distinction between order passed by an officer under the Act and the performance of duties by the authorities under the Act in the matter of preparation and confirmation of scheme of consolidation and re partition made in pursuance thereof. So it could not possibly be held that preparation or confir mation of a scheme and the repartition carried would fail within the scope of 'order ' as used in rule 18 of the rules. The rule did not come into play when a petitioner challenged either the scheme of consolidation including its preparation or confirmation of the repartition made in pursuance there of. The amendment made this position clear. In a subsequent decision reported in Joginder Singh and Ors. vs The Director, Consolidation of Holdings, decided on August 8, 1988, where the direct hold ers had not challenged any order of the consolidation au thorities but had attacked the validity of the scheme and the repartition, it was rightly held that the bar of limita tion of six months in rule 18 of the Rules was not attracted to the facts of that case. Mr. Harbans Lal submits that the above decisions require reconsideration. We do not agreed. We have perused the provisions of the Act and rule 18. The Act provides for the compulsory consolidation of, and for prevention of fragmen tation of, agricultural holdings in the 587 State of Punjab and for the assignment or reservation of land for common purposes of the village. It appears that prior to the Act there were two methods of consolidation in vogue in the Province, one through the Revenue Department and the other through the Cooperative Department but the progress of consolidation was very slow and lengthy and the Act sought to remedy those defects. Section 19 of the Act provides for publication of draft scheme and on such publi cation any person likely to be affected by such scheme, shall, within 30 days of such publication, communicate in writing to the Consolidation Officer any objections relating to the scheme. The Consolidation Officer, shall, after considering the objections, if any received, submit the scheme with such amendment as he considers necessary togeth er with his remarks on the objections to the Settlement Officer (Consolidation). Thus, in this section we do not find any provisions for any order being passed. Section 20 deals with confirmation of the scheme. Under sub section(2) thereof if any objections are received to the draft scheme published under sub section (1) of section 19 and also if no written or oral objections to the draft scheme are received under subsection (3) of that section by the Settlement Officer (Consolidation) he shall confirm that scheme. Under sub section (3) if any objections are received to the draft scheme published under sub section (1) of section 19 or if any written or oral objections are received by the Settle ment Officer (Consolidation) before the confirmation of the draft scheme by him the Settlement Officer(Consolidation) may after taking the objections into consideration together with the remarks thereon of the Consolidation Officer and also after considering the written or oral objections either confirm the scheme with or without modifications, or refuse to confirm it. In case of such refusal the Settlement Offi cer (Consolidation) shall return the draft scheme, with such directions as may be necessary to the Consolidation Officer, for reconsideration and resubmission . Under sub section (4) upon the consideration of the scheme under sub section (2) or (3) the scheme as confirmed shall be published in the prescribed manner in the estate or estates concerned. Thus, this section also does not envisage passing of any order with reference to any person affected by the scheme. It may be true, as Mr. Harbans Lal submits, that the confirmation may be done in the form of an order. However, the word 'order ' has not been used by the legislature in this sec tion. Section 21 deals with repartition. Under sub section (1) of this section, the Consolidation Officer shall, after obtaining the advice of the land owners of the estate or estates concerned, carry out repartition in accordance with the scheme of consolidation of holdings 588 confirmed under section 20 and the boundaries of the hold ings as demarcated shall be shown on the Shajra which shall be published in the prescribed manner in the estate or estates concerned. There is no provision of passing of any 'order ' under this sub section. Under subsection (2) any person aggrieved by the repartition may file written objec tion within 15 days of the publication before the Consolida tion Officer who shall after hearing the objectors pass such orders as he considers proper confirming or modifying the repartition. Thus this sub section envisages passing of orders on the objections after hearing the objectors. Sub section (3) provides that any person aggrieved by the order of the Consolidation Officer under sub section (2) may within one month of that order file an appeal before the Settlement Officer (Consolidation) who shall after hearing the appellant pass such order as he considers proper. This sub section also clearly envisages passing of an order on appeal by an aggrieved person as above. Subsection (4) provides that any person aggrieved by the order of Settle ment Officer (Consolidation) under sub section (3) whether made before or after the commencement of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Second Amendment and Validation Act, 1962 may within 60 days of that order appeal to the Assistant Director of Consolida tion and under sub section (5) any appeal against an order of the Settlement Officer (Consolidation) pending under sub section (4) immediately before the commencement of the East Punjab Holdings (Consolidation and Prevention of Frag mentation) Second Amendment and Validation Act, 1962, either before the State or any officer to whom the powers of the State Government in this behalf have been delegated, shall be decided by the Assistant Director of Consolidation. Thus, the above sub sections clearly envisage passing of orders by the respective authorities. We have already extracted section 42 of the Act and Rule 18 of the Rules. It would be clear that though section 42 envisaged orders, preparation or confirmation of scheme and repartition separately, Rule 18 provides for limitation only in respect of an application under that section in a pro ceeding where an order was passed. There is the maxim ex pressio unius est exclusio alterius expression of one thing is the exclusion of another. Mention of one thing implies the exclusion of another. When certain persons or things are specified in a law an intention to exclude all others from its operation may be inferred. When mention has been made only of 'Orders ', the inference would be that preparation or confirmation of scheme and repartition are 589 excluded. Again, Ex praecedentibus et consequentibus optima fit interpretation. The best interpretation is made from the context. As we have seen, while section 19 and 20 did not envisage passing of any order section 21 envisaged passing of orders. Section 42 deals with applications against or ders, preparation or confirmation of scheme and repartition. Rule 18 mentions only orders and hence by inference excludes 'preparation and confirmation of scheme and repartition '. We have accordingly no doubt in approving the Full Bench deci sion in Jagtar Singh vs Additional Director, Consolidation of Holdings (supra). Mr. Harbans Lal 's submission that even if no limitation was prescribed the application of the Panchayat before the Director was inordinately delayed is not tenable. According to the learned counsel the period of two years would be reasonable period. We are unable to agree. In matters like Consolidation of Holdings by a scheme and the preparation and confirmation of the scheme and repartition thereafter the objections may arise at various stages for various reasons and it will not be possible to prescribe any hard and fast rule as to reasonable period after which an appli cation could be made under section 42 of the Act. The legis lature itself did not do so. In the instant case the Pan chayat filed the application on 20th September, 1977 before the Director of Consolidation under section 42 of the Act praying for the revocation of the Scheme and for directions for fresh valuation to be ordered and repartition effected through appropriate authorities stating that the Sarpanch was not given any Nishan Dehi or demarcation on the spot nor was issued any passbook, and the petition was not filed earlier because the new Sarpanch came to know all these only a month ago and so the petition was claimed to be in time. The original Sarpanch was a beneficiary out of the Panchayat land and he took no steps and the present Sarpanch took charge only a few months ago. There were lot of complaints about valuation and allotments to rightholders. Under the above circumstances when the Director himself considered it fit for granting the prayer, it cannot be said that the application was unreasonably delayed. The next submission of Mr. Harbans Lal is equally un tenable. It is true that in Harbhajan Singh vs Karam Singh and Anr., ; , it has been held that there is no provision in the Act granting express power of Review to the State Government with regard to an order made under section 42 of the Act and in the absence of any such power the Director, Consolidation of Holdings could not have reviewed his previous order dismissing an application of the Panchay at 590 under section 42 of the Act, and if so done, the review order of the Director would be ultra vires and without jurisdiction. In the instant case it has not been shown to us that the Panchayat earlier moved any application under section 42 on the same subject matter and the instant order of the Director amounted to a review of his own order. There is no material to hold that the instant order of the Direc tor is an order of review of his earlier order; and Mr. Rohtagi clearly denied that it was so. In the result we allow this appeal, set aside the im pugned order of the High Court and restore that of the Director, Consolidation. We, however, leave the parties to bear their own costs. Y. Lal Appeal allowed.

The appellant Panchayat owned 1200 Bighas of land in Village Kanonda Distt. Rohtak in Haryana. A Scheme of con solidation of Holdings under Section 20 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948 was confirmed on 15.1.1974, as a result whereof the Panchayat 's land was consolidated, repartitioned and allot ted to persons, allegedly having no right to hold the same with the result, the Panchayat was reduced as a landless person, and financially weak. The Panchayat, therefore, on 20.9.1977 moved an application under section 42 of the Act objecting to the utilization of the Land of the value of /2/ (Two annas) and the allotments made to other right holders. After hearing the parties, the Director of Consolidation of Holdings by his order dated 8.2.79 set aside the scheme and remanded the case to the consolidation officer with some directions. The Director took the view that even though the application had been made much beyond the period of limita tion of six months contemplated under Rule 18, yet in view of the fact that the Panchayat had no other land to culti vate due to which the Panchayat was unable to develop the agricultural Schemes, condoned the delay and allowed the application as aforesaid. Against the said orders the Re spondents moved the High Court by means of a Writ Petition urging inter alia that the Director had condoned the delay without there being any ground for the same and thus had acted illegally. The High Court held that the Director condoned the delay on extraneous considerations and accord ingly quashed the impugned 577 order of 8.2.79 passed by the Director. Hence the Panchayat has filed this appeal after obtaining Special Leave. Allowing the appeal, this Court, HELD: (Per K.N. Saikia & M. Fathima Beevi, JJ.) Section 42 of the Act envisages proceedings wherein order is passed, scheme prepared or confirmed or repartition made. These are the distinct proceedings for the purpose of exercising jurisdiction under this section. [585B] Applying Rule 18, the application has to be one under section 42 of the Act, and it has to be against an order and under the first proviso, a certified copy of the order is required to accompany the application and in computing the period of limitation of six months, the time spent in ob taining the certified copy is to be excluded. [585F]. Rule 18 has to be interpreted as it is found, and the words of the rule are simple, precise and unambiguous and no more is necessary than to understand these words in their natural and ordinary sense. Two different meanings cannot be given to the same word "order" namely, that, in section 42 it does not include scheme prepared or confirmed or reparti tion made, while in Rule 18, it would include them. [586B C] The Rule did not come into play when a petitioner chal lenged either the scheme of consolidation including its preparation or confirmation or the repartition made in pursuance thereof. The amendment made this position clear. [586E] Though section 42 envisaged orders, preparation or confirmation of scheme and repartition separately, Rule 18 provides for limitation only in respect of an application under that section in a proceeding where an order was passed. There is the maxim expressio unius est exclusio alterius expression of one thing implies the exclusion of another. When mention has been made only of "orders", the inference would be that preparation or confirmation of scheme and repartition are excluded. [588F G] In matters like consolidation of Holdings by a scheme and the preparation and confirmation of the scheme and repartition thereafter, the objections may arise at various stages for various reasons and it will 578 not be possible to prescribe any hard and fast rule as to the reasonable period after which an application could be made under section 42 of the Act. The Legislature itself did not do so. [589C D] In the instant case, it has not been shown that the Panchayat earlier moved an application under section 42 on the same subject matter. There is no material to hold that the instant order of the Director is an order of review of his earlier order. [590A] (Per K. Ramaswamy, J.) As regards the exercise of the power under sections 19 & 20, the statute does not envisage passing any orders. But when exercising the power, the officer is enjoined to pass orders and appeals are provided within the prescribed limi tation against those orders to the appellate forums. This also, is an indication of the fact that the limitation of six months is confined to the orders to be revised under section 42. [580C D] The prescription of limitation of six months under Rule 18 would be confined only to order passed by an officer under the Act, it would not apply to the revision filed against the scheme prepared on confirmed or repartition made in pursuance thereof. [580F] It is undoubted that when there is no limitation pre scribed for exercise of the revisional power under section 42 against the schemes prepared or confirmed or repartition made, it would be exercised within a reasonable time. [580G] What is reasonable time is always a question of fact depending upon the facts and circumstances of each case. [580G] When legislature chose not to fix a particular period of limitation, by judicial dicta it is not permissible to limit to a particular period. :While exercising power under Sec tion 42, the revisional authority may take into account the long lapse of time as a factor in the light of the facts and circumstances obtainable in an appropriate, case. No abso lute or precise period of limitation could be predicted or laid. [580H] Jagtar Singh vs Additional Director, Consolidation of Holdings, Jullundar, AIR 1984 Punjab & Haryana 216, ap proved. Haqiqat Singh vs Addl. Director, Consolidation of Hold ings, AIR 1981 Punjab & Haryana 204; Joginder Singh & Ors. vs The Director, 579 Consolidation of Holdings, and Harbha jan Singh vs Karam Singh & Anr., ; , referred to.

Appeal No '. 741 of 1965. Appeal by special leave from the judgment and decree dated April 1, 1963 of the Kerala High, CourT in Appeal Suit No. 480 of 1958. Sarjoo Prasad and M. R. K. Pillai, for the appellant. section V. Gupte and A. G. Pudissery, for the respondent. The Judgment of the Court was delivered by Shah, J. On October 9, 1950, a deed styled an "indenture of mortgage" was executed by the Cochin Chemicals and Refineries Ltd., hereinafter called 'the Company ' and N. C. John a Director of the Company, in favour of I the State of Travancore Cochin. The relevant terms of the indenture were "In consideration of the sum of Rupees 2.5 lakhs (2,50,000) borrowed by the mortgagor No. I from the mortgagee (the receipt of which sum mortgagor No. 1 doth hereby admit and acknowledge) mortgagor No. I hereby covenants with the mortgagee as follows : (a) That the mortgagor No. I shall supply to the mortgagee 3,000 tons of groundnut cake at the rate of 600 tons per month within a period of five months commencing with the first day of November 1950 and ending with the last day of March 1951. (b)That the account for the groundnut cakes supplied by mortgagor No. I to the mortgagee will be settled and adjusted against the loan amount of Rs. 2.5 lakhs: and interest thereon at 41 % per annum at the end of March 1951, the groundnut cakes supplied being valued at the average, price fixed by the Government during the period for purchases from other sources. If 'on such adjustment any amount is found due to the mortgagor No. I the same will be paid by the mortgagee. If how 558 ever it is found that the price of the groundnut cakes supplied is not sufficient to make up the loan amount with the interest thereon, mortgagor No. I shall pay the deficit amount to the,mortgagee immediately after the settlement of account. (c)That mortgagor No. 1 shall deliver the groundnut cakes. at any, depot in the Travancore Cochin State as may from time to time be required by the Director of Agriculture from the mortgagee free of transport charges. " II."For the consideration aforesaid the mortgagor No. 1 hereby transfers by way of simple mortgage to the mortgagee" all the assets described in Sch. 1, "and mortgagor No. 2 hereby transfers by way of simple mortgage to the mortgagee" the assets described in Sch. 11, "to the intent that the said premises shall remain and be charged as security for the payment to the mortgagee of the said principal money, interest and costs in accordance with the Covenants herein before contained. " III."The mortgagors hereby covenant with the mortgagee as follows: The indenture was executed by the Company and N. C. John. and also by the Secretary to the Government of Travancore Cochin on behalf of His Highness the Rajpramukh. A supplementary deed was executed on November 7, 1950, whereby it was agreed that Without prejudice to the right to recover the amount secured or any portion thereof as I stipulate , it shall also be recoverable under the Revenue Recovery Act for the time being in force or in other manner as the mortgagee may deem fit. It is common ground that the amount acknowledged in the indenture was not advanced at the date of the indenture and was never advanced thereafter. The Company arranged for the supply of goods agreed to be sold under the terms of paragraph I(a) and wrote from time to time letters to the appropriate officers of the State asking them to give instructions about the depots where the supplies were to be made. In reply to the letter Ext. H, the Assistant Director of Agriculture by Ext. M, dated January 3, 1951, replied that "I write to invite your attention to my letter of even No. dated 12 12 1950 and to inform you that I shalt be placing orders for the supply of groundnut cake as soon as I get orders from Government providing the necessary funds for paying you the advance of Rs. 2 and 1 2 lakhs." 559 No instructions for supply were however given to the Company to supply the goods agreed to be purchased by the State. The Company instituted on March 9, 1953, an action against the State of Travancore Cochin for a decree for Rs. 3,600/ being damages for failure to advance the loan of Rs. 2,50,000/ , and Rs. 1,68,600/ as damages for breach of contract to purchase 3,000 tons of groundnut cake under the indenture. The Trial Court decreed the suit for Rs. 3,600/ being damages for failure. to advance the loan, and for Rs. 1,23,000/ being damages for breach of contract to purchase groundnut cake. In appeal to the High Court, the liability of the State to compensate the Company for failure to take delivery of the goods offered to be delivered alone was challenged. The High Court confirmed the decree passed by the Trial Court negativing the contention raised on behalf of the State that the obligation to take delivery of the goods agreed to be purchased was contingent on the Government 's advancing Rs. 2,50,000/ . The State has appealed to this Court with special leave. Two questions arise for determination in this appeal (1) Whether under the terms of the indenture the State by refusing to advance the loan of Rs. 2,50,000/was absolved from the obligation to purchase the goods referred to in paragraph I(a) of the indenture; and (2) Whether in the circumstances of the case, the Company was not entitled to claim damages for breach by the State to purchase the goods agreed to be purchased. The indenture incorporated two transactions: (1) a mortgage in favour of the State by the Company and N. C. John charging properties belonging to the two mortgagors for repayment of Rs. 2,50,0001/ ; and (2) the Company agreeing to sell and the State agreeing to purchase 3,000 tons of groundnut cake at the rate of 600 tons per month for five Months to be supplied at any of the depots in the Travancore Cochin State as may from time to time be designated, by. the Director of Agriculture. The indenture expressly recited that the amount of Rs. 2,50,000/ was ad vanced to the Company but the supplementary deed dated Nov ember 7, 1950, and the correspondence make it clear that though the money was recited to have been actually advanced, it was :pot in fact advanced but it was intended by the State Government to advance it. For some reason where it is difficult to 'ascertain from the record, the State Government did not carry out its obligation to advance the money, after obtaining the indenture and the supplementary deed from the Company and its Director. But even as late as January 3, 1951, as is clear from Ext. M the Assistant Director of Agriculture reiterated the promise that the money 560 will be advanced and delivery of goods offered by the Company will be accepted. Counsel for the State contended that so long as the loan was not advanced by the State, the mortgage was not in law effective, and the Company could not enforce the contract relating to groundnut cake agreed to be purchased by the State, for the obligation undertaken was in consideration of the loan of Rs., 2,50,000/ and arose only when the loan was advanced. But the assumption, that if the State did not advance the loan which it had undertaken to advance, the indenture was ineffective, cannot be accepted. There is no such express term in the deed, and none can be implied from the covenants and the surrounding circumstances. A transaction of mortgage formally, executed does not become void or ineffective merely because the mortgagee fails to advance the amount of money undertaken to be advanced by him. If without advancing the *mount agreed to be advanced, he sues on the title created under the deed of mortgage, the Court will not award him a decree for anything more than what he has But that is not to say that the mortgage is invalid In Tatia vs Babaji(1),Farran, C.J., observed : "I am not, however,. . .prepared to assent to the train of thought which puts conveyances of lands in the mofussil perfected by possession or registration where the consideration expressed in the conveyance to have been aid has not in act been paid in the same category as contracts void for want of consideration. " Similar observations were made in Rashik Lal vs Ram Narain and others( '), where Karamat Hussain, J., observed at p. 276 ". . Mortgage under the Transfer of Property Act is a transfer of an interest in the land mortgaged, and not a mere contract. It therefore follows that no sooner a valid mortgage deed is registered, an interest in the property mortgaged, in the absence of any contract to the contrary, vests in the mortgagee notwithstanding the fact that the mortgage money has not been paid by the mortgagee to the ' mortgagor. The mere non payment of the mortgage money cannot have the effect of rendering the mortgage invalid. " Sulaiman, J., in Dip Narain Singh vs Nageshar Prasad and others(2) observed that once a. document transferring immovable property has been registered, the transaction passes out of the domain of a mere contract and into one of a conveyance. Such a completed transaction is governed by the provisions of the (1) I.L.R. (3) I.L.R. 52 All. (2) I.L.R. 34 All. 273, 561 Transfer of Property Act and so much of the Contract Act as is applicable thereto. The argument that because the amount was not advanced by the State to the Company, the mortgage was void or ineffective therefore cannot be accepted. Nor do the terms of the indenture justify the plea that the liability of the State to purchase 3,000 tons of groundnut cake from the Company was conditional upon the State advancing Rs. 2 50,000/ . The two transactions incorporated in the indenture were undoubtedly inter related. The price payable for the supplies of groundnut was to be adjusted towards the amount advanced or to be advanced by the State. But by failing to advance the amount the State could not avoid liability to carry out the obligation to purchase the, goods contracted to be purchased. Even if it be assumed that the indenture incorporated reciprocal promises the State to advance Rs. 2,50,000/ and the Company to deliver 3,000 tons of groundnut cake in the absence of any express provision to that effect the contract could not be terminated by the default of the State. Breach of contract by one party does not automatically terminate the obligation under the contract : the injured party has the option either to treat the contract as still in existence, or to regard himself as discharged. If he accepts the discharge of the contract by the other party, the contract is at an end. If he does not accept the discharge, he may insist on performance see the judgment of the House of Lords White and Carter (Councils) Ltd. vs McGregor(1). The case before the House was a Scottish case, but the law of Scotland is not different on the matter under consideration from the English law, and the Indian Contract Act closely follows the English Common Law in that matter. It cannot, therefore, be said that by refusing to advance the loan which the State had undertaken to advance, the obligation to purchase groundnut cake from the Company came to an end. Nor is there any substance in the, second contention that the State was by its default liable to compensate the Company only for loss arising out of its failure to advance the money, and not out of its failure to purchase the goods. The State had undertaken to advance Rs. 2,50,000/ to the Company. It had also undertaken to take delivery of 3,000 tons of groundnut cake offered by the Company under the terms of contract of sale. These were two independent, though inter related transactions, and by committing a breach of its own, obligation to advance the sum of Rs. 2,50,000/the State did not absolve itself from liability for the breach arising from the refusal to take delivery of the goods offered. The cause, of action arising out of the refusal to take delivery of the goods offered was independent of the cause of action arising out of the (1) [1962] A.C.413=[1961] 3 AII. E.R.1178. 562 breach committed by the State in not advancing the loan. The two causes of action were cumulative and not alternative. There is therefore no warrant for the plea that by claiming damages for loss suffered by it as a result of the failure to advance the loan, the Company elected to give up its claim for damages for breach of the contract to take delivery of 3,000 tons ' of groundnut cake by the State. The appeal fails and is dismissed with costs. R.K.P.S. Appeal dismissed.

A mortgage deed was executed by the respondent company and one of its directors in favour 'of the State of Kerala. It was provided inter alia by the terms of the deed that in consideration of the State granting a loan of a sum of Rs. 2.5 lakhs to the company, the latter would supply to the State 3,000 tons of ground ,nut cake within a specified period and make deliveries in accordance with instructions to be given by the State, and the account for this supply will be adjusted against the loan amount and the interest thereon. It was common ground however that the loan amount, though acknowledged in the mortgage deed as received by the company, was never in fact advanced by the State. The respondent company arranged for the supply of goods as agreed and sought the necessary instructions for delivery, but, these we 're never given. The company instituted a suit in March 1953 against the appellant State for damages for failure to, advance the loan amount and for breach of contract to purchase the groundnut cake. The trial court decreased the suit for Rs. 36,000 being damages for failure to advance the loan and for Rs. 1,23,000 as damages for breach of contract. An appeal to the High Court challenging the liability of the State to compensate the company for failure to take delivery of the goods was dismissed. It was contended on behalf of the State that the obligation to take delivery of the goods agreed to be purchased was contingent upon the Government 's advancing the loan amount, so long as the amount was not advanced by the State, the mortgage was not in law effective and the Company could not enforce the contract relating to ground nut cake a. reed to be purchased by the State. , HELD : Dismissing the appeal) A transaction of mortgage formally executed does not become void or ineffective merely because the mortgagee fails to advance the amount of money undertaken to be advanced by him. Under the terms of the mortgage deed liability of the State to purchase the groundnut cake. from the Company was not made conditional upon the State advancing the loan. By failing to advance the loan amount the State could not avoid liability to carry out the obligation to purchase the goods contracted to be purchased. Even if it be assumed that the indenture incorporated reciprocal promises, in the absence of any express provision to that effect the contract could not be terminated by the default of the State. Breach of contract by one party does not automatically terminate the obligation under the contract : the injured party has the option either to treat the contract as still in existence, or to regard himself as discharged. If he accepts the discharge of the contract by the other party, the contract is 557 at an end. If he does not accept the discharge, he may insist on performance. [560 C D; 561 D]. Tatia v Babaji, I.L.R. , Rashik Lal vs Ram Narain and Others, I.L.R. 34 All. 273, Dip Narain Singh V. Nageshar Prasad and Others, I.L.R. 52 All. 338, White and Carter (Councils) Ltd., vs Mc Gregor, ; referred to. There was no substance in the, contention, that the State was by its default liable to, compensate the Company only for loss arising out of its failure to advance the money, and not out of its 'failure to purchase the goods. The State 's undertakings to advance the loan and to take delivery of ground nut cake were two independent, though inter related transactions; and by committing a breach of its own obligation to advance the loan, the State did not absolve itself from liability for the breach arising from its refusal to take delivery of the goods offered [561 F H].

Appeal No. 508 of 1976. (Appeal by Special Leave from the Judgment and Order dated 27 10 1975 of the Delhi High Court in Civil Revision No. 115/75). S.N. Andley, Urea Dutta and T.C. Sharma, for the appellant. K.C. Agarwala and M.M.L. Srivastava, for the respondent. The plaintiff respondent ,alleged to be a regis tered partnership firm filed a suit on 25th April, 1974, through Smt. Pushpa Mittal, shown as one of its partners, for the recovery of Rs. 21,265.28 as principal and Rs. 7655/ , as interest at 12% per annum. according to law and Mercantile usage, on the strength of a cheque drawn by the defendant on 12th May, 1971, on the State Bank of India, which, on presentation, was dishonoured. The plaintiff alleged that the cheque 1061 was given as price of goods supplied. The defendant appel lant firm admitted the issue of the cheque by its Managing partner, but, it denied any privity of contract with the plaintiff firm. The defendant appellant had its own version as to the reasons and purposes for which the cheque was drawn. The suit was instituted under the provisions of Order 37 Civil Procedure Code so that the defendant appellant had to apply for leave under Order 37, Rule 2, of the Code to defend. This leave was granted unconditionally by the Trial Court after a perusal of the cases of the two sides. Order 37, Rule 3, Civil Procedure Code lays down: "( 1 ) The Court shall, upon application by the defendant give leave to appear and to defend the suit, upon affidavits which dis close such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application. (2) Leave to defend may be given uncondi tionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit". A learned Judge of the High Court of Delhi had on a revision application under Section 115 Civil Procedure Code interfered with the order of the Additional District Judge of Delhi granting unconditional leave, after setting out not less than seven questions on which the parties were at issue. The learned Judge had, after discussing the cases of the two sides and holding that triable issues arose for adjudication, nevertheless, concluded that the defences were not bona fide. He, therefore, ordered: "For these reasons I would allow the revision petition and set aside the order of the trial Court. Instead I would grant leave to the defendant on their paying into Court the amount of Rs. 21,265.28 together with interest at the rate of 6 per cent per annum from the date of. suit till payment and costs of the suit (Only court fee amount at this stage and not the lawyer 's fee). The amount will be deposited within two months. There will be no order as to costs of this revision". The only question which arises before us in this appeal by special leave: Could the High Court interfere, in exercise of its powers under section 115, Civil Procedure Code, with the discretion of the Additional District Judge, in granting unconditional leave to defence to the defendant appellant upon grounds which even a perusal of the order of the High Court shows to be reasonable ? Santosh Kumar vs Bhai Mool Singh(1), was a case where a cheque, the execution of which was admitted by the defend ant, had been dishonoured. The defendant had set up his defences for refusal to pay. (1)[1958] SCR 1211 1215. 1062 This Court noticed the case of Jacobs vs Booth 's Distill ery Company(1), where it was held that, whenever a defence raises a really triable issue, leave must be given. Other cases too were noticed there to show that this leave must be given unconditionally where the defence could not be shown to be dishonest in limine. This Court observed there (at p. 1215): "The learned Counsel for the plaintiff respondent relied on Gopala Rao vs Subba Rao (AIR , Manohar Lal vs Nanhe Mal (AIR , and Shib Karan Das vs Mohammed Sadiq (AIR 1936 Lah. 584). All that we need say, about them is that if the Court is of opinion that the defence is not bona fide, then it can impose conditions and is not tied down to refusing leave to. defend. We agree with Varadachariar J. in the Madras case that the Court has this third course open to it in a suitable case. But, it cannot reach the conclusion that the defence is not bona fide arbitrarily. It is as much bound by judicial rules and judicial procedure in reaching a conclusion of this kind as in any other matter", On general principles, relating to the exercise of jurisdiction of High Courts under section 115, Civil Proce dure Code, several cases were cited before us by Mr. Andley: M.L. Sethi vs R.P. Kapur(2); The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad & lint. vs Ajit Prasad Tarway, Manager, (Purchase & Stores), Hindustan Aeronautics Ltd., Balanagar, Hyderabad(3); D.L.F. Housing & Construction Co. Pvt. Ltd. New Delhi vs Sarup Singh & Ors. (4); Milkhiram (India) Pvt. Ltd. & Ors. vs Chamanlal Bros.(5) We need not dilate on the well established principles repeatedly laid down by this Court which govern jurisdiction of the High Courts under section 115 C.P.C. We think that these principles were ignored by the learned Judge of the High Court in interfering with the discretionary order after a very detailed discussion of the facts of the case by the learned Judge of the High Court who had differred on a pure question of fact whether the defences could be honest and bona fide. Any decision on such a question, even before evidence has been led by the two sides, is generally hazard ous. We do not think that it is fair to pronounce a cate gorical opinion on such a matter before the evidence of the parties is taken so that its effects could be examined. In the case before us, the defendant had denied, inter alia, liability to pay anything to the plaintiff for an alleged supply of goods. It is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed that the exercise of discretion by the Trial Court to grant leave unconditionally may be, (1) (2) ; (3) (4) ; (5) AIR 1965 SC 1698. 1063 questioned. In the judgment of the High Court we are unable to find aground of interference covered by Section 115 C.P.C. In Smt. Kiranmoyee Dassi & Anr. vs Dr. J. Chatterjee(1), Das. J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by order 17 C.P.C. in the form of the following propositions (at p. 253): "(a) If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the Defendant is entitled to unconditional leave to defend. (b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend. (c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shews such a state of facts as leads to the infer ence that at the trial of the action he may be able to establish a defence to the plaintiff 's claim the Plaintiff is not entitled to judg ment and the Defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the Defendant has no defence or the defence set up is illusory or sham or practi cally moonshine then ordinarily the Plaintiff is entitled to leave to sign judgment and the Defendant is not entitled to leave to defend. (e) If the Defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the Plain tiff is entitled to leave to sign judgment, the Court may protect the Plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise se cured and give leave to the Defendant on such condition, and thereby show mercy to the Defendant by enabling him to try to. prove a defence". The case before us certainly does not fall within the class (e) set out above. It is only in that class of case that an imposition of the condition to deposit an amount in Court before proceeding further is justifiable. , 253. 1064 Consequently, we set aside the judgment and order of the High Court and restore that of the Additional District Judge. The parties will bear their own costs. Appeal allowed.

The appellant issued the respondent a cheque which was dishonoured. The respondent alleged that the cheque was the consideration for goods supplied. The appellant admitted issuing the cheque but denied by privity of contract. The respondent filed a suit under order 37 C.P.C., and the appellant applied for the required leave to defend, which was granted by the trial Court unconditionally. On revision under section 115 C.P.C., the High Court held that triable issues arose for adjudication. , but, it considered the defence to be dishonest. If allowed the revision petition and gave conditional leave to defend on the ground that the defences were not bona fide. Allowing the appeal, the Court HELD: It is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed that the exercise of discretion by the Trial Court to grant leave unconditionally may be questioned. In other cases, it is not fair to pronounce a categorical opinion on such a matter before the evidence of the parties is taken so that its effects could be examined. High Court 's interference under sec. 115 C.P.C. with the correct exercise of its discretion by the trial Court was patently erroneous. 11062 Santosh Kumar vs Bhai Mool Singh ; at 1215, Jacobs vs Booth 's Distillery Co. followed. Kiranmoyee Dassi and another vs Dr. J. Chatterjee ,at 253) distinguished. M.L. Sethi vs R.P. Kapur ; The Managing Director (MIG) Hindustan Aeronautics Ltd. Bulana gar, Hyderabad & A nr. vs A Ajit Prasad Tarway, Manager (Purchase and Stores). Hindustan Aeronautics Ltd. Balanagar, Hyderabad (AIR ; D.L.F. Housing & Construction Co. Pvt. Ltd., New Delhi vs Sarup Singh & Ors. [1970] 2. S.C.R. 368; and Milkhiram (India) (P) Ltd. and Ors. vs Chamanlal Bros. (AIR 1965 SC 1998) referred to.

r Petition No. 36 of 1980. Petition under section 25 of the Code of Civil Procedure for transfer of case No. 28 of 1980 Misc. (36) pending in the Court of the Distt. Judge, Udaipur (Rajasthan) to the Court of Subordinate Judge, Eluru (Andhra Pradesh) to be tried alongwith O. P. No. 72 of 1979 pending in that court. G.S. Rama Rao for the Petitioner. B.D. Sharma for the Respondent. The following Judgments were delivered: TULZAPURKAR, J. On September 26, 1979, the petitioner (wife) filed a suit in forma pauperis seeking maintenance from the respondent (her husband) in the Court of Subordinate Judge, Eluru (Andhra Pradesh) being O. P. No. 72 of 1979. On the receipt of the notice of the suit, the respondent filed a divorce suit (Petition Case No. 28 of 1980) against the wife under section 13 of the in the Court of the District Judge, Udaipur (Rajasthan). By the instant transfer petition filed under section 25 C.P.C. 226 1908 the wife is seeking to get the husband 's suit transferred to Eluru. On merits we are satisfied that it is expedient for the ends of justice to transfer the husband 's suit to the District Court at Eluru (A.P.) where both the proceedings could be tried together and for that purpose the wife is agreeable to have her maintenance suit transferred to the District High Court at Eluru (A.P.) However, counsel for the respondent (husband) has raised before us a preliminary objection that section 25 of the C.P.C. under which the transfer petition has been made is not applicable to proceedings under the and as such this Court has no power to transfer the husband 's suit from Udaipur District Court to the District Court at Eluru. He urged that section 25 of C.P.C. gets excluded by reason of the provisions of section 21 and 21A of the . According to him section 25 C.P.C. deals with the substantive law and not procedural law and since section 21 of the makes applicable to all the proceedings under the Act only such provisions of C.P.C. as relate to the regulation of proceedings i.e. such provisions which deal with procedural matters only, section 25 C.P.C. is not applicable. He also urged that section 21 A (3) of the also makes the above position clear beyond doubt by specifically excluding sections 24 and 25 C.P.C. from being applied to the proceedings under the . A large number of authorities were referred to by counsel to substantiate his contention and general principles but in particular one decision of the Nagpur Bench of the Bombay High Court in the case of Priyavari Mehta vs Priyanath Mehta was pressed into service as having a direct bearing on the point. In our view, on proper construction of the relevant provisions it is not possible to uphold the preliminary objection. In the first place it is difficult to accept the contention that the substantive provision contained in section 25 C.P.C. is excluded by reason of section 21 of the . Section 21 of the merely provides: "Subject to other provisions contained in this Act and to such rules as the High Court may make in that behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908". In terms section 21 does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase 227 "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into section 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provision of the Act. For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law (See: Canada and Dominion Sugar Co. Ltd. vs Canadian National (West Indies) Steamships Ltd. So far as section 21A of the is concerned the marginal note of that section itself makes it clear that it deals with power to transfer petitions and direct their joint or consolidated trial "in certain cases" and is not exhaustive. Further sub section (3) of section 21A on which strong reliance was placed runs thus: "21A (3). In a case where clause (b) of sub section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908) to transfer any suit for proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code. " This provision in terms deals with the power of the Government or the Court on whom powers of transfer have been conferred by the C.P.C. as it then stood, that is to say, old section 24 and 25 of C.P.C. It does not deal with the present section 25 C.P.C. which has been substituted by an amendment which has come into force with effect from February 1, 1977 (section 11 of the Amending Act 104 of 1976). By the amendment very wide and plenary power has been conferred on this Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil 228 Court in one State to another Civil Court in any other State throughout the country. Conferral of such wide and plenary power on this Court could not have been in the contemplation of Parliament at the time of enactment of section 21A of the . It is, therefore, difficult to accept the contention that s, 21A of excludes the power of transfer conferred upon this Court by the present section 25 of C.P.C. in relation to proceedings under that Act. Coming to the decision rendered by the Nagpur Bench of the Bombay High Court in Priyavari Mehta 's case (supra) it needs to be pointed out that the aforesaid aspects of section 21A of the and the present section 25 of the C.P.C. were not considered by the Nagpur Bench at all. Moreover, the Nagpur Bench, following the decision of the Punjab and Haryana High Court in Smt. Rama Kanta vs Ashok Kumar has also taken the view that section 21A of the permits transfer and consolidation of only two types of petition under the Act, namely, cross petitions filed by the two spouses against each other under section 10 or section 13 of the Act and that consolidation or joint hearing of other types of petitions is excluded by necessary intendment. The Bench has observed: "The effect of section 21A, therefore, in my opinion, is that joint or consolidated hearing or trials of petitions other than those mentioned in that section not being permissible, the powers under section 23 to 25 of the Code cannot be exercised for transfer of petitions for a consolidated hearing of the petitions not contemplated by that section. " Such a view, in our opinion, is not correct. As stated earlier, in the matter of transfer of petitions for a consolidated hearing thereof section 21A cannot be regarded as exhaustive for the marginal note clearly suggests that the section deals with power to transfer petitions and direct their joint and consolidated trial "in certain cases. " Moreover, it will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court of a husband 's petition for restitution of conjugal rights on ground that the wife has withdrawn from his society without reasonable excuse under section 9 of the Act and the wife 's petition for judicial separation against her husband on ground of cruelty under section 10 of the Act in order to avoid conflicting decisions being rendered by two different 229 Courts. In such a situation resort will have to be had to the powers under sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing. Reading section 21A in the manner done by the Nagpur Bench which leads to anomalous results has to be avoided. In this view of the matter, the preliminary objection is overruled. Divorce case No. 28 of 1980 pending in the District Court Udaipur (Rajasthan) is transferred to the District Court Eluru (A.P.), to which Court the wife 's petition for maintenance shall also stand transferred. No order as to costs. AMRENDRA NATH SEN, J. I agree with the order proposed by my learned brother. I, however, propose to make certain observations with regard to the preliminary objection raised as to the jurisdiction of this Court to entertain this application. The preliminary objection raised is that the jurisdiction and power conferred on this Court under section 25 of the Code of Civil Procedure are excluded by the provisions contained in section 21 and section 21A of the ; and as section 25 of the Civil Procedure Code is not attracted, this Court does not have jurisdiction to entertain this application for transfer. section 25 of the Code of Civil Procedure reads as follows: "(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. (2) Every application under this section shall be made by a motion which shall be supported by an affidavit. (3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either re try it or proceed from the stage at which it was transferred to it. (4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the 230 application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case. (5) The law applicable to any suit, appeal or other proceeding transferred under the section shall be the law which the court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding. " It may be noticed that the present section 25 was substituted for the former section 25 by the Code of Civil Procedure (Amendment) Act, 1976. In this connection it may be relevant to set out section 25 of the Code of Civil Procedure, as it stood before its amendment by the substitution of the present section. The earlier section 25 was in the following terms: "(1) Where any part to a suit, appeal or other proceeding pending in a High Court presided over by a single Judge objects to its being heard by him and the Judge is satisfied that there are reasonable grounds for the objection, he shall make a report to the State Government, which may, by notification in the Official Gazette, transfer such suit, appeal or proceeding in any other High Court: Provided that no suit, appeal or proceeding shall be transferred to a High Court without the consent of the State Government of the State that High Court has its principal seat. (2) The law applicable to any suit, appeal or proceeding so transferred shall be the law which the Court in which the suit, appeal or proceeding was originally instituted ought to have applied to such case. " A plain reading of section 25 of the Code clearly indicates that very wide jurisdiction and powers have been conferred on this Court to transfer any suit, appeal or any other proceeding from a High Court or other Civil Court in any State to a High Court or other Civil Court in any other State for the ends of justice. I shall now set out the relevant provisions of the . section 21 of the is in the following terms: "Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all 231 proceedings under this Act shall be regulated, as far as may be by the Code of Civil Procedure, 1908." Section 21A which was introduced in the Act by the Amending Act, (68 of 1976) provided as follows: "(1) where (a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13, and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State; the petition shall be dealt with as specified in sub section(2) (2) in a case where sub section (1) applies; (a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that Court: (b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented. (3) In a case where clause (b) of sub section (2) applies, the court or the Government as the case may be, competent under the Code of Civil Procedure, 1908 to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code. " 232 The learned counsel for the respondent argues that in view of the provisions contained in section 21, only the provisions contained in the Code of Civil Procedure relating to procedure which will regulate the proceedings instituted under the will apply; and as section 25 of the Code of Civil Procedure does not appertain to the domain of procedure and confers substantive right, the said section is not applicable and cannot be attracted. It is argued that this position is further made clear by the provisions contained in section 21A. In my opinion, this argument of the learned counsel for the respondent husband is without any substance. I have earlier set out section 25 of the Code of Civil Procedure and I have pointed out that an analysis of the section makes it abundantly clear that for the ends of justice, wide power and jurisdiction have been conferred on this Court in the matter of transfer of any suit, appeal or proceeding from any High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. A suit or a proceeding for divorce under the in a Civil Court is necessarily a suit or proceeding and must on a plain reading of section 25(1) of the Code of Civil Procedure be held to come under section 25(1) of the Code, as the said section speaks of any suit, appeal or other proceeding. This Court must necessarily enjoy the power and jurisdiction under the said provisions of transferring such a suit or proceeding for the ends of justice, unless the power and jurisdiction of this Court are specifically taken away by any statute. If the jurisdiction clearly conferred on any Court has to be ousted, the exclusion of such jurisdiction must be made in clear and unequivocal terms. S.21 of the does not deal with the question of jurisdiction of any Court. As no procedure with regard to the proceedings under the has been laid down in the said Act, section 21 of the Act only provides that 'all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure. ' section 21 of the cannot be construed to exclude the jurisdiction conferred on this Court under section 25 of the Code of Civil Procedure. It does not become necessary in the instant case to decide whether the provision in relation to jurisdiction of this Court contained in section 25 of the Code of Civil Procedure is one of substantive law or it belongs to the domain of Procedure. Even I accept the argument of the learned counsel for the respondent that section 25 does not form any part of the procedural law and is a part of the substantive law, I am of the opinion that jurisdiction conferred on this Courts by section 25 of 233 the Code of Civil Procedure, is not in any way, affected by section 21 of the which, as I have already noted, only provides that 'all proceedings under the shall be regulated as far as may be by the Code of Civil Procedure, 1908. ' section 21A of the , in my opinion, has indeed no bearing on the question of jurisdiction conferred on this Court under section 25 of the Code of Civil Procedure. section 21A of the makes provisions for transfer of petitions specified in the said section and for hearing and disposal of such petitions together by the District Court in which the earlier petition has been presented. Such power has been conferred on the Court or the Government. section 21A has no application to the case of transfer of any suit or proceeding from one State to another. As I have earlier noted, very wide power and jurisdiction have been conferred on this Court in the interest of justice for transferring any appeal, suit or proceeding from one State to another under section 25 of the Code of Civil Procedure. In the instant case, the petitioner has applied for transfer of the suit pending in the District at Udaipur in the State of Rajasthan to the appropriate Court at Eluru in the State of Andhra Pradesh. I am, therefore, of the opinion that this Court enjoys the power and jurisdiction to entertain this application under section 25 of the Code of Civil Procedure and section 21 and section 21A of the do not, in any way, exclude, affect or curtail the power conferred on this Court under section 25 of the Code of Civil Procedure. I may incidentally add that the present section 25 in the Code of Civil Procedure came into force after section 21 and 21A have been incorporated in the . V.D.K. Preliminary objection rejected.

The petitioner (wife) filed a suit (O.P. 72/79) in forma pauperis seeking maintenance from the respondent (husband) in the court of subordinate Judge, Eluru (Andhra Pradesh). On the receipt of the notice of the suit, the respondent filed a divorce suit (Petition Case No. 28/1980) against the wife under section 13 of the in the court of the District Judge, Udaipur (Rajasthan). By the instant transfer petition filed under section , the wife sought to get the suit at Udaipur transferred to Eluru. A preliminary objection was raised to the effect that section 25 of the Civil Procedure Code, which gets excluded by reason of the provisions of sections 20 and 21 of the , is not applicable to proceedings under the said Act and as such the Supreme Court has no power to transfer the husband 's suit from Udaipur District Court, Udaipur (Rajasthan) to Eluru District Court, Eluru (A.P.). Rejecting the preliminary objection, the Court ^ HELD: Per curiam On merits, it is expedient for the ends of justice to transfer the husband 's suit pending in the District Court Udaipur (Rajasthan) to the District Court at Eluru (Andhra Pradesh), where both the proceedings could be tried together and for that purpose, the wife is agreeable to have her maintenance suit transferred to the District Court at Eluru (A.P.). [226 A B] Per Tulzapurkar J. 1. It will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court of a husband 's petition for restitution of conjugal rights on the ground that the wife has withdrawn from his society without reasonable excuse under section 9 of the and the wife 's petition for judicial separation against her husband on ground of cruelty under section 10 of the said Act in order to avoid conflicting decisions being rendered by two different Courts. In such a situation resort will have to be had to the 224 powers under sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing. [228 G H, 227A] 2:1. On a proper construction of the relevant provisions, it cannot be said that the substantive provision contained in section 25 Civil Procedure Code is excluded by reason of section 21 of the . In terms, section 21 C.P.C. does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code, as far as may be, shall apply to all proceedings under the Act and the phrase "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Code. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into section 21 of the Act and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act. [226 G H, 227 A B] 3. Section 21A of the does not exclude the power of transfer conferred upon the Supreme Court by the present section 25 C.P.C., in relation to proceedings under that Act. The marginal note of section 21A itself makes it clear that it deals with power to transfer petitions and direct their joint or consolidated "trial in certain cases" and is not exhaustive. Section 21A does not deal with the present section 25 C.P.C. which has been substituted by an amendment which has come into force with effect from February 1, 1977 (section 11 of the Amending Act 104, 1976). By the amendment very wide and plenary power has been conferred on the Supreme Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil Court in one State to another Civil Court in any other State throughout the country. Conferral of such wide and plenary power on the Supreme Court could not have been in contemplation of Parliament at the time of enactment of section 21A of the . [227 C D, F H, 228 A B] Smt. Rama Kanta vs Ashok Kumar, AIR 1977 Punjab & Haryana 373 and Priyavari Mehta vs Priyanath Mehta, AIR 1980 Bombay 337, overruled. Per Amrendra Nath Sen, J. 1. A plain reading of section 25 C.P.C. clearly indicates that very wide jurisdiction and powers have been conferred on the Supreme Court to transfer any suit, appeal or any other proceedings from a High Court or other Civil Court in any State to a High Court or other Civil Court in any other State for the ends of justice. Supreme Court enjoys the power and jurisdiction to entertain the transfer application under section 25 of the Code of Civil Procedure. D] 2 : 1. Sections 21 and 21A of the do not in any way, exclude, effect or curtail the power conferred on the Supreme Court under section 25 of the Code of Civil Procedure. If the jurisdiction clearly conferred 225 on any court has to be ousted, the exclusion of such jurisdiction must be made in clear and unequivocal terms. [232E, 233D] 2 : 2. Section 21 of the only provides that "all proceedings under the shall be regulated as far as may be by the Code of Civil Procedure, 1908". Section 21 of the does not deal with the question of jurisdiction of any court and it cannot be construed to exclude the jurisdiction conferred on the Supreme Court under section 25 C.P.C. [232 E G] 2 : 3. Section 21A of the has, indeed, no bearing on the question of jurisdiction conferred on the Supreme Court under section 25 C.P.C. Section 21A has no application to the case of transfer of any suit or proceeding from one State to another. [233 B C] 2 : 4. The Supreme Court must necessarily enjoy the power and jurisdiction under the provisions of section 25 C.P.C. of transferring such a suit or proceeding for the ends of justice unless the power and jurisdiction of the Supreme Court are specifically taken away by any statute. [232D E] 3. Section 25 of the Code of Civil Procedure came into force after section 21 and 21A of the have been incorporated in the and as such section 25 of the Code overrides sections 21 and 21A of the . [233 A E]

ION: Criminal Appeal No. 237 of 1959. Appeal from the judgment and order dated February 10 and 11 of 1959, of the Bombay High Court in Criminal Appeal No. 1023/59 with Crinal Appeals Nos. 1048 and 1048 of 1958. H. R. Khanna and P. D. Menon, for the appellant. section G. Patwardhan. J.B. Dadachanji O.C. Mathur and Ravinder Narain, for the respondent No. 1. 1962. January 23. The Judgment of the Court was delivered by RAGHUAR DAYAL, J. This appeal, on a certificate granted by the High Court of Bombay, raises the question whether the contravention of the provisions of sub section (2) of section 222 of the Code of Criminal Procedure, hereinafter called the Code, in the framing of the charge against an accused, vitiates the trial. The facts leading to the appeal, in brief, are as follows. The respondents were charged and tried at the same trial of the offences under section 120B read with section 406, I.P.C., and of an offence under section 406, I.P.C. and committed in pursuance of the criminal conspiracy they had entered into. They were also tried, but acquitted of other offences charged with. They appealed against their conviction of the offence under section 120 B read with section 406, I.P.C., and of the offence under section 406, I.P.C. The charge under section 406, I.P.C, was with respect to the commission of trust of trust of a sum of Rs. 2,18,369/ between the period March 6. 1949, and June 30, 1950. It was contended before the High Court that the charge framed contravened the provisions of sub 713 section (2) of section 222 of the Code which allowed a combined charge with respect to the amount embezzled within a period of a year. The High Court agreed with this contention and, holding the trial void, set aside the conviction of the respondents and acquitted them of the offences. The High Court, however, maintained the order of acquittal is respect of the other offences. The State of Bombay (now Maharashtra) has filed this appeal against the order setting aside the conviction of the respondents. It is not necessary for us to determine in this appeal the general question whether the contravention of the provisions of sub R. (2) of section 222 of the Code, in the framing of the charge, will always make the trial void, as, in this particular case, the offence under section 406, I.P.C., charged against the respondents was said to have been committed in pursuance of a criminal conspiracy entered into by them. It will therefore suffice, for the purpose of this case, to consider whether such a defect in the charge vitiates the present trial. Section 222 of the Code is one of the sections in Chapter XIX, which deals with Form of Charges. Sections 221, 222 and 223 deal with what should be mentioned in the charge. The whole object of the charge is inform both the prosecution, and the accused particularly, of the accusation the prosecution has to establish and the accused has to meet. So long as the accused knows fully what accusation he has to meet any error in the narrative of the charge need not be fatal to the trial. Sections 225, 232, 535 and 537 save the trial from being vitiated unless of course the accused has been prejudiced and failure of justice has taken place. Sections 233 to 239 deal with the joinder of charger, and they speak not only of an accused being charged with offences, but of such charges 714 being tried separately or jointly. Section 233 states that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239. It is clear that the general rule is theat there should be a separate trial for each distinct offence of which a person is accused. It follows that each item of property of which an accused is alleged to have committed breach of trust, constitutes one distance offence and that, in general, it would be necessary to have as many trials as there be distinct offences of criminal breach of trust committed by the accused. But section 222(2) provides that when the accused is charged with criminal breach of trust, the charge may be with respect to the gross sum embezzled within a period of one year and that the charged so framed shall be deemed to be a charge of one offence within the meaning of section 234. The charge framed in the present case was with respect to the gross sum embezzled within a period of more than twelve months, the period being between March 6, 1949 and June 30, 1950. The charge therefore was in contravention of the provisions of section 222(2). This defect in the charge, however, did not lead to any prejudice to the accused in the trial and therefore did not vitiate the trial, in view of the provisions of section 537 of the Code. The charge could have been split up into two charges, one with respect to the offence of criminal breach of trust committed with respect to the amount embezzled between March 6, 1949 and March 5, 1950 and the other with respect to the amount embezzled between March 6, 1950 and June 30, 1950. The two offences of criminal breach of trust could have been tried together in the present case, as the offences were said to have been committed in pursuance of the criminal conspiracy entered into by the accused, All the offences 715 committed in pursuance of the conspiracy are committed in the course of the same transaction and therefore can be tried together at one trial, in view of sub section (1) of section 235 of the Code which provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. It is therefore clear that no prejudice was caused to the accused by the defect in the charge. A similar view has been taken by this Court in Kadiri Kundahammad vs The State of Madras (1). We may further point out that the High Court should not have expressed its opinion or passed any order with respect to the acquittal of the respondents for the other offences when the order of acquittal was not before it for consideration and when it had held the entire trial to be void, on account of the contravention of the provisions of sub section (2) of section 222. We therefore hold that the trial of the respondents was legal and therefore allow the appeal and set aside the order of the High Court. Their appeal against their conviction has not been heard on merits and therefore we remand the case to the High Court for further hearing according to law.

The respondents were charged and tried at the same trial with the offences of Criminal conspiracy and breach of trust committed in pursuance thereof during a period of more than one year. The question arising for decision was whether, in the framing of the charge, contravention of the provisions of sub s.(2) of s.222 which allowed a combined charge with respect to the amount embezzled within a period of one year, vitiated the trial. ^ Held, that the defect in the charge did not lead to any prejudice to the accused and therefore did not vitiate the trial in view of the provision of section 537 of the Code of Criminal Procedure. When all the offences committed in pursuance of a conspiracy are committed in course of the same transaction this can be tried together at one trial in view of section 235(1) of the Code of Criminal Procedure which provides that if in one 712 series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Kadiri Kanhahammad vs The State of Madrs, A.I. R. , followed.

ivil Appeal Nos. 1856 61 of 1974 etc. From the Judgment and order dated 16.1.1974 of the Andhra Pradesh High Court in Case Referred No 2 of 1977 V.S. Desai, Ms. A. Subhashini and B.B. Ahuja for the Appellant. Y.Ratnakar and D.N. Misra for the Respondent. The Judgment of the Court was delivered by PATHAK, J. These appeals have been preferred by the Revenue against the common judgment of the High Court of Andhra Pradesh answering the following questions in favour of the assessee: "(1) Whether, on the facts and in the circumstances of the case, the incomes arising from the Reserve Fund and the Expenses Account of the Nizam 's Family Trust Deed dated s 10.5.1950 can be aggregated in a single assessment for each of the assessment years 1960 61 to 1965 66? (2) If the answer to the above question is in the affirmative, whether the assessments made under section 148 of the Act for the assessment years 1960 61 and 1961 62 were legal and valid?" By a Deed of Trust dated May 10, 1950 the Nizam of Hyderabad created a Family Trust. A corpus of nine crores in Government securities was transferred to the trustees under that Deed. The corpus was notionally divided into 175 equal units. Five units were to constitute a fund called the 'Reserve Fund ', and 3 1/2 units were to constitute the 'Family Trust Expenses Account". The remaining 166 1/2 units were allotted to the relatives mentioned in the Schedule in the manner provided therein, the number of units allocated to each individual relative being specified there. Two clauses of the Trust Deed hold the centre of the stage in 976 these appeals~. Clause 6 creates a Reserve Fund comprising five equal units of the corpus of the Trust Fund. The trustees hold the Reserve Fund upon trust to apply the income or corpus thereof for any special, unusual, unforeseen or emergency expenses for the benefit of the members of the Settlor 's family specified in the Schedule. Additionally, if the income of the Family Trust Expenses Account is insufficiently meet the charges of collection of the income of the Trust Fund and the remuneration of the trustees and of the Committee of Management and the other costs, charged, expenses and outgoings relating to the Trust, the trustees are enjoined to make good such deficit out of the income or corpus of the Reserve Fund, and for that purpose they may transfer to the Family Trust Expenses Account such sums as may be required. It is further provided that on the death of any of the Settlor 's relatives specified in the Schedule the trustees must set apart out of the Reserve Fund a certain portion calculated in accordance with the directions contained in the clause and to add such portion to the units of the corpus of the Trust Fund allocated to the member specified in the Schedule and to amalgamate the same, and to hold it upon the same trusts as those hereinafter declared and contained of and concerning the unit or units of the corpus of the Trust Fund allocated to such relative of the settlor as aforesaid. ' Clause 7 directs the trustees to hold 3 1/2 equal units of the corpus of the Trust Fund allocated to the Family Trust Expenses Account, and to apply the net income of that Fund to the charges for the collection of the income of the Trust Fund and the remuneration of the trustees and of the members of the Committee of Management and to other costs, charges, expenses and outgoings relating to the Trust. There is a further provision. After all the other Trusts constituted under the Deed have been fully administered and carried out and the corpuses of all such units have been handed over and transferred to the ultimate respective beneficiaries the trustees are enjoined to transfer and hand over the 3 1/2 units comprising the Family Trust Expenses Account to the Settlor 's successor who may be describe as the Nizam of by any other title or rank or designation, and failing such person, to the eldest male descendant in the direct male line of succession of the Settlor accordmg to the rule of primogeniture. For the assessment year 1959 60 and the assessment years prior thereto the incomes accruing to the Reserve Fund and the Family Trust Expenses Account were aggregated in a single assessment made on the trustees of the Nizam 's Family Trust. But thereafter the asses 977 see 's appeals having been allowed by the Appellate Assistant Commissioner of Income tax against the assessments for the years 1955 56 to 1959 60, the incomes of the two Funds were separately assessed for the assessment years 1960 61 and 1961 62, the assessee being described in the one case as the trustees of the Nizam 's Family Trust Reserve Fund, and in the other as the trustees of the Nizam 's Family Trust Expenses Account. Subsequently, the Income tax officer being of opinion that there was only one settlement under the Trust Deed, reopened the assessments for the assessment years 1960 61 and 1961 62 under clause (a) of section 147 of the Income Tax Act, 1961 in order to assess the trustees on the combined income of the Reserve Fund and the Family Trust Expenses Account. Following the same line, he made separate original assessments for the assessment years 1962 63 to 1965 66. On appeal by the assessee, the Appellate Assistant Commissioner relied on an order of the Appellate Tribunal in the Wealth Tax Appeals pertaining to the same trust arrangements and cancelled the assessments for all the years. The Revenue appealed to the Income Tax Appellate Tribunal, but the view taken by the Appellate Assistant Commissioner was upheld by the Appellate Tribunal and the appeals were dismissed. Upon that, the Revenue obtained a reference to the High Court of Andhra Pradesh on the two questions of law set forth earlier for the assessment years 1960 61 to 1965 66. By its judgment dated January 16, 1974 the High Court answered both the questions in the negative. And hence these appeals. For the subsequent assessment years 1967 68 to 1970 71 the High Court adopted the same view in regard to the first question. The second question did not arise for those assessment years. Special Leave Petition Nos. 4171 to 4174 of 1978 have been filed against the judgment of the High Court in those cases. We grant special leave, and the consequent appeals are also being disposed of by this judgment. The primary question in these appeals is whether the incomes arising from the Reserve Fund and the Family Trust Expenses Account of the Nizam 's Family Trust can be assessed separately or must be aggregated in a single assessment. It seems to us clear that by the Deed of Trust dated May 10, 1950 the Nizam created a number of separate and distinct Trusts. They were created for specific and distinct purposes, and although the corpus of the Trust Fund vested in the same trustees, the trustees nonetheless held distinct and severable portions of the corpus of the Trust Fund 978 under those separate trusts. That this construction of the document accords with the intention of the Settlor is borne out by the provisions of sub clause (4) of clause 3 of the Trust Deed, which specifically provides that on the death of the Settlor the corpus of the Trust Fund was to be divided or to be treated as notionally divided into the 175 equal units mentioned therein for being allocated to the Settlor 's relatives specified in the Schedule, 166 1/2 units being apportioned between the relatives in the proportion set out, five equal units to constitute the Reserve Fund and the last 3 1/2 equal units to constitute the Family Trust Expenses Account. There is no doubt that separate funds were thus created, even though the division of the original Trust Fund may have been notional. There is also no denying that it is open to a Settlor to constitute two or more distinct trusts by a single document. See Commissioner of Income tax, Bombay vs Manilal Dhanji, , 886. The entire position becomes absolutely clear if regard is had to clause 10 of the Trust Deed which permits the trustees to have separate Trust Deeds made and executed in respect of the different funds carved out of the 175 equal units of the corpus of the Trust Fund. It is also apparent that the objects for which the trustees held the Reserve Fund and the Family Trust Expenses Account are clearly demarcated and there is no overlapping or duplication. There is also no intermingling of the Funds. It is true that if there is a deficit in the Family Trust Expenses Account, a definite portion of the income or corpus of the Reserve Fund has to be transferred to the Family Trust Expenses Account. But the two Funds, remain distinct from each other at all times, The transfer of a portion from one to the other cannot lead to a confusion in the separate identity of the two Trusts. A further indication evidencing the creation of two distinct Trusts is the completely different manner of disposal of the corpus of the two Funds. As regards the Reserve Fund we have seen that on the death of any of the Settlor 's relatives a proportionate share of the corpus of the Reserve Fund must be added to the unit or units of the corpus of the Trust Fund allocated to such members, and the amounts so amalgamated are to be applied in accordance with the terms of the Trust Deed mentioned earlier. In the case of the Family Trust Expenses Account, the corpus of that Fund has to be ultimately handed over to the Settlor 's successor to the dignity of Nizam and failing him to his eldest male descendant in the direct male line of succession in accordance with the rule of primogeniture. We agree with the High Court that the Settlor intended to create 979 separate Trusts in respect of the Reserve Fund and the Family Trust Expenses Account, and that the respective incomes arising from the corpus of those Trusts cannot be aggregated in one single assessment but must be assessed separately. The first question in these Appeals is therefore answered in the negative, in favour of the assessee and against the Revenue. Inasmuch as the answer to the first question is in the negative, the second question does not arise and we need not consider that question in these Appeals. The Appeals are dismissed with costs. M.L.A. Appeals dismissed.

By a Deed of Trust dated May 10, 1950, the Nizam of Hyderabad created a Family Trust. A corpus of nine crores in Government securities was transferred lo the trustees under that Deed, which was notionally divided into 175 equal units, 5 units to constitute a fund called the 'Reserve Fund ', 31/2 units to constitute the 'Family Trust Expenses Account ' and the remaining 116 1/2 units were allotted to the relatives mentioned in the Schedule in the manner provided therein. The Trust Deed provided: (1) that the income or corpus of the Reserve Fund shall be applied for any special, unusual, unforeseen or emergency expenses for the benefit of the members of the settlor 's family specified in the Schedule; (2) that if there was a deficit in the Family Trust Expenses Account, a definite proportion of the income or corpus of the Preserve Fund had to be transferred to the Family Trust Expenses Account; (3) that the net income of the Family Trust Expenses Account shall be applied to the charges for the collection of the income of the Trust Fund and the remuneration of the trustees and of the members of the Committee of Management and to other costs, charges, expenses and outgoings relating to the members, (4) that on the death of any of the settlor 's, relatives, a proportionate share of the corpus of the Reserve Fund must be added to the unit or units of the corpus of the Trust Fund allocated to such member, and the amounts so amalgama ted are to be applied in accordance with the terms of the trust deed; and (5) that the corpus of the Family Trust Expenses Account has to be ultimately handed over to the Settlor 's successor to the dignity of Nizam and falling him to his eldest male descendant in the direct male line of succession in accordance with the rule of primogeniture. 974 The income of the two Funds were separately assessed for the assessment years 1960 61 and 1961 62. Subsequently, the Income tax officer, being of opinion that there was only one settlement under the Trust Deed, reopened the assessments for the assessment years 1960 61 and 1961 62 under clause(a) of section 147 of the Income Tax Act, 1961 and assessed the trustees for each of the assessment years on the combined income of the Reserve Fund and the Family Trust Expenses Account. Following the same line, separate original assessments for the assessment years 1962 63 to 1965 66 were also made. On appeal by the asses see, the Appellate Assistant Commissioner cancelled the assessments for all the years. The Income Tax Appellate Tribunal and the High Court confirmed the order of the Appellate Assistant Commissioner. In the appeals by the Revenue to this Court, on the question whether the incomes arising from the Reserve Fund and the Expenses Account of the Nizam 's Family Trust Deed can be aggregated in a single assessment for each of the assessment years 1960 61 to 1965 66. ^ HELD: 1. The High Court was right that the Settlor intended to create separate Trusts in respect of the Reserve Fund and the Family Trust Expenses Account, and that the respective incomes arising from the corpus of those Trusts cannot be aggregated in one single assessment but must be assessed separately. [979A B] 2. It is open to a Settlor to constitute two or more distinct trusts by a single document. [978C] In the instant case, there is no doubt that separate funds were created, even though the division of the original Trust Fund may have been notional. The objects for which the trustees held the Reserve Fund and the Family Trust Expenses Account are clearly demarcated and there is no overlapping or duplication. There is also no intermingling of the Funds. The transfer of a portion from one to the other cannot lead to a confusion in the separate identity of the two Trusts. [978B E] 3. Although the corpus of the Trust Fund vested in the same trustees, the trustees nonetheless held distinct and severable portions of the corpus of the Trust Fund under those separate trusts. That this construction of the document accords with the intention of the Settlor is borne out by the provisions of sub clause (4) of clause 3 of the Trust Deed, which specifically provides that on the death of the Settlor the corpus of the Trust Fund was to be divided or to be created as notionally 975 divided into the 175 equal units mentioned therein for being allocated to the Settlor 's relatives specified in the Schedule. [977G H; 978A B]

Appeal No. 409 of 1966. Appeal by special leave from the judgment and order dated July 5, 1963, of the Gujarat High Court in Special Civil Application No. 827 of 1961. R. Gopalakrishnan, for the appellant. G. L. Sanghi, section K. Dholakia and R. N. Sachthey, for the respondent. This is an appeal by special leave from a judgment of the Gujarat High Court dismissing a petition under L83Sup. CI/69 2 246 article 226 of the Constitution by which the order, retiring the appellant from service before he had attained the age, of 55 years, had been challenged. The appellant had joined the service of the erstwhile State of Junagadh on August 1, 1934. That State merged into the State of Saurashtra on January 20, 1949. The appellant continued to remain in the service of that State having been confirmed as an Executive Engineer on September 24, 1956. On the merger of Saurashtra in the new billingual State of Bombay on November 1, 1956, the appellant was absorbed in the service of the said State. On the bifurcation of the State of Bombay on May 1, 1960, he was assigned to, the State of Gujarat and was absorbed as a permanent Executive Engineer there. On October 12, 1961 the State of Gujarat made an order retiring the appellant from the service with effect from January 12, 1962. On that date he had not attained the age of 55 years but he was about 53 years old. This, order was made 'in exercise of the powers conferred by Rule 161 of the Bombay Civil Service Rules, 1959. The order of retirement was challenged by the appellant by means of a writ petition which was dismissed. It is common ground that when the appellant was in the ,service of the erstwhile State of Junagadh his conditions of :service were governed by the Junagadh State Pension and Parwashi Rules which had been made by the ruler of the State who exercised sovereign legislative powers. According to those rules the age of superannuation was 60 years. Before the inclusion of the Junagadh State in the State of Saurashtra the Rajpramukh had promulgated an Ordinance called the Saurashtra State Regulation of Government Ordinance 1948. By section 4 of that Ordinance all the laws in force in the covenanting States prior to their integration were continued in force in the State of Saurashtra until repealed or amended under section 5. Notwithstanding this the Saurashtra Government adopted and applied the Bombay Civil Service Rules which were then in force in the State of Bombay by an order dated September 23, 1948. This Court in Bholanath ,J. Thaker vs The State of Saurashtra(1) held that the Rules as regards the age of superannuation which prevailed in the covenanting State which in that case was the State of Wadhwan continued to govern those government servants who had come from that State and had been absorbed in the services of the State of Saurashtra. In view of that decision the State of Saurashtra made the Saurashtra Covenanting State Servants (Superannuation age). Rules, 1955, hereainafter called the "Saurashtra Rules", in exercise of the power conferred by article 309 of the Consti tution. Rule 3(i) provided (1) A.I.R. 1954 S.C. 680. 247 "A Govt. servant shall, unless for special reasons otherwise directed by Govt. retire from service on his completing 55 years of age. " After the integration of the Saurashtra State into the State of Bombay a resolution was passed by the Government on Janu ary 7, 1957 applying the old Bombay Civil Service Rules to Saurashtra area. On July 1, 1959 the Bombay Civil Service, Rules 1959, hereinafter called the "Bombay Rules" were pro mulgated under article 309 of the Constitution. Clause (c)(2) (ii) (1) of Rule 161 is as follows "Except as otherwise provided in this Sub clause Government servants in the Bombay Service of Engineers, Class 1, must retire on reaching the age of 55 years, and may be required by the Government to retire on reaching the age of 50 years, if they have attained to the rank of Superintending Engineer. " It was under this rule that the order retiring the appellant was made. In the High Court the writ petition filed by the appellant was heard and disposed of with two other similar petitions in which identical questions had been raised. A number of points were raised in the High Court but it is unnecessary to refer to them because the questions on which the present appeal can be disposed of are only two : (1) Whether the appellant was governed by the Saurashtra Rules or the Bombay Rules and (2) even if the Saurashtra Rules were applicable could the retirement of the appellant be ordered before he, had attained the age of 55 years. The High Court rightly looked at the provisions of section 115(7) of the . It is provided thereby that nothing in the section shall be deemed to affect after the appointed. day the operation of the provisions of Chapter 1 of of the Constitution in relation to 'the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State. The proviso is important and lays down that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section (1) or sub section (2) (of section 115) shall not be varied to his disadvantage except with the previous approval in the Central Government. The case of the appellant fell within the proviso and it had, therefore, to be, determined whether the conditions of service applicable to the appellant immediately before the appointed day which admittedly were contained in the Saurashtra Rules had been varied to his disadvantage, and if so, whether the approval of the Central Government had been obtained. It was conceded before the High Court by the, learned 248 Advocate General, who appeared for the State, that no previous approval of the Central Government had been obtained to vary the conditions of service of those public servants who were serving in the State of Saurashtra until November 1, 1956. The High Court in this situation proceeded to decide whether by the application of Rule 161 of the Bombay Rules the conditions of service of the appellant contained in the Saurashtra Rules had been varied to his disadvantage. It was argued on behalf of the appellant that the expression "unless for special reasons otherwise directed by Government" in Rule 3 (i) of the Saurashtra Rules provided for extension of the age of superannuation beyond 55 years and not for reduction thereof. The Advocate General had argued that what was meant by the aforesaid words was that Government could, for special reasons, retire a Government servant before he had attained the age of 55 years which was the normal superannuation age. If that was so Rule 161 (c) (2) (ii) (1) of the Bombay Rules could not be regarded as having varied the conditions of service contained in the Saurashtra Rules to the disadvantage of the Government servants. The High Court was of the view that while framing the Saurashtra Rules the draftsmen who must have been well aware of the then Bombay Civil Service Rules which were in the same terms as Rule 161 of the Bombay Rules could not have framed the clause in such manner as to introduce an element of discrimination between Executive Engineers who had been absorbed from a Covenanting State and those who had been appointed or recruited directly by the State Government. In the opinion of the High Court even under the Saurashtra Rules retirement could be ordered before a person had attained the age of 55 years. It was, therefore, held that the conditions in Rule 161 (c) (2) (ii) of the Bombay Rules had not been shown to be less advantageous or disadvantageous to the appellant than the conditions in Rule 3 (i) of the Saurashtra Rules by which the appellant was governed until November 1, 1956. In this manner the proviso to section 115(7) of the did not stand in the way of the applicability of the Bombay Rules. We find it difficult to concur with the view of the High Court. Rule 3 (i) of the Saurashtra Rules, if construed or interpreted in the manner in which it has been done by the High Court, would bring it into direct conflict with the law laid down by this Court in Moti Ram Deka etc. vs General Manager, N.E.F. Railways Maligaon, Pandu etc.(1), which is a _judgment of a bench of seven judges of this court. One of the matters which came up for consideration was the effect of a service rule which permitted compulsory retirement without fixing the minimum period of service after which the rule could be invoked. According to the (1) ; 249 observations of Venkatarama Ayyar, J., in The State of Bombay vs Saubhagchand M. Doshi(1) the application of such a rule would be tantamount to dismissal or removal under article 311(2) of the Constitution. There were certain other decisions of this Court which were relevant on this point, viz. P. Balakotaiah vs The Union of India & Ors.(2) and Dalip Singh vs The State of Punjab(3). All these decisions were considered in Moti Ram Deka 's case(4) and the true legal position was stated in the majority judgment at page 726 thus : "We think that if any Rule permits the appro priate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so called retirement ordered under the said Rule would amount to removal of the civil servant within the meaning of article 311(2). " In Gurdev Singh Sidhu vs State of Punjab & Anr.(5), it was pointed out that the only two exceptions to the, protection afforded by article 311(2) were, (1) where a permanent public servant was asked to retire on the ground that he had reached the age of superannuation which was reasonably fixed; (2) that he was compulsorily retired under the Rules which prescribed the normal age of superannuation and provided a reasonably long period of qualified service after which alone compulsory retirement could be valid. The basis on which this view has proceeded is that for efficient administration it is necessary that public servants should enjoy a sense of security of tenure and that the termination of service of a public servant under a rule which does ,not lay down a reasonably long period of qualified service is in substance removal under article 311(2). The principle is that the rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must also be a provision for a reasonably long period of qualified service which must be indicated with sufficient clarity. To give an example, if 55 years have been specified as the age of superannuation and if it is sought to retire the servant even before that period it should be provided in the rule that he could be retired after he has attained the age of 50 years or he has put in service for a period of 25 years. Now Rule 3 (i) of the Saurashtra Rules will have to be dec lared invalid if the expression "unless for special reasons other (1) ; (2) [1958] S.C.R. 1052. (3) (4) ; (5) ; 250 wise directed by Government" is so construed as to give a power to order compulsory retirement even before attaining the age of 55 years. It is well known that a law or a statutory rule should be so interpreted as to make it valid and not invalid. If this expression is confined to what was argued before the High Court, namely, that it gives power to the Government to allow a Government servant to remain in service even beyond the age of 55 years for special reasons the rule will not be rendered invalid and its validity will not be put in jeopardy. So construed it is apparent that the appellant could not have been retired compulsorily under the Saurashtra Rules before he had attained the age of 55 years. By applying the Bombay rule his conditions of service were varied to his disadvantage because he could then be compulsorily retired as soon as he attained the age of 50 years. As the previous approval of the Central Government was not obtained in accordance with the proviso to section 115(7) of the , the Bombay rule could not be made applicable to the appellant. Counsel for the State pressed us to look into certain docu ments for the purpose of finding out whether prior approval of the Central Government was obtained in the matter of varying the conditions of service of the appellant by applying the Bombay rules. But none of these documents were referred to before the High Court and in the presence of a clear concession by the learned Advocate General we see no justification for acceding to such a request. In this view of the matter this appeal must succeed and it is hereby allowed with costs in this Court. It is declared that the appellant was entitled to remain in service until he attained the age of 55 years and that the impugned order directing his retirement was invalid and ineffective. G.C. Appeal allowed.

The appellant originally joined the service of the State of Junagadh in 1934 and was after the merger of that State in Saurashtra confirmed in September, 1956 as an executive engineer in the service of the latter State. Rule 3(i) of the Saurashtra Covenanting States Servants (Superannuation age) Rules 1955 provided : "A Govt. servant shall, unless for special reasons otherwise directed by Govt. retire from service on his completing 55 years of age. " After the merger of Saurashtra in the bilingual State of Bombay the old Bombay Civil Service Rules were applied to Saurashtra area with effect from January 7, 1957. On July 1, 1959 the Bombay Civil Service Rules, 1959 were promulgated. Accord ing to r. 161 (c) (2) (ii) (1) the age of retirement for class 1 Engineers in the State Service was fixed at 55 years but it was further laid down that they "may be required by the Government to retire on reaching the age of 50 years, if they have attained to the rank of Superintending Engine. " On the formation of the State of Gujarat the appellant 's 'services were transferred to that State but the Bombay Rules continued to apply. Under the Bombay Rule aforesaid, namely, r. 161(c)(2)(ii)(1) the Government of the State of Gujarat retired the appellant at the age of about 53 years. The appellant filed a writ petition in the High Court. The High Court took into account section 115(7) of the but held that since the Saurashtra Rule 3(i) also empowered the 'State Government to retire the appellant at an age earlier than 55 years there was no variation of conditions of service to his disadvantage under the Bombay Rule and therefore the latter rule was not invalid for want of Presidential assent. The High Court took the view that the expression "unless for special reasons otherwise directed by Government" in r. 3 (i) of the Saurashtra Rules meant that the Government could for special reasons retire a Government servant before he had attained the normal superannuation age of 55 years. Against the High Court 's judgment dismissing his writ petition the appellant came by special leave, to this Court. HELD : Rule 3(i) of the Saurashtra Rules, if construed of interpreted in the manner in which it had been done by the High Court, would bring it into direct conflict with Moti Ram Deka 's case as well as other cases decided by this Court. In Moti Ram Deka 's case it was laid down that if any rule permitted the appropriate authorities to retire compul sorrily a civil servant without imposing a limitation in that behalf that such 245 civil servant should have put in a minimum period of service. that rule would be invalid and the so called retirement ordered under the said rule would amount to removal of the civil servant within the meaning of article 311(2) of the Constitution. The principle is that the rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must also be a provision for a reasonably long period of qualified service which must be indicated with sufficient clarity. For example if 55 years have been specified as the age of superannuation and if it is sought to retire the servant even before that period it should be provided in the rule that he could be retired after he has attained the age of 50 years or he has put in service for a period of 25 years. [248 G 249 G] On the above principle rule 3 (i) of the Saurashtra Rules would have to be declared invalid if the expression "unless for special reasons otherwise directed by Government" is so construed as to give a power to order compulsory retirement even before attaining the 'age of 55 years. A statutory rule, however, should be so interpreted as to make it valid and not invalid. The correct interpretation of Rule 3(i) is that it gives power to the Government to allow a Government servant to remain in service even beyond the age of 55 years for special reasons; so construed the Rule would not be invalid and the appellant could not under it have been retired before be had attained the age of 55 years. By applying the Bombay Rule his conditions of service were varied to his disadvantage because he could then be compulsorily retired as soon as he attained the age of 50 years. As the previous approval of the Central Government was not obtained in accordance with the proviso to section 115(7) of the , the Bombay Rule could not be made applicable to the appellant. [249 G 250 C] The appellant was thus entitled to remain in service until he attained the age of 55 years and the impugned order directing his retirement was invalid and ineffective. [250 E F] Bholanath J. Thaker vs State of Saurashtra, A.I.R. (1954) S.C. 680, referred to. Moti Ram Deka etc. vs General Manager N.E.F. Railways Maligaon, Pandu etc. ; , State of Bombay vs Saubhag chand M. poshi; , , P. Balakotaiah vs Union of India; , , Dalip Singh vs State of Punjab, and Gurdev Singh Sidhu vs State of Punjab & Anr. ; , applied.

No. 1685 1691 of 1979 Under Article 32 of the Constitution of India. Soli J. Sorabjee and K.C. Dua for the Petitioners. V. Parthasarthy, Girish Chandra and C.V. Subba Rao for the Respondents. The Order of the Court was delivered by THAKKAR,,J. The question raised in this Writ Petition under Article 32 of the Constitution of India as regards the determination of the market value of the goods manufactured by the petitioner company for the purposes of computation of the excise duty leviable on the same. The petitioners (manufacturers) are manufacturing electrical goods under a contract with another company known as the Bajaj Electricals Ltd. (here after referred to as buyers). The agreement between the parties provides for the buyers having the right to reject the 84 goods if the goods are not in accordance with the buyers ' specifications or do not come up to the stipulated standard of quality. After the manufactured goods are tested, ap proved and accepted, by the buyers the manufacturers apply the label of the brand name of the buyers (in this case 'Bajaj ') on the manufactured goods. The petitioners contend that the market value of the goods manufactured by the petitioners should be assessed at the price at which the goods are agreed to be sold under the agreement between the manufacturers and the buyers. On the other hand the respond ent contents that the excise duty must be levied on the basis of the market value fetched by the sale of these goods by the buyers to their wholesalers. The goods manufactured by the Petitioner Company, which are accepted by the buyers and to which the brand name label 'Bajaj ' is applied are sold by the manufacturers to the buyers at the stipulated price and to none else. They are not at all sold in the open market by the manufacturers. The right to sell these goods with the brand name is solely and exclusively that of the buyers having regard to the fact that they alone are the owners of the brand name 'Bajaj '. The price fetched by the goods manufactured by the petitioner company is the price of the electrical goods 'sans ' the brand name. And that should be the market value for the purposes of assessing the excise duty payable by the petitioner company which manufactures the excisable goods. The enhancement in the value of the goods by reasons of the application of the brand name is because of the augmentation attributable to the value of the goodwill of the brand name which does not belong to the manufacturers and which added market value does not accrue to the petitioner company or go into its coffers. It accrues to the buyers to whom the brand name belongs and to whom to fruits of the goodwill belong. Excise duty is payable on the market value fetched by the goods, in the wholesale market at the factory gate manufactured by the manufacturers. It cannot be assessed on the basis of the market value obtained by the buyers who also add to the value of the manufactured goods the value of their own property in the goodwill of the 'brand name ' The Petitioners are therefore right and the respondents wrong. This point is covered by earlier deci sions of this Court, namely, (1) Union of India vs Cibatul Ltd., , (2) Joint Secretary to the Government of India vs Food specialities Ltd., and (3) Civil Appeal No. 1496 of 1977 disposed of by a Bench of three Judges of this Court by its judgment dated 3rd April, 1986. The petition must therefore be al lowed. The respondents shall levy excise duty on the basis of the price charged by the manufacturers to the buyers namely M/s. Bajaj Electricals Ltd. A word of caution is however called for. Our decision must be understood correct ly not misunderstood conveniently. We, there 85 fore, clarify that our pronouncement will not enable a manufacturer who manufactures and sells his goods under his own brand name or under a brand name which he has acquired a right to use. In such a case the sale price fetched by sales effected by him under such brand name in wholesale will be the basis for computation of excise duty payable. by him So also nothing said herein will come to the rescue of a brand name owner who himself is the manufacturer of goods or to sales effected in favour of 'related ' persons as defined by the Act. The Central Excises & Salt Act, 1944. The Bank guarantee, if any, furnished by the petitioners in the context of the present Writ Petition will stand discharged. No Other point has been argued. The petition is allowed and the Rule is made absolute to the aforesaid extent. The Writ Petition is disposed of accordingly. There will be no order as to costs. Writ Petitions Nos. 1686 1691 of 1979 raise the same point in the context of other brand names. These petitions will also stand disposed of in terms of this order with the same direction regarding computation of levy and discharge of guarantee bonds and with no order as to costs. M.L.A. Petition al lowed.

The petitinner company in W.P. No. 1685 of 1979 is manufacturing electrical goods for M/s. Bajaj Electricals Limited, the buyers. As per agreement the goods are not at all sold .in the open market by the petitioner company. After the manufactured goods are accepted by the buyers, the petitioner company applies the label of the brand name of the buyers, namely, 'BajaJ ' on the manufactured goods. The right to sell these goods with the aforesaid brand name is solely and exclusively that of the buyers having regard to the fact that they alone are owners of the brand name. Counsel for the petitioner in this writ petition con tended that the market value of the goods manufactured by the petitioner should be assessed at the price at which the goods are agreed to be sold under the agreement between the manufacturer and the buyers. On the other hand, it was argued by counsel in behalf of the respondent Union of India that the excise duty must be levied an the basis of market value fetched by the sale of these goods by the buyers to their wholesalers. Similar question of law arose in the other writ petitions. Allowing the writ petitions, this Cart, HELD: 1.1. Excise duty is payable on the market value ' fetched by the goods, in the wholesale market at the factory gate manufactured by the manufacturers. It cannot he as sessed on the hams of the market value obtained by the buyers who also add to the value of the manufactured goods the value of their own property in the goodwill of the 'Brand name '. [84F] 1.2. Where a manufacturer who manufacture and sells his goods under his own brand name or under a bland name which he has acquired in use, the sale price fetched by sales effected by him under 83 such bland name in wholesale, will be the basis for computa tion of excise duty payable by him. So also nothing said herein will come to the rescue of a brand name owner who himself is the manufacturer of goods or to sales effected favour of 'related ' persons as defined by the Central Ex cises and Salt Act, 1944. [85A B] Union of India vs Cibatul Ltd., , Joint Secretary to the Government of India vs Food Speciali ties Ltd., 'and M/s. R.O. Industries vs Union of India & Ors., Civil Appeal No. 1496 of 1977 decided on 3.4.86, relied upon. In the instant case, the price fetched by the goods manufactured by the petitioner company is the price Of*the electrical goods sans the brand name. And that should be the market value for the purposes of assessing the excise duty payable by the petitioner company which manufactures the excisable goods. The enhancement in the value the goods by reason of the application of the brand name is because of the augmentation attributable to the value of the goodwill of the brand name which does not belong to the manufacturer and which added market value does not accrue to the peti tioner company or go into its coffers. It accrues to the buyers to whom the brand name belongs and to whom the fruits of the goodwill belong. [89D E]

Civil Appeal No. 2354 of 1968 From the judgment and order dated the 7th March, 1968 of the Madhya Pradesh High Court in First Appeal No. 24 of 1969. C. P. Lal for the appellant. section T. Desai and D. N. Misra for the respondent. The Judgment of the Court was delivered by MATHEW, J. One Deojibhai executed a sale deed on 30 12 1950 in respect of the property in question in favour of the appellant for a sum of Rs. 12,000/ . No part of consideration was paid at the time of the execution of the sale deed. The appellant promised to pay the amount by 21 5 1951 and covenanted that in case of non payment, the amount due would be charge upon the property sold. After the execution of the sale deed, the appellant was put into possession of the 964 property and he paid Rs. 3,100/ in three instalments. Deojibhai died in 1955 leaving his widow, the respondent and a son who died subsequently leaving his widow Manibai. Manibai filed a suit in 1956 in the Bombay City Civil Court against Deokabai, the respondent, claiming a share in the property left by her father in law, Deojibhai. This suit was compromised and Deokabai was appointed receiver of the estate of Deojibhai with a direction by the Court to realise his assets and to pay a certain amount to Manibai. Deokabai, the respondent, filed the suit from which the appeal arises, on the basis that the appellant defaulted to pay the full purchase money of the property and that she was entitled to the same with interest. The appellant contended that the charge could not be enforced against the property as it formed part of his occupancy holding and that, besides the sum of Rs. 3,100/ he had made other payments totalling Rs. 9,500/ . The trial court found that no decree could be passed for enforcing the charge against the property as it was held in occupancy right by the appellant, but the court gave a personal decree against the appellant for Rs. 21,375/ . The appellant appealed against the decree to the High Court. The Court found that the respondent was entitled to enforce the charge on the property and granted a decree on that basis, but negatived the claim of the respondent for a personal decree against the appellant on the ground of limitation. In other respects, the decree of the trial court was confirmed. It is against this decree that the present appeal, by certificate, has been filed. Two points were taken on behalf of the appellant. One was that the Court was not competent to pass a decree creating a charge on the property in view of the fact that the property was held by the appellant as occupancy tenant. This contention was negatived by the High Court on the ground that the prohibition to pass a decree for sale or for closure of any right of an occupancy tenant in his holding was not in existence in 1952 when the suit was filed. We think the High Court was right in its conclusion as section 12 of the Central Provinces Tenancy Act, 1920, which contained the prohibition, had been repealed before the decree was passed. The second point raised by the appellant was that the respondent did not appeal from the decree of the trial court negativing her claim in the suit for a charge on the property. It was contended that the High Court was wrong in granting a decree for enforcement of the charge as the decree of the trial court became final so far as the respondent was concerned as she did not file any appeal therefrom. We are unable to accept this contention. Under Order 41, Rule 33 of the Civil Procedure Code, the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree. Order 41, Rule 33 provides: "The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only 965 of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: Provided that the Appellate Court shall not make any order under sec. 35 A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." In Radhika Mohan vs Sudhir Chandra(1), the facts were these: Under an annuity bond, the plaintiff there was granted a certain allowance per month. In a will executed by the executor of the annuity bond. It was provided that the annuity was to be a charge on certain properties. As the annuity allowance fell in arrears, the plaintiff brought a suit to enforce it praying for a charge. The trial court decreed the suit but did not grant a charge. The lower appellate court exonerated the defendants from personal liability but held that there should be a charge on the property. In second appeal by the defendants it was contended by them that the lower appellate court could not create a charge as, in the lower appellate court the plaintiff had failed to take objection to that part of the trial court 's decree. The High Court held that under 0.41, r.33, Civil Procedure Code, the lower appellate court was competent to vary the decree by providing for enforcement of the charge and that the decree passed by it was right. In Giani Ram & others vs Ramji Lal and others(2) the Court said that in 0.41, r. 33, the expression "which ought to have been passed" means "what ought in law to have been passed" and if an appellate court is of the view that any decree which ought in law to have been passed was in fact not passed by the court below, it may pass or make such further or other decree or order as the justice of the case may require. Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge. There is no substance in the contention that all the payments made by the appellant have not been given credit to by the respondent in view of the concurrent findings of the courts. We dismiss the appeal with costs. P.B.R. Appeal dismissed.

The appellant, who bought property from the respondent 's husband, covenanted that in case of non payment of the consideration, the amount due would be a charge upon the property. The respondent, on the death of her husband, filed a suit on the ground that the appellant defaulted to pay the full purchase money of the property. The trial court held that no decree could be passed for enforcing the charge against the property as it was held in occupancy right by the appellant, but gave a personal decree against the appellant for a certain sum. On the appellant 's appeal the High Court held that the respondent was entitled to enforce the charge on the property but negatived the respondent 's claim for a personal decree. On appeal to this Court, it was contended (1) that the Court was not competent to pass a decree creating a charge on the property since it was held by the appellant as an occupancy tenant and (2) that as the respondent did not appeal from the decree of the trial court negativing her claim in the suit for a charge on the property, the High Court was wrong in granting a decree for enforcement of the charge. Dismissing the appeal, ^ HELD: (1) The High Court was right in holding that the prohibition to pass a decree for sale or for closure of any right of an occupancy tenant in his holding was not in existence in 1952 when the suit was filed, because, section 12 of the Central Provinces Tenancy Act, 1920, which contained the prohibition, had been repealed before the decree was passed. [964 E F] (2)Even if the respondent did not file any appeal from the decree of the trial court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge. Under Order XLI, r. 33 of the Code of Civil Procedure, the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree. [964 G, 965 E] Radhika Mohan vs Sudhir Chandra, A.I.R. 1937 Calcutta 10 and Giani Ram & Others, vs Ramji Lal and Others, ; , referred to.

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

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

Civil Appeal No. 692 & 693 of 1981. From the Judgment and Order dated 19.5.1980 of the Delhi High Court in W.P. Nos. 883 of 1978 and 1079 of 1979. R.K. Habbu, R.B. Hathikhanwala and B.R. Aggarwala for the Appellants. Soli J. Sorabjee, Attorney General (NP), Kapil Sibal, Additional Solicitor General, Ms. Indu Malhotra, P. Parmeshwaran and C.V.Subba Rao for the Respondent. The Judgment of the Court was delivered by RANGANATHAN J. These two appeals involve a common question and can be disposed of by a common judgment. The question is whether the appellant companies (hereinafter referred to as the 'assessees ') are entitled to full "draw back ' of the customs duty which they had paid on the import of di methyl terephthalate (shortly referred to as 'DMT ') for manufacture of polyester staple fibre yarn. The assessees converted the DMT into polyester staple fibre in their factory at Thane and then sent it to Bhilwara in Rajasthan where the Rajasthan Spinning and Weaving Mills blended it with indigenous viscose staple fibre to spin out certain varieties of blended yarn. It is common ground that the product manufactured by this process was exported by the assessees to Imperial Chemical Industries Pvt. Ltd. Singapore, who had supplied the DMT free of charge to the assessees. The answer to the question revolves around the interpretation of Section 75 of the read with the Customs and Central Excise Duty Draw Back Rules, 1971. 291 Section 75 of the empowers the Central Government, by notification in the official gazette, to direct, in respect of goods of any class or description manufactured in India and exported to any place outside India, that draw back should be allowed of the duties of customs chargeable under the Act on any imported materials of a class or description used in the manufacture of such goods, in accordance with and subject to the rules framed under sub section (2) of the said section. Sub section 2, which confers a rule making power, enacts that such rules may, among other things, provide: "(a) for the payment of draw back equal to the amount of duty actually paid on the imported materials used in the manufacture of the goods or as is specified in the rules as the average amount of duty paid on the materials of that class or description used in the manufacture of export goods of that class or description either by manufacturers generally or by any particular manufacturer;" There is a similar provision in section 37 of the Central Excises & Salt Act, 1944 enabling grant of draw back of the excise duty paid in relation to such manufacture. The Central Government framed the Customs and Central Excise Duties Drawback Rules, 1971 (hereinafter referred to as 'the rules '), in exercise of the powers conferred on it under these two statutes. These are composite rules under the above two provisions and enable drawback being availed of in relation to customs duty as well as in relation to duties of central excise. Some relevant provisions of these rules may be quoted here. Rule 3, in so far as it is relevant for our present purposes, reads as follows: Rule 3: Drawback: (1) Subject to the provisions of (a) the (52 of 1962) and the rules made thereunder. (b) the (1 of 1944) and the rules made thereunder, and (c) these rules, (a) drawback may be allowed on the export of goods specified in Schedule II at such amount, or at such rates, as 292 may be determined by the Central Government. xxx xxx xxx (2) In determining the amount or rate of drawback under this rule, the Central Government shall have regard to: (a) the average quantity or value of each class or description of the materials from which a particular class of goods is ordinarily produced or manufactured in India. (b) the average quantity or value of the imported materials or excisable materials used for production or manufacture in India of a particular class of goods. (c) the average amount of duties paid on imported materials or excisable materials used in the manufacture of semis, components, and intermediate products which are used in the manufacture of goods. (d) the average amount of duties paid on materials wasted in the process of manufacture and catalytic agents: Provided that if any such waste or catalytic agent is used in any process of manufacture or is sold, the average amount of duties on the waste or catalytic agent so used or sold shall also be deducted. (e) the average amount of duties paid on imported materials or excisable materials used for containing or packing the exported goods. (f) the average amount of duties of excise paid on the goods specified in Schedule 1: and (g) any other information which the Central Government may consider relevant or useful for the purpose. Rule 4. Revision of rates: The Central Government may revise the amounts or rates determined under rule 3. xxx xxx xxx 6. Cases where amount or rate of drawback has not been determined: 293 (1)(a) Where no amount or rate of drawback has been determined in respect of any goods, any manufacturer or exporter of such goods may, before exporting such goods, apply in writing to the Central Government for the determination of the amount or rate of drawback therefor stating all relevant facts including the proportion in which the materials or components are used in the production or manufacture of goods and the duties paid on such materials or components. (b) On receipt of an application under clause (a) the Central Government shall after making or causing to be made such inquiry as it deems fit, determine the amount or rate of drawback in respect of such goods. Cases where amount or rate of drawback determined is low (l) Where in respect of any such goods, the manufacturer or exporter finds that the amount or rate of drawback determined under rule 3 or, as the case may be, revised under rule 4 for that class of goods is less than three fourths of the duties paid on the materials or components used in the production or manufacture of the said goods, he may make an application in writing to the Central Govermment for fixation of the appropriate amount or rate of drawback stating all relevant facts including the proportion in which the materials or components are used in the production or manufacture of the goods and the duties paid on such materials or components. (2) On receipt of the application referred to sub rule (1) the Central Government may, after making or causing to be made such inquiry as it deems fit, allow payment of drawback to such exporter at such amount or at such rate as may be determined to be appropriate if the amount or rate of drawback determined under rule 3 or, as the case may be, revised under rule 4, is in fact less than three fourth of such amount or rate determined under this sub rule. Schedule II to the notification by which the rules were promulgated listed the items the export of which entitles an assessee to avail of the drawback facility. Item 25 of the list reads thus: "Synthetic and regenerated fibre, textile yarn, thread, twines, cords and ropes 294 It is common ground that the goods exported by the assessees fall under item 25 above. There is also no controversy that the DMT imported by the assessees was used for the manufacture of the above commodity and that, on the import of the DMT, the assessees have paid customs duty. The rates of drawback available in respect of various goods were notified by the Central Government in due course. Against serial no 25, the notification set out the rates of drawback as follows: Serial Sub Si. Description of Rate of No. No. goods Drawback 25. SYNTHETIC AND REGENERATED FIBRES AND/TEXTILE YARN/ THREAD, TWINES, CORDS AND ROPES Brand rate to be 2501 Synthetic and regenerated fixed on an fibre and textile yarn, application from thread, twines, cords and the individual ropes not elsewhere manufacturer specified. exporter. 2502 (a) Yarn of above 21 BWS Counts or above 14 n.f. counts, spun wholly out of either viscose rayon fibre or acetate fibre or polyster fibre, polyamide fibre or acrylic fibre or wool, or from a combination of two and not more than two of the above mentioned fibres, or a combination of any one of the above mentioned fibres with either cotton or silk (but excluding yarn spun out of fibres obtained from fibre wastes, yarn waste or fabric wastes, by gernetting or by any other process: (a) Cellulosic fibre content: Rs. 1.80 (Rupees one and paise eighty only) per kg. 295 (b) Polyester fibre content: Rs.43.15 (Rupees forty three and paise fifteen only) per kg. (c) Acrylic fibre content: Rs.37.75 (Rupees thirty seven and paise seventy five only) per kg. (d) Polyamide fibre content: Rs. 16.40 (Rupees Sixteen and paise forty only) per kg. (e) Wool contents: (i) in the worsted yarn of Rs. 18.95 (Rupees Weaving quality made wool Eighteen and paise top. ninety five only) per kg. (ii) in the worsted yarn of Rs. 13.55 (Rupees weaving quality not made from Thirteen and paise fifty wool top. five only) per kg. (iii) in the worsted Hosiery Rs. 16.65 (Rupees Sixteen yarn and worsted hand knitting and paise sixty five yarn made from wool top. only) per kg. (iv) in the worsted hosiery yarn Rs.11.25 (Rupees Eleven and worsted hand knitting yarn and Paise twenty five not made from wool top. only) per kg. (v) Bye content if the yarn is Rs.0.85 (Eighty five dyed paise only) per kg. xxx xxx xxx It will be seen from the above table that the assessees are entitled to a drawback of Rs.43.15 per kg. of the polyester fibre content of the yarn exported by them. We are informed that this is the rate of central excise duty payable in respect of the manufacture of yarn having polyester fibre content. For reasons to be stated presently, the assessees had to pay no central excise duty for the manufacture and hence there was admittedly no question of the assessee getting a drawback to this extent. The point raised by the assessee is that, having paid customs duty on the DMT , it was entitled to a drawback in respect of the customs duty paid by it on the DMT. Since this was not included in the notification of the Central Government, the assessees made an application to the Ministry of Finance on 23.3.1977 requesting that drawback of the entire customs duty may be sanctioned. This request, 296 however, was rejected by the Central Government by a communication dated 12.3.1978. This communication was in the following terms: "Under Rule 3 of the Customs and Central Excise Duties Drawback Rules 1971, all industry rates of drawback on polyester viscose blended yarn have been determined and announced under serial No. 2502 of the Drawback Schedule. The said rates have been determined at the material time, after taking into consideration: (a) duty incidence of raw materials used in the manufacture of viscose fibre, plus the Central Excise duty on viscose fibre and (b) the Central Excise duty on polyester fibre in respect of polyester yarn. However, no raw material duty for manufacture of polyester yarn was taken into account, as the same (DMT) is available indigenously and is exempted from Central Excise Duty. For the rates determined effective from 18.8.1977 however the duty incidence on DMT has also been taken into consideration on the basis of weighted average of imported and indigenous material. " The assessees, dissatisfied with this decision of the Central Government, preferred a writ petition in the Delhi High Court, which was dismissed by the High Court on 19.5.80. Hence the present appeals. At this stage, it may be necessary to outline some facts which may be relevant for appreciating the background in which the assessees ' counsel urged strongly the equitable, if not also legal, claims of the appellant for the drawback of the customs duty. Counsel claims that the assessees were almost the first group of entrepreneurs in India to manufacture polyester fibre yarn. They had been fortunate enough to obtain a contract from the Imperial Chemical Industries, Singapore. By a letter dated 2.4.75 this concern agreed to supply free of cost the DMT required for the manufacture of blended yarn consisting of 67 per cent polyester and 33 per cent viscose fibre. The DMT was to be converted in polyester fibre, blended with viscose indigenously and shipped to a customer of the ICI in Sri Lanka. Thereupon, on 2.6.75, the assessees obtained customs clearance permits for import of 392 tons of DMT and also of 178 tons of viscose staple fibre. Eventually, however, the viscose staple fibre was obtained indigenously and the import permit, to this extent, was not utilised by the assessee. At the 297 time of obtaining this permit, the assessees also obtained permission to convert the imported DMT into polyester fibre under customs bond. The condition attached to the Customs Clearance permit was in the following terms: "The firm will convert the imported DMT into polyester fibre under Customs bond. The firm will then move the polyester fibre so manufactured and the imported viscose staple fibre under bond to the bonded warehouse of Rajasthan Spinning and Weaving Mills, Bhilwara Messrs. Rajasthan Spinning and Weaving Mills will then manufacture under bond polyester viscose yarn on behalf of the firm. The polyester viscose fibre yarn will then be exported by the firm to the overseas buyers who have supplied the DMT and viscose staple fibre on CCP basis or their nominees. . If these conditions had been fulfilled the assessees would have had no problems. The polyester fibre would have been manufactured under customs bond and this would have obviated payment of customs duty by the assessees. So also, the production of the blended yarn at the Rajasthan Spinning and Weaving Mills would have been under Central excise supervision and no excise duty would have been payable on the manufacture. Unfortunately, however, the customs authorities were not in a position to permit the conversion of the DMT into polyester fibre under customs bond for reasons which are not at present relevant and which are not being challenged in these proceedings. The assessees 's request for the manufacture of polyester fibre under: customs bond was declined by the customs authorities on 2.4.1976. Perhaps anticipating this difficulty, the Association of Polyester Staple Fibre Manufacturers at Bombay made an application to the Central Government on 26.3.1976 praying for exemption from customs duty on DMT required for the manufacture of polyester staple fibre. This letter points out: "Members of this Association manufacture polyester staple fibre. One of our members has received an advance licence for the import of DMT, a photostat copy of which we attach herewith. This DMT is to be used for manufacture in polyester fibre and the polyester fibre then converted into yarn to be supplied against export orders. Our members wish to explore possibility of larger export business in this manner. Indigenous supplies of both DMT and glycol are 298 insufficient to meet the domestic market requirements and export business can only be done by import of the two materials. Fulfilling export orders by using advance licences as the one issued to our member poses certain problems because the licence stipulated manufacture under Customs Bond. You will appreciate the difficulty in manufacturing under bond when the fibre for export constitutes only a portion of the total manufacture of the factory. If DMT and glycol could be included in the schedule to the customs Notification GSR 183, the procedural difficulties in manufacturing under Bond will not apply. Exports of yarn made from raw materials obtained against advance licences could earn considerable foreign exchange because of the value added during processing. One of the assessees also made a similar request and, eventually, a notification was issued on 2nd August, 1976 under section 25 of the exempting DMT from customs duty. The Government of India also wrote to one of the present appellants on 9.9.76 drawing attention to the said notification and stating that with the issue of this notification. The assessees ' problem would appear to have been solved. This, however, was not correct. The notification exempted future imports of DMT from customs duty but the assessees, having imported the DMT earlier, had to clear the same after paying customs duty thereon. Hence their request for a drawback of the customs duty already paid by them, the refusal of which has led to the present litigation. On behalf of the appellants, it is contended that the contains provisions enabling thd Government either to exempt goods under section 25 from the levy of Customs duty at the time of import or failing this, to permit a drawback of customs duty paid in the event of the conditions set out in section 75 being fulfilled. In the present case, an exemption under section 25 of the was in fact notified but unfortunately this happened only in August, 1976. By this time, the assessees had already imported the DMT. This they were obliged to do because of a time bound programme for export of the manufactured fibre to Sri Lanka. Counsel states that, from the very outset, the assessees had proceeded on the footing that they would be obtaining exemption from customs and excise duty because, apart from getting some conversion charges from the ICI, their own margin of profit on the transaction was not substantial. That is why even at the time of obtaining the customs clearance permit they had sought for permission to convert DMT into polyester under customs bond. If that had been 299 done, there would have been no necessity to pay customs duty at all. Unfortunately, because the department lacked facilities to supervise such an operation, the attempt of the assessees was only partially successful in that they were able to get only the production of the blended fibre done under Central Excise supervision. The initial stage of conversion from DMT to polyester fibre could not be done under customs bond. It is pointed out that the Government of India had exempted DMT from customs duty only on the basis of the representations made by the assessees and it is urged that the refusal to grant drawback of customs duty to assessees is wholly unjustified. The object of section 75 of the , read with section 27 of the Central Excise Act, is obviously to provide that in cases where certain goods are imported for complete utilisation in the manufacture of goods which are exported, the importer should be able to obtain relief in respect of customs and excise duties. In the present case there is no controversy that the D.M.T. imported by the assessee was utilised for the manufacture of polyester staple fibre and that the final product was fully exported to Sri Lanka. The notification made under the rules framed for this purpose, however, provides only for a drawback in respect of the excise duty involved in the manufacture of polyester staple fibre but not the customs duty on the raw material actually imported. Sri Habbu, learned counsel, contends that this notification, in fact, is contrary to the provision contained in rule 3 which obliges the Government, in determining the amount or rate of drawback, to have regard, among other things, to the amount of duties paid on imported or excisable material used in the manufacture of the exported goods. He submits that, in so far as the rates prescribed by the Central Government do not take into account the element of import duty on DMT, the fixation is not in accordance with the rule. According to him, therefore, this case 'falls under rule 6 which enables an assessee to apply to the Central Government to determine a drawback where none has been determined. The Central Government, he submits, was in error in rejecting the assessees ' application as one falling under rule 7 and, therefore not maintainable both in law and equity. Having heard the learned counsel for the assessees at some length, we are of opinion that the High Court was right in rejecting the assessees contentions. We think that the assessees ' arguments are based on a basic misapprehension that, under the Acts and rules, a manufacturer is automatically entitled to a drawback of the entire customs and excise duties paid by him if the terms and conditions of 300 section 75 are fulfilled. Though section 75 of the and section 37 of the Central Excises & Salt Act empower the Government to provide for the repayment of the customs and excise duties paid by individual manufacturers also, the rules as framed (rule 3 in particular) provides only for a refund of the "average amount of duty paid on materials" of any particular class or description of goods used for the manufacture of export goods of that class or description by manufacturers generally, except to the extent prescribed under rule 7 (to be noticed presently). The rules do not envisage a refund of an amount arithmetically equal to the customs duty or central excise duty which may have been actually paid by an individual importer cum manufacturer. If that had been the statutory intendment, it would have been simple to provide that in all cases where imported raw materials are fully used in the manufacture of goods which are exported, the assessee would be entitled to a drawback of the customs or excise duties paid by him for the import or on the manufacture. On the other hand, section 75(2) requires the amount of drawback to be determined on a consideration of all the circumstances prevalent in a particular trade and the fact situation relevant in respect of each of various classes of goods imported and manufactured. The need for providing an elaborate process of determination as envisaged in rule 3 is this. There may be different manufacturers of a particular manufactured item. Some of them may be using indigenous material and some may be importing some of the raw material. Similarly, in the process of manufacture also, there may be difference between manufacturer and manufacturer. That is why the drawback rules provide for a determination of the drawback after taking into account the "average" amount in respect of each of the various items specified in rule 3 in relation to each type of goods listed in Schedule II. The notification issued also determines the composite drawback available in respect of both customs and excise duties to importers cum manufacturers in respect of various categories of goods. In other words, the amount of drawback is not intended to be the amount of the duties that may have been paid by individual manufacturers; it is to be determined by considering the overall position prevalent in the country in respect of each of the categories of trade in the goods specified in Schedule II. We think that, if this basic principle is understood, the decision of the Govermment would become intelligible and rational. There is no controversy that, in this case, the goods exported fall under item 25. Learned counsel sought to contend that the goods here fall under sub item 2501 but this is clearly untenable. Sub item 2501 represents a residuary category which will not be attracted to the 301 goods here which clearly fall under sub item 2502. The notification prescribes different amounts of drawback under this it@m depending on the composition of the yarn and the nature of its contents. It specifies an amount of Rs.43.15 per Kg. as the relief by way of drawback available against the goods with which we are concerned which fall under clause (b) of item 2502. This much indeed, was conceded before the High Court. Once we understand the principles on which and the scheme according to which the rates of drawback are to be and are determined as explained earlier, the plea of the appellants, that the amount of drawback determined is nothing more than the excise duty payable on manufacture of blended fibre with polyester fibre, content and that the notification has erred in overlooking the customs duty paid on imported DMT, is wholly untenable. We say this for two reasons. First, the rates prescribed constitute a composite rate of drawback fixed having regard to the liabilities under the as well as the Central Excises & Salt Act. It would not be correct, in principle, to bifurcate the amount so fixed into its two constituents and to say, merely because the amount fixed is equal to one of the duties, that the other has not been taken into account. In theory, the drawback determined could have taken into account both sets of duties in part only. It cannot be said to be merely the customs duty drawback or central excise duty drawback. Though it does appear that the various rates of drawback prescribed under item 2502 are equal to the rates of excise duty payable on the manufacture of the various items referred to therein, the nature of exemption granted is one of relief under both enactments. It is immaterial whether this quantum of relief benefits the assessee in respect of one or other or both of the levies which he has to discharge. The attempt to identify and correlate the rebate granted to the central excise duty paid does not therefore appear to be correct in principle. But, this ground apart, we think there is force in the point made by the learned counsel for the Union of India and accepted by the High Court that at the time when these drawback rates were fixed, the Government of India took into account both the import duty as well as the excise duties which would be payable on the manufacture of the goods the export of which was intended to be encouraged. After examining the condition in the trade, it was found that D.M.T. was easily available in India at that time and that, therefore, it would not be necessary to grant any relief in respect of drawback of customs duty on the imported material because that would only result in assessees 302 attempting unnecessarily to import a raw material which was available in the country itself. In fact, this is the aspect on which the Delhi High Court has laid considerable emphasis. Learned counsel for the appeallants contends that this is factually and that this is clearly shown by the very fact that Government of India itself, in August, 1976, decided to grant exemption in respect of customs duty for the import of D.M.T. He submits that if D.M.T. had been easily available indigenously at that time, the question of granting exemption under section 25 would not have appealed to the Government at all. He, therefore, submits that, in fixing the rate of drawback the Central Government had proceeded on the footing that no import duty would be payable on the DMT and that it will be sufficient to grant relief in respect of Central excise duty alone. We find that, on this aspect, the position is not so simple as submitted by the learned counsel for the appellants. We have already extracted reply of the Government of India to the assessees ' representation which clearly mentions that DMT is available indigenously and that, therefore, no duty in manufacture of polyester yarn was taken into account. This is a statement of fact and there is no material placed before us to contradict the same except for the cor respondence referred to earlier. If one looks carefully at the corres pondence, one will find that it does not support the assessees 'case. For one thing the memorandum submitted by the Association of March 1976 itself proceeds on the footing that DMT is available locally but not sufficient to meet the domestic market requirments. This, clearly, is a reference to something which happened after the present appellants had imported their goods and started the manufacture. Indeed, it is their claim that they were fore runners in this field. Fol lowing up on the assessees ' attempt to obtain imports of DMT and exporting the goods manufactured, other polyester staple fibre manufacturers also proposed to explore the possibilities of such imports and exports and what the letter says would only appear to be that the indigenous supplies of DMT and Glycol may not be enough to meet the domestic market requirements if the business is so expanded. By the time the notification fixing the rates was issued, import duty on DMt had been removed and, therefore, there was no purpose in granting a drawback of customs duty. In these circumstances, the customs duty was rightly not taken into account in fixing the rate of drawback. The letter of the Government dated 9.9.76 is only an answer to the assessees ' prayer that its problem may be solved by granting an exemption for DMT from customs duty and refers only to the position after the notification of exemption. It is not reply to the assessees ' representation in respect of the past which was filed only much later in 1977. The correspondence in the case is, therefore, of no 303 help to the assessees. It may also be pointed out that the assessees appear to have imported DMT not because it was not locally available but only because it was able to get it free of cost from the ICI which was a benefit which other manufacturers, if any, could not have enjoyed. We are, therefore, of opinion that High Court was right in concluding that the rate of drawback in respect of the goods in ques tion was fixed after taking into consideration the aspect of customs duty payable in respect of DMT and that a conscious decision was taken that no relief in this respect should be granted as DMT was available in the Country itself. It cannot,therefore, be said that this is a case where the fixation is contrary to the terms of rule 3 and that the assessees ' application for determination of a rate in his case should be taken as an application under rule 6. Rule 6 is also inapplicable for the reason that an application under rule 6 should be made before the export of the manufactured goods which does not seem to be the case here. The assessees ' reliance on rule 6, therefore, fails. It is true the fixation of rates of drawback on the average basis indicated in rule 3 could work hardship in individual cases. Provi sion for this contingency is made in rule 7. The assessees ' application was rightly treated as one made under this rule and they could, if at all seek relief only if their case fell within its terms. This rule, unfortu nately does not provide for relief in every case where an individual manufacture has to pay customs and excise duty to a larger extent than that determined for his class of goods. Relief is restricted only to cases when the margin of difference is substantial and to the extent specified in rule 7. The High Court has discussed this point at length and demonstrated, by giving necessary figures, how the assessees ' case does not fulfill the term of the rule and this conclusion is not, in fact, challenged by the learned counsel for the appellants. The Government was, therefore, right in rejecting the appellants ' request made under section 7 of the Drawback Rules. For the reasons above mentioned, we agree with the High Court that the order of the Central Government rejecting the assessees 'application was well founded and cannot be interfered with. Learned counsel for the appellants brings to our notice a manual published by the Directorate of Publication. Ministry of Finance, Department of Revenue explaining the scope of the rules as well as two notifications issued by the Government on 9.6.1978 and 1.2.1982 respectively and submits that the present case falls within the terms of these notifica tions. We are constrained to point out that these are notifications issued subsequent to the period of the controversy before us: also this 304 is material which was not placed before the authorities or the High Court. We, therefore, find ourselves unable to permit the assessee to rely upon them at this late stage. However, having regard to the circumstances and the subsequent policy in the above rules, we think it is a fit case in which the Central Government could consider whether, on equitable grounds, the assessee can be given relief in respect of the customs duty on DMT paid by it. In this context, it is worthwhile noting that the assessee saved foreign exchange for the country by importing DMT free of cost. The entire manufactured product has also been exported and earned foreign exchange. The appellants also apparently gave impetus to other manufacturers for the export of blended fibre on large scale. If only the appellants had imported the DMT a few months later, they would have been entitled to exemption from customs duty and would not have suffered the present handicap. They also did obtain the permission of the Government to convert DMT into polyester fibre under customs bond but this could not be implemented for reasons beyond their control. Having regard to all these circumstances, it would seem only just and fair that the assessees should not be denied a benefit of which all other persons have since availed of. We, therefore, think that this is a fit case in which the Government should consider, in case the assessees make an application within two months from today, whether the assessees could be granted the relief prayed for, if only on equitable grounds, and pass appropriate orders on such applications. With the above observations, these appeals are dismissed. But in the circumstances, we make no order as to costs. Y. Lal Appeals dismissed.

The appellants are manufacturers of Polyester fibre yarn. They obtained a contract from the Imperial Chemical Industries, Singapore for the supply of the said yarn and the said concern had agreed to supply to the appellants free of cost the di methyl terephthalate (DMT) D required for the manufacture of Polyester staple fibre yarn. The DMT was required to be converted into polyester fibre, blended with viscose indigenously and shipped to a customer of the ICI in Sri Lanka. The appellant assessees obtained customs clearance permits for import of 392 tons of DMT and also of 178 tons of viscose stable fibre. The appellants also obtained permission to convert the imported DMT into polyester fibre under customs bond. The appellants imported the DMT and paid the customs duty in respect thereof Section 75 of the empowers the Central Government to allow the drawback of the duties of customs chargeable under the Act on any imported materials of a class or description in the manufacture of such goods in accordance with and subject to the rules under sub section (2). There is an identical provision in section 37 of the Central Excises & Salt Act, 1944 enabling grant of draw back of the excise duty paid in relation to such manufacture. The Central Government framed the Customs and Central Excise Duties Drawback Rules 1971 enabling drawback being availed of in relation to customs as well as in relation to duties of central excise. Schedule II to the notification listed the items the export of which entities an assessee to avail of the drawback facility. DMT as such was not included in the notification in respect of which drawback could have been availed of by the assessees. The assessee therefore made an application to the Ministry of Finance on 23.3.1977 requesting that since it had paid customs duty on DMT, it was entitled to its drawback, more 289 particularly when its request for the manufacture of the polyester fibre under customs bond had been declined by the customs authorities. The application filed by the appellants was rejected bY the Central Government on 12.3.1978, though on a representation made by the Members of the Association of manufacturers of Polyester staple fabric a notification had been issued on 2.8.76 under Section 25 of the Customs Act B exempting DMT from Customs duty. The appellant thereupon filed writ petition in the Delhi High Court which was dismissed by the High Court. Hence these appeals. Dismissing the appeals, but recommending to the Central Government to consider the case of the appellants on equitable grounds whether the relief could be granted to it, this Court, HELD: Though Section 75 of the and Section 37 of the Central Excises & Salt Act 1944 empower the Government to provide for the repayment of the customs and excise duties paid by individual manufacturers also, the rules as framed (rule 3 in particular) provide only for a refund of the 'average amount of duty paid on materials, of any particular class or description of goods used for the manufacture of export goods of that class or description by manufacturers generally, except to the extent prescribed under rule 7. [30OA B]. The rules do not envisage a refund of an amount arithmeticaly equal to the customs duty or central excise duty which may have been actually paid by an individual importer cum manufacturer. If that had been the statutory intendment, it would have been simple to provide that in all cases where imported raw materials are fully used in the manufacturers of goods which are exported, the assessee would be entitled to a draw back of the customs or excise duties paid by him for the import or on the manufacture. [300C] There is no controversy that, in this case, the goods exported fall under item 25. R was sought to be contended that the goods fall under sub item 2501, but this is clearly untenable. Sub item 2501 represents a residuary category which will not be attracted to the goods which clearly fall under sub item 2502. The notification prescribes different amounts of drawback under this item depending on the composition of the yarn and the nature of its contents. It specifies an amount of Rs.43.15 per kg. as the relief by way of drawback available against the goods with which we are concerned which fall under clause (b) of item 2502. [30OH 301B] 290 The High Court was right in concluding that the rate of drawback in respect of the goods in question was fixed after taking into consideration the aspect of the customs duty payable in respect of DMT and that a conscious decision was taken that no relief in this respect should be granted as DMT was available in the country itself. It cannot therefore, be said that this is a case where the fixation is contrary to the terms of rule 3, and that the assessee 's application for determination of a rate in his case should be taken as an application under rule 6. [303B) Rule 6 is also inapplicable for the reason that an application under rule 6 should be made before the export of the manufacturer 's goods which does not seem to be the case here. [303C]

ition No. 3727 of 1985 Under Article 32 of the Constitution of India. M.C. Mehta (Petitioner in person). B. Datta, Additional Solicitor General, R.P. Kapur, P.P Singh and Ms. A Subhashini for Respondent Nos. 2 and 3 R.A. Gupta for Respondent No. 87. S.K. Dholakia, Deepak K. Thakur, Mukul Mudgal and P. Narasimhan for Respondent No. 89. Miss Bina Gupta, B.P. Singh, S.R. Srivastava, Krishan Kumar, Vineet Kumar, R. Mohan, Mrs. Shobha Dikshit, A. Sharan, D. Goburdhan, Mrs. G.S. Mishra, Parijat Sinha, R.C. Verma, R.P. Singh, Ranjit Kumar, R.B. Mehrotra, Manoj Swarup & Co. Raj Birbal, J.B.D. & Co. S.S. Khanduja, B.P Singh, E.C. Aggrawala, Khaitan & Co., A.K. Srivastava, Swarup John & Co., Mehta Dave, R.S. Sodhi, Subodh Markandey, T.V.S.N. Chari, Ashok Grover, Narain and P.C. Kapur for the Respondents. B.R.L. Iyenger and Surya Kant for the Intervener. The Judgment of the Court was delivered by VENKATARAMIAH, J. This is a public interest litigation The 284 petitioner who is an active social worker has filed this petition inter alia for the issue of a writ/order/direction in the nature of mandamus to the respondents other than Respondents 1, and 7 to 9 restraining them from letting out the trade effluents into the river Ganga till such time they put up necessary treatment plants for treating the trade effluents in order to arrest the pollution of water in the said river. Respondent 1 is the Union of India, Respondent 7 is the Chairman of the Central Board for Prevention and Control of Pollution, Respondent 8 is the Chairman, Uttar Pradesh Pollution Control Board and Respondent 9 is the Indian Standards Institute. Water is the most important of the elements of nature. River valleys are the credles of civilization from beginning of the world. Aryan civilization grew around the towns and villages on the banks of the river Ganga. Varanasi which is one of the cities on the banks of the river Ganga is considered to be one of the oldest human settlements in the world. It is the popular belief that the river Ganga is the purifier of all but we are now led to the situation that action has to be taken to prevent the pollution of the water of the river Ganga since we have reached a stage that any further pollution of the river water is likely to lead to a catastrophe. There are today large towns inhabited by millions of people on the banks of the river Ganga. There are also large industries on its banks. Sewage of the towns and cities on the banks of the river and the trade effluents of the factories and other industries are continuously being discharged into the river. It is the complaint of the petitioner that neither the Government nor the people are giving adequate attention to stop the pollution of the river Ganga. Steps have, therefore, to be taken for the purpose of protecting the cleanliness of the stream in the river Ganga, which is in fact the life sustainer of a large part of the northern India. When this petition came up for preliminary hearing, the Court directed the issue of notice under order 1 rule 8 of the Code of Civil Procedure treating this case as a representative action by publishing the gist of the petition in the newspapers in circulation in northern India and calling upon all the industrialists and the municipal corporations and the town municipal councils having jurisdiction over the areas through which the river Ganga flows to appear before the Court and to show cause as to why directions should not be issued to them as prayed by the petitioner asking them not to allow the trade effluents and the sewage into the river Ganga without appropriately treating them before discharging them into the river. Pursuant to the said notice a large number of industrialists and local bodies have entered 285 appearance before the Court. Some of them have filed counteraffidavits explaining the steps taken by them for treating the trade effluents before discharging t hem into the river. When the above case came up for consideration before the Court on the last date of hearing we directed that the case against the tanneries at Jajmau area near Kanpur would be taken up for hearing first. Respondents 14 to 87 and 89 are the tanneries near Kanpur. Of them respondents 16 to 32, 34 to 36, 43, 47, 51, 52, 54, 55, 57, 58, 60 to 62, 64, 67 to 69, 72, 74, 75, 77 to 82, 85, 87 and 89 are represented by counsel. The remaining tanneries did not appear before the Court at the time of the hearing nor were they represented by any counsel. Before proceeding to consider the facts of this case it is necessary to state a few words about the importance of and need for protecting our environment. Article 48 A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51 A of the Constitution imposes as one of the fundamental duties on every citizen the duty to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. The proclamation adopted by the United Nations Conference on the Human Environment which took place at Stockholm from 5th to 16th of June, 1972 and in which the Indian delegation led by the Prime Minister of India took a leading role runs thus: "1. Man is both creature and moulder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man 's environment, the natural and the man made, are essential to his well being and to the enjoyment of basic human rights even the right to life itself. The protection and improvement of the human environment is a major issue which affects the well being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all Governments. 286 3. Man has constantly to sum up experience and go on discovering, inventing, creating and advancing. In our time man 's capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance the quality of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment. We see around us growing evidence of man made harm in many regions of the earth; dangerous levels of pollution in water, air, earth and living beings; major and undesirable disturbances to the ecological balance of the biosphere; destruction and depletion of irreplaceable resources; and gross deficiencies harmful to the physical, mental and social health of man, in the man made environment; particularly in the living and working environment. A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes. There are broad vistas for the enhancement of environmental quality and the creation of a good life. What is needed is an enthusiastic but calm state of mind and intense but orderly work. For the purpose of attaining freedom in the world of nature, man must use knowledge to build in collaboration with nature a better environment. To defend and improve the human environment for present and future generations has become an imperative goal for mankind a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of world wide economic and social development. To achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts. Individuals in all walks of life as well as organizations in many fields, by their values and the sum of their actions, will shape the world environ 287 ment of the future. Local and National Governments will bear the greatest burden for large scale environmental policy and action within their jurisdictions. International co operation is also needed in order to raise resources to support the developing countries carrying out their responsibilities in this field. A growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, will require extensive co operation among nations and action by international organizations in the common interest. The Conference calls upon the Governments and peoples to exert common efforts for the preservation and improvement of the human environment, for the benefit of all the people and for their posterity. " The proclamation also contained certain common convictions of the participant nations and made certain recommendations on development and environment. The common convictions stated include the conviction that the discharge of toxic substances or of other substances and the release of heat in such quantities or concentrations as to exceed the capacity of environment to render them harmless must be halted in order to ensure that serious or irreversible damage is not inflicted upon eco systems, that States shall take all possible steps to prevent pollution of the seas so that hazards to human health, harm to living resources and marine life, damage to the amenities or interference with other legitimate uses of seas is avoided that the environmental policies would enhance and not adversely affect the present and future development potential of development countries, that science and technology as part of their contributions to economic and social development must be applied with identification, avoidance and control of environmental risks and the solution of environmental problems and for the common good of mankind, that States have the responsibility to ensure that activities of exploitation of their own resources within their jurisdiction are controlled and do not cause damage to the environment of other States or areas beyond the limit of national jurisdiction, that it will be essential in all cases to consider the systems of values prevailing in each country and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate 288 and of unwarranted social cost and that man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. These are only some of the statements of principles proclaimed by the Stockholm Conference. (Vide Lal 's Commentaries on Water and Air Pollution Laws (2nd Edn. ) pages 6 7 Realising the importance of the prevention and control of pollution of water for human existence Parliament has passed the (Act 6 of 1974) (hereinafter referred to as 'the Act ') to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of 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. The Act was passed pursuant to resolutions passed by all the Houses of Legislatures of the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal under clause (1) of Article 252 of the Constitution to the effect that the prevention and control of water pollution should be regulated in those States by Parliamentary legislation. The Act has been since adopted by the State of Uttar Pradesh also by resolutions passed in that behalf by the Houses of Legislature of the said State in the year 1975 (vide notification No. 897/ix 3 l00 74 dated 3.2.1975). Section 24 of the Act prohibits the use of any stream or well for disposal of polluting matter etc. It provides that subject to the provisions of the said section no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter whether directly or indirectly into any stream or well or no person shall knowingly cause or permit to enter into any stream any other matter which may tend either directly or in combination with similar matters to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences. The expression stream is defined by section 2(j) of the Act as including river, water course whether flowing or for the time being dry, inland water whether natural or artificial, sub terranean waters, sea or tidal waters to such extent or as the case may be to such point as the State Government may by notification in the official Gazette, 289 specify in that behalf. Under the Act it is permissible to establish a Central Board and the State Boards. The functions of the Central Board and the State Boards are described in section 16 and 17 respectively. One of the functions of the State Board is to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents, and to review plans, specifications or other data relating to plants set up for the treatment of water, works for the purification and the system for the disposal of sewage or trade effluents. '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. The State Board is also entrusted with the work of laying 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 is also entrusted with the power of making application to courts for restraining apprehended pollution of water in streams or wells. Notwithstanding the comprehensive provisions contained in the Act no effective steps appear to have been taken by the State Board so far to prevent the discharge of effluents of the Jajmau near Kanpur to the river Ganga. The fact that such effluents are being first discharged into the municipal sewerage does not absolve the tanneries from being proceeded against under the provisions of the law in force since ultimately the effluents reach the river Ganga from the sewerage system of the municipality. In addition to the above Act, Parliament has also passed the Environment (Protection) Act, 1986 (29 of 1986) which has been brought into force throughout India with effect from November 19, 1986. Section 3 of this Act confers power on the Central Government to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. 'Environment ' includes water, air and land and the inter relationship which exists among and between water, air and land and human beings, other living creatures, plants, micro organism and property. (Vide section 2(a) of the Environment (Protection) Act, 1986). Under Section 3(2)(iv) of the said Act the Central Government may lay down standards for emission or discharge of environmental pollutants from various sources whatsoever. Notwithstanding anything contained in any other law but subject to the provisions of the Environment (Protection) Act, 1986, the Central Government may under section S of the 290 Act, in the exercise of its powers and performance of its functions under that Act issue directions in writing to any person, officer or authority and such authority is bound to comply with such directions. The power to issue directions under the said section includes the power to direct the closure, prohibition or regulation of any industry, operation or process or stoppage or regulation of the supply of electricity or water or any other service. Section 9 of the said Act imposes a duty on every person to take steps to prevent or mitigate the environmental pollution. Section 15 of the said Act contains provisions relating to penalties that may be imposed for the contravention of any of the provisions of the said Act or directions issued thereunder. It is to be noticed that not much has been done even under this Act by the Central Government to stop the grave public nuisance caused by the tanneries at Jajmau, Kanpur. All the tanneries at Jajmau, Kanpur which were represented by counsel, except respondent Nos. 87 and 89 have relied upon a common counter affidavit filed by them and their case is argued by Shri S.K. Dholakia and Shri Mukul Mudgal. Respondent No. 87 is represented by Shri R.P. Gupta and respondent No. 89 is represented by Shri P. Narasimhan. There is not much dispute on the question that the discharge of the trade effluents from these tanneries into the river Ganga has been causing considerable damage to the life of the people who use the water of the river Ganga and also to the aquatic life in the river. The tanneries at Jajmau in Kanpur have themselves formed an association called Jajmau Tanners Pollution Control Association with the objects among others: (1) To establish, equip and maintain laboratories, workshop, institutes, organisations and factories for conducting and carrying on p experiments and to provide funds for the main objects of the Company. (2) To procure and import wherever necessary the chemicals etc. for the purpose of pollution control in tanning industries. (3) To set up and maintain common effluent treatment plant for member tanners in and around Jajmau. (4) To make periodical charges on members for the effluent treatment based on the benefit he/it derives from time to time to meet the common expenses for maintenance, replacement incurred towards effluent treatment. 291 In the Fiscal Plan for setting up common Effluent Treatment Plants for Indian Tanning Industry (March, 1986) prepared by the committee constituted by the Directorate General of Technical Development (Government of India) it is observed thus: "Leather industry is one of the three major industries besides paper and textiles consuming large quantities of water for processing of hides and skins into leather Naturally most of the water used is discharged as wastewater. The wastewater contains putrescible organic and toxic inorganic materials which when discharged as such will deplete dissolved oxygen content of the receiving water courses resulting in the death of all acquatic life and emanating foul odour. Disposal of these untreated effluents on to land will pollute the ground water resources. Discharging of these effluents without treatment into public sewers results in the choking of sewers. Realising the importance of keeping the environment clean, the Government of India has enacted the Water Pollution Control Act (Central Act 6 of 1974) and almost all the State Government have adopted the Act and implementing the Act by forming the Pollution Control Boards in their respective states. The Pollution Control Boards have been insisting that all industries have to treat their effluents to the prescribed standards and leather industry is no exception to this rule. Tanneries situated all over the country have been faced with the problem of treating their effluents. Seized with the problem of finding out a solution, the Central Leather Research Institute, Madras has brought out a Management Investment Report (CLRI Core Committee Report) as early as 1976 which contains 14 flow sheets indicating the treatment technologies for various types of leather processing techniques, quantity of effluents etc. including the cost of treatment. " A monograph entitled 'Treatment Technology of Tannery Effluents ' prepared by section Rajamani, W. Madavakrishna and G. Thyagarajan of the Central Leather Research Institute, Adyar, Madras states that generally the wastewater from beam house process namely soaking, liming, deliming etc. are highly alkaline containing decomposing organic matter, hair, lime sulphide etc. and is nearly ten times as strong as domestic sewage and refers to the various methods 292 by which the effluents of the tanneries could be treated before their discharge into any river. They recommend four types of wastewater treatment technology so far as the tanneries are concerned 1) segregation or mixing of suitable sectional waste water from different processes; (2) primary treatment; (3) secondary biological treatment; and (4) disposal of solid wastes from the treatment system. The said monograph explains the work at the primary treatment unit thus: "The primary treatment units principally comprise of coarse screens, two numbers of settling tanks and sludge drying beds. The settling tank, each of about 1 2 days capacity acts as an equalisation cum setting tank as well. As an alternative, clarifier can be provided in place of settling tank for treating higher capacity effluents. Depending on the quality of composite effluent, addition of neutralising chemicals like lime, alum, ferric chloride etc. would be required for effective precipitation of chromium and removal of suspended solids in the sedimentation process. The sludge from the settling tanks and clarifier is removed and dried on sludge drying beds made up of filtering media gravel, sand and supporting masonary structure. For operational reasons, sludge drying beds are divided into four or more compartments. The dried sludge from the sludge drying beds can be used as manure or for landfill if it is vegetable tannery waste. In case of chrome tannery waste, the dried sludge should be buried or disposed off suitably as per the directions of regulatory agencies and local bodies. " The secondary treatment units are explained in the said monograph thus: "The pre treated effluent needs suitable secondary biological treatment to meet the pollution control standards. The general biological treatment units which can be adopted under Indian conditions are anaerobic lagoon, aerated lagoon, extended aeration systems like oxidation ditch, activated sludge process etc. Anaerobic lagoon is a simple anaerobic treatment unit suitable for effluents with high BOD like vegetable tannery (Raw to E. 1) wastewater. In depth of the lagoon varies from 3 5 metres and detention time from l0 20 days 293 depending upon the pollutional load and atmospheric conditions. This is an open type digester with no provision for gas collection. No power is required for this system and its performance is proved to be efficient in South Indian conditions. Anaerobic contract filter is also an anaerobic treatment unit. This is a closed tank type unit made up of R.C.C. Or masonry structure filled up with media like broken granite stones etc. This unit occupies less land area since the detention time is about 1 2 days only. This system is reported to be efficient for treating high organic load, but the capital cost would be comparatively high. Aerated lagoon is a shallow water tight pond of about 2 3 metres depth with a detention time of about 4 6 days. Fixed or floating type surface aerators are provided to transfer oxygen from atmospheric air to the effluent for biological treatment using micro organisms under aerobic conditions. The system is suitable for treating low organic load. Extended aeration systems like 'activated sludge process ' and 'oxidation ditch ' are the improved aerobic biological treatment systems occupying less land area since the detention time/capacity would be only about 1 2 days. These units require secondary settling tank and sludge recirculation arrangements. Extended aeration systems are proved to be efficient. The operational and maintenance cost is comparatively high for smaller installations, but economical for treatment capacity of 150 M3 and above per day. " A study of the conditions prevailing at Jajmau, Kanpur was made by the Sub Committee on Effluent Disposal constituted by the Development Council for Leather and Leather Goods Industries along with the various tanneries situated in some other parts of India and in its report submitted in April, 1984, the Sub Committee has observed in the case of the tanneries at Jajmau, Kanpur thus: "In the case of Jajmau, Kanpur, the committee visited few tanneries where the effort has been made to have primary treatment of the effluent before it is dis 294 charged to the common drain/the river Ganges. There are 60 tanneries in Jajmau which will be covered under joint effluent disposal. The total production is to the tune of 12000 hides with a total discharge of 5 million litres per day. The State Government has taken appropriate steps in preparation of the feasibility report under the guidance of U.P. Pollution Control Board. This proposal was also supported by Central Pollution Board, Delhi by sharing the total fee of Rs.80,000 to be paid to the Public Health Engineering Consultancy, Bombay which has prepared the report with the help of IIT, Bombay. The report suggests that each tannery should make arrangement for the primary treatment of their effluent and then it will be discharged into common treatment plant. " There is a reference to the Jajmau tanneries in 'an Action Plan for Prevention of Pollution of the Ganga ' prepared by the Department of Environment, Government of India in the year 1985, which is as under: "1.1 The Ganga drains eight States Himachal Pradesh, Punjab, Haryana, Uttar Pradesh, Rajasthan, Madhya Pradesh, Bihar, West Bengal and the Union Territory of Delhi. It is also the most important river of India and has served as the cradle of Indian Civilization. Several major pilgrim centres have existed on its banks for centuries and millions of people come to bathe in the river during religious festivals, especially the Kumbhs of Haridwar and Allahabad. Many towns on the Ganga, e.g., Kanpur. Allahabad, Patna and Calcutta have very large populations and the river also serves as the source of water supply for these towns. The Ganga is, however, being grossly polluted especially near the towns situated on its banks. Urgent steps need to be taken to prevent this pollution and restore the purity of river water. Sources of Pollution 2.1 The main sources of pollution of the Ganga are the following: Urban liquid waste (Sewage, storm drainage mixed with sewage, human, cattle and kitchen wastes carried by drains etc. ) 295 Industrial liquid waste A Surface run off of cultivated land where cultivators use chemical fertilisers, pesticides, insecticides and such manures the mixing of which may make the river water unsafe for drinking and bathing. Surface run off from areas on which urban solid wastes are dumped Surface run off from areas on which industrial solid wastes are dumped . . . . . . . . 4.4.12 Effluent from industries: Under the laws of the land the responsibilty for treatment of the industrial effluents is that of the industry. While the concept of 'Strict Liability ' should be adhered to in some cases, circumstances may require that plans for sewerage and treatment systems should consider industrial effluents as well. Clusters of small industries located in a contiguous area near the river bank and causing direct pollution to the river such as the tanneries in Jajmau in Kanpur is a case in point. In some cases, waste waters from some industrial units may have already been connected to the city sewer and, therefore, merit treatment along with the sewage in the sewage treatment plant. It may also be necessary in some crowded areas to accept wastewaters of industries in a city sewer to be fed to the treatment plant, provided the industrial waste is free from heavy metals, toxic chemicals and is not abnormally acidic or alkaline. In such circumstances, scheme proposals have to carefully examine the case of integrating or segregating industrial wastes for purposes of conveyance and treatment as also the possibilities for appointment of capital and operating costs between the city authorities and the industries concerned." (emphasis added) Appearing on behalf of the Department of Environment, (Government of India, Shri B. Dutta the learned Ist Additional H 296 Solicitor General of India placed before us a memorandum explaining the existing situation at Jajmau area of Kanpur. It reads thus: "Status regarding construction of treatment facilities for treatment of wastes from Tanneries in Jajmau area of Kanpur. About 70 small, medium and large tanneries are located in Jajmau area of Kanpur. On an average they generate 4.5 MLD of waste water. Under the existing laws, tanneries like other industries are expected to provide treatment of their effluents to different standards depending on whether these are discharged into stream or land. It is the responsibility of the industry concerned to ensure that the quality of the wastewater conforms to the standards laid down 3. From time to time, tanneries of Kanpur have re presented that due to lack of physical facilities, technical knowhow and funds, it has not been possible to install adequate treatment facilities. Jajmau is an environmentally degraded area of Kanpur. The location of numerous tanneries in the area is a major cause of the degradation. Civic facilities for water supply, sanitation, solid waste removal etc. are also highly inadequate. Because the area abuts the Ganga river, its pollution affects the river quality as well. Accordingly, under the Ganga Action Plan an integrated sanitation project is being taken up for the Jajmau area. Some aspects of the Plan relate to tannery wastes as follows: (i) The medium and large units will have to up pre treatment facilities to ensure that the standard of sewage discharged into the municipal sewer also conform to the standards laid down. Scientific institutions such as Central Leather Research Institute are looking into the possibility of pretreatment including recovery of materials such as chromium. The setting up of pre treatment facility in the respective units will be the responsibility of the individual units concerned. The Ganga Project Directorate as part of the Ganga Action Plan, will play a facilitative role to 297 demonstrate application of modern technologies for cost A effective pre treatment which the small tanners can afford. (ii) Since the wastes will be ultimately discharged into the river, the waste will have to further conform to the standards laid down for discharge into the stream. For this purpose, it will be necessary to treat the waste further and as part of the Ganga Action Plan a treatment plant will be constructed for this purpose utilising some advanced processes. It is also proposed to combine the domestic waste with the industrial waste conveyed through the industrial sewer which will then be treated in a treatment plant (iii) It is estimated that cost of this proposed sewage treatment facility which will treat the waste from the domestic sources and the pretreated wastes from tanneries will be about Rs.2.5 crores. It will have a capacity of 25 MLD and the first demonstration module of about 5 MLD is expected to be installed in early 1988 89. Necessary work for designing of the plant has already been initiated and the infrastructure facilities such as availability of land, soil testing etc. have also been ensured. Tender specifications are being provided and it is expected that the tenders will be floated sometime in October 87. It is expected that in the combined treatment facility of 25 MLD, about 20 MLD will be from the domestic sources and 5 MLD will be from the tanneries after pretreatment in the region. " In the counter affidavit filed on behalf of the Hindustan Chambers of Commerce, of which 43 respondents are members it is admitted that the tanneries discharge their trade effluents into the sewage nullah which leads to the municipal sewage plant before they are thrown into the river Ganga. It is not disputed by any of the respondents that the water in the river Ganga is being polluted grossly by the effluent discharged by the tanneries. We are informed that six of the tanneries have already set up the primary treatment plants for carrying out the pre treatment of the effluent before it is discharged into the municipal Sewerage which ultimately leads to the river Ganga. About 14 of the tanneries are stated to be engaged in the construction of the primary treatment plants. It is pleaded on behalf of the rest of the tanneries who are the members of the Hindustan Chambers of Commerce and three other tanneries represented by Shir Mukul Mudgal that if some time is given to them to establish the pre treatment plants they would H 298 do so. lt is, however, submitted by all of them that it would not be possible for them to have the secondary system for treating wastewater as that would involve enormous expenditure which the tanneries themselves would not be able to meet. It is true that it may not be possible for the tanneries to establish immediately the secondary system plant in view of the large expenditure involved but having regard to the adverse effect the effluents are having on the river water, the tanneries at Jajmau, Kanpur should, at least set up of the primary treatment plants and that is the minimum which the tanneries should do in the circumstances of the case. In the counter affidavit filed on behalf of the Hindustan Chamber of Commerce it is seen that the cost of pretreatment plant for a 'A ' class tannery is Rs.3,68,000, the cost of the plant for a 'B ' class tannery is Rs.2,30,000 and the cost of the plant for 'C ' class tannery is Rs.50,000 This cost does not appear to be excessive. The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effect on the public at large which is likely to ensue by the discharging of the trade effluents from the tannery to the river Ganga would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure. Moreover, the tanneries involved in these cases are not taken by surprise. For several years they are being asked to take necessary steps to prevent the flow of untreated wastewater from their factories into the river. Some of them have already complied with the demand. It should be remembered that the effluent discharged from a tannery is ten times noxious when compared with the domestic sewage water which flows into the river from any urban areas on its banks. We feel that the tanneries at Jajmau, Kanpur cannot be allowed to continue to carry on the industrial activity unless they take steps to establish primary treatment plants. In cases of this nature this Court may issue appropriate directions if it finds that the public nuisance or other wrongful act affecting or likely to affect the public is being committed and the statutory authorities who are charged with the duty to prevent it are not taking adequate steps to rectify the grievance. For every breach of a right there should be a remedy. It is unfortunate that a number of tanneries at Jajmau even though they are aware of these proceedings have not cared even to enter appearance in this Court to express their willingness to take appropriate steps to establish the pretreatment plants. So far as they are concerned an order directing them to stop working their tanneries should be passed. 299 We accordingly direct M/s. Delight Tannery (respondent 14), M/s. Hindustan Tannery (respondent 15), M/s. Primer Allarmin Tannery (respondent 33), M/s. Mahaboob Tannery (respondent 37), M/s. Popular Tannery (respondent 38), M/s. Standard Tannery (respondent 39), M/s. Vikash Tarmery (respondent 40), M/s. New Golden Tannery (respondent 41), M/s. D.D. Tannery (respondent 42), M/s. Himalaya Tannery (respondent 44), M/s. Commercial Industry (respondent 45), M/s. Madina Tannery (respondent 46), M/s. Kanpur Tannery (respondent 48), M/s. New Jab Tannery (respondent 49), M/s. Famous Tannery (respondent 50), M/s. Glaxy Tannery (respondent 53), M/s. Bengal Tannery (respondent 56), M/s. Chhangal Tannery (respondent 59), M/s. Nadari Tannery (respondent 63), M/s. Jajmau Tanners (respondent 65), M/s. International Tanning Industry (respondent 66), M/s. Poorwanchal Tanning Industry (respondent 70), M/s. Navratan Tanning (respondent 71), M/s. Haroou Tannery (respondent 73), M/s. Himalaya Tanners (respondent 76), M/s. R.A. Traders (respondent 79, M/s. Alam Tannery (respondent 83), M/s. G.T. Tannery (respondent 84), and M/s. Awadh Tannery (respondent 86) to stop the running of their tanneries and also not to let out trade effluents from their tanneries either directly or indirectly into the river Ganga without subjecting the trade effluents to a pretreatment process by setting up primary treatment plants as approved by the State Board (respondent 8) with effect from 1. l0.1987. M/s. Indian Tanning Industry (respondent 30), the U.P. Tannery (respondent 19), M/s. Zaz Tannery (respondent 28), M/s. Super Tannery India Ltd. (respondent 21), M/s. Shewan Tannery (respondent 20), M/s. Pioneer Tannery (respondent 23), and M/s. M.K.J. Corporation (respondent 89) who have already put up the primary treatment plants may continue to carry on production in their factories subject to the condition that they should continue to keep the primary treatment plants established by them in sound working order. Shri S.K. Dholakia, learned counsel for the other tanneries who are members of the Hindustan Chambers of Commerce and the other tanneries who have entered appearance through Shri Mukul Mudgal submits that they will establish primary treatment plants within six months and he further submits that in the event of their not completing the construction of the primary treatment plants as approved by the State Board (respondent 8) and bringing them into operation within the period of six months the said tanneries will stop carrying on their business. We record the statement made by the learned counsel and grant them time till 31.3.1988 to set up the primary treatment plants. If 300 any of these tanneries does not set up a primary treatment plant within 31.3.1988 it is directed to stop its business with effect from 1.4.1988. We issue a direction to the Central Government, the Uttar Pradesh Board, established under the provisions of the and the District Magistrate, Kanpur to enforce our order faithfully. Copies of this order shall be cent to them for information The case is adjourned to 27th October, 1987 to consider the case against the municipal bodies in the State of Uttar Pradesh having jurisdiction over the areas through which the river Ganga is passing. SINGH, J. I respectfully agree with every word what my learned brother Venkataramiah, J. has stated in the proposed order and the directions issued by that order. However, I wish to add few words. The river Ganga is one of the greatest rivers of the world, although its entire course is only 1560 miles from its source in Himalaya to the sea. There are many rivers larger in shape and longer in size but no river in the world has been so great as the Ganga. It is great because to millions of people since centuries it is the most sacred river. It is called "Sursari" river of the Gods, 'Patitpawani ' purifier of all sins and 'Ganga Ma ' Mother Ganges. To millions of Hindus, it is the most sacred, most venerated river on earth. According the Hindu belief and mythology to bathe in it, is to wash away guilt, to drink the water, having bathed in it, and to carry it away in containers for those who may have not had the good fortune to make the pilgrimage, to it, is meritorious. To be cremated on its banks, or to die there, and to have one 's ashes cast on its waters, is the wish of every Hindu. Many P saints and sages have persued their quest for knowledge and enlightenment on the banks of the river Ganga. Its water has not only purified the body and soul of the millions but it has given fertile land to the country in Uttar Pradesh and Bihar. Ganga has been used as means of water transport for trade and commerce. The Indian civilization of the Northern India thrived in the plains of Ganga and most of the important towns and places of pilgrimage are situated on its banks. The river Ganga has been part of Hindu civilization. Jawahar Lal Nehru who did not consider himself a devout Hindu gave expression to his feelings for the Ganga that is to be found in his Will and Testament, a short extract from which is as under: "My desire to have a handful of my ashes thrown into the 301 Ganga at Allahabad has no religious significance, so far as I am concerned. I have no religious sentiment in the matter. I have been attached to the Ganga and the Jamuna rivers in Allahabad ever since my childhood and, as I have grown older, this attachment has also grown. I have watched their varying moods as the seasons changed, and have often thought of the history and myth and tradition and song and story that have become attached to them through the long ages and become part of their flowing waters. The Ganga, especially, as the river of India, beloved of her people, round which are intertwined her racial memories, her hopes and fears, her songs of triumph, her victories and her defeats. She has been a symbol of India 's age long culture and civilization, ever changing, ever flowing, and yet ever the same Ganga. She reminds me of the snow covered peaks and the deep valleys of the Himalayas, which I have loved so much, and of the rich and vast plains below, where my life and work have been cast. " The river Ganga is the life line of millions of people of India, Indian culture and civilization has grown around it. This great river drains of eight States of India, Himachal Pradesh, Punjab, Haryana, Uttar Pradesh, Rajasthan, Madhya Pradesh, Bihar and West Bengal. The Ganga has always been an integral part of the nation 's history, culture and environment. It has been the source of sustenance of the millions of people who have lived on its banks from time immemorial. Millions of our people bathe in the Ganga drink its water under an abiding faith and belief to purify themselves and to achieve moksha release from the cycle of birth and death. It is tragic that the Ganga, which has since time immemorial, purified the people is being polluted by man in numerous ways, by dumping of garbage, throwing carcass of dead animals and discharge of effluents. Scientific investigations and survey reports have shown that the Ganga which serves one third of the India 's population is polluted by the discharge of municipal sewage and the industrial effluents in the river. The pollution of the river Ganga is affecting the life, health, and ecology of the Indo Gangetic Plain. The Government as well as Parliament both have taken a number of steps to control the water pollution, but nothing substantial has been achieved. I need not refer to those steps as my learned brother has referred to them in detail. No law or authority can succeed in removing the pollution unless the people cooperate. To my mind, it is the sacred duty of all those who reside or carry on business around 302 the river Ganga to ensure the purity of Ganga. Tanneries at Jajmau area near Kanpur have been polluting the Ganga in a big way. This Court issued notices to them but in spite of notice many industrialists have not bothered either to respond to the notice or to take elementary steps for the treatment of industrial effluent before discharging the same into the river. We are therefore issuing the directions for the closure of those tanneries which have failed to take minimum steps required for the primary treatment of industrial effluent. We are conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people.

The petitioner, an active social worker, filed a petition before this Court complaining that neither the Government nor the people were giving adequate attention to stop the pollution of the river Ganga and it was, therefore, necessary to take steps for the purpose of protecting the cleanliness of the stream in the river Ganga which was in fact the life sustainer of a large part of the northern India, and sought the issue of a writ/order/direction in the nature of mandamus to the respondents other than respondents Nos. 1 and 7 to 9 restraining them from letting out the trade effluents into the river Ganga till such time they put necessary treatment plants for treating the trade effluents in order to arrest the pollution of water in the said river. This Court directed issue of notice under order 1 Rule 8 of the 280 Code of Civil Procedure treating the case as a representative action by publishing the gist of the petition in the newspapers in circulation in northern India and calling upon industrialists and the municipal corporations and town municipal councils having jurisdiction over the areas through which the river Ganga flows to appear before the Court to show cause as to why direction should not be issued as prayed for by the petitioner asking them not to allow trade effluents and sewage into the river Ganga without appropriately treating them before discharging them into the river. Pursuant to the aforesaid notice a large number of industrialists and legal bodies entered appearance. Some filed counter affidavits ex plaining the steps taken by them for treating trade effluents before discharging them into the river. The case against the tanneries at Jajmau, Kanpur, was first taken up by the Court for consideration. Forty three respondents admitted in their counter affidavits that the tanneries discharged their trade effluents into the sewage nallah which led to the municipal sewage plant before they were thrown into the river Ganga. The Court was informed that six of the tanneries had already set up and fourteen were engaged in construction of primary treatment plants, and some others pleaded for time to do so. It was submitted on behalf of the respondents that it would not be possible for them to have secondary system for treating waste water in view of the enormous expenditure involved, which the tanneries would not be able to meet. Some of the tanneries neither appeared nor were represented by counsel in this Court. Issuing interim directions, this Court, ^ HELD: 1.1 Article 48 A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51 A of the Constitution imposes as one of the fundamental duties on every citizen the duty to protect and improve the natural environment including forests, lakes, rivers and wild life and to have campassion for living creatures. [285C D] Realising the importance of the prevention and control of pollution of water for human existence, Parliament passed the , to provide for the 281 prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid of 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 Sections 16 and 17 of the Act describes the functions of the Central and the State Board. The Act was adopted by the State of Uttar Pradesh. In addition, Parliament also passed the Environmental (Prevention) Act, 1986 which came into effect from November, 1986 throughout India. [288B D; 289A, F] 1.2 Notwithstanding the comprehensive provisions contained in the Act of 1974, no effective steps appear to have been taken by the State Board so far to prevent the discharge of effluents of the Jajmau near Kanpur to the river Ganga. The fact that such effluents are being first discharged into the municipal sewerage does not absolve the tanneries from being proceeded against under the provisions of the law in force since ultimately the effluents reach the river Ganga from the sewerage system of the municipality. Not much has been done even under the Act of 1986 by the Central Government to stop the grave public nuisance caused by the tanneries at Jajmau, Kanpur. [289 E; 290C] 1.3 There is no doubt that the discharge of the trade effluents from the tanneries into the river Ganga has been causing considerable damage to the life of the people who use the water of the river and also to the aquatic life in the river. The effluents discharged from a tannery is 10 times noxious when compared with the domestic sewage which flows into the river from any urban area on its banks. The tanneries at Jajmau, Kanpur cannot be allowed to continue to carry on the industrial activity unless they take steps to establish primary treatment plant. [298E F] No doubt it may not be possible for the tanneries to establish immediately the secondary system plant in view of the large expenses involved, but having regard to the adverse effect the effluents are having on the river water, the tanneries at Jajmau, Kanpur, should at least set up primary treatment plants, which is the minimum that the tanneries should do in the circumstances of the case. The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery, which cannot set up a primary treatment plant, cannot be permitted to continue to be in existence for the adverse 282 effect on the public at large which is likely to ensue by the discharging of the trade effluents from the tannery to the river Ganga would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure. Moreover, the tanneries involved in this case are not taken by surprise. For several years they are being asked to take necessary steps to prevent the flow of untreated water from their factories into the river. Some of them have already complied with the demand. [298C E] 1.4 In cases of this nature this Court may issue appropriate directions if it finds that the public nuisance or other wrongful act affecting or likely to affect public is being committed and the statutory authorities which are charged with the duty to prevent it are not taking adequate steps to rectify the grivevance. For every breach of right there should be a remedy. [298F G] It is unfortunate that a number of tanneries at Jajmau even though they are aware of these proceedings have not cared even to enter appearance in this Court to express their willingness to take appropriate steps to establish the pretreatment plants. So far as they are concerned, they are directed to stop running of their tanneries and also not to let out trade effluents either directly or indirectly into the river Ganga without subjecting the trade effluents to a pretreatment process by setting up primary treatment plants as approved by the State Board with effect from October 1, 1987. Time granted till 31.3.1988 to other tanneries who are members of the Hindustan Chambers of Commerce and the other tanneries to establish primary treatment plants within six months. If any of these tanneries does not set up a primary treatment plant within 31.3.1988 such a tannery will stop business with effect from 1.4.1988. [298G H; 299D, G H; 300A] Such of those tanneries who have already put up primary treatment plants may continue running provided they keep the plants in sound working order.[299Fl The Central Government, the Uttar Pradesh Board, established under the provisions of the and the District Magistrate, Kanpur are directed to enforce this order. [30OB l Per Singh, J: (supplementing) The pollution of the river Ganga is affecting the life, health and 283 ecology of the Indo Gangetic Plain. The (Government as well as Parliament both have taken a number of steps to control the water pollution, but nothing substantial has been achieved. No law or authority can succeed in removing the pollution unless the people cooperate. It is the sacred duty of all those who reside or carry on business around the river Ganga to ensure the purity of Ganga. Tanneries at Jajmau area near Kanpur have been polluting the Ganga in a big way. Though notices were issued many industrialists have not bothered either to respond to the notice or to take elementary steps for the treatment of industrial effluent before discharging the same into the river. Those tanneries which have failed to take minimum steps required for the primary treatment of industrial effluent are directed to be closed. No doubt closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people. [301G H; 302A B]

ivil Appeal No. 2335 of 1989. From Order No. 766/88 C dated 24.10.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. B/847/85 C. V. Sreedharan, N.M. Poppli and V.J. Francis for the Appel lant. Ashok H. Desai, Solicitor General, Ms. Randharangaswami and P. Parmeswaran for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ. This is an appeal from the order of the Customs, Excise & Gold (Control) Appellate Tribunal (hereinafter called 'the CEGAT ') dated 24th Octo ber, 1988 under section 35 L(b) of the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act '). The appeal which the CEGAT disposed of had been filed by the Collector of Central Excise, Guntur against the order of the Collector of Central Excise (Appeals), Madras dated 6th February, 1985. The short question which arises in this appeal is whether the lamination of duty paid kraft paper with polyethylene resulting in 'polyethylene laminated kraft paper ' would amount to 'manufacture ' and excisable under law or not. It appears that the Collector (Appeals) in his order following his earlier order in respect of the appellant herein had taken the view that polyethylene laminated or coated kraft paper obtained from duty paid kraft paper is not liable to duty again. 632 The Collector of Central Excise, (Appeals), Madras had followed the decision of the Division Bench of Andhra Pra desh High Court in the case of Standard Packagings, Nellore vs Union of India, for reaching the aforesaid finding and held that the appellant would be eligible to claim refund of duty paid by them in this re gard. Lamination, indisputably by the well settled principles of excise law, amounts to 'manufacture '. This question, in our opinion, is settled by the decisions of this Court. Reference may be made to the decision of this Court in Empire Industries Ltd. & Ors. vs Union of India & Ors. , ; Reference may also be made to the decision of this Court in Collector of Central Excise, Kanpur vs Krishna Carbon Paper Co., We are, there fore, of the opinion that by process of lamination of kraft paper with polyethylene different goods come into being. Laminated kraft paper is distinct, separate and different goods known in the market as such from the kraft paper. Counsel for the appellant sought to contend that the kraft paper was duty paid goods and there was no change in the essential characteristic or the user of the paper after lamination. The fact that the duty has been paid on the kraft paper is irrelevant for consideration of the issue before us. If duty has been paid, then benefit of credit for the duty paid would be available to the appellant under rule 56 A of the Central Excise Rules, 1944. The further contention urged on behalf of the appellant that the goods belong to the same entry is also not relevant because even if the goods belong to the same entry, the goods are different identifiable goods, known as such in the market. If that is so, the manufacture occurs and if manu facture takes places, it is dutiable. 'Manufacture ' is bringing into being goods as known in the excise laws, that is to say, known in the market having distinct, separate and identifiable function. On this score, in our opinion, there is sufficient evidence. If that is the position, then the appellant was liable to pay duty. We are, therefore, clearly of the opinion that the order of the CEGAT impugned in this appeal does not contain any error. The appeal, therefore, fails and is accordingly dismissed. There will, however, no order as to costs. G.N. Appeal dis missed.

To a question whether lamination of duty paid kraft paper with polyethylene resulting in 'polyethylene laminated paper ' would amount to 'manufacture ' and excisable under Excise Law, the Collector of Central Excise (Appeals) an swered in the negative, and held that the appellant was eligible to claim refund of duty paid by it. In reaching this finding he followed the decision in Standard Packag ings, Nellore vs Union of India, AP. Against the said order, the Collector of Central Excise preferred an appeal before the Customs, Central Excise and Gold (Control) Appellate Tribunal. The Tribunal reversed the order of the Collector (Appeals) and held that the appellant was liable to duty. Aggrieved, the appellant has preferred this appeal under Section 35 L(b) of the . It was contended that duty was already paid on kraft paper and there was no change in the essential characteristic or the user of the paper after lamination, and that both the goods belong to the same entry. Dismissing the appeal, HELD: 1.1. By process of lamination of kraft paper with polyethylene different goods come into being. Laminated kraft paper is distinct, separate and different from the kraft paper. Lamination, indisputably by the well settled principles of excise law, amounts to manufacture. [632C D] 631 1.2. 'Manufacture ' is bringing into being goods as known in the excise laws, that is to say, known in the market having distinct, separate and identifiable function. [632F] 1.3. Even if the goods belong to the same entry, the goods are different identifiable goods, known as such in the market. If that is so, manufacture occurs, and if manufac ture takes place, it is dutiable. [632F] Empire Industries Ltd. & Ors. vs Union of India & Ors. , ; and Collector of Central Excise, Kanpur vs Krishna Carbon Paper Co., , relied on.

SDICTION: Civil Appeal Nos. 3 137 39 of 1985 etc. From the Judgment and Order dated 10.4.1985 of the Madhya Pradesh High Court in Misc. Appeal Nos. 176 to 178 of 1983. F.S. Nariman, G.L. Sanghi, Aspi Chimoi, A.L. Pandiya, Rajan Karanjawala, S.C. Sharma, Ms. Meenakshi Arora, Manik Karanjawala, N. Nettar, G.S. Narayana, R.K. Mehta, Shri Narain, Sandeep Narain, D.P. Mohanty, Ashok Kumar Panda, R.K. Patri and Jatinder Sethi for the Appellants. Soli J. Sorabjee, A.K. Sen, M.H. Baig, Raja Ram Agar walla, P.A. Choudhary, A.K. Ganguli, M.C. Bhandare, section Ganesh, P.S. Shroff, Randeep Singh, Shrjawala, R. Sasiprab hu, S.S. Shroff, S.A. Shroff, Arun Madan, R.K. Sahoo, J.D.B. Raju, M.M. Kshatriya, T.V.S.N. Chari, T. Sridharan, Ms. Mridula Ray, S.K. Sahoo, N.D.B. Raju, Aruneshwar Gupta, P.P. Juneja, S.K. Bagga, P.N. Mishra, H.J. Zaveri and B.S. Chau han for the Respondents. Milan Banerjee, P.P. Rao, A. Mariarputham, C.M. Nayar, A.K. Chakravorty, Mrs. J. Wad. Mrs. Aruna. Mathur for the Intervener. The Judgment of the Court was delivered by VENKATARAMIAH, J. The common question which arises for consideration in these cases which are very neatly argued by learned counsel on both the sides is whether an award passed Under the provisions of the (hereinaf ter referred to as 'the Act ') is liable either to be remit ted under section 16(1)(c) of the Act or liable to be set aside under section 30(c) thereof merely on the ground that no reasons have been given by the arbitrator or umpire, as the case may be, in support of the award. Ordinarily all disputes arising under a contract have to be settled by courts established by the State. Section 28 of the provides that every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of 149 any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent. Exception 1 to the said section 28, however, provides that the .said sec tion shall not render illegal a contract by which two or more persons agree that any dispute which may arise between them in respect or any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. A brief history of the English Law of Arbitration, is given in the learned treatise The Law and Practice of Commercial Arbitration in 'England by Sir Michael J. Mustill and Stew art C. Boyd. For centuries commercial men preferred to use arbitration rather than the courts to resolve their business disputes on account of the inherent advantages in the set tlement of disputes by arbitration. They preferred this alternative method of settlement of disputes to the ordinary method of settlement through courts because arbitration proceedings were found to be cheap and quick. It was no doubt true that the courts repeatedly expressed doubts as to the wisdom of this preference as reflected by the current opinion that arbitration was an ineffective procedure, not that it was undesirable in itself. The commercial community, has been however, insisting on the right to arbitration and has always exhibited an interest in seeing that the system is made to work as well as possible. This led to repeated statutory intervention. Accordingly laws were passed from time to time to make the arbitration proceedings effective. The English of 1950 and the English Arbitra tion Act, 1979 are the two major pieces of legislation which now control the arbitration proceedings in England. The legal requirements of an award under English Law are suc cinctly given in 'the Hand Book of Arbitration Practice ' by Ronald Bernstein (1987). English Law. does not impose any legal requirement as to the form of valid award but if the arbitration agreement contains any requirement to the form of the award the award should meet those requirements. The award must be certain. It could be either interim or final. An award without reasons is valid. "The absence of reasons does not invalidate an award. In many arbitrations the parties want a speedy decision from a tribunal whose stand ing and integrity they respect, and they are content to have an answer Yes or No; or a figure of X. Such an award is wholly effective; indeed, in that it cannot be appealed as being wrong in law it may be said to be more effective than a reasoned award. " Section 1 of the English Arbitration Act, 1979, however, pro 150 vides that if it appears to the High Court that an award does not or does not sufficiently set out the reasons for the award in sufficient detail to enable the court to con sider any question of law arising out of it, the court has power to order the arbitrator or umpire to give reasons or further reasons. In the United States of America as a general rule an arbitration award must contain the actual decision which results from an arbitrator 's consideration of the matter submitted to them but the arbitrator need not write opinion with any specificity as a court of law does unless otherwise provided by a statute or by the submission itself. Arbitra tors are not required to state in the award each matter considered or to set out the evidence or to record findings of facts or conclusions of law. They need not give reasons for their award and conclusions or the grounds which form the basis for the arbitration determination, describe the process by which they arrived at their decision or the rationale of the award. Although such matters are not re quired, the award is not necessarily invalidated because it sets out the reasons or the specific findings, matters, or conclusions on which it is based and faulty reasoning if disclosed does not by itself vitiate the award. (See Corpus Juris Secundum, Vol. VI pp. 324 325). In Australia too an arbitrator, unless required under section 19 of the Australian Arbitration Act, 1902 to state in a special case a question of law is under no obligation in law to give his reasons for his decision (vide University of New South Wales vs Max Cooper & Sons Pvt. Ltd., 35 Aus tralian Law Reports p. 219). An instructive survey of the Indian Law of Arbitration is to be found in the learned lecture delivered by Nripendra Nath Sircar in the Tagore Law Lectures series of the Calcut ta University entitled "Law of Arbitration in British India". After referring to the provisions of the Bengal Regulation Act and the Madras Regulation Act, the learned lecturer traces the history of the Law of Arbitration in India in detail commencing with Act VIII of 1859 which codified the procedure of civil courts. Sections 3 12 to 325 of Act VIII of 1859 dealt with arbitration between parties to a suit while sections 326 and 327 dealt with arbitration without the intervention of a court. These provisions were in operation when the , which permitted settlement of disputes by arbitration under sec tion 28 thereof as stated at the commencement of this judg ment came into force. Act VIII of 1859 was followed by later codes relating to Civil Procedure, namely, Act X of 1877 and Act XIV of 1882 but not much change was brought 151 about in the law relating to arbitration proceedings. It was in the year 1899 that an Indian Act entitled the Arbitration Act of 1899 came to be passed. It was based on the model of the English Act of 1889. The 1899 Act applied to cases where if the subject matters submitted to arbitration were the subject of a suit, the suit could whether with leave or otherwise, be instituted in a Presidency town. Then came the Code of Civil Procedure of 1908. Schedule II to the said Code contained the provisions relating to the law of arbi tration which extended to the other parts of British India. The Civil Justice Committee in 1925 recommended several changes in the arbitration law and on the basis of the recommendations by the Civil Justice Committee, the Indian Legislature passed the Act, i.e., the Arbitration Act of 1940, which is currently in force. The salient provisions of the Act which are relevant for purposes of this case are these. The Act as its preamble indicates is a consolidating and amending Act and is an exhaustive code in so far as the law relating to arbitration is concerned. An arbitration may be without intervention of a court or with the intervention of a court where there is no suit pending or it may be an arbitration in a suit. Unless there is an arbitration agree ment to submit any present and future differences to arbi tration to which a person is a party, he cannot be compelled to have a dispute in which he is concerned settled by arbi tration. The foundation of any arbitration proceeding is therefore the existence of an arbitration agreement between the persons who are parties to the dispute. Every arbitra tion agreement unless a different intention is expressed therein, shall be deemed to include the provisions set out in the First Schedule to the Act in so far as they are applicable to the reference. The parties to an arbitration agreement may agree that any reference thereunder shall be to an arbitrator or arbitrators to be appointed by a person designated in the agreement either by name or as the holder for the time being of any office or appointment. The author ity of an appointed arbitrator or umpire cannot be revoked except with the leave of the court, unless a contrary inten tion is expressed in the arbitration agreement. An arbitra tion agreement does not come to an end by death of parties thereto but shall in such event be enforceable by or against the legal representative of the deceased. The authority of an arbitrator does not stand revoked by the death of any party by whom he was appointed. In any of the following cases (a) where an arbitration agreement provides that the reference shall be to one or more arbitrators to be appoint ed by consent of the parties, and all the parties do not after differences have arisen, concur in the appointment or appointments; or (b) if any appointed arbitrator or umpire neglects 152 or refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied and the parties or the arbitrators, as the case may be ', do not supply the vacancy; or (c) where the parties or the arbitrators are required to appoint an umpire and do not appoint him any party may serve the other parties or the arbitrators, as the case may be, with a written notice to concur in the appoint ment or appointments or in supplying the vacancy. If the appointment is not made within fifteen clear days after the service of the said notice, the court may on the application of the party who gave the notice and after giving the other parties an opportunity of being heard, appoint an arbitrator or arbitrators or umpire, as the case may be, who shall have like power to act on the reference, and to make an award as if he or they had been appointed by consent of all parties. The Court may on an application of any party to a reference remove an arbitrator or umpire who fails to use all reasona ble dispatch in entering on and proceeding with the refer ence and making an award. The court may remove an arbitrator or umpire who has misconducted himself or the proceedings. Where the court removes an umpire who has not entered on the reference or one or more arbitrators (not being all the arbitrators), the court may on the application of any party to the arbitration agreement, appoint persons to fill the vacancies. The arbitrators or umpire shall, unless a differ ent intention is expressed in the agreement have power to administer oath to the parties and witnesses appearing; state a special case for the opinion of the court on any question of law involved, or state the award, wholly or in part, in the form of a special case of such question for the opinion of the court; make the award conditional or in the alternative; correct in an award any clerical mistake or error arising from any accidental slip or omission; and administer to any party to the arbitration such interrogato ries as may, in the opinion of the arbitrators or umpire, be necessary. Section 14 of the Act provides that when the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award. While an award should contain the decision of the arbitra tors or umpire of the case, as the case may be, the Act does not say in express terms that an award should contain the reasons in support of the decision. The arbitrators or umpire shall at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or a signed copy of it, together with any depositions and documents 153 which may have been taken and proved before them, to be filed in court, and the court shall thereupon give notice to the parties of the filing of the award. Sections 15, 16, 17 and 30 of the Act which are relevant for purposes of this case read as follows: 15. Power of the Court to modify award. The Court may by order modify or correct an award (a) where it appears that a part of the award is upon a matter not referred to arbitration and such can be separated from the other part and does not affect the decision on the matter referred, or (b) where the award is imperfect in form, or contains any obvious error which can be amended without affecting such decision; or (c) where the award contains a cleri cal mistake or an error arising from an acci dental slip or omission. Power to remit award. (1) The Court may from time to time remit the award or any matter referred to arbitration to the arbitra tors or umpire for reconsideration upon such terms as it thinks fit (a) where the award has left undeter mined any of the matters referred to arbitra tion, or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determina tion of the matters; or (b) where the award is so indefinite as to be incapable of execution; or (c) where an objection to the legality of the award is apparent upon the face of it. (2) Where an award is remitted under sub section (1) the Court shall fix the time within which the arbitrator or umpire shall submit his decision to the Court. (3) An award remitted under sub section (1) shall become void on the failure of the arbi trator or umpire to reconsider 154 it and submit his decision within the time fixed. Judgment in terms of award. Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has ex pired, or such application having been made, after refusing it, proceed to pronounce judg ment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award. Grounds for setting aside award. 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 or after arbitration proceed ings have become invalid under section 35; (c) that an award has been improperly procured or is otherwise invalid. Section 15 of the Act deals with the power of the Court to modify award. Section 16 of the Act deals with its power to remit an award and section 30 of the Act deals with the power of the Court to set aside an award. Section 17 of the Act provides that where the court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award. The period for getting an award remitted for reconsideration or for setting it aside is prescribed under Article 119 of the . Section 39 of the Act provides that an appeal shall lie from the following orders passed under the Act; (1) 155 superseding an arbitration; (2) on an award stated in the form of a special case; (3) modifying or correcting an award; (4) filing or refusing to file an arbitration agree ment; (5) staying or refusing to stay legal proceedings where there is an arbitration agreement; and (6) setting aside or refusing to set aside an award and from no others to the court authorised by law to hear appeals from original decree of the court passing the orders. Section 46 of the Act makes the Act applicable to statutory arbitrations, save in so far as is otherwise provided by any law for the time being in force, the provisions of the Act apply to all statutory arbitrations. These are broadly the provisions of the Act which govern an arbitration proceeding. In many of the cases in which awards are passed by arbitrators under auspices of institutions like Chambers of Commerce it may not be necessary for the parties to the disputes to go to the Court to get rules issued in terms of the awards since persons against whom awards are made would be willingly complying with the awards for it would be in their interest to do so in order to maintain their prestige in the business world. But in other cases where there is no guarantee of ready compliance with the awards by those against whom they are made it becomes necessary to take appropriate steps under the Act to get the awards filed in the Court under section 14 of the Act and to seek the as sistance of the Court in getting decrees passed in terms of the awards so that the decrees can be executed through court for the realisation of the fruits of the award. At the same time the Act provides the necessary machinery for getting the award remitted to the arbitrators or the umpire, as the case may be, for reconsideration or for getting the award set aside in cases falling under section 30 thereof. Under the Indian Arbitration Act, 1899 which applied to areas lying within the Presidency towns section 14 provided as follows: "14. Where an arbitrator or umpire has miscon ducted himself, or an arbitration or award has been improperly procured, the Court may set aside the award. " This section was couched in the same language in which section 11(2) of the English Arbitration Act, 1889 was couched. Para 15 of the Second Schedule to the Code of Civil Procedure, 1908 which was applicable to the rest of British India read as follows: "15 . . But no award shall be set aside except on one of the following grounds, name ly: 156 (a) corruption or misconduct of the arbitrator or umpire: (b) either party having been guilty of fraudulent concealment of any matter which he ought to have disclosed, or of wilfully misleading or deceiving the arbitrator or umpire; (c) the award having been made after the issue of an order by the Court superseding the arbitration and proceeding with the suit or after the expiration of the period allowed by the Court, or being otherwise invalid. " Then followed the Act, i.e., the Indian which extended to the whole of the British India w.e.f. July 1, 1940 superseding the Indian Arbitration Act, 1899 and the Second Schedule to the Code of Civil Procedure, 1908. Section 30 of the Act provides that 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 or after arbitra tion proceedings have become invalid under section 35; (c) that an award has been improperly procured or is other wise invalid. It may be noticed that the general ground, namely, the award being 'otherwise invalid ' for setting aside an award which appeared for the first time in the Second Schedule to the Civil Procedure Code, 1908 was not to be found either in the Indian Arbitration Act, 1899 or in the English Arbitra tion Act, 1889 which contained inter alia two grounds for setting aside an award, namely: (i) that an arbitrator or an umpire had misconducted him self; and (ii) the award had been improperly procured. In connection with the English Arbitration Act, 1889 and the Indian 157 Arbitration Act, 1899 certain principles had become well settled although neither of these statutes made reference to illegality or error apparent on the face of the award. In one of the cases frequently referred to in later decisions, namely, Hodgkinson vs Fernie and another, [1857] 3 C.B. (N.S.) 189= 140 English Reports. p. 712 it was recognised that the principle had been firmly established that where an error of law appeared on the face of the award or upon some paper accompanying or forming part of the award that consti tuted a ground for setting aside the award. Williams, J. who agreed with Cockburn, C.J. in the said decision observed thus: "I am entirely of the same opinion. The law has for many years been settled, and remains so at this day, that, where a cause or matters in difference are referred to an arbitrator, whether a lawyer or a layman, he is constitut ed the sole and final judge of all questions both of law and of fact. Many cases have fully established that position, where awards have been attempted to be set aside on the ground of the admission of an incompetent witness or the rejection of a competent one. The court has invariably met those applications by saying, 'You have constituted your own tribu nal; you are bound by its decision. ' The only exceptions to that rule, are cases where the award is the result of corruption or fraud, and one other, which, though it is to be regretted, is now, I think, firmly estab lished, viz. where the question of law neces sarily arises on the face of the award, or upon some paper accompanying and forming part of the award. Though the propriety of this latter may very well be doubted, I think it may be considered as established. " In Champsey Bhara & Company vs Jivraj Balloo Spinning and Weaving Company Ltd., A.I.R. 1923 Privy Council, 66 which was a case arising from the High Court of Bombay, the Privy Council following the decision in Hodg kinson vs Fernie, (supra) observed thus: "Now the regret expressed by Williams, J., in Hodgkinson vs Fernie, (2) has been repeated by more than one learned Judge, and it is cer tainly not to be desired that the exception should be in any way extended. An error in law on the face of the award means, in their Lordships ' view, that you can find in the award or a document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment, some legal proposi 158 tion which is the basis of the award and which you can then say is erroneous. " The ground arising out of an error of law apparent on the face of the award prima facie appears to fall either under section 16(1)(c) of the Act, which empowers the Court to remit the award to the arbitrator where an objection to the legality of the award which is apparent upon the face of it is successfully taken, or under section 30(c) of the Act which empowers the Court to set aside an award if it is 'otherwise invalid '. The following two decisions relied on the said two provisions of law respectively. This Court in Seth Thawardas Pherumal vs The Union of India, approved the view expressed in the case of Champsey Bhara & Company (supra) in the following words at pages 53 54 thus: "In India this question is governed by section 16(1)(c) of the Arbitration Act of 1940 which empowers a Court to remit an award for recon sideration 'where an objection to the legality of the award is apparent upon the face of it '. This covers cases in which an error of law appears on the face of the award. But in determining what such an error is, a distinc tion must be drawn between cases in which a question of law is specifically referred and those in which a decision on a question of law is incidentally material (however necessary) in order to decide the question actually re ferred. If a question of law is specifically referred and it is evident that the parties desire to have a decision from the arbitrator about that rather than one from the Courts, then the Courts will not interfere, though even there, there is authority for the view that the Courts will interfere if it is appar ent that the arbitrator has acted illegally in reaching his decision, that is to say, if he has decided on inadmissible evidence or on principles of construction that the law does not countenance or something of that nature. See the speech of Viscount Cave in Kelantan Government vs Duff Development Co., at page 409. But that is not a matter which arises in this case. The law about this is, in our opin ion, the same in England as here and the principles that govern this class of case have been reviewed at length and set out with clarity by the House of Lords in F.R. Absalom Ltd. vs Great 159 Western (London) Garden Village Society, and in Kelantan Government vs Duff Development Co., In Durga Prasad vs Sewkishendas, , 79) the Privy Council applied the law expound ed in Absalom 's case to India: see also Champsey Bhara & Co. vs Jivraj Balloo Spinning and Weaving Co., 50 I.A. 324, 330 & 331 and Saleh Mahomed Umer Dossal vs Nathoomal Kessamal, 54 I.A. 427, 430. The wider language used by Lord Macnaghten in Ghulam Jilani vs Muhammad Hassan, 29 I.A. 51, 60 had reference to the revisional powers of the High Court under the Civil Procedure Code and must be confined to the facts of that case where the question of law involved there, namely limita tion, was specifically referred. An arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. He is a tribunal selected by the parties to decide their dis putes according to law and so is bound to follow and apply the law, and if he does not, he can be set right by the Courts provided his error appears on the face of the award. The single exception to this is when the parties choose specifically to refer a question of law as a separate and distinct matter." In Jivarajbhai Ujamshi Sheth and Others vs Chintamanrao Balaji and Others, ; this Court held that an award can be set aside on the ground of error of law appar ent on the face of the record under section 30 of the Act but it qualified the above legal position by saying that the Court while dealing with the application for setting aside an award has no power to consider whether the view of the arbitrator on the evidence was justified according to this Court. The arbitrator 's justification was generally consid ered binding between the parties for it was a tribunal selected by the parties and the power of the Court to set aside the award was restricted to cases set out in section 30. The Court further observed that it was not open to it to speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. The Court declined to recognise the power of the Court to attempt to probe the mental process by which the arbitrator had reached his conclusion where it was not disclosed by the terms of his award. The relevant part of the above decision reads thus: "An award made by an arbitrator is conclusive as a judgment between the parties and the Court is entitled to 160 set aside an award if the arbitrator has misconducted himself in the proceedings or when the award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35 of the Arbitration Act or where an award has been improperly procured or is otherwise invalid: section 30 of the Arbitration Act. An award may be set aside by the Court on the ground of error on the face of the award, but an award is not invalid merely because by a process of infer ence and argument it may be demonstrated that the arbitrator has committed some mistake in arriving at his conclusion. As observed in Champsey Bhara and Company vs Jivraj Ballo Spinning and Weaving Company Ltd., L.R. 50 I.A. 324 at p. 331: 'An error in law on the face of the award means, in their Lordships ' view, that you can find in the award or a document actu ally incorporated thereto, as for instance a note appended by the arbitrator stating the reasons for his judgment, some legal proposi tion which is the basis of the award and which you can then say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party, that opens the door to seeing first what that contention is, and then going to the contract on which the parties ' rights depend to see if that contention is sound. ' The Court in dealing with an application to set aside an award has not to consider whether the view of ' the arbitrator on the evidence is justified. The arbitrator 's adjudication is generally considered binding between the parties, for he is a tribunal selected by the parties and the power of the Court to set aside the award is restricted to cases set out in s.30. It is not open to the Court to specu late, where no reasons are given by the arbi trator, as to what impelled the arbitrator to arrive at his conclusion. On the assumption that the arbitrator must have arrived at his conclusion by a certain process of reasoning, the Court cannot proceed to determine whether the conclusion is right or wrong. It is not open to the Court to attempt to probe the mental process by which the arbitrator has reached his conclusion where it is not dis closed by the terms of his, award. " 161 The same view was expressed by this Court in Bungo Steel Furniture Pvt. Ltd. vs Union of India, ; There have been a number of decisions of this Court on the above question and it is not necessary to refer to all of them except to refer to a recent decision in State of Rajas than vs M/s. R.S. Sharma and Co., ; decid ed by Sabyasachi Mukharji and section Ranganathan, JJ. It is now well settled that an award can neither be remitted nor set aside merely on the ground that it does not contain reasons in support of the conclusion or decisions reached in it except where the arbitration agreement or the deed of submission requires him to give reasons. The arbi trator or umpire is under no obligation to give reasons in support of the decision reached by him unless under the arbitration agreement or in the deed of submission he is required to give such reasons and if the arbitrator or umpire chooses to give reasons in support of his decision it is open to the Court to set aside the award if it finds that an error of law has been committed by the arbitrator or umpire on the face of the record on going through such reasons. The arbitrator or umpire shall have to give reasons also where the court has directed in any order such as the one made under section 20 or section 21 or section 34 of the Act that reasons should be given or where the statute which governs an arbitration requires him to do so. The Law Commission of India, however, had occasion to consider the question whether it should be made obligatory on the part of the arbitrator or umpire to give reasons in support of the award in the course of its Seventy sixth Report on which was submitted in 1978. The relevant part of the report of the Law Commission on the above question reads thus: "4.42A. Before leaving section 14, it is necessary to deal with one suggestion that has been made to the effect that an arbitrator must be required to give reasons for the award. This suggestion was made by the Public Accounts Committee (1977 78), Sixth Lok Sabha, Ninth Report, dealing with the Forest Depart ment, Andaman. The suggestion has been brought to our notice by the Ministry of Law. The Committee, after expressing its unhappiness over the manner in which certain arbitration cases which formed the subject matter of the Report had been pursued, and after noting the delay that took place in the disposal of cases, made the following observations: 162 'In this distressing story, Government has repeatedly suffered loss. In the first arbi tration case, Government 's claim for royalty on shortfall of extraction was not upheld. As the arbitrator 's award gave no reasons, Gov ernment could not even find out why their claim was rejected. It will be strange if Government really finds itself so helpless in such case. The Committee would like Government to make up its mind and amend the law in such a manner that it would be obligatory on the arbitrator to give reasons for his award. Meanwhile, it should be ascertained whether in an award which sets out no reasons the ag grieved party would have no remedy whatever. ' 4.43. We have also been informed that the Public Accounts Committee (1975 76), in its 210 Report, has observed as follows (Public Accounts Committee '19776, 210th Report, page 136, para 5.17): 'Incidentally, the Committee also find that under the , the Arbitrator is not bound to give any reason for the award. The result is that often it becomes difficult to challenge such non speaking awards on any particular ground. The Committee are of the view that it should be made obligatory on arbitrators to give detailed reasons for their awards so that they may, if necessary, stand the test of objective judicial scrutiny. The Committee desire that this aspect should be examined and the necessary provision brought soon on the statute book. ' 4.44. We ' have given careful consideration to the suggestion that the arbitrator should be required to give reasons. And we appreciate the embarrassment that must be caused to the Government by such awards in the cases re ferred to by the Public Accounts Committee in its Report referred to above. We are also not unmindful of the fact that the public interest might sometimes suffer by awards which are not supported by reasons. But we regret that we are unable to persuade ourselves to accept the suggestion for amending the law. Our reasons for this conclusion will be set out presently. These reasons are, in our view, weighy enough to override other considerations. 163 4.45. There are, it seems to us, several consideration that are relevant in determining the question whether an arbitrator should be required by law to give reasons for the award. The scheme of the is to provide a domestic forum, for speedy and substantial justice, untrammelled by legal technicalities, by getting the dispute re solved by a person in whom the parties have full faith and confidence. The award given by such a person under the scheme of the Act can be assailed only on very limited ground like those mentioned in section 30 of the Act. The result is that most of the awards at present are made rules of the court despite objections to their validity by the party against whom those awards operate. To have a provision making it obligatory for the arbitrator to give reasons for the award would be asking for the introduction of an infirmity in the award which in most cases is likely to prove fatal. Many honest awards would thus be set aside. Once the arbitrators are compelled to give reasons in support of the award, the inevitable effect of that would be that the validity of most of the awards would be chal lenged on the ground that the reasons, or at least some of them, are bad and not germane to the controversy. Sometimes, if four reasons are given in support of the award and one of the reasons is shown to be not correct or not germane, the award would be challenged on the ground that it is difficult to predicate as to how far the bad reason which is not germane has influenced the decision of the arbitrator. Many awards would not survive court scrutiny in such circumstances. It is also noteworthy that in a large number of cases the arbitrators would be laymen. Although their final award may be an honest and conscientious adjudication of the controversy and dispute, they may not be able to insert reasons in the award as may satisfy the legal requirements and the scrutiny of the court. The arbitrators having been chosen by the parties, it would, in our opinion, be not correct to put extra burden on them of also giving reasons which are strictly ration al and germane in the eye of law in support of their award. Once the parties have voluntarily 164 chosen the arbitrators, presumably because they have faith in their impartiality, the law should not insist upon the recording of rea sons by them in their award. The previous experience, in fact, points out that it is awards incorporating reasons which have generally been quashed in court. The awards not giving reasons have survived the attack on their validity, unless the arbitrator is otherwise shown to have misconducted himself or his award suffers from some other technical defect. Once we have the compulsion for the incorporation of reasons in the award given by the arbitrators, validity of most of the awards, in our opinion, would not be able to survive in court. As such, the object of the Arbitrations Act would be substantially defeated. Once Parliament provides that reasons shall be given, that must clearly be read as meaning that proper, adequate, reasons must be given; the reasons that are set out, whether they are right or wrong, must be reasons which not only will be intelligible, but also can reasonably be said to deal with the substantial points that have been raised. If the award in any way fails to comply with the statutory provi sions, then it would be a ground for saying that the award was bad on the face of it, as Parliament has required that reasons shall be incorporated (Of. Re Poyser & Mills Arbi tration, ; (1963) 1 All E.R. 6 12, 6 16 (Megaw J. ). It is well established that where the arbitrator gives reasons for a conclusion of law, courts can go into those reasons. (Champsey Bhara & Co. vs J.B. Spinning & Weaving Co. Ltd., A.I.R. 1923 P.C. 66; section Dutt vs University of Delhi, ; 4.49. It is sometimes stated that since an arbitrator is bound to apply the law, there should be some means of ensur ing that he applied the law correctly. However, it is also to be remembered that parties resort to an arbitration voluntarily and select or agree to a particular arbitrator, because, inter alia, 165 (i) they have faith in him, and (ii) the proceedings will be more speedy and free from technicalities than in the courts. The object Of achieving speed and informality is likely to be largely frustrated if a statutory provision makes it compulsory to give reasons for the award. The general rule is that the parties cannot object to the deci sion given by their own judge, except in case of misconduct and the like. (Government of Kelantan vs Duff Development Co. Ltd., ; Russell (1970), pages 359,360). This general principle should not be departed from unless weighty reasons exist for such departure. No doubt, it is desirable that the award should be correct in law. But the fundamental question is, how far should the finality of the award yield to the desirability of legal correctness, and what procedural requirements should be insisted upon to ensure that the award is sound in law? In this connection, reference may be made to the obser vations of Barwick C.J. (of the High Court of Australia). Tata Products Pvt. Ltd. vs Hutcheson Bros. Pvt. Ltd., ; , 258; (1972) Australia Law Journal Reports 119 (Australia). He observed that 'finality in arbitration in the award of the lay arbitrator is more significant than legal propriety in all his processes in reaching that award. ' The importance which the law attaches to the finality of arbitration goes against the suggestion now put forth for giving reasons for an award. A requirement that the reasons for an award should be given would open too wide a door for challenging the award, even if the grounds for setting aside are, by statute, restricted in other respects. For these reasons, we are not inclined to recommend a provision requiring the arbitrator to give reasons for the award. Thus it is seen that the Law Commission did not recom mend the inclusion of a provision in the Act requiting the arbitrator or umpire to give reasons for the award. 166 It is not disputed that in India it had been firmly established till the year 1976 that it was not obligatory on the part of the arbitrator or the umpire to give reasons in support of the award when neither in the arbitration agree ment nor in the deed of submission it was required that reasons had to be given for the award (vide Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd., Indore, ; ; Bungo Steel Furniture Pvt. Ltd. vs Union of India, (supra) and N. Chellappan vs Secretary, Kerala State Electricity Board & Another, ; It is, however, urged by Shri Fali section Nariman, who argued in sup port of the contention that in the absence of the reasons for the award, the award is either liable to be remitted or set aside, that subsequent to 1976 there has been a qualita tive change in the law of arbitration and that it has now become necessary to insist upon the arbitrator or the umpire to give reasons in support of the award passed by them unless the parties to the dispute have agreed that no rea sons need be given by the arbitrator or the umpire for his decision. Two main submissions are made in support of the above contention. The first submission is that an arbitrator or an umpire discharges a judicial function while function ing as an arbitrator or an umpire under the Act, and, there fore, is under an obligation to observe rules of natural justice while discharging his duties, as observed by this Court in Payyavula Vengamma vs Payyavula Kesanna and others; , This Court relied in that decision upon the observations made by Lord Langdale M.R. in Harvey vs Shelton; , at p. 462 which read thus: "It is so ordinary a principle in the administra tion of justice, that no party to a cause can be allowed to use any means whatsoever to influence the mind of the Judge, which means are not known to and capable of being met and resisted by the other party, that it is impossible, for a moment, not to see, that this was an extremely indiscreet mode of proceeding, to say the very least of it. It is contrary to every principle to allow of such a thing, and I wholly deny the difference which is alleged to exist between mercantile arbitrations and legal arbitrations. The first principle of justice must be equally applied in every case. Except in the few cases where exceptions are unavoidable, both sides must be heard, and each in the presence of the other. In every case in which matters are litigated, you must attend to the representations made on both sides, and you must not, in the administration of justice, in whatever form, whether in the regularly constituted Courts or in ar 167 bitrations, whether before lawyers or merchants, permit one side to use means of influencing the conduct and the deci sions of the Judge, which means are not known to the other side. " This Court also relied on the decision in Haigh vs Haigh; , which required an arbitrator to act fairly in the course of its duties. The two well recognised principles of natural justice are (i) that a Judge or an arbitrator who is entrusted with the duty to decide a dispute should be disinterested and unbiased (nemo judex in cause sua); and (ii) that the parties to dispute should be given adequate notice and opportunity to be heard by the authority (audi alteram partem) (See Administrative Law by H.W.R. Wade, Part V and Judicial Review of Adminis trative Action by S.A. de Smith, Third Edition, Chapter 4). Giving reasons in support of a decision was not considered to be a rule of natural justice either under the law of arbitration or under administrative law. In Som Datt Datta vs Union of India and Ors., a Constitution Bench of this Court held that there was no obligation on the part of an administrative or statutory tribunal to give reasons for the order passed by it. The relevant part of the said decision in which this Court considered the prevailing legal decision in England at the time reads thus: "In the present case it is manifest that there is no express obligation imposed by section 164 or by section 165 of the Army Act on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court Martial. Mr. Dutta has been unable to point out any other section of the Act or any of the rule made therein from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority. Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, we are unable to accept the contention of Mr. Dutta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. In English law there is no general rule apart from the statutory requirement that the statutory tribunal should 168 give reasons for its decision in every case. In Rex. Northumberland Compensation Appeal Tribunal, [1952] 1 K.B. 338, it was decided for the first time by the Court of Appeal that if there was a 'speaking order ' a writ of certi orari could be granted to quash the decision of an inferior court or a statutory tribunal on the ground ,of error on the face of record. In that case, Denning, L.J. pointed out that the record must at least contain the document which initi ates the proceedings; the pleadings, if any, and the adjudi cation, but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them in its decision. It was observed that if the tribunal did state its reasons and those reasons were wrong in law, a writ of certiorari might be granted by the High Court for quashing the decision. In that case the statutory tribunal under the National Health Service Act, 1946 had fortunately given a reasoned decision; in other words, made a 'speaking order ' and the High Court could hold that there was an error of law on the face of the record and a writ of certiorari may be granted for quashing it. But the decision in this case led to an anomalous re sult, for it meant that the opportunity for certiorari depended on whether or not the statutory tribunal chose to give reasons for its decision, in other words, to make a 'speaking order '. Not all tribunals, by any means, were prepared to do so and a superior court had no power to compel them to give reasons except when the statute required it. This incongruity was remedied by the Tribunals and Inquiries Act, 1958 (section 12), (6 & 7 Elizabeth 2 c. 66), which provides that on request a subordinate authority must supply to a party genuinely interested the reasons for its decision. Section 12 of the Act states that when a tribunal mentioned in the First Schedule of the Act gives a decision it must give a written or oral statement of the reasons for the decision, if requested to do so on or before the giving or notification of the decision. The statement may be re fused or the specification of reasons restricted on grounds of national security, and the tribunal may refuse to give the statement to a person not principally concerned with the decision if it thinks that to give it would be against the interest of any person primarily concerned. Tribunals may also be exempted by the Lord Chancellor from the duty to give reasons but the Council on Tribunals must be consulted on any proposal to do so. As already stated, 169 there is no express obligation imposed in the present case either by section 164 or by section 165 of the Indian Army Act on the confirming authority or on the Central Government to give reasons for its decision. We have also not been shown any other section of the Army Act or any other statutory rule from which the necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority. We, therefore, reject the argument of the petitioner that the order of the Chief of the Army Staff, dated May 26, 1967 confirming the finding of the Court Martial under section 164 of the Army Act or the order of the Central Government dismissing the appeal under section 165 of the Army Act are in any way defective in law. " It is, however, urged that this Court omitted to notice an earlier decision of a Constitution Bench of this Court in Bhagat Raja vs The Union of India & Ors., [1967] 3 S.C.R. 302 and therefore, the decision in Som Datt Datta, (supra) should be considered as a decision per in curjam. The point involved in Bhagat Raja ' case (supra) was whether in dis missing a revision petition filed under the Mines & Minerals (Regulation and Development) Act, 1957 and the rules made thereunder, the Union of India was bound to make a speaking order. This Court held that under the Mines & Minerals (Regulation and Development) Act, 1957 the Central Govern ment while deciding a revision petition was required to act judicially as a tribunal and an appeal could be filed against the said decision before this Court under Article 136 of the Constitution of India. In order to make the right of appeal effective it was necessary that the Central Gov ernment should pass a reasoned order so that this Court might decide whether the case had been properly decided by the Central Government or not and in the absence of the reasons the order of the Central Government was liable to be reversed. The relevant part of the judgment of this Court in Bhagat Raja 's, case (supra) reads thus: "Let us now examine the question as to whether it was incum bent on the Central Government to give any reasons for its decision in review. It was argued that the very exercise of judicial or quasi judicial powers in the case of a tribunal entailed upon it an obligation to give reasons for arriving at a decision for or against a party. The decisions of tribunals in India are subject to the supervisory powers of the High Courts under article 227 of the Constitution and 170 of appellate powers of this Court under article 136. It goes without saying that both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word 'rejected ', or, 'dismissed '. In such case, this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal. This will certainly be a very unsatis factory method of dealing with the appeal. Ordinarily, in a case like this, if the State Government gives sufficient reasons for accepting the application of one party and rejecting that of the others, as it must, and the Central Government adopts the reasoning of the State Government, this Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. But, when the reasons given in the order of the State Gov ernment are scrappy or nebulous and the Central Government makes no attempt to clarify the same, this Court, in appeal may have to examine the case de novo without anybody being the wiser for the review by the Central Government. If the State Government gives a number of reasons some of which are good and some are not, and the Central Government merely endorses the order of the State Government without specify ing those reasons which according to it are sufficient to uphold the order of the State Government, this Court, in appeal, may find it difficult to ascertain which are the grounds which weighed with the Central Government in uphold ing the order of the State Government. In such circum stances, what is known as a 'speaking order ' is called for. " A careful reading of this decision shows that it is not based on the ground that the order of the Central Government was not in conformity with the principles of natural justice but on the ground that the order of the Central Government was subject to the supervisory powers of the High Courts under Article 227 of the Constitution of India and the appellate powers of this Court under Article 136 of the Constitution of India. It is no doubt true that in Siemens Engineering & Manufacturing Co. of India Limited vs Union of India & Anr., [1976] Supp. SCR 489 a Bench of three Judges of this Court held that every quasi judicial order of a tribunal must be supported by reasons and the rule requiring the reasons to be given in support of the order 171 was like the principles of audi alteram partem, a basic principle of natural justice which must involve every quasi judicial process and that the said rule should be observed in this proper spirit. In that case again the order whose validity had been questioned in this Court in an appeal filed under Article 136 of the Constitution of India was an order passed by the Central Government under the Customs Act. A reading of the decision in this case shows that this Court felt that the rule requiring reasons in support of an order was a rule not covered by the principle audi alteram partem but an independent principle of natural justice. We have already observed that the two recognised principles of natural justice were (i) that a Judge or an umpire who is entrusted with the duty to decide a dispute should be disin terested and unbiased (nemo judex in causa sua); and (ii) that the parties to dispute should be given adequate notice and opportunity by the authority (audi alteram partem). For the first time this Court laid down that the rule requiring reasons in support of an order is a third principle of natural justice. It may be as observed in Bhagat Raja 's case (supra) that the Court may require a tribunal to give rea sons in support of its order in 'order to make the exercise of power of the High Courts under Articles 226 and 227 of the Constitution of India and the powers of this Court under Article 136 of the Constitution of India effective. It is further urged relying upon the decisions of this Court in Associated Cement Companies Ltd. vs P.N. Sharma and Another, ; and A.K. Kraipak & Ors. vs Union of India & Ors., that the concept of natu ral justice had undergone a great deal of Change in recent years. It is argued that while originally there were two rules of natural justice in course of time many more subsid iary rules had come to be added to the rules or natural justice and, therefore, in the same way the requirement of giving reasons for a decision should be treated as a new rule of natural justice. The second main submission made in support of the neces sity of giving reasons for the award is that since the arbitrator or umpire is required to make an award in accord ance with law as held by this Court in Seth Thawardas Pheru mal 's case (supra) and several other cases decided by this Court and since under section 16(1)(c) of the Act the legal ity of an award can be questioned in Court on the basis of an error apparent on the face of an award the only way of ensuring that an award is in accordance with law is by insisting upon the arbitrator or umpire to give reasons for the award. It is urged that if no reasons are disclosed it would not be possible for the Court to find out whether an award has been passed in accordance with law or not. 172 Our attention is drawn to the existence of the safeguard in the English Law of Arbitration (before the English Arbi tration Act, 1979) for ensuring that an arbitrator deciding a dispute judicially and in accordance with the requirement of the parties to the agreement that the dispute be decided according to law in the form of the power of the Court to compel the arbitrator to state his award in the form of a special case under section 21 of the Arbitration Act, 1950. It is submitted that the provision with regard to the state ment of the case by an arbitrator to the Court contained in clause (b) of section 13 of the Act, i.e., the Indian Arbi tration Act, 1950, being one which could be exercised at the option of the arbitrator and there being no power for the Court to compel the arbitrator to state a case for its decision, the only way of ensuring that the arbitrator kept within the bounds of law is to compel him to give reasons for his award. Our attention is also drawn to the Report on Arbitration made by the Commercial Court Committee presided over by Justice Donaldson (now Master of Rolls) in which certain recommendations were made in order to improve the procedure which was prevailing in England with regard to the power of judicial review of the decisions of the arbitra tors. In the course of the said report, the Commercial Court Committee has observed thus: "Supervisory powers 3. All systems of law provide for some degree of judicial supervision of arbitral proceedings and awards. These powers enable the Courts to intervene in cases of fraud or bias by the arbitrators, contravention of the rules of natural justice or action in excess of jurisdiction. In the case of the English Courts these powers are conferred by sections 22, 23 and 24 of the Arbitration Act, 1950. Powers of review 4. Most systems of law adopt the philosophy that the parties, having chosen their own tribunal, must accept its decisions "with all faults". Accordingly, they make no, or very little, provision for a review by the Courts of arbitral decisions which may be based upon erroneous conclu sions of fact or law. Until recently the law of Scotland was based upon this philosophy. However, this has never been the approach of the law of England or of some systems derived from the law. English law provides for two different forms of review, namely by motion to set aside the award for 173 error on its face and by a reference to the High Court of an award in the form of a special case. (a) Setting aside an award for error on its face 5. Under English law the Courts have jurisdiction to set aside any arbitral award if it appears from the award itself or from documents incorporated in the award that the arbitrator has reached some erroneous conclusion of fact or law. The Court cannot correct the error. It can only quash the award leaving the parties free to begin the arbitration again. As a result of the existence of this power, English arbitrators customarily avoid giving any reasons for their awards, confining themselves that A should pay B a specified sum. Where the parties wish to know the reasons for the award or the arbitrator wishes to give them, this is achieved by giving the reasons in a separate document which expressly states that it is not part of the award and by obtaining an undertaking from the parties that they will not seek to refer to or use the reasons for the purposes of any legal proceedings. The general pattern is, however, that English awards are given without reasons. In this important respect English arbitral awards differ from those of most other countries. In the case of arbitrations held under the laws of Belgium, the Federal Republic of Germany, France, Italy and the Nether lands, the giving of reasons is normally obligatory. When it comes to enforcing an English arbitral award in a foreign country, there is always some doubt whether objection may not be taken to it on the ground that it is "unmotivated", to use the continental term, although the Committee knows of no case in which this objection has yet been upheld. . . . . . . . . . . . The alternative of judicial review based on reasoned awards 25. The existing obstacle to a judicial review based upon reasoned awards is the power and the duty of the Court to set aside awards for error on their face. This 174 obstacle could easily be removed and this system would then have considerable attractions. In every case an arbitrator would be free to give reasons for his award. This would in itself be an improvement, if arbitrators took advantage of the facility. The making of an award is, or should be, a rational process. Formulating and recording the reasons tends to accentuate its rationality. Furthermore, unsuccessful par ties will often, and not unreasonably, wish to know why they have been unsuccessful. This change in the law would make this possible. Given a reasoned award, an unsuccessful party could know whether he had a just cause for complaint. Where no reasons were given initially and he thought that an error had been made, he could ask for reasons to be supplied. If the arbitrator refused to supply them, the Court could, in appropriate cases, order him to do so. This would be no great burden on the arbitrator provided that the application was made promptly. He would have had some reasons for making the award and all that he would need to do would be to summarize them in ordinary language. Nothing formal would be required. Armed with the reasons for an award, the unsuccessful party could apply to the Court for leave to appeal. The right of appeal could be restricted to questions of law arising out of the decision, leaving all questions of fact to be decided finally by the arbitrator. Furthermore, unlike the position when the Court is being asked to order an arbitrator to state an award in the form of a special case, the Court would know whether any particular question of law really arose for. decision since both it and the parties would have access to the facts as found by the arbitrator. Additional restrictions could be imposed on the circumstances in which leave to appeal would be given and in which a further appeal to the Court of Appeal would be permitted. An additional advantage of a change to rea soned awards lies in the fact that this would tend to assim ilate English awards to those made in other countries, thus mak 175 ing English awards more acceptable and readily enforceable abroad. Finally, there would be the great advantage that every award would be a final award and immediately enforceable as such, subject only to the right of the Court in appropriate cases to impose a stay of execution pending an appeal. Such a stay could, of course, be granted subject to conditions, such as that the amount awarded be brought into Court. In a word, a system of judicial review based upon reasoned awards would place very grave obstacles in the way of those seeking unmeritoriously to avoid meeting their just obligations, would improve the standard of awards and would render them more easily and speedily enforceable. The same system is used for the review of decisions of the industrial tribunals and of the restrictive Practices Court and has worked well. Recommendations on judicial review 32. In the light of these considerations the Committee makes the recommendations set out below. The system of judicial review based upon the special case procedure should be replaced by one based upon reasoned awards. This would involve comparatively minor amendments to the 1950 Act. Section 21 would be repealed and the Court would be deprived of the power and duty to set an award aside because of errors of fact or law on the face of the award. Arbitrators would be encouraged to give reasons for their awards, but would only be obliged to do so if it was necessary for the purposes of the new review procedure. A new section 21 would define the right of appeal to the High Court. The new fight of appeal would be confined to questions of law, all decisions on questions of fact being for the arbitrator alone." After the submission of the report the British Parlia ment enacted the Arbitration Act, 1979. Sub sections (1), (2), (5) and (6) of section 176 1 of the English Arbitration Act, 1979 which are material in this case read thus: "1. Judicial review of arbitration awards (1) In the arbi tration Act 1950 (in this Act referred to as 'the principal Act ') section 21 (statement of case for a decision of the High Court) shall cease to have effect and, without preju dice to the right of appeal conferred by sub section (2) below, the High Court shall not have jurisdiction to set aside or remit an award on an arbitration agreement on the ground of errors of fact or law on the face of the award. (2) Subject to sub section (3) below, an appeal shall lie to the High Court on any question of law arising out of an award made on an arbitration agreement; and on the determination of such an appeal the High Court may by order (a) confirm, vary or set aside the award; or (b) remit the award to the reconsideration of the arbitrator or umpire together with the court 's opinion on the question of law which was the subject of the appeal; and where the award is remitted under paragraph (b) above the arbitrator or umpire shall, unless the order otherwise directs, make his award within three months after the date of the order. . . . . . . . . . . . (5) Subject to sub section (6) below, if an award is made and, on an application made by any of the parties to the reference (a) with the consent of all the other parties to the reference, or (b) subject to section 3 below, with the leave of the court, it appears to the High Court that the award does not or does not sufficiently set out the reasons for the award, the 177 court may order the arbitrator or umpire concerned to state the reasons for his award in sufficient details to enable the court, should an appeal be brought under this section, to consider any question of law arising out of the award. (6) In any case where an award is made without any reason being given, the High Court shall not make an order under sub section (5) above unless it is satisfied (a) that before the award was made one of the par ties to the reference gave notice to the arbitrator or umpire concerned that a reasoned award would be required; or (b) that there is some special reason why such a notice was not given." Section 2 of the said Act of 1979 empowered the High Court to determine any preliminary point of law arising in the course of an arbitration reference under certain circum stances. It is urged that in view of the fact that similar safeguards which are available in the English Law do not exist in the Indian Law, it is necessary that this Court should hold that there is an implied obligation on the part of the arbitrator or umpire to give reasons for the award unless the parties to the dispute agree that no such reasons need be given. A reference was made in the course of the arguments to the decision of this Court in Rohtas Industries Ltd. & Anr. vs Rohtas Industries Staff Union and Ors., [1976] 3 S.C.R. 12 in which an award passed by the arbitrators under section 10 A of the had been struck down by the High Court in part and appeals filed against the decision of the High Court were under consideration by this Court. In that case the appellants contended that an award under section 10 A of the was equivalent to an award made in a private arbitration and was not amenable to correction under Article 226 of the Consti tution of India. But this Court rejected this said conten tion by observing at page 26 thus: " . Suffice it to say that a reference to arbitration under section 10A is restricted to existing or apprehended indus trial disputes. Be it noted that we are not concerned with a private arbitration, but a statutory one governed by the , deriving its validity, enforceabil ity 178 and protective mantle during the pendency of the proceed ings, from section 10A. A distinction was thus made between statutory arbitra tions under section 10 A of the and private arbitrations. It is not necessary to refer to the other cases cited before us which have a bearing on section 10 A of the Industrial disputes Act, 1947. The question which arises for consideration in these cases is whether it is appropriate for this Court to take the view that any award passed under the Act, that is, the Indian is liable to be remitted or set aside solely on the ground that the arbitrator has not given reasons thus virtually introducing by a judicial verdict an amendment to the Act when it has not been the law for nearly 7/8 decades. The people in India as in other parts of the world such as England, U.S.A. and Australia have become accustomed to the system of settlement of disputes by private arbitration and have accepted awards made against them as binding even though no reasons have been given in support of the awards for a long time. They have attached more importance to the element of finality of the awards than their legality. Of course when reasons are given in support of the awards and those reasons disclose any error apparent on the face of the record people have not refrained from questioning such awards before the courts. It is not as if that people are without any remedy at all in cases where they find that it is in their interest to require the arbi trator to give reasons for the award. In cases where reasons are required, it is open to the parties to the dispute to introduce a term either in the arbitration agreement or in the deed of submission requiring the arbitrators to give reasons in support of the awards. When the parties to the dispute insist upon reasons being given, the arbitrator is, as already observed earlier, under an obligation to give reasons. But there may be many arbitrations in which parties to the dispute may not relish the disclosure of the reasons for the awards. In the circumstances and particularly having regard to the various reasons given by the Indian Law Com mission for not recommending to the Government to introduce an amendment in the Act requiring the arbitrators to give reasons for their awards we feel that it may not be appro priate to take the view that all awards which do not contain reasons should either be remitted or set aside. A decision on the question argued before us involves a question of legislative policy which should be left to the decision of Parliament. It is a well known rule of construction that if a certain interpretation has been uniformly put upon the meaning of a 179 statute and transactions such as dealings in property and making of contracts have taken place on the basis of that interpretation, the Court will not put a different interpre tation upon it which will materially affect those transac tions. We may refer here to the decision of the Court of Appeal rendered by Lord Evershed M.R. in Brownsea Havel Properties vs Poole Corpn., in which it is observed thus: "There is well established authority for the view that a decision of long standing, on the basis of which many per sons will in the course of time have arranged their affairs, should not lightly be disturbed by a superior court not strictly bound itself by the decision. " Courts should be slow in taking decision which will have the effect of shaking rights and titles which have been rounded through a long time upon the conviction that a particular interpretation of law is the legal and proper one and is one which will not be departed from. It is no doubt true that in the decisions pertaining to Administrative Law, this Court in some cases has observed that the giving of reasons in an administrative decision is a rule of natural justice by an extension of the prevailing rule. It would be in the interest of the world of commerce that the said rule is confined to the area of Administrative Law. We do appreciate the contention, urged on behalf of ' the parties who contend that it should be made obligatory on the part of the arbitrator to give reasons for the award, that there is no justification to leave the small area covered by the law of arbitration out of the general rule that the decision of every judicial and quasi judicial body should be supported by reasons. But at the same time it has to be borne in mind that what applies generally to settle ment of disputes by authorities governed by public law need not be extended to all cases arising under private law such as those arising under the law of arbitration which is intended for settlement of private disputes. As stated elsewhere in the course of this judgment if the parties to the dispute feel that reasons should be given by the arbi trators for the awards it is within their power to insist upon such reasons being given at the time when they enter into arbitration agreement or sign the deed of submission. It is significant that although nearly a decade ago the Indian Law Commission submitted its report on the law of arbitration specifically mentioning therein that there was no necessity to amend the law of arbitration requiring the arbitrators to give reasons, Parliament has not chosen to take any step in the direction of the amendment of the 180 law of arbitration. Even after the passing of the English Arbitration Act, 1979 unless a court requires the arbitra tors to give reasons for the award (vide sub sections (5) and (6) of section 1 of the English Arbitration Act, 1979, an award is not liable to be set aside merely on the ground that no reasons have been given in support of it. It is true that in two cases one decided by the High Court of Delhi and another decided by the High Court of Orissa there are some observations to the effect that it would be in the interests of justice if the arbitrators are required to give reasons for their awards because in recent years the moral standards of arbitrators are going down. But generally this Court and all the High Courts have taken the view that merely because the reasons are not given an award is not liable to be remitted or set aside except where the arbitration agreement or the deed of submission, or an order made by the court such as the one under section 20 or sec tion 21 or section 34 of the Act or the statute governing the arbitration requires that the arbitrator or umpire should give reasons for the award. The arbitrators or umpire have passed the awards which are involved in the cases before us relying on the law declared by this Court that the awards could not be questioned merely on the ground that they have not given reasons. At the same time it cannot also be said that all the awards are contrary to law and justice. In this situation it would be wholly unjust to pass an order either remitting or setting aside the awards, merely on the ground that no reasons are given in them, except where the arbitration agreement or the deed of submission or an order made by the court such as the one under section 20 or sec tion 21 or section 34 of the Act or the statute governing the arbitration required that the arbitrator or the umpire should give reasons for the award. There is, however, one aspect of non speaking awards in nonstatutory arbitrations to which Government and Governmen tal authorities are parties that compel attention. The trappings of a body which discharges judicial functions and required to act in accordance with law with their concomi tant obligations for reasoned decisions, are not attracted to a private adjudication of the nature of arbitration as the latter, as we have noticed earlier, is not supposed to exert the State 's sovereign judicial power. But arbitral awards in disputes to which the State and its instrumentali ties are parties affect public interest and the matter of the manner in which Government and its instrumentalities allow their interest to be affected by such arbitral adjudi cations involve larger questions of policy and public inter est. Government and its instrumentalities cannot simply allow large financial interests of the 181 State to be prejudicially affected by non reviewable except in the limited way allowed by the Statute non speaking arbitral awards. Indeed, this branch of the system of dis pute resolution has, of late, acquired a certain degree of notoriety by the manner in which in many cases the financial interests of Government have come to suffer by awards which have raised eye brows by doubts as to their rectitude and propriety. It will not be justifiable for Governments or their instrumentalities to enter into Arbitration agreements which do not expressly stipulate the rendering of reasoned and speaking awards. Governments and their instrumentalities should, as a matter of policy and public interest if not as a compulsion of law ensure that wherever they enter into agreements for resolution of disputes by resort to private arbitrations, the requirement of speaking awards is express ly stipulated and ensured. It is for Governments and their instrumentalities to ensure in future this requirement as a matter of policy in the larger public interest. Any lapse in that behalf might lend itself to and perhaps justify, the legitimate criticism that Government failed to provide against possible prejudice to public interest. Having given our careful and anxious consideration to the contentions urged by the parties we feel that law should be allowed to remain as it is until the competent legisla ture amends the law. In the result we hold that an award passed under the Arbitration Act is not liable to be remit ted or set aside merely on the ground that no reasons have been given in its support except where the arbitration agreement or the deed of submission or an order made by the Court such as the one under section 20 or section 21 or section 34 of the Act or the statute governing the arbitra tion requires that the arbitration or the umpire should give reasons for the award. These cases will now go back to the Division Bench for disposal in accordance with law and the view expressed by us in this decision.

The common question arising in the instant cases which was referred to this larger Bench is whether an award passed under the provisions of the is liable either to be remitted under section 16(1)(c) of the Act or liable to be set aside under section 30(c) thereof merely on the ground that no reasons have been given by the arbitrator or umpire, as the case may be, in support of the award. It was urged that (i) subsequent to 1976 there has been a qualitative change in the law of arbitration and that it has become necessary to insist upon the arbitrator or the umpire to give reasons in support of the award passed by him unless the parties to the dispute have agreed that no rea sons need be given by the arbitrator or umpire for his decision; (ii) since under section 16(1)(c) of the Act the legality of an award can be questioned in Court on the basis of an error apparent on the face of an award, the only way of ensuring that an award is in accordance with law is by insisting upon the arbitrator or umpire to give reasons for the award and (iii) an arbitrator or an umpire discharges a judicial function while functioning as an arbitrator or an umpire under the Act, and, therefore, is under an obligation to observe rules of natural justice while discharging his duties, (iv) that the concept of natural justice had under gone a great deal of change in recent years, and the re quirement of giving 145 reasons for a decision should be treated as a new rule of natural justice. While answering the question in the negative and remit ting the cases to the Division Bench for disposal in accord ance with law, this Court, HELD: (1) The arbitrator or umpire is under no obliga tion to give reasons in support of the decision reached by him unless under the arbitration agreement or in the deed of submission he is required to give such reasons, and if the arbitrator or umpire chooses to give reasons in support of his decision it is open to the Court to set aside the award if it finds that an error of law has been committed by the arbitrator or umpire on the face of the record on going through such reasons. [161C D] (2) The arbitrator or umpire shall have to give reasons also where the court has directed in any order such as the one made under section 20 or section 21 or section 34 of the Act that reasons should be given or where the statute which governs an arbitration requires him to do so. [161D E] (1) University of New South Wales vs Max Cooper & Sons Pty. Ltd. 35 Australian Law Reports p. 219; (2) Hodgkinson vs Fernie & Anr. , ; English Reports p. 712; (3) Champsey Bhara & Company vs Jivraj Balloo Spinning and Weaving Company Ltd., A.I.R. 1923 Privy Council 66, (4); Seth Thawardas Pherumal vs The Union of India, (5) Jivarajbhai Ujamshi Sheth & Ors. vs Chintamanrao Balaji & Ors., ; (6) Bungo Steel Furniture Pvt. Ltd. vs Union of India, ; , (7) State of Rajasthan vs M/s. R.S. Sharma & Co., ; , referred to. (3) The people in India as in other parts of the world such as England, U.S.A. and Australia have become accustomed to the system of settlement of disputes by private arbitra tion and have accepted awards made against them as binding even though no reasons have been given in support of the awards for a long time. They have attached more importance to the element of finality of the awards than their legali ty. [178D] (4) Courts should be slow in taking decisions which will have the effect of shaking rights and titles which have been rounded through a long time upon the conviction that a particular interpretation of law is the legal and proper one and is one which will not be departed from. [179C D] Brownsea Havel Properties vs Pooje Corporation, , referred to. 146 (5) Even after the passing of the English Arbitration Act, 1979 unless a court requires the arbitrator to give reasons for the award, an award is not liable to be set aside merely on the ground that no reasons have been given in support of it. [180A B] (6) The foundation of any arbitration proceeding is the existence of an arbitration agreement between the persons who are parties to the dispute. It is not as if people are without any remedy at all in cases where they find that it is in their interest to require the arbitrator to give reasons for the award. In cases where reasons are required, it is open to the parties to the dispute to introduce a term either in the arbitration agreement or in the deed of sub mission requiring the arbitrators to give reasons in support of the award. But there may be many transactions in which parties to the dispute may not relish the disclosure of the reasons for the award. [151 E] Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd. lndore; , ; N. Chelapan vs Secretary, Kerala State Electricity Board & Anr., ; , referred to. (7) The two well recognised principles of natural jus tice are (i) that a Judge or an arbitrator who is entrusted with the duty to decide a dispute should be disinterested and unbiased (nemo judex in cause sua); and (ii) that the parties to dispute should be given adequate notice and opportunity to be heard by the authority (audi alteram partem). Giving reasons in support of a decision was not considered to be a rule of natural justice either under the law of arbitration or under administrative law. [171C] (10) Payyavula Vengamma vs Payyavule Kasanna & Ors., ; ; (11) Harvey vs Shelton, [1844] 7 Bear. 455 at p. 462; (12) Haigh vs Haigh. ; ; (13) Som Datt Datta vs Union of India & Ors., ; ; (14) Bhagat Payyavula vs The Union of India & Ors., ; ; (15) Siemens Engineering & Manu facturing Co. of India Ltd. vs Union of India & Anr., [1976] Supp. S.C.R. 489; (16) Associated Cement Companies Ltd. vs P.N. Sharma & Anr., ; ; (16) A.K. Kraipak ferred to. (8) A distinction has to be made between statutory arbitrations and private arbitrations. What applies general ly to settlement of disputes by authorities governed by public law need not be extended to a11 cases arising under private law such as those arising under the law of 147 arbitration which is intended for settlement of private disputes. [178A B] Rohtas Industries Ltd. & Anr. vs Rohtas Industries Staff Union & Ors., ; , referred to. (9) It is no doubt true that in the decisions pertaining to Administrative Law, this Court in cases has observed that the giving of reasons in an administrative decisions is a rule of natural justice by an extension of the prevailing rule. It would be in the interest of the world of commerce that the said rule is confined to the area of Administrative Law. [179D E] (10) The trappings of a body which discharges judicial functions and required to act In accordance with law with their concomitant obligations for reasoned decisions, are not attracted to a private adjudication of the nature of arbitration as the latter is not supposed to exert the State 's sovereign judicial power. [180F G] (11) It will not be justifiable for Governments or their instrumentalities to enter into arbitration agreements which do not expressly stipulate the rendering of reasoned and speaking awards. Governments and their instrumentalities should, as a matter of policy and public and private inter est if not as a compulsion of law ensure that wherever they enter into agreements for resolution of disputes by resort to private arbitration, the requirement of speaking awards is expressly stipulated and ensured. It is for Governments and their instrumentalities to ensure in future this re quirement as a matter of policy in the larger public inter est. Any lapse in that behalf might lend itself to or per haps justify the legitimate criticism that Government failed to provide against possible prejudice to public interest. [181B D] (12) A decision on the question involves a question of legislative policy which should be left to the decision of Parliament. It is significant that although nearly a decade ago the Indian Law Commission submitted its report on the law of arbitration specifically mentioning therein that there was no necessity to amend the law of arbitration requiring the arbitrator to give reasons, Parliament has not chosen to take any step in the direction of the amendment of the law of arbitration. [178H; 179G H] (13) In the circumstances and particularly having regard to the various reasons given by the Indian Law Commission for not recommending to the Government to introduce an amendment in the Act requiring the arbitrators to give reasons for their awards, it may not be 148 appropriate to take the view that all awards which do not contain reasons should either be remitted or set aside.

minal Appeal No. 443 of 1993. From the Judgment and Order dated 22.4.92 of the Calcutta High Court in Crl. Revision No. 800/92. A.K. Sen, S.C. Ghosh, Rajiv K. Dutta and B.B. Tawakley for the Appellant. Amlan Ghosh and Ranjan Mukherjee for the Respondents. The Judgment of the Court was delivered by MOHAN, J. leave granted. The appellant herein was, married to second respondent on 16th January, 1990 according to Hindu Rites and Customs. They lived together for sometime until second respondent left the matrimonial home to reside with her parents in order to prepare for Higher Secondary Examination which commenced on 5.4.90 920 and continued upto 10.5.90. In the month of April, 1990 she conceived, on coming to know that she was pregnant, the appellant and the family members did not want her to beget a child. Therefore she was forced to undergo abortion which was refused by the second respondent. During the stay She was meted out cruetreatment both physically and mentally. She came back to the matrimonial home during Durga Pooja in the month of October, 1990. A female child was born on 3.1.91. She filed a petition under section 125 Cr. P.C. before the Learned Chief Judicial Magistrate, Alipore in Misc. Case No. 143 of 1991 both for herself and the child. By an order dated 14.8.91 which was passed ex parte he awarded a sum of Rs. 300 per mansum to the mother and Rs. 200 to the child. Against that order, he moved a revision to the High Court. That revision is pending as 1837 of 199 1. Thereafter the petitioner filed a Crl. Case No. 143 of 1991 for blood group test of the second respondent and the child. In that proceeding the petitioner herein disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. According to him if that could be established he would not be liable to pay maintenance. That application was dismissed on two grounds: (i) there were other methods in the Evidence Act to disprove the paternity (ii) moreover it is settled law that medical test cannot be conclusive of paternity. Aggrieved by this order, a revision was preferred before the High Court. Dismissing the revision it was held that section 112 of the Evidence Act says where during the continuance of valid marriage if a child is born that is a conclusive proof about the legitimacy. This section would constitute a stumbling block in the way of the petitioner getting his paternity disproved by blood group test. The English law permitting blood test for determining the paternity of legitimacy could not be applied in view of section 112 of the Evidence Act. Therefore it must be concluded that section 112 read with section 4 of the said Act debars evidence except in cases of non access for disproving the presumption of legitimacy and paternity. It is the contention of Mr. Ashok Sen, learned counsel for the appellant that the only way for the father to disprove the paternity is by blood group test. Having regard to the development of medical jurisprudence to deny that request to the appellant will be unreasonable. As a matter of fact, in England, this is commonly resorted to as it will leave no room for doubt. In 1968 (1) All England Reports p. 20 Re. 1 it was held that even without the consent of the guardian ad litem, the court had power to order an infant be subjected to a blood group test. 921 There is no justification for the court below to refuse the same on the ground that section 112 of the Evidence Act would be an obstacle in seeking relief of blood group test. Before we deal with the arguments, we will examine the law as available in England. At the beginning of the century scientists established that human blood had certain characteristics which could be genetically transmitted. The first recognised system was ABO blood group. The blood group of a child is determined by the parents ' genetic make up but the number of possibilities is such, that it is not possible to prove that certain individuals are the father on the basis of comparing blood groups, only, that they are not the father. By 1930s other immunological test became available. As a result the possibility of establishing paternity increased. An attempt by way of statutory provision to make blood test compulsory in En land failed in 1938. However, in 1957 the Affiliation Proceedings Act was passed. Under that Act, it was assumed that a man was the father once a sexual relationship with the mother at the time of conception was proven unless he could show another man had intercourse with her at that time. Failing the father 's attempt, the mother 's evidence had to be corroborated by facts such as blood test etc. Under the Act either party could ask for a blood test and either was entitled to refuse to take part, although only the mother can apply for maintenance. The Family Reforms Act, 1969 conferred powers on the court to direct taking blood test in civil proceedings in paternity cases. Courts were able to give directions for the use of the blood test and taking blood samples from the child, the mother and any person alleged to be the father. Since the passing of 1969 Act the general practice has been to use blood tests when paternity is in issue. However, it is to be stated the court cannot order a person to submit to tests but can draw adverse inferences from a refusal to do so. Now under the Fan lily Reforms Act, 1987 in keeping with modern thinking on the continuing and shared responsibility of parenthood, 'parentage ' rather than paternity has to be determined before the court. Fathers as well as mothers can apply for maintenance. Therefore contests can include mothers denial of paternity. This Act finally removed the legal aid for corroboration of mother 's statement of paternity. Two cases may be usefully referred to: Re L Lord Denning M.R. [1968] All England Reports p. 20 stated thus 922 "but they can say positively that a given man cannot be the father, because the blood groups of his and the child are so different." (emphasis supplied). In B.R.B. vs J.B. [1968] 2 All England Reports 1023 applied this dictum and held as under: "The Country court judge will refer it to a High Court Judge as a matter suitable for ancillary relief, and the High Court Judge can order the blood test. Likewise, of course, a magistrate 's court has no power to order a blood test against the will of the parties. The magistrate can only do it by consent of those concerned, namely, the grown ups and the mother on behalf of the child; but, nevertheless, if any of them does not consent, the magistrate can take that refusal into account1 adhere to the view which expressed in Re L. that (6) "If an adult unreasonably refuses to have a blood test, or to allow a child to have one, I think that it is open to the court in any civil proceedings (no matter whether it be a paternity issue or an affiliation summons,or a custody proceedings) to take his refusalas evidence against him, and may draw an inference there from adverse to him. This is simple common sense." "The conclusion of the whole matter is that a judge of the High Court has power to order a blood test whenever it is in the best interests of the child. The judges can be trusted to exercise this discretion wisely. I would set no limit, condition or bounds to the way in which judges exercise their discretion. To object of the court always is to find out the truth. When scientific advances give us fresh means of ascertaining it, we should not hesitate to use those means whenever the occasion requires." "Having heard full argument on the case, lam satisfied beyond any reasonable doubt (to use the expression used in rebutting the presumption as to legitimacy) that LORD DENNING, M.R., was right in saying that such an order may be made in any case where the child is made a party to the proceedings and in the opinion of the judge of the High Court it is in the child 's best interests that it should be made. " 923 As regard United States the law as stated in Forensic Sciences edited by Cyril H. Wecht is as under: Parentage testing is the major (but not the exclusive) involvement of forensic serology in civil cases. The majority of disputed parentage cases involve disputed paternity, although an occasional disputed maternity, or baby mix up case does arise, and can be solved using the tools of forensic serology described in this chapter. Blood typing has been used to help resolve paternity cases since the mid 1920 'section According to Latters, there were 3,000 cases tested in Berlin in 1924, and Schiff and Boyd said that the first case went to court in Berlin in 1924. Ottenberg, in this country published paternity exclusion tables in 192 1, as did Dyke in England in 1922. It took somewhat longer to satisfy the courts, both in Europe and in country, that parentage exclusions based upon blood grouping were completely valid. Wiener said that he had obtained an exclusion in a paternity case in this country which reached the courts early in 1933. In January of 1934, Justice Steinbrink of the New York Supreme Court in Brooklyn ordered that blood tests be performed in a disputed paternity action, using a s precedent a decision by the Italian Supreme Court of Cassation, but his order was reversed upon appeal. Soon afterward, however, laws were passed in a number of states providing the courts with statutory authority to order blood testing in disputed paternity cases. Paternity testing has developed somewhat more slowly in the Unitted States than in certain of the European countries, but today the differences in the number of systems employed, and judicial acceptance of the results, are no longer that great. A number of authorities have recently reviewed the subject of paternity testing in some detail, and in some cases have summarized the results of large number of cases that they have investigated. Walker points out that failure to exclude a man, even at the 95 percent level of paternity exclusion does not mean that the alleged father is proven to be biologic father, because absolute proof of paternity cannot be established by any known blood test available. Although this fact is well known and appreciated by workers it), the field of blood grouping and by attorneys active in this area, it is not generally understood by the lay public. However, blood group 924 serology, using proven genetic marker systems, represents the most accurate scientific information concerning paternity and is so recognised in the United States, as well as in a number of countries abroad. " In India there is no special statute governing this. Neither the Criminal Procedure Code nor the Evidence Act empowers the court to direct such a test to be made. In 1951 (1) Madras Law Journal p.58O Polavarapu Venkteswarlu, minor by guardian and mother Hanwnamma vs Polavarapu Subbayya in that case the application was preferred under section 151 of the Code of Civil Procedure invoking the inherent powers of the Court to direct a blood test. The learned judge was of the following view: Section 15 1, Civil Procedure Code, has been introduced in to the Statute book to give effect to the inherent powers. of Courts as expounded by Woodroffe, J., in Hukum Chand Boid vs Kamalan and Singh. Such powers can only be exercised ex debito justice and not on the mere invocation of parties or on the mere volition of courts. There is no procedure either in the Civil Procedure Code or in the Indian Evidence Act which provides for a test of the kind sought to be taken by the defendant in the present case. It is said by Mr. Ramakrishna for the respondent before m e that in England this sort of test is resorted to by Courts where the question of non access in connection with an issue of legitimacy arises for consideration. My attention has been drawn by learned counsel to page 69 of Taylor 's Principles and Practice of Medical Jurisprudence, Volume 2, where it is stated thus : "In Wilson vs Wilson, Lancet [1942] 1. 570, evidence was given that the husband 's group was OM, that the wife 's was BM and that the child 's was ABN. The Court held that the husband was not the father of child, and granted a decree for nullity." "It is also pointed out by learned counsel that in the text books on Medical Jurisprudence and Toxicology by Rai Bahadur Jaising P. Moi, (8th Edition), at page 94, reference is made to a case decided by a Criminal Court at Mercare in June, 194 1, in which the paternity and maternity of the child being under dispute, the Court resorted to the results of the blood grouping test." 925 That may be. But I am not in any event satisfied that if the parties are unwilling to offer their blood for a test of this kind this Court can force them to do so. " The same view was taken by the Kerala High Court in Vasu vs Santha 1975 Kerala Law Times p. 533 as "A special protection is given by the law to the status of legitimacy in India. The law is very strict regarding the type of the evidence which can be let in to rebut the presumption of legitimacy of a child. Even proof that the mother committed adultery with any number of men will not of itself suffice for proving the illegitimacy of the child. If she had access to her husband during the time the child could have been begotten the law will not countenance any attempt on the part of the husband to prove that the child is not actually his. The presumption of law of legitimacy of a child will not be lightly repelled. It will not be allowed to be broken or shaken by a mere balance of probability. The evidence of non access for the purpose of repelling it must be strong, distinct, satisfactory and conclusive see Morris vs Davies; , The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case. These rigours are justified by considerations of public policy for there are a variety of reasons why a child 's status is not to be triffled with. The stigma of illegitimacy is very severe and we have not any of the protective legislations as in England t o protect illegitimate children. No doubt, this may in some cases require a husband to maintain children of whom he is probably not their father. But, the legislature alone can change the rigour of the law and not the court. The court cannot base a conclusion on evidence different from that required by the law or decide on a balance of probability which will be the result if blood test evidence is accepted. There is an aspect of the matter also. Before a blood test of a person is ordered his consert is required. The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent. Whether even a legislature can compel a blood test is doubtful. Here no consent is given by any of the respondents. It is also doubtful whether a guardian ad litem can give this consent. Therefore, in these circumstances, the learned Munsiff was right in 926 refusing the prayer for a blood test of the appellant and respondents 2 and 3. The learned Judge is also correct in holding that there was no illegality in refusing a blood test. The maximum that can be done where a party refuses to have a blood test is to draw an adverse inference (see in this connection Subayya Gounder vs Bhoopala, AIR 1959 Madras 396, and the earlier decision of the same court in Venkateswarlu vs Subbayya AIR 1951 Madras 910. Such an adverse inference which has only a very little relevance here will not advance the appellants case to any extent. He has to prove that he had no opportunity to have any sexual intercourse with the 1st respondent at a time when these children could have been begotten. That is the only proof that is permitted under section II 2 to dislodge the conclusive presumption enjoined by the Section. " In Hargavind Soni vs Ramdulari AIR 1986 MP at 57 held as: "The blood grouping test is a perfect test to determine questions of disputed paternity of a child and can be relied upon by Courts as a circumstantial evidence. But no person can be compelled to give a sample of blood for blood grouping test against his will and no adverse inference can be drawn against him for this refusal. " Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain invididual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against her will and no adverse inference can be drawn against her for this refusal. In Raghunath vs Shardabai , it was observed blood grouping test have their limitation, they cannot possibly establish paternity, they can only indicate its possibilities. In Bhartiraj vs Sumesh Sachdeo & Ors., held as: "Discussing the evidentiary value of blood tests for determining paternity, Rayden on Divorce, (1983) Vol. 1) p. 1054 has this to say "Medical Science is able to analyse the blood of individuals 927 into definite groups: and by examining the blood of a given man and a child to determine whether the man could or could not be the father. Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father. It is obviously the latter aspect the proves most valuable in determining paternity, that is, the exclusion aspect for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity. When a man is not the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show. positively he is not the father, and in some cases the chance is even higher: between two giver men who have had sexual intercourse with. the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 80 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father. The position which emerges on reference to these authoritative texts is that depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case. But the consideration remains that the party asserting the claim to have a child and the rival set of parents put to blood test must establish his right so to do. The court exercises protective jurisdiction on behalf of an infant. In my considered opinion it would be unjust and not fair either to direct a test for a collateral reason to assist a litigant in his or her claim. The child cannot be allowed to suffer because of his incapacity; the aim is to ensure that he gets his rights. If in a case the court has reason to believe that the application for blood test is of a fishing nature or designed for some ulterior motive, it would be justified in not acceding to such a prayer." "The above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to section 112 of the Evidence Act. This section is based on the well known maxim pater est quem nuptioe demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, any that every 928 person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immoratility. " It is a rebuttable presumption of law that a child born. during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderannce of evidence, and not by a mere balance of probabilities. In Smt. Dukhtar Jahan vs Mohammed Faroog ; this court held. "Section II 2 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundren and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at anytime when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basts of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. " This section requires the party disputing the paternity to prove non access in order to dispel the presumption. "Access" and "non access" mean the existence or non existence of opportunities for sexual intercourse; it does not mean actual cohabitation. The effect of this section is this: there is a presumption and a very strong one though a reubttable one. Conclusive proof means as laid down under section 4 of the Evidence Act. From the above discussion it emerges: (1) that courts in India cannot order blood test as matter of course; 929 (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong primafacie case in that the husband must establish non access in order to dispel the presumption arising under section 112 of the Evidence Act. (4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis. Examined in the light of the above, we find no difficulty in upholding the impugned order of the High Court, confirming the order of the Addl. Chief Judicial Magistrate, Alipore in rejecting the application for blood test. We find the purpose of the application is nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test. Accordingly Criminal Appeal will stand dismissed. Cr, M.P.No. 2224/93 in S.L.P.(cr No. 2648/92 filed by Respondent No. 2 will stand allowed. She is permitted to withdraw the amount without furnishing any Security. R.P. S.L.P. dismissed.

Respondent No. 2 was married to the appellant. She went to reside with her parents in order to prepare for Higher Secondary Examination. In the meantime she conceived. The appellant and his family members asked her to undergo abortion but she refused, and a child was born to her. In a petition under section 125, Cr. P.C. riled by respondent No. 2, against her husband, the wife and the child were granted maintenance. The appellant, disputing the paternity of the child, riled a criminal miscellaneous application for blood group test (if respondent No. 2 and the child. It was claimed that if it was established that he was not father of the child he would not be liable to pay the maintenance. The application was dismissed. Appellant 's revision application was also rejected by the High Court. The appellant filed the appeal by special leave. Dismissing the appeal, this Court 918 HELD: 1.1 Courts is India cannot order blood group test as a matter of course. Unlike the English law* in India there is no special statute governing this. Neither the Criminal Procedure Code nor the Evidence Act empowers the court ; to direct such a test, *Affiliation Proceedings Act. , 1957; Family Reforms Act. , 1969; Family Reforms Act, 1987. 1.2 Wherever applications are made for blood group test in order to have roving inquiry, the prayer cannot be entertained. Bhartiraj vs Sumesh Sachdeo & Ors: , approved. 2.1 Section 112 read with s.4 of the Evidence Act debars evidence except in cases of non access for disproving the presumption of legitimacy and paternity. It is a rebuttable presumption of lam, that a child born during the lawful wedlock is legitimate, and that access occurred between the parties. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. 2.2 There must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under section 112 of the Evidence Act. Vasu vs Santha: [1975] Kerala Law Times 533 and Raghunath vs Shardabai, , referred to. Morris vs Davies ; cited. 3 The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. Dikhtar Jahan vs Mohammed Faroog. ; , referred to. 4.1 Blood group test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child. 4.2 No person can be compelled to give sample of blood for analysis and no adverse inference can he drawn against a person on account of such refusal. 919 Hargovind Soni vs Ramdulari, AIR [1986] M.P. 57, approved. Vasu vs Santha, [1975] Kerala Law Times 533, Polavarapu Venkeeswarlu vs Polavarapu Subbayya, , referred to. Subayya Gounder vs Bhoopala, AIR [1959] Madras 396; Venkateswarlu vs Subbayya, AIR [1951] Madras 910; Hukum Chand Boid vs Kamalan and Singh, Cal. 927, cited. Wilson vs Wilson, Lancet [1942] 1.570; Re L 1968 [1] All England Reports 20; B. R. B. vs J. B., [1968] 2 All Eng. Reports 1023, referred to Tauylor 's 'Principles and Practice of Medical Jurisprudence (Vol. 2); 'Medical Jurisprudence and Toxicology (8th Edition) by Rai Bahadur Jaising P. Mod, cited. `Forensic Sciences ' edited by Cyril H. Wecht, referred to. In the instant case the purpose of the application for blood group test was nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test. The High Court was right in confirming the order of the court below rejecting the application.

Civil Appeals Nos. 2801 06 of 1987. 689 From the Judgment and Order dated 8.7.1987 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal Nos. E 1533, 1521, 1528 30 & 1531 of 1986and Order No.498 to 503 of 1987. Soli J. Sorabji, V.J. Francis, N.M. Popli, Mrs. Nisha Bagchi and section Ganesh for the Appellant. Mrs. Indu Malhotra and P. Parmeshwaran for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These are appeals under Section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter called 'the Act '). The appellant manufactures compressed Oxygen and dissolved acetylene falling under tariff item No. 14H of the First Schedule of the Act as it stood at the relevant time. The appellant had received showcause notice in respect of the period from 1.1.1984 to 31.1.1984 and also five other show cause notices for different periods, in respect of the price lists submitted by the appellant seeking approval of the price list of gases in question. It was found by the Tribunal that the appellant manufactures and sells oxygen and D.A. Gases. These are sold from the factory of the appellant at Visakhapatanam and from their depot/service centres at Vijayawada, Rajamundry, Vadlapudi, Jeypore and Damanjodi. They sell their product to Government undertakings as per the rates determined by DGS & D, New Delhi. In respect of other buyers the appellant sell their product at various prices on slab basis. It is stated that the slab basis is related to what the manufacturers call a quantitative discount. According to the Tribunal, the revenue had undertaken verification of the prices charged by the manufacturers at their depots and service centres. These were found to be much more than the prices indicated in the approved price list. It also observed that the manufacturers did not furnish to the department quantities of their product which were sold from their depots/service centres and that the appellant charged from their buyers, apart from the declared price list, the following: (i) Delivery and collection charges (where applicable); (ii) Cylinder deposit; and (iii) Rentals. 690 The department 's case was that these being additional charges, should form part of the assessable value. It was urged on behalf of the revenue that the price list submitted by the manufacturers in respect of clearances from their Vijayawada depot the appellant claimed abatements on account of freight and handling charges in respect of which they did not produce any evidence. It was, therefore, held by the Department that no such deduction was admissible. It, however, appeared to the Tribunal that the manufacturers have admitted that separate prices were indicated for the same goods in respect of Visakhapatnam factory which is the place of manufacture and Vijayawada, a place about 400 Km. away which is only a depot. It was explained that the difference in the prices was in consideration of special delivery and collection charges which were admittedly incurred for transporting the goods from Visakhapatnam to Vijayawada. The Tribunal noted that the appellant had not come forward to offer concrete evidence of actual freight charges etc. It, however, emphasised that the price at the factory gate is ascertainable. Assessment should, therefore, be made in terms of that price. Hence, there was no scope of deduction from that price. It, therefore, directed that if the ex factory prices were not ascertainable and the goods were to be assessed ex depot, then it would be for the manufacturer to claim on the basis of actual evidence. It remanded the case to the Asstt. Collector to refix the assessable value as directed. It is necessary to reiterate the principle upon which the assessable value will have to be determined in this case. The cost of transportation from factory at Visakhapatnam and the depot at Vijayawada cannot be included normally in computation of the value. The value has to be computed under Section 4(1)(a) read with Section 4(4)(d)(i) of the Act, Where the wholesale price is ascertainable at the factory gate, the question of transportation charges becomes entirely irrelevant. The cost of transportation from the factory gate to the place of delivery and transit expenses were not to be added to the wholesale price at factory gate for purposes of duty under the Act. In this case the price of the goods at the factory gate Visakhapatnam is known. It is clear from Section 4 that the delivery and collection charges have nothing to do with the manufacture as they are for delivery of the filled cylinders and collection of the empty cylinders. These charges have to be excluded from the assessable value. Insofar as the loading charges incurred for loading the goods within the factory are concerned, they are to be included in the assessable value, irrespective of who has paid for the same but 691 the loading exepnses incurred outside the factory gate are excludible. Duty of excise is a tax on the manufacture, not a tax on the profits made by a dealer on transportation. It is necessary to reiterate that value for assessable goods must be determined in terms of section 4 of the Act. The said section 4(1) provides that where the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section be deemed to be the normal price therefore, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place or removal, where the buyer is not a related person and the price is the sole consideration for the sale. "Place of removal" under section 4(4)(b) has been defined to mean a factory or any other place or premises of production or manufacture of the excisable goods or a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty, from which such goods are removed. The scope of determination of value has been explained and reiterated by this Court in Union of India and others etc. vs Bombay Tyre International Ltd. etc. ; , Following the principle of the said case the Tribunal noted in the judgment under appeal that the price ex factory is ascertainable. If once that is the position as the Tribunal rightly pointed out, the issue of deduction of rate from the prices ex depots does not survive for the decision. But if the ex factory prices were not ascertainable and the goods were to be assessable ex depot, then it would be for the manufacturer to claim on the basis of actual evidence the deductions that should be admissible from the price list as per the provisions of the Act. Counsel for the respondent, Ms. Indu Malhotra who argued this case with considerable ability before us drew our attention to the following observations in the Bombay Tyre International (supra) at pages 376 and 377 of the report: "Accordingly, we hold that pursuant to the old section 4(a) the value of an excisable article for the purpose of the excise levy should be taken to be the price at which the excisable article is sold by the assessee to a buyer at arm 's length in the course of wholesale trade at the time and place of removal. Where, however, the excisable article is not sold by the assessee in wholesale trade but, for example, is consumed by the assessee in his own industry the case is one 692 where under the old section 4(a) the value must be determined as, the price at which the excisable article or an article of the like kind and quality is capable of being sold in wholesale trade at the time and place of removal. Where the excisable article or an article of the like kind and quality is not sold in wholesale trade at the place of removal, that is, at the factory gate, but is sold in the wholesale trade at a place outside the factory gate, the value should be determined as the price at which the excisable article is sold in the wholesale trade at such place, after deducting therefrom the cost of transportation of the excisable article from the factory gate to such place". She also drew our attention to the observations of the Court at pages 391 and 392 of the Report: "Therefore, the expenses incurred on account of the several factors which have contributed to its value upto the date of sale, which apparently would be the date of delivery, are liable to be included. Consequently where the sale is effected at the factory gate, expenses incurred by the assessee up to the date of delivery on account of storage charges, outward handling charges, interest on inventories (stocks carried by the manufacturer after clearance), charges for other services after delivery to the buyer, namely after sales service and marketing and selling organisation expenses including advertisement expenses can not be deducted. It will be noted that advertisement expenses, marketing and selling organisation expenses and after sales service promote the marketability of the article and enter into its value in the trade. Where the sale in the course of wholesale trade is effected by the assessee through its sales organisation at a place or places outside the factory gate, the expenses incurred by the assessee upto the date of delivery under the aforesaid heads cannot, on the same grounds, be deducted. But the assessee will be entitled to a deduction on account of the cost of transportation of the excisable article from the factory gate to the place or places where it is sold. The cost of transportation will include the cost of insurance on the freight for transportation of the goods from the factory gate to the place or places of delivery. " 693 She contended that in the instant case, in view of the conduct of the dealer, there was doubt as to what was the real ex factory price. If there was a finding that there was no real ex factory price, then the aforesaid observations would have required serious examination. But in this case, the case has not proceeded on that basis. On the contrary, there is a clear finding that there was a ex factory price which is ascertainable. If once that is the position that should be the basis upon which the value is to be determined, the other expenses, costs or charges must be excluded. Inasmuch as that is the correct position in law, we direct that the Assistant Collector will re fix the assessable value as indicated in this judgment. The Tribunal 's judgment is modified accordingly. These appeals are disposed of. There will be no order as to costs. G.N. Appeals disposed of.

The appellant has been manufacturing compressed oxygen and dissolved acetylene, falling under tariff item No. 14H of the First Schedule to the Act. These items were sold to Government undertakings at the rates determined by DGS&D. In respect of other buyers the appellant charges prices on slab basis which is related to quantitative discount. These prices were found to be much more than the prices indicated in the approved price list. The appellant did not furnish quantities of the products sold from its depots/service centres. Apart from the declared price, the appellant charged delivery and collection charges, cylinder deposit and rentals. The appellant explained that the difference in prices was due to special delivery and collection charges incurred for transporting the goods from the place of manufacture to the depot from where it was sold. The appellant 's claim for abatements of account of freight and handling charges was not accepted as no evidence was produced for the same. In respect of the price lists submitted by the appellant for approval, show cause notices were issued. The appellant replied that in the past, under similar circumstances the claim for abatement had been upheld by the Department and therefore, there was no reason to deviate from the previous practice. The Assistant Collector rejected the plea and approved the price list after disallowing the abatement on account of freight and handling charges. The appellant preferred an appeal before the Collector of Central Excise (Appeals) which was dismissed. Thereafter both the appellant and the Assistant Collector filed separate appeals before the Customs Excise and Gold (Control) Appellate Tribunal. 688 The Tribunal emphasised that the ex factory prices were ascertainable and there was no scope of deduction from that price. However it directed that if ex factory prices were not ascertainable and the goods were to be assessed ex depot, then it would be for the appellant to claim on the basis of actual evidence, and remanded the case to the Assistant Collector to refix the assessable value accordingly. These appeals under section 35L(b) of the Act are against the Tribunal 's decision. Disposing of these appeals, ^ HELD: 1. The cost of transportation from factory to the depot cannot normally be included in computation of the value under Section 4(1)(a) read with section 4(4)(d)(i) of the Act. Where the wholesale price is ascertainable at the factory gate, the question of transportation charges becomes entirely irrelevant. The cost of transportation from the factory gate to the place of delivery and transit expenses were not to be added to the wholesale price at factory gate for purpose of duty under the Act. It is clear from section 4 that the delivery and collection charges have nothing to do with the manufacture as they are for delivery of the filled cylinders and collection of the empty cylinders. These charges have to be excluded from the assessable value. Insofar as the loading charges incurred for loading the goods within the factory are concerned, they are to be included in the assessable value, irrespective of who has paid for the same, but the loading expenses incurred outside the factory gate are excludible. Duty of excise is a tax on the manufacture, not a tax on the profits made by a dealer on transportation. [690F H; 691A] 2. In the instant case, there is a clear finding that the ex factory price was ascertainable. If once that is the position that should be the basis upon which the value is to be determined, the other expenses, costs or charges must be excluded. [693B] Union of India & Ors. etc. vs Bombay Tyre International Ltd. etc. ; , referred to. [This Court observed that the Tribunal 's order stood modified accordingly and directed the Assistant Collector to re fix the assessable value as indicated in this judgment. ] [693C]

: Criminal Appeal No. 388 of 1976. Appeal by Special Leave from the Judgment and Order dated the 26th & 27th July, 1976 of the Bombay High Court in Criminal Appeal No. 930/74. Gobind Das, A.K. Mathur and A.K. Sharma for the Appellant. M.N. Shroff for Respondent. M.C. Bhandare, (Mrs.) Sunanda Bhandare, M.S. Narasimhan, K.C. Sharma and H.R. Khanna for both the parties. The Judgment of the Court was delivered by KRISHNA IYER, J. This criminal appeal, by special leave, raises a few questions of law under the (Act XXXV. II of 1954) (for short, the Act), ingeniously urged by the appellants, a firm and its two partners, although the plea of 'guilty ' entered by the appellants before the trial court possibly as part of a 'plea bargaining ' which misfired at the appellate level makes short shrift of the exculpatory and extenuatory arguments urged by his counsel before us. At the end of the weary forensic exercise we gathered what should have been told us first viz., that when the three accused were exam ined and charges read out they pleaded guilty, which would have abbreviated the hearing here had we known it earlier. We proceed on the footing that the facts set out in the charge are true, that being the net price of a plea of guilt. At this stage, the particulars and the setting of the prosecution facts need to be narrated. On October 2, 1973 the Food Inspector of Nasik visited the small restaurant of the 'first accused firm at about 8.30 a.m., found a few litres of milk kept for sale and enquired about the quality of the milk. He was told by accused NO. 3 (a partner Of the business, the other partner being his brother, accused No. 2) that it was cow 's milk. Thereupon, he bought 660 mls of such milk from accused No. 3. The statutory formalities under the Act were complied 104 with and one of the three sealed bottles was sent to the public Analyst from whom the report was received that (a) the milk was not cow 's but buffalo 's milk; (b) the fat deficiency was 16.3% and the milk contained 17.8% of added water. A prosecution ensued, the Food Inspector was exam ined and cross examined and a charge was framed after the accused were questioned and their written statements filed into Court. The charge read: "That you (accused nos. 1, 2 & 3) on or about the 2nd day of October 1973 at 8.30 a.m., at Nasik stored for sale adulterated buffalo milk with 16.3% of fat deficiency and 17.8% added water and also 'misbranded it as cow milk, and thereby committed an offence punishable under section 7(i) (ii) and 16(i) (A) (ii) within my cognisance. " This charge elicited a plea of 'guilty ' from all the three accused. Of course, each added that he did not sell 'raw milk ' and that the two brothers jointly ran the shop as a firm, that the said business was a small one where tea, milk and other articles were supplied, that the whole family, fifteen strong, lived on the paltry profits from the petty restaurant and so a lenient view be taken on sentence. They further pleaded, in extenuation, that their servant pur chased the milk from the bazar, reported that it was cow 's milk and that it was on that basis that the accused told the Food Inspector that what was being sold was cow 's milk. The trial Court, acting on the plea of guilt, convicted all the accused but viewed the offence as a somewhat venial devia tion where the adulteration, being only of water 'was not injurious to human health ' After adverting to a prior conviction of A 3 for a food offence, the Magistrate merci fully declined to apply the Probation of Offenders Act! The Magistrate observed in conclusion: 'It is necessary to give accused nos. 2 and 3 one more chance to improve themselves and do honest business '. The firm, accused No. 1, was punished with.fine, accused nos. 2 and 3, the partners, also were ' punished under section 7(1) (ii) read with section 16(1) (e) (1) of the Act, each being sentenced to a fine of Rs. 500/ . Even here, we may permit ourselves the stern remark that there is pathos and bathos in this manner of magisterial indulgence when society is the victim and the stakes are human health and, perhaps, many lives! It must be remem bered that the mandate of humanist jurisprudence is some times harsh. The State appealed for enhancement of the sentence and the High, Court acceded and quashed the trial Court 's sen tence in allowance of the appeal and enhanced the punishment to. six months ' imprisonment plus fine of Rs. 500/ each, the firm itself (A ) being awarded a fine only. The basic factor which led to enhancement of the sen tence by the High Court was that, in the High Court 's view, the benefit of proviso (1) to section 16(1) stood repelled, and so the minimum sentence set by the statute was obligatory. The learned Magistrate 's 'kindly ' eye overlooked this compulsive provision. 105 Wide ranging defences were valiantly urged by the appellants before us but without merit. For, once a person pleads guilty and the Court accepts it, there is no room for romantic defences and irrelevant litanies based on the business being the mainstay of a large family, both broth ers, the only bread winners, being jailed, bazaar coming milk brought by the servant unwittingly turning out to be buffaloes ' milk and what not. How can a factual contention of innocence survive a suicidal plea of guilt or tell tale contrition wash away the provision for minimum sentence ? Therefore, what is permissible is the sole legal submission that the offence falls under the proviso (i) to section 16(1) which, if good, relieves this Court from imposing the com pulsory minimum sentence of six months ' imprisonment if sound grounds therefore exist. The desperate appellants, undaunted by one of them having been strained by a prior conviction for a food offence, half heartedly flirted with the misericordious submission that the Probation of Offend ers Act be applied to the economic offenders. The futile plea has to be frowned off, being more a gamble in foolhardy courage than one showing fidelity to precedents or fairness to forensic proprieties. We state it to reject it so that like delinquents may not repeat it later in similar circum stances. True, petty milk vendors and poor victuallets, young apprentices in adulteration offences, trivial crimi nals technically guilty and others of their milk, especially when rehabilitation is feasible or repetition is impossible and the social circumstances promise favourable correctional results,_ may call, the compassionate attention of the Court to the provisions of the probation law unless Parliament pre empts its application by express exclusion (The law in this regard has since been tightened up). Equally true, that a few guileless souls in the dock, scared by the some times exaggerated legal finality given to public analysts ' certificates and the inevitable incarceration awaiting them, may enter into that dubious love affair with the prosecution called 'plea bargaining ' and get convicted out of their own mouth, with a light sentence to begin with, running the risk of severe enhancement if the High Court 's revisional vigilance falls on this 'trading out ' adventure. This Court has animadverted on this vice of 'plea bargaining ' in Mur lidhar vs State of Maharashtra(1). Maybe, something like that happened here. as was urged before us by Shri Gobind Das for the appellants, relying, as he did, on the circum stances that the accused had cross examined the prosecution witness as if he were innocent, added a rider to his plea of guilt and sown the seeds of a valid defence even as he was asking for mercy in punishment. We do not explore the deeper import of the quasi compounding element or something akin to it, except to condemn such shady deals which cast suspicion on the integrity of food inspectors and the admin istration of justice. This preliminary screening leaves for consideration only one legal plea for paring down the sentence plus adventi tious detection of another, built on the shortfalls in a slipshod certificate issued by the public analyst. The sentencing scheme of the Act is this. The offences under section 16(1) are classified in a rough and ready way and while all of them (1) 106 are expected to be viewed sternly carrying a standard prison sentence, a few of them are regarded as less serious in certain situations so that the Court, for socially adequate, individually ameliorative reasons,may reduce the punishment to below the statutory minimum. The proviso (i) to s.16(1) takes care of this comparatively lesser class which may, for easy reference, be called 'proviso offences '. This dichotomy of food crimes throws the burden on the Court of identifying the category to which the offence of the accused belongs. This Court has earlier held and to this we will later revert that even if the offence charged falls under both the categories i.e, proviso offences and others, there being admittedly, some overlap in the definition the delin quent earns the severer penalty. In this view, to earn the eligibility to fall under the proviso to section 16(1), the appellant must establish not only that his case falls posi tively under the offences specified in the said proviso but negatively that his facts do not attract any of the non proviso offences in section 16(1). Adulteration of food is so dangerous and widespread and has so often led to large human tragedies, sudden or slow, insidious or open, that social defence compels casting of absolute liability on the criminal, even if the particular offence is committed with an unsuspecting mens. To take risks in the name of very gullible dealers or very ignorant distributors, when the consequences may spell disaster on innocent victims, few or many, is legislative lackadaisical conduct, giving the wildest hostage to fortune. So it is that mens rea is excluded and proof of actus reum is often enough. The story of small restauranteurs unwittingly vending milk, as is alleged here, is irrelevant to culpability. To quantum of sentence, personal circumstances may be relevant, subject to the minimum set. But the perti nent query is, does the exception to the minimum set out in the proviso apply here ? Section 16(1 ) and proviso (i) may now be set out for facility of discussion: "16(1) If any person (a) whether by himself or by any other person on this behalf . or stores, sells or distributes any article of food (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health; * * * * * * he shall, in addition to the penalty he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees: Provided that (i) if the offence is under sub clause (i) of clause (a) and is with respect to an article of food which is 107 adulterated under sub cl. (1) of clause (i) of section 2 or misbranded under sub clause (k) of clause (ix) of that section * * * * * the Court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees. " The key legal issue, as earlier indicated, is as to whether proviso (i) to section 16(1) takes in the offence in question. Eligibility to the commiserative consideration set out in the said proviso depends on whether the adulteration of the article of food is of the species exclusively covered by sub cl. (1) of section 2(i) or it is 'mis branded ' under subcl. (k) of cl. (ix) of that section. We say 'exclusively ', for reasons which have been set out in Murlidhar(1). One of us, in that ruling, has argued: "5. It is trite that the social mission of food laws should inform the interpretative process so that the legal blow may fall on every adulterator. Any narrow and pedantic, literal and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged. For the new criminal jurisprudence must depart from the old canons, which make indulgent presumptions and favoured constructions benefiting accused persons and defeating criminal statutes calculated to protect the public health and the nation 's wealth. This humanist approach and cute construction persuades us to reject Shri Bhandare 's analysis of Section 2(1). Sub clause (a) of Section 2(i) has a wide sweep and loyalty to the intendment of the statute forbids truncating its ambit. There cannot be any doubt that if the article asked for is 100% khurasani oil and the article sold is 70% khurasani oil and 30% groundnut oil, the supply 'is not of the nature, substance or quality which it purports or is represented to be '. The suggestion that there is no formal evidence of representations or prejudice as stated in the section does not merit consideration being a quibble over a trifle. " x x x x "9. Judicial compassion can play upon the situation only if the offence is under sub clause (i) of clause (a) of Section 16(1) and the adulteration is one which falls under subclause (1) of clause (i) of Section 2. Secondly, the proviso also applies if the offence is under sub clause (ii) of clause (i), that is to say, the offence is not one of adulteration but is made up of a c ontravention of any of the other provisions of the Act or of any rule made thereunder. In the present (1) 108 case we have already found that the accused is guilty of an offence of adulteration of food under Section 2(i) (a). Therefore, proviso (ii) is out. Proviso (i) will be attracted, according to Shri Bhandare, if Section 2 (i) (1) applies to the species of adulteration committed. In our view, the only sensible understanding of proviso (i) is that the judicial jurisdiction to soften the sentence arises if the offence of adulteration falls only under sub clause (1) of clause (i) of Section 2 and we have held that it does not. We cannot but deplore the clumsy draftsmanship displayed in a statute which affects the common man in his daily bread. It is unfortunate that easy comprehensibility and simplicity for the laity are discarded sometimes through oversophisticated scholarship in the art of drawing up legislative bills. It cannot be over stressed that a new orientation for drafting methodology adopting directness of language and avoiding involved reference and obscrurity is overdue. Be that as it may, in the present case Section 2(i) (a) applies and Section 16(1)(a) has been breached. Therefore the proviso cannot be applied in extenuation and the conviction of the High COurt has to be upheld. " A similar reasoning has found favour with this Court (two of us were party thereto) in Prem Ballab vs State (Delhi Admn.)(1). If the advantage of proviso (i) to section 16(1) is liable to be forfeited by the offence falling under any other definition in section 2 than 2(i) (1) or 2(ix) (k), the judicial focus turns on whether, in the present case, any other sub clause of section 2(i) or section 2(ix) is attracted. The High Court has .taken the view that other sub clauses of section 2(i) than section 2(i) (1) apply and therefore the appellant is Out of Court in invoking the proviso to section 16(1). There was much argument that addition of water to milk did not amount to 'adulteration ' within the meaning of section 2(i), (b) or (c) or (d). Plausible submissions were made in that behalf by Shri Govind Das but obviously we do not agree. However, the details of the debate at the bar can be skirted because the appellants, inescapably, fall under section 2(ix) (c) which reads: "2(ix) (c): 'misbranded ' an article of food shall be deemed to be misbranded if it is sold by a name which belongs to another article of food. " Indisputably, what was sold was 'buffalo 's milk '. Indeed, the Public Analyst 's Report indicates that what was seized and analysed was 'buffalo 's milk ', misbranded as cow 's milk an offence under section 2(ix) (C) of the Act and accused No. 2, Kisan Trimbak, has admitted, with a laconic 'no ', in answer to the question as to whether he had anything to say about the Report of the Public Analyst. The third accused has followed suit. The charge framed specifically mentions the offence under section 7(2) bearing on misbranding and the plea is one of 'guilt '. Moreover, the evidence of P.W. 1, Food Inspector, also goes to show that the food sold was stated to be cow 's milk. Misbranding, in the (1) Criminal Appeal No. 287 of 1971 decided on 15 9 76, 109 present case, cannot be and is not contended to be one under section 2(ix) (k) which deals with labelling in accordance with the requirements of the Act or the Rules. That is not the offending sale in the present case which is one of lobbing off buffalo 's milk as cow, s milk. The narrow point that survives is whether 'cow 's milk ' is an article of food different from 'buffalo 's milk ', so that the sale of one by using the name which belongs to the other can be said to attract section 2(ix) (c). While 'milk ' is a generic term, the identity of the article of food. is de pendent on the source. 'Cow 's milk ', 'buffalo 's milk ', 'goat 's milk ', camel 's milk ' 'horse 's milk ', 'donkey 's milk ' are all different from each other and are ' consumed by different sections of people, sometimes for ailment, some times for improving health and, in the case of 'horse 's milk ' for exhilaration and nourishment. Shortly put, they are different articles of food and the name of one cannot be appropriated for the other by a seller without being tracked down by section 2(ix)c). The housewife is a competent interpreter of statutes dealing with household articles; the consumers ' understanding of the expressions used in legislation relat ing to them is an input in judicial construction. Law, in no branch, is an absolute abstraction or sheer mystique; it regulates the business of life and so its meaning must bear life 's impress. Thus viewed 'cow 's milk ' is different from 'buffalo 's milk ' and misbranding is complete. And worse, the species of misbranding is that under section 2(ix) (c). Thus the conviction under 'section 16(1) (a) ' and the exclu sion of the proviso (i) are justified, subject to what we have to say about the Public Analyst 's Report and the criticism levelled thereon which bears on the guilt of accused No. 2. A material circumstance which has been pressed before us not as a commisserative but as an absolvatory circum stance, is that only one of the accused (accused No. 3), according to the prosecution, was present when the misbrand ed article was sold to the Food Inspector and that accused No. 2 could not be found guilty of sale of a misbranded article of food by reading into the situation section 17 (1). The short argument is that the liability of a partner of the firm, when another partner has committed the offence, de pends on the application of section 17 (1 ) or (2) of the Act. Section 17(2) makes the absent accused vicariously guilty if 'it iS proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of the other partner '. In the present case, there is no evidence led by the prosecution in proof of this requirement of mens rea against accused No. 2. Which means that section 17(2) is inapplicable to create liability against accused No. 2. Even so, section 17(1) may apply, if the absent accused is in charge of or responsible for the conduct of the business of the firm, the temporary absence of a partner at the time of the offending act being immaterial. In the present case. both the brothers have been in charge of the business and so the substantive part of section 17(1) will apply unless the proviso salvages the second accused. This provi so reads: "Provided that nothing contained in this sub section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without 110 iris knowledge or that he exercised all due diligence to prevent the commission of such offence. " If the accused concerned is absent at the time of the com mission of the offence and circumstances are eloquently such as to lead to the clear inference that there was no proof of scienter regarding the commission of the particular offence, knowledge being absent, immunity from conviction for that offence follows. In the instant case, the 2nd accused was absent at the time the milk was sold. Furthermore, the quantity of milk in the shop was bought from the bazar by the servant in the shop. The crucial fact which ropes in the accused for the offence of 'mis branding ' under section 2(ix)(c) is that the article, when sold, was represented to be 'cow 's milk '. This was an adventitious representation made on the spot by the third accused on his own, so far as the evidence discloses. It is not as if the business of the brothers was to palm off buffalo 's milk as cow 's milk on unwary buyers. Had there been a well grounded suggestion that this sharp practice had been resorted to more than once we would unhesitatingly have inferred knowledge of the misbranding even on the part of the absent partner. Such is not the case and so the 2nd accused is entitled to acquittal on this charge. Counsel for the appellants correctly criticised the inadequacy of the Public Analyst 's certificate. Had there been a plea of 'not guilty ' we might have been forced to scrutinize how far the perfunctoriness of the Public Analyst has affected the substance of his conclusions. It is not enough to give a few mechanical data. It is more pertinent to help the court with something more of the process by which the conclusion has been arrived at. We need not probe the matter further, notwithstanding the decisions reported in two English cases (cited before us)(1) because the plea of 'guilty ' silences the accused. We accordingly dismiss the appeal, although we leave it to the State Government, having regard to the fact that the trade is petty, that the adulteration has not been shown to be by any noxious substance and that the harm done has not been of any magnitude, to consider whether it should exer cise the power of clemency to remit the sentence by three months so that it may be in tune with the provisions of the Act as recently amended. These observations notwithstand ing, as aforesaid, the appeal stands dismissed. V.P.S. Appeal dis missed. (1) [1869] 1 Q.B.D. 202 & ,482.

Section 16(1)(a)(i) of the , provides inter alia that, if any person whether by himself or by another person on his behalf stores or sells any article of food, which is adulterated or misbrand ed,he shall, in addition to the penalty he may be liable under section 6, be punishable which imprisonment for a term which shall not be less than 6 months, etc. The first proviso to the sub section provides that if the offence is under sub clause (i) of clause (a) and is with respect to an article of food which is adulterated under section 2(i)(1) or misbranded under section 2(ix)(k), the Court may, for any ade quate and special reasons, impose a sentence of imprisonment for a term less than 6 months. Section 17(1) provides that where an offence under the Act has been committed by a firm every person who at the time the offence was committed was incharge of or responsible for the conduct of the business of the firm shall be deemed to be guilty of the offence. The proviso to the sub section states that nothing contained in the sub section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission. Under section 17(2) notwithstanding anything contained in sub section (1) where an offence under the Act has been committed by a firm and it is proved that the offence has been committed with the consent or connivance or is attributable to any neglect on the part of a partner, such partner shall be deemed to be guilty of the offence. In the present case accused 2 and 3 were partners carry ing on the business of a small restaurant (accused 1). The Food Inspector visited the restaurant and noticing some milk kept for sale enquired about its quality. Accused 3 told him that it was cow 's milk. The 2nd accused was then not present in the restaurant. The Food Inspector then bought some of the milk from the 3rd accused and sent it to the Public Analyst after complying with the statutory formali ties. The Public Analyst reported that the milk was buffa lo 's milk, that there was deficiency of fat and that the milk contained added water. The three accused were charged with the offence punishable under section 7(i) and (ii) and section 16(1A)(ii). They pleaded guilty and were sentenced to pay a fine. On appeal by the State, the High Court, holding that the accused cannot invoke the proviso to section 16(1)(a)(i) enhanced the sentence on the 2nd and 3rd accused to the minimum term of imprisonment of 6 months. Dismissing the appeal to this Court, HELD: (1) The Probation of Offenders Act is not applica ble to the accused in the circumstances of the case. [109 G] (2) Addition of water amounts to adulteration within the meaning of section 2 (i) (b) (c) or (d). [108 E] (3) To earn the eligibility to the benefit of the provi so to section 16(1)(a)(i) the accused must establish not only that his ease fails positively under the offences speci fied in the said proviso, but negatively, that his acts do not attract any of the non proviso offences in section 16(1). The application of the proviso depends on whether the adultera tion or misbranding of the article is of the species exclu sively covered by section 2(i)(1) or section 2(ix)(k). In judicial construction, the consumers ' understanding of legislative expressions is relevant and so viewed, 'Cow 's milk ' is different from 'buffalo 's milk '. The misbranding therefore falls under section 2(ix)(c) which provides that an article shall be deemed to be misbranded if it is sold by a name which belongs to another article of food, 103 and does not fall under section 2(ix)(k). Therefore, the exclu sion of the first proviso and the conviction of all the accused under section 16(1)(a) are justified. [106 C; 107C; 109D] Murlidhar vs State of Maharashtra and Prem Ballabh vs State (Delhi Admn.) Criminal Appeal No. 287 of 1971 decided on 15 9 76, followed. (4) The 2nd accused however is not guilty of selling the misbranded article. The liability of a partner depends on the application of section 17(1) or (2). Section 17(2) is not applicable to the absent 2nd accused as there is no evidence to prove the required mens rea set out in the sub section. Though section 17(1) applies, the second accused would not be guilty of this charge because of the proviso to that sub section. The evidence shows that the second accused was absent at the time of the sale, that the milk was bought from the bazar by the servant in the restaurant and that it was not as if the two accused were palming off buffalo 's milk and Cow 's milk, but the particular representation by the 3rd accused was an adventitious One, made by him on his own on the spot. [109E F; 110 B] [The Public Analysts report should not be prefunctory giving a few mechanical data. It should help the Court with something more of the process by which his conclusion has been arrived at].

: Criminal Appeal Nos 485 & 486 of 1991. From the Judgment and Order dated 31.8. 1990 of the Bombay High Court in Crl. W.P. Nos. 530 and 53 1 of the 1990. R.K. Jain and V.V. Vaze (For the State), Maqsood Khan, R.S.M. Verma, S.A. Syed, M.T. Khan and A.S. Bhasme (For the State) for the Appellants. A. Subba Rao, A.D.N. Rao and Ms. Sushma Suri for the Respondents. The Judgment of the Court was delivered by AHMADI, J. Special leave granted. The events leading to the filing of these two appeals, briefly stated, are that on the afternoon of March 25, 1990, the officers of the Directorate of Revenue Intelligence being in possession of information intercepted a motor car at about 3.45 p.m. driven by the appellant Amir Shad Khan with the appellant Aziz Ahmad Khan as his compa 448 nion. On search of the vehicle 1400 gold bars were recov ered. The statements of the two appellants were recorded and thereafter they were formally arrested on March 28, 1990 and produced before the Chief Metropolitan Magistrate, Bombay. The Chief Metropolitan Magistrate granted remand. While the matter was under investigation a proposal was made to the first respondent. Secretary (Preventive Detention), Govern ment of Maharashtra for invoking the powers conferred on him by Section 3 of the (hereinafter called 'the Act '). On the very next day after the receipt of the proposal the first respondent passed the impugned orders of detention against the two appellants. These orders were passed under sub section (1) of section 3 of the Act with a view to preventing the appellants from smuggling goods and engaging in transporting, keeping and concealing the same. After these detention orders were passed on April 24, 1990 they were served on the appellants along with the grounds of detention and basic documents on which reliance was placed. By clauses (iii), (iv) and (v) of paragraph 43 of the grounds of detention the appellants were informed that they had a right to make a representation to (i) the State Gov ernment; (ii) the Central Government; and (iii) the Advisory Board against the detention orders, if they so desired. It was further stated that the representation to the State Government should be addressed to the Minister of State for Home Mantralaya, Bombay. They were informed that to facili tate expeditious consideration thereof the Superintendent of Jails may be requested to forward the same to the detaining authority so that the Home Department can put up the case to the Minister for consideration. It was further stated that ' the representation to the Central Government may be ad dressed to the Secretary, Government of India, Ministry of Finance (Department of Revenue), New Delhi through the Superintendent of Jail. In the case of the Advisory Board the appellants were informed that the representation may be addressed to the Chairman, Advisory Board constituted under the Act and may be forwarded through the Superintendent of Jail. On the basis of this advice contained in the grounds of detention the appellants preferred a representation addressed to the Detaining Authority and forwarded it through the Superintendent of Jail, Arther Road Central Prison, Bombay. It is not necessary to state the various grounds made out in the representation for the revocation of the detention orders but it would suffice to reproduce the last paragraph of the representation. That paragraph reads as under: "I would also like to request you that the copies of these representations be sent to the State and Central Govern 449 ment for their kind consideration in view of the above facts so as to revoke and/or set aside my order of detention and order my release forth with. " It is not disputed that the representation was considered and rejected by the State GoVernment. It was, however, not forwarded to the Central Government and hence the Central Government had no occasion to consider the representation of the appellants for the revocation of the detention orders. As the detention orders were not revoked the appellants preferred separate habeas corpus writ petitions which were numbered Criminal Writ Petitions Nos. 530 31 of 1991 in the High Court of Bombay under Article 226 of the Constitution. The High Court on a detailed consideration of the various contentions raised by the appellants dismissed both the writ petitions. On the question whether the detention orders were vitiated as the Detaining Authority as well as the State Government had failed to forward their representations to the Central Government, the High Court answered in the negative for the reason that the detenus who had failed to follow the clear and specific instructions given in the grounds of detention regarding the manner and mode of ad dress to various authorities could not be allowed to reap the benefit of their own default. On the question whether the fundamental right guaranteed by Article 22(5) of the Constitution was violated, the High Court observed as under: "So far we have not come across any authority of this court or of the Supreme Court wherein it has been ruled that despite this express communication to the detenu, if the detenu makes any representation, the Detaining Authority is under obligation under Article 22(5) of the Constitution to take out xerox copies of the same and forward to the State Government or the Central Government. We are afraid, we cannot infer such obligation on the Detaining Authority or the State Govern ment under Article 22(5) of the Constitution. But, however, it is advisable that upon re ceipt of such representation from the detenu, the Detaining Authority may immediately inform the detenu about the procedure that he has to follow in forwarding representations to the State Government, the Central Government or the Advisory Board against the order of deten tion. " It is this view of the High Court which was vehemently challenged before us by learned counsel for the appellants. In support of his contention counsel placed strong reliance on four decisions of this 450 Court reported in (i) Razia Umar Bakshi vs Union of India & Ors., ; (ii) Rattan Singh vs State of Punjab & Ors. , ; (iii) Sat Pal vs State of Punjab & Ors., and (iv) Smt. Gracy vs State of Kerala & Anr., JT On the other hand counsel for the State Government as well as the Central Government supported the view taken by the High Court and contended that the appellants cannot make a grievance if they have despite a clear direction in the grounds of deten tion chosen to deviate therefrom. Once the procedure estab lished by law is followed by the respondents the failure on the part of the Detaining Authority or the State Government to accede to the request made by the appellants in the last paragraph of their representation to take out copies thereof and forward the same to the Central Government cannot viti ate the detention order. It was further pointed out that a subsequent representation dated June 5, 1990 made to the Central Government was considered with despatch and was rejected on June 12, 1990. We may at this stage state that we are not concerned with the subsequent representation. The point which we have been called upon to consider is whether failure on the part of the Detaining Authority as well as the State Government to accede to the request of the appel lants to take out copies of the representations and forward the same to the Central Government for consideration has resulted in violation of their constitutional/statutory right to have their representation considered by the Central Government, and if yes, whether the detention orders are liable to be quashed on that ground. The law of preventive detention is harsh to the person detained and, therefore, there can be no doubt that it must be strictly construed. Article 22(3)(b) denies to a person who is arrested or detained under any law providing for preventive detention the protection of clauses (1) and (2) of the said Article. Clause (4) thereof enjoins that the preventive detention law must conform to the limitations set out thereunder. Clause (5) of Article 22 reads as under: "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, 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. " This clause casts a dual obligation on the Detaining Author ity, namely, (i) to communicate to the detenu the grounds on which the 451 detention order has been made; and (ii) to afford to the detenu the earliest opportunity of making a representation against the detention order. Consequently the failure to communicate the grounds promptly or to afford the detenu an opportunity of making a representation against the order would clearly violate the constitutional guarantee afforded to the detenu by clause (5) of Article 22 of the Constitu tion. It is by virtue of this right conferred on the detenu that the Detaining Authority considers it a duty to inform the appellant detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board. The right to make a representation against the detention order thus flows from the constitutional guarantee enshrined in Article 22(5) which casts an obliga tion on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires. The necessity of casting a dual obligation on the authority making the detention order is obviously to ac quaint the detenu of what had weighed with the Detaining Authority for exercising the extraordinary powers of deten tion without trial conferred by section 3(1) of the Act and to give the detenu an opportunity to point out any error in the exercise of that power so that the said authority gets an opportunity to undo the harm done by it, if at all, by correcting the error at the earliest point of time. Once it is realised that Article 22(5) confers a right of represen tation, the next question is to whom must the representation be made. The grounds of detention clearly inform the detenu that he can make a representation to the State Government, the Central Government as well as the Advisory Board. There can be no doubt that the representation must be made to the authority which has the power to rescind or revoke the decision, if need be. Our search for the authority must, therefore, take us to the statute since the answer cannot be found from Article 22(5) of the Constitution read in isola tion. As pointed out earlier that clause casts an obligation on the authority making the detention order to afford to the detenu an earliest opportunity to make a representation against the detention order. If we are to go by the state ment in the grounds of detention our search for that author ity would end since the grounds of detention themselves state the authorities to which the representation must be made. The question must be answered in the context of the relevant provisions of the law. Now as stated earlier by clause (5) of Article 22 a dual obligation is cast on the authority making the detention order one on which is to afford to the detenu an earliest opportunity of making a representation against the order which obligation has been met by informing the detenu in the grounds of detention to whom his representation should be addressed. But the author ity to which the representation is addressed must have statutory backing. In 452 order to trace the source for the statutory backing it would be advantageous to notice the scheme of the Act providing for preventive detention. Section 2(b) defines a detention order to mean an order made under section 3. Sub section (1) of section 3 empowers the Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empow ered for the purposes of this section by that Government, to make an order of detention with respect to any person with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from doing any one of the five prejudicial acts enumerated thereunder. Subsection (2) of that section provides that when any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. It is evident from this provision that whenev er a detention order is made by the State Government or its officer specially empowered for that purpose an obligation is cast on the State Government to forward a report to the Central Government in respect of that order within ten days. The purpose of this provision is clearly to enable the Central Government to keep an eye on the exercise of power under section 3(1) by the State Government or its officer. Then comes sub section (3) which reads as under: "For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circum stances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. " This provision is clearly intended to meet the obligation cast by Article 22(5) that the grounds of detention shall be communicated 'as soon as may be '. The legislation has, therefore, fixed the outer limit within which the grounds of detention must be communicated to the detenu. Thus the first part of the obligation cast by Article 22(5) is met by section 3(3) of the Act. Section 8 provides for the Consti tution of Advisory Boards. This section is clearly to meet the obligation of 453 sub clause (a) of clause 4 and sub clause (c) of clause 7 of Article 22 of the Constitution. Section 8(f) which has some relevance provides that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Govern ment may confirm the detention order and continue the deten tion of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Govern ment shall revoke the detention order and cause the person to be released forthwith. This provision clearly obliges the appropriate Government to order revocation of the detention order if the Advisory Board reports want of sufficient cause for detention of that person. Then comes section 11 which reads as under: "Revocation of detention orders (1) Without prejudice to the provisions of section 21 of the , a detention order may, at any time, be revoked or modified (a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Gov ernment. (b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government. " Sub section (2) is not relevant for our purpose. It is obvious from a plain reading of the two clauses of sub section (1) of section 11 that where an order is made by an officer of the State Government, the State Government as well as the Central Government are empowered to revoke the detention order. Where, however, the detention order is passed by an officer of the Central Government or a State Government, the Central Government is empowered to revoke the detention order. Now this provision is clearly without prejudice to section 21 of the which lays down that where by any Central Act a power to issue orders is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to rescind any order so issued. Plainly the authority which has passed the order under any Central Act is empowered by this provision to rescind the order in like manner. This provision when read in the context of section 11 of the Act makes it 454 clear that the power to rescind conferred on the authority making the detention order by section 21 of the is saved and is not taken away. Under section 11 an officer of the State Government or that of the Central Government specially empowered under section 3(1) of the Act to make a detention order is not conferred the power to revoke it; that power for those officers has to be traced to section 21 of the . Therefore, where an officer of the State Government or the Central Government has passed any detention order and on receipt of a represen tation he is convinced that the detention order needs to be revoked he can do so by virtue of section 21 of the since section 11 of the Act does not entitle him to do so. If the State Government passes an order of deten tion and later desires to revoke it, whether upon receipt of a representation from the detenu or otherwise, it would be entitled to do so under section 21 of the but if the Central Government desires to revoke any order passed by the State Government or its officer it can do so only under clause (b) of Section 11(1) of the Act and not under section 21 of the . This clari fies why the power under section 11 is conferred without prejudice to the provisions of section 21 of the . Thus on a conjoint reading of section 21 of the and section 11 of the Act it becomes clear that the power of revocation can be exercised by three authorities, namely, the officer of the State Government or the Central Government, the State Government as well as the Central Government. The power of revocation conferred by section 8(f) on the appropriate Government is clearly inde pendent of this power. It is thus clear that section 8(f) of the Act satisfies the requirement of Article 22(4) whereas section 11 of the Act satisfies the requirement of the latter part of Article 22(5) of the Constitution. The statu tory provisions, therefore, when read in the context of the relevant clauses of Article 22, make it clear that they are intended to satisfy the constitutional requirements and provide for enforcement of the right conferred on the detenu to represent against his detention order. Viewed in this perspective it cannot be said that the power conferred by section 11 of the Act has no relation whatsoever with the constitutional obligation cast by Article 22(5). We may now turn to the case law on which reliance was placed. In Razia Umar 's case, section Murtaza Fazal Ali, J. sitting singly during vacation was concerned with a more or less similar situation. In that case a detention order was passed by the State Government against which the detenu had made a representation to the said Government. By that repre sentation he also prayed that his representation may be 455 forwarded to the Central Government for being considered. That representation was disposed of by the State Government but it was not forwarded to the Central Government, notwith standing the specific prayer of the detenu. The defence taken was that the detenu had himself sent a copy of his representation to the Central Government and, therefore, the Detaining Authority did not consider it necessary to forward the representation to the Central Government. The defence of the State Government was held to be wholly unacceptable on the following line of reasoning: "Section 11 of the Act confers a constitution al right on the detenu to have his representa tion considered by the Central Government. It is true that the Central Government has a discretion to revoke or confirm the detention but the detenu has undoubtedly a right that his representation should be considered by the Central Government for whatever worth it is. The mere fact that the detenu had sent a copy to the Central Government does not absolve the detaining authority from the statutory duty of forwarding the representation to the Central Government." (Emphasis supplied) This observation would show that the power of revocation conferred by section 11 of the Act has a nexus with the fight of representation conferred on the detenu by Article 22(5) and, therefore, the State Government when requested to forward a copy of the representation to the Central Govern ment is under an obligation to do so. The learned counsel for the appellant further pointed out that our case stands on a stronger footing because, admittedly, the appellants had not forwarded a copy of their representation to the Central Government as in Razia Umar 's case. The High Court distinguished this decision on the ground that the facts of Razia Umar 's case reveal that the detenu had sent a separate representation to the Detaining Authori ty with a request to forward the same to the State Govern ment and the Central Government whereas in our case only one representation was sent to the Detaining Authority with a request that copies thereof be taken out and sent to the State Government as well as the Central Government for their consideration. With respect, this distinction has nothing to do with the ratio of the decision; if at all, as rightly pointed out counsel for the appellants, the facts of this case are stronger than those of Razia Umar 's case. 456 In Rattan Singh 's case the facts reveal that the detenu had written a letter to the Superintendent of Central Jail, Amritsar, enclosing therewith two representations one of which was addressed to the Joint Secretary, Department of Home, Government of Punjab, Chandigarh, and the other to the Secretary, Union Ministry of Finance, Department of Revenue, New Delhi. The Jail Superintendent was requested to forward the representations to the State Government as well as the Central Government. In the counter filed on behalf of the Central Government it was stated that no representation by or on behalf of the detenu had been received by the Central Government. It was contended that failure to forward the representation to the Central Government and the consequent failure of the Central Government to apply its mind to the representation vitiated the detention order. This Court held that the detenu was unaccountably deprived of a valuable right to defend and assert his fundamental right to personal liberty. Chandrachud. who spoke for the three Judge Bench, observed as under: "But the laws of preventive detention afford only a modicum of safeguards to persons de tained under them and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safe guards are not denied to the detenus. Section 11(1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu 's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the detenu must, therefore, be held illegal and the detenu set free. " In taking this view reliance was placed on an earlier deci sion of this Court in Tara Chand vs State of Rajasthan, In Sat Pal 's case also counsel for the detenu had for warded two representations one meant for the Central Govern ment and other for the State Government for exercise of power under section 11 of the Act. The Jail Superintendent who was requested by a forwarding letter 457 to sent the representations to the appropriate Governments after obtaining the signatures of the detenu thereon for warded them to the Joint Secretary in the State Government with an endorsement that one of them may be forwarded to the Central Government. The representation of the detenu to the Central Government was not forwarded to that Government by the State Government promptly. It was; therefore, contended that the detention order was rendered illegal and liable to be quashed. Dealing with this contention this Court observed that the making of an application for revocation of the order of detention by the Central Government under section 11 of the Act is part of the constitutional right a citizen has against his detention under a law relating to preventive detention. It was, therefore, observed: "It is, therefore, idle to contend that this State Government had no duty to forward the representation made by the detenu to the Central Government for revocation of his order of detention under section 11 of the Act." In taking this view the Court placed reliance on Rattan Singh 's case Gracy 's case may not be entirely apposite because the question which the court was required to consider in that case was that the representation made to the Advisory Board was not taken into consideration by the Central Government after the papers were laid before it with the opinion of the Advisory Board that there was sufficient cause to justify the preventive detention. That was, therefore, a case in which the representation was very much before the Central Government and it failed to consider the same before con firming and fixing the duration of the detention order. In that case, therefore, the question for consideration was whether it was incumbent on the part of the Central Govern ment to consider a representation addressed to the Advisory Board notwithstanding its rejection by the Advisory Board. Such is not the question before us but counsel for the appellants invited our attention to certain observations made in paragraphs 8 and 9 which indicate that the detenu 's right for consideration of his representation by the Central Government flows from Article 22(5), irrespective of the fact whether the representation is addressed to the Detain ing Authority or to the Advisory Board or both. These obser vations though made in a different fact situation do support the submission made on behalf of the appellants. But counsel for the respondents argued that the observations were too broadly stated. It is not necessary for us to examine this contention as the earlier decisions are sufficient to uphold the appellants ' contention. 458 In the case before us the facts.clearly show that the appellants had made a request to the Detaining Authority to take out copies of his representation and forward them to the State Government as well as the Central Government for consideration. Counsel for the Detaining Authority as well as the State Government contended that no such duty was cast on the said respondents to take out copies and forward them to the Central Government for consideration. Counsel for the Union of India contended that since no such representation had reached the Central Government there was no question of the Central Government applying its mind thereto and taking a decision thereon. In support, reliance was placed on Phil lippa Anne Duke vs The State of Tamil Nadu & Ors., ; a judgment rendered by O. Chinnappa Reddy, J. sit ting singly. In that case the two petitioners who were British nationals were detained for smuggling electric equipments and goods secreted in specially made compart ments/cavities of their Mercedez Benz Van. Representations were presented on their behalf to the Prime Minister of India during her visit to England. No decision was taken on those representations and hence it was contended that the detention orders deserved to be quashed. This Court held that representation from whatever source addressed to whoso ever officer of one or other department of the Government cannot be treated as representations under the Act. It was further held that the Bout De Papier presented to the Prime Minister of India during her visit to Britain and the subse quent reminder addressed to the External Affairs Ministry could not be treated as representations to the Central Government. It is, therefore, obvious that this decision turned on its special facts and is no authority for the proposition that the Detaining Authority or the State Gov ernment was under no obligation to forward the representa tions to the Central Government. It must be realised that when a person is placed under detention he has certain handicaps and if he makes a request that a representation prepared by him may be forwarded to the Central Government as well as the State Government for consideration after taking out copies thereof it would be a denial of his right to represent to the Central Government if the Detaining Authority as well as the State Government refuse to accede to his request and omit to forward his representation to the Central Government for consideration. It is difficult to understand why such a technical and rigid view should be taken by the concerned authorities in matters of personal liberty where a person is kept in preventive detention without trial. Detenus may be literate or illiter ate, they may have access to legal advice or otherwise, they may or may not be in a position to prepare more than one copy of the 459 representation and if they make a request to the authorities which have the facilities to take out copies to do so and forward them for consideration to the Central Government, would it be just and fair to refuse to do so? In such cir cumstances refusal to accede to their request would be wholly unreasonable and in total disregard of the right conferred on the detenu by Article 22(5) of the Constitution read with section 11 of the Act. We are, therefore, of the opinion that the Detaining Authority as well as the State Government were not justified in taking a hyper technical stand that they were under no obligation to take out copies of the representations and forward them to the Central Government. We think that this approach on the part of the Detaining Authority and the State Government has robbed the appellants of their constitutional right under Article 22(5) read with section 11 of the Act to have their representation considered by the Central Government. The request of the detenus was not unreasonable On the contrary the action of the Detaining Authority and the State Government was unrea sonable and resulted in a denial of the appellants ' consti tutional right. The impugned detention orders are, there fore, liable to be quashed. In the result we allow these appeals, set aside the order of the High Court and quash the detention orders on this single ground. We direct that both the appellants who are in detention shall be set free at once unless they are required in any other pending matter. PUNCHHI, J. I agree to the release of the detenus, but in the facts and circumstances of the case. I have reserva tions to section 11 of the being treated part of the constitutional guarantee under Article 22(5) of the Constitution of India. Section 11 of the Act does not confer any constitutional right on the detenu to have his representation thereunder considered as if under Article 22(5), but merely a provision enabling the State Government or the Central Government, as the case may be, to revoke or modify detention orders. Have section 11 of the Act repealed, it causes no affectation to the constitutional guarantee under Article 22(5) of the Constitution. Corre spondingly, section 11 of the Act derives no sustenance from the said Article. Both operate in mutually exclusive fields, though not as combatants. Both the detenus may be set free as proposed by my learned brother, A.M. Ahmadi, J. V.P.R. Appeals allowed.

On March 25, 1990, the officers of the Directorate of Revenue Intelligence intercepted a motor car driven by the appellant No. 1 with the other appellant as his companion and recovered 1400 gold bars. The statements of the two appellants were recorded and they were formally arrested on March 28, 1990 and produced before the Chief Metropolitan Magistrate, who granted re mand. While the matter was under investigation, a proposal was made to the first respondent Secretary (Preventive Deten tion), Government of Maharashtra for invoking the powers conferred on him by Section 3 of the . On the very next day after the receipt of the proposal the first respondent passed the orders of detention against the two appellants under sub section (1) of section 3 of the Act. After these detention orders were passed on April 24, 1990 they were served on the appellants along with the grounds of detention and basic documents on which reliance was placed. The appellants were informed that they had a right to make a representation to (i) the State 444 Government; (ii) the Central Government; and (iii) the Advisory Board against the detention order, if they so desired. They were informed that to facilitate expeditious consideration thereof, 'the Superintendent of Jails may be requested to forward the same to the detaining authority. The appellants preferred a representation addressed to the Detaining Authority and forwarded it through the Superin tendent of Jail. In the last paragraph of that representa tion a request was made that copies of the representation may be taken out and the same may be forwarded to the State Govt. and the Central Govt. The representation was considered and rejected by the State Government. It was, however, not forwarded to the Central Government and hence the Central Government had no occasion to consider the representation of the appellants for the revocation of the detention orders. As the detention orders were not revoked the appellants preferred separate habeas corpus writ petitions in the High Court which dismissed both the writ petitions, answering in negative on the question whether the detention orders were vitiated as the Detaining Authority as well as the State Government had failed to forward their representations to the Central Government for the reason that the detenus who had failed to follow the clear and specific instructions given in the grounds of detention regarding the manner and mode of address to various authorities, could not be allowed to reap the benefit of their own default. This view of the High Court was challenged before this Court by the appellants. The State Government as well as the Central Government supported the view taken by the High Court contending that the appellants cannot make a grievance if they have despite a clear direction in the grounds of detention chosen to deviate therefrom. Once the procedure established by law is followed by the respondents the failure on the part of the Detaining Authority or the State Government to accede to the request made by the appellants in the last paragraph of their representations to take out copies thereof and forward the same to the Central Government cannot vitiate the deten tion order. The Union of India contended that since no representa tion had reached the Central Government there was no ques tion of the Central Government applying its mind thereto and taking a decision thereon. 445 On the question whether failure on the part of the Detaining Authority as well as the State Government to accede to the request of the appellants to take out copies of the representations and forward the same to the Central Government for consideration has resulted in violation of their considerational/statutory right to have their repre sentation considered by the Central Government, and if yes, whether the detention orders are liable to be quashed on that ground, allowing the appeals, this Court, HELD: 1. The Detaining Authority as well as the State Government were not justified in taking a hypertechnical stand that they were under no obligation to take out copies of the representations and forward them to the Central Government. Such action of the Detaining Authority and the State Government was unreasonable and resulted in a denial of the appellants ' constitutional right. The impugned deten tion orders are liable to be quashed and directed that the appellants, who were in detention, to be set free. [459B E] Per A.M. Ahmadi, J. on his behalf himself and V. Ramas wami, J. 1. Article 22(3)(b) (5) casts a dual obligation on the Detaining Authority, namely, (i) to communicate to the detenu the grounds on which the detention order has been made; and (ii) to afford to the detenu the earliest opportu nity of making a representation against the detention order. Consequently the failure to communicate the grounds promptly or to afford the detenu an opportunity of making a represen tation against the order would clearly violate the constitu tional guarantee afforded to the detenu by clause (5) of Article 22 of the Constitution. It ' is by virtue of this right conferred on the detenu that the Detaining Authority considers it a duty to inform the appellant detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board. The right to make a representation against the detention order thus flows from the constitutional guarantee enshrined in Article 22(5) which casts an obligation on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires. [450H 451C] 2. The necessity of casting a dual obligation on the authority making the detention order is obviously to ac quaint the detenu of what had weighed with the Detaining Authority for exercising the extraordinary powers of deten tion without trial conferred by section 3(1) of the Act and to give the detenu an opportunity to point out any error in the exercise of that power so that the said authority gets an opportunity to undo the harm done by it, if at all, by correcting the error at the earliest point of time. [451C D] 446 3. Under section 11 an officer of the State Government or that of the Central Government specially empowered under section 3(1) of the Act to make a detention order is not conferred the power to revoke it; that power for those officers has to be traced to section 21 of the General Clauses Act. Therefore, where an officer of the State Gov ernment or the Central Government has passed any detention order and on receipt of a representation he is convinced that the detention order needs to be revoked he can do so by virtue of section 21 of the General Clauses Act since sec tion 11 of the Act does not entitle him to do so. [454A C] 4. If the State Government passes an order of detention and later desires to revoke it, whether upon receipt of a representation from the detenu or otherwise, it would be entitled to do so under section 21 of the General Clauses Act but if the Central Government desires to revoke any order passed by the State Government or its officer it can do so only under clause (b) of Section 11(1) of the Act and not under section 21 of the General Clauses Act. [454C D] 5. On a conjoint reading of section 21 of the General Clauses Act and section 11 of the Act it becomes clear that the power of revocation can be exercised by three authori ties, namely, the officer of the State Government or the Central Government, the State Government as well as the Central Government. The power of revocation conferred by section 8(f) on the appropriate Government is clearly inde pendent of this power. It is thus clear that section 8(f) of the Act satisfies the requirement of Article 22(4) whereas section 11 of the Act satisfies the requirement of the latter part of Article 22(5) of the Constitution. The statu tory provisions, therefore, when read in the context of the relevant clauses of Article 22, make it clear that they are intended to satisfy the constitutional requirements and provide for enforcement of the right conferred on the detenu to represent against his detention order. Viewed in this perspective it cannot be said that the power conferred by section 11 of the Act has no relation whatsoever with the constitutional obligation cast by Article 22(5). [454D G] 6. It must be realised that when a person is placed under detention he has certain handicaps and if he makes a request that a representation prepared by him may be for warded to the Central Government as well as the State Gov ernment for consideration after taking out copies thereof it would be a denial of his right to represent to the Central Government if the Detaining Authority as well as the State Government refuse to accede to his request and omit to forward his 447 representation to the Central Government for consideration. In such circumstances refusal to accede to their request would be wholly unreasonable and in total disregard of the right conferred on the detenu by Article 22(5) of the Con stitution read with section 11 of the Act. [458F G, 459B] Razia Umar Bakshi vs Union of India & Ors., ; Rattan Singh vs State of Punjab & Ors., ; Sat Pal vs State of Punjab & Ors., and Smt. Gracy vs State of Kerala & Anr., JT ; Tara Chand vs State of Rajasthan, ; referred to. Per M.M. Punchhi, J. 1. Section 11 of the Act does not confer any constitutional right on the detenu to have his representation thereunder considered as if under Article 22(5), but merely a provision enabling the State Government or the Central Government, as the case may be, to revoke or modify detention orders. Have section 11 of the Act re pealed, it causes no affectation to the constitutional guarantee under Article 22(5) of the Constitution. Corre spondingly, section 11 of the Act derives no sustenance from the said Article. Both operate in mutually exclusive fields, though not as combatants. [459F G]

os. 102,105 to 110 of 1956. Petitions under Article 32 of the Constitution for writs in the nature of Habeas Corpus. N. C. Chatterjee, Sadhan Chandra Gupta and janardhan Sharma; for petitioners in Petitions Nos. 102, 105 to 108 of 1956. Sadhan Chandra Gupta and Janardhan Sharma, for petitioners in Petitions Nos. 109 and 110 of 1956. C.K.Daphtary, SoliCitor General for India, Porus A. Mehta and R. H Dhebar, for respondents in Petitions Nos. 102 and 105 of 1956. Porus A. Mehta and R. H. Dhebar, for respondents in Petitions Nos. 106 to 110 of 1956. September 17. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. These are petitions filed under article 32 of the Constitution for the issue of writs in the nature of habeas corpus. They arise on the same facts and raise the same questions. On 13 1 1956 the Commissioner of Police, Bombay, passed orders under section 3(2) of the IV of 1950 (hereinafter referred to as the Act), directing the detention of the present petitioners, and pursuant thereto, they were actually arrested on 16 1 1956. The grounds on which the orders were made were formulated on 19 1 1956, and communicated to the petitioners the next day. On 21 1 1956 the Commissioner reported the fact of the order and the grounds therefor to the State Govern 655 ment, which approved of the same on 231 1956. The contention of the petitioners before us is that when the Commissioner passed the orders for detention on 13 1 1956, it was his duty under section 3(3) to report that fact forthwith to the State Government and as be did not do so until 21 1 1956, he had acted in contravention of the statute, and that the detention was therefore illegal. That raises the question as to what "forthwith" in section 3 (3) of the Act signifies, and whether on the facts the report was made "forthwith", within the meaning of that word in that sub section. The word "forthwith", it has been observed, is of elastic import. In its literal sense, it might be construed as meaning that the act to be performed forth;with in relation to another should follow it automatically without any interval of time, or, as held in some of the American. authorities, should be performed at one and the same time as the other. But even in America, the preponderance of judicial opinion does not favour this construction. In Corpus Juris, Volume 26, page 998 the position is thus stated: "Although the term has received a strict conStruction, ordinarily it is not to be strictly construed, but should receive a liberal or reasonable construction . Some regard must be had to the nature of the act or thing to be performed and the circumstances of the case". In England, there is a long catena of decisions interpreting the word "forthwith" occurring in statutes, rules and contracts, and their trend has been to construe it liberally. As early as 1767, discussing the meaning of the word 'immediately ' and the word "forthwith" his been held to have the same significance Lord Hardwicke observed in Rex vs Francis "But then the word immediately, is strongly insisted on, as, a word which excludes all mesne acts and time; and therefore, that this taking away the money must necessarily be 'in the presence of Cox. (1) Cun. 165; ; , 1183. 656 But all the nine Judges held this word immediately, to be of so loose a signification, and not to imply necessarily, that the money was taken away in Cox 's presence. For this word does neither in its use and application, nor in its grammatical construction, exclude all mesne acts or time But it is more necessary and proper in this case, to consider the signification of this word in the legal, way. And it is plain, that in this acceptation, it is not understood to exclude mesne acts or time And on the Statute Hue and Cry, 27 Eliz. c. 13, section 11, where ' the words with as much convenient speed as may be, are made use of, all the precedents have expressed these words, by the word immediate, as may be seen in the books. The last case which I shall mention on this point, is that of the writs of habeas corpus, issuing out of this Court, which are most frequently made returnable immediately; and in this case the word is never understood either to exclude mesne acts or time, but only means, with convenient speed In Beg. vs The Justices of Worcester(1), where the question was as to the meaning of the word "forthwith" in section 50 of 6 Will. IV, Coleridge, J. observed: "I agree that this word 'forthwith ' is not to receive a strict construction like the word 'immediately ',, so that whatever follows, must be done immediately after that which has been done before. By referring to section 50, it seems that whatever is to be done under it, ought to be done without any unreasonable delay. I think that the word 'forthwith ' there used, must be considered as having that meaning ' The meaning of the word "immediately" came up for consideration in Thompson vs Gibson(2). Holding that it was not to be construed literally, Lord Abinger C. B. observed: "If they" (acts of Parliament) "could be construed literally, consistently with common sense and justice, undoubtedly they ought; and if I could see, (1) [1889] 7 Dowl. 789 791: 54 R.R. 902 (903). (2) (1841] 8 M. & NV. 282 ; ,1047. 657 upon this act of, Parliament, that it was the intention of the legislature that not a single moment 's interval should take place before the granting of the certificate, I should think myself bound to defer to that declared intention. But it is admitted that this cannot be its interpretation; we are therefore to see how, consistently with common sense and the principles of justice, the words 'immediately afterwards ' are to be construed. If they do not mean that it is to be done the very instant afterwards,do they mean within ten minutes, or a quarter of an hour, afterwards? I think we should interpret them to mean, within such reason able time as will exclude the danger of intervening facts operating upon the mind of the Judge, so as to disturb the impression made upon it by the evidence in the cause". In agreeing with this opinion, Alderson, B. expressly approved of the decision of Lord Hardwicke in Rex vs Francis(1). This construction of the word 'immediately ' was adopted in Page vs Pearce(), Lord Abinger C. B. observing: "It has already been decided, and necessarily so, that the words 'immediately afterwards 'in the statute, cannot be construed literally; and if you abandon the literal construction of the words, what can you substitute but 'within a reasonable time? '. " In The Queen vs The Justice 3 of Berkshire(3), where the point was as to the meaning of "forthwith" in section 52 of 35 & 36 Vict., Chapter 94, Cockburn C. J. observed: "The question is substantially one of fact. It is impossible to lay down any bard and fast rule as to what is the meaning of the word 'immediately ', in all cases. The words 'forthwith ' and 'immediately ' have the same meaning. They are stronger than the expression within a reasonable time ', and imply prompt, vigorous action, without any delay, and whether there has been such action is a question of fact, having regard to the circumstances of the particular case". (1) dun. 165: ; , 1188. (2) ; (678): (1212). (3) (471). 658 The same construction. has been put on the word "forthwith " occurring in contracts. In Hudson and others vs Hill and others(1) which was a case of charterparty, it was observed at page 280: " Forthwith ' means without unreasonable delay. The difference between undertaking to do something 'forthwith ' and kithin a specified time is familiar to everyone conversant with law. To do a thing 'forthwith ' is to do it as soon as is reasonably convenient". In Reg. vs Price(2), it was held by the Privy Council that the word "forthwith" in a bail bond meant within a reasonable time from the service of notice. On these authorities, it may be taken, an act which is to be done forthwith must be held to have been so done, when it is done with all reasonable despatch and without avoidable delay. But it is argued by Mr. N. C. Chatterjee that the view taken in the above decisions as to the meaning of the word "forthwith" has been abandoned in the later decisions, and that under the law as it stands, when an act has to be performed forthwith in relation to another, what has to be decided is not whether it was done within a reasonable time, but whether it was done so closely upon the other as to form together one continuous act. He relied in support of this opinion on the decision in Be Muscovitch(3), affirming that in Re Muscovitch(1). That was a decision on rule 132 of the Bankruptcy Rules which provided that "Upon entering an appeal, a copy of the notice of appeal shall forthwith be sent by the appellant to the registrar of the court appealed from". The facts were that the appeal was lodged in time on 25 10 1938 but the notice was served on 28 10 1938, and it was found that there was "no satisfactory reason or no reason at all, why there was any delay in the matter" (Re Muscovitch(4)). On that, it was held that the requisition that "the notice shall forthwith be sent" was not satisfied. This is authority only for the position that when an Act is done after an interval of time and there is no explanation forthcoming for (1) (280). (2) ; 8 Moore P.C. 208: (3) (4) , 659 the delay, it cannot be held to have been done "forthwith". That is made clear by Sir Wilfrid Greene M. R. in the following passage in Re Muscovitch(1) at page 139: "Having regard to the construction which was put upon the word 'forthwith ' which is peremptory, and. admits of no interval of time between the entry of the appeal and the sending of the notice save such as may be imposed by circumstances, which cannot be avoided, I find it impossible in the present case to say that the notice was sent forthwith within the meaning of the rule". Reliance is also placed for the petitioners on the decision in Ex parte Lamb: In re Southam(2), which was followed in Re Muscovitch(1). There, construing the word "forthwith" in rule 144 of the Bankruptcy Rules, 1870, which corresponds to rule 132, which was the subject of interpretation in Re Muscovitch(1), Jessel M. R. observed at page 173: "Ithink that the word 'forthwith ' must be construed according to the circumstances in which it is used Where, as in Hyde vs Watt8(3), there is a covenant to insure a man 's life, there must of necessity be some delay, for the act could not be done in a moment. But where an act which is required to be done 'forthwith ' can be done without delay, it ought to be so done". In that case also, the learned Judges found that the delay was not explained. And the observation of Lush L. J. in the same case was that "the word 'forthwith ' has not a fixed and an absolute meaning; it must be construed with reference to the objects of the rule and the circumstances of the case". There is nothing in the decisions in Re Muscovitch(1) and Ex parte Lamb: In re Southam(2) which can be considered as marking a departure from the construction put on the word "forthwith" in the earlier authorities that it meant only that the act should be performed with reasonable speed and expedition, and that any delay in the matter should be satisfactorily explained. (1) (2) (3) ; 660 It is argued for the petitioners that even if the con. struction put on the word "forthwith" in the above decisions is accepted as correct, it must, in any event, yield to any contrary intention expressed in the statute, and that the provisions of the Act afforded clear indication of such an intention. It is co intended that the legislature while providing in section 7 that the grounds should be communicated to the detenu "as soon as may be" has enacted that the report under section 3(3) should be sent "forth with", that the use of two different expressions in the two sections is a clear indication that they do not mean the same thing, that as the words "as soon as may be" import that the act might be performed in a reasonable time, the word "forthwith" which is more peremptory must be construed as excluding it. The decisions in Emperor vs Phuchai(1) and in K. U. Kulkarni vs Ganpat Teli(2) were quoted in support of the position that when two different expressions are used in different parts of the same clause or section, they should be construed as used in different senses. We agree that "forthwith" in section 3(3) cannot mean the same thing as "as soon as may be" in section 7, and that the former is more peremptory than the latter. The difference between the two expressions lies, in our opinion, in this that while under section 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under section 3(3) what is allowed is only the period during which he could not, without any fault of his own, send the report. Under section 7 the question is whether the time taken for communicating the grounds is reasonably requisite. Under section 3(3) it is whether the report has been sent at the earliest point of time possible, and when there is an inter val of time between the date of the order and the date of the report, what has to be con sidered is whether the delay in sending the report could have been avoided. (1) I.L.R. 50 All. 909: A.I.R. 1929 All. (2) I.L.R. [1942] Bom. 287: A.I.R. 1942 Bom. 661 It was contended that as section 7 required that the communication should be made not later than 5 days from the date of the order, and as section 3(3) was more peremptory than section 7 in that it required that the report should be made forthwith, the period allowable under section 3(3) could not exceed 5 days, and that as in these cases the reports were sent 8 days later, they could not be held to have been sent forthwith. This argument mixes up two different matters contained in section 7. The period of 5 days provided therein is an absolute one and is independent of the period which is permissible under the expression "as soon as may be", which must, by its very nature, be indefinite depending on the facts and circumstances of the case. It will be as erroneous to read 5 days into the period allowable under the expression "as soon as may be" as to read the 12 days within which the State has to approve the order under section 3(3) into the period which is allowable under the expression "forthwith". The result then is that the report sent by the Commissioner to the State on 21 1 1956 could be held to have been sent "forthwith" as required by section 3(3), only if the authority could satisfy us that, in spite of all diligence, it was not in a position to send the report during the period from 13th to 21st January 1956. We must now examine the facts from the above standpoint. The Commissioner of Police has filed an affidavit explaining why the reports were not sent till 21,st January 1956, though the orders themselves had been made as early as 13th January 1956. Ever since the publication of the proposal to form a State of Maharashtra without the city of Bombay, there ,had been considerable agitation for the establishment of a Samyuktha Maharashtra with the city of Bombay included in it. An action committee had been set up on 15 11 1955 for the purpose, and there had been hartal and morchas resulting in outbursts of lawlessness and violence and in the burning of a police chowki. The final decision on the question was expected to be taken and announced in the middle of January 1956, and the atmosphere was highly sur charged. It was in this situation that the Commis 662 sioner decided to take action under section 3(2) of the Act against the leading spirits of the movement, and passed the present orders for detention against the petitioners on 13 1 1956. In his affidavit the Commissioner states that he decided first "to locate the persons against whom orders of detention were made by me on the 13th January 1956 and after having done so, to arrest all of them simultaneously so that none of them may go underground or abscond or evade execution of the detention orders". Then the affidavit goes on to state: "It was not possible for me to send the report earlier as the situation in the City of Greater Bombay was tense, pregnant with danger on the 13th January 1956, and continued to be so till 16th January 1956, and actual rioting occurred during that night and those riots continued till 22nd January 1956. I and my staff were kept extremely busy all throughout in maintaining law and order and simultaneously taking steps to round up miscreants. In this unusual and tense situation, it was not possible to make a report earlier than the day on which it was made". We see no reason for not accepting these statements. What happened on the 16th and the following days are now matters of history. The great city of bombay was convulsed in disorders, which are among the worst that this country has witnessed. The Bombay police had a most difficult task to perform in securing life and property, and the authorities must have been working at high pressure in maintaining law and order. It is obvious that the Commissioner was not sleeping over the orders which he had passed or lounging supinely over them. The delay such as it is due, to causes not of his making, but to causes to which the activities of the petitioners very largely contributed. We have no hesitation in accepting the affidavit, and we bold that the delay in sending the report could not have been avoided by the Commissioner and that when they were sent by him, they were sent "forthwith" within the meaning of section 3(3) of the Act. 663 Mr. section C. Gupta put forward some special contentions on behalf of the petitioners in C.M.Ps. 109 and 110 of 1956. He contended that as the order originally made against the petitioner in C.M.P. No. 109 of 1956 was that he should be detained in Arthur Road Prison, Bombay the subsequent order of the Commissioner by which he was detained in Nasik Prison was without jurisdiction. It is clear from the affidavit of the Commissioner that the petitioner was not ordered to be detained in Arthur Road Prison but in Nasik Road Central Prison, and that he was kept temporarily in Arthur Road Prison, pending arrangements to transport him to Nasik. It was next contended that the materials on which the orders of detention were made and set out in the communications addressed to the petitioners all related to their past activities, and that they could not constitute grounds for detention in future. This contention is clearly unsound. What a person is likely to do in future can only be a matter of inference from various circumstances, and his past record will be valuable, and often the only, record on which it could be made. It was finally contended that what was alleged against the petitioners was only that they advocated hartal, and that was not a ground for making an order of detention. But the charge in these cases was that the petitioners instigated hartal bringing about a complete stoppage of work, business and transport with a view to promote lawlessness and disorder, and that is a ground on which an order could be made under section 3(2). All the contentions urged by the petitioners therefore fail, and these petitions must be dismissed.

Section 3(3) of the , provides that when an order of detention is made by an officer mentioned in section 3(2) he shall forthwith report the fact to the State Government together with the grounds on which the order has been made. . and no such order. shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government. On 13th January 1956 the Commissioner of Police, Bombay, passed orders under section 3(2) of the directing the detention of the petitioners and in pursuance thereof ' they were arrested on 16th January 1956 The grounds on which the orders were made were furnished to the petitioners on 20th January 1956 and the next day the Commissioner reported the fact of the order and the grounds therefor to the State Government which approved of the same on 23rd January 1956. The petitioners contested the validity of the detention on the ground that when the Commissioner passed the orders for detention on 13th January 1956 it was his duty under section 3(3) to report that fact forthwith to the State Government, and as he did not do so until 21st January '1956 he had acted in contravention of the statute and that the detention was therefore illegal. It was found that the delay in sending the report could not have been avoided by the Commissioner and that it was due to causes to which the petitioners had very largely con tributed. Held, that the word "forthwith" in section 3(3) of the , has not a fixed and an absolute meaning and it must be construed with reference to the object of the section and the circumstances of the case. It cannot mean the same thing as "as soon as may be" in section 7 of the Act and the former is more peremptory than the latter. The difference between the two . expressions lies in this that while under a. 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under section 3(3) what is allowed is only the 654 period during which he could not, without any fault of his own, send the report. An act which is to be done forthwith must be held to have been so done when it is done with all reasonable despatch and without avoidable delay. The Queen vs The Justices of Berkshire ([1878 79] 4 Q.B.D. 469), Hudson and others vs Hill and others ([1874] 43 L. J. C.P. 273), and Beg. vs Price, ; , relied on.

6 etc. Civil Appeal No. 1527 from the Judgment and Order dated 7.8.1984 of the Andhra Pradesh High Court in Writ petition No. 8173 of 1984. A.K. Ganguly. M.B. Shetye, A. Subha Rao, B, Kanta Rao, T.V.S.N. Chari, Ms. Bharathi Reddy and Ms. Promila for the appearing parties. as amended by Act 24 of 1994, providing for imposition of entertainments tax it) respect of entertainments held in cinema theatres located in the State of Andhra Pradesh. The Act has been enacted to provide for the levy of taxes on amusements and other attainments. Prior to January 1. 1984, Section 4 of the Act provided for levy of entertainment tax at a rate fixed on the basis of percentage of the payment made by a person for admission to any entertainment. In addition, there was a provision in Section 4 A for levy of a fixed amount, by way of "show tax", for each show. By Act 59 of 1976, Section 4 C was introduced in the Act and Section 5 of the Act was substituted. under Section 4 C, it was provided that in respect of entertain 623 ments held within tile jurisdiction of any local authority whose population did not exceed 25,000, a tax for every entertainment show would be levied, not on the basis of each payment for admission, but at a certain percentage of the gross collection capacity per show. The percentages for such levy were fixed according to the population of the local authority within the jurisdiction of which the entertainments were held. 'Gross collection capacity per show was defined in the Explanation to Section 4 C to mean the notional aggregate of all payments for admission the proprietor would realise per show, if all the seats or accommodation as determined by the licensing authority under the Andhra Pradesh Cinemas (Regulation) Act, 1966 in respect of the place of entertainment are occupied, and calculated at the maximum rate of payments for admission as determined by the said licensing authority. The levy of tax in the manner as prescribed under Section 4 C could be dispensed with if the proprietor of the theatre opted for the composition scheme contemplated by Section 5 whereunder it was open to a proprietor to enter into an agreement with the prescribed authority to compound the tax payable under Section 4 C for a fixed sum which was to be arrived at in accordance with the formula prescribed under Section 5. According to this formula, the tax was payable on the basis of a percentage of the gross collection capacity per show for the fixed rounds of shows for the whole year and the number of shows was fixed on the basis of the number of shows exhibited in the previous year. This arrangement continued till December 31, 1983, whereafter the provisions of Sections 4.4 A and 5 were amended by Act No. 24 of 1984. The provisions of Sections 4,4 A and 5, as amended by Act 24 of 1984, were as follows "Section 4. (1) There shall be levied and paid to the State Government a tax on the gross collection capacity on every show (hereinafter referred to as the entertainments tax) in respect of entertainments held in the theatres specified in column (2) of the table below and located in the located areas specified in the corresponding entry in column (1) of the said table, calculated at the rates specified in the corresponding entry in column (3) thereof. THE TABLE __________________________________________________________ Local Area. Theatre Rate of tax on the gross collection ca pacity per show _________________________________________________________ (1) (2) (3) _________________________________________________________ 624 (a) Municipal corporations (i)Air conditioned 29 per cent and the Secunderabad Cantonment area and (ii) Air cooled 28 per cent the contiguous area (iii)Ordinary 25 per cent thereof. (other than air conditioned and air cooled) (b) Selection grade muni (i) Air conditioned 28 per cent cipalities and contiguors area of (ii)Air cooled 27 per cent two Kilometres (iii)ordinary (other 24 per cent thereof. than air conditioned 27 per cent and air cooled) (c) Special tirade munici (i) Air conditioned 27 per cent palities and contiguous (ii) Air cooled 26 per cent area of two Kilometres (iii) Ordinary 23 per cent thereof. (other than air conditioned and air cooled) (d) First grade munici palities and conti. (i) Air conditioned 26 per cent guous area of two (ii) Air cooled 25 per cent Kilometres thereof. (iii) Ordinary (other 22 per cent than air conditioned and air cooled) (e) Second grade munici All categories 21 per cent palities and contiguous area of two Kilometres thereof. (f) Third grade municipalities, All categories 20 per cent and contiguous area of two Kilometres thereof. (g) Gram panchayats, selec (i) Permanent and 19 per cent tion grade gram panchayats, semi permanent 20 per cent townships and any other (ii) Touring and local areas. temporary Explanation. For the purpose of this section and section 5, the term 'gross collection capacity per show ' shall mean the notional aggregate of all payments for, admission, the proprietor would realise per show if all the seats or accommodation as determined by 625 the licensing authority under the Andhra Pradesh Cinemas (Regulation) Act, 1955, in respect of the place of entertainment are occupied and calculated at the maximum rate of payments for admission as determined by the said licensing authority. The amount of tax under sub section (1) shall be payable by the proprietor on the actual number of shows held by him in a week." "Section 4 A. (1) In addition to the tax under Section 4, there shall be levied and paid to the State Government in the case of entertain ments held in the local areas specified in column (1) of the Table below, a tax calculated at the rates specified in the corresponding entry in column (2) thereof; THE TABLE Local Areas Rate of tax for every show (a) Municipal Corporation and the Six rupees Secunderabad cantonment area and contiguous area of two Kilometers thereof. (b) Selection grade, Special grade and the Six rupees first grade municipalities and contiguous area of two kilometers thereof. (c) Second grade and Third grade Four rupees municipalities and contiguous area of two kilometers thereof. (d) Gram Panchayats, selection grade Two rupees. gram panchayats, townships and any other local areas. (2) The tax leviable under sub section (1) shall be recoverable from the proprietor. (3) The provisions of this Act other than Sections 4, 6 and 13 shall, so far as may be, apply in relation to the tax payable under subsection (1) as they apply in relation to th e tax payable under Section 4 " 626 "Section 5. ( 1) In lieu of the tax payable under section 4. in the case of the entertainments held in the theatres specified in column (2) of the table below and located in the local areas specified in the corresponding entry in column (1) of the said table, the proprietor thereof may, at his option and subject to such conditions as may be prescribed, pay the amount of tax to the State Government every week as specified in the corresponding entry in column (3) thereof : THE TABLE Local Area Theatre Amount of tax (1) (2) (3) (a) Municipal corpora (i) Air conditioned 24 per cent tions and the of the gross Secunderabad canton collection capacity ment area and the per show multi contiguous area of plied by 22 two kilometrers thereof. (ii) Air cooled 23per cent of the gross collection capacity per show multiplied by 22. (iii) Ordinary 20 per cent of the (other than air gross collection conditioned and capacity per show air cooled) multiplied by 22 (b)Selection grade muni (i) Air conditi 23 per cent of the cipalities and contiguous aned gross collection area of two kilometrers show multiplied by thereof. (ii) Air cooled 22 per cent of the gross collec tion capacity per show multiplied by 22. (iii) Ordinary 19 per cent of the (other than air gross collection conditioned and capacity per air cooled show multiplied by 22. (c)Special grade munici (i) Air conditi 22 per cent of the 627 palities and contiguous oned gross show multi area of two kilo lied by 21. metrers thereof. (ii) Air cooled 21 per cent of the gross collection capacity per show multiplied by 21. (iii) Ordinary 18 per cent of the (other than air gross collection conditioned and capacity per show air cooled) multiplied by 21. (d)First grade municipali (i) Air conditi 21 per cent of ties and contiguous oned gross show area of two kilo multilied by 21. metrers thereof. (ii) Air cooled 20 per cent of the gross collection capacity per show multiplied by 21. (iii) Ordinary 17 per cent of the (other than air gross collection conditioned and capacity per show air colled) multiplied by 21. (e) Second grade muni All cate ores 16 per cent of the cipalities and conti gross collection guors area of two capacity per Kilometres there of show. (f) Third grade muni All categores 15 per cent of the cipalities and gross Collection contiguous area of capacity per show two Kilometres multiplied by 17. thereof. (g) Gram panchayats, (i) Permanent 15 per cent of the selection grade gram and semi gross collection panchayats, townships permanent capacity per and any other show multi local areas. plied by 14. (ii) Touring 14 per cent of the and temporary gross collection capacity per show multiplied by 7. 628 Explanation. For the purposes of computing the gross collection capacity per show in respect of any place of entertainment, the maximum seating capacity or accommodation and the maximum rate of payment for admission determined by the licensing authority under the Andhra Pradesh Cinemas (Regulation) Act, 1955, as on the date when the proprietor is permitted to pay tax under this section shall be taken into account. (2)The amount of tax under sub section (1) shall be payable by the proprietor irrespective of the actual number of shows held by him in a week. (3)Any proprietor who opts to pay tax under this section shall apply in the prescribed form to the prescribed authority to be permitted to pay the tax under this section. (4)On being so permitted, such proprietor shall pay the tax for every week as specified in sub section (1). (5)The option permitted under this section shall continue to be in force till the end of the financial year in which such option is permitted. (6)It shall be lawful for the prescribed authority to vary the amount of tax payable by the proprietor under sub section (1) during the period of option permitted under this section any time, if there is an increase in the gross collection capacity per show in respect of the place of entertainment by virtue of an upward revision of the rate of payment for admission therein or of the seating capacity or accommodation thereof or where the local area in respect of which permission is granted is upgraded or if it is found for any reason that the amount of tax has been fixed lower than the correct amount. (7)Every proprietor who has been permitted to pay the tax under this section shall intimate to the prescribed authority forthwith such increase in the gross collection capacity per show in respect of the place of entertainment, failing which it shall be open to the pre scribed authority by giving fifteen days notice to cancel the option so permitted. 629 (8)Where a proprietor fails to pay the amount of tax on the due date, such amount of tax shall be recoverable with interest calculated at such rate as may be prescribed. (9) The amount of tax due under this section shall be rounded of to the nearest rupee and for this purpose, where such amount contains part of a rupee consisting of paise, then if such part if fifty paise or more it shall be increased to one rupee and if such part is less then fifty paise, it shall be ignored. " As a result of the said amendments, the earlier mode of levy of tax on the basis of the percentage of each payment for admission prescribed in Section 4 was replaced by a mode similar to that provided in Section 4 C, i.e., on the basis as prescribed percentage of the gross collection capacity per show. In the table appended below sub section (1) of section 4 rates were fixed on the basis of a percentage of the gross collection capacity per show varying with the category of the local area in which the theatre was situated as well as on the nature of the theatre, viz. air conditioned and air cooled or ordinary (other than air conditioned and air cooled) or permanent, semi permanent including touring and temporary theatres. In the Explanation to sub section (1) of section 4, the term gross collection capacity per show ' was defined in the same terms as in the Explanation to Section 4 C, to mean the full collection per show if all the seats in the theatre are occupied. In sub section (2) of section 4, it was specifically provided that the amount of tax under sub section (1) shall be payable by the proprietor on the actual number of shows held by him in a week. Section 5 gave an option to the proprietor to pay a weekly consolidated amount irrespective of the number of shows actually held by him and the said amount was fixed on the basis of the prescribed number of shows per week. The number of shows varied with the nature of the theatre as well as the category of the local area in which it was situate. In section 4 A, a fixed amount was leviable by way of show tax on each show. A number of writ petitions were filed in the High Court to challenge the validity of sections 4, 4 A and 5 of the Act, as amended by Act 24 of 1984. The said writ petitions were decided by a division bench of the High Court by judgment dated July 19, 1984. The constitutional validity of the provisions was challenged on three grounds, viz. : (i) the levy of entertainment tax on the basis of gross collection capacity without reference to the actual amount collected or the actual number of tickets sold or the number of persons admitted was ultra vires the legislative power 630 conferred on the State Legislature under entry 62 of List II of the Seventh Schedule; (ii) section 4 was hit by Article 14 of the Constitution inasmuch as by treating unequals as equals, it gave rise to discrirmination amongst different theatres situate within the same local area; and (iii) the levy of entertainment tax under section 4 being exproprietory amounts to an unreasonable restriction on the right guaranteed to the petitioners by Article 19 (1) of the Constitution, and was not saved by clause (6) of Article 19. Relying upon the decisions of this Court in Western India Theatres vs Contonment Board, 1959 Supp. 2 SCR 63, Y. V. Srinivasamurthy vs State of Mysore, AIR 1959 SC 894, and State of Bombay vs R.M.D. Chamarbaugwala, ; , the High Court has held that the State Legislature was competent to levy the impugned tax under entry 62 of list 11 of the Seventh Schedule to the Constitution since the said head of legislative power empowers imposition of tax upon entertainments and amusements and not on the persons entertained or the persons provided amusement and it has to be paid by the persons who provides the entertainment or amusement. The High Court further held that so long as the tax levied retains the character of entertainment tax, the Legislature is competent to adopt such basis or such measure, or such method of levy, as it thinks appropriate. The High Court rejected the contention that the only method in which Legislature can levy the entertainment tax is that prescribed in the old Section 4, i.e., on the basis of the payment of admission. The challenge on the around of Article 14 was negatived by the High Court on the view that wide discretion is allowed to the Legislature in the matter of classification and in the matter of selection of persons to be taxed and that the two fold classification made by section 4 could not be said to be either discriminatory or arbitrary much less could it be said that it metes out hostile discrimination to certain theatres. The High Court also observed that since it was not possible to predicate absolute equality between two theatres, and also because the situation and economics of each theatre are different, it is impossible to expect, or call upon the Legislature to evolve such classification which would meet every conceivable case and which would not result in prejudice even to a single theatre. It was observed that different rates have been prescribed for different local areas and for different types of theatres, i.e. ordinary, air cooled and air conditioned and the Legislature took note of the fact that rate of occupancy in villages will be lower compared to towns, and similarly, in bigger towns there will be greater rate of occupancy, and finally in cities, the rate of occupancy would be even higher and it could not be said that this expectation was unrealistic, or seunreasonable as to call for interference by the court. As regards the challenge based on Article 19 (1) (g), the High Court has taken note of the letter dated July 26, 1983 addressed by the Andhra Pradesh Film Chamber of Commerce, to the Hon 'ble Chief Minister of Andhra Pradesh wherein the exhibitors not only asked 631 tax which suggestion was accepted by the Government with certain modifications varying from 2 to 4% over the rates suggested by the Association. The High Court observed that the rates of tax that were prescribed under section 4 based on an average expected occupancy rate of less than 50 per cent to 66 per cent, could not be said to be either unreasonable or exproprietory. The High Court, however, held that the agreements which had already been entered into by the proprietors of cinema theatres under section 5, as it stood prior to January 1, 1984, would be effective and valid for the period for which they were entered into. The High Court has also observed that merely because the form for exercise of option, as contemplated under sub section (3) of section 5, had not been prescribed, it could not be said that section 5 had not come into operation or was unenforceable and that it was open for the proprietor to send an intimation on an ordinary paper and the authority would be bound to treat it as proper intimation. The High Court rejected the contention that section 5 was discriminatory inasmuch as it did not provide for reduction of the composition amount in case of reduction of seating capacity of a theatre, during the period of one year for which the option was exercised although under sub section (6) of section 5 the provision had been made for enhancement of the composition amount in case the seating capacity/accommodation or the rates of payment for admission were enhanced. The High Court observed that section 5 was only optional and no one was compelled to be governed by it or to opt for the composition scheme contained in section 5 and that according to the said scheme the option once exercised was in force till the end of the financial year in which such option was permitted and that if a person opts to be governed by section 5 he does so with his eyes open and he must be deemed to have accepted all the conditions and features of the scheme and it was not open to him to say that he would avail of the beneficial provisions of the scheme, while rejecting those features which are not advantageous to him. C.A.Nos. 4642 47/84,193 221/85,222/85, 223/85,224 28/85. 229, 232 34/ 85, 1468/85 and 1469 70/85 have been filed against the said decision of the High Court dated July 19, 1984. C.A. Nos. 5722/85, 1527/86, and SLP (C) No. 3127/ 85 have been filed against the decision of the High Court dated August 7, 1984 which is based on the earlier decision dated July 19, 1984 and similarly C.A. Nos. 1858/89 and 4798/89 are directed against the decisions dated February 12, 1986 and March 30, 1998 based on the earlier decision dated July 19, 1984. During the pendency of these appeals, the Act was amended by A.P. Act 23 of 1988 and A.P. Act 16 of 1991 whereby the Tables below Sections 4,4 A and 5 were substituted and sub Section (6 A) was inserted in Section 5 whereby 632 provision was made for reduction of the amount of tax payable by the proprietor during the financial year if there is a reduction in the seating capacity or in the accommodation of the place of entertainment at any time during the period of six months commencing from the 1st day of April and ending with 30th day of September or from the 1st day of October and ending with 31st day of March of any financial year. The learned counsel appearing for the appellants have assailed the constitutional validity of sections 4 and 5 on two grounds, viz. : (1) that the impugned provisions do not fall within the ambit of the legislative power conferred on the State Legislature under Entry 62 of List II of the Seventh Schedule of the Constitution , and (2) that the impugned provisions were violative of the right to equality guaranteed under Article 14 of the Constitution inasmuch as they treated unequals as equal by imposing tax at a uniform rate on a particular class of cinema theatres irrespective of their location and occupancy. While considering the question as to legislative competence of the State Legislature, it is necessary to bear in mind that the impugned provisions provide fir imposition of a tax and a tax has two distinct elements, viz., subject of the tax and the measure of the tax. The subject of the tax is the person, thing or activity on which the tax is imposed, and the measure of the tax is the standard by which the amount of tax is measured. The competence of the Legislature to enact a law imposing a tax under a particular head of the legislative list has to be examined in the context of the subject of the tax. If the subject of the tax falls within the ambit of the legislative power conferred by the head of legislative entry, it would be within the competence of the Legislature to impose such a tax. It is, therefore, necessary to examine the scope of the legislative entry, viz., Entry 62 of List II, which is invoked in support of the competence of the State Legislature to impose the tax and ascertain whether the subject of the tax imposed by the impugned provisions falls within the ambit of the said entry. Entry 62 of List 11 is as follows "62. Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling The said entry is in pari materia with entry 50 of the Provincial List in the Seventh Schedule to the Government of India Act, 1935. Construing the said entry, this Court, in the Western India Theatres vs Cantonment Board (supra), has rejected the contention that the entry contemplates a law imposing taxes on persons who receive or enjoy the luxuries or the entertainments or the amusements 633 and has held "The entry contemplates luxuries, entertainments and amusements as objects on which the tax is to be imposed. . . The entry, a,,, we have said, contemplates a law with respect to the matters regarded as objects and law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment." (p.69) In that case, the Cantonment Board had imposed entertainment tax of Rs. 10 per show on the cinema houses of the appellant in the said appeal and Rs. 5 per show on others. Upholding the said imposition this Court has held "It is a tax imposed on every show, that is to say, on every instance of the exercise of a particular trade, calling or employment. If there is no show, there is no tax. . The impugned tax is a tax on the entertainment resulting in a show". (p. 69 70) Similarly, in Y. V. Srinivasamurthy vs State of Mysore (supra), upholding the provisions of the Mysore Cinematograph Shows Act, 1951 enacted under the Constitution, which authorised levy of tax on conematograph shows at rates prescribed in a rising scale according to the seating accommodation and the cities where the cinematograph show was held, this Court following the decision in Western India Theatres case (supra) held that the said Act was validly enacted in exercise of the legislative power conferred by entry 62 of List II. In the instant case, we find that prior to the enactment of Act 24 of 1984, Section 4 provided for levy of entertainment tax on the basis of each payment for admission to the cinema theatre and under Section 4 C, in respect of entertainments held within the jurisdiction of a local authority whose population did not exceed 25,000 the tax was levied on the basis of the prescribed percentage of the gross collection capacity per show. In other words, there were two modes for levy of the tax, one on the basis of the actual number of persons admitted to each show and the other on the basis of the percentage of the gross collection capacity per show. As a result of the amendments introduced by Act 24 of 1984, the system for levy of tax on the basis of number of persons actually admitted to each show was dispensed with and the tax was to be levied on the basis of the percentage of the gross collection capacity per show and different percentages were prescribed depending on the type of the theatre and the nature of the local area where it was situated. Under section 5, an option was given to pay a tax on the basis of the 634 prescribed percentage fixed for a fixed number of shows in a week irrespective of the number of shows actually held. It is not disputed that the tax as it was being levied prior to January 1, 1984, i.e, before the amendment of Section 4 by Act 24 of 1984, was a tax on entertainment falling within the ambit of entry 62 of List 11. The question is whether the alteration in the said mode of levy of tax by Act 24 of 1984 has the effect of altering the nature of the tax in a way that it has ceased to be a tax on entertainments and falls beyond the field of legislative competence conferred on the State Legislature by Entry 62 of List 11. In our view, the said question must be answered in the negative. The fact that instead of tax being levied on the basis of the payment for admission made by the persons actually admitted in the theatre it is being levied on the basis of the gross collection capacity per show calculated on the basis of the notional aggregate of all the payments for admission which the proprietor would realise per show if all the seats or accommodation in respect of the place of entertainment are occupied and calculated at the maximum rate of payments for admission, would not, in our opinion, alter the nature of the tax or the subject matter of the tax which continues to be a tax on entertainment. The mode of levy based on 'per payment for admission ' prescribed under Section 4(1) prior to amendment by Act 24 of 1984 necessitated enquiry into the number of shows held at the theatre and the number of persons admitted to a cinematheatre for each show and gave room for abuse both on the part of proprietor as well as other officers incharge of assessment and collection of tax. The mode of levy or measure of the tax prescribed under section 4(1), and substituted by Act 24 of 1984, is a more convenient mode of levy of the tax inasmuch as it dispenses with the need to verify or enquire into the number of persons admitted to each show and to verify the correctness or otherwise of the return submitted by the proprietor containing the number of persons admitted to each show and the amount of tax collected. Prior to the enactment of Act 24 of 1984, tax was leviable on the basis of either of the two modes under Section 4(1) and4 C. On an examination of the rates prescribed under both the modes, the High Court found that under the system of consolidated levy prescribed under Section 4 C the proprietor could break even if the average rate of occupancy was 40%. As regards the rates prescribed under Section 4 and 5 as amended by Act 24 of 1984, the High Court has observed that the said rates are based on an average expected occupancy rate of less than 50% or 66% depending upon the area in which the theatre is situated. This would mean that the entertainment tax that would be collected over and above the average occupancy rate would constitute the profit of the proprietor. In the circumstances, it cannot be said that the adoption of the system of consolidated levy in Section 4(1) as amended by Act 24 of 1984 alters the nature of tax and it has ceased to be a tax on entertainments. 635 It has been urged that since both the modes of levy of tax were prevalent prior to the enactment of Act 24 of 1984, an option should have been given to the proprietor of a cinema theatre to choose between either of the two modes and that under the impugned provisions the choice is confined to two modes of assessment under the same system of consolidated levy based on the gross collection capacity per show, one on the basis on the gross collection capacity per show, under Section 4(1) and other on the basis of gross collection capacity per show for a prescribed number of shows per week under section 5. We find no substance in this contention. Once it is held that tax on entertainment could be levied by either of the two modes, viz., per payment of admission or gross collection capacity per show, it is for the legislature to decide the particular mode or modes of levy to be adopted and whether a choice should be available to the proprietor of the cinema theatre in this regard. The legislature does not transgress the limits of its legislative power conferred on it under Entry 02 of List 11 if it decides that consolidated levy on the basis of gross collection capacity per show shall be the only mode for levy of tax on entertainments. We are, therefore, unable to accept the contention urged on behalf of the appellants that the impugned provisions contained in Section 4 and 5 as amended by Act 24 of 1984 are ultra vires the legislative power conferred on the State Legislature under Entry 62 of List II. The challenge to the impugned provisions on the basis of Article 14 is grounded on the principle that discrimination would result if unequals are treated equally are reliance is placed on the decision of this Court in K. T Moopil Nair vs The State of Kerala & Anr, ; It has been urged that under section 4, as substituted by Act 24 of 1984, a uniform rate has been prescribed for cinema theatres of a particular class situate in different parts of the same local area although the average rate of occupancy in the cinema theatres located in different parts of the same local area is not the same and a cinema theatre which is located in the central part of the local area would have better rate of occupancy as compared to a theatre located in a remote part and further that the occupancy in the theatre depends on various of the factors which have not been taken into account. We find it difficult to accept the contention. Article 14 enjoins the State not to deny to any person equality before the law or the equal protection of the laws. The phrase "equality before the law" contains the declaration of equality of the civil rights of all persons within the territories of India. It is a basic principle of republicanism. The phrase "equal protection of laws" is adopted from the Fourteenth Amendment to U.S. Constitution. The right 636 conferred by Article 14 postulates that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Since the State, in exercise of its governmental power, has, of necessity, to make laws operating differently on different groups of persons within its territory to attain particular ends in giving effect to its policies, it is recognised that the State must possess the power of distinguishing and classifying persons or things to be subjected to such laws. It is, however, required that the classification must satisfy two conditions namely, (i) it is founded on an intelligible differentia which distinguishes those that are grouped together from others; and (ii) the differentia must have a rational relation to the object sought to be achieved by the Act. It is not the requirement that the classification should be scientifically perfect or logically complete. Classification would be justified if it is not palpably arbitrary. [See: Re Special Courts Bill, at pp. 534 5361. It there is equality and uniformity within each group, the law will not be condemned as discriminative, thou oh due to some fortuitous circumstance arising out of a peculiar situation some included in a class get and advantage over others, so long as they are not singled out for special treatment. [See: Khandige Sham Bhat vs Agricultural Income Tax Officer, ; at p. 8 171 Since in the present case we are dealing with a taxation measure it is necessary to point out that in the field of taxation the decisions of this Court have permitted the legislature to exercise an extremely wide direcretion in classifying items for tax purposes, so long as it refrains from clear and hostile discrimination against particular persons or classes. [See: East India Tobacco Co. vs State of A.P., 19631 1 SCR 404, at p. 411, P.M. Ashwathanarayanan Shetty vs State of karnataka, 1988, Supp. 3 SCR 155, at p. 188, Federation of Hotel & Restaurant Association of India vs Union of India, , at p. 949, Kerala Hotel & Restaurant Association vs State of Kerala, ; , at p. 530, and Gannon Dunkerley and Co. vs State of Rajasthan, , at p. 3971. Reference, in this context, may also be made to the decision of the U.S. Supreme Court in San Antonio Independent School District vs Bodrigues, 41 at p. 41, wherein Justice Stewart, speaking for the majority has observed "No scheme of taxation, whether the tax is imposed on property, income or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause. " 637 Just a difference in treatment of persons similarly situate leads of discrimination, so also discrimination can arise if persons who are unequals, i.e. differently placed, are treated similarly. In such a case failure on the part of the legislature to classify the persons who are dissimilar in separate categories and applying the same law, irrespective of the differences, brings about the same consequence as in a case where the law makes a distinction between persons who are similarly placed. A law providing for equal treatment of unequal objects, transactions or persons would be condemned as discriminatory if there is absence of rational relation to the object intended to be achieved by the law. In K T Moopil Nair vs State of Kerala (supra), this Court was dealing with a law providing for imposition of uniform land tax at a flat rate without having regard to the quality of the land or its productive capacity. The law was held to be violative of Article 14 of the constitution of the ground that lack of classification had created inequality. The said decision in K. T Moopil Nair 's case (supra) has been explained by this Court is Jalan Trading Co. (Pvt.) Ltd. vs Mill Mazdoor Union, ; , in the context of challenge to the validity of section 10 of the providing for payment of a minimum bonus of 4% by all industrial establishments irrespective of the fact whether they were making profit. This Court held that the judgment in Moopil Nair 's case (supra) has not enunciated any broad proposition that when persons or objects which are unequals are treated in the same manner and are subjected to the same burden or liability discrimination inevitably results. It was observed : "It was not said by the Court in that case that imposition of uniform liability upon persons, objects or transactions which are unequal must of necessity lead to discrimination. Ordinarily it may be predicated of unproductive agricultural land that it is incapable of being put to profitable agricultural use at any time. But that cannot be so predicated of an industrial establishment which has suffered loss in the accounting year, or even over several years successively. Such an establishment may suffer loss in one year and make profit in another. " (p.35) It was further observed "Equal treatment of unequal objects, transactions or persons is not liable to be struck down as discriminatory unless there is simulta 638 neously absence of a rational relation to the object intended to be achieved by the law." (p.36) The limitations of the application of the principle that discrimination would result if unequals are treated as equal, in the field of taxation, have been pointed out by this Court in Twyford Tea Co. Ltd. & Anr. vs The State of Kerala & Anr., [1970] 3SCR 383, wherein tax at a uniform rate was imposed on plantations. Hidayatullah, CJ, speaking for the majority, while upholding the tax, has observed "It may also be conceded that the uniform tax falls more heavily on some plantations than on others because the profits ,ire widely discrepant. But does that involve a discrimination ? If the answer be in the affirmative hardly any tax direct or indirect would escape the same ensure for taxes touch purses of different lengths and the very uniformity of the tax and its equal treatment would become its undoing. The rich and the poor pay the same taxes irrespective of their incomes in many instances such as the sales tax and the profession tax etc." (pp. 389 390) It was further observed : "The burden is on a person complaining of discrimination. The burden is proving not possible 'inequality ' but hostile 'unequal ' treatment. This is more so when uniform taxes are levied. It is not proved to us how the different plantations can be said to be hostilely or unequally treated. A uniform wheel tax on cars does not take into account the value of the car, the mileage it runs, or in the case of taxis, the profits it makes and the miles per gallon it delivers. An ambassador taxi and a fiat tasi give different out turns in terms of money and mileage. Cinemas pay the same show fee. We do not take a doctrinaire view of equality." (p.393 94) In the instant case, we find that the legislature has prescribed different rates of tax by classifying theatres into different classes, namely, air conditioned, air cooled, ordinary (other than air conditioned and air cooled), permanent and semipermanent and touring and temporary. The theatres have further been categorized on the basis of the type of the local area in which they are situate. It cannot, therefore, be said that there has been no attempt on the part of the legislature to classify the cinema theatres taking into consideration the differentiating circum 639 stances for the purpose of imposition of tax. The grievance of the appellants is that the classification is not perfect. What they want is that there should have been further classification amongst the theatres falling in the same class on the basis of the location of the theatre is each local area. We do not think that such a contention is well founded. In relation to cinema theatres it can be said that the attendance in the various cinema theatres within a local area would not be uniform and would depend on factors which may very from time to time. But this does not mean that cinema theatres in a particular category of local area will always be at a disadvantage so as to be prejudicely affected by a uniform rate as compared to cinema theatres having a better location in the local area. It is, therefore, not possible to accept the contention that the impugned provisions are violative of right to equality guaranteed under Article 14 of the Constitution on the basis that unequals are being treated equally. Another contention that has been urged on behalf of the appellants is that while provision was made under sub section (6) of section 5 for enhancement of the amount of tax in the event of increase in the amount of gross collection capacity, there was no corresponding provision for reduction for the amount of tax in the event of reduction in the gross collection capacity. The said provision for enhancement contained in sub section (6) of section 5 relates to the cases where the proprietor of a cinema theatre opts for payment of weekly consolidated amount. Since the proprietor has the option to opt for the said scheme he cannot complain that the scheme suffers from inequality on account of absence of a corresponding provision for reduction of amount of tax. In any event the said grievance has how been removed by the introduction of sub section (6 A) in section 5 by amendments, introduced in the Act by A.P. Act 23 of 1988 and A.P. Act 16 of 199 1. In the result, we find no merit in these appeals and the special leave petition and they are accordingly dismissed. The parties are, however, left to bear their own costs. V.P.R. Appeals dismissed.

Prior to January 1, 1984, the Andhra Pradesh Entertainment Tax Act, 1989, in Section 4, provided for levy of entertainment tax at a rate fixed on the has is of percentage of payment made by a person for admission to any entertainment. In section 4 C, in respect of entertainments held within the jurisdiction (if any local authority where population did n(it exceed 25, 000. tax was levied at a certain percentage of the gross collection capacity per show and the percentage for such levy were fixed according to the population of the local authority within the jurisdiction of which the entertainment held. The Amending Act 24 of 1984, replaced the earlier mode of levy of tax prescribed in Section 4 and introduced a mode of levy of tax on the has is of a prescribed percentage of the gross collection capacity per show. The rates 617 were fixed on the basis of a percentage of the gross collection capacity per show varying with the category of the local area in which the theatre was situated as well as on the nature of the theatre, viz. air conditioned air cooled or (other than air conditioned and air cooled)or permanent,semi permanent including touring and temporary the atres. The proprietor was given an option to pay a weekly consolidated amount irrespective of the number of shows actually held by him and the said amount was fixed on the basis of the prescribed number of shows per week. The number of show. . varied with the nature of the theatre as well as the category of the local area in which it was situate. A fixed amount was also leviable by way of show tax on each show. Before the High Court, a number of writ petitions were filed challenging the validity of sections 4,4 A and 5 of the Andhra Pradesh Entertainments Tax Act, 1939, as amended by Act 24 of 1984, on the grounds that (i) the levy of entertainment tax on the basis of gross collection capacity without reference to the actual amount collected or the actual number of tickets sold or the number of persons admitted was ultra vires the legislative power conferred on the State Legislature under Entry 62 of List 11 of the Seventh Schedule of the Constitution; (ii) section 4 was hit by Article 14 of the Constitution, as it gave rise to discrimination amongst different theatres situate within the same local area; and that (iii) the levy of entertainment tax under section 4 being exproprietory amounted to an unreasonable restriction on the right guaranteed to the petitioners by Article 19(1) (g) of the Constitution and was not saved under Article 19(6). Relying upon the decisions in Western India Theatres vs Cantonment Board. [1959] Supp. 2 SCR 63; Y.V. Srinivasamurthy vs State of Mysor. AIR 1959 SC 894 and State of bombay vs R.M.D. Chamarbaugwala. A. I. R. the High Court dismissing the writ petitions held that the State Legislature was competent to levy the tax under Entry 62 of List 11 of the Seventh Schedule; that as the tax levied retained the character of entertainment tax, the Legislature was competent to adopt such basis or such measure, or such method of levy; that wide discretion was allowed to the Legislature in the matter of classification and in the matter of selection of persons to be taxed and that the two fold classification made by section 4 was neither discriminatory nor arbitrary or it did not mete out hostile discrimination to certain theatres; that the rates of tax that were prescribed under section 4 based on an average expected occupancy rate of less than 50 per cent to 66 per cent, was neither unreasonable nor expropriatory; that section 5 was only optional and no) one was compelled to be governed by it or to opt for the composition scheme and if a person opted to be governed by section 5, he must be deemed 618 to have accepted all the conditions and features of the scheme. During the pendency of these appeals Special leave petition in this court the Act of 1939 was amended by A.P. Act 23 of 1988 and A.I. Act 16 of 1991, whereby the Tables below sections 4, 4 A and 5 were substituted and subsection (6A) was inserted in section 5. Before this Court the appellants and the petitioners reiterated two contentions raised before the High Court while assailing the constitutional validity of sections 4 and 5 of the Act, namely, (1) that the impugned provisions did not fall within the ambit of the legislavite power conferred on the St .Ate Legislature under Entry 62 of List 11 of the Seventh Schedule of the Constitution; (ii) that the impugned provisions were violative of Article 14 of the Constitution, as they provided for imposing tax at a uniform rate (in a particular class of Cinema theaters irrespective of their location and occupancy. Dismissing the appeal and the Special Leave petition, this Court, HELD: 1.1. While considering the question as to legislative competence of the State Legislature, it is necessary to bear in mind that the impugned provisions provide for imposition of a tax and a tax has two distinct elements viz., subject of the tax and the measure of the tax. The subject of the tax is the person, think or activity on which the tax is imposed, and the measure of the tax is the standard by which the amount of tax is measured. (632 1)) 1.2. The competence of the Legislature to enact a law imposing a tax under a particular head of the legislative list has to be examined in the context of the subject of the tax. It the subject of the tax falls within the ambit of the legislative power conferred by the head of legislative entry, it would be within the competence of the Legislature to impose such as tax. (632 E) 1.3. Prior to the enactment of Act 24 of 1984, there were two modes for levy of the tax, one on the basis of the actual number of persons admitted to each show and the other on the basis of the percentage of the grows collection capacity per show. As a result of the amendments introduced by Act 24 of 1984, the system for levy of tax on the basis of number (of persons actually admitted to each show was dispensed with and the tax was to be levied on the basis of the percentage of the gross collection capacity per show and different percentages were prescribed depending on the type of the theatre and the 619 nature of the local area where it was situated. (633 F H) 1.4. The question whether the alteration in the said mode of levy of tax by Act 24 of 1984 has the effect of altering the nature of the tax in a way that it has ceased to he a tax on entertainments and falls beyond the field of legislative competence conferred (in the State Legislature by Entry 62 of List 11, must he answered in the negative. 'The fact that instead of tax being levied on the basis of the payment for admission made by the persons actually admitted in the theater it is being levied on the basis of the gross collection capacity per show calculated on the basis of the notional aggregate of all the payments fair admission which the proprietor would realise per show if all the seats or accommodation in respect of the place of entertainment are (occupied and calculated at the maximum rate of payments for admission, would not alter the nature of the tax or the subject matter of the tax which continues to he a tax on entertainment. (634 B D) 1.5. The mode of levy based on 'per payment for admission ' proscribed under Section 4(1) prior to amendment by Act 24 of 1984 necessitated enquiry into the number of shows held at the theatre and the number of persons admitted to a cinema theatre for each show and gave room for abuse both on the part of proprietor as well as other officers incharge of assessment and collection of tax. The mode of levy or measure of the tax prescribed under section 4(1),as substituted by Act24 of 1984, is a more convenient mode of levy of the tax inasmuch as it dispenses with the need to verify or enquire into the number of persons admitted to each show and to verify the correctness or otherwise of the returns submitted by the proprietor containing the number of persons admitted (A) each show and the amount of tax collected. (634 E) 1.6. On an examination of the rates prescribed under both the modes it is found that under the system (of consolidated levy prescribed under Section 4 C, the proprietor could break even if the average rate of occupancy was 40%. As regards the rates prescribed under Sections 4 and 5 as amended by Act 24 of 1984 they are based on an average expected occupancy rate of less than 50% or 66% depending upon the area in which the theatre is situated. This would mean that the entertainment tax that would be collected over and above the average occupancy rate would constitute the profit of the proprietor. In the circumstances, it cannot be said that the adoption of the system of consolidated levy in Section 4(1) as amended by Act 24 of 1984 alters the nature of tax and it has ceased to be a tax on entertainments. (634 F H) 620 1.7. Once it is held that tax #in entertainment could be levied either of the two modes, viz., per payments of admission or gross collection capacity per show, it is for the legislature to decide the particular mode or modes of levy to be adopted and whether a choice should he available to the proprietor of the cinema theatre in this regard. The legislature does not transgress the limit: of its legislative power confer red on it under Entry 62 of List 11 if it decides that consolidated levy on the basis of gross collection capacity per show shall be the only mode for levy of tax on entertainments (635 C) 1.8. The impugned provisions contained in Sections 4 and 5 as amended by Act 24 of 1984 are not ultra vires the legislative power conferred on tile State Legislature under Entry 62 of List 11. (635 D) Western India Theatres vs Cantonment Board, [1959] Supp. 2 SCR 63 and Y. V Srinivasamurthy vs State of Mysore AIR 1959 SC 894, explained. 2.01. The right conferred by Article 14 postulates that all persons similarly circumstanced shall he treated alike both in privileges conferred and liabilities imposed, Since the State, in exercise of its governmental power, has, of necessity, to make laws operating differently on different groups of persons within its territory to attain particular ends in giving effect to its policies, it is recognised that the State must possess the power of distinguishing and classifying persons or things to be subjected to such laws. It is, however, required that the classification must satisfy two conditions, namely, (i)it is founded on an intelligible different is which distinguishes those that are grouped together from others; and (ii) the differential must have a rational relation to the object sought to be achieved by the Act. It is not the requirement that the classification should be scientifically perfect or logically complete. Classification would be justified if it is not palpable arbitrary. (636 A C) Re Special Courts Bill, at pp. 534 536 and Khandige Sham Bhat vs Agricultural Income Tax Officer, ; at p. 817. followed. In the field of taxation the legislature exercises an extremely wide discretion in classifying items for the purposes, so long as it refrains from clear and hostile discrimination against particular persons or classes. (636 E) 621 East India Tobacco Co vs State of A.P. ; at p. 411; P.M. Ashwathanarayana Shetty vs State of Karnataka. [1988] Supp.3 SCR 155 at p.m 188; Federation of Hotel & Restaurant Association of India vs Union of India, at p. 949, Kerala Hotel & Restaurant Association vs State of Kerala; , at p. 530: Gannon Dunkerley, and Co. vs State of Rajasthan, at 397; and San Antonio Independent School District vs Bodriques; , at p. 41, referred to. just as a difference in the treatment of persons similarly situate leads to discrimination ', so also discrimination can arise if persons who are unequals, i.e. differently placed. are treated similarly. In such a case failure on the part of the legislature to classify the persons who are dissimilar in separate categories and applying the same law, irrespective of the differences brings about the same consequence as in a case where the law makes a distinction between persons who are similarly placed. A law providing for equal treatment of unequal objects transactions or persons would he condemned as discriminatory if there is absence of rational relation to the object intended to he achieved by the law. (637 A B) K. T Moopil Nair vs The State of Kerala & Anr. , ; , distinguished. Jalan Trading Co. (pvt.) Ltd. vs Mill Mazdoor Union, ; and Twyford Tea Co. Ltd. & Anr vs The State of Kerala & Anr., ; , referred to. In the instant case, the legislature has prescribed different rates of tax by classifying theatres in the different classes, namely, air conditioned,air cooled, ordinary (other than air conditioned and air cooled), permanent and semi permanent and touring and temporary. The theatre% have further been categorized on the basis (of the type of the local area in which they are situate. It cannot, therefore, be said that there has been no attempt on the part of the legislature to classify the cinema theatres taking into consideration the differentiating circumstances for the purpose of imposition of tax. (638 G H) 2.05. In relation to cinema theatres it can he said that the attendance in the various cinema theatres within a local area would not be uniform and would depend on factors which may vary from time to time. But this does not mean that cinema theatres in a particular category of local area will always 622 be at a disadvantage so as to be prejudicially affected by a uniform rate as compared to cinema theatres having a better location in the same local area. The contention that the impugned provisions are violative of right to equality guaranteed under Article 14 (if the Constitution on the basis that unequals are being treated equally cannot be accepted. (639 B C) 3. The provision for enhancement contained in sub section (16) of section 5 relates to the cases. There the proprietor of a cinema theatre opts for payment of weekly consolidated amount. Since the proprietor has the option to opt for the said scheme he cannot complain that the scheme suffers from inequality. on account of absence of a corresponding provision for reduction of amount of tax. (639 E)

: Criminal Appeal No. 208 of 1966. Appeal by special leave from the judgment and order dated February 22, 1966 of the Patna High Court in Criminal Appeal No. 530 of 1962 and Government Appeal No. 44 of 1962. A. S.R. Chari, M.K. Ramamurthi, G. Ramamurthy and Vineet Kumar, for the appellant. B.P. Jha, for the respondent. 695 The Judgment of the Court was 'delivered by Sikri, J. Fourteen persons were tried by the learned Second Additional Sessions Judge, Bhagalpur, on various charges. Out of these 14 persons Sheo Prasad Sharma and Ram Prasad Sharma were charged under section 302, i. P.C. Sheo Prasad Sharma was charged under section 302 for having intentionally caused the death of Qudrat Mian by shooting him down with his gun whereas Ram Prasad Sharma was charged under this section for having shot down with his gun Kaleshwar Yadav and thus having caused the murder of this person. The Second Additional Sessions Judge, Bhagalpur, convicted Sheo Prasad Sharma under sections 304, 324/34, 201 and 148 and sentenced him to seven years rigorous imprisonment. The appellant, Ram Prasad Sharma was convicted under sections 326/149, 324/ 34, 201 and 148,/.P.C. and sentenced to four years rigorous imprisonment. Seven other accused were also convicted but it is not necessary to mention the sections under which they were convicted. Five of the accused persons were acquitted by the learned Second Additional Sessions Judge. Two appeals were filed before the High Court, one by the State and the other by the nine convicted persons, including Ram Prasad Sharma. Both the appeals were heard together. The High Court accepted the appeal of the State as far as Ram Prasad Sharma was concerned and convicted him under section 304, I.P.C., in connection with the shooting and causing the death of Kaleshwar and sentenced him to rigorous imprisonment for seven years. The convictions of seven others were altered from under sections 326/149 to one under sections 304/149 but the sentence of four years rigorous imprisonment was maintained. In other respects the convictions were maintained. The High Court, however, quashed the convictions under section 201, I.P.C. The nine convicted persons filed petition for special leave to appeal. This Court by its order dated October 4, 1966 rejected the petition except as regards Ram Prasad Sharma and his appeal is now before us. The prosecution case as accepted by the High Court was, in brief, as follows. On August 15, 1960, at about 1.30 or 2 p.m., by the side of a Danr (water channel) known as Chaksafia Danr at village Bindi about five miles away from. Police Station Banka, a serious occurrence took place. The Chaksafia Danr runs between village Bindi which is to its east and Banki which is to its west and then goes further north to village Bhadrar and other villages. Lands of several villages, namely, Bhadrar, Nayadih, Uprama, Basuara, Jitnagar, Majhiara, Banki, etc. are irrigated from the water of this Danr and there are detailed entries regard LI4Sup. C.I, 69 15 696 ing the respective rights of the different villages in the Fard Abnashi which was prepared at the time of the last survey. It appears that the villagers of different villages who enjoy the above rights go in in a body every year during the rainy season for 'clearing tins Danr in order mat there may not be any obstruction in the flow of water therein. On the date of occurrence, i.e. August 15, 1960, a number of persons of villages Bhadrar, Nayadih, Uprama, Basuara, Jitnagar and Bhatkunki went along with spades to clear this Danr in the .usual course and some of them had lathis also with them. The total number of persons were estimated to vary from about 150 to 'about 400. When they reached the brick kiln, which exists in Malmala Tikar they were confronted by a mob of 40 to 50 persons including all the convicted persons. Sheo Prasad Sharing and Ram Prasad Sharma were armed with guns and Patel Thakur was armed with a pharsa and the remaining accused except Dhanusdhari Mehta were armed with bhalas. It may be mentioned that in the First Information Report Dhanusdhari Mehta was alleged to have been armed with a pistol but this allegation was subsequently given up. Dhanusdhari Mehta was a retired inspector of police; his son Ram Prasad Sharma was a practising lawyer at Bhagalpur at the time of the occurrence in question. On seeing this crowd of villagers, Sheo Prasad Sharma directed them to return and threatened to shoot them if they failed to do so. There was some exchange of hot words and brick bats were thrown by both sides. Sheo Prasad Sharma thereafter fired one shot towards the sky but the villagers did not disperse. Then Dhanusdhari ordered his two sons Ram Prasad Sharma and Sheo Prasad Sharma to open fire on the villagers. On this both Ram Prasad Sharma and Sheo Prasad Sharma opened fire with their guns on the villagers. One shot fired by Sheo Prasad Sharma hit one Qudrat Mian and he fell down and died on the spot. One other villager was alleged to have been shot by Ram Prasad Sharma and he died on the spot. A number of villagers sustained gun shot injuries and as a result of the firing by Sheo Prasad Sharma and Ram Prasad Sharma, who are estimated to have fired about 12 rounds, the villagers dispersed. Sobban Mandal, one of the injured persons went to the Police Station with three other injured persons, namely, Chotan Rai, P.W. 5, Jagdeo Choudhary, P.W. 8 and Kishori Prasad Singh, P.W. 12, who had also sustained gun shot injuries. The learned Additional Sessions Judge had rejected the prosecution story that Kaleshwar Yadav was shot and killed during the occurrence. He had come to the conclusion that Kaleshwar Yudav had died prior to the date of occurrence. The High Court has accepted the prosecution version and it is this finding which is 697 being seriously challenged by the learned counsel for Ram Prasad Sharma, appellant. The learned Additional Sessions Judge had rejected the version of the prosecution regarding the shooting down of Kaleshwar Yadav mainly on the basis of entries in an attested copy of the Chaukidar 's hath chitha (Ext. D) according to which the death of Kaleshwar took place in Gopalpur mauza on August 12, 1960, that is, three days prior to the occurrence. The learned Additional Sessions Judge had also relied on the First Information Report in which the name of Kaleshwar Yadav does not find mention. Two points arise before us, first, whether the hath chitha is admissible in evidence, and secondly, whether on the evidence on record it is otherwise proved that Kaleshwar Yadav was shot down by the appellant Ram Prasad Sharma. According to the entries in this document, Ext. D, Kaleshwar Yadav died on August 12, 1960, in Gopalpur Mauza and in the remarks column of this register he is described as "Bahanoi (brother in law) of Asarfi Yadav. " We looked at the attested copy produced in Court and we were unable to ascertain the date on which the attested copy had been obtained by the defence. The only dates this document bears are the date of attestation (October ' 15, 1960) by the District Statistical Officer, the date September 22, 1960, next to the signature of one Shukdeo Chowdhary, and the date of admission by the Additional Sessions Judge (June 25, 1962). As rightly pointed out by the High Court the learned Sessions Judge took this copy on record in an extraordinary manner. The prosecution evidence closed on June 21, 1962 and on June 25, 1962, this attested copy was admitted in evidence without any proof. On the same day an order was passed calling for the original. On the very next day the public prosecutor filed a petition objecting to the admission of this document and alleged, that the document was bogus. The hearing of the argument thereafter proceeded on July 4, 1962. The Public Prosecutor again filed a petition that this document be not taken in evidence. The learned Additional Sessions Judge disposed of this petition with the following order: "Let the petition be placed with the record. The original has once again been called for. The matter will be discussed in the judgment. " It is pointed out by the High Court that there is no further reference to the document in the order sheet. After the arguments concluded on July 7, 1962, the case was adjourned for judgment. The judgment of the learned Additional Sessions Judge shows that the original was subsequently received by him with letter dated July 10, 1962, and he observed that he was satisfied about 698 its genuineness. The High Court rightly pointed out that the Additional Sessions Judge should have dealt with the question of the admissibility of the document. The High Court, following Sanatan Senanati vs Emperor(1) and Brij Mohan Singh vs Priya Brat Narain Sinha(2), held that the document was inadmissible in evidence. We agree with the conclusion arrived at by the High Court. Section 35 of the Evidence Act provides: "An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact." In this case it has not been proved that the entry in question was made by a public servant in the discharge of his official duties. As observed by this Court in Brij Mohan Singh vs Priya Brat Narain Sinha,(2), "the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it ' himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high." No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty. In the result we must hold that exhibit D. the hath chitha, was rightly held by the High Court to be inadmissible. The High Court then dealt with the other evidence on the record and came to the conclusion that Kaleshwar was actually shot down by the appellant, Ram Prasad Sharma. The learned counsel for the appellant has tried to assail these findings but he has not been able to show in what way the High Court has gone 'wrong in coming to the conclusion. The High Court states that ten witnesses have named Kaleshwar being the second person who was shot. Further, Kaleshwar 's son and widow, P.Ws 24 and 34, Chamak Lal Yadav and Karma Devi, deposed that on the day of occurrence Kaleshwar had left his house with a kudal and had gone to Chaksafia Danr alongwith others. They further deposed that on the next day they learnt from Nandai Lal Singh, P.W. 17, that Kaleshwar had. been killed. The High Court further accepted the explanation of P.W. 1, who had made the F.I.R., that he had named Gholtan as being the person shot and killed by Ram ' Prasad because he had heard a hulla that Gholtan had been murdered. It seems to us that the High Court came to a correct (1) A.I.R. 1945 Pat. 489. (2) [19651 3 S.C.R. 861 ,864. 699 conclusion and was right in accepting the explanation of P.W. 1. The learned counsel further contends that it was doubtful that 12 rounds would have been fired. He points out the number of injuries received by the villagers. But these injuries support the prosecution story. From the injuries on the various persons examined by Dwarka Nath Prasad, P.W. 41, apart from the .persons who had died and whose bodies had been held to ' have been cremated by unidentified persons, it appears that 20 persons had received gun shot injuries; one of them had as many as ' 14 lacerated wounds and another had 10 lacerated wounds. Apart from that there is no reason to doubt the oral evidence given in this case that a number of rounds were fired. In the result the appeal fails and is dismissed. G.C. Appeal dismissed.

The appellant was tried for an offence under section 302 I.P.C. as well as for other offences in connection with an incident in which two persons were killed and several injured. The allegation against the appellant was that he caused the death of one K by shooting him with a gun in the course of the alleged incident. The Additional Sessions Judge who tried the case convicted the appellant for offences under sections 326/149. 324/34, 201 'and 148 I.P.C. but acquitted him in respect of the murder of K. In so doing he relied upon an attested copy filed by the defence which purported to be the copy of an entry in the Chaukidar 's hath chitha according to which K died three days before the alleged incident. He also relied on the fact that the name of 'K was not mentioned as a victim in the First Information Report of the incident. In appeal the High Court convicted the appellant under section 304 I.P.C. for causing the death of K, holding that the alleged entry in the hath chitha had been wrongly admitted in evidence by the trial judge and that the deficiency in the F.I.R. was sufficiently explained. Appeal against the High Court 's judgment was filed by special leave. HELD: (i) The attested copy of the Chaukidar 's hath chitha was not admissible in evidence because the entry in question was not proved to have been made by a public servant in the discharge of his duties. [699 E] Sanatan Senanati vs Emperor. A.I.R. 1945 Pat. 489 and Brij Mohan Singh vs Priya Brat Natain Sinha. ; , relied on. (ii) K 's death at the time and place alleged by the prosecution was established by sufficient evidence and the High Court was right in acCepting the explanation of the. maker of the F.I.R. for the absence of K 's name therein. [699 F]

: Criminal Appeal No. 502 of 1976. (Appeal by Special Leave from the Judgment and Order dated 16 9 1975 of the Delhi High Court in Criminal Revision No. 139 of 1975). A.K. Gupta, for the appellants. G. Das, and R.N. Sachthey, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD, J. The appellants who are Railway employ ees, were convicted by the learned Metropolitan Magistrate, Delhi under rules 118 and 119 of the Defence of India Rules, 1971 and were sentenced to six months ' rigorous imprison ment. The order of conviction was upheld in appeal by the learned Additional Sessions Judge and in revision by the Delhi High Court with the difference that whereas the former upheld the sentence too, the latter has reduced it to the period already undergone. In this appeal by special leave the Iegality of conviction is questioned by the appel lants. The case of the prosecution is that the appellants are leaders of the Northern. Railwaymen 's Union and that on May 5, 1974 they 993 held a meeting in Tughlakabad Railway Yard inciting railway workers to go on strike from May 8. This is alleged to be in breach of the order passed by the Government of India under rule 118(1) of the Defence of India Rules, 1971. That rules reads thus: "118. Avoidance of strikes and lock outs. (1) If in the opinion of the Central Government or the State Government it is necessary or expedient so to. do for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military Opera tions, or for maintaining supplies and services essential to the life of the communi ty, nothwithstanding anything contained in any other provisions of these rules, the Central Government may, by general or special order, applying generally or to any specific area and to .any undertaking or class of undertakings, make provision (a) for prohibiting, subject to the provisions of the order, a strike or lock out in connection with any industrial dispute; (b) for requiring employers, workmen, or both, to observe for such period as may be, specified in the order such terms and conditions of employment as may be determined in accordance with the order: Provided that no order made under clause (b) shall require any employer to observe terms and conditions of employment less favourable to. the workmen than those which were applicable to them at any time within three months preceding the date of the order. " By sub rule (2), if any person contravenes any order made under sub rule (1) he shall be punishable with imprison ment for a term which may extend to three 'years or with fine or with both. The order issued under rule 118(1)(b) by the Government of India in its Ministry of Labour on November 26, 1973 recites that in the opinion of the Central Government it was necessary and expedient for maintaining supplies and serv ices essential to the life of the community to prevent strikes in the Railway Services 'and that therefore "the Central Government hereby prohibits a strike in connection with any industrial dispute/disputes in the said Railway Services in India for a period of six months w.e.f. the 26th November, 1973. " In support of its case the prosecution examined three witnesses called S.D. Sharing, Dilbagh Rai and jasbir Singh. Sharma 's evidence is in the nature of hearsay and indeed he admits in so many words that his knowledge regarding the incitement given by the appellants to the Railway workers to go on strike was derived solely from information received by him. The witness admits that he had no personal knowledge that the appellants had held any meeting nor had 994 he heard their speeches. The second witness Dilbagh Rai was in charge of the Police Post at Tughlakabad Railway Station and was entrusted with the investigation of the case. In the nature of things he too has no personal knowledge of what the appellants did or said. Jasbir Singh who was in charge of the Diesel Shed at Tughlakabad is in the circumstances the only witness whose evidence could, if at all, help the prosecution to establish the charge that the appellants had contravened the order issued by the Government of India under r. 118(1)(a) of the Defence of India Rules, 1971. But even that evidence, in our opinion, is inadequate for proving the charge levelled against the appellants. Jasbir Singh claims to have attend ed a meeting addressed by the appellants but he has not stated as to what exactly the appellants said in the meet ing. He has given his own gist or summary of what the appellants meant to convey to the audience stating that they incited the workers to go on strike and threatened them with dire consequences if they did not respond to the call. Such a broad, resume is not safe to rely upon for holding the charge proved. In view of the total absence of evidence showing what the appellants in fact said in the meeting, the summary coined by Jasbir Singh of the happenings in the meeting cannot form the basis of conviction. What is chargeable as contravening the prohibition imposed under the order issued by the Government of India under r. 118(1)(a) is in the circumstances of this case the words used by the speakers and not the gist of the speeches made by a member of the audience. A summary of a speech may broadly and generally not be inaccurate and yet it may not faithfully reflect what the speaker actually said and in what context. Therefore, we would prefer not to rely on the gist given by the witness without knowing the data on the basis of which the gist was given. The charge must therefore fail. One of the points urged before us is whether the courts below were justified in taking judicial notice of the fact that on the date when the appellants delivered their speech es a railway strike was imminent and that such a strike was in fact launched on May 8, 1974. Section 56 of the Evidence Act provides that no fact of which the Court will take judicial notice need be proved. Section 57 enu merates facts of which the Court "shall" take judicial notice and states that on all matters of public history, literature, science or art the 'Court may resort for its aid to appropriate books or documents of reference. The list of facts mentioned in section 57 of which the Court can take judicial notice is not exhaustive. and indeed the purpose of the section is to> provide that the .Court shall take judicial notice of certain facts rather than exhaust the category of facts of which the Court may in appropriate cases take judicial notice. Recognition of facts without formal proof is a. matter of expediency and no one has ever questioned the need and wisdom of accepting the existence of matters which are unquestionably within public knowl edge. (see Taylor 11th edn. pp 3 12; Wigmore sec 2571 foot note; Stephen 's Digest, notes to Art, 58; Whitley Stokes ' Anglo Indian Codes Vol. II p. 887). Shutting the judicial eye to the 995 existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wasteful ritual. No Court therefore insists on formal proof, by evidence, of notorious facts of history, past or present. The date of poll, the passing away of a man of eminence and events that have rocked the nation need no proof and are judicially no ticed. Judicial notice, in such matters, takes the place of proof and is of equal force. In fact, as a means of establishing notorious and widely known facts it is supe rior to formal means of proof. Accordingly, the Courts below were justified in assuming, without formal evidence, that the Railway strike was imminent on May 5, 1974 and that a strike intended to paralyse the civic life of the Nation was undertaken by a section of workers on May 8, 1974. But the matter does not rest there. Rule 118(1)(a) empowers the Government to issue an order prohibiting a strike "in connection with any industrial dispute". The Order issued by the Government on November 26, 1973 recites, as required by the Rule, that the Central Government prohib its a strike "in connection with any industrial dispute" in the Railway Services in India for a period of six months. Rule 118 (2) prescribes punishment for a person who con travenes any order made under the Rule. We have no doubt that the Government possesses the power to issue an appro priate order under Rule 118 (1) even if there is no existing industrial dispute because the power can be exercised prophylactically for preventing a strike in connection with an imminent industrial dispute. But the prosecution must establish, in order that the conduct charged as penal may fall within the mischief of the Order, that the strike in regard to which the incitement was given was in connection with an industrial dispute. Unless that is established, there can be no contravention of the order issued by the Government, because the contravention consists in doing what is prohibited by the order. And what is prohibited by the order is a strike in connection with an industrial dispute. Thus the prosecution has to establish not only that a strike was imminent or had actually taken place, of which judicial notice may be taken, but further that the strike was in connection with an industrial dispute, which is a matter of evidence. Rule 118(1)(a) limits the power of the Government to issue an appropriate order, general or special, for prohibiting inter alia a strike in connection with any industrial dispute. Since the rule does riot empower the Government to issue an order prohibiting strikes generally, whether they bear any connection with an industrial dispute or not, there can be no contravention of the order unless it is established by evidence that the strike was in connection with an industrial dispute. The prosecution did not lead any evidence to prove this impor tant ingredient of the offence and the generalisation made ' by the witnesses in their evidence is wholly inadequate for accepting that the appellants gave incitement to a strike in connection with any industrial dispute. It is urged by the learned counsel appearing for the Delhi Administration, who are respondents to the appeal, that what is contemplated by rule 118(1)(a) itself is a strike in connection with 996 an industrial dispute and therefore it is not necessary for the prosecution to establish that the strike was in connec tion with any industrial dispute. There is no warrant for this submission and nothing contained in sub rule (3) of rule 118 which defines the expressions "industrial dispute" and "strike" lends support to the counsel 's submission. It is well known that strikes are sometimes undertaken for purposes unconnected with an industrial dispute, as for example when the workers demand a closure of the establish ment on the demise Of a person of national importance. In fact, strikes are not unoften launched for reasons which do not reasonably bear any connection with an industrial dispute. An argument was advanced before us on behalf of the appellants that the conduct attributed to the appellants does not fall within the mischief of the order because inciting other workers to go on strike is outside the defi nition of the word "strike" contained in rule 118(3)(b) of the Defence of India Rules, 1971. It i,s unnecessary to consider this question in view of our finding that the evidence led by the prosecution is insufficient to 'estab lish the charge levelled against the appellants. We would however like to point out that the appropriate provision of the Defence of India Rules under which an incitement to strike as in the instant case may be punished is rule 36(6)(j) read with rule 43(1)(a). The former defines a "prejudicial act" to include instigation or incitement for cessation or slowing down of work by a body of persons employed in any place of employment in which 100 persons or moro are normally employed, in furtherance of any strike which is prohibited under rule 118 or is illegal under any law for the time being in force. The latter provides that no person shall without lawful authority or excuse do any prejudicial act. By rule 43 (5) a person who contravenes any of the provisions of rule 43 is punishable with impris onment which may extend to 5 years or with fine or with both. In the result we allow the appeal, set aside the order of conviction and sentence and acquit the appellants. S.R. Appeal allowed.

In respect of an alleged speech made, on May 5, 1974, at a meeting held in Tughlakabad Railway Station Yard inciting workers to go on strike from May 8, 1974, the appellants who were leaders of the Northern Railwaymen 's Union were convicted by the learned Metropolitan Magistrate under Rule 118 and 119 of the Defence of India Rules and sentenced to six months rigorous imprisonment. The order of conviction was upheld in appeal by the Sessions Court but in revision, the Delhi High Court while upholding the conviction re duced the sentence to the period already undergone. In appeal by special leave to this Court, the appellants contended (1) There was no legal evidence to warrant the conviction; (2) The courts below were not justified in taking judicial notice of the fact that on the date when the appellants delivered their speeches a railway strike was imminent and that such a strike. was, in fact, launched on May 8, 1974 and (3) The conduct attributed to the appellants does not fall within the mischief of the order because inciting other workers to go on strike is outside the defi nition of the word "strike" contained in rule 118(3)(b) of the Defence of India Rules, 1971. Allowing the appeal by special leave, the court, HELD: (1) The courts below were justified in assuming without formal evidence that the railway strike was immi nent on May 5. 1974 and that a strike intended to paralyse the civic life of the nation was undertaken by a section of workers On May 8, 1974. [995A B] (2) The purpose of section 57 of the Evidence Act is to provide that the court shall take judicial notice of certain facts rather than exhaust the category of facts of which the court may in appropriate cases take judicial notice. Recog nition of facts without formal proof is an act of expedien cy. Shutting the judicial eye to the existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wasteful ritual. No court insists on a formal proof by evidence of notorious facts of history past or present and events that have rocked the nation need no roof and are judicially noticed. judicial notice in such matters takes place of proof and is of equal force. [994F H, 995 A] (3) The Government possesses the power to issue an appropriate order under rule 118(1) prohibiting the strike "in connection with any industrial dispute" even if there is no existing industrial dispute because the owner can be exercised prophylactically by preventing a strike in connec tion with an imminent strike. [995C D] (4) In order to maintain a charge under rule 118(1) of the Defence of India Rules, 1971, the prosecution has to establish not only that a strike was imminent or had actual ly taken place of which indicial notice may be taken but further that the strike was in connection with the industri al dispute which is a matter of evidence. [995E F] 992 (5) What is chargeable as contravening the prohibition must under the order issued by the Government of India under Rule 118(1)(a) is, in the circumstances of this case, the words used by the speakers and not the gist of the speeches made by a member of the audience. A summary of speech may broadly and generally not be inaccurate and it may ' not faithfully reflect what the speaker actually said and in what context. [994D E] (6) Rule 118(1)(a) limits the power of the Government to issue an appropriate order, general or special, for prohib iting inter alia, a strike in connection with any industrial dispute. Since the rule does not empower the Government to issue an order prohibiting strikes generally, whet.her it is in connection with the industrial dispute or not, there can be no contravention of the order unless it is established by evidence that the strike was in connection with an industri al dispute. In the instant case, the prosecution did not lead any evidence to prove this important ingredient of the offence and the generalisation made by the witnesses in their evidence is wholly inadequate for accepting that the appellants gave incitement to a strike in connection with any industrial dispute. [995F G] (7) The contention of the prosecution that what is contem plated by rule 118 (1)(a) itself is a strike in connection with an industrial dispute and, therefore, it is not neces sary for the prosecution to establish that the strike was in connection with any industrial dispute is neither warranted nor supported by anything contained in sub rule (3) of rule 118 which defines expressions "industrial dispute" and "strike". [995H, 996A B] [In view of the finding that the evi dence led by the prosecution is insufficient to establish the charge, in the instant case, the court thought it unnecessary to consider the question whether the conduct attributed to the appellants fall within the mischief of the order dated 26 11 1973, since inciting other workers to go on strike may be outside the definition of the words "strike" contained in Rule 118(3)(b) of the Defence of India Rules, 1971. " The court, however, pointed out that the appropriate provision of the Defence of India Rules under which an incitement to strike as in the instant case may be punished in Rule 36(6) read with Rule 43(1)(a).]

Appeal No. 853 of 1968. Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated January 15, 1968 of the Delhi High Court, Himachal Bench in C.O.P. No. 4 of 1967. C.B. Agarwala, S.K. Bagga and section Bagga, for the appellant. Sarjoo Prasad and Naunit Lal, for the respondent. The Judgment of the Court was delivered by Hidayatullah, C.J. This is an appeal against the judgment, dated January 15, 1968, of the High Court of Delhi (Himachal Bench) setting aside the election of the appellant to the Santokhgarh Assembly Constituency of Himachal Pradesh. The election has been set aside on the ground of corrupt practice under section 123(6) of the Representation of People Act read with section 98(b) of the Act. By a notification dated January 13, 1967 the electors of this constituency were invited to elect a member to the Assembly. The the last date of withdrawal was January 23, 1967. Three candidates contested the election. The appellant was an independent candidate opposed by the respondent who was a Congress nominee and one Shanti Swarup, Jansangh candidate. The poll took place throughout the constituency on February 18, 1967. Votes were counted four days later at Una and the result was declared at follows: Vidya Sagar Joshi (Appellant) 8437 votes Surinder Nath Gautam 7695 votes (Election Petitioner) Shanti Swarup 2067 votes 1267 ballots were rejected as invalid. Thus the present appellant was returned with a margin of 742 votes. The returned candidate filed his return of election expenses showing an expenditure of Rs. 1,862.05P. The limit of expenditure in this constituency was Rs. 2,000/ . One of the contentions of the election petitioner was that he had filed a false return of his election expenses, that he had spent .an amount exceeding Rs. 2,000/ in the aggregate and therefore contravened the provisions of section 77 (3) 86 of the Representation of People Act, 1951 and therefore committed corrupt practice under section l23(6) of the Act. The election petitioner therefore asked that his election be declared void. There were other grounds also on which the election was challenged, but we need not refer to them since no point has been made before us. The main item on which the expenses were said to be false was a deposit of Rs. 500/ as security and Rs. 200/ as application fee which the returned candidate had made with the Congress party on or before January 2, 1967. The fee was not returnable, but as this payment was, made before the notification calling upon the voters to elect a member to the Assembly nothing turns upon it. The returned candidate was denied the Congress ticket on or about January 10, 1967. This was also. before the said notification. According to the rules of the Congress party the security deposit was refundable to a candidate if he or she was not selected. It was however provided in the same rules that if the candidate contested the election against the official Congress candidate, the security deposit would be forfeited. The returned candidate chose to stand as an independent candidate against the official Congress nominee and incurred the penalty of forfeiture. This was after the date for the filing of the nomination paper (January 20, 1967). He had time till January 23, 1967 to withdraw from the contest. If he had done so the deposit would have presumably been returned to him. As he became a contesting candidate the forfeiture of the deposit became a fact. The case of the election petitioner was that if this deposit were added to the election expenses, the limit of Rs. 2,000/ was exceeded and therefore this amounted to a corrupt practice under section 123(6) read with section 77(3) of the Representation of People Act. The High Court held in favour of the election petitioner and hence the appeal. Section 77 of the Representation of People Act provides as follows. : Section 77. Account of election expenses 'and maximum thereof (1 ) Every candidate at an election shall either by himself or by his. election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive. The account shall contain such particulars, as may be prescribed. 87 (3) The total of the said expenditure shall not exceed such amount as may be prescribed. The third sub section creates a bar against expenditure in excess of the prescribed amount. In this case the prescribed amount was Rs. 2,000/ . Section 123(6) provides that "the incurring or authorising of expenditure in contravention of section 77 is a corrupt practice. " Therefore, if the amount of Rs. 500/was added to the election expenses as declared by the returned candidate he would be guilty of a corrupt practice, under the two sections quoted above. The question, therefore, is whether this amount can be regarded as an election expense. The first sub section of section 77 discloses what the candidate has. to declare as part of his election expenses. It speaks. of "all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive. " In the present case, therefore, the critical dates were January. 13, 1967 and February 22, 1967. The amount in question was paid before the first date. It was liable for confiscation not on the date on which the Congress ticket was refused to the returned candidate but on January 23, 1967 when he did not withdraw from the ' contest and offered himself as a contesting candidate against the official Congress candidate. In other words, the payment was made before the period marked out by section 77 ( 1 ) but the expenditure became a fact between the two. dates. The contention of the returned candidate was that this was not an expenditure within the meaning of section 77(1) of the Representation of People Act and this is the short question, which falls for consideration in the present case. Section 77 as flamed now departs in language from the earlier provision on the subject which was rule 117. It read: "117. Maximum election expenses No expense shall be incurred or authorised by a candidate or his election agent on account of or in respect of the conduct and management of an election in any one constituency in a State in excess of the maximum amount specified in respect of that constituency in Schedule V." The words "conduct and management of election" are not as wide as the words. "all expenditure in connection with election incurred or authorised by him, "which now find place in section 77". The question thus is what meaning must be given to the words used in section 77. The critical words of section 77 are 'expenditure ' 'in connection with election ' and 'incurred or authorized '. 'Expenditure ' means the amount expended and 'expended ' means to. pay away, lay. out or spend. It really represents money out of pocket, a going out. 88 Now the amount paid away or paid out need not be all money which a man spends on himself during this time. It is money in connection with ' his election. These words mean not so much as 'consequent upon ' as 'having to do with '. All money laid out and having to do. with the election is contemplated. But here again money which is liable to be refunded is not to be taken note of. The word 'incurred ' shows a finality. It has the sense of rendering oneself liable for the amount. Therefore the section regards everything for which the candidate has rendered himself liable and of which he is out of pocket in connection with his election that is to say having to do with his election. The candidate here put out this money for his election since he was trying to obtain a congress ticket. If he had got the ticket and the money was refunded to. him, this would not have counted as an expenditure since the expense would not have been incurred. When the candidate knowing that the money would be lost went on to stand as an independent candidate, he was willing to let the money go and take a chance independently. The case of the appellant is that this money was not used in furthering the prospect of his election. On the other hand, it was in fact used against him by the Congress Party as he was opposed to that party 's candidate. He contends that such an expense cannot be regarded as expense in connection with the election. According to him the connection must be a connection of utility and not something which is of no use but rather against the chances of victory. In this connection the learned counsel draws our attention to Halsbury 's Laws of England, Third Edition Volume 14, at page 177 paragraph 314. It is stated there as follows: "While no attempt has been made by judges to define exhaustively the meaning of expenses incurred in the conduct or management of an election, it has been said that if expenses are, primarily or principally, expenses incurred for the promotion of the interests of the candidate, they are election expenses. " It will be seen that the above passage refers to expenses incurred in the conduct or management of an election. The learned counsel for the appellant and respondent relied upon two decisions of this Court. Reliance was also placed upon two decisions of the Election Tribunals. The decisions of the Election Tribunal are of the same Bench and concern Rule 117. They need not be considered. The two cases of this Court may be noticed. In Haji Aziz and Abdul Shakoor Bros. vs Commissioner of Income Tax, Bombay City(1) the question arose under the Indian (1) ; 89 Income tax Act. A firm importing dates was found to have breached some law and a penalty was imposed on it under the Sea Customs Act. The firm sought to treat the penalty as expenses and they were disallowed by this Court. Learned Counsel for the appellant relied on this case and claimed that the same principle applies and this penalty cannot be said to be an expenditure in connection with the election. The analogy is not apt because not only the prescriptions of the two laws are different but the underlying principle is different also. In Income tax laws the expenditure must be laid out wholly or exclusively for the purpose of the business etc. Breaking laws and incurring penalty is not carrying on 'business and therefore the loss is not for the purposes of business. Here the expenditure is to be included if it is incurred in connection with the election and the payment to secure the seat is an expenditure in connection with the election. The ruling therefore, does not apply. In the second case a congress candidate had paid a sum of Rs. 500/ of which Rs. 100/ were subscription for membership and Rs. 400/ were a deposit. Later he paid Rs. 500/ as donation to the Congress. He failed to include the two sums of Rs. 500/ each in his return of expenses. The Tribunal found that both the sums were spent in connection with the election and by including them the limit was exceeded. This Court affirmed the decision of the Tribunal. The case was decided under r. 117. The two sums were considered separately. The contention was that under section 123 (7) and r. 117 the candidate was nominated only on November 16, 1951 and the first sum was paid on September 12, 1951. The question then arose when the candidate became a candidate for the application of the Rule and section 123(7). It was held that the candidate became a candidate when he unequivocally expressed his intention by making the payment. The question of commencement of the candidature is now obviated by prescribing the two terminii between which the expense is to be counted. In so far as the case goes it supports our view. It is risky to quote the decision because the terms of the law on which it was declared were entirely different. We can only say that there is nothing in it which militates against the view taken by us here. On the whole, therefore, the judgment under appeal is correct. The appeal fails and will be dismissed with costs. Appeal dismissed.

The appellant applied for a Congress ticket for election to the Legislative Assembly and deposited certain sums, which according to the rules of the Congress Party was refundable if the candidate was not selected but the deposit was to be forfeited if he contested the election against the official Congress candidate. The appellant was denied the Congress ticket. Thereafter the notification inviting electors to elect a member to the Assembly was issued, and the last date for filing nomination papers and for withdrawing from the contest was fixed. The appellant contested the election against the respondent who was the official Congress nominee and incurred the penalty of forfeiture. The appellant was declared elected and he filed his return of election expenses. The respondent challenged the 'appellant 's election on the ground that he had committed corrupt practice under section 123(6) of the Representation of People Act, 1951, for not having included the sum deposited by him in seeking the Congress ticket in his return and by adding this sum to the return of election expenses filed the prescribed amount was exceeded, thereby contravening section 77(3) of Act. The High Court held in favour of the election petitioner. Dismissing the appeal, this Court, HELD: Section 77 as framed now departs in language from the earlier provision on the subject which was r. 117. The words 'conduct 'and management of election ' are; not as wide as the words 'all expenditure in connection with election incurred or authorised by him ' which now find place in section 77 with 'election ' and 'incurred or authorised. ' 'Expenditure ' means the amount expended and 'expended ' means to pay away, lay out or spend. It really represents money out of pocket, a going out. The amount paid away or paid out need not be all money which a man spends on himself during this time. It is money 'in connection with ' his election. These words mean not so much as 'consequent upon ' as 'having to do with '. All money laid out and having to do with the election is contemplated. But here again money which is liable to be refunded is not to be taken note of. The word 'incurred ' shows a finality. It has the sense of rendering one self liable for the amount. The words are not equivalent to 'conduct or management of an election ' and the expenses need not be for promotion of the; interest of the candidate. Therefore the section regards everything for which the candidate has rendered himself liable and of which he is out of pocket in connection with his election, that is to say having to do with his election. [87 G 88 B] (In this case, the appellant put out the money for his election since he was trying to obtain a Congress ticket. If he had got the ticket and the money was refunded to him, this would not have counted as 'an expenditure since the expense would not have been incurred. When the appellant knowing that the money would be lost went on to stand as an independent candidate, he was willing to let the money go and take a 85 chance independently. So the 'amount was an expenditure within the meaning of the section. [88 C D] Haji Aziz and Abdul Shakoor Bros. vs Commissioner of Income tax, Bombay City, ; , distinguished.

ivil Appeal No. 875 of 1964. Appeal by special leave from the judgment and order dated April 10, 1964, of the Calcutta High Court in Civil Rule No. 4439 of 1962. N.C. Chatterjee and D. Goburdhan, for the appellants. P.K. Chatterjee and D.N. Mukherjee, for the respondent. The Judgment of the Court was delivered by Gajendragadkar, C.J. Appellant No. 1, Kaluram Onkarmal, was let into possession of the premises described as holding No. 182H, G.T. Road, Asansol as a monthly tenant under Harbhajan Singh Wasal who was the owner of the said premises. The rent agreed to be paid was Rs. 35 per month payable according to the English Calendar. It appears that in 1953, the Calcutta National Bank Ltd. (now in liquidation) sued the owner Wasal on the original side of the Calcutta High Court on a mortgage. In the said suit, a preliminary decree was passed and in due course, it was followed by a final decree. During the proceedings of the said suit, Mr. K.K. Ghose was appointed Receiver of the mortgaged properties, including the premises in the present suit. On February 18, 1960, the Receiver put the mortgaged properties to sale and the respondent, Baidyanath Gorain, purchased them. The said sale was confirmed by the Calcutta High Court on March 1, 1960. That is how the respondent became the owner of the suit premises along with other properties under mortgage. After he acquired title to the suit premises in this manner, the respondent informed appellant No. 1 about the same by his letter dated the 2nd April, 1960. On December IL 1961, the respondent sued appellant No. 1, and appellant No. 2, Kaluram Bajranglal in the First Court of the Muns if at Asansol for ejectment. He claimed vacant possession of the premises let out to appellant No. 1 on several grounds. He urged that he reasonably required the premises for rebuilding them after .demolishing the existing structure. According to him, the existing structure had become very old and was in a dilapidated condition. He also alleged that appellant No. 1 had unlawfully sublet the suit premises to appellant No. 2, and that he had failed to pay or deposit the rents for the last three years in accordance with law. The claim for ejectment thus made by the respondent was disputed by appellant No. 1 on several grounds. Appellant No. 1 denied that the respondent required the suit premises for rebuilding, and also disputed his allegation that he had sublet the said 36 premises unlawfully. In regard to the averment made by the respondent that appellant No. 1 had failed to pay or deposit the rents due for the last three years, appellant No. 1 made a detailed dental. He urged that the rents had been regularly paid to the owner in tune before August, 1960, and he pleaded that since the month of August, 1960 when he found that the owner was not prepared to accept the rents from him, he deposited them with the House Rent Controller, Asansol, from month to month. It was his case that notice had been served on the owner in respect of these deposits from month to month as provided by section 21(3) of the West Bengal Premises Tenancy Act, 1956, (Act XII of 1956) (herematter called 'the Act '). The written statement further averred that the deposit of the monthly rent continued to be made regularly under section 21 and that the rent for March, 1962 had been duly deposited on April 10, 1962. This written statement was filed on April 11, 1962. During the pendency of this suit, the respondent made an application under section 17(3) of the Act and claimed that the defence of appellant No. 1 against delivery of possession should be struck out, because he had failed to deposit or pay the amount in Court as required by section 17(1) of the Act. This application was strenuously opposed by appellant No. 1 on the ground that section 17(3) could not be invoked against him in view of the fact that he had been depositing the rent from month to month under section 21. and he urged that the deposit of rent thus made by him amounted to payment of rent by him to the respondent under section 22(3) and, therefore. no default had been committed by him at all. This dispute raised the question about the true scope and effect of the provisions of section 17(3) and section 22(3) of the Act. The learned trial Judge held that notwithstanding the fact that appellant No. 1 had been depositing the rent from month to month under section 22 with the Rent Controller, having regard to the provisions contained in section 17(1) his failure to deposit the relevant amount in Court incurred the liability to have his defence struck out under section 17(3). In coming to this conclusion, the learned Judge followed a decision of the Division Bench of the Calcutta High Court in Abdul Majid vs Dr. Samiruddin(1). Having held that section 17(3) applied, the learned Judge directed that the defence raised by appellant No. 1 against the claim of the respondent for delivery of possession of the suit premises must be struck out. This order was challenged by both the appellants by preferring a revision application before the Calcutta High Court. Before this revision application reached the stage of hearing, the question raised by it had already been concluded by a majority decision of the Special Bench of the Calcutta High Court in Siddheswar Paul vs Prakash Chandra Dutta(2). The learned single Judge who heard this (1) (2) A.I.R. 1964 Cal. 37 revision application was naturally bound by the said majority decision, and applying the said decision, he held that the order passed by the learned trial Judge striking out the defence of appellant No. 1 under section 17(3) of the Act was justified. It is this order which is challenged by Mr. N.C. Chatterjee on behalf of the appellants in the present appeal which has been brought to this Court by special leave. Mr. Chatterjee contends that the majority decision of the Special Bench in Siddheswar Paul 's case(1) is erroneous and has proceeded on a misconstruction of the tone, scope and effect of the two relevant section of the Act sections 17 & 22. That is how the short question which falls for our decision in the present appeal is: what is the true scope and effect of the provisions prescribed by sections 17 and 22 of the Act? It appears that the Special Bench in Siddheswar Paul 's case was .divided on this issue; the three learned Judges have taken the view that section 22(3) does not apply to cases falling under section 17(1), whereas two other learned Judges have come to the conclusion that if a tenant had made a deposit with the Rent Controller to which section 22(3) applies, section 17(3) cannot be invoked against him. The separate judgments delivered by all the learned Judges who constituted the Special Bench have dealh with the point at great length and each one has subjected the said two provisions to a close analysis and examination. In the present appeal, we propose to consider the matter in a broad way and will confine ourselves to some general considerations which flow from the construction of the two relevant provisions and which. in our opinion, support the view taken by the majority of the Judges in the Special Bench. Before addressing ourselves to the main point in dispute between the parties, it is necessary to refer broadly to the scheme of the Act and its main provisions. The Act was passed in 1956 and superseded the earlier Act XVII of 1950. The Act consists of seven Chapters. I deals with definitions; Ch. II contains provisions regarding rent; Ch. III coveys suits and proceedings for eviction; Ch. IV has reference to deposit of rent; Ch. V considers the question of appointment of the Controller and other Officers, their powers and functions; Ch. VI provides for appeals, revision and review; and Ch. VII deals with penalties and miscellaneous provisions. Section 2(b) defines a "Controller"; section 2(c) defines "fair rent"; section 2(d) defines a "landlord"; and section 2(h) defines a "tenant". A tenant, according to section 2(h), includes any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be payable and also any person continuing in possession after the termination of his tenancy, but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction. Section (1) A.I.R. [1964] Cal. 38 4(1) provides that a tenant shall, subject to the provisions of the Act, pay to the landlord: (a) in cases where fair rent has been fixed for any premises, such rent; (b) in other cases, the rent agreed upon until fair rent is fixed. Section 4(2) lays down that rent shall be paid within the time fixed by contract or in the absence of such contract, by the 15th day of the month next following the month for which it is payable; and under section 4(3), any sum in excess of the rent referred to in sub section (1) shall not be recoverable by the landlord. These provisions are in conformity With the pattern which is usually adopted by Rent Restriction Acts. The rest of the provisions of Chapter II deal with the fixation of standard rent; with the said provisions, we are not concerned in the present appeal. Chapter III which deals with suits and proceedings for eviction contains section 17 which falls to be considered in the present appeal. Section 13 which affords protection to tenants against eviction, lays down that notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of my premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the grounds specified by clauses (a) to (k). Amongst these clauses, it is clause (i) which deals with a case where the tenant has made default in the payment of rent for two months within a period of twelve months or for two successive periods in cases where rent is not payable monthly. Section 14 imposes a restriction on subletting. Section 15 prohibits a tenant from receiving any sum or consideration for relinquishment of tenancy; and section 16 provides that the creation and termination of sub tenancies shall be notified in the manner prescribed by it. That takes us to section 17. Section 17(1) reads thus : "On a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 13, the tenant shall, subject to the provisions of sub s (2), within one month of me service of the writ of summons on him deposit in Court or pay to the landlord an amount calculated at the rate of rent at which it.was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one third per cent, per annum from the date when any such amount was payable up to the date of deposit and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate." Section 17(2) deals with cases where there is a dispute as to the amount of rent payable by the tenant. This provision is not relevant for our purpose. Section 17(3) provides that if a tenant fails to 39 deposit or pay any amount referred to in sub section (1) or sub section (2), the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. It is under this sub section that the impugned order has been passed. Section 17(4) lays down: "If a tenant makes deposit or payment as required by sub section (1) or sub section (2), no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord: Provide that a tenant shall not be entitled to any relief under this sub section if he has made default in payment of rent for four months within a period of twelve months. Reading section 17(1)by itself, it is clear that when a landlord institutes a suit to recover possession of the rent, though it is not described as such by section 17(1).It is thus clear that whatever may be the cause on which the landlord 's claim for eviction is based, section 17(1) provides that subject to the provisions of sub section (2), within one month of the service of the writ of summons on him, the tenant is required to deposit in Court the amount in the manner prescribed by it. If he fails to comply with the requirements of section 17(1), section 17(3) steps in and ' enables the landlord to claim that the defence of the tenant against delivery of possession should be struck out. If section 17(1) and (3) are read by themselves, there is no doubt that appellant No. 1 has failed to comply with section 17(1), and so, section 17(3) can be legitimately invoked against him. He, however, contends that m applying section 17(3). the Court must take into account not only 40 section 17(1)but also section 22(3), and his argument is that if he has deposited the amount of rent under section 21 and the deposit is otherwise valid, then the deposit itself amounts to payment of rent by him to the landlord and as such, no order can be passed against him under section 17(3), because, in law, he has not committed a default in the payment of rent at all; and it is this contention which makes it necessary to consider the impact of the provisions of section 22 on the application of section 17(3) against appellant No. 1. Let us. therefore, read section 22 and attempt to decide what is the effect of section 22(3) on cases falling under section 17(1). As we have already pointed out, section 22 occurs in Chapter IV which deals with deposit of rent. This Chapter begins with section 21. Section 21 (1) provides that where the landlord does not accept any rent tendered by the tenant within the time referred to in section 4. or where there is a bona fide doubt as to the person or persons to whom the rent is payable. the tenant may deposit such rent with the Controller in the prescribed manner. Section 21(2) lays down that the deposi shall be accompanied by an application which should set forth "the particulars prescribed by clauses .(a) to (d). Section 21 (3) requires that the said application shall be accompanied by the prescribed number of copies thereof. Section 21(4) requires the Controller to send a copy of the application received by him from the tenant to the landlord. Under section 21(5). the Controller is authorised to allow the landlord to withdraw the rent deposited with him. Section 21(6) empowers the forfeiture of the deposit to Government, subject to the conditions prescribed by clauses (a) & (b) of the said sub section. There are three other sub sections to section 21 which are not relevant for our purpose. That takes us to section 22 it reads thus: "(1) No rent deposited under section 21 shall be considered to have been validly deposited under that section for purposes of clause (i) of sub section (1) ors. 13, unless deposited within fifteen days of the time fixed by the contract in writing for payment of the rent or, in the absence of such contract in writing, unless deposited within the last day of the month following that for which the rent was payable. (2) No such deposit shall be considered to have been validly made for the purpose of the said clause if the tenant wailfully or negligently makes any false statement in his application for depositing the rent, unless the landlord has withdrawn the amount deposited before the date of institution of a suit or proceeding for recovery, or possession of the premises from the tenant. (3) If the rent is deposited within the time mentioned in sub section (1). and does not cease to be a valid deposit for the reason mentioned in sub section (2), the deposit 41 shall constitute payment of rent to the landlord as if the amount deposited has been valid legal tender of rent if tendered to the landlord on the date fixed by the contract for payment or rent when there is such a contract, or, in the absence of any contract, on the fifteenth day of the month next following that for which rent is payable." Mr. N. C. Chatterjee for the appellants contends that the effect of section 22(3) is that the deposit made by appellant No. 1 shall beheld to constitute payment by him to the landlord, and so, there can be no scope four invoking section 17(3) against him inasmuch/the basis of section 17(3), in substance, is that the tenant whose defence is sought to be struck out has committed a default in the payment of rent. The object of section 17(1) is to secure the payment of rent by the tenant to the landlord and since that object has been satisfied by the deposit duly made by appellant No. 1 under section 21(1), it would be unreasonable to allow section 17(3) to be invoked against him. It is common ground that the deposit of rent has been made by appellant No. 1 in compliance with the provisions of section 21 and that it is not rendered invalid under section 22(2). In other words, Mr. N.C. Chatterjee is entitled to urge his point on the assumption that appellant No. 1 has made a valid deposit under section 21 and is entitled to the benefit of section 22(3). Can a valid deposit made under section 21 be permitted to be pleaded by a tenant when an application is made against him under section 17,(3)?; that is the question which arises for our decision in the present appeal. The answer to this question necessarily depends upon the determination of the true scope and effect of the provisions contained respectively in section 17 and section 22. As a matter of common sense, Mr. N.C. Chatterjee 's argument does sound to be prima facie attractive. If, in fact, appellant No. 1 has deposited the rent from month to month, it does appear harsh and unreasonable that his defence should be struck out on the ground that he has deposited the rent not in the Court where the suit is pending, but with the Controller. When appellant No. 1 began to deposit the rent with the Controller, he was justified in doing so; but on the other hand, it is urged against him by Mr. P. K. Chatterjee that as soon as the suit is filed under section 17 and the period prescribed by it has expired, it was obligatory on appellant No. 1 to pay the amount in Court and stop depositing it with the Rent Controller; in other words, his failure to pay the amount in Court incurs the penalty prescribed by section 17(3) notwithstanding the fact that he may have deposited the same amount with the Controller. The requirements of section 17(1) cannot be said to be satisfied by taking recourse to the provisions of section 22(3); that in substance is the argument for the respondent. The question thus raised for our decision no doubt lies within a very narrow compass and its answer depends upon a proper construction of sections 17 and 22; but, as we have already indicated, this narrow 42 question has given rise to a sharp conflict of opinion in the Calcutta High Court. It appears plain that appellant No. 1 finds himself in the present difficult position presumably because, acting upon the view expressed in some of the judgments of the Calcutta High Court, he was advised to deposit the rent with the Controller even after he was sued by the respondent and section 17(1) began to operate against him. In dealing with this vexed problem, it is relevant to remem her that the two competing provisions occur in two different Chapters and apparently cover different fields. Chapter IV deals with the question of deposit of rent in general, whereas section 17 in Ch III makes a provision for the payment of the amount mentioned by it in Court after a suit or proceeding has been instituted by the landlord against the tenant. It is common ground that the Rent Controller is not Court within the meaning of section 17(1). Prima facie. a general provision for the deposit of rent prescribed by section 21 would not apply to special cases dealt with by section 17. The provisions of section 21 and 22 which are general in character, would cover cases which are not expressly dealt with by the special provision prescribed by section 17. In other words, though a tenant may deposit rent with the Controller under the provisions of sections 21 and 22, as soon as a suit is brought against him by the landlord, section 17 which is a special provision, comes into operation and it is the provision of this special section that must prevail in cases covered by it: that is the first general consideration which cannot be ignored. Section 17 deals with suits or proceedings in which the landlord claims eviction on any of the grounds referred to in section 13; and as we have already noticed, section 13 which affords protection to the tenant 's eviction, permits the landlord to claim eviction only if he can place his claim on one or the other of the clauses (a) to (k); that is to say, it is 'only if one or other of the conditions prescribed by the said clauses is proved that the landlord can claim to evict his tenant. Default in the payment of rent is one of these clauses, but there are several other clauses referring to different causes of action on which eviction can be claimed by the landlord, and it is to all these cases that section 17(1) applies. It is thus clear that normally, when a suit is brought for eviction, the tenant would have to comply with the requirements of section 17(1). It is only where owing to the refusal of the landlord to accept the rent tendered by the tenant, or where there is a bona fide doubt as to who is entitled to receive the rent. that the provisions of section 21 empower the tenant to deposit the rent with the Controller. In a11 other cases, if the tenant was paying rent to the landlord and is faced with a suit for eviction, section 17(1) will unambiguously apply and the amount of rent will have to be paid in Court as required by it. It is also dear that if a tenant has been depositing the rent validly and properly under section 21, a suit against him under section 13(1)(i) cannot be filed. Section 13(1)(i) authorises the landlord to claim eviction of his 43 tenant on the ground that he has made a default in the payment of rent as described by it. But such a default cannot be attributed to a tenant who has been depositing the rent with the Controller properly and validly under section 21. Such a valid payment amounts to payment of rent by the tenant to the landlord under section 22(3), and so a tenant who has been making these deposits cannot be sued under section 13(1)(i). It is true that the complication of the present kind arises where a tenant who has been making a valid deposit under section 21 is sued for ejectment on grounds other than section 13(1)(i), and section 17(1) comes into operation against him. In such a case, if the special provisions prescribed by section 17(1) apply to the exclusion of sections 21 & 22 the fact that a deposit has been made by the tenant can be no answer to the application made by the landlord under section 17(3) In this connection, it is necessary to bear in mind the fact that section 17(1) is really intended to give a benefit to the tenant who has committed a default in the payment of rent. The first part of section 17(1) allows such a tenant to pay the defaulted amount of rent together with the prescribed interest in Court within the time prescribed, and such a tenant would not be evicted if he continues to deposit the amount in Court, during the pendency of the suit as required by the latter part of section 17(1). In our opinion, the scheme of section 17(1) is a complete scheme by itself and the Legislature has intended that in suits or proceedings to which section 17(1) applies, the payment of rent by the tenant to landlord must be made in the manner prescribed by section 17(1). Even in cases Where the tenant might have been depositing the rent with the Controller under section 21, he has to comply with section 17(1) before the period prescribed by section 17(1) has elapsed. It is significant that the requirement to deposit the amount in Court comes into force within one month of the service of the writ of summons on the tenant. In other words,appellant No. 1 was justified in depositing the rent even after the present suit was filed until one month from the service of the writ of summons of the suit had elapsed. The Legislature has taken the precaution of giving the tenant one month 's period after the service of the writ of summons on him before requiring him to deposit the amount in Court. The object obviously appears to be that when a suit or proceeding has commenced between the landlord and the tenant for ejectment, and the tenant has received notice of it,the payment of rent should be made in Court to avoid any dispute in that behalf. It is also relevant to remember that in the matter of payment of rent in Court, section 17(1) has provided that the amount to be paid in future shall be paid by the 15th of each succeeding month, and that means that the date for the payment of the amount has been statutorily fixed which is distinct from the requirement of section 4. Section 4(2) provides for the payment of rent within the time fixed 44 by contract, but section 17(1) requires the payment to be made by the 15th of each succeeding month whatever may be the contract. If, according to the contract, rent was payable quarterly, or six monthly, or even annually, section 17(1) supersedes that part of the contract and requires the rent to be paid, month by month, by the 15th of each succeeding month. The position under sections 21 & 22 is, however, substantially different on this point. Section 21 (I) in terms requires the deposit to be made within the time referred to in section 4, and that means where there is a contract made by the parties in relation to the time for the payment of rent, it is on the contracted date that the rent has to be deposited under section 21. The scheme of the three clauses of section 22 clearly is integrally connected with section 21. These clauses deal with deposits made under section 21. In fact it would be ,difficult to read section 22(3) independently of section 22(1) and (2); all the three clauses of section 22 must be read together, and so, the time for making the deposit for the purpose of section 22(3) would be the time prescribed by contract and not the statutory time provided by section 17(1). It is clear that the deposit of rent made before the Controller under section 21 is based on the contractual obligation of the tenant to pay the rent,and he makes the deposit because the landlord is not receiving the rent or there is a dispute as to who the real landlord is. On the other hand, the deposit of rent made in Court under section 17(1) is the result of a statutory obligation imposed by the said sub section; no doubt, the amount required to be deposited may be the amount for which the parties may have entered into a contract, but the manner and the mode in which the deposit is required to be made in Court are the result of the statutory provision, and in that sense they constitute a statutory obligation. That is another feature which distinguishes the deposits covered by sections 21 and 22 from the deposits prescribed by section 17(1). Mr. N.C. Chatterjee argued that if the majority view of the Calcutta High Court is upheld, it may lead to some anomalies. As an illustration, he asked us to consider the case of a suit failing under section 17(1) which ultimately fails and is dismissed. In such a suit, the rent would have to be deposited in Court by the tenant as required by section 17(1); but if the suit fails, what happens to the rent? Would the tenant be treated as being a defaulter, or would the tenant who is required to make a deposit in Court as required by section 17(1) be compelled as a precaution, to make another deposit with the Controller in cases where the .landlord had refused to accept rent before he flied the suit? We are not impressed by this argument. In our opinion, if the tenant had deposited the rent in Court as required by section 17(1), he could not be treated as a defaulter under any provision of the Act. Payment in Court made by the tenant under the statutory obligation imposed on him would, in law, be treated as payment of rent made by him to the landlord. 45 Mr. N.C. Chatterjee also relies on the fact that section 24 in terms provides that the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant shall operate as a waiver of such default, when there is no proceeding pending in Court for the recovery ,of possession of the premises. The argument is that where the Legislature intended to confine the operation of a specified provision to cases where there is no proceeding pending in Court, it has expressly so stated. In our opinion.this argument is not well founded. Section 24 merely indicates that the Legislature thought that it was necessary to make that provision in order to avoid any doubt as to whether acceptance of rent would amount to waiver or not in cases where no proceeding was pending in Court. On the other hand, from the wording of section 24 it may be permissible to suggest that the Legislature did not think of providing for the consequence of acceptance of rent after the commencement of a proceeding for the recovery of possession. because it knew that the said matter would be covered by section 17(1). Besides, section 22(2) gives some indication that the provisions of section 22 are not intended to be applied when suits or proceedings have commenced between the landlord and the tenant. It would be noticed that section 22(2) says that No. deposit shall be considered to have been validly made for the purposes of section 22(1) if the tenant wailfully or negligently makes any false statement in his application for depositing the amount unless the landlord has withdrawn the amount deposited before the date of institution of a suit or proceeding for recovery of possession ,of the premises from the tenant. This last clause may suggest that the provisions of all the clauses of section 22 may not be applicable after the suit or proceeding has commenced. As we have already pointed out, the question raised for our decision in the present appeal really centers round the determination of the areas covered by section 17 on the one hand, and sections 21 and 22 on the other; and though it may be conceded that the words used in the respective sections are not quite clear, on the whole the scheme evidenced by them indicates that the Legislature wanted section 17(1) to control the relationship between the landlord and the tenant as prescribed by it once a suit or proceeding for ejectment was instituted and a period of one month from the service of the writ of summons on the defendant had expired. We have carefully considered the reasons given by the two. learned Judges who delivered the minority judgments in the Siddheswar Paul 's(1) case, but we have come to the conclusion that the majority view on the whole correctly represents the true scope and effect of section 17, as distinguished from sections 21 and 22. In the result, the appeal fails and must be dismissed. There would be no order as to costs. (1)A.I.R. L/B(D)2SCI 5 46 Before parting with this appeal, however, we would like to add that appellant No. 1 has to submit to the penalty prescribed by section 17(3) apparently because. acting upon the opinion expressed by some of the learned Judges of the Calcutta High Court, he was advised to continue to deposit the rent with the Controller even after the present suit was filed against him. We do not know whether there are many other cases of the same type. In case there are several other cases of this type, that would really mean unjust hardship against tenants who, in substance, have not committed default in the matter of payment of rent, and yet would be exposed to the risk of ejectment by virtue of the application of section 17(3). In our opinion, such tenants undoubtedly deserve to be protected against ejectment. We trust the Legislature will consider this matter and devise some means of giving appropriate relief to this class of tenants. Appeal dismissed.

The appellant and respondent were the tenant and owner respectively of premises to which the West Bengal Premises Tenancy Act, 1956, applied. The respondent filed a suit, under section 13 of the Act, for the eviction of the appellant on various grounds. The appellant denied the allegations and contested the suit. Before the suit was filed, the appellant was depositing the rent for the premises with the Rent Controller under section 21 of the Act, because, the respondent was not prepared to accept the rent. The appellant continued to deposit the rent with the Rent Controller even after the suit was filed and the summons was served. Alleging that as soon as the suit was filed and a period of one month from the date of service of the summons on the appellant had expired, it was obligatory on the appellant under section 17(1), to pay the amount in court and not with the Rent Controller, the respondent filed an application for striking out the defence of the appellant in the suit. The application was allowed by the trial court. The appellant 's revision petition to the High Court was dismissed, following the decision of a Special Bench of the High Court in Siddheswar Paul vs Prakash Chandra Dutta, A.I.R. 1964, Cal. 105. In the appeal to this Court it was contended that the majority view in Siddheswar Paul 's case that section 22(3) does not apply to cases falling under section 17(1) was wrong, because, the deposit made by the appellant under section 21 with the Rent Controller constituted payment of rent by him to the landlord. under section 22(3); and therefore, there was no scope for invoking section '17(3) against the appellant inasmuch as the basis of section 17(3) was that the tenant whose defence was sought to be struck out had committed a default in the payment of rent. HELD: Section 17(1) is a complete scheme by itself and the legislature has intended that in suits or proceedings to which the section applies the payment of rent by the tenant to the landlord must be made in the manner prescribed by the section. The legislature wanted the section to control the relationship between the landlord and the tenant as prescribed by it. once a suit or proceeding for ejectment was instituted and a period of one month from the date of service of the writ or summons on the defendant had expired. Even in cases where the tenant might have been depositing the rent with the Controller under section 21, he has to comply with section 17(1) before the period prescribed by the section had elapsed, because, as soon as a suit is filed against the tenant by the landlord for eviction, section 17 which is a special provision, comes into operation, and it is the provisions of that special section that must prevail in cases governed by it. The object is. when a suit or proceeding has commenced between the landlord and the tenant for ejectment and the tenant had received notice of it, the payment of rent should be made in court to avoid any disputes in that behalf. The majority view in Siddheswar Paul 's case correctly represents the true scope and effect of section 17. as distinguished from sections 21 and 22. [42E; 431 F; 45G H] 35 Therefore, even the valid deposit made under section 21 could not be permitted to be pleaded by the tenant when the application was made against him under section 17(3).

Appeal No. 112 of 1957. Appeal by special leave from the judgment and decree dated January 28, 1954, of the Bombay High Court in First Appeal No. 69 of 1950. Purshottam Trikamdas and Naunit Lal for the appellants. C. K. Daphtary,Solicitor General of India, section N. Andley, J. B. Dadachanji and P. L. Vohra for respond ents Nos. I and 2. B R. L. Iyengar for respondents Nos. 6 to 9. 1961. February 21. The Judgment of the Court was delivered by SHAH, J. The genealogy which sets out the relationship between some of the principal parties in this litigation is as follows: Mallappa | | | | | Balappa Shivappa Basavanappa Chanamalappa | | Basalingappa | Rachappa | (Parvatewa Balappa deft. 9 | respdt. 12) | | | | | | | Shrishailappa Shivappa | (Plaintiff 1) (plaintiff 2) | | | | | | | | | malappa Chanabasappa Balappa Basavanappa Shrishailppa (deft. 5) (deft.6) (adopted by (deft. 7) (deft. 8) Chanamalappa Mallappa had four sons Balappa, Shivappa, Basavanappa and Chanamalappa. These four sons, formed a joint Hindu family. Chanamalappa separated himself from the joint family sometime in the year 1909 and his other three brothers continued to remain joint. Shivappa was the Manager of the joint family 898 after the death of Mallappa. Shivappa died in 1928. and Rachappa became the Manager of, the family. The joint family possessed lands in seventeen, villages and many houses in Khanapur. The family had also an extensive money lending business. One Bashettappa Neeli hereinafter referred to as Bashettappawas married to the sister of Rachappa. On July 29, 1929, Bashettappa executed a deed of simple mortgage in favour of Rachappa in respect of certain parcels of lands and houses belonging to him to secure repayment of Rs. 1,73,000/ , Rs. 76,700/ out of which were received in cash and the balance represented amounts which Rachappa agreed to pay to Bashettappa 's creditors. To one Gurappa, Bashettappa owed Rs. 8,000/ as an unsecured debt and Rachappa agreed to pay that debt. In Insolvency Application No. 22 of 1929 of the file of the First Class Subordinate Judge, Dharwar, Bashettappa was adjudicated an insolvent and receivers were appointed by the Insolvency Court to administer his estate. The receivers applied for a declaration that the mortgage deed, in favour of Rachappa was in fraud of creditors and was 'accordingly void. The Assistant Judge, Dharwar, in Appeal No. 25 of 1934 from the order of the Insolvency Court held that Rachappa was entitled out of the mortgage amount to recover Rs. 45,700/ as a secured debt and Rs. 31,000/ as unsecured debt. Gurappacreditor of Bashettappa in the meanwhile filed Suit No. 84 of 1932 against Rachappa and other members of his family in the court of the First Class Subordinate Judge, Dharwar, for a decree for Rs. 8,000/claiming that Rachappa had, acting on behalf of the joint family of which he was the manager, undertaken under the deed of mortgage to pay that amount and. that he Gurappa had accepted that undertaking. ; A decree exparte was passed in that suit against Rachappa on February 28,1933, and the claim against the other members of the family was either withdrawn ' or rejected. On July 23, 1939, the three branches of the joint family by mutual agreement severed the joint status and properties movables and immovables beloning to the family were divided. Pursuant to 899 this division, lands and houses which fell to the shares of the three branches were mutated in the Revenue and Municipal records in the names of the managers of the respective branches. Movables were also divided. The mortgage amount recoverable from Bashettappa and a claim against one Desai were ' it is the case of the plaintiff in the suit out of which this appeal Arises, kept joint. Gurappa after making certain infructuous attempts to execute the decree filed dharkhast No. 176 of 1940 to recover Rs. 11,061 6 9 and prayed for an order of attachment and sale of the rights of Rachappa under the mortgage bond dated July 29,1929. One Ganpatrao N. Madiman hereinafter referred to as Madiman offered the highest bid at the court auction and the mortgage bond was sold to him for Rs. 20,000/ An application filed by Rachppa for setting aside the sale pleading that the sale was vitiated by material irregularities and fraud in publishing and conducting the sale was rejected. The mortgage bond was delivered by the executing court to Madiman and orders were issued against Bashettappa and the receivers of his estate prohibiting them from making payments of the dues under the mortgage or any interest thereon, to any person or personal except the purchaser Madiman. In Miscellaneous Application No. 57 of 1944, Madiman applied, to the Insolvency Court to be recognised as an unsecured creditor for Rs. 31,000/., and the application was granted on the footing that the entire interest under the mortgage bond was purchased by him. Receivers appointed by the Insolvency Court thereafter put up for sale. the equity of redemption in the mortgaged properties and the same was purchased for Rs. 15,500/. by Madiman. The sale deed in this behalf was executed by the receivers in favour of Madiman on January 28, 1947. Madiman accordingly became the owner of the equity of redemption and claimed to be entitled to the entire mortgagee right as a purchaser of the right, title and interest of Rachappa. Basalingappa who was the natural brother of Rachappa and was adopted by his uncle Basavanappa died in 1946 leaving him surviving his widow 900 Parvatewa, and two sons Shrishailappa and Shivappa. The sons of Basalingappa who will hereinafter be referred to as the plaintiffs filed Suit No. 253 of 1947 for a decree for Rs. 1,23,400/ by enforcing the mortgage deed executed by Bashettappa claiming that Madiman had at the court auction acquired in the mortgagee right only the right, title and interest of Rachappa which was a third and the plaintiffs and defendants 5 to 8 sons of Shivappa continued to remain owners of the remaining two third share. The plaintiffs prayed for a decree that the amount due under the mortgage be awarded to them and in default of payment the amount be realised by sale of the mortgaged property. To this suit were impleaded Bashettappa as defendant No. 1, receivers of his estate as defendants Nos. 2 and 3,Madiman as defendant No. 4, sons of Shivappa as defendants Nos. 5 to 8 and Rachappa and his son as defendants Nos. 9 and 10. Madiman died after the institution of this suit and his sons were impleaded as defendants Nos. 4A to 4C and his widow as defendant 4D. Madiman 's sons were the principal contesting defendants and the main contentions raised by them were: (1) that the mortgagee right was the separate property of Rachappa and it did not belong at any time to the joint family, of Rachappa defendants 5 to 8 and the plaintiffs, (2) that in any event, at the partition between the three branches the mortgagee right had failed to the share of Rachappa and that it was not kept undivided as alleged by the plaintiffs, and (3) that in Execution Petition No. 176 of 1940, the entire interest of the joint family was sold and it was purchased by Madiman and consequently, the plaintiffs could not enforce the mortgage. The trial court negatived the contentions raised by the sons of Madiman and held that only a third share in the mortgagee right was purchased at the court auction by Madiman. The court accordingly passed a decree against defendants Nos., 4A to 4D for payment of Rs. 60,933 5 4 and proportionate costs ',with future interest at 6% per annum 'on Rs. 30,466,10 8 901 from the date of the suit to the plaintiffs and defendants 5 to 8 within six months and in default of payment for sale of the mortgaged property. Against that decree, defendants 4A to 4C hereinafter referred to as the appellants appealed to the High Court at Bombay. The High Court held that the mortgagee right belonged to the joint family, that the agreement to pay Rs. 8,000/ to Gurappa was not binding upon that family and therefore in execution of the decree passed in favour of Gurappa only the right, title and interest of Rachappa was purchased by Madiman. The High Court further held that there was in 1939 severance of joint family status between the members of the family of Rachappa, plaintiffs and others, but as in the state of the record in the view of the court a finding on the question whether the mortgage debt was kept undivided could not be recorded, they remanded the case for recording a finding on the following issue: " Whether it is proved that the mortgage debt of 29th July, 1929, fell to the share of defendant No. 9 at the family partition of July, 1939, " and directed the trial court to allow both the parties to lead evidence upon this issue and to certify its findings thereon. The trial court recorded a negative finding on that issue. It held that the mortgage claim was kept undivided at the partition. The High Court confirmed this finding and dismissed the appeal filed by the appellants, subject to a slight modification as to the rate of interest awarded by the trial court. With special leave under article 136 of the Constitution, this appeal is preferred. No serious argument was advanced before us on the plea that the amount due under the mortgage from Bashettappa was not the property of the joint family. At the material time when the mortgage deed was executed by Bashettappa, Rachappa was the manager of the joint family. In Suit No. 84 of 1932 filed by Gurappa it was alleged that Rachappa was the manager of the joint family consisting of himself and the branches of Shivappa and Basavanappa and that the mortgage transaction was for the benefit of the joint family and that Raohappa had entered into that 902 transaction for and on behalf of the joint family and in that suit Rachappa alone was declared liable to pay Rs. 8,000/ . Partition of the year 1930 is supported by evidence which has remained unchallenged. Intimation was given to the village and Municipal authorities pursuant to the partition for mutating the names of the different branches to whom the shares were allotted. The evidence of Rachappa and Mallappa that the partition took place also has remained uncontradicted. The question which calls for consideration is whether at the partition, the mortgagee right under the deed executed by Bashettappa was kept undivided. Mallappa defendant No. 5 in his evidence when he was examined after remand stated that " an equal division was made of the lands according to the income and that Rachappa was not given a smaller share in the lands. " He also stated that the houses were divided in equal shares and the outstandings in the money lending business except two bonds the mortgage bond executed by Bashettappa and one Desai were kept undivided. He denied the suggestion that the mortgage debt due from Bashettappa was allotted exclusively to Rachappa. Rachappa in his evidence also stated that the mortgage bond was kept undivided between the three branches and that it was not true that it was allotted to his shares at the partition. Devidas defendant No. 4 A had evidently no personal knowledge about this partition or the terms thereof His statement that Rachappa had told him at the time when Madiman offered his bid at the court auction that the mortgage bond was allotted exclusively to Rachappa 's share could not in the circumstances of the case be true and was rightly "believed by the trial court and the High Court.

The manager of an undivided Hindu family consisting of himself, his brother and their step mother, instituted a suit for recovery of the amount due under a mortgage belonging to the family. The step mother who was interested in the mortgagee right was not made a party to the suit. Though the manager (the first plaintiff) did not describe himself as the manager in the plaint, the allegations in the plaint showed that the suit was filed on behalf of the joint family. No objection as to non joinder was raised in the trial court, but when the appeal was pending in the High Court the step mother was added as a party on her applica tion. The contesting defendants pleaded that as all persons having an interest in the mortgage security were not joined as parties within the period of limitation prescribed for a suit to enforce the mortgage, and the first plaintiff did not, in any case, purport to institute the suit in his capacity as the manager, the suit must fail. Held: (1) that the failure to join a person who is a proper but not a necessary party does not affect the maintainability of the suit nor does it invite the application of section 22 Of the Indian Limitation Act, 1908 ; (2) that the question whether a suit as instituted by the manager of an undivided Hindu family in his personal capacity or as representing the family depends upon the circumstances of each case and that the failure of the plaintiff to describe himself as the manager in the plaint is not decisive of the question. (1) (2) 897 In the resent case, the step mother was not a necessary party, and the facts showed that the suit was instituted by the first plaintiff in his capacity as manager. Accordingly, the suit was maintainable. Guruvayya Gowda and Others vs Dattatraya Anant and Others Bom. 11, referred to.

ivil Appeal No. 3927 of 1986. From the Judgment and Order dated 18.6. 1986 of the Bombay High Court in Writ Petition No. 10 of 1980. S.K. Dholakia, A.M. Khanwilkar and Mrs. V.D. Khanna for the Appellant. V.M. Tarkunde, Karanjawala, Mrs. Karanjawala and H.S. Anand for the Respondent. The Judgment of the Court was delivered by: K. JAGANNATHA SHETTY, J. This appeal by leave is from a decision of the Bombay High Court which allowed the respond ent 's petition for a writ of certiorari. In so doing the court quashed departmental proceedings initiated against the respondent and the resultant order terminating his services. The facts are substantially undisputed and may briefly be stated as follows: Respondent Seshrao Balwant Rao Chavan was at the rele vant time the Deputy Registrar of the Marathwada University. One Mr. Yelikar was working then as Controller of Examina tions. In or about April 1976, Mr. Yelikar proceeded on leave and the present respondent was directed to discharge the duties of the Controller of Examinations. Accordingly, he joined his new assignment and continued to hold 458 that post when the controversy which culminated in his dismissal took place. It is said that one Mr. Swaminathan from Madras was entrusted with the printing works needed to conduct annual examinations of the University for the years 1974 and 1975. Mr. Swaminathan submitted his bills amounting about Rs.6,00,000 for the work performed by him. The bills were not cleared immediately, and Mr. Swaminathan complained to the University authorities. He also submitted a petition to the Prime Minister of India which was forwarded to the University for immediate action. This led to an enquiry to find out whether the bills were deliberately kept pending with any ulterior motive. The Executive Council of the University appointed a four member committee including the Vice Chancellor to enquire into the matter. The committee after investigation submitted a report in November 1977 making some prima facie observations against the respondent. Thereupon, the Executive Council desired to have the matter thoroughly examined by another committee. It appointed Mr. N.B. Chavan for the purpose. Mr. Chavan made a detailed enquiry but found nothing against the respondent. On Decem ber 23, 1978, he submitted a report stating inter alia that there was no delay in clearing the said bills and if there was any delay, it was justified in the circumstances. He has stated that the University utilised the time for internal audit in which it was found that the claim of Mr. Swamina than was excessive to the extent of Rs.48,000 and odd. The report of Mr. Chavan thus gave a clean chit to the respond ent as to his conduct in discharging the duties as Control ler of Examinations. If the Executive Council had accepted the report and closed the matter that would have been better. But unfortu nately, it was not done and another chapter was opened. On March 22, 1979, the report of Mr. Chavan was placed before the Executive Council which without taking any decision entrusted the question to the Vice Chancellor. The Vice Chancellor was present in that meeting and agreed to take a decision in about a month. But what he did was entirely different. Purporting to act under the powers given to him by the Executive Council, he directed departmental enquiry against the respondent. He appointed Mr. Motale, Advocate as an Inquiry Officer who flamed three charges: First charge impeached the respondent of intentionally delaying the clearance of the bills of Mr. Swaminathan and thus tarnish ing the image of the University. Second charge alleged that the respondent did not place before the Executive Council, the letters , addressed by the Chancellor of the University on July 23, 1976 and 459 August 19, 1976. Third charge accused the respondent for not producing all the available papers for scrutiny by the one man committee headed by Mr. Chavan. On October 25, 1979, Mr. Motale submitted his ' enquiry report to the Vice Chancellor holding the respondent guilty of the charges. After a usual procedure of giving show cause notice and considering the reply thereto, the Vice Chancel lor decided to dismiss the respondent. On January2, 1980, he accordingly made an order. The matter did not rest there. The respondent moved the High Court under article 226 of the Constitution challenging his dismissal. When the writ petition first came up for hearing in November 1985, the High Court took a very curious stand. It observed that the entire matter be placed before the Executive Council for taking an appropriate decision. As per this observation, the matter came up before the Executive Council in the meeting held on December 26/27, 1985. The Executive Council passed a resolution inter alia, ratifying the action taken by the Vice Chancellor and confirming the dismissal of the respondent. This has added a new dimension to the case. At the final disposal of the writ petition, the High Court, however, examined the merits of the matter. The High Court held that the action taken by the Vice Chancellor was without authority of law. As to the ratification made by the Executive Council, the High Court held: "That the acts done by the Vice Chancellor remain the acts without any authority or powers and that defects cannot be cured by the subsequent resolution." With these conclusions, the High Court quashed the departmental proceedings taken against the respondent and also the order of termination of his services. Being aggrieved by the judgment, the Marathwada Univer sity by obtaining special leave has appealed to this Court. Learned counsel for the appellant put his contention in two ways: First, he said that on the true construction of the relevant provisions of the Marathwada University Act, 1974, the termination of services of the respondent cannot be assailed for want of power or jurisdiction on the part of the Vice Chancellor. Counsel next said that if the order was defective or without authority, the ratification by the Executive Council has rendered it immune from any challenge. In order to appreciate these submissions, we must outline the 460 statutory provisions of the Marathwada University Act, 1974 (called shortly "the Act"). Section 8 specifies the officers of the University. The Vice Chancellor is one of the offi cers. Section 10 provides for appointment of the Vice Chan cellor. He shall be appointed by the Chancellor and shall ordinarily hold office for a term. of three years. Section 11 reads, so far as material, as follows: "11(1): The Vice Chancellor shall be the principal executive and academic officer of the University, and shah in the absence of the Chancellor, preside at the meetings of the Senate and at any Convocation of the Universi ty . " "11(3): It shah be the duty of the Vice Chancellor to ensure that the provisions of this Act, the Statutes, Ordinances and Regulations are faithfully observed. The Chancellor shall, for this purpose, have the power to issue directions to the Vice Chancel lor who shall give effect to any such direc tions. " 11(4): If there are reasonable grounds for the Vice Chancellor to believe that there is an emergency which requires immediate action to be taken, he shall take such action as he thinks necessary and shall, at the earliest opportunity, report in writing the grounds for his belief that there was an emergency, and the action taken by him, to such authority or body as would in the ordi nary course, have dealt with the matter . ." 11(6)(a): It shall be lawful for the Vice Chancellor, as the principal executive and academic officer, to regulate the work and conduct of the officers, and of the teaching, academic and other employees of the Universi ty, in accordance with the provisions of this Act, the Statutes, Ordinances and Regulations." "11(7): The Vice Chancellor shah exercise such other powers and perform such other duties as are prescribed by the Stat utes, Ordinances and Regulations. " Section 19 enumerates the authorities of the University. The Executive Council is one of the authorities specified thereunder. Section 23 to the extent necessary is in the following terms: 461 "23(1): The Executive Council shall be the principal executive authority of the University, and shall consist of the following members, namely,: (i) the Vice Chancellorex officio Chairman. " Section 24 deals with the powers and duties of the Executive Council. These powers and duties are wide and varied and it is sufficient if we read sub sections (1), (xxix) and (xii) of sec. They are as follows: "24(1): Subject to such conditions as are prescribed by or under this Act, the Executive Council shall exercise the following powers and perform the following duties, namely . . " "24(1)(xxix): appoint officers and other employees of the University, prescribe their qualifications, fix their emoluments, define the terms and conditions of their service and discipline and where necessary, their duties." "24(1)(x1i): delegate, subject to the approval of the Chancellor, any of its powers (except the power to make Ordinances), to the Vice Chancellor, the Registrar or the Finance Officer, or such other officers or authority of the University or a committee appointed by it, thinks fit." Two other provisions are material, namely, secs. 37 and 84. Section 37, omitting the unnecessary, is in these terms: Sec. 37 Subject to the conditions prescribed by or under this Act, the Senate may make the Statutes to provide for all or any of the following matters namely: (xvi): The term of office, duties and condi tions of service of officers, teachers and other employees of the University, the provi sions of pension, insurance and provident fund and the manner of termination of their service and other disciplinary action and their quali fications, except those of teachers. " Section 34 is as follows: "Delegation of powers: Subject to the provi sions of 462 this Act and Statutes any officer or authority of the University may, by order, delegate his or its powers, except.the power to make Stat utes, Ordinances and Regulations, to any other officer or authority under his or its control, and subject to the conditions that the ulti mate responsibility for the exercise of the powers so delegated shall continue to vest in the officer or authority delegating them. " With these provisions, we turn to consider the first question urged for the appellant. The question is whether the Vice Chancellor was competent to direct disciplinary action against the respondent. In this context, we may make a few general observations about the position and powers of the Vice Chancellor. The University Education Commission in its report (Vol. I December 1948 to August 1949) has summarised the powers and duties as fol lows (at 421): "Duties of Vice Chancellor A Vice Chancellor is the chief academic and executive officer of his university. He presides over the Court (Senate) in the absence of the Chancellor, Syndicate (Executive Council), Academic Council, and numerous committees including the selection committees for ap pointment of staff. It is his duty to know the senior members of the staff intimately and to be known to all members of the staff and students. He must command their confidence both by adequate academic reputation and by strength of personality. He must know his university well enough to be able to foster its points of strength and to foresee possible points of weakness before they become acute. ' He must be the 'keeper of the university 's conscience ', both setting the highest standard by example and dealing promptly and firmly with indiscipline and malpractice of any kind. All this he must do and it can be done as constitutional ruler; he has not, and should not have autocratic power. Besides, this he must be the chief liaison between his univer sity and the public, he must keep the univer sity alive to the duties it owes to the public which it serves, and he must win support for the university and understanding of its needs not merely from potential benefactors but from the general public and its elected representa tives. Last, he must have the strength of character to resist unflinchingly the many forms of pressure to relax standards of all sorts, which are being applied to universities today. " 463 This has been approved by the Education Commission, 1964 66. In the report of the Education Commission, 1971 (pages 610 11 para 13.32) it was stated: "The person who is expected, above all, to embody the spirit of academic freedom and the principles of good management in a university is the Vice Chancellor. He stands for the commitment of the university to schol arship and pursuit of truth and can ensure that the executive wing of the university is used to assist the academic community in all its activities. His selection should, there fore, be governed by this overall considera tion. " Dr. A.H. Homadi in his wise, little study about the role of the Vice Chancellor in the university administration in developing coun tries has this to state (at 49): The President or the Vice Chancellor: "The President must be willing to accept a definition of educational leadership that brings about change to the academic life of the institution. He must be fired by a deep concern for education. He should instil a spirit and keeness about growth and develop ment in such a way that the professiriate feels that their goals are interlinked with those of the University, that their success depends upon the success of the University. The professors should be given detailed infor mation about the jobs that they have to per form and their good performance should be given due recognition by administration lead ership. Even such small encouragement will boost theft morale to greater heights. The President should have faith in his own abili ties as well as on the abilities of other professors and administrators and should provide guidelines about the kind of efforts he would like his professors and administra tors to make, setting an example by his own actions and exercises. The negative force of fear, when used and no one denies that an element of hard headedness is some times required as a persuasive inducement to profes sors and administrators of university should be employed judiciously. Under no circum stances should the apathy and belligerence of the professors and administrators be aroused. These call for strong but sympathetic leader ship in the President. " 464 The Vice Chancellor in every university is thus the conscious keeper of the University and constitutional ruler. He is the principal executive and academic officer of the University. He is entrusted with the responsibility of overall administration of academic as well as nonacademic affairs. For these purposes, the Act confers both express and implied powers on the Vice Chancellor. The express powers include among others, the duty to ensure that the provisions of the Act, Statutes, Ordinances and Regulations are observed by all concerned. (Section 11(3)). The Vice Chancellor has a right to regulate the work and conduct of officers and teaching and other employees of the University (Section 11(6)(a)). He has also emergency powers to deal with any untoward situation (Section 11(4)). The power conferred under sec. 11(4) is indeed significant. If the Vice Chancellor believes that a situation calls for immedi ate action, he can take such action as he thinks necessary though in the normal course he is not competent to take that action. He must, however, report to the concerned authority or body who would, in the ordinary course, have dealt with the matter. That is not all. His pivotal position as the principal executive officer also carries with him the im plied power. It is the magisterial power which is, in our view, plainly to be inferred. This power is essential for him to maintain domestic discipline in the academic and non academic affairs. In a wide variety of situations in the relationship of tutor and pupil, he has to act firmly and promptly to put down indiscipline and malpractice. It may not be illegitimate if he could call to aid his implied powers and also emergency powers to deal with all such situations. Counsel for the appellant argued that the express power of the Vice Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officers. We are unable to agree with this contention. Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal. Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove. This power is located under sec. 24(1)(xxix) of the Act. It is, therefore, futile to contend that the Vice Chancellor can exercise that power which is conferred on the Executive Council. It is a settled principle that when the Act pre scribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury 's Laws of England (Vol.14th Ed. para 32) summarises these principles as follows: 465 "32. Sub delegation of powers. In accordance with the maxim delegatius non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind. " The counsel for the appellant next submit ted that the Executive Council in the instant case had delegated its disciplinary power to the Vice Chancellor and the Act provides for such delegation. In support of the contention he relied upon the following resolution of the Executive Council: "Full power be given to the Vice Chancellor to take a decision on this question and the Vice Chancellor informed the Executive Council that he will take decision in about a month On this decision, Shri Gangadhar Pa thrikar gave his opinion that the Executive Council should take a decision on the note dated 16.1. 1979 submitted by him and other two members and since it was not accepted, he does not agree with the above decision." This resolution, in our opinion, is basically faulty at least for two reasons. It may be recalled that the Executive Council without considering the report of Mr. Chavan, wanted the Vice Chancellor to take a decision thereon. It may also be noted that the Vice Chancellor was present at the meeting of the Executive Council when the resolution was passed. He was given "full power to take a decision" which in the context, was obviously on the report of Mr. Chavan, and not on any other matter or question. He said that he would take a decision in about a month. In our opinion, by the power delegated under the resolution, the Vice Chancellor could either accept or reject the report with intimation to the Executive Council. He could not have taken any other action and indeed, he was not authorised to take any other action. The other infirmity in the said resolution goes deeper than what it appears. The resolution was not in harmony with the statutory requirement. Section 84 of the Act provides for delegation of powers and 466 it states that any officer or authority of the University may by order, delegate his or its power (except power to make Ordinance and Regulations) to any other officer or authority subject to provisions of the Act and Statutes. Section 24(1)(xii) provides for delegation of power by the Executive Council. It states that the Executive Council may delegate any of its power (except power to make Ordinances) to the Vice Chancellor or to any other officer subject to the approval of the Chancellor. (underlying is ours). The approval of the Chancellor is mandatory. Without such ap proval the power cannot be delegated to the Vice Chancellor. The record does not reveal that the approval of the Chancel lor was ever obtained. Therefore, the resolution which was not in conformity with the statutory requirement could not confer power on the Vice Chancellor to take action against the respondent. This takes us to the second contention urged for the appellants. The contention relates to the legal effect of ratification done by the Executive Council in its meeting held on December 26/27, 1985. The decision taken by the Executive Council is in the form of a resolution and it reads as follows: "Considering the issues, the Execu tive Council resolved as follows: 1. The Executive Council at its meeting held on March 22, 1979, had by a resolution given full authority to the Vice Chancellor for taking further proceedings and decision in both the cases of the defaulting officers. In exercise of above authority, the Vice Chancellor appointed an Inquiry Officer and as suggested by the Inquiry Offi cer issued Show Cause notices, obtained re plies from the Officers and lastly issued orders for terminating their services; XXX XXX XXX XXX XXX It was further resolved that (i) There has been no inadequacy in the pro ceedings against both the officers; (ii) The punishment ordered against both the officers is commensurate with the defaults and allegations proved 467 against both the officers; and (iii) The Executive Council, therefore, whol ly, endorses the actions taken by the then Vice Chancellor against both the officers. " By this resolution, we are told that the Executive Council has ratified the action taken by the Vice Chancellor. Ratification is generally an act of principal with regard to a contract or an act done by his agent. In Friedman 's Law of Agency (Fifth Edition) chapter 5 at p. 73, the/principle of ratifica tion has been explained: "What the 'agent ' does on behalf of the 'principal ' is done at a time when the relation of principal and agent does not exist: (hence the use in this sentence, but not in subsequent ones, of inverted commas). The agent, in fact, has no authority to do what he does at the time he does it. Subse quently, however, the principal, on whose behalf, though without whose authority, the agent has acted, accepts the agent 's act, and adopts it, just as if there had been a prior authorisation by the principal to do exactly what the agent has done. The interesting point, which has given rise to considerable difficulty and dispute, is that ratification by the principal does not merely give validity to the agent 's unauthorised act as from the date of the ratification: it is antedated so as to take effect from the time of the agent 's act. Hence the agent is treated as having been authorised from the outset to act as he did. Ratification is 'equivalent to an antecedent authority ' . " In Bowstead on Agency (14th Ed.) at p. 39) it is stated: "Every act whether lawful or unlaw ful, which is capable of being done by means of an agent (except an act which is in its inception void) is capable of ratification by the person in whose name or on whose behalf it is done . . The words "lawful or unlawful", however, are included primarily to indicate that the doctrine can apply to torts. From them it would follow that a principal by ratification may retrospectively turn what was previously an act wrongful against the princi ple, e.g. an unauthorised sale, or against a third party, e.g. a wrongful distress, into a legitimate one; or become liable for the tort of another by ratifying. " 468 These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified. The counsel for the appellant, however, invited our attention to the case of Parmeshwari Prasad Gupta vs The Union of India, ; It was a case of termina tion of services of the Secretary of a Company. The Board of Directors decided to terminate the services of the Secre tary. The Chairman of the Board of Directors in fact termi nated his services. Subsequently, in the meeting of the Board of Directors the action taken by the Chairman was confirmed. In the suit instituted by the Secretary challeng ing the termination of his services, the Court upheld on the principle that the action of the Chairman even though it was invalid initially, could be validated by ratification in a regularly convened meeting of the Board of Directors. Ma thew, J. while considering this aspect of the matter, ob served [at pp. 307 and 308] "Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Direc tors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the BOard of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Direction to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953. The appellant was not entitled to the declaration prayed for by him and the trial court as well as the High Court was right in dismissing the claim. " These principles of ratification governing transactions of a company where the general body is the repository of all powers not be 469 extended to the present case. We were also referred to the decision of the Court of Appeal in Barnard vs National Dock Labour Board, [1953] 1 All Eng. Law Reports 1113 and in particular the observation of Denning L.J., (at 1118 and 1119): "While an administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can dele gate its functions unless it is enabled to do so expressly or by necessary implication. In Local Government Board vs Arlidge (2) the power to delegate was given by necessary implication, but there is nothing in this scheme authorising the board to delegate this function and it cannot be implied. It was suggested that it would be impracticable for the board to sit as a board to decide all these cases, but I see nothing impracticable in that. They have only to fix their quorum at two members and arrange for two members, one from each side, employers and workers, to be responsible for one week at a time. "Next, it was suggested that, even if the board could not delegate their functions, at any rate they could ratify the actions of the port manager, but, if the board have no power to delegate their functions to the port manager, they can have no power to ratify what he has already done. The effect of ratifica tion is to make it equal to a prior command, but as a prior command, in the shape of dele gation, would be useless, so also is a ratifi cation. " These observations again are of little assistance to us since we have already held that there was no prior delega tion of power to the Vice Chancellor to take disciplinary action against the respondent. There was no subsequent delegation either. Therefore, neither the action taken by the Vice Chancellor, nor the ratification by the Executive Council could be sustained. In the result, the appeal fails and is dismissed with costs. N.V.K. Appeal dis missed.

The respondent was a Deputy Registrar of the appellant University. As the Controller of Examinations had proceeded on leave the respondent was discharging the duties of Con troller of Examinations. A complaint alleging that the respondent had delayed the payment of the bills of an out station party who had printed the question papers for the annual examination was received by the University. The Executive Council of the University appointed an Enquiry Officer to hold an enquiry to find out whether the bills were deliberately kept pending with any ulterior motive. The Enquiry Officer gave a clean chit to the respondent as to his conduct in discharging the duties as Controller of Examinations. The Executive Council of the University did not take any decision on the report of the Enquiry Officer, but entrusted the question to the Vice Chancellor who was present at the meeting. The Vice Chancellor directed a departmental enquiry against the respondent and appointed an advocate as the Enquiry Officer. The Enquiry Officer by his report held the respondent guilty of all the charges levelled against him. The Vice Chancellor after giving a show cause notice and considering the reply of the respondent, dismissed him from service. The respondent moved the High Court under Article 226 chal 455 lenging his dismissal. When the writ petition was taken up for hearing the High Court directed the entire matter to be placed before the Executive Council for an appropriate decision. The Executive Council considered the matter at its meeting and passed a resolution ratifying the action taken by the Vice Chancellor, and confirming the dismissal of the respondent. At the final disposal of the writ petition, the High Court examined the matter on merits and held that the action taken by the Vice Chancellor being without any au thority or power, these defects could not be cured by rati fication by the Executive Council in its subsequent resolu tion. The High Court accordingly quashed the departmental proceedings taken against the respondent, and also the order of termination of his services. In the appeal to this Court, it was contended on behalf of the University: (i)That on a true construction of the several provisions of the Marathwada University Act, 1974, the termination of services of the respondent cannot be assailed for want of power or jurisdiction on the part of the Vice Chancellor, and (2) that if the order was defective or without authority, the ratification by the Executive Council had rendered it immune from any challenge. Dismissing the Appeal, the Court, HELD: 1. The Vice Chancellor in every university is the conscious keeper of the University and the constitutional ruler. He is the principal executive and academic officer of the University. He is entrusted with the responsibility of overall administration of academic as well as non academic affairs. [464A B] 2. As the principal executive officer the Vice Chancel lor also carries with him an implied power, the magisterial power. This power is essential for him to maintain domestic discipline in the academic and non academic affairs. In a wide variety of situations in the relationship of tutor and pupil, he has to act firmly and promptly to put down indis cipline and malpractice. It may not be illegitimate if he could call to aid his implied powers and also emergency powers to deal with all such situations. [464D E] 3. The Marathwada University Act, 1974 confers both express and implied powers on the Vice Chancellor. The express powers include among others, the duty to ensure that the provisions of the Act, Statutes, Ordinances and Regula tions are observed by all concerned. [Section 11(3)] He has a right to regulate the work and conduct of 456 Officers and teaching and other employees of the University [Sec. 11(b)(a)]. He has also emergency powers to deal with any untoward situation [Section 11(4)] a very significant power. If he believes that a situation calls for immediate action, he can take such action as he thinks necessary, though in the normal course he is not competent to do so. However he must report to the concerned authority or body, who would, in the ordinary course, have dealt with the matter. [464B C] 4. The power 'to regulate the work and conduct of the officers ' cannot include the power to take disciplinary action for their removal. [464F] 5. When a statute prescribes a particular body to exercise a power, it must be exercised only by that body. [464G] Halsbury 's Laws of England Vol. 1, 4th Edn. page 32, re ferred to. The Marathwada University Act confers power to appoint officers on the Executive Council and it generally includes the power to remove. This power is located under Section 24(1) (XXIX) of the Act. [464F G] 7. The resolution of the Executive Council at a meet ing, at which the Vice Chancellor was also present, gave full power to the Vice Chancellor 'to take a decision on this question '. By the power delegated under the resolution, the Vice Chancellor could either accept or reject the report with intimation to the Executive Council. He could not have taken any other action and indeed, he was not authorised to take any other action. [465F G] : 8. The resolution was also not in harmony with the statutory requirement. Approval of the Chancellor to the delegation of power by the Executive Council to the Vice Chancellor was mandatory under section 24(1)(xii) read with section/84 of the Marathwada University Act. The resolution not being in conformity with the statutory requirement could not confer power on the Vice Chancellor to take action j against the respondent. [465H; 466A C] 9. Ratification is generally an act of principal with regard to a contract or an act done by his agent. The prin ciples of ratification in the context of the law of agency apparently do not have any application with regard to exer cise of power conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and 457 any action without power has no legal validity. It is ab initio void and cannot be ratified. [468A B] Friedman 's Law of Agency (5th Edn.) Chapter 5at page 73, Bowstead on Agency (14th Ed.) at page 39, Parmeshwari Prasad Gupta vs Union of India, ; and Bernard vs National Dock Labour Board, [1953] 1 All Eng. Law Reports 1113. In the instant case, there was no prior delegation of power to the Vice Chancellor to take disciplinary action against the respondent. There was no subsequent delegation either. Therefore, neither the action taken by the Vice Chancellor, nor the ratification by the Executive Council could be sustained. [469F]

Civil Appeal No. 151 of 1981. Appeal by Special Leave from the Judgment and Order dated 16.8.1969 of the Addl. Judge (Revisions) Sales Tax, Saharanpur in Revision Appln. No. 1688/78. J. Ramamurthi and Miss R. Vaigai for the Appellant. section C. Manchanda. B. P. Maheshwari and Suresh Sethi for the Respondent. The Judgment of the Court was delivered by TULZAPURKAR, J. This appeal by special leave raises the question whether hypodermic clinical syringes could be regarded as "glass ware" under Entry No. 39 of the First Schedule to U.P. Sales Tax Act, 1948 ? The facts giving rise to the question lie in a narrow compass. The appellant firm (hereinafter called the assessee) manufactures and sells hypodermic clinical syringes. For the assessment year 1973 74 the assessee filed a return disclosing net U.P. sales of such syringes at Rs. 95,065. The disclosed turnover was accepted by the 296 Sales Tax Officer, Sector III Muzaffarnagar, but as regards the rate of tax the assessee contended that the clinical syringes in respect of their turnover of Rs.91,513 up to November 30, 1973 should be regarded as an unclassified item and taxed at the rate of 3 1/2% or at 4% as "hospital equipment and apparatus" under Entry 44 of the First Schedule to the Act and on the turnover of Rs. 3,552/ for the period from December 1, 1973 to March 31, 1974 at the rate of 7% as an unclassified item. The Sales Tax Officer, however, treated the syringes as "glass ware" and taxed the entire turnover of Rs.95,065/ at the rate of 10% under Entry No. 39 of the First Schedule. The said assessment was upheld in appeal by the Assistant Commissioner (Judicial), Sales Tax, Muzaffarnagar and also in revision by the Additional Judge (Revision), Sales Tax, Saharanpur on August 16, 1979. It is this view taken by the assessing authorities as well as by the Additional Judge in revision that is being challenged by the assessee before us in this appeal. It may be stated that up to November 30, 1973 there were two competing entries in the First Schedule to the U.P. Sales Tax Act so far as the item in question is concerned, namely, Entry 39 which ran: "Glass wares other than hurricane lantern chimneys, optical lenses and bottles" and Entry 44 which ran: "Hospital equipment and apparatus" and for an item falling under the former the rate of tax was 10% while under the latter the rate of tax was 4% and for an unclassified item the rate was 3 1/2%. From December 1, 1973 onwards Entry 44 was deleted and, therefore, if the clinical syringes did not fall within Entry 39 it became an unclassified item under section 3A (2A) of the Act and the rate of tax was 7%. In view of this position that obtained for the relevant periods during the assessment year 1973 74 the assessee had claimed before the assessing authorities that its turnover in respect of syringes for the period up to November 30, 1973 was liable to tax at 3 1/2% as an unclassified item or in the alternative at 4% as "hospital equipment" under Entry 44 and its turnover for the period from December 1, 1973 to March 31, 1974 was liable to be taxed at 7% as an unclassified item. But, negativing its contentions the entire turnover was held to be taxable at the rate of 10% on the basis that clinical syringes fell within the expression "glass ware" occurring in Entry 39. Counsel for the assessee contended before us that in the absence of any definition of "glass ware" in the Act that expression must be understood in the ordinary commercial parlance and not in any scientific and technical sense and if such test were applied to the instant case then clinical syringes manufactured and sold by the 297 assessee could never be regarded as "glass ware". Counsel pointed out that the Revising Authority negatived the contention of the assessee in view of a decision of the Allahabad High Court in the case of Commissioner of Sales Tax vs section section R. Syringes and Thermometers but urged that the contrary view taken by the Orissa High Court in the case of State of Orissa vs Janta Medical Stores that thermometers, lactometers, syringes, eye glasses, etc. do not come within the meaning of the expression "glass ware" in Entry No. 38 in the Schedule to the relevant Notification issued under the first proviso to section 5(1) of the Orissa Sales Tax Act, 1947 was correct. In our view counsel 's contention has considerable force and deserves acceptance. It is well settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. In Ramavatar Budhiaprasad, etc. vs Assistant Sales Tax Officer, Akola the question was whether 'betel leaves ' fell within item 'vegetable ' so as to earn exemption from sales tax and this Court held that word 'vegetable ' had not been defined in the Act, and that the same must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance and so construed it denoted those classes of vegetable matter which are grown in kitchen garden and are used for the table and did not comprise betel leaves within it and, therefore, betel leaves were not exempt from taxation: In Commissioner of Sales Tax, Madhya Pradesh vs Jaswant Singh Charan Singh the question was whether the item 'coal ' under Entry 1 of Part III of Second Schedule to Madhya Pradesh General Sales Tax Act, 1958 included charcoal or not and this Court observed thus: "Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manu 298 factured by human agency from products like wood and other things. But it is now well settled that while interpreting items in statutes like the Sales Tax Acts, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense. " Viewing the question from the above angle this Court further observed that both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal ' in the term "coal", and held that 'charcoal ' fell within the concerned Entry No. 1 of Part III of Schedule II of the Act. Having regard to the aforesaid well settled test the question is whether clinical syringes could be regarded as "glass ware" falling within Entry 39 of the First Schedule to the Act ? It is true that the dictionary meaning of the expression "glass ware" is "articles made of glass" (See: Websters New World Dictionary). However, in commercial sense glass ware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in "glass ware" does not ordinarily deal in articles like clinical syringes, thermometers, lactometers, etc. which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that consumer would ask for such articles from a glass ware shop. In popular sense when one talks of glass ware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come up to one 's mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as "glass ware" falling within Entry 39 of the First Schedule of the Act. In our opinion, the view taken by the Orissa High Court in State of Orissa vs Janta Medical Stores (supra) is correct and the view of the Allahabad High Court in Commissioner of Sales Tax vs M/s S.S.R. Syringes and Thermometers (supra) is unsustainable. In this view of the matter it is clear that the assessee 's turnover up to November 30, 1973 will fall under Entry 44 dealing with 299 "hospital equipment" and the same would be taxable at the rate of 4% and its turnover from December 1, 1973 to March 31, 1974 will be taxable at the rate 7% as an unclassified item and the assessment will have to be made accordingly. In the result the appeal is allowed but there will be no order as to costs. section R. Appeal allowed.

Upto November 30, 1973, there were two competing entries in the First Schedule to the U. P. Sales Tax Act, 1948, so far as the item "hypodermic clinical syringes" is concerned, namely, Entry 39 which ran: "Glass wares other than hurricane lantern chimneys, optical lenses and bottles" and Entry 44 which ran: "Hospital equipment and apparatus" and for an item falling under the former the rate of tax was 10% while under the latter the rate of tax was 4% and for an unclassified item the rate was 3 1/2% From December 1, 1973 onwards Entry 44 was deleted and, therefore, if the clinical syringes did not fall within entry 39 it became an unclassified item under section 3A(2A) of the U.P. Sales Tax Act, 1948 and the rate of tax was 7%. In view of this position that obtained for the relevant periods during the assessment year 1973 74 the appellant assessee had claimed before the assessing authorities that its turnover in respect of syringes for the period up to November 30, 1973 was liable to tax at 3 1/2%, as an unclassified item or in the alternative at 4% as "hospital equipment" under Entry 44 and its turnover for the period from December 1, 1973 to March 31, 1974 was liable to be taxed at 7% as an unclassified item. But, negativing its contentions the entire turnover was held to be taxable at the rate of 10% on the basis that clinical syringes fell within the expression "glass ware" occurring in Entry 39 and hence the appeal by special leave on the question whether hypodermic clinical syringes could be regarded as glass ware. Allowing the appeal, the Court ^ HELD: 1. The assessee 's turnover up to November 30, 1973 will fall under Entry 44 dealing with "hospital equipment" and the same would be taxable at the rate of 4% and its turnover from December 1, 1974 will be taxable at the rate of 7% as an unclassified item. [298 H] 2: 1. It is well settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined 295 but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. [297 C D] Ramavatar Budhiaprasad etc. vs Assistant Sales Tax Officer, Akola, and Commissioner of Sales Tax, Madhya Pradesh vs Jaswant Singh Charan Singh, ; , followed. 2 : 2. The clinical syringes which the assessee manufactures and sells cannot be considered as "glass ware" falling within Entry 39 of the First Schedule of the Act. (a) In commercial sense, glass ware would never comprise articles like clinical syringes, thermometers, lactometers, and the like which have specialised significance and utility: (b) in popular or commercial parlance a general merchant dealing in "glass ware" does not ordinarily deal in articles like clinical syringes, thermometers etc. which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee; (c) it is equally unlikely that consumer would ask for such articles from a glass ware shop. Further in popular sense when one talks of glass ware such specialised articles like clinical syringes do not come up to one 's mind. [298 E F] State of Orissa vs Janta Medical Stores, 37 STC 33, approved. Commissioner of Sales Tax vs S.S.R. Syringes and Thermometers, 1973 Law Diary 178, overruled.

Civil Appeal No. 1085 of 1970. Appeal by Special Leave from the Judgment and Order dated 17. 3. 1969 of the Delhi High Court in SAD No. 2/69. P. R. Mridul and O. P. Sharma for the Appellant. section K. Bisaria for the Respondent. The Judgment of the Court was delivered by FAZAL ALI,J. This appeal by special leave is directed against a judgment of the Delhi Court and arises out of an application filed by Respondent No. 1 who claimed to be the tenant of the appellant, recalling the warrant of possession issued by the Controller in pursuance of a decree dated 31 7 1961 passed against the 1st respondent. The case had a rather chequered career having passed through several phases. To begin with the landlord appellant executed a lease in respect of the disputed premises in favour of Respondent No. 2 for three years as far back as 1.4.1942. In 1948, a suit was brought by the appellant for eviction of the tenant for non payment of rent on the ground of conversion of the user of the premises. The suit for possession was however dismissed but a decree dated 31. 1948 for arrears of rent was passed and it was held that Laxmi Bank was the real tenant. Subsequently, the Bombay High Court ordered the 446 Bank to be wound up and in the winding up proceedings, the said High Court appointed an Official Liquidator who on 16. 2. 1961 sold the tenancy rights to Respondent No. 1 section N. Jain. This sale was confirmed by the High Court on the same date and as a result there of respondent No. 1 took possession of the premises on 24.2.1961. On 5. 4. 1961, the land lord appellant filed an application under the Delhi Rent Control Act for eviction of Laxmi Bank. On 31. 7. 1961, a decree for eviction was passed in favour of the landlord appellant. On 23 1 1963. Respondent No. 1 filed a suit for a declaration that he was a tenant of the landlord appellant. This suit was dismissed for non prosecution on 5.5.1964 and an application to set aside the ex parte decree was also dismissed and the appeal against that order also failed. Thereafter Respondent No. 1 filed an application under section 25 of Delhi Rent Control Act (hereinafter referred to as the Act) for recalling the warrant of possession issued by the Court in pursuance of the decree dated 31.7.1961 in favour of the landlord. The present appeal arises out of these proceedings. The Rent Controller allowed the application and recalled the warrant of possession by its Order dated 20. 12. 1966. The matter was then taken up by the landlord in appeal to the Rent Control Tribunal which by its Order dated 25. 1968 reversed the order of the Rent Controller and dismissed the tenant 's application. A second appeal against the order of Tribunal was then filed by the tenant to the High Court which reversed the order of the Rent Control Tribunal and restored the order of the Rent Controller, hence this appeal by special leave. Mr. Mridul appearing for the appellant challenged before us the findings of the High Court on point nos. 1 & 3 which are formulated at page 91 of the judgment of the Delhi High Court. These points may be extracted thus: "(1) The application made by the appellant before the High Court under section 25 was not barred by reason of the dismissal of the appellants suit for default of appearance under Order IX Rule 9, C.P.C. (3) The transfer to the appellant by the Official Liquidator of the tenancy rights being voluntary did not come within the mischief of section 14(1)(b) of the Act. In the first place it was argued that so far as point No. 1 is concerned, the High Court was wrong in holding that the application of Respondent No. 1 was not barred by the reason of the dismissal of the appellant 's suit for setting aside the ex parte decree by the principle of Res Judicata or Order IX Rule 9 C.P.C. It was contended that 447 even if the previous suit filed by respondent No. 1 for declaration of his status as a tenant was dismissed for default but as the application for setting aside the decree also failed, there was an adjudication against the then plaintiff respondent No. 1 and therefore the present suit was clearly barred by the principles of Res Judicata or Order IX Rule 9. At any rate there can be no escape from the position that the application of respondent No. 1 would be clearly barred by the principle contained in Order IX Rule 9, C.P.C. In case of Suraj Ratan Thirani & Ors. vs The Azamabad Tea Co. & Ors.(1) this Court held thus: "We are not however impressed by the argument that the ban imposed by O. IX, r. 9 creates merely a personal bar or estoppel against the particular plaintiff suing on the same cause of action and leaves the matter at large for those claiming under him. Beyond the absence in O. IX, r. 9 of the words referring "to those claiming under the plaintiff" there is nothing to warrant this argument. It has neither principle, nor logic to commend it . The rule would obviously have no value and the bar imposed by it would be rendered meaningless if the plaintiff whose suit was dismissed for de fault had only to transfer the property to another and the latter was able to agitate rights which his vendor was precluded by law from putting forward. " In the instant case it was appellant who brought the previous suit which resulted in a decree for eviction of the tenant on 31 7 1961 a date when the 1st respondent had already taken possession of the premises by virtue of transfer made by the Official Liquidator. Thus the identity of the subject matter being substantially the same, this case clearly falls within the ambit of the ratio in the case supra. On this ground alone therefore the appellant is entitled to succeed because the High Court with due respect does not appear to have properly construed the scope of Order IX Rule 9 C.P.C. There is however nothing to show that respondent No.1 was tenant within the meaning of Rent Control Act so as to maintain an application under section 25 of the Act when in fact he was an unlawful sub lessee. As regards point No. 3, the High Court relying on a decision of Calcutta High Court in Krishna Das Nandy vs Bidhan Chandra Roy(2) has found that as the transfer in favour of respondent No. 1 by the Official Liquidator was confirmed by the Court, the status of the tenant by respondent No. 1 was acquired by operation of law and therefore the transfer 448 was an involuntary transfer and the provisions of Rent Control Act would not be attracted. After careful perusal of Calcutta case, in the first place it appears that the section concerned has not been extracted and we are not in a position to know what was the actual language of the section of the Bengal Act. Secondly, in our opinion, the official liquidator had merely stepped into the shoes of Laxmi Bank which was the original tenant and even if the official liquidator had transferred the tenancy interest to respondent No. 1 under the orders of the Court, it was on behalf of the original tenant. It was undoubtedly a voluntary sale which clearly fell within the mischief of s.14(1)(b) of the Delhi Rent Control Act. Assuming that the sale by the official Liquidator was an involuntary sale, then it undoubtedly became an assignment as provided for by section 14(b) of Delhi Rent Control Act. section 14(b) runs thus: "14(b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises with out obtaining the consent in writing of the landlord. " The language of section 14(b) is wide enough not only to include any sub lease but even an assignment or any other mode by which possession of the tenanted premises is parted. In view of the wide amplitude of s.14(b) we are clearly of the opinion that it does not exclude even an involuntary sale. Fore these reasons therefore we are unable to agree with the view taken by the High Court. The appeal is accordingly allowed, the judgment and decree of the High Court are set aside and the plaintiff 's application under section 25 of the Delhi Rent Control Act is dismissed. Mr. Bisaria, learned counsel appearing for the respondent submitted that as the tenant has been in the premises for a period of 19 years and is conducting business therein, he may be permitted sufficient time to make alternative arrangements. Mr. Mridul appearing for the appellant fairly conceded that he would have no objection if one year 's time is allowed to the respondent provided he gives an undertaking for handing over peaceful and vacant possession at the expiry of the time. We therefore allow time to the respondent to vacate the premises on or before 15th April, 1981 on the condition that he files an undertaking within two weeks to the effect (1) that he shall hand over vacant and peaceful possession to the landlord on or before 15th April, 1981; (2) that he shall not induct any per son on the premises; (3) that he shall go on paying the compensation for wrongful use of premises equivalent to the rent. 449 The undertaking must be filed supported by an affidavit within two weeks from today failing which the order granting time shall stand revoked. There will be no order as to costs. S.R. Appeal allowed.

The appellant landlord executed a lease in respect of the disputed premises in favour of respondent 2 for three years as far back as 1 4 1942. In 1948, a suit was brought by the appellant for eviction of the tenant for non payment of rent on the ground of conversion of the user of the premises. The suit for possession was however dismissed but a decree dated 31 11 1948 for arrears of rent was passed and it was held that Laxmi Bank was the real tenant. Subsequently, the Bombay High Court ordered the Bank to be wound up and in the winding up proceedings, the High Court appointed an Official Liquidator who on 16 2 1961 sold the tenancy rights to respondent No. 1. The sale was confirmed by the High Court on the same date and as a result thereof respondent No. 1 took possession the premises on 24 2 1961. On 5 1 1961, the landlord appellant filed an application under the Delhi Rent Control Act for eviction of Laxmi Bank. On 31 7 1961, a decree for eviction was passed in favour of the appellant. On 22 1 1963, respondent No. 1 filed a suit for declaration that he was a tenant of the landlord appellant. The suit was dismissed for non prosecution on 5 5 1964 and an application to set aside the ex parte order was also dismissed and the appeal against that order also failed. Thereafter respondent No. 1 filed an application under Section 25 of the Delhi Rent Control Act for recalling the warrant of possession issued by the Court in pursuance of the decree dated 31 7 1961 in favour of the appellant. The Rent Controller allowed it on 20 12 1966. An appeal to the Rent Controller Tribunal was ordered by order dated 25 11 1968 in favour of the appellant. A second appeal filed by respondent No. 1 to the High Court was allowed in his favour and the Rent Controller 's order allowing recalling of the warrant of possession was restored. Hence the appeal by special leave by the landlord. Allowing the appeal, the Court ^ HELD: 1. The application of respondent No. 1 under Section 25 of the Delhi Rent Control Act is clearly barred by the principle contained in order IX Rule 9 Civil Procedure Code. It was the appellant who brought the previous suit which resulted in a decree for eviction of the tenant on 31 7 1961 a date when the Ist respondent had already taken possession of the premises by virtue of transfer made by the Official Liquidator. There is nothing to show that respondent No. 1 was a tenant within the meaning of Delhi Rent Control 445 Act so as to maintain an application under section 25 of the Act, when in fact he was an unlawful sub lessee. [447A, E, F G] Suraj Ratan Thirani and Ors. vs Azamabad Tea Co. and Ors. ; ; applied. The language of section 14(b) of the Delhi Rent Control Act is wide enough not only to include any sub lease but even an assignment or any other mode by which possession of the tenanted premises is parted. In view of the wide amplitude of section 14 (b), it does not exclude even in involuntary sale. [448D E] In the instant case, the official Liquidator had merely stepped into the shoes of Laxmi Bank which was the original tenant and even if the official liquidator had transferred the tenancy interest to respondent No. 1 under the order of the Court, it was on behalf of the original tenant. It was undoubtedly a voluntary sale which clearly fell within the mischief of section 14 (1) (b) of the Delhi Rent Control Act. Assuming that the sale by the Official Liquidator was an involuntary sale, then it undoubtedly became an assignment as provided for by section 14 (b) of Delhi Rent Control Act. [448A C] Krishna Das Nandy vs Bidhan Chandra Roy, A.I.R. 1959 Cal. 181 Overruled.

Civil Appeal No. 2603 2605 of 1987. From the Judgment and order dated 8.12.1986 of the Rajasthan High Court in D.B. Special Appeal No. 889, 975 and 1135 of 1986. G.L. Sanghi and Mrs. Rani Chhabra for the Appellants. Shanti Bhushan and S.K. Jain for the Respondents. The Judgment of the Court was delivered by RANGANATHAN, J. Special Leave granted. Appeals are disposed of by this order. The three appellants had been granted permits on a route from Bhadra to Hissar via Adampur. This route lay both in the State of Rajasthan and in the State of Haryana and was thus an inter State route. When the permits were about to expire the petitioners filed applications for their renewal in accordance with the provisions of section 58 of the Motor Vehicles Act (hereinafter called 'the Act '). At the same time, the Rajasthan State Road Transport Corporation (hereinafter referred to as 'the Corporation ') also moved applications before the Regional Transport Authority, Bikaner, for the grant of fresh permits to it on the same route. The applications for renewal of permits made by the petitioners as well as the applications for the grant of permits by the Corporation were heard together by the Re gional Transport Authority, Bikaner (R.T.A.) on several dates, the 643 last of which was the 6th of November, 1981. On that date, orders were reserved by the R.T.A. The R.T.A., however, passed its order only on 27th November, 1982, about a year after the date of the hearing. It rejected the renewal applications of the petitioners and granted permits to the Corporation in respect of the above route. Aggrieved by the orders of the R.T.A., the petitioners filed appeals before the State Transport Appellate Tribunal (S.T.A.T.) The STAT dismissed the appeals preferred by the petitioners and confirmed the order of the R.T.A. The petitioners filed writ petitions in the High Court of Rajasthan, which were dismissed by a Single Judge on 2 1st July, 1986. Further appeals preferred by the petitioners and certain other operators were dismissed by a Division Bench of the High Court of Rajasthan by its judgment and order dated 8th December, 1986. These Special Leave Petitions have been preferred against the order of the Division Bench dated 8th December, 1986. We have come to the conclusion that the order of the R.T.A. (and consequently the orders of the STAT and the High Court) should be set aside and the matter should be remitted back to the R.T.A. for fresh consideration on the short ground that the petitioners have not had a fair opportunity of putting forward and being heard on their contentions relevant to the issue before the R.T.A. The principal issue that had to be considered by the R.T.A. was whether the claims of the Corporation for the grant of a permit had precedence over the claims of the petitioners for renewal. This issue had to be decided in the context of two statutory provisions. The first is section 47( 1H) of the Act which reads as follows: Notwithstanding anything contained in this section, an application for a stage carriage permit from a State transport undertaking for operating in any inter State route shall be given preference over all other applications: Provided that the authority shall not grant a permit under this sub section unless it is satisfied that the State transport undertaking would be able to operate in the inter State route without detriment to its responsibility for providing efficient and adequate road transport service in any notified area or notified route as is referred to in subsection (3) of section 68D where the undertaking operates the service. 644 Explanation For the purposes of this sub section, "inter State route" means any route lying contiguously in two or more States. The second relevant provision is the third proviso inserted in section 58(2) of the Act by an amendment applicable to the State of Rajasthan. This sub section, in so far it is material for our present purposes, reads: . "(2) A permit may be renewed on an application made and disposed of as if it were an application for a permit: Provided further that, other conditions being equal, an application for stage carriage permit by a State transport undertaking as defined in section 68(A), shall be given preference over applications from individual owners and cooperative societies. " The arguments before the R.T.A. primarily ranged round the question whether the terms of the proviso to section 47(1H) were fulfilled in the present case or not. The petitioners (as well as operators on several other routes whose requests for renewal had also been countered by applications for permits by the Corporation) con tended that the Corporation was not in a position to operate in the inter State routes in question without detriment to its responsibility for providing efficient and adequate road transport service in routes which had already been nationalized under Chapter IV A of the Act. The R.T.A. has applied its mind to this contention in what may be described as a piecemeal manner. This was because applications made by several private operators and the corporation in regard to various routes came up for consideration by it in separate meetings held at different places on different occasions. In fact it is this which also explains the delay in the passing of its order by the R.T.A. in the present case. In course of the hearing before us, we called upon the respondents to produce the original records. These show that the mat ter relating to renewal of permits of six operators (including the preG sent petitioners) was heard on 6.11.1981 and orders reserved. On 30 .11.8 1, the counsel for the Corporation made a request to the R.T.A. that certain other matters pertaining to renewals of permits in the Bikaner region were coming up for consideration on 16.12.81 and that, therefore, the orders in the instant cases may be deferred till after the other matters were also heard by the R.T.A. This request of the counsel for the Corporation was accepted by the R.T.A. The other 645 matters referred to could not be heard on 16.12.1981 but got adjourned from time to time. The order sheet of the R.T.A. in the present case shows that the decision in the present cases was deferred on three subsequent occasions upto 22.03.1982. The records do not indicate what happened thereafter but it appears that the decision was postponed on subsequent occasions also for the same reason and ultimately announced by the R.T.A. On the 27th of November, 1982, after the connected matters had been heard. This is clear from the order of the R.T.A. which, in arriving at its final decision, has followed the orders passed by it on 15.9.82 & 24.11.82 in certain other matters and the orders passed by the R.T.A., Jaipur on 7.4.82 & 10.9.82 in relation to two routes falling within its jurisdiction. The short grievance of the petitioners was that, by adopting the above procedure, the R.T.A. has imported into its final decision and order various transactions, facts, events and arguments of which they had no notice and which they had not been given a proper opportunity to rebut. The STAT dealt with the argument by simply observing that "for considering the obtainable facts a fresh opportunity to appellants in my opinion was not very much required, as there would not be any end to it." The learned Single Judge in the High Court recognised that: "If such long spell time has lapsed and such new material has come into existence the proper course for the RTA should have been to get the case listed back for comments of both the parties but did not think that "the case warranted any interference on this aspect. " The Division Bench observed: "It was urged on behalf of the appellants that the Regional Transport Authority took into account events after hearing and closing the cases without giving any opportunity to the appellants to rebut that material. It was also urged that out of 83 documents filed by the appellants before the Regional Transport Authority in rebuttal of this material, only 2 were accepted, while remaining 81 were rejected. There is no merit in this contention. The mere fact that the appellants filed these documents out of which two were taken into account shows that they had the knowledge of the subsequent material being used for the purpose of deciding these cases and it is for this reason that they filed these documents out of which two were also taken into account. Moreover, the subsequent events relate only to matters of record pertaining to operation of the existing routes by the 646 State Transport Undertaking. There is thus no prejudice to A the appellants. This argument is, therefore devoid of any merit. In our opinion the approach of the STAT as well as the High Court was erroneous. There is no doubt that the R.T.A. in deciding the present case has been influenced not merely by the discussions which took place during the hearing of the applications of these petitioners and the Corporation but also the facts circumstances, and arguments that surfaced at the meetings held by it in relation to various other permits in the State. It is true that the point that arose for consideration viz. whether the Corporation had placed sufficient material on record to satisfy the R.T.A. concerned that the grant of a further permit or further permits to it would not prejudicially affect the nationalised services already run by it was, in a sense, a point common to all the meetings. Nevertheless, the grant of a permit in each case is a separate issue to be decided on the facts and circumstances placed on record in relation to that case. In support of their claims for permits, the petitioners had placed some material before the R.T.A. and so also the Corporation. If, in reaching its decision, the R.T.A. desires to take into account circumstances and facts placed by other petitioners or by the Corporation at other meetings, the petitioners should atleast have had an opportunity of knowing what that material was. This could have been done either by allowing the petitioners to participate at the other meetings or by giving the substance of that material to the petitioners, and giving them an opportunity of rebutting it before passing the final order. In this context it is important to remember that the Corporation was a party at all the meetings and was aware of all the materials that had been placed on record by other operators as well as by themselves thereat. On the contrary, the petitioners were handicapped in that they had no knowledge of the material placed at the other meetings. In our opinion, the requirements of natural justice were flouted by the failure of the RTA to apprise the petitioners, atleast broadly, of what had transpired at the other meetings. The High Court has observed that the petitioners had not been prejudiced as is seen from the fact that they had placed several documents on record in rebuttal of the Corporation 's case. It may be, as pointed out by the High Court, that the petitioners were vaguely aware of the nature of the general contentions urged as well as the evidence placed by the Corporation and also tried to put in some documents to controvert the material placed on record by the Corporation but they 647 had no direct knowledge of such material. Further, the petitioners ' grievance is that out of 83 documents placed by the petitioners only two were considered. We are not able to appreciate the High Court 's answer to this contention in the extract we have quoted above. We could have understood it if the other 81 documents which the petitioners relied upon had been found to be irrelevant. The R.T.A. has not discussed this evidence. Nor does the STAT appear to have considered the material or given the petitioners an opportunity, atleast at the appellate stage to attempt to substantiate its contentions by reference to these documents. In the Special Leave Petitions before us, the petitioners have catalogued several circumstances to substantiate a contention that the Corporation was not in a position to undertake the plying of buses on the routes in question without prejudice to the efficiency of the nationalised services already being run by it. We express no opinion on the correctness of these averments or the effect they can have on the satisfaction to be reached by the Regional Transport Authority but it appears manifest that the impugned order rejecting the renewal applications of the petitioners has been passed without there being reasonable opportunity given to the petitioners to counter the case put forward by the Corporation. On this short ground that the procedural requirements of natural justice have not been complied with, we think, the impugned order should be set aside and the R.T.A. directed to pass a fresh order after giving the opportunity to the Petitioners to put forward their contentions. Shri Shanti Bhushan, learned counsel for the Corporation, raised two contentions. He urged, firstly, that the present case was governed by section 58(2) and not by section 47( 1H) and that the Corporation was rightly granted precedence over the private operators. We are unable to accept this contention for two reasons. In the first place the grant of a permit for an inter State route is governed by the special provision contained in section 47( lH) and not by section 58 which is a general provision. Secondly, even under Section 58, the Corporation is not entitled to a permit automatically by reason of the fact that it is a State Road Transport Undertaking. It is entitled to a priority over private operators only on "other things being equal". In other words, even if section 58 is to apply, the RTA has to apply its mind to the relative merits of the private operators on the one hand and the Corporation on the other and it is only if both of them stand on the same footing that the Corporation would be entitled to a preference. This would necessarily involve a hearing by the RTA of the merits of both the contending parties. 648 The second contention of counsel is based on an interpretation of A section 47(1 H). The principle and ratio of this provision has been discussed and approved by this Court in Sher Singh vs Union of India, A.I.R. 1984 SC 209. This provision no doubt enables the Corporation to have a preference over private operators and individuals but this is subject to a condition precedent that it should satisfy the Authority that it E3 would be able to operate the inter State route for which permit is sought without detriment to the efficiency and adequacy of the nationalised services it is already running in the State. Shri Shanti Bhushan would contend that this is a matter on which the Regional Transport Authority has to reach a subjective satisfaction in the light of such material as it may be able to gather and that it is not necessary that it should be arrived at after giving an opportunity to all the persons appearing before the Authority. We cannot accept this interpretation. Like analogous provisions contained in several statutes which require or permit certain action to be taken on the satisfaction of a particular specified authority, the provision in section 47( lH) also requires the R.T.A. to arrive at its satisfaction not subjectively but on an objective consideration of the various facts and circumstances placed before it. It will at once be obvious that such a satisfaction cannot be reached by the Authority without hearing the various operators. The matter comes up before the Authority on a contest between an application for a permit or a renewal application of a private operator and an application for permit by the Corporation. Naturally, the Corporation will place before the Authority some material to satisfy the Tribunal that the condition mentioned in the proviso to section 47(1H) is satisfied. The R.T.A. On its own can have no method of assessing the merits of this plea. It is only the private operators, who are seeking permits for themselves that may be in a position to place material which would show that the Corporation does not have the capacity to take up this additional responsibility of running buses on the inter State route for which it seeks a permit. It is clearly the duty of the R.T.A. to consider the evidence placed by both the parties, allow each party an opportunity to rebut the material placed by the other and arrive at its satisfaction one way or the other. The satisfaction contemplated under section 47( lH) is a satisfaction to be arrived at on the basis of such a quasi judicial enquiry conducted by the R.T.A. It is, therefore, not possible to accept the contention that the petitioners were not required to be heard before the R.T.A. reached its conclusion in favour of the Corporation. For the reasons discussed above, we hold that the petitioners ' applications for renewal of permits as well as the Corporation 's appli 649 cation for fresh permits on the inter State route Bhadra to Hissar via Adampur require to be considered afresh. We, therefore, set aside the order of Regional Transport Authority dated 27.11.1982, the order of the State Transport Appellate Tribunal dated 20.1. ]983 as well as the order of the Single Judge of the High Court dated 21st July, 1986 and the order of the Division Bench of the High Court dated 8.12.1986. The matter will stand remanded to the file of the R.T.A., Bikaner, for being disposed of afresh in the light of the above observations. The appeals are allowed but in the circumstances we make no order as to costs. S.L. Appeals allowed.

% The appellants filed applications for renewal of their stage carriage permits on a route in Rajasthan, under section 58 of the Motor Vehicles Act. At the same time, the Rajasthan State Road Corporation(Corporation) moved applications for the grant of fresh permits to it for the same route. Both the applications for renewal of permits and the applications for fresh permits, were heard together by the Regional Transport Authority (R.T.A.) which reserved its orders thereon. The R.T.A. passed orders in the matters after a year of the hearing, rejecting the renewal applications of the appellants and granting fresh permits to the Corporation. The R.T.A. had, during the intervening period of one year, held several other proceedings and meetings in connected matters of which no notice and no opportunity had been given to the appellants whereas the Corporation was a party to all those meetings and discussions before the R.T.A. Against the orders of the R.T.A., the appellants filed appeals before the State Transport Appellate Tribunal (S.T.A.T.). The S.T.A.T. dismissed the appeals. The appellants moved the High Court by writ petitions against the order of the S.T.A.T. The High Court (Single Judge) dismissed the writ petitions. Further appeals by the appellants to the Division Bench of the High Court were also dismissed. The appellants moved this Court by special leave. Allowing the appeals, the Court, ^ HELD: The principal issue to be decided by the R.T.A. was whether the claims of the Corporation for fresh permits had precedence over the claims of the appellants for the renewal of their permits. [643E] 642 The appellants have not had an opportunity of putting forward their contentions and of being heard before the R.T.A. in the various proceedings meetings held by the R.T.A. during the period of one year following the reservation of orders by it on the applications of the Appellants and the Corporation. The principles of natural justice were flouted by the R.T.A. by its failure to apprise the appellants of what had transpired at the meetings/discussions held in their absence. [646D F] The appellants ' applications and the applications of the Corporation require to be considered and disposed of afresh by the R.T.A. in the light of the observations made by the Court. [648H, 649A] Sher Singh vs Union of India, AIR 1984 SC 200, referred to.

Appeal No. 104 of 1970. (From the Judgment and Order dated 23 10 1967 of the Patna High Court in Civil Writ Jurisdiction Case No. 299/66). L.M. Singhvi, U.P. Singh and S.N. Jha, for the Appellant. Sarjoo Prasad and U.S. Prasad, for the Respondent. The Judgment of the Court was delivered by KHANNA, J. The short question which arises for determi nation in this appeal on certificate by Damodar Valley Corporation against the judgment of Patna High Court dis missing the writ petition filed by the appellant is whether the appellant is liable to pay electricity duty under Bihar Electricity Duty Act,, 1948 as amended by Bihar Electricity Duty (Amendment) Act, 1963. The High Court answered the question in the affirmative against the appellant. The appellant is a corporation established under the for the development of the Damodar Valley in the States of Bihar and West Bengal. One of the functions of the appellant is the promotion and operation of schemes for the generation, transmission and distribution of hydroelectric and thermal electrical energy. Bihar Electricity Duty Act, 1948 (Bihar Act 36 of 1948) (hereinafter referred to as the principal Act) was published in the Bihar gazette; on October 1, 1948. It was an Act for the levy of duty on the sales and consumption of electrical energy in the province of Bihar. Material part of sec tions. 3 and 4,. as they stood before the amendment made in 1963, read as under: "3. Incidence of duty. (1) There shall be levied and paid to the: State Government on the units of energy consumed or sold, excluding losses of energy in the transmission and transformation, a duty at the rates specified in the First Schedule: Provided that no duty shall be leviable on units of energy : (i) . . (ii) . (iii) . (iv) . . 120 (v) consumed by, or in respect of, or sold for consumption in any (a) mine, as defined in the Indian Mines Act, 1923: (b) industrial undertaking; except to the extent specified in the Second Schedule: (vi). (2) . 4. Payment of duty. ( I ) Every licensee shall pay every month to the State Government at the time and in the manner prescribed the proper duty payable under section 3 on the units of energy consumed by him or sold by him to the con sumer. (2) Every licensee may recover from the amount which falls to be paid by the licensee as duty in respect of energy sold to the consumer. (3). . (4) . (4a) . (5) . The principal Act was amended by Bihar Electricity Duty (Amendment) Act, 1963 (Bihar Act 20. of 1963) (hereafter referred to as the amending Act). The amending Act received the assent of the President on December 4, 1963 and was published on December 17, 1963. By section 2 of the amending Act, new section 3 was substituted for the old section 3. Material part of new section 3 read as under: "3. Incidence of duty.(1) Subject to the provision of sub section (2), there shall be levied and paid to the State Government on the units of energy consumed or sold, excluding losses of energy in transmission and transformation, a duty at the rate or rates specified in the Schedule. (2) No duty shall be leviable on units of energy (a) . (b) . (c) . (d) . (e) consumed by the Damodar Valley Corporation for the generation, transmission or distribution of electricity by that Corporation; (f) . (3) . 121 Amendment was also made in the First Schedule of the principal Act. The relevant part of the sched ule read as 'under : THE SCHEDULE (See section 3.) RATES OF DUTY A. For a mine or an industrial under Such rateor rates taking, save in respect of its not exceeding 2 naya premises used for residential or paisa per unit of office purpose energy as may, from time to time, be fixed by the State Govern ment with the previ ous consent of the President, by order in this behalf". In the writ petition the appellant prayed for quashing three notices dated February 10, 1965 issued by the Superintendent of Commercial Taxes Giridih as also his orders dated March 24 and 29, 1966. By the impugned notices the Superintendent of Commercial Taxes called upon the appellant to show cause as to why penal action under the princi pal Act as amended,, should not be taken against the appellant for having failed to get itself registered under that Act. The appellant was also called upon to apply for registration. By the impugned orders the Superintendent of Commercial Taxes directed. the appellant to pay electricity duty under the: Act as amended. The case of the appellant was that it enjoyed immunity from payment of tax under clause (1) of article 288 of the Constitution. No law satisfying the requirement of clause (2) of article 288, it was contended, had been made warranting the levy of such a duty. The High Court repelled this contention, and we find no sufficient ground to take a different view. Article 288 of the Constitution reads as under: "288(1) Save in so far as the President may by order otherwise provide, no law of a State in force immediately before the comencement of this Constitution shall impose, or authorise the imposi tion of, a tax in respect of any water or electric ity stored, generated, consumed, distributed or sold by any authority established by any existing law made by Parliament for regulating or develop ing any inter State river or river valley. Explanation. The expression 'law of a State in force ' in this clause shall include a law of a State passed or made before the commencement of this Constitution and not previously repealed,, notwithstanding that it or parts of it may not be, then in operation either at all or in particular areas. (2) The Legislature of a State may by law impose or authorise the imposition of, any such tax as is mentioned in clause ( 1 ), but no such law shall have any effect unless it has, after having been reserved for the consideration of the President, received his assent; and if any such law provides for the fixation of the rates and other incidents of such tax by means of rules or orders to be made under the law by any authority, the law shall provide for the previous consent of the President being obtained to the making of any such rule or order. " 10 1003 SCI/76 122 Article 288 grants exemption from tax under any law of a State in respect of any water or electricity stored, gener ated, consumed, distributed or sold by any authority estab lished by any existing law or any law made by Parliament for regulating or developing any inter State river or river valley, except in certain cases. According to clause (1) of the article, this exemption would not be available in respect of such tax imposed under any law of a State in force immediately before the commencement of the Constitu tion if the: President by order so provides. Although the principal Act is a pre Constitution law, being an Act of 1948, no order was admittedly made by the President with drawing the exemption in respect of the appellant from levy of such, tax under the principal Act. Indeed, there was no question of issue of any such order because the principal Act did not provide for the imposition of electricity duty upon a corporation like the appellant. Clause (v) of the proviso. to sub section (1 ) of section 3 of the principal Act expressly stated that no duty shall be leviable on units of energy consumed by, or in respect of, or. sold for con sumption in any mine, as defined in the Indian Mines Act, or industrial undertakings, except to the extent specified in the Second Schedule. The appellant is admittedly an industrial undertaking, and as such, was not liable. to pay electricity duty under the principal Act. The case of the respondentS is that the bar to the levy of the said duty was removed and the levy of the duty on the appellant was, put on a sound legal basis as a result of the amendment made. in the principal Act by the amending Act of 1963. The amending Act, we find, satisfies the require ments of clause (2) of article 288. According to that clause, the legislature of a State may by law impose, or authorise the imposition of, any tax mentioned in clause (1) of that article, but no such law shall have any effect unless it has, after having been reserved for the consider ation of the President, received his assent; and if any such law provides for the fixation of the rates and other inci dents of such tax by means of rules or orders to. be made under the law by any authority,, the law shall provide for the previous consent of the President being obtained to the making of any such rule or order. The amending Act of 1963, as already mentioned, received the assent of the President before its publication. The exemption which was granted to mines and industrial undertakings from payment of elec tricity duty under the principal Act was withdrawn under the amending Act, except to some extent with which we are not concerned. The new schedule, substituted for the old sched ule by the amending Act, prescribed the rates of duty for mines and industrial undertakings, and it was provided that the rate of duty shall be such rate or rates not exceeding 2 naya paise per unit of energy as may, from time to time, be fixed by the State Government with the previous consent of the President, by order in this behalf. It has been argued by Dr. Singhvi on behalf of the appellant that the scheme of article 288 is to grant general exemption from the levy of tax in respect of any water or electricity stored, generated, consumed, distributed or sold ' by any authority established by any, existing 123 law or any law made by Parliament for regulating or develop ing any inter State river or river valley. If any law made by a State legislature, according to the submission, seeks the imposition of any such tax, such law should contain clear indication to that effect before it receives the assent of the President. The amending Act of 1963, :ac cording to the learned counsel, did not contain any such indication. This contention, in our opinion, is wholly devoid of force. Under proviso (v) to section 3(1) of the principal Act, mines and industrial undertakings were exempt from levy of duty. This exemption stood withdrawn as a result of, substitution of new section 3 for the old sec tion by the amending Act. The new charging section 3 (1 ) roped in all industrial undertakings, including the Damodar Valley Corporation, for the purpose of levy of duty. Clause (e) of sub section (2) of new section 3 which was introduced by the amending Act of 1963. expressly granted exemption from levy of electricity duty on units of energy consumed by the appellant corporation for the generation, transmission or distribution of electricity by that corporation. This provision. containing express reference to the appellant corporation, clearly warrants the inference that in respect of units of energy not covered by clause (e) of sub section (2) of section 3 the exemption would not be available to the appellant. The contention advanced on behalf of the appel lant that the amending Act did not contemplate or contain indication regarding the imposition of electricity duty upon the appellant is plainly untenable, for it would have the effect of Tendering clause (e) of sub section (2) of sec tion 3 to be wholly redundant. The courts, it is well settled, should be loath to accept an argument which would have the effect of rendering redundant the provision of a statute. Lastly, it has been argued that though there has been an amendment of section 3 of the principal Act by its substitu tion by a new section under the amending Act of 196.3, there has been no amendment of section 4 with the assent of the President. As such, no liability to pay electricity duty can be fastened upon the appellant. This submission too is bereft of force. Section 3, as inserted by the 'amending Act of 19 '63, is the charging section. According to clause (1) of that section, subject to the provision of sub section (2), there shall be: levied and paid to the State Government on the: 'units of energy consumed or sold, excluding losses of energy in transmission and transformation, a duty at the rate or rates specified in the Schedule. The section thus deals with the incidence of duty, and makes it clear that such duty h.as. to be paid on the units of energy consumed or sold and at the rate or rates specified in the schedule. It is further made clear by the section that the duty is to be levied and paid to the State Government. As the duty is to. be levied on the units of energy consumed or sold, it would follow that the duty would have to be paid by the consumer or seller,, as the case may be. Section 4 of the principal Act merely provides for the manner and mode of payment of the duty, and we find no substance in the conten tion that unless section 4 of the principal Act was also re enacted with the assent of the President, the liability for payment of duty cannot be fastened upon the appellant. 124 What is required by clause (2) of article 288 is that the law made by the State legislature for imposing or authorising the imposition of tax mentioned in clause (1) shall have effect only if after having been reserved for the consideration of the President, it receives his assent. Another requirement of that clause is that if such law provides for the fixation of the rates and other incidents of such tax by means of rules or orders to be made under the law by any authority, the law shall. provide for the previ ous consent of the President being obtained to the making of any such rule or order. It is, however, not the effect of that Clause that even if the above mentioned two require ments are satisfied, the provisions which merely deal with the mode and manner of the payment of the aforesaid tax should also receive the assent of the President and that in the absence of such assent, the provisions. dealing with the incidence of tax, which have received the assent of the President, would remain unenforceable. Some other aspects were also dealt with by the High Court, but in the light of the view we have taken in the matter, it is not necessary to deal with those aspects. The appeal consequently fails and is dismissed but in the circumstances without costs. P.B.R. Appeal dis missed.

The proviso (v) to section 3(1) of the Bihar Electricity Duty Act, 1948 provided that no duty shall be leviable on units of energy consumed by, or in respect of, or sold for con sumption in any mine or industrial undertaking except to the extent specified in the Second Schedule. In 1963 section 3 of the Act was amended and a new section 3 was. substituted for the old section 3. Sub section (2)(e) of the new section states that no duty shall be leviable on units of energy consumed by the Damodar Valley Corporation for the generation, trans mission or distribution of electricity by that Corporation. Item A of the First Schedule, as amended in 1963 states that for a mine or an industrial undertaking the duty leviable shall be at such rate or rates not exceeding 2 naya paise per unit of energy fixed by the State Government with, the previous consent of the president. The Amending Act re ceived the assent of the President. In response to notices issued by the Superintendent of Commercial Taxes calling upon the appellant to pay elec tricity duty under the Act as amended, the appellant contended that it enjoyed immunity from payment of tax under cl. (1) of article 288 of the Constitution, no law satisfying the requirement of cl. (2) of article 288. having been made. warranting the levy of such duty. The High Court dismissed the appellant 's writ petition. Dismissing the appeal to this Court, HELD: (1) What is required by cl. (2) of article 288 is that the law made by the State legislature for imposing, or authorising the imposition of tax mentioned in cl. (1) shall have effect only if (i) after having been reserved for the consideration of the President, it receives his assent, and (ii) that if such law provides for the fixation of the rates and other incidents of such tax by means of rules or orders to be made under the law by any authority, the law shall provide for ,the previous consent of the, President being obtained to the making of any such rule or order. It is, however, not the effect of that clause that even if these two requirements are satisfied, the provisions which merely deal with the mode and manner of the payment of the tax should also receive the assent of the President and that in the absence of such, assent, the provisions dealing with the incidence of tax, which have received the assent of the President, would remain unenforceable. [123 H; 124 A B] (2) The contention of the appellant that the amending Act did not contemplate or contain any indication regarding the, imposition of electricity duty upon the appellant is plain ly, untenable, for it would have the effect of rendering section 3(2)(e) to be wholly redundant. Under proviso (v) to section 3(1) of the Principal Act, mines and industrial undertakings were exempt from levy of duty. This exemption stood with drawn as a result of substitution of new section 3 for the old section by the amending Act. The new charging section 3(1) roped in all industrial undertakings, including the Damodar Valley Corporation, for the purpose of levy of duty. Section 3(2)(e), introduced by the Amending Act of 1963, expressly granted exemption from levy of electricity duty on units of energy consumed by the appellant for the, generation, transmission or distribution of electricity by that Corpora tion. This provision, containing express reference to the appellant Corporation, dearly warrants the inference that in respect of units of energy not covered by section 3(2)(e) the exemption would not be available to the appellant. [123 A B] 119 (3) There is no substance in the contention that unless section 4 of the principal Act was also re enacted with the assent of the President, the liability for payment of duty cannot be fastened upon the appellant. Section 3 of the Amending Act which deals with the incidence of duty makes it clear that such duty has to, be paid on the units of energy consumed or sold and at the rate or rates specified in the schedule. As the duty is to be levied on the units of energy consumed or sold, it would follow that the duty would have to be paid by the consumer or seller as the case may be. Section 4 of the. principal Act merely provides for the manner and mode of payment of the duty. [123 F G]

Civil Appeal No. 99 of 1951. Appeal from a Judgment and Decree of the High Court of Judicature at Bombay (Stone C.J. and Dixit 3.) dated 14th July, 1947, in First Appeal No. 128 of 1943 affirming a decree dated 14th October, 1942, of the Court of the Dis trict Judge of Kaira at Nadiad in Civil Suit No. 15 of 1928. 514 C.K. Daphtary (N. C. Shah, with him) for the appellant. Rajani Patel for the respondent. March 7. The judgment of the Court was delivered by MUKHERJEA J. This appeal is on behalf of the defendant and it arises out of a suit, under section 92 of the Civil Procedure Code, commenced by the plaintiffs who were origi nally nine in number in the court of the District Judge of Kaira at Nadiad. Out of the nine plaintiffs, only one is surviving, and he is now the sole respondent in this appeal, all the rest having died pending this protracted litigation, which began as early as the year 1928. The case of the plaintiffs, in substance, was that one Kuberdas, who was a religious teacher and a holy man rounded a cult known as Kaivalya or Karunasagar Panth, the principal tenet of which is that the realization of the Infinite is possible only through the medium of a Guru or spiritual preceptor. Kuberdas received money and lands from his followers and disciples and with this fund he built a temple at Sarsa. Kuberdas by will appointed his principal disciple Narayandas to succeed him on the Gadi and Narayandas built another and a bigger temple wherein he installed an image of Kuberdas, with the images of two staff bearers on two sides. The Mahants after Narayandas were Baldevdas, Bhagwandas and Pragdasji, who is the defendant in the suit and each one of them was appointed by a will executed by his predecessor. The defendant, it is alleged, had been acting in a manner contrary to the usages of the institution and was guilty of incontinence, mismanagement and improper alienation of trust properties. On these allegations the plaintiffs prayed that: (1) the properties described in the schedule to the plaint as well as other properties under the management of the defendant be declared to be religious and charitable trust properties of the Kaivalya or Karuna sagar Panth; 515 (2) the defendant be removed from the Gadi and posses sion of the properties and a suitable successor appointed in his place; (3) the defendant be called upon to render accounts for the period of his management; and (4) a scheme might be framed for proper management of the institution. The defendant in his written statement traversed all the material allegations in the plaint and contended infer alia that the suit was not maintainable inasmuch as no public trust of a religious and charitable character existed in respect to the suit properties which were the private properties of the defendant himself. On these pleadings, a number of issues were framed by the District Judge, of which the two following were tried as preliminary issues, viz., (1) Whether the temple and the properties in suit are public charitable properties ? and (2) if not, whether this court has jurisdiction to try the suit ? By his judgment dated the 18th of July, 1935, the Dis trict Judge decided both these issues against the plaintiffs and dismissed the suit. Against this decision the plain tiffs took an appeal to the High Court of Bombay. The learned Judges of the High Court, who heard the appeal, took the view that the ownership of. the suit properties was so restricted by the obligation to maintain the institu tion for purposes which only could be described as public charitable purposes, that the suit must be regarded as one coming within section 92, Civil Procedure Code. The result was that the judgment of the trial court was reversed and the case was remanded to that court in order that it might be heard and disposed of on its merits. The judgment of the High Court is dated 24th of January, 1938. Being aggrieved by this order, the defendant prayed leave to appeal to the Judicial Committee, but this application was refused. He thereupon filed a petition before the privy Council praying for special leave. 516 The Privy Council also refused to grant leave on the ground that the matter was still then in an interlocutory stage. They, however, said specifically that the order of refusal was without prejudice to the presentation of a fresh peti tion after all the issues were determined. The case then went back to the trial court and on the evidence adduced by the parties, the District Judge came to the conclusion that the allegations of misconduct and breach of trust made by the plaintiffs were not proved and in this view he dismissed the suit, subject to the declaration already given by the High Court that the temple and the properties in possession of the defendant were public, religious and charitable properties. The plaintiffs filed an appeal against this decision to the High Court of Bombay and the High Court by its judgment dated 14th of July, 1947, affirmed the decision of the District Judge and dismissed the appeal. The defendant has now come up to this court on the strength of a certificate granted by the High Court; and though formally it is an appeal against the final decree made by the High Court on 14th of July, 1947, in substance it challenges the propriety of the order of remand passed on 24th January, 1938, by which the High Court reversed the decree of dismissal made by the District Judge and remanded the case, being of opinion that the properties in dispute did appertain to a public trust of a religious and charita ble character. Mr. Daphtary appearing in support of the appeal has contended before us that on the question as to whether or not a public trust existed in respect of the properties in suit, the view taken by the trial judge was right and that the decision of the High Court is based upon a misapprecia tion of the evidence on the record. We have been taken through the entire evidence by the learned counsel on both sides; but having regard to the view which we propose to take in this case we deem it unnecessary to record any finding as to whether the properties in suit do or do not appertain to a public charitable trust. In our opinion, after the 517 decision arrived at concurrently, by both the courts below on the merits of the case, it was beyond the scope of a suit framed under section 92, Civil Procedure Code, to give the plaintiffs a bare declaration of this character and make it a part of the decree, although the suit itself was dis missed. A suit under section 92, Civil Procedure Code, is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically men tioned in the section. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provision of section 92, Civil Procedure Code. As was observed by the Privy Council in Abdur Rahim vs Barkat Ali(1), a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of section 92, Civil Procedure Code. In the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of section 92 and the suit proceeded on the footing that the defendant, who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust. The defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. The denial could not certainly oust the jurisdiction of the court, but when the courts found concurrently, on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of the plaintiffs, that any direction of the court was necessary for proper adminis tration of the trust, the very foundation of a suit under section 92, Civil Procedure Code, became wanting and the plaintiffs had absolutely no cause of action for the suit they instituted. In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was (1) (1928) 55 I.A. 96, 67 518 unconnected with the grounds upon which the case was actual ly disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiffs. It has been argued by the learned counsel for the respondents that even if the plaintiffs failed to prove the other allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties a fact which the defendant denied. In these circumstances, there was nothing wrong for the court to give the plaintiffs a lesser relief than what they actually claimed. The reply to this is, that in a suit framed under section 92 of the Civil Procedure Code the only reliefs which the plaintiff can Claim and the court can grant are those enumerated specifically in the different clauses of t, he section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it; but when the case of the plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of section 92, Civil Procedure Code. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit. The result is that in our ' opinion the decision of the High Court should stand, but the decree and the concluding por tion, of the judgment passed by the trial court and affirmed by the High Court on appeal shall direct a ' dismissal of the plaintiff 's suit merely without its being made subject to any declaration as to the character of the properties. To this extent the appeal is allowed and the final decree modified. The order for costs made by the courts below will stand. Each party will bear his own costs in this appeal.

In a suit under sec. 92 of the Civil Procedure Code alleging that the defendant had been guilty of misconduct and breach of trust as Mahant and praying, inter alia, that the temple and properties in suit be declared as a religious and charitable trust and the defendant be removed from the Gadi and a suitable successor appointed in his place, the District Judge and the High Court held concurrently that the defendant was not guilty of misconduct or breach of trust and dismissed the suit, but made a declaration to the effect that the temple and properties in the possession of defend ant belonged to a public trust of a religious and charitable character: Held, that a suit under sec. 92, Civil Procedure Code, is a suit of a special character which presupposes the existence of a public trust of a religious or charitable character and it can proceed only when there is a breach of such trust or directions from the Court are necessary for the administration thereof and it must pray for one or other of the reliefs that are specifically mentioned in the sec tion; and therefore as the Courts found concurrently that the allegations of breach of trust were not made out and no direction of the Court for proper administration of trust was sought, the very foundation of a suit under sec. 92, Civil Procedure Code, became wanting and the plaintiffs had no cause of action for their suit; and in the circumstances the declaration of the High Court about the existence of a public trust was inconsequential and was no more than an obiter dictum and such declaration must be deleted from the decree dismissing the suit.

: Petition for Special Leave to Appeal (Crl) No 1783/1988. PG NO 622 From the judgment and Order dated 14.4.1988 of the Andhra Pradesh in W.P. No. 4454 of 1988. G. Ramaswamy, Additional Solicitor General and T.V.S.N. Chari for the Petitioners. A. Subba Rao for the Respondent. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. This appeal by special leave is directed against the judgment dated April 14, 1988 of the High Court of Andhra Pradesh in writ petition No. 4454 of 1988 whereby the order of detention passed against the respondent under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 ("The Act") was quashed. Briefly stated the facts are these: The respondent was said to have smuggled paddy from Andhra Pradesh to Tamil Nadu. During the watch kept by the Inspector, Vigilance Cell, Civil Supplies Department, Nellore on the night of November 4, 1987 a lorry bearing No. MDN 8505 carrying 125 bags of paddy was spotted when it was trying to go to Tamil Nadu avoiding check post. The lorry was chased by the Inspector of Police and his staff. The driver suddenly stopped the lorry, but the persons in the vehicle took the heals jumping out there from and disappeared in the bushes. The respondent was identified by the Inspector of Police and his staff in the head lights of the jeep in which they were chasing. The driver of the vehicle was apprehended after a hot chase, but not the respondent. From the interrogation of the driver, it was established that on November 4, 1987, the respondent along with two others were in the cabin of the lorry and they were responsible for transporting paddy to Tamil Nadu. The paddy and the lorry were seized by the Inspector. A criminal case was registered against the driver under the Essential Commodities Act and the Andhra Pradesh Rice Procurement (Levy) Order, 1984. When the investigation of that case was proceeding, Additional Superintendent of Police, Nellore sent proposals to the District Magistrate for detaining the respondent under the Act. The District Magistrate passed an order dated December 24, 1987 directing the detention of the respondent. On January 4, 1988, the State Government approved the detention. On January 11, 1988 the State Government acting under sec. 10 of the Act refered the matter to the Advisory Board. PG NO 623 On January 27, 1988, the detenu submitted a representation through the Superintendent, Central Prison where he was detained to the Chairman of the Advisory Board and to the Chief Secretary, Government of Andhra Pradesh and also to the detaining authority. The Government forwarded the representation to the Advisory Board. On January 29, 1988, the Advisory Board met and heard the detenu and the officers on behalf of the Government. There were high ranking police officials representing the Government. The Advisory Board after hearing those officers and the detenu made an order: "We have heard the detenu, who has been produced before us and considered his written representation. We have also heard Sri V. Appa Rao, I.G.P. (Spl), Vigilance, Sri C.R. Naidu, Addl. S.P. (Vigilance), Hyderabad, Sri N. Chandramouli, D.S.P. (Vigilance), Nellore and Sri Nageswara Rao, Incharge Joint Collector, Nellore District. We have perused the grounds of detention and other connected papers. OPINlON We are of the opinion that there is sufficient cause for the detention of Balajangam Subaramaiah Subaramaiah Subbarami Reddy S/O Changaiah. Chairman Member Member" The Government agreed with the opinion and confirmed the detention for a period of six months. The detenu challenged the validity of the order of detention before the High Court. The High Court allowed the writ petition and quashed the order of detention. The High Court found that there was unequal treatment by the Advisory Board in considering the representation of the detenu. The Advisory Board having decided to hear the top ranking police officers like the Inspector General of Police, Vigilance, Additional Superintendent of Police, Vigilance, Deputy Superintendent of Police, Vigilance and Joint Collector of Nellore District ought to have given an equal chance of representation to the detenu by permitting him to be represented by a lawyer or at least by an official (friend) of an equal rank. The High Court tersely observed: PG NO 624 "In such circumstances, the Advisory Board ought to have provided the prisoner an opportunity for representation though not by a lawyer at least by some one equally competent like those who appeared for the State. The Government cannot deny the fact that the might of the official representation before the Advisory Board out weighed by several times the value of the detenu 's representation . The High Court also found that the detenu did write to the Government on January 27, 1988 asking for representation by a lawyer and that request ought to have been acceded to by the Advisory Board when the matter came up before it. The High Court then said: "We are of the opinion that the dormant right of the detenu for equal representation had become active upon the mode of conducting the proceedings by the Advisory Board. The prisoner in this case could not have envisaged that the High State officials would appear against his case and for the detaining authority. For these reasons. we cannot agree with the contention that the prisoner himself was to blame for not asking the Advisory Board for a lawyer 's representation or for equal level of representation before the Advisory Board. As we are of the opinion that Article 22 (5) requires the Advisory Board to afford the prisoner an equal opportunity for representing his case compared with the quality and quantity of official representation allowed for the detaining authority and as we are also of the opinion that the official representation in this case far outweighed in importance the detenu 's representation we hold that article 22(5) is violated in this case. These are the findings of the High Court. The question is whether the view taken by the High Court in the premises is justified. In view of the fact that top ranking officials representing the Government were personally heard by the Advisory Board whether the detenu was prejudiced? Whether there was any breach of equality in denying him representation by a lawyer or friend? The Act by sec. 10 provides for constitution of an Advisory Board. Sub sec. 2 thereof provides that every such Board shall consist of three persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, and such persons shall be appointed by the appropriate PG NO 625 Government. Sub sec. 3 provides that the Government shall appoint one of the members of the Advisory Board who is, or has been, a Judge of a High Court to be its Chairman, etc. Section I0 provides for reference to Advisory Board. In every case where a detention order has been made under the Act, the Government shall, within three weeks from the date of detention of a person, place before the Advisory Board constituted by it, the grounds on which the order has been made the representation, if any, made by the person affected by the order. Section 1I provides procedure to be followed by Advisory Board. It reads: "(1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned. (2) The report of the Advisory Board shall specify in a separate thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. (3) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board. (4) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board, and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential. ' Section 12 provides that where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person PG NO 626 concerned for such period as it thinks fit. But in case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith. The Act thus by sec. 11(4) expressly denies representation through a legal practitioner. The Board may hear any person if necessary. If the detenu desires to be heard, the Board may hear him also. But no person has a right to be represented by a lawyer much less the detenu. This provision is in conformity with article 22(3)(b) of the Constitution, the scope of which has been explained by a Constitution Bench of this Court. In A. K. Roy vs Union of India, [ ; , this Court speaking through Chandrachud, CJ., had this to say (at 339): "On a combined reading of clauses (1) and (3)(b) of Article 22, it is clear that the right to consult and to be defended by a legal practitioner of one 's choice, which is conferred by clause (1), is denied by clause 3(b) to a person who is detained under any law providing for preventive detention. Thus, according to the express intendment of the Constitution itself, no person who is detained under any law, which provides for preventive detention, can claim the right to consult a legal practitioner of his choice or to be defended by him. In view of this, it seems to us difficult to hold, by the application of abstract, general principle or on a priori considerations that the detenu has the right of being represented by a legal practitioner in the proceedings before the Advisory Board. Since the Constitution, as originally enacted, itself contemplates that such a right should not be made available to a detenu, it cannot be said less to be satisfied. It is therefore, necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair, just and reasonable. " Learned Chief Justice continued: PG NO 627 "But then, the Constitution itself has provided a yardstick for the application of that standard, through the medium of the provisions contained in Article 22(3)(b). However, much we would have liked to hold otherwise, we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair, unjust and unreasonable. If Article 22 were silent on the question of the right of legal representation, it would have been possible, indeed right and proper, to hold that the detenu cannot be denied the right of legal representation in the proceedings before the Advisory Boards. It is unfortunate that courts have been deprived of that choice by the express language of Article 22(3)(b) read with Article 22(1)." And also said: "We must, therefore, hold, regretfully though, that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Article 22(4)(b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu. In any case, that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be a breach of Article 14, if a similar facility is denied to the detenu. We must, therefore, make it clear that if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. We are informed that officers of the Government in the concerned departments often appear before the Board and assist it with a view of justifying the detention orders. If that be so, we must clarify that the PG NO 628 Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such officers are not "legal practitioners" or legal advisers. Regard must be had to the substance and not the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assist or advises on facts or law must be deemed to be in the position of a legal adviser. We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them." Learned Chief Justice also examined the right of a detenu to be represented by a friend if not by a lawyer and in that context observed: "Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who. in truth and substance, is not a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend. A detenu, taken straight from his cell to the Board s room, may lack the ease and composure to present his point of view. He may be "tongue tied, nervous, confused or wanting in intelligence", and if justice to he done. he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas. Incarceration makes a man and his thoughts disnevelled. Just as a person who is dumb is entitled, as he must, to he represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law. It may be that denial of legal representation is not denial o1 natural justice per se, and therefore, if a statute excludes that facility expressly, it would not be open to the tribunal to allow it. Fairness, as said by Lord Denning M.R., in Maynard vs Osmond, [1977] I Q.B. 240, 253 can he obtained without legal representation. But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility. " PG NO 629 There are two decisions of this Court earlier to A.K. Roy, (supra). In Kavita w/o Sunder Shankardas Devidasani etc. vs State of Maharashtra, 11982] I SCR 138, Chinnappa Reddy, J. speaking for a three Judge Bench, observed (at 147): "Where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case. In the present case, the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board. Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter, when he was produced before the Advisory Board, could have; if he was so minded, made a request to the Advisory Board for permission to be represented by a lawyer. He preferred not to do so. In the special circumstances of the present case, we are not prepared to hold that the detenu was wrongfully denied the assistance of counsel so as to lead to the conclusion that procedural fairness, a part of the Fundamental Right guaranteed by Article 21 of the Constitution was denied to him . In that case, this Court found that there was no denial of procedural fairness which is a part of the Fundamental Rights guaranteed under Article 21 of the Constitution. It was also found that the detenu made no request for representation by a legal practitioner before the Advisory Board. In Nand Lal vs State of Punjab, ; , A.P. Sen, J. said (at 723): It is the arbitrariness of the procedure adopted by the Advisory Board that vitiates the impugned order of detention. There is no denying the fact that while the Advisory Board disallowed the detenu 's request for legal assistance, it allowed the detaining authority, to be represented by counsel. It appears that the Advisory Board blindly applied the provisions of sub s (4) of section 11 of the Act to the case of the detenu failing to appreciate that it could not allow legal assistance to the detaining authority PG NO 630 and deny the same to the detenu. The Advisory Board is expected to act in a manner which is just and fair to both the parties. " More recently in Johney D 'Couto vs State of Tamil Nadu, , Ranganath Misra, J. speaking for a Bench of this Court, said (at 112): "The rule in A.K Roy 's case (supra) made it clear that the detenu was entitled to the assistance of a 'friend '. The word friend ' used there was obviously not intended to carry the meaning of the term in common parlance. One of the meanings of the word 'friend ', according to the Collins English Dictionary is "an ally in a fight or cause; supporter". The term 'friend ' used in the judgments of this Court was more in this sense than meaning 'a person known well to another and regarded with liking, affection and loyality?. A person not being a friend in the normal sense could be picked up for rendering assistance within the frame of the law as settled by this Court. The Advisory Board has, of course, to be careful in permitting assistance of a friend in order to ensure due observance of the policy of law that a detenu is not entitled to representation through a lawyer. As has been indicated by this Court, what cannot be permitted directly should not be allowed to be done in an indirect way. Sundararajan, in this view of the matter. was perhaps a friend prepared to assist the detenu before the Advisory Board and the refusal of such assistance to the appellant was not justified. " The history of civilised man is the history of incessant conflict between liberty and authority. The concentration of power in one hand and liberty in the other cannot go side by side. Temptation to use the power to curtail or destroy the liberty will be always there. It is found in the history of every country. The power to detain a person without trial is a serious inroad into the liberty of individuals. It is a drastic power capable of being misused or arbitrarily exercised. The Framers of our Constitution were not unaware of it. Some of them perhaps were the worst sufferers being the victims in the exercise of that arbitrary power. They had, therefore, specifically incorporated in the Constitution enough safeguards against the abuse of such power. The power to legislate in regard to preventive detention is located in Entry 9 of List I as well as in Entry 3 of List III in the VII Schedule of the PG NO 631 Constitution. The safeguards in regard to preventive detention are incoporated under Article 22 of the Constitution. Article 22(4) provides: "No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause (7): or xxx xxx xxx xx xx xx xx xx xx Article 22(5) provides: "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, 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. " These are the two important constitutional safeguards. The Advisory Board is a constitutional imperative. It has an important function to perform. It has to form an opinion whether there is sufficient cause for the detention of the person concerned. There is no particular procedure prescribed for the Advisory Board since there is no lis to be adjudicated. Section 11 of the Act provides only the broad guidelines for observance. The Advisory Board however, may adopt any procedure depending upon varying circumstances. But any procedure that it adapts must satisfy the procedural fairness. We need not deal with this aspect in detail since the Advisory Board consists of person who are, or have been or are qualified to be appointed as Judges of a High Court. They are men of wisdom and learning. Their report as envisaged under sec. 11(2) of the Act should provide specifically in a separate part whereof as to PG NO 632 "whether or not there is sufficient cause for the detention of the person concerned. " That opinion as to sufficient cause is required to be reached with equal opportunity to the State as well as the person concerned, no matter what the procedure. It is important for laws and authorities not only to be just but also appear to be just. Therefore, the action that gives the appearance of unequal treatment or unreasonableness whether or not any substance in it should be avoided by the Advisory Board. We consider that it must be stated and stated clearly and unequivocally that it is the duty of the Advisory Board to see that the case of detenu is not adversely affected by the procedure it adopts. It must be ensured that the detenu is not handicapped by the unequal representation or refusal of access to a friend to represent his case. In the instant case, since the Advisory Board has heard the high ranking officers of the Police Department and others on behalf of the Government and detaining authority, it ought to have permitted the detenu to have the assistance of a friend who could have made an equally effective representation on his behalf. Since that has been denied to the detenu, the High Court, in our opinion, was justified in quashing the detention order. It was, however, sought to be made out for the State that the police officers were present before the Board only to produce the record and they did not do anything further. But the record shows otherwise. The officers were not there only to produce the records. They were in fact heard by the Advisory Board obviously on the merits of the matter and that makes all the difference in the instant case. In the result, we agree with the conclusion of the High Court and dismiss this appeal. R.S.S. Appeal dismissed.

An order was passed by the District Magistrate, Nellore, directing the detention of the respondent under the Prevention of Black Marketing and Maintenance of supplies of Essential Commodities Act, 1980. The State Government approved the detention and referred the matter to the Advisory Board under section 10 of the Act. The detenus. representation was also forwarded by the Government to the Advisory Board. The Advisory Board heard the detenu and the top ranking police officers, who represented the State, and expressed the opinion that there was sufficient cause for the detention of the respondent. The Government agreed with the opinion and confirmed the respondent 's detention for a period of six months. The detenu challenged the validity of the order of detention. The High Court allowed the writ petition. The High Court found that there was unequal treatment by the Advisory Board in considering the representation of the detenu. Dismissing the appeal, it was, HELD: (1) The Act by section 11(4) expressly denies representation through a legal practitioner. The Board may hear any person it necessary. If the detenu desires to be PG NO 620 PG NO 621 heard, the Board may hear him also. But no person has a right to be represented by a lawyer, much less the detenu. This provision is in conformity with article 22(3)(b) of the Constitution. [626B C] (2) The power to detain a person without trial is a serious In road into the liberty of individuals. It is a drastic power capable of being misused or arbitrarily exercised. The framers of our Constitution were not unaware of it. They had, therefore, specially incorporated in the Constitution enough safeguards against the abuse of such power. [630G H] (3) The Advisory Board is a constitutional imperative. It has an important function to perform. There is no particular procedure prescribed for the Advisory Board since there is no lis to be adjudicated. Section 11 of the Act provides only the broad guidelines for observance. The Advisory Board, however, may adopt any procedure depending upon varying circumstances. But any procedure that it adopts must satisfy the procedural fairness. [631F G] (4) It is important for laws and authorities not only to be just but also appear to be just. Therefore, the action that gives the appearance of unequal treatment or unreasonableness whether or not any substance in it should be avoided by the Advisory Board. It is the duty of the Advisory Board to see that the case of detenu is not adversely affected by the procedure it adopts. It must be ensured that the detenu is not handicapped by the unequal representation or refusal of access to a friend to represent his case [632B C] (5) In the instant case, since the Advisory Board has heard the high ranking officers of the Police Department and others on behalf of the Government and detaining authority it ought to have permitted the detenu to have the assistance of a friend who could have made an equally effective representation on his behalf. Since that has been denied to the detenu, the High Court was justified in quashing the detention order. 1632D E] A.K. Roy vs Union of India, ; ; Kavita w/o Sunder Shankardas Devidasani etc. vs State of Maharashtra; , ; Nand Lal vs State of Punjab, [1982] I SCR 718; Johney DaCouto vs State of Tamil Nadu, , referred to.

Civil Appeal No. 6346 of 1983. Appeal by Special leave from the Judgment and order dated the 18th January, 1980 of the Delhi High Court in L.P.A. No. 62 of 1973. D.N. Vohra, Anil Kumar Gupta and Miss Kailash Mehta for the Appellant. S.N. Bhandari and Arunesewar Gupta for the Respondent. The Order of the Court was delivered by CHINNAPPA REDDY, J. Special leave granted. Sadhu Ram was a probationer Bus Conductor whose services were terminated on 7th September, 1967 by the respondent, the Delhi Transport Corporation. On the failure of conciliation proceedings, the Conciliation Officer, Delhi submitted his report to the Delhi Administration under section 12 (5) of the Industrial Disputes Act, whereupon the Delhi Administration referred the following dispute to the Presiding Officer, Labour Court, Delhi for adjudication: "Whether the termination of service, of Shri Sadhu Ram, conductor is illegal and unjustified, and if so what directions are necessary in this respect". The Union on behalf of the workman and the management appeared before the Presiding Officer, Labour Court. On behalf of the management, a contention was raised that the workman had not raised any demand with the management and that there was therefore, no industrial dispute. The reference was accordingly claimed to be incompetent. The Labour Court overruled the contention, holding as a fact that the Union had raised a valid demand with the management. On merits, the Labour Court gave the following finding: "I, therefore, hold that the termination order in respect of this workman is illegal and mala fide and that amounts to colourable exercise of power." Consequently, the management was directed to reinstate the workman with effect from 8th September, 1967 with the full back wages and benefits. The management invoked the jurisdiction of the High Court of Delhi under article 226 of the Constitution questioning the award of the Labour Court. The High Court went into a learned discussion on what was an Industrial Dispute and what was a jurisdictional fact, a discussion 727 which in our opinion was an entirely unnecessary exercise. In launching into a discussion on these questions needlessly, the High Court appeared to forget the basic fact that the Labour Court had given two categoric findings: (i) that the Union had raised a demand with the management and (ii) that the termination of the services of the workman was a mala fide and colourable exercise of power. Delving into the evidence as if it was an appellate Court, and reappreciating the evidence, the High Court thought that one of the documents upon which the Labour Court had relied was a suspicious document; and the High Court went on to find that no demand had been raised and there was no Industrial Dispute which could be properly referred by the Government for adjudication. On those findings a learned single judge of the High Court quashed the Award of the Presiding Officer of the Labour Court. The decision of the learned single judge was affirmed by a Division Bench. The workman has come before us under article 136 of the Constitution. We are afraid the High Court misdirected itself. The jurisdiction under article 226 of the Constitution is truly wide but for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management. There was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Government was justified in thinking that there was an industrial dispute and referring it to the Labour Court. The High Court appeared to think that the decision of this Court in the Sindhu Resettlement Corporation Ltd. vs The Industrial 728 Tribunal of Gujarat(1) justified its conclusion that the failure of the conciliation proceedings and the report of the Conciliation Officer to the Government were not sufficient to sustain a finding that there was an industrial dispute. This was also what was urged by the learned counsel for the respondents. The High Court was in error in so thinking. In Sindhu Resettlement Corporation Ltd. vs The Industrial Tribunal of Gujarat(1), the question really was about the precise scope of the reference made by the Government for adjudication. Throughout it appeared that the only reference that the Government could have made related to the payment of retrenchment compensation which alone was the subject matter of dispute between the parties. The conciliation which failed had also concerned itself with the question of payment of retrenchment compensation and in their claims before the management, the workmen had requested for payment of retrenchment compensation and raised no dispute regarding reinstatement. It was in those circumstances that the court held that there was no industrial dispute regarding reinstatement. We do not see how Sindhu Resettlement Corporation Ltd. vs The Industrial Tribunal of Gujarat can be of any assistance to the respondents. Nor do we think that it was right for the High Court to interfere with the award of a Labour Court under article 226 on a mere technicality. Article 226 is a device to secure and advance justice and not otherwise. In the result, we allow the appeal, set aside the judgment of the High Court and restore the award of the Presiding Officer, Labour Court. H.S.K. Appeal allowed.

The services of the appellant workman were terminated by the Management of the respondent. On a report from the Conciliation Officer the Government referred the dispute to the Labour Court. The Management contended that the workman had not raised any demand with the Management and that there was, therefore, no industrial dispute. The Labour Court found as a fact that the Union had raised a valid demand with the Management and that the termination of services of the workman was illegal and mala fide. The Management invoked the jurisdiction of the High Court under article 226. A Single Judge of the High Court quashed the Award of the Labour Court on the finding that no demand had been raised and there was no industrial dispute which could be properly referred by the Government for adjudication. The judgment of the Single Judge was affirmed by the Division Bench. Allowing the appeal, ^ HELD: The High Court was not right in interfering with the Award of the Labour Court under article 226 on a mere technicality, [728 E] The jurisdiction under article 226 of the Constitution is truly wide but, for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. [727 D F] In the instant case there was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Government was justified in thinking that there was an industrial dispute and referring it to the Labour Court. The High Court 's discussion on what was an industrial dispute and what was a jurisdictional fact was an entirely unnecessary exercise. [727 G F; 728 A B] Sindhu Resettlement Corporation Ltd. vs The Industrial Tribunal of Gujarat, [1968]1 S.C.R. 515, explained and distinguished.

Civil Appeal Nos.4255 57 of 1992. From the Judgment and order dated 15.10.1991,28.11.1991 and 17.12.1991 of Madhya Pradesh Administrative Tribunal, Jabalpur in O.A.Nos. 140 of 1990 and 3024 of 1991 and T.A. No.35 of 1988. U.N. Bachawat, B.S. Banthia, G. Prakash, L.C. Agrawala, K.K. Chagotra and Indra Makwana for the Appellants. S.S. Ray, A. Raghuvir, A.K. Sen. Dr. N.M. Ghatate, S.K. Gambhir, Vivek Gambhir, S.K. Jain, A.P. Dhamija, R.B. Misra, N.D.B. Raju, Anand Prasad, S.V. Deshpande and S.K. Agnihotri for the Respondents. The Judgments of the Court was delivered by KASLIWAL, J. Special leave granted in all the above cases. All the above appeals are disposed of by a common order, as identical questions of law are involved in these cases. For the purpose of understanding the controversy raised in all these cases, we are stating the facts of appeal arising out of special leave petition No. 2507 of 1992. The appellants and the private respondents were Sub Engineers in Public Health Engineering Department of Government of Madhya Pradesh. They are governed by Madhya Pradesh Public Health Engineering (Gazetted) Service Rules 1980 (hereinafter referred to as `the Rules '). Under Schedule IV of the Rules, the next higher post for promotion from the post of Sub Engineers in Civil or Mechanical is the post of Assistant Engineers. The minimum period for Sub Engineer to qualify for promotion to the post of Assistant Engineer is 12 years for diploma holders and 8 years for such Sub Engineers who obtain degree of graduation in the course of service. Earlier 60 per cent quota for the posts of Assistant Engineers was fixed by direct recruitment and 40 percent by promotion from the Sub Engineers, Draftsman and Head Draftsman. By and executive order dated 7.2.1989, quota of direct recruitment was reduced to 50 percent and the quota by promotion increased to 50 per cent. This 50 per cent quota by promotion with which we are concerned in the above cases has been sub divided in the following manner: (i) Diploma holder Sub Engineers completing 12 years of service 35% (ii) Draftsman & Head Draftsman completing 12 years of service 5% (iii) Graduate Sub Engineers completing 8 years of service 10% In the above cases we are now concerned with the third category of cases which deal with the promotion of Graduate Sub Engineers Completing 8 years of service. The State Government had been applying the principle of counting the seniority of Graduate Sub Engineers from the date of their continuous officiation irrespective of the date on which such diploma holder Sub Engineer acquired degree of graduation in engineering. On this basis, the Departmental promotion Committee took into consideration 30 Graduate Sub Engineers for promotion to the post of Assistant Engineers. The D.P.C. by order dated 4.12.1989 prepared a panel of 18 Graduate Sub Engineers found suitable for promotion to the post of Assistant Engineer. The Government by order dated 6.12.1989 promoted M.B. Joshi and six others as Assistant Engineer who are appellants in appeal arising out of special leave petition No. 2507 of 1992. The private respondents in this appeal filed application No. 140/90 in Madhya Pradesh Administrative Tribunal, Jabalpur challenging the aforesaid orders dated 4.12.1989 and 6.12.1989. The contention of these persons before the Tribunal was that the seniority for the purpose of promotion to the post of Assistant Engineers in 10 per cent quota of Graduate Sub Engineers completing 8 years of service ought to have been considered from the date of attaining the Graduate degree of engineering and not from the date of appointment as sub Engineer. The Tribunal placing reliance on its earlier decision in T.A. No. 771/88 Sanaulla Sunzani vs State of M.P. & 5 others, held that the seniority of diploma holder Sub Engineers acquiring the degrees of graduation in engineering for inclusion in the gradation list of Sub Engineers should be counted from the dates of acquisition of graduation in engineering or of any other equivalent degree and not from the dates of their initial entries as Sub Engineers. Applying to aforesaid principle laid down in Sanaulla 's case, the Tribunal held that the applicants (private respondents in the appeal) having secured the degrees in engineering prior to respondents 3 to 9 (the appellants in the appeal) will rank higher in the gradation list of Graduate Sub Engineers. The Tribunal as such allowed the petition filed before them and directed the State Government and Engineer in Chief, Public Health Engineering Department to convene a special D.P.C. to consider applicants for promotion to the post of Assistant Engineers as on 4.12.1989 and if found suitable for promotion, promote them and give them seniority over respondents 3 to 9 within 4 months of the date of receipt of the order. The short controversy arising in these cases relates to the determination of seniority amongst the diploma holder Sub Engineers who acquired the degree of graduation in engineering during the period service qualifying them for promotion in 8 years to the post of Assistant Engineer. It is an admitted position that there is no specific rule governing such situation. Relevant extracts of Schedule IV of the Rules as published in the Madhya Pradesh Gazette dated 27.2.1981 issued in Hindi read as under: Mr. S.S. Ray, learned senior counsel appearing on behalf of the appellants contended that so far as the post of Sub Engineers is concerned, the minimum qualification prescribed is diploma holder. Initially, in the Public Health Engineering Department till 1980, fresh degree holders used to get job directly as Assistant Engineers and the diploma holders used to be appointed as Sub Engineers. Thereafter on account of unemployment, the degree holders also started seeking appointments as Sub Engineers. However, so far as the post of sub Engineer was concerned, the seniority was determined on the basis of the date of appointment on the post of Sub Engineer irrespective of the fact that the person joining such post was a degree holder or a diploma holder. The scale of pay was similar and the diploma holder and degree holder Sub Engineers stood on the same footing and their gradation list was prepared on the basis of length of service in the cadre of Sub Engineers. The next higher post for promotion from the post of Sub Engineer is the post of Assistant Engineer. Every diploma holder sub Engineer became eligible for promotion to the post of Assistant Engineer after having completed 12 years of service. The Government however, considered it proper to reduce this period of 12 years to 8 years in case of such diploma holder Sub Engineers who obtained a degree of engineering during the continuance of their service as Sub Engineer as a sort of incentive to improve the qualification while continuing in service. It was thus, submitted by Mr. Ray that it is a well settled principle of service jurisprudence that where the rules are silent, the seniority is always determined on the basis of length of service amongst the employees appointed on a similar post in the same cadre. It was thus, submitted that obtaining a degree during the continuation of service as Sub Engineer simply accelerated the entitlement to promotion for the post of Assistant Engineer from 12 years to 8 years but it did not in any manner disturb the seniority which was already settled on the basis of length of service on the post of Sub Engineer. It was submitted that the D.P.C. rightly prepared the panel of selection and the Government took a correct decision in issuing the order dated 6.12.1989. Mr. Ashok Sen, learned senior counsel appearing on behalf of the respondents contended that it was necessary to obtain the degree of engineering for being qualified for promotion to the post of Assistant Engineer within a period of 8 years instead of 12 years. It was further argued that the period of 8 years can only be counted from the date when the diploma holder Sub Engineer acquired the degree of engineering and not prior to said date. Mr. Sen further placed reliance on N. Suresh Nathan & Another vs Union of India & Others, [1992] Supp.1 SCC 584, and submitted that this case clinches the issue raised in these cases and is no longer open for consideration. We have given our careful consideration to the arguments advanced on behalf of learned counsel for the parties. We may first deal with N. Suresh Nathan 's case (supra) on which strong reliance is placed by Mr. Ashok Sen. In this case, the Recruitment Rules for the post of Assistant Engineer in the Public Works Department, Pondicherry, prescribing the educational and other qualifications for appointment by direct recruitment and promotion came for consideration. For direct recuits, the qualification prescribed was a Degree in Civil Engineering of a recognised University or Diploma in Civil Engineering from a recognised institution with three years, professional experience. For appointment by promotion of Section Officers now called junior Engineers, the qualification prescribed was as under: "1. Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years ' service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years ' service in the grade 50 percent. Section Officers possessing a recognised Diploma in Civil Engineering with six years ' service in the grade 50 per cent. " The dispute in the above case was whether a diploma holder Junior Engineer who obtains a degree while in service becomes eligible for appointment as Assistant Engineer by promotion on completion of three Years ' service including therein the period of service prior to obtaining the degree or the three years ' service including therein the period of service prior to obtaining the degree or the three years ' service as a degree holder for this purpose is to be reckoned from the date he obtains the degree. The Central Administrative Tribunal held that the applicants diploma holders were entitled to be considered for promotion to the post of Assistant Engineer on par with the other degree holder Junior Engineers taking due note of their total length other degree holder junior Engineers taking due note of their total length of service rendered in the grade of Junior Engineers taking due note of their total length of service rendered in the grade of grade of junior of Junior Engineer. Such a consideration should be alongside other Junior Engineers who might have acquired the necessary degree qualification earlier than the applicants, while holding the post of Junior Engineer. This Court allowed the appeal and set aside the above order of the Tribunal. While allowing the appeal, this Court held as under: "In our opinion, this appeal has to be allowed. There is sufficient material including the admission of respondents diploma holders that the practice followed in the department for a long time was that in the case of diploma holder Junior Engineers who obtained the degree during service, the period of three years ' service in the grade for eligibility for promotion as degree holders commenced from the date of obtaining the degree and the earlier period of service as diploma holders was not counted for this purpose. This earlier practice was clearly admitted by the respondents diploma holders in para 5 of their application made to the Tribunal at page 115 of the paper book. This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6, 1968 extracted at pages 99 100 of the paper book in the counter affidavit of respondents 1 to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined." This Court then considered the Recruitment Rules applicable in the said case and then held that the entire scheme did indicate that the period of three years ' service in the grade required for degree holders according to Rule 11 as the qualification for promotion in that category must mean three years ' service in the grade as a degree holder, and therefore, that period of three years can commence only from the date of obtaining the degree and not earlier. It was further held that the service in the grade as a diploma holder prior to obtaining the degree cannot be counted as service in the grade with a degree for the purpose of three years ' service as a degree holder. This Court then observed: "In our opinion, the contention of the appellants degree holders that the rules must be construed to mean that the three years ' service in the grade of a degree holder for the purpose of Rule 11 is three years from the date of obtaining the degree is quite tenable and commends to us being in conformity with the past practice followed consistently. It has also been so understood by all concerned till the raising of the present controversy recently by the respondents. The Tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the department." A perusal of the above observations made by this Court clearly show that the respondents diploma holders in that case had admitted the practice followed in that department for a long time. It was clearly laid down in the above case that if the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It was clearly said "it is in this perspective that the question raised has to be determined. " It was also observed as already quoted above that the Tribunal was not justified in taking the contrary view and unsettling the settled practice in the department. That apart the scheme of the rules in N. Suresh Nathan 's case was entirely different from the scheme of the Rules before us. The rule in that case prescribed for appointment by promotion of Section Officers/Junior Engineers provided that 50 per cent quota shall be from Section Officers possessing a recognised degree in Civil Engineering or equivalent with three years ' service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years ' service in the grade. The aforesaid rule itself provided in explicit terms that Section Officers possessing a recognised Degree in Civil Engineering was made equivalent with three years ' service in the grade. Thus, in the scheme of such rules the period of three years ' service was rightly counted from the date of obtaining such degree. In the cases in hand before us, the scheme of the rules is entirely different. In the cases before us 50 per cent of the posts of Assistant Engineers has to be filed by direct recruitment of persons having degree of graduation in engineering. The remaining 50 per cent of the vacant posts are to be filled by promotion from the lower cadre of sub Engineer and Draftsman. Out of this 50 per cent, 35 per cent quota is fixed for diploma holders who have completed 12 years of service on the post of sub Engineer, 5 percent quota for Draftsman who have completed 12 years of service and the remaining 10 per cent with which we are concerned has been kept for such Sub Engineers who during the continuation of their service obtained a degree of graduation or equivalent in engineering and in that case the period of service is reduced from 12 from 8 years. The Rules in our case do not contemplate any equivalence of any period of service with the qualification of acquiring degree of graduation in engineering as was provided in express terms in N. Suresh Nathan 's case making three years service in the grade equivalent to degree in engineering. In our opinion, in the rules applicable in the cases before us clearly provide that the diploma holders having obtained a degree of engineering while continuing in service as sub Engineers shall be eligible for promotion to the post of Assistant Engineer in 8 years of service and quota of 10 per cent posts has been earmarked for such category. If we accept the contention of Mr. Ashok sen, it would defeat the very scheme and the purpose of giving incentive of adding educational qualification by diploma holders while continuing in service in case the period of 8 years ' is counted from the date of obtaining graduate degree in engineering. It may be noted that no such argument was raised even from the side of the respondents before the Tribunal. If such interpretation as now sought to be advanced by Mr. Ashok Sen, learned senior counsel is accepted, no relief could have been granted to the respondent Satish Kumar Pandey. We would illustrate the above position on admitted facts that Shri Satish Kumar Pandey had joined as Sub Engineer on 23.8.1980, but had acquired the degree of engineering in May, 1987. In that situation, Mr. Satish Kumar becomes eligible only in May 1995 and he could not be considered as eligible in December 1989 when these Sub Engineers were considered for promotion as Assistant Engineers. Even othrwise, if this period of 8 years is counted from the date of acquiring degree then this incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in 8 years would for all practical purposes become nugatory and of no benefit. It is further important to note that in the cases before us, the Government itself has been adopting the practice and making promotion as contended by the appellants and we are upholding such practice. In N. Suresh Nathan 's case also this Court had upheld the practice followed by the Government. It is also well settled principle of service jurisprudence that in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstance. Though, in the cases of special leave petitions filed by Shri Ram Sharan Gupta & Others vs The State of M.P. & Others and Shri N.N. Asthana & Another vs Shri Harish Kumar Ahuja & Others, the parties belonged to the Irrigation Department of the State of Madhya Pradesh and were governed with different set of rules, but the controversy arising in these cases is amply covered with the view taken by us and determined in the manner indicated above. In these circumstances mentioned above, we are clearly of the view. that the Tribunal was wrong in determining the seniority from the date of acquiring degree of engineering and it ought to have been determined on the basis of length of service on the post of Sub Engineer and the State the basis of length of service on the post of Sub Engineer and the State Government was right in doing so and there was no infirmity in the orders passed by the Government. In the result, we allow these appeals, set aside the orders of the Tribunal dated 15.10.1991, 28.11.1991 and 17.9.1991 and 8upheld the orders passed by the Government in all these cases. In the facts and circumstances of the case, no order as to costs. Appeals allowed.

The appellants and the private respondents were Sub Engineers in Public Health Engineering Department of the Government. The minimum period for Sub Engineer to qualify for promotion to the post of Assistant Engineer was 12 years for diploma holders and 8 years for such Sub Engineers who obtained the degree of graduation in the course of service. By an executive order dated 7.2.1989, quota of direct recruitment was reduced to 50 per cent and the quota by promotion from the Sub Engineers, Draftsman, increased to 50 per cent. The 50 per cent quota by promotion was sub divided. The promotion quota for category of the Graduate Sub Engineers completing 8 years of service was 10%. The principle of counting the seniority was from the date of their continuous officiation irrespective of the date on which such diploma holder Sub Engineer acquired degree of graduation in engineering. The Departmental Promotion Committee considered the cases of 30 Graduate Sub Engineers for promotion to the post of Assistant Engineers and by order dated 4.12.1989 it prepared a panel of 18 Graduate Sub Engineers found suitable for promotion to the post of Assistant Engineer. On 6.12.1989 the Government promoted one M.B.Joshi and six others as Assistant Engineer, who are appellants in appeal arising out of Special Leave Petition No.2507 of 1992. The Private respondents in the appeal, filed and application in the State Administrative Tribunal challenging the orders dated 4.12.1989 and 6.12.1989. They contended that the seniority for the purpose of promotion to the post of Assistant Engineers in 10 per cent quota of Graduate Sub Engineers completing 8 years of service ought to have been considered from the date of attaining the graduate degree of engineering and not from the date of attaining the graduate degree of engineering and not from the date of appointment as Sub Engineer. The Tribunal allowed the petition placing reliance on its earlier decision in Sanaulla Sunzani V. State of M.P. & Ors., T.A. No. 771/88. The Tribunal held that the applicants (private respondents in the appeal) having secured the degrees in engineering prior to respondents 3 to 9 ( the appellants in the appeal) would rank higher in the graduation list of Graduate Sub Engineers. It directed the State Government and Engineer in Chief, Public Health Engineering Department to convene a special D.P.C. to consider the applicants for promotion to the post of Assistant Engineers as on 4.12.1989 and if found suitable for promotion, promote them and give them seniority over respondents 3 to 9. Identical questions of law were involved in all the appeals (C.A. Nos. 4255 57 of 1992), which were preferred against the judgments of the Tribunals. The appellants contended that so far as the post of Sub Engineers was concerned, the minimum qualification prescribed was diploma holder and the seniority was determined on the basis of the date of appointment on the post of Sub Engineer irrespective of the fact that the person joining such post was a degree holder or a diploma holder; that the scale of pay was similar and the diploma holder and degree holder Sub Engineers stood on the same footing and their gradation list was prepared on the basis of length of service in the cadre of Sub Engineers that in the service jurisprudence where the rules were silent, the seniority was always determined on the basis of length of service amongst the employees appointed on a similar post in the same cadre; that obtaining a degree during the continuation of service as Sub Engineer simply accelerated the entitlement to promotion for the post of Assistant Engineer from 12 years to 8 years but it did not in any manner disturb the seniority which was already settled on the basis of length of service on the post of Sub Engineer; and that the D.P.C. rightly prepared the panel of selection and the Government took a correct decision in issuing the order dated 6.12.1989. 2 The respondents contended that it was necessary to obtain the degree of engineering for being qualified for promotion to the post of Assistant Engineer within a period of 8 years instead of 12 years; that the period of 8 years to be counted from the date when the diploma holder Sub Engineer acquired the degree of engineering and not prior to said date. Allowing the appeals, this Court, HELD: 1.1. It is a well settle principle of service jurisprudence that in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstance.[12 B] 1.2. The Government itself has been adopting the practice and making promotion as contended by the appellants. Such practice is upheld by the Court. [12 A] 1.3. The Rules do not contemplate any equivalence of any period of service with the qualification of acquiring degree of graduation in engineering. The Rules clearly provide that the diploma holders having obtained a degree of engineering while continuing in service as Sub Engineer shall be eligible for promotion to the post of Assistant Engineer in 8 years of service and quota of 10 per cent posts has been earmarked for such category of persons. [11 C D] 1.4. If the period of 8 years is counted from the date of acquiring degree then this incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in 8 years would for all practical purposes become nugatory and of no benefit. [11 G H] 1.5. The Tribunal was wrong in determining the seniority from the date of acquiring degree of engineering and it ought to have been determined on the basis of length of service on the post of Sub Engineer and the State Government was right in doing so and there was no infirmity in the orders passed by the Government. [12 D E] N. Suresh Nathan & Anr. vs Union of India & Ors., [1992] Supp.1 SCC 584, explained.

Appeal No. 19 of 1964. Appeal by special leave from the judgment and order dated October 29, 1963, of the Madras High Court in Writ Appeal No. 214 of 1962. section Mohan Kumar amagalam, M. N. Rangachari, R. K. Garg, M. K. Ramamurthi, for the appellant. R. Ganapathy Iyer, for respondents Nos. 2 and 3. A. Ranganadham Chetty and A. V. Rangam, for respondent No. 4. M. C. Setalvad, N. C. Krishna Iyengar and 0. C. Mathur, for Intervener. March 5, 1964. The judgment of the Court was delivered by GAJENDRAGADKAR, C.J. The short but important point of law which has been raised for our decision in this appeal by special leave is whether G.O. No. 1298 issued by the Gov ernment of Madras on April 28, 1956 in exercise of its powers conferred by section 43A of the (Central Act IV of 1939) (hereinafter called the Act) inserted by the Madras Amending Act 20 of 1948, is valid. Mr. Mohan Kumaramangalam who appears for the appellant contends that the impugned Government order is invalid for the simple reason that it is outside the purview of section 43A. The impugned order was issued as early as 1956 and since then, its validity 3 has never been impeached in judicial proceedings. Litigation in regard to the grant of permits under the relevant provisions of the Act has figured prominently in the Madras High Court in the form of writ petitions invoking the said High Court 's jurisdiction under article 226 of the Constitution and several aspects of the impugned order have come to be examined. The echoes of such litigation have frequently been heard in this Court and this Court has had occasion to deal with the impugned order, its character, its scope and its effect , but on no occasion in the past, the validity of the order appears to have been questioned. The legislative and judicial background of the order and the course of judicial decisions in regards to the points raised in the enforcement of this order would prima facie and at the first blush suggest that the attack against the validity of the order may not be wellfounded and that would tend to make the initial judicial response to the said challenge more hesitant and reluctant. But Mr. Kumaramangalam contends that section 43A under which the order purports to have been passed would clearly show that the said order is outside the purview of the authority conferred on the State Government and is therefore invalid. It is obvious that if this contention is upheld, its impact on the administration of the system adopted in the State of Madras for granting permits under the Act would be very great and so though the question lies within a narrow compass, it needs to be very carefully examined. The facts which lead to the present appeal conform to the usual pattern of the permit litigation in which the grant or refusal to grant a permit is chal lenged under the writ jurisdiction of the High Court under article 226. The appellant B. Rajagopala Naidu is a bus operator in the State of Madras and he runs a number of buses on various routes. On June 26, 1956, the State Transport Authority by a notification invited applications for the grant of two stage carriage permits on the route Madras to Krishnagiri. The buses on this route were to be run as express service. The appellant and 117 bus operators including respondents 2 and 3 D. Rajabahar Mudaliar, proprietor of Sri Sambandamoorthy Bus Service and K. H. Hanumantha Rao, proprietor of Jeevajyoti Bus Service respectively, submitted applications for the two permits in question. The State Transport Authority considered the said applications on the merits. In doing so, it proceeded to award marks in accordance with the principles prescribed by the impugned order and came to the conclusion that the appellant satisfied the requirements enunciated by the State Transport Authority for running an efficient bus service on this long route, and so, it granted the two permits to the appellant on May 8, 1958. L/P(D)1SCI 1(a) 4 Against this decision, 18 appeals were preferred by the unsuccessful applicants including respondents 2 and 3. All these appeals were heard together by the State Transport Ap pellate Tribunal, Madras in June 1959. It appears that before the appeals were thus heard, the State Government had superseded the principles enunciated in the order in so far as they related to the grant of stage carriage permits and had issued another direction under section 43A known as G.O. 2265 on August 9, 1958. Incidentally, it may be added that by this order, different criteria had been prescribed for selection and a different marking system had been devised. The Appellate Tribunal considered the claims of the rival bus operators and allotted marks in accordance with the principles laid down by the earlier order. As a result, respondents 2 and 3 secured the highest marks and their appeals were allowed, the order under appeal was set aside and two permits were granted to them. This order was passed on July 4, 1959. The appellant then invoked the jurisdiction of the Madras High Court under article 226 of the Constitution by this writ petition No. 692 of 1959. In his writ petition the ap pellant challenged the validity of the order passed by the Appellate Tribunal on several grounds. One of them was that the impugned order on which the decision of the Appellate Tribunal was based, was invalid. This plea along with the other contentions raised by the appellant failed and the learned Single Judge who heard his writ petition dismissed the petition, on October 18, 1962. The appellant then challenged the correctness of this decision by a Letters Patent Appeal No. 214 of 1962 before a Division Bench of the said High Court. The Division Bench, however, agreed with the view taken by the Single Judge and dismissed the Letters Patent Appeal preferred by the appellant. The appellant then moved the said High Court for leave, but failed to secure it, and that brought him here with an application for special leave which was granted on November 14, 1963. It is with this special leave that the appellant has brought this appeal before us for final disposal. Before dealing with the points raised by the appellant, it is necessary to consider the background of the impugned order, and that takes us to the decision of the Madras High Court in Sri Rama Vilas Service Ltd. vs The Road Traffic Board, Madras, by its Secretary(1). In that case, the appellant had challenged the validity of a Government order No. 3898 which had been issued by the Madras Government on December 9, 1946. This order purported to direct the transport authorities to issue only temporary permits as the Government intended to nationalise motor transport. Accordingly, instruction No. 2 in the said order had provided that when (1) 5 applications were made for new routes or new timings in existing routes, then small units should be preferred to old ones. In accordance with this instruction, when the application for permit made by the appellant, Sri Rama Vilas Service was rejected, the order stated that it so rejected in the interests of the public generally under section 47(1)(a) of the Act. The appellant preferred , in ' appeal against the order to the Central Board namely the Provincial Transport Authority which had been constituted by the Government under section 44 of the Act. His appeal failed and so, he moved the Madras High Court under section 45 of the Specific Relief Act for an order directing the respondent the Road Traffic Board, Madras to consider the application of the appellant in accordance with the provisions of the Act and the rules made thereunder for renewal of the permit for plying buses. The High Court held that G. O. No. 3898 was in direct conflict with the proviso to section 58 sub section (2) of the Act, and so, was invalid. This decision showed that there was no authority or right in the State Government to issue instructions such as were contained in the said Government order. In reaching this decision, the High Court emphasised the fact that the Central Transport Board and the Regional Transport Board were completely independent of the Government except that they must observe the notifications made pursuant to section 43 of the Act. It was conceded that if and when the Government acted as an Appellate Tribunal, it had judicial functions to discharge. But these functions did not include the power to give orders to any Board which was seized of an application for renewal of permits. That is how it was established by this decision that as the Act stood, the State Government had no authority to issue directions as to how applications for permits or their renewal should be dealt with by the Tribunals constituted under the Act. This judgment was pronounced on November 19, 1947. As a result of this judgment, the Madras Legislature amended the Central Act by Act XX of 1948 which came into force on December 19, 1948. Amongst the amendments made by this Act was the insertion of section 43A with which we are concerned in the present appeal. This section clothed the State Government with powers to issue certain directions and orders. As we have already indicated, the point which we are, considering in the present appeal is whether the impugned order falls within the purview of the power and authority conferred on the State Government by this section. We will read this section later when we address ourselves to the question of its construction. The amendment of the Central Act led to the next round of controversy between the bus operators and the State Gov ernment and that resulted in the decision of the Madras High 6 Court in C.S.S. Motor Service Tenkasi vs The State of Madras and another(1). In that case, the validity of several provisions of the Act including the provisions introduced by the Madras Amendment Act were challenged. It will be recalled that at the time when this challenge was made, the Constitution had come into force and the appellant C.S.S. Motor Service urged before the High Court that under article 19(1)(g) it had a fundamental right to ply motor vehicles on the public pathways and the impugned provisions of the Act invaded its aforesaid fundamental right and were not justified by article 19(6). The High Court elaborately considered the first part of the contention and it took the view, and we think rightly, that a citizen has a fundamental right to ply motor vehicles on the public pathways for hire or otherwise and that if any statutory provision purports or has the effect of abridging such fundamental right, its validity would have to be judged under the relevant clause of article 19. Proceeding to deal with the dispute on this basis, the High Court examined the validity of the several impugned provisions of the Act. In regard to section 43A, the High Court came to the conclusion that the said section was valid though it took the precaution of adding that the orders passed thereunder might be open to challenge as unconstitutional. It is, however, necessary to emphasise that the main reason which weighed with the High Court in upholding the validity of this section was that the High Court was satisfied that the said section was "intended to clothe the Government with authority to issue directions of an administrative character." Thus, section 43A was held to be valid in this case and the correctness of this conclusion is not disputed before us. In other words, we are dealing with the appellant 's challenge against the validity of the impugned order on the basis that section 43A itself is valid. This judgment was pronounced on April 25, 1952. Some years after this judgment was pronounced, the impugned Government order was issued on April 28, 1956. This order purported to issue instructions or directions for the guidance of the Tribunals constituted under the Act. In fact, it refers to the judgment of the Madras High Court in the case of C.S.S. Motor Service. It would appear that the Madras Government wanted to give effect to the said decision by issuing appropriate directions under its authority derived from section 43A which was held to be valid. The impugned order deals with five topics. The first topic has relation to the instructions which had to be borne in mind whilst screening the applicants who ask for permits. This part of the order provides that the applicants may be screened and disqualified on one or more of the principles enunciated in cls.1 to 4 in that part. The second part deals with the system of assigning marks to (1) A.L.R. 7 the several claimants, under four columns. In laying down these principles, the impugned order intended to secure precision in the disposal of claims for permits and to enable quick consideration of the merits of such claimants. This part of the order, however, made it clear that in cases where the system of marking worked unfairly the Regional Transport Authority may ignore the marks obtained for reasons to be stated. It is this ' part of the order which has introduced the marking system which has been the special feature of adjudication of claims for permits in the State of Madras. These two parts are described as "A." in the Government order. Part 3 deals with the variation, or extension of routes granted under the permits. Part 4 deals with the revision of timings and Part 5 has reference to suspension or cancellation of permits. That in brief is the nature of the directions issued by the impugned order. After this order was issued and the Tribunals constituted under the Act began to deal with applications for permits in accordance with the principles prescribed by it, the decisions ,of the said Tribunals came to be frequently challenged before the Madras High Court and these disputes have, often been brought before this court as well. In these cases, the character of the order passed by the Tribunal was examined, the nature of the instructions issued by the impugned order was considered and the rights of the parties aggrieved by the quasi judicial decisions of the tribunals also fell for discussion and decision. A question which was often raised was whether it was open to a party aggrieved by the decision of the Tribunal to contend that the said decision was based either on a misconstruction of the impugned order or in contravention of it, and the consensus of judicial opinion on this part of the controversy appears to be that the proceedings before the Tribunals constituted under the Act are quasijudicial proceedings and as such liable to be corrected under article 226 of the Constitution. It also appears to be well estab lished that the impugned order is not a statutory rule and has therefore no force of law. It is an administrative or executive direction and it is binding on the tribunals; it does not, however, confer any right on the citizen and that means, that a citizen cannot be allowed to contend that a misconstruction of the order or its contravention by any decision of the Tribunal functioning under the Act should be corrected under Article 226. In M/s Raman and Raman Ltd. vs The State of Madras and others(1), this Court by a majority decision held that section 43A of the Act as amended by the Madras Amendment Act, 1948 must be given a restricted meaning and the jurisdiction it conferred on the State Government to issue orders and directions must be confined to administrative functions. An order or (1) 8 direction made thereunder by the State Government was con sequently denied the status of law regulating rights of parties. and was treated as partaking of the character of an administrative order. Similarly, in R. Abdulla Rowther vs The State Transport Appellete Tribunal, Madras and others(1) this Court held by a majority decision that the orders and directions issued under section 43A were merely executive or administrative in character and their breach, even if patent, would not justify the issue of a writ of certiorari. It was also observed that though the orders were executive and did not amount to statutory rules, they were rules binding on the transport authorities for whose guidance they have been issued, but that did not confer any right on the citizen and so a plea that a contravention of the orders should be corrected by the issue ,of an appropriate writ was rejected. Such contravention, it was held, might expose the Tribunal to the risk of disciplinary or other appropriate action, but cannot entitle a citizen to make a complaint under article 226. It is necessary to emphasise that in both these cases no argument was urged that the impugned order was itself invalid and should have been ignored by the Tribunals exercising quasi judicial authority under the relevant provisions of the Act. The Court was no doubt called upon to consider the character of the impugned order and some of the reasons given in support of the conclusion that the impugned order is administrative or executive seem to suggest that the said order would, prima facie, be incon sistent with the provisions of section 43A which received a narrow and limited construction from the court. Nevertheless, since the point about the validity of the impugned order was not raised before the court, this aspect of the question was not examined and the discussion and decision proceeded on the basis that the impugned order was valid. Now that the question has been raised before us, it has become necessary to examine the validity of the impugned order. Before proceeding to examine the scope and effect of the provisions of section 43A, it is necessary to bear in mind two general considerations. The first broad consideration which is relevant has relation to the scheme of the Act in general and the scheme of Ch.IV in particular. The Act consists of 10 chapters and deals mainly with administrative problems in relation to motor vehicles. Chapter 11 deals with licensing of drivers of motor vehicles. Chapter IIA deals with licensing of conductors of State carriages and Chapter III with registration of motor vehicles. Chapter IV is concerned with the control of transport vehicles and in this chapter are included the relevant provisions for the applications for grant of permits, the consideration of those applications and other allied topics. Chapter IVA includes the provisions relating to (1) A.I.R. (1959) S.C. 896. 9 State Transport Undertakings. Chapter V addresses itself to the construction, equipment and maintenance of motor vehi cles, Chapter VI deals with the control of traffic, Chapter ' VII has reference to motor vehicles temporarily leaving or visiting India, Chapter VIII with the question of insurance of motor vehicles against third party risks, Chapter IX prescribes offences, penalties and procedures to try the offences and Chapter X contains miscellaneous provisions. This scheme shows that the hierarchy of transport autho rities contemplated by the relevant provisions of the Act is clothed both with administrative and quasi judicial functions and powers. It is well settled that sections 47, 48, 57, 60, 64 and 64A deal with quasi judicial powers and functions. In other words, when applications are made for permits under the relevant provisions of the Act and they are considered ,on the merits, particularly in the light of the evaluation of the claims of the respective parties, the transport authorities are exercising quasi judicial powers and are discharging quasijudicial functions, and so, orders passed by them in exercise of those powers and in discharging those functions are quasijudicial orders which are subject to the jurisdiction of the High Court under article 226, vide New Prakash Transport Co. Ltd. vs New Suwarna Transport Co. Ltd.(1) and M/s Raman and Raman Ltd. vs The State of Madras and others(3) and R. Abdulla Rowther vs The State Transport Appellate Tribunal Madras and others(3) so that when we examine the question about the validity of the impugned order, we cannot lose sight of the fact that the impugned order is concerned with matters which fall to be determined by the appropriate transport authorities in exercise of their quasi judicial powers and in discharge of their quasi judicial functions. The other broad consideration relevant in dealing with the present controversy is that there are three sets of provi sions under the Act which confer legislative, judicial and administrative powers respectively on the State Government. Section 67 which confers on the State Government power to make rules as to stage carriages and contract carriages and section 68 which confers power on the State Government to make rules for the purposes of Ch.IV are obviously legislative powers, and in exercise of these powers, when the rules are framed, they become statutory rules which have the force of law. Naturally, the exercise of these legislative powers is controlled by the safeguard provided by section 133 of the Act. This latter section requires that when power is exercised by the State Government to make rules, it is subject to the condition that the rules must be previously published before they are (1) p. 118.[1959] 2 S.C.R. p. 227.A.I.R. (1959) S.C. 896.10 made. That is the effect of section 133(i). Sub cl.(2) of section 133 provides that all rules made under this Act shall be published in the Official Gazette after they are made and shall, unless some later date, is appointed, come into force on the date of such publication. Clause 3 is important. It provides that all rules made under the Act shall be laid for not less than fourteen days before the appropriate Legislature as soon as possible after they are made, and shall be subject to such modifications as the appropriate Legislature may make during the session in which they are so laid. So that if statutory rules are made by the Government in exercise of legislative powers conferred on it by sections 67 and 68, they are subject to the control of the appropriate legislature which can make changes or modifications in the said rules if it is thought necessary or expedient to do so. Publication before the rules are made and publication after they are made also afford another statutory safeguard in that behalf. That is the nature of the legislative power conferred on the State Government. Section 64A confers judicial power on the State Transport Authority, because the said authority is given revisional jurisdiction to deal with orders therein specified, subject to the limitations and conditions prescribed by the two provisos to the said section. This is a clear provision conferring judicial power on the State Transport Authority. Along with the legislative and judicial powers which have thus been conferred, there is the administrative power con ferred on the State Government by section 43A. Section 43A reads thus: ,,The State Government may issue such orders and directions of a general character as it may consider necessary, in respect of any matter relating to road transport, to the State Transport Authority or a Regional Transport Authority; and such Transport Authority shall give effect to all such orders and directions". It is the construction of this section which is the basis of the challenge to, the validity of the impugned rules in the present appeal. It may be conceded that there are some words in the section which are against the construction for which Mr. Kumaramangalam contends. The words "in respect of any matter relating to road transport" are undoubtedly wide enough to take in not merely administrative matters but also matters which form the area of the exercise of quasi judicial authority by the Tribunals constituted under the Act. Prima facie, there are no words of limitation in this clause and it would, therefore, be possible to take the view that these are matters which are scrutinised by the appropriate authorities in exercising their quasi judicial jurisdiction. Similarly, the State Transport Authority and the Regional Transport 11 Authority to which reference is made in this section are clothed not only with administrative power but also with quasijudicial jurisdiction so that reference to the two authorities and reference to any matter relating to road transport would indicate that both administrative and quasi judicial matters come within the sweep of section 43A. But there are several other considerations which support Mr. Kumaramangalam 's construction. The first is the setting and the context of the section. As we have already seen, this section has been introduced by the Legislature in response to the decision of the Madras High Court in C.S.S. Motor Service case(1) and that would indicate that the Madras Legislature intended to confer on the State Government power to issue administrative orders or directions of a general character. Besides, the two preceding sections section 42 and section 43 and section 44 which follows support the argument that the field covered by section 43A like that covered by sections 42, 43 and 44 is administrative and does not include the area which is the subjectmatter of the exercise of quasi judicial authority by the relevant Tribunals. Then again, the use of the words 'orders and directions ' would not be appropriate in regard to matters which fall to be considered by authorities exercising quasi judicial powers. These words would be appropriate if they have reference to executive matters. And lastly, the provision that the relevant transport authority shall give effect to all orders and directions issued under section 43A would be clearly inappropriate if the instructions issued under the said section are meant for the guidance of quasi judicial bodies. If the direction is issued by the appropriate Government in exercise of its powers under section 43A and it is intended for the guidance of a tribunal discharging its quasi judicial functions, it is hardly necessary to say that the authority shall give effect to such directions. Section 43A being valid, if the orders and directions of a general character having the force of law can be issued within the scope of the said section, then such orders or directions would by themselves be binding on the transport authorities for whose guidance they are made; and it would be superfluous to make a specific provision that they are so binding. On the other hand, if the orders and directions are in the nature of administrative orders and directions, they do not have the force of statutory rules and cannot partake of the character of provisions of law, and so, it may not be inappropriate to that the said orders and directions shall be followed by the appropriate tribunals. Therefore, it seems to us that on a fair and Leasonable construction of section 43A, it ought to be held that the said section authorises the State Government .R. 12 to issue orders and directions of a general character only tin respect of administrative matters which fall to be, dealt with by the State Transport Authority or Regional Transport Authority under the relevant provisions of the Act in their administrative capacity. In reaching this conclusion, we have been influenced by certain other considerations which are both relevant and material. In interpreting section 43A, we think, it would be legitimate to assume that the legislature intended to respect the basic and elementary postulate of the rule of law, that in exercising their authority and in discharging their quasi judicial function, the tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. It is of the essence of fair and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. If the exercise of discretion conferred on a quasi judicial tribunal is con trolled by any such direction, that forges fetters on the exercise of quasi judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with the well accepted notion of judicial process. It is true that law can regulate the exercise of judicial powers. It may indicate by specific provisions on what matters the tribunals constituted by it should adjudicate. It may by specific provisions lay down the principles which have to be followed by the Tribunals in dealing with the said matters. The. scope of the jurisdiction of the Tribunals constituted by statute can well be regulated by the statute and principles for guidance of the said tribunals may also be prescribed subject of course to the inevitable requirement that these provisions do not contravene the fundamental rights guaranteed by the Constitution. But what law and the provisions of law may legitimately do cannot be permitted to be done by adminis trative or executive orders. This position is so well established that we are reluctant to hold that in enacting section 43A the Madras Legislature intended to confer power on the State Government to invade the domain of the exercise of judicial power. In fact, if such had been the intention of the Madras Legislature and had been the true effect of the provisions of section 43A, section 43A itself would amount to an unreasonable contravention of fundamental rights of citizens and may have to be struck down as unconstitutional. That is why the Madras High Court in dealing with the validity of section 43A had expressly observed that what section 43A purported to do was to clothe the Government with authority to issue directions of an administrative character and nothing more. It is somewhat unfortunate that though judicial decisions have always emphasised this aspect of the matter, occasion did not arise so long 13 to consider the validity of the Government order which on the construction suggested by the respondent would clearly invade the domain of quasi judicial administration. There is another consideration which is also important. If section 43A authorises the State Government to issue directions or orders in that wide sense, section 68 would become redundant and safeguards so elaborately provided by section 133 while the State Government purports to exercise its authority under section 68, would be meaningless. If orders and directions can be issued by the State Government which are not distinguishable from statutory rules, it is difficult to see why section 68 would have dealt with that topic separately and should have provided safeguards controlling the exercise of that power by section 133. It is likewise significant that the directions and orders issued under section 43A are not required to be published nor are they required to be communicated to the parties whose claims are affected by them. Proceedings before the Tribunals which deal with the applications for permits are in the nature of quasijudicial proceedings and it would, indeed, be very strange if the Tribunals are required to act upon executive orders or directions issued under section 43A without conferring on the citizens a right to know what those orders are and to see that they are properly enforced. The very fact that these orders and directions have been consistently considered by judicial decisions as administrative or executive orders which do not confer any right on the citizens emphatically brings out the true position that these orders and directions are not statutory rules and cannot therefore seek to fetter the exercise of quasi judi cial powers conferred on the Tribunals which deal with applications for permits and other cognate matters. It is, however, urged that the principles laid down in the impugned order are sound principles and no challenge can be made to the validity of the order when it is conceded that the order enunciates very healthy and sound principles. This order, it is argued, can be considered as expert opinion the assistance of which is afforded by the State Government to ,he Tribunals dealing with the question of granting permits. We are not impressed by this argument. It is not the function of the executive to assist quasi judicial Tribunals by issuing directions in the exercise of its powers conferred under section 43A. Besides, if section 43A is valid and an order which is issued under it does not fall outside its purview, it would be open to the State Government to issue a direction and require the Tribunal to follow that direction unquestionably, in every case. It is true that in regard to the marking system evolved by the im pugned rule, liberty is left to the Tribunal not to adopt that system for reasons to be recorded by it. This liberty in practice 14 may not mean much; but even theoretically, if the impugned order is valid, nothing can prevent the State Government from issuing another order requiring that the marking system prescribed by it shall always be followed. We have already seen that section 43A itself provides that effect shall be given to the orders issued under it, and so, if an order issued under section 43A itself were to prescribe that it shall be followed, it will have to be followed by the Tribunal and no exception can be made in that behalf. Therefore, we cannot accept the argument strongly pressed before us by Mr. Ganapathy Iyer on behalf of respondent No. 1 that the validity of the order cannot be challenged on the ground that the principles laid down by it are sound and healthy. We have, therefore, come to the conclusion that the impugned order is outside the purview of section 43A inasmuch as it purports to give directions in respect of matters which have been entrusted to the Tribunals constituted under the Act and which have to be dealt with by these Tribunals in a quasi judicial manner. We cannot overlook the fact that the validity of the Act particularly in reference to its provisions prescribing the grant and refusal of permits, has been sustained substantially because this important function has been left to the decision of the Tribunals constituted by the Act and these Tribunals are required to function fairly and objectively with a view to exercise their powers quasijudicially, and so, any attempt to trespass on the jurisdiction of these Tribunals must be held to be outside the purview of section 43A. We are conscious of the fact that the impugned order was issued after and presumably in response to the decision of Madras High Court in the case of C.S.S. Motor Service(1) though it Would appear that what the High Court had suggested was presumably the making of the rules under section 68 of the Act. It cannot also be disputed that the main object of the State Government in issuing this order was to avoid vagaries, and introduce an element of certainty and objec tivity, in the decision of rival claims made by applicants in respect of their applications for permits. It may have been thought by the State Government that if the Tribunals are allowed to exercise their discretion without any guidance, it may lead to inconsistent decisions in different areas and that may create dissatisfaction in the public mind. It does appear, however, that in some other States the problem of granting permits has been resolved without recourse to the marking 15 system. But apart from that, even if it is assumed that the, marking system, if properly applied, may make the decisions in regard to the grant of permits more objective, fair and consistent, we do not see how that consideration can assist the decision of the problem raised before us If the State Government thinks that the application of some kind of marking system is essential for a fair administration of the Act, it may adopt such course as may be permissible under the law. Section 47(1)(a) requires inter alia that the interests of the public generally have to be borne in mind by the Regional Transport Authority in considering applications for stage carriage permits. The said section refers to other matters which have, to be borne in mind. It is unnecessary to indicate them for our present purpose. The Legislature may amend section 47 by indicating additional considerations which the Transport Authority has to bear in mind; or the Legislature may amend section 47 by conferring on the State Government expressly and specifically a power to make rules in that behalf or the State Government may proceed to make rules under section 68 without amending section 47. These are all possible steps which may be taken if it is thought that some directions in the nature of the provisions made by the impugned order must be issued. That, however, is a matter with which we are not concerned and on which we wish to express no opinion. As this court has often emphasised, in constitutional matters it is of utmost importance that the court should not make any obiter observations on points, not directly raised before it for its decision. Therefore, in indicating the possible alternatives which may be adopted if the State Government thinks that the marking system helps the administration of the Act, we should not be taken to have expressed any opinion on the validity of any of the courses specified. That leaves only one point to be considered. Mr. Ganapathy Iyer urged that even though the impugned order may be valid, that is no reason why the order passed by the Appellate Tribunal which has been confirmed by the High Court in the present writ proceedings should be reversed. He argues that what the Appellate Tribunal has done, is to act upon the principles which are sound and the fact that these principles have been enunciated by an invalid order should not nullify the decision of the Appellate Tribunal itself. Thus presented, the argument is no doubt plausible; but a closer examination of the argument reveals the fallacy under lying it. If the Appellate Transport Authority had considered these, matters on its own without the compulsive force of the impugned order, it would have been another matter , but the order pronounced by the Appellate Authority clearly and unambiguously indicates that it held and in a sense rightly, that it was bound to follow the impugned order unless in the exercise of its option it decided to depart from it and was prepared to record its reasons for adopting that course. It would, We think, be idle to suggest that any Transport Authority functioning in the State would normally refuse to comply with the order issued by the State Government itself. Therefore, 16 we have no hesitation in holding that the decision of the Appellate Tribunal is based solely on the provisions of the impugned order and since the said order is invalid, the decision itself must be corrected by the issue of a writ of certiorari. In the result, we allow the appeal, set aside the order passed by the High Court in Writ Petition No. 692 of 1959 and direct that the said Writ Petition be allowed. There would be no order as to costs throughout. In accordance with this decision a writ of certiorari shall be issued setting aside the order passed by the Appellate Tribunal and remanding the matter to the Regional Transport Authority for disposal in accordance with law.

The appellant is a bus operator in the State of Madras. On an invitation for applications for the grant of two stage carriage permits he submitted his applications along with many others. The State Transport Authority considered the merits of the application awarding marks in accordance with the principles prescribed by Madras G.O. No. 1298, dated April 28, 1956 issued under section 43A of the inserted by the Madras Amending Act 20 of 1948. The Transport Authority on this basis granted the two permits to the appellant. Against this order a number of appeals were filed by some of the unsuccessful applicants including respondents Nos. 2 and 3 in the present appeal. The Appellate Tribunal re allotted marks in accordance with the above G.O. and respondents 2 and 3 having secured the maximum number of marks were granted the permits. On the rejection of a petition under article 226 of the Constitution and after appealing without success to a Division Bench the appellant applied for a certificate to appeal to this Court which rejected. The present appeal was filed on special leave granted by this Court. It was contended on behalf of the appellant before this Court that since Madras G.O. No. 1298, dated April 28, 1956, purports to issue direction to the Transport Authority in the discharge of its quasi judicial functions it is beyond the powers conferred by section 43A of the which authorises only the issue of directions to the said authority in the discharge of its administrative functions and therefore it is bad. Held, (i) Section 43A confers power on the State Government to issue orders and directions to the State Transport Authority only in relation to its administrative functions. M/s. Raman and Raman vs The State of Madras [1959] 2 S.C.R. 227, relied on. (ii)It is well settled that sections 47, 48, 57, 60, 64 and 64A deal with quasi judicial functions and when the transport authorities are dealing with applications for permits and evaluating the respective claims of the parties, the transport authorities are discharging quasi judicial functions and their orders are quasi judicial orders subject to the jurisdiction of the High Court under article 226. L/P(D)1SCI 1 2 New Prakash Transport Co. Ltd. vs Suwarna Transport Co. Ltd. M/s Raman and Raman Ltd. vs State of Madras, , B. Abdulla Rowther vs State Transport Appellate Tribunal, Madras, A.I.R. 1959, S.C. 896, relied on. (iii) In interpreting section 43A it is legitimate to assume that the legislature intended to respect the basic and elementary postulate of the, rule of law that in exercising their authority and discharging their quasi judicial functions, the tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgement. It is of the essence of fair and objective administration of law that the decision of judges or tribunals must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. (iv) The impugned order is outside the purview of section 43A inasmuch as it purports to give directions in respect of matters which have been entrusted to the tribunals constituted under the Act and which have to be dealt with by them in quasi judicial manner. (v) The decision of the appellate Tribunal is solely based on the provisions of the impugned order and since the said order is invalid, the decision is also bad.

ivil Appeal No. 3804 of 1989. From the Judgment and Order dated 26.5.89 of the Delhi High Court in SAO No. 84 of 1989. Dr. Y.S. Chitale, Mrs. and Mr. Rajan Karanjawala, Atul Chitale and H.S. Anand for the Appellant. K.K Jain, J.P. Gupta, Mrs. Darshan Gupta and P.D. Sharma for the Respondent. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. This appeal is against the order for reinduction of the tenant into the premises under section 19(2) of the Delhi Rent Control Act, 1958 ( 'The Act '). The facts are these: The appellant filed two eviction peti tions 317 against the respondents; one was under section 14(1)(e) on the ground of personal bona fide requirement for occupation and the other was under section 14(1)(e) for non payment of rent. The former suit was registered as Suit No. 288/77 and the later as Suit No. 330/77. On December 24, 1977 Suit No. 288/77 was decreed in favour of the appellant. The respond ent was granted six months time to evict the premises. In fact the landlord has no right to evict the tenant for six months when the eviction order is made on the ground speci fied under section 14(1)(e). Section 14(7) prohibits the landlord from obtaining possession of the premises before the expiration of a period of six months from the date of the eviction order. On April 17, 1978 the Suit No. 330/77 was compromised as between the parties. Under the compromise the appellant accepted Rs.6,000 as arrears of rent as against the claim of Rs. 29,000 in the suit. The respondent tenant in turn agreed to put the appellant in possession of the premises. Accord ingly, the tenant delivered the possession of the premises, a fact which is not in dispute. It may be significant to note that when the tenant delivered possession of the premises, six months period provided under section 14(7) did not expire for executing the eviction decree obtained in Suit No. 288/77. For some reason or the other the appellant could not continue in the premises. She has to let out the same to a third party. There then the tenant filed an application under sub section (2) of Section 19 claiming re entry into the premises. The Rent Controller rejected that application, but upon appeal the Rent Control Tribunal has given relief to the tenant directing the appellant to put back the tenant in possession of the premises. The High Court has dismissed the Revision Petition in limine. It will be convenient if at this stage, we read sub section (1) of Section 19 of the Act: "19(1) Recovery of possession for occupation and reentry Where a landlord recovers possession of any prem ises from the tenant in pursuance of an order made under clause (e) of the proviso to sub section (1) of Section 14 (or under Sections 14 A, 14 B, 14 C, 14 D and 21), the landlord shall not, except with the permission of the Con troller obtained in the prescribed manner, re let the whole or any 318 part of the premises within three years from the date of obtaining such possession, and in granting such permission, the Controller may direct the landlord to put such evicted tenant in possession of the premises. " Sub section (1) refers to recovery of possession of any premises from the tenant in pursuance of an order made under Section 14(1)(e) or under sub section 14 A, 14 B, 14 C, 14 D and 21. The landlord shall not re let such premises within three years from the date of obtaining possession from the tenant without the permission of the Controller. Sub section (2) of Section 19 is more important and must be set out in full: "19(2) Where a landlord recovers possession of any premises as aforesaid and the premises are not occupied by the land lord or by the person for whose benefit the premises are held, within two months of obtaining such possession or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re let to any person other than the evicted tenant without obtaining the permission of the Controller under subsection (1) or the possession of such premises is transferred to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made to him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit." This sub section again operates in favour of the tenant who has suffered an order of eviction under section 14(1)(e) or under Section 14 A to 14 D and 21. The landlord after recovering possession of the premises does not occupy the same or it is not occupied by the person for whose benefit the premises are held, within 2 months of obtaining such possession, the tenant may move the Controller for a direc tion against the landlord to put him in possession of the premises or to pay him such compensation as the Controller thinks fit. Not merely that, the tenant has a further right to move the Controller for such reliefs if the landlord has at any time within three years from the date of obtaining possession, re let the premises to third party without obtaining permission of the Controller under sub section (1) of section 19, or the 319 possession of such premises is transferred to another person not bona fide. This right of the tenant to re enter the premises is, however, restricted only in cases where the tenant is ordered to be evicted either under section 14(1)(e) or under sections 14 A to 14 D and 21. If the possession is recovered under any order other than those referred to in sub section (1) the tenant has no right to invoke the provisions of sub section (2) of section 19. With these requirements of the statute, it may now be examined whether the tenant has a right to seek re induction into the premises under sub section (2) of section 19. From the narration of facts it will be seen that the parties entered into a compromise in Suit No. 330/77 by which the tenant has willingly surrendered possession with payment of Rs.6,000 to the appellant as arrears of rent. On that day there was no execution of the decree for eviction obtained in Suit No. 288/77. It was, however, contended that the tenant willingly surrendered possession of the premises without waiting for the execution of the eviction decree in Suit No. 288/77 and there is no such bar for surrendering of possession under section 14(7) of the Act. We could have accepted this submission if there was only a decree for possession in Suit No. 228/77, but that is not so in the instant case. The possession was actually delivered to the appellant by the tenant as per the compromise recorded in the suit based on arrears of rent under section 14(1)(a) and delivery of such possession cannot therefore, be referable to the decree for eviction under section 14(1)(e). In fact, that decree for eviction in Suit No. 288/77 was not put into execution and it was perhaps found unnecessary to execute that decree since the tenant has surrendered possession of the premises as per the compromise in Suit No. 330/77 based on arrears of rent. The application filed by the tenant under sub section (2) of section 19 of the Act was, there fore, clearly not maintainable. In the result the appeal is allowed, and in reversal of the order of the Rent Control Tribunal as affirmed by the High Court, we restore the order of the Rent Controller. In the circumstances of the case, we make no order as to costs. G.N. Appeal allowed.

The appellant filed two eviction petitions against the respondent. The first of these was under section 14(1)(e) of the Delhi Rent Control Act, 1958, on the ground of personal bona fide requirement. The same was decreed in favour of the appellant, and the respondent was granted six months time to vacate the premises. This was in accordance with section 14(7) of the Act prohibiting the landlord from obtaining possession before the expiry of six months from the eviction order. The second eviction petition filed under Section 14(1)(a) of the Act for non payment of rent, was compromised between the parties, and the respondent agreed to put back the appellant in possession of the said premises. The tenant delivered possession of the premises. When the possession was delivered, six months period stipulated under Section 14(7) did not expire, for executing the eviction decree obtained in the first suit. Owing to some reasons, the appellant could not continue in the premises and wanted to let out the premises to a third party. At that point of time, the erstwhile tenant filed an application under Section 19(2) of the Act claiming re entry into the premises. The Rent Controller rejected the application. On appeal, the Rent Control Tribunal directed the appellant to put back the tenant in possession of the premises. A revision petition was filed by the appellant before the High Court. It was dismissed in limine. Appellant has preferred this appeal against the order of the High Court. Allowing the appeal, this Court, HELD: 1. Sub Section (2) of section 19 operates in favour of the tenant who has suffered an order of eviction under section 14(1)(e) or under Sections 14 A to 14 D and 21. The tenant may move the Rent Controller for a direction against the landlord to put him in possession of the 316 premises or to pay him such compensation as the Controller thinks fit, if the premises is not occupied by the landlord after recovering possession, or not occupied within two months by the person for whose benefit the premises are held. The tenant has a further right to move the Controller for such reliefs if the landlord has at any time within three years from the date of obtaining possession, re let the premises to third party without obtaining permission of the Controller under sub section (1) of Section 19, or the possession of such premises is transferred to another person not bona fide. If the possession is recovered under any order other than those referred to in sub section (1) the tenant has no right to invoke the provisions of sub section (2) of section 19. [318F H; 319A B] 2. In the instant case, the possession was actually delivered to the appellant by the tenant as per the compro mise recorded in the suit based on arrears of rent under section 14(1)(a) and delivery of such possession cannot therefore, be referable to the decree for eviction under section 14(1)(e). In fact, that decree for eviction in Suit No. 288/77 was not put into execution and it was perhaps found unnecessary to execute that decree since the tenant has surrendered possession of the premises as per the com promise in Suit No. 330/77 based on arrears of rent. The application filed by the tenant under sub section (2) of section 19 of the Act was, therefore, clearly not maintain able. [319E F]

Civil Appeal No. 1932 of 1970. Appeal by special leave from the judgment and decree dated the 31st December, 1969, of the Madras High Court in Second Appeal No. 348 of 1966, M. Natesan, Mrs. Janaki Ramachandran and K. Kumar for the Appellants. Vepa P. Sarathy, Gopal Subramanian and Mrs. section Gopalakrishnan, for the Respondents. The Judgment of the Court was delivered by BAHARUL ISLAM, J. This appeal by special leave is by the plaintiffs. The material facts of the case are that the suit land belonged to one Venkataramabhadra Naidu, a Zamindar (hereinafter 'Naidu '), who donated it to Bhoodan Yagna on August 18, 1953 by executing documents, Exs. B 1 and B 2, which were unregistered deeds. Later in 1958, in Madras Bhoodan Yagna Act, 1958 (hereinafter 'The Bhoodan Act ') came into force. The Madras Bhoodan Yagna Board constituted under section 3 of the Bhoodan Act and functioning under the Act allotted the suit land to the defendants who claimed to have been in possession of the land since before the donation. On August 3, 1960, Naidu sold the suit land to the plaintiff by a registered sale deed for a sum of Rs. 2000. The plaintiffs alleged that they were in possession of the suit land but as the defendants were interfering in their possession, they filed the suit for declaration of their title to, and possession of, the suit land. 176 The plaintiffs ' case was that as the donation of the land by Naidu was not by any registered deed, no title passed to the Bhoodan Board and subsequently to its allottees, namely, the defendants and that Naidu validly transferred title to them. The defendants ' case, inter alia, was that the land vested in the Bhoodan Board under the provisions of the Bhoodan Act, and Naidu had no saleable interest thereto which he could transfer to the plaintiffs by the sale deed. The Trial Court decreed the plaintiffs ' suit. The decree was upheld by the First Appellate Court on appeal by the defendants. Both the courts held that the donation of the suit and by Naidu was not in conformity with Section 17 of the Registration Act and Section 12 of the Transfer of Property Act and as such title to the suit land did not pass from Naidu to the Bhoodan Board. The defendants preferred a second appeal before the High Court. The High Court reversed the decree of the courts below and dismissed the plaintiffs ' suit. It has to be mentioned that the First Appellate Court passed its decree on October 1, 1962 while the High Court passed its impugned decree on 31st December, 1969; while in the meantime, in 1964, the Madras Bhoodan Yagna Act of 1958 was amended by the Madras Bhoodan Yagna (Amendment) Act, 1964 (hereinafter 'the Bhoodan (Amendment) Act '). Learned counsel for the appellants submits that the donation of the suit land by Naidu to the Bhoodan Board was before the passing of the Bhoodan Act of 1958 and the Bhoodan (Amendment) Act of 1964; as such the provisions of these two Acts could not save the donation of the suit land by Naidu to Bhoodan Board from the operation of the relevant provisions of the Transfer of Property Act and the Indian Registration Act. In other words, the submission is that the donation was invalid for want of a registered deed. It may be mentioned that counsel of the appellants has not challenged the validity or vires of the provisions of the Bhoodan Act or Bhoodan (Amendment) Act. His submission is that the above provisions do not have retrospective effect. The object of the Bhoodan Act is, as it appears from the preamble, "to facilitate the donation of lands for the Bhoodan Yagna 177 initiated by Shri Acharya Vinobha Bhave and the transfer and settlement of such lands for the benefit of landless poor persons or for community purposes and to provide in Gramdan Villages for the vesting of lands in, and the management of those lands by the Sarvodaya Panchayat in the State of Madras." 'Bhoodan Yagna ' has been defined under clause (a) of section 2 as meaning "the movement initiated by Shri Acharya Vinobha Bhave for the acquisition of lands through voluntary gifts for distribution to landless poor persons, cooperative societies or Sarvodaya Panchayats or for community purposes. " It is why, therefore; it appears, the donations of land to Bhoodan Yagna were exempted from the operation of the Indian Registration Act and the Transfer of Property Act, as it will, presently appear. I shall first refer to the relevant provisions of the original Bhoodan Act (of 1958) and examine the position of the law that was before the amendment of 1964. Section 3 of the Bhoodan Act provided for the establishment and incorporation of a Board to be called "The Madras State Bhoodan Yagna Board" (herein after the 'Bhoodan Board '). Section 11 of the Bhoodan Act provided, "All lands donated for the purposes of the Bhoodan Yagna whether before (emphasis added) or after the commencement of this Act shall, subject to the provisions of section 16, 17 and 20, vest in the State Board". Section 11 clearly shows that the intention of the Legislature was to bring in to the purview of the Bhoodan Act lands donated by any person before the commencement of the Bhoodan Act. Clause (a) of sub section (1) of Section 16 which is material is in the following terms: "16(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, (a) any owner may, by declaration made in the prescribed manner, donate his land for the Bhoodan Yagna. Provided that . . . . Provided further that . . Sub section (3) to Section 16 reads: 178 "Every declaration made under sub section (1) shall be filed with the Tahsildar or the Deputy Tahsildar in independent charge having jurisdiction in the taluk or sub taluk where the land is situate." Sub section (1) of Section 17 provided "Every declaration filed under sub section (3) of section 16 shall, as soon as may be, be published in the Fort St. George Gazette and in such other manner as may be prescribed." Any person whose interest were affected by the declaration of the donation might file objections before the Tahsildar or Deputy Tahsildar under sub section (2). Under sub section (3), the Tahsildar or the Deputy Tahsildar had to register every such objection, fix a date of hearing and give notice of the date of hearing to the donor, and the objector, the Bhoodan Board and the Local Committee concerned, and then under sub section (4), had to investigate and dispose of the objection, and by an order confirm the declaration or declare it null and void. Sub sections (5) and (6) which are important were in the following terms: "Sub section (5) If the Tahsildar or the Deputy Tahsildar confirms the declaration, then, notwithstanding anything contained in any other law for the time being in force, all the right, title and interest of the donor in such land shall stand transferred to and vest in the State Board for the purchases of the Bhoodan Yagna (emphasis added). Sub section (6) Every order under sub section (5) confirming a declaration shall be published in the Fort St. George Gazette and on such publication, the donation of land shall, subject to the provisions of section 23, be irrevocable. " Sub section (5) in clear terms lays down that on the confirmation of the declaration of the donation, notwithstanding the provisions of 'any other law ', (to wit the Transfer of Property Act and the Indian Registration Act in this case) right, title and interest in the land "shall stand transferred to and vest in" the Bhoodan Board. And after publication of the order of confirmation of the donation, it can be challenged only by a suit contemplated by Section 23. 179 Sub section (1) of section 20 provided that "The State Board shall prepare a list of all lands donated for purposes of Bhoodan Yagna prior to (emphasis added) the commencement of this Act" showing the area, description and other particulars of the land, the name and address of the donor and allied matters. Sub section (1) to section 20 also shows that the Bhoodan Act was intended to include the donations made prior to the commencement of this Act. Sub section (2) provides for publication of the list prepared under sub section (1) in the Fort St. George Gazette. The proviso added after sub section (3) of section 20, and sub section (4) of section 20 are important and need be extracted. They are as follows: "Sub section (3). . . Provided that where an order is made by the Inquiry Officer under sub section (4) of section 17 confirming the donation, such donation shall be deemed to have been accepted with effect from the date on which the donation was made and for this purpose, this Act shall be deemed to have been in force on such date. Sub section (4) Where such land has been granted to any person it shall, with effect from the date of grant, be deemed further to have been granted to the grantee under and in accordance with the provisions of Section 19." These two are deeming provisions and are a complete answer to the appellants ' contention. The meaning of the proviso is that although the Bhoodan Act was not in existence at the time a donation was made its acceptance by the Tahsildar or Deputy Tahsildar later on after the commencement of the Act, (as in the case in hand), by virtue of the deeming provision, the Act shall be deemed to be in existence on the date of the donation. Sub section (4) had made a similar deeming provision for the grant made in favour of a grantee before the coming into force of the Bhoodan Act. Section 24 reads: "Notwithstanding anything contained in any other law, every declaration and every grant of land made or deemed to have been made under this Act shall be and be deemed always to have been exempt from the payment of stamp duty and of encumbrance certificate fee, registration fee or of the fee payable for the attestation of a power of attorney under section 33, sub section 180 (2), of the Indian (Central Act XVI of 1908)." (emphasis added). The provision of this section also shows that donations and grants under the Bhoodan Act were exempted from the provisions of the Transfer of Property Act and the Indian with retrospective effect. The above considerations leave no doubt at all that the provisions of the Bhoodan Act had retrospective effect and intended to include donations of land by any person to the Bhoodan Yagna made before the commencement of the Bhoodan Act, and such donations were also exempted from the relevant provisions of the Transfer of Property Act and the Indian with retrospective effect. Section 23 made the order of Tahsildar or Deputy Tahsildar under sub section (4) of Section 17, final and not subject to appeal or revision. An aggrieved party however was not without remedy. Under the proviso of section 23, any person whose interest was affected as a result of the donation to the Bhoodan Yagna, whether before or after the commencement of the Act, might file a suit to set aside the order of the Tahsildar or the Deputy Tahsildar. The plaintiffs in the present suit (appellants before us) filed no such suit. Let us now turn to the relevant provisions of the Bhoodan (Amendment) Act of 1964. There was no material amendment to section 16 of the original Act. Only "The State Board" was substituted for "Tahsildar or Deputy Tahsildar". There was also no material amendment to Section 17. "Tahsildar or Deputy Tahsildar" was replaced by 'Inquiry Officer '. Only with the substitution of 'Inquiry Officer ' for 'Tahsildar or Deputy Tahsildar ', section 20 and section 23 have been retained. Section 24 as amended is as follows: "Notwithstanding anything contained in any other law, every declaration and every grant of land made or deemed to have been made under this Act shall be and be deemed always to have been exempt from registration and payment of stamp duty and of encumbrance certificate fee. " A comparison of the new section 24 with the old section 24 shows that there has been no change in the law so far as registration and stamp duty were concerned. 181 10. Section 11 of the Bhoodan (Amendment) Act of 1964 is new and very important. Clauses (b) and (c) which are material for our purpose need be extracted: "Section 11 Notwithstanding anything contained in any judgment, decree or order of any Court, no donation of any land for the Bhoodan Yagna or for Gramdan and no grant of any such land made or deemed to have been made under the principal Act as in force immediately before the commencement of this Act, shall be deemed to be invalid on the ground only that the donation or the grant of land as aforesaid was not made in accordance with any law relating to transfer of property or registration, and any such donation or grant of land shall, for all purposes, be deemed to be and to have always been validly made and accordingly (a) . . (b) no suit or other proceeding shall be maintained or continued in any Court for the declaration of title to, or the recovery of possession of, any land donated for the Bhoodan Yagna or for Gramdan on the ground that the donation was not made in accordance with the law relating to transfer of property or registration; (c) no Court shall enforce any decree or order declaring any donation of land for the Bhoodan Yagna or for Gramdan to be invalid or directing the recovery of possession of any such land by the person who donated it or any other person claiming under him, on ground referred to in clause (b): Provided that. . . Provided further that. . . Provided also that. . . . Explanation. . . . . " Clause (b) of section 11 of the Bhoodan (Amendment) Act puts a bar on the maintenance of a suit or other proceedings in any Court for the declaration of title to, or recovery of possession of, any land donated for the Bhoodan Yagna on the ground that the transfer (donation) was not in accordance with the provisions of the 182 Transfer of Property Act or Indian . Clause (c) to section 11 goes one step further and lays down that even if a decree has already been passed in such a suit, no court shall execute a decree in a suit referred to in clause (b). It is thus seen that the law both under the old and the new Acts so far as the operation of the provisions of the Transfer of Property Act and the is concerned, is the same. The law ingrained in section 11 is merely declaratory in express terms of the already existing law under the Bhoodan Act of 1958. The second appeal that was pending before the High Court fell within the mischief of clause (b) of section 11. Even if there had been no appeal by the defendants, the execution of the decree passed by the First Appellate Court could have been successfully objected to by the defendant or any other person as void on the ground that the suit itself was barred under section 23 of the old Act itself. This appeal has no merit and is dismissed with costs. N.K.A. Appeal dismissed.

The suit land belonged to one Naidu who donated it to Bhoodan Yagna in 1953 through unregistered deeds. Later the Madras Bhoodan Yagna Act 1958 came into force and this Act of 1958 was further amended by Bhoodan (Amendment) Act 1964. The said land was allotted to the respondents under the Act who claimed to have been in possession of the land since before the donation. Naidu sold the suit lands to the appellants by a registered sale deed. The appellants filed the suit for declaration of their title to, and possession of, the said land and pleaded that (i) as the donation of the land by Naidu was not by any registered deed, no title could be passed to the Bhoodan Board and subsequently to the respondents and (ii) Naidu validly transferred title of the lands to them. The respondents pleaded that (i) the land vested in the Bhoodan Board under the Bhoodan Act and (ii) Naidu had no saleable interest thereto which he could transfer to the appellants by the deed of sale. The trial court decreed the appellant 's suit which was upheld by the first appellate court. The respondents preferred second appeal before the High Court which reversed the decree of the courts below and dismissed the plaintiff 's suit. On appeal, it was argued by the appellants that the donation was invalid for want of registered deed and the provisions of the Bhoodan (Amendment) Act do not have retrospective effect. Dismissing the appeal, ^ HELD: 1. The object of the Bhoodan Yagna Act is "to facilitate the donation of lands for the Bhoodan Yagna initiated by Shri Acharya Vinoba Bhave and the transfer and settlement of such land for the benefit of poor landless persons or for community purposes and to provide in Gramdan villages for the vesting of lands in, and the management of those lands by the Sarvodaya Panchayat in the State of Madras." [176 H, 177 A B] 2. Section 11 clearly shows that intention of the Legislature was to bring in to the purview of the Bhoodan Act lands donated by any person before the commencement of the Bhoodan Act. The law ingrained in section 11 is merely declaratory in express terms of the already existing law under the Bhoodan Act of 1958. [177 E F, 182 B] 175 3. Clause (b) of section 11 of the Bhoodan (Amendment) Act puts a bar on the maintenance of a suit or other proceedings in any Court for the declaration of title to, or recovery of possession of, any land donated for the Bhoodan Yagna on the ground that the transfer (donation) was not in accordance with the provisions of the Transfer of Property Act or Indian Registration Act. Clause (c) to section 11 goes one step further and lays down that even if a decree has already been passed in such a suit, no court shall execute a decree in a suit referred to in clause (b). [181 G H, 182 A B] 4. Section 24 of the Act leaves no doubt that the provisions of the Bhoodan Act had retrospective effect and intended to include donations of land by any person to the Bhoodan Yagna made before the commencement of the Bhoodan Act, and such donations were also exempted from the relevant provisions of the Transfer of Property Act and the Indian Registration Act with retrospective effective. [180 B C]

Criminal Appeal No. 559 of 1983. From the Judgment and Order dated 7.1.1982 of the Punjab and Haryana High Court in Crl. Appeal No. 537 (SB) of 1980. Harbans Lal, I.S. Goel and K. Chaudhri for the Appellant. Govind Mukhoty (Amicus Curiae) for the Respondent. The Judgment of the Court was delivered by BALAKRISHNA ERADI, J. Uttam alias Cheaku, the respond ent herein along with three others was tried by the learned Additional Sessions Judge, Gurgaon for alleged commission of offences under Sections 395,397 and 4 12 of the Indian Penal Code. By judgment dated July 21. 1980, the learned Addition al Sessions Judge held that the charge against Uttam under Section 395 I.P.C. was proved beyond all reasonable doubt and he was accordingly convicted and sentenced to undergo rigorous imprisonment for four years. The other three ac cused were acquitted on the ground that their participation in the crime was not sufficiently proved and hence they were entitled to the benefit of doubt. The respondent carried the matter in appeal to the High Court of Punjab and Haryana. The High Court by its impugned judgment dated January 7, 1982 allowed the said appeal, extending the benefit of doubt to the respondent, and set aside his conviction and sen tence. The State of Haryana has come up to this Court with this appeal against the said order of acquittal after ob taining Special leave from this Court. Briefly stated, the prosecution case i.s that on October 24, 1978, Om Parkash (P.W. 5) accompanied by his wife Jai Rani (P.W. 6) and their daughter Neelam left Delhi in the early hours of the morning for Jaipur by car. Om Parkash and his wife Jai Rani were in the front seat of the vehicle while their daughter was occupying the rear seat. When their car had reached about 10 12 Kms. beyond Gurgaon on the Delhi Jaipur Road, another car bearing registration No. DEA 2914 came 1067 from behind and attempted to overtake their vehicle. Even though Om Parkash had made way for the other car to pass, that car deliberately swerved to the left side and struck against the front wheel of his car, whereupon Om Parkash stopped his car on the left side of the road in the kacha portion. In the meantime, the other car also stopped at a distance of about ten paces ahead and five persons came out of that vehicle. It is stated that two or three out of them were armed with revolvers and others with daggers. Om Par kash got out of the vehicle and asked the assailants as to why they had caused the accident. In the meantime, Jai Rani also came out of the car. One of the assailants then gave a couple of knife blows in the chest of Om Parkash, whereupon he tried to raise an alarm. Hearing the said cry ' for help, some trucks which were passing along that road tried to stop but one of the assailants who was armed with a pistol, fired shots in the air and scared away those truck drivers. There after one of the assailants removed the ear rings, necklace and wrist watch from the person of Jai Rani and in that process one of her ear lobes was cut as under. The wrist watch and purse of Om Parkash were also removed by one of the culprits. Apart from that, three attache cases which were on the luggage carrier of the car were also forcibly removed and taken away by the miscreants. Before the cul prits left the spot in their car with all the booty, a shot was fired by one of them which hit Om Parkash on his fore head. After inflicting the said injury, the miscreants made good their escape. Om Parkash somehow managed to drive back his car to Gurgaon and there he contacted his partner Joginder Singh (P.W. 7) to whom he narrated the whole incident. Om Parkash was immediately taken to Civil Hospital, Gurgaon where he was medically examined and various injuries were found on his person. Jai Rani also medically examined and the injury on her right ear lobe was declared to be grievous. The other injuries were found to be simple for which she was given first aid. The first information report was thereafter lodged with the police by Om Parkash and Sub Inspector Tilak Raj (P.W. 21) carried out the investigation. He recovered empty cartridge cases (Exhibits P. 15 and P. 16), one wad (Exhibit P. 17) and one Ball Point Pen (Exhibit P. 18) from the place of occurrence. During the investigation it was found that the car used by the culprits had been stolen on October 23, 1973 from the house of its owner, one S.K. Mahajan. Subsequently, on October 27, 1978, the car was found lying abandoned in the Ghaziabad factory area and it was taken into police custody. The accused were arrested after a fairly long delay since it so happened that subsequent to the occurrence in question the accused 1068 persons had been allegedly involved in the commission of other crimes in the State of Uttar Pradesh and they were lodged in the Meerut jail. After the accused were brought from Meerut, two test identification parades were held, one separately for Uttam at his request and the other for the remaining suspects. In the first parade, Uttam was correctly identified by both Om Parkash and Jai Rani. In the second identification parade, Om Parkash failed to identify any of the other accused whereas Jai Rani identified Trilok Singh, who was accused No. 2. On the basis of the information furnished by the accused the Investigating Officer and the police party led by him recovered some of the articles which formed the contents of the suit cases removed from the car of the victims. They consisted of new suit length cloths, sarees, trousers, blouses, petti coats etc. The Prosecution examined in all 22 witnesses in its endeavour to establish the guilt of the accused in relation to the the charges framed against them. The learned Addi tional Sessions Judge after an elaborate and analytical discussion of the whole evidence recorded the conclusion that the participation of the respondent Uttam in the com mission of the crime was established beyond all doubt inas much as he had been identified by both Om Parkash (P.W. 5) and Jai Rani (P.W. 6), and the testimony given by these two witnesses narrating the details of the incident of robbery and assault was not in any manner shaken in cross examina tion and deserved to be accepted as wholly truthful. The remaining three accused were given the benefit of doubt mainly on the ground that excepting the second accused who had been identified only by Jai Rani at the identification parade, the others were not identified either by Jai Rani or by Om Parkash and hence there was no satisfactory proof of their participation in the crime. In the light of the afore said conclusion reached by him, the learned Additional Sessions Judge convicted the respondent Uttam under Section 395 I.P.C. and sentenced him to undergo rigorous imprison ment of four years. The High Court by a judgment which we are constrained to characterise as most perfunctory has set aside the judgment of the learned Additional Sessions Judge in so far as he was convicted the respondent herein and acquitted him. We regret to have to remark that the High Court has dealt with the case in a very superficial and casual manner and has not even taken to,trouble to discuss the evidence adduced in the case before it proceeded to interfere with the well consid ered judgment of the trial court. Both Om Parkash (P.W. 5) and Jai Rani (P.W. 6) had clearly identified the respondent at the test identification parade as well as in the Court and they had 1069 clearly and unequivocally deposed that he was one of the assailants who took part in the robbery and assault. Their testimony has been discussed at length by the learned Addi tional Sessions Judge and he has given sound and convincing reasons for accepting and acting upon the same. The whole discussion of the case by the High Court is contained in one short paragraph of its judgment namely, paragraph 6. It is not disclosed anywhere therein as to why the High Court considered that the testimony of these two witnesses who were the victims of the crime could not be accepted and why it could not form the foundation for the conviction of the respondent. A case of highway robbery, such as this, should have been dealt with much more seriousness and care than has been bestowed on it by the High Court. The approach of the High Court to the case and the conclusion recorded by it cannot but be characterised as manifestly illegal and per verse. In the absence of any discussion of the evidence by the High Court, we have ourselves gone through the entire evi dence adduced in the case with the assistance of the Counsel appearing in both sides. We are in complete agreement with the conclusion recorded by the learned Additional Sessions Judge that from the evidence of Om Parkash (P.W. 5) and Jai Rani (P.W. 6), the participation of the accused in the commission of the offence has been proved beyond all reason able doubt. The respondent was, therefore, rightly convicted by the learned Additional Sessions Judge and the only mis take committed by the learned Additional Sessions Judge was in not in awarding a more severe sentence commensurate with the gravity of the offence. In the result, we allow the appeal, set aside the judg ment Of the High Court and restore that of the learned Additional Sessions Judge convicting the respondent under Section 395 I.P.C. and sentencing him to undergo rigorous imprisonment of four years. The Bail Bond of the respondent will stand cancelled. He shall be taken into custody forth with to serve out the remaining portion of the sentence. N.P.V. Appeal allowed.

The respondent. along with three others, was tried for offences under sections 395,397 and 412 of the Indian Penal Code. The prosecution alleged that the respondent had delib erately dashed his car against the car of P.W. 5 on the Delhi Jaipur Road, while the latter was traveling to Jaipur alongwith his wife, PW 6 and daughter. Five persons, two or three of them armed with revolvers and others with daggers came out of the respondent 's car. One of them gave a couple of knife blows in the chest of PW 5, and another. who was armed with a pistol, fired shots in the air and scared away drivers of some trucks who were passing along that road and tried to come to the aid,of PW 5 who was crying out for help. One of the assailants removed the ear rings, necklace and wrist watch from the person of PW 6. and in that proc ess, one of her ear lobes was cut as under. The wrist watch and purse of PW 5 and three attache cases on the luggage carrier of his car were also forcibly removed and taken away. Before the culprits left the spot in their car with all the booty. a shot was fired by one of them which hit PW 5 on the forehead. PW 5 somehow managed to drive back his car to Gurgaon and narrated the whole incident to his part ner and thereafter he and his wife were medically examined and treated at Gurgaon Civil Hospital, for the various injuries that were found on them. Thereafter an F.I.R. was lodged with the Gurgaon Police. The accused were arrested after a fairly long delay and two test identification pa rades were held. one separately for the respondent accused at his request and other for the remaining suspects. The respondent was identified by the victims. On the basis of the information furnished by the accused some of the arti cles of the victims were recovered. 1065 The trial court held that the charge against the re spondent under section 395 I.P.C. was proved beyond all reasonable doubt and convicted and sentenced him to undergo rigorous imprisonment for four years. The other three ac cused were acquitted on the ground that their participation in the crime was not sufficiently proved and hence they were entitled to the benefit of doubt. The High Court, however, allowed the appeal of the respondent by extending the benefit of doubt to him and set aside his conviction and sentence. Allowing the State 's appeal by Special leave. HELD: 1. A case of highway robbery, such as this, should have been dealt with much more seriousness and care than has been bestowed on it by the High Court. Its approach to the case and the conclusion recorded by it cannot but be cha racterised as manifestly illegal and perverse. The trial court has rightly concluded that from the evidence of the victims the participation of the respondent in the commis sion of the offence had been proved beyond all doubt. [1069B C] 2.1 The High Court, by a most perfunctory judgment, set aside the judgment of the trial court, insofar as the trial court had convicted the respondent herein, and acquitted him. It has dealt with the case in a very superficial and casual manner and has not even taken care to discuss the evidence adduced in the case, before it proceeded to inter fere with the well considered judgment of the trial court. [1068G H] 2.2. The trial court after an elaborate and analytical discussion of the whole evidence recorded the conclusion that the participation of the respondent in the commission of the crime was established beyond all doubt inasmuch as he had been identified by the both the victims, and their testimony narrating the details of the incident of robbery and assault was not shaken in cross examination and deserved to be accepted as wholly truthful, [1068D E] 2.3 Both the victims, PW 5 and 6, had clearly identified the respondent at the test identification parade as well as in the court and they had clearly and unequivocally disposed that he was one of the assailants who took part in the robbery and assault. The trial court has given sound and convincing reasons for accepting and acting upon their testimony. The High Court has, however. not discussed in its judgment as to why it considered that the testimony of the victims of the crime could not_be accepted and why it could not form the foundation for the conviction of the respond ent. [1068H; 1069A B] 1066 3. The judgment of the High Court is set aside and that of the trial court convicting the respondent under section 395 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment of four years is restored. Necessity for awarding severe punishment in such cases of proven highway robbery stressed. [1069F]

C.A No. 10 of 1961. Appeal from the judgment and decree dated March 5, 1956 of the Madras High Court in A.S. No. 256 of 1951, R. Ramamurthi Aiyar and R. Gopalakrishanan, for the appellants. R. Ganapathy Iyer and D. Gupta, for the Respondent. February 1. The Judgment of the Court was delivered by 957 SHAH, J. Messrs. Ramalingam & Co. hereinafter called the assessees are a firm doing business principally as exporters of vegetable fibres to foreign countries. They have their place of business at Tuticorin in the district of Tirunelveli in the State of Madras. The contracts of sale are made by correspondence on approval of samples sent by the assessees to the foreign buyers. The contracts are C.I.F. or C.F. and the price is payable by draft upon bank credit to be opened by the buyer. The course of dealing between the assessees and the foreign buyers was as follows: After the contract for a quantity of goods was finalised by correspondence and the price ascertained the foreign buyer opened with his own bankers an irrevokable Letter of Credit in favour of the assessees for 95% of the net invoice value. Intimation of the opening of the Letter of Credit was then given to the assessees through a bank operating in the Province of Madras. The assessees then shipped the goods, obtained Bills of Lading in their own names and lodged the shipping documents endorsed in blank with their own bankers together with the invoice and Bill of Exchange for 95% of the invoice value. The assessees then discounted the Bills through their own bankers. The shipping documents were forwarded to the foreign banker who on presentation paid 95% of the invoice amount. The Bill of Lading was then delivered by the foreign banker to the buyer and the goods were unloaded. For the year 1945 46 the Commercial Tax Officer, Tirunelveli determined for the purpose of computing tax liability under the Madras General Sales Tax Act, 1939, the turnover of the assessees at Rs. 15,61,200/ . The Commercial Tax Officer rejected the claim of the assessees that the amount of Rs. 15,22,000/ in respect of overseas transactions 958 was exempt from liability to tax. He held that the export transactions in respect of which the exemption was claimed were sales within the province of Madras and subject to sales tax under the Madras General Sales Tax Act, 1939. The order of the Sales tax Officer was confirmed by the Board of Revenue, Madras, except as to the amount of freight. The Board of Revenue held that the property in the goods passed to the buyers in a large majority of the export transactions when the goods were shipped. On remand, the commercial Tax Officer recomputed the turnover at Rs. 11,23,603/8/8 inclusive of the local sales of the value of Rs. 75,082/14/0. After paying the tax the assessees sued the Province of Madras in the Court of the Subordinate Judge, Tuticorin for a decree for Rs. 10,485/ being the amount of tax paid by them on export sales pursuant to the order of assessment and interest thereon at 6% until realisation. The assessees contended that the export sales were at the material time "totally outside the provisions of the Madras General Sales Tax Act, and the order of assessment was ultra vires and beyond the powers of the authorities". The Subordinate Judge decreed the claim for Rs. 10,323/ with interest at 6% till realization. In appeal, the High Court of Madras reversed the decree and dismissed the suit filed by the assessees. With certificate granted by the High Court this appeal is preferred by the assessees. It is common ground that in the year 1945 46, under the Madras General Sales Tax Act; 1939, the taxing authorities had no power to levy sales tax on sales which took place outside the Province. The decision of the appeal, therefore, depends upon the determination of the question whether the export sales took place within the Province. If they took place within the Province, the sales were properly taxed. We may observe that the plea that a suit for a decree for refund of tax paid in pursuance of 959 an order of assessment passed by the taxing authorities on the basis that the sales took place within the Province did not lie in the civil court, was not raised in the Court of First Instance, nor in the High Court. Counsel for the State of Madras has also stated before us that he does not desire to contend in this case that the suit was, in view of the adjudication by the taxing authorities, not maintainable. We therefore proceed to deal with the only question which was debated before us at the Bar: whether the export sales which are the subject matter of dispute in this appeal were completed within the Province of Madras. The dispute relates to turnover in respect of seventeen export transactions with merchants in different destinations overseas. As typical of the transactions the files relating to the shipments to Messrs Begbie Philips and Haylay, London and Messrs Hindley and Company, London were tendered in evidence and the case proceeded to trial on the footing that those transactions were typical of all other transactions. On April 16, 1945, the Mercantile Bank of India wrote a letter in connection with the shipment to Messrs Begbie Philips and Hayley, London about a contract of sale of five tons palmyra fibre. The letter is in the following terms: "Dear Sirs, Without any responsibility on the part of this bank we beg to advice receipt of a telegram from our London office reading: "We open irrevocable credit favour Ramalingam Company, Tuticorin, $400 (four hundred pounds) drafts on Mercantile Bank of India Limited, 60 d/st. invoices, full set shipped bills of lading order bank endorsed certificate of origin insurance covered in London about 5 tons palmyra fibre at $80 (eighty pounds) not per ton C and F. Shipment soonest India to 960 United Kingdom by approved ship. Part shipments allowed expiry 6th October, 1945 a/c Bagbie Phillips Hayley, Limited, licence No. 198281. " When submitting documents under this credit we would emphasise the fact that the goods must be described both in the bill of lading and invoice identically as advised above and the relative bill marked "Drawn under telegraphic credit No. 88 A/36 of 12th April 1945". We shall furnish you with further particulars on receipt of written confirmation. Owing to frequent mutiliations in coded telegrams the above message is subject to any necessary corrections on receipt of confirmation by mail. Kindly note that the negotiation of bills under this credit is entirely optional on our part and this advice does not release you from the liability attaching to the drawer of a Bill of Exchange. This letter must be produced with all bills drawn under this credit. Yours faithfully (signed). Manager". On May 28, 1945, the National Bank of India, Tuticorin wrote a letter to the assessees in regard to a sale of a quantity of fibre, which is as follows: "Dear Sirs, We beg to inform you that we are in receipt of advice by cable of 24th instant 961 from our London office that they have received from Messrs Hindley and Company, Limited, No. 35, Crutched Friars, London, E. C. 3 an undertaking to honour your bills on Messrs. Hindley and Company, Limited No. 35 Crutched Friars, London E. C. to the extent of $370 (three hundred and seventy pounds) sterling being 95 per cent of invoice value on the following conditions: Bill to be drawn payable 90 days after sight and to be accompanied by Invoices. Full sets of on board bills of lading made out to order and blank endorsed representing shipments of: Five tons Tuticorin medium cut and dyed bassine 7 inches and 7 1/2 inches equally at $78 per ton in 1 Cwt. (ballots) C and F United Kingdom post Shipment June/July from Cochin freight paid of deducted and credit reduced accordingly Freight basis 22nd May, 1945. Insurance including was risk with unlimited transshipment covered in London. Such shipping documents are to be delivered on payment of the bills which should bear the clause "Drawn under N.S.I. credit number 83 cabled 24th May 1945". Bills fulfilling the above mentioned conditions must be negotiated on or before Extended till 30th April 1946. Please note that the bank accepts no liability for the above undertaking and this advice does not release you from the liability attaching to the drawer of a Bill of Exchange. The above message is continued by us on behalf of the opening bank for your information but without any responsibility on our 962 part except for the correctness of this copy of the telegram as received by us. When negotiating bills please produce this letter to have the amounts recorded on the back hereof. I am, Dear Sirs, Yours faithfully (Signed). Manager. " On receipt of intimation the assessees shipped the goods and handed over the Bill of Lading and the invoice to their own bankers, accompanied by a Bill of exchange for the amount for which the Letter of Credit was opened by the foreign banker. The assessees then discounted the bills for the amount for which credit was opened. The taxing authorities taxed these transactions, because, in their view, the sales were effected in the Province of Madras and not outside. The assessees in the plaint in paragraph IV cl. (e) stated that one of the salient features of the business was that "The bills of lading are handed over to the Plaintiffs bankers with the clear and definite instructions to pass on the shipping documents to the buyers only on payment. They are what is styled in commercial parlance as D/P bills, i.e., documents to be handed over on payment". This averment in the plaint was not traversed in their written statement by the defendants. The only witness examined at the trial was A.V. Samuel, one of the partners of the assessees ' firm. He deposed to the practice which was followed by the assessees. He stated. "After shipment we obtain Bill of lading made out in our name as shipper. We draw a bill of Exchange and along with bill of lading and invoice. These documents are deposited with National Bank. We endorse in Bank on the Bill of Lading. It is only after payment of 963 the Bill of exchange by the foreign Bank on behalf of the purchaser, the Bill of Lading is handed over. Till the bill is paid for no title in the goods pass and the goods are at our disposal. If the bill is not honoured the Bank will ask us for directions as regards the disposal of goods. Under instruction from the buyers foreign banks give instruction to any local Bank to give credit up to a certain limit. Inspite of letter of credit as drawers we are responsible under the bill of exchange. We can discount in any bank and not merely in the credit opening bank. " In cross examination he stated that the "credit opening bank opens credit on behalf of the purchasers. Those banks are not known to us before. " It is clear from the terms of the two letters dated April 16, 1945, and May 28, 1945, that the foreign buyers had opened letters of credit for the benefit of the assessees, for the amounts set out therein. These, it appears, were general credits and intimation thereof was given by the local bankers in India who were agents of the foreign bankers. The local bankers, however, did not undertake any liability by intimating the opening of the letter of credit and the assessees were expressly informed that they (the assessees) would not be released from their liability under the Bills of Exchange drawn by them. The assessees negotiated the Bills through their bankers after receiving an intimation of the opening of credit. Counsel for the State of Madras submits that the property in the goods which were the subject matter of sale passed in Tuticorin when the assesees received an amount which represented the price the goods against delivery of the Bills of Lading endorsed in blank with authority to complete the endorsement. In substance, the plea is that the oreign bank opening the letter of credit is an agent 964 of the buyer, and that bank authorizes its own branch to pay the price to the shippers and by the arrangements made by opening the letter of credit, price is paid to the vendor in his own country against the bill of Lading endorsed in blank. It is necessary to appreciate the true nature of the commercial letter of credit extensively used in foreign trade. During the last few decades, expansion of international trade involving overseas transactions has raised problems of peculiar difficulty. The parties to a contract to supply goods are generally unknown to each other and the contract is the result of correspondence between the parties. Often neither the seller nor the buyer is prepared to trust the other. Again, between the delivery of the goods in such trade on board the ship and its ultimate delivery at the destination, the seller is reluctant to tie up his funds. The seller himself in generally a purchaser of goods from the local market and has invested funds in purchasing the goods. The buyer is also unwilling to make payment in advance. To tide over the problem created by this reluctance of the seller and the buyer, bankers of international repute and credit interpose. They for a small commission undertake by opinion letters of credit to honour the Bill of Exchange drawn by the seller accompanied by the insurance policy and the invoice relating to the goods forming the subject matter of the contract. At the instance of the buyer the banker issues a letter of credit which is addressed to the world at large or more frequently to specified person or persons: thereby the banker undertakes to honour the Bills of Exchange drawn on the faith of that letter. Invariably, the Bills are payable in future but the exporters as the beneficiaries under the contract, have the guarantee of the banker that payment will be forthcoming and are also entitled to discount the bills with any party cognisant of the undertaking of the original 965 banker. There are generally four parties to such a transaction the buyer, the seller, the banker who issues the letter of credit, called the issuing banker and the intermediary or the negotiating banker who allows credit to the seller on the bills lodged with him. Between the buyer and the issuing banker, the contract is that he will pay bills drawn by the seller of the goods against delivery of the Bill of Lading, insurance certificate and invoice. The buyer undertakes to put the banker in funds to enable him to make payment if the documents are presented. The relation between the buyer and the banker is not of pricipal and agent. The contract between the issuing banker and the negotiating banker may be of a dual character. Where the issuing banker 's instructions are merely to advise the credit, and the credit calls for bills to be drawn either on the issuing banker or on the buyer, the intermediary banker may negotiate the beneficiary 's bills. In such a case he stands qua the issuing banker as principal to principal, for either he succeeds to the rights of the beneficiary under the credit or, if he negotiates relying on the credit alone, as acceptor of the offer it contains. If the instructions call upon the intermediary banker to pay or to negotiate the beneficiary 's bills, the intermediary banker is the issuing banker 's agent. Under the terms of the contract between the assessees and the foreign buyer the price was to be paid "by draft after 90 days under bank credit to be opened by the buyer for 95% of the net invoice amount. " By the letter of credit the foreign banker guaranteed to pay the amount in London. The issuing bank intimated the opening of the letter of credit, but there is no evidence of any express directions to its agent in India to pay or negotiate the draft. The letter of credit was general; and it was open to any bank on the faith 966 thereof to negotiate the bill issued by the assessees. The payment made by the intermediary bank was not and could not therefore be on behalf of the issuing bank much less on behalf of the buyer. By negotiating the bill, the banker of the assessees became the acceptor of the offer contained in the letter of credit of the issuing bank, and as such acceptor obtained the Bill of Lading, the invoice and the Bill of Exchange and presented them for payment. This arrangement was not an arrangement for payment of price on behalf of the buyer. It appears clear from the two letters dated April 4, 1945, and May 28, 1945, that the banks accepted no liability by intimating the opening of the letter of credit and the liability attaching to the assessees by drawing Bills of Exchange was not discharged. If the liability of the assessees, as drawers of the Bills of Exchange continued, the arrangement made by the buyer could not be regarded as one to pay the price through his banker in India. As stated hereinbefore, the relation between the buyer and his issuing banker was not of principal and agent, nor was the relation between the issuing bankar and the intermediary banker that of principal and agent. The two bankers were interposed for the protection of the seller as well as the buyer. The issuing banker did not purport to act as agent of the buyer and the intermediary banker accepted the general offer of the issuing banker by negotiating the draft. By so accepting the offer and by taking over the Bill of Lading, the insurance certificate and the invoice which represented title to the goods the intermediary banker did not act as an agent of the seller. The price in respect of the goods was not received in the Province of Madras, and the property in the goods also did not pass to the buyer 967 within the Province. Tax in respect of the sale of fibre by the assessees under the disputed transactions was therefore not exigible under the Madras General Sales Tax Act. The appeal is therefore allowed: the decree of the High Court is set aside, and the decree of the trial Court is restored with costs in this Court and the High Court. Appeal allowed.

The assessees were doing business principally as exporters of vegetable fibres to foreign countries. The contracts of sale were C.I.F. or C.F. and were made by correspondence on approval of samples sent by the assessees to the foreign buyers. The price was payable by draft upon bank credit to be opened by the buyer; who opened with his own bankers 955 an irrevocable letter of credit in favour of the assessees for 95% of the net invoice value. Intimation of the opening of the letter of credit was then given to the assessees by the local bankers in India who were the agents of the foreign bankers. The local bankers, however, did not by intimating the opening of the letter of credit undertake any liability, and the assessees were expressly informed that they would not be released from their liability under the Bill of Exchange drawn by them. On receipt of the information about opening of the letter of credit the assessees shipped the goods, obtained bills of leading in their own names and lodged the shipping documents endorsed in blank with their own bankers together with the invoice and Bill of Exchange for 95% of the invoice value. Bills of lading were handed over to the assessees bankers with the definite instructions to pass on the shipping documents to the buyers only on payment. The assessees then discounted the Bills through their own bankers. The shipping documents were forwarded to the foreign bankers who on presentation paid 95% of the invoice amount. The Bill of lading was then delivered by the foreign banker to the buyer and goods were unloaded. For the year 1945 46 the Commercial Tax officer taxed the assessees under the Madras General Sales Tax Act, 1930. The Commercial Tax officer rejected the claim of the assessees that the amounts in respect of overseas transactions was exempt from liability to tax, because in his view the export transactions were sales within the province of Madras. The Board of Revenue confirmed the order and held that the property in the goods passed to the buyers in a large majority of the export transaction when the goods were shipped. The assessees contended that the export sales were at the material time totally outside the provisions of the Madras General Sales Tax Act and the order of the assessment was ultra vires and beyond the powers of the Authority. The plea of the State of Madras was that the foreign bank opening the letter of credit is an agent of the buyer, and that the bank authorises its own branch to pay the price to the shippers and by the arrangements made by opening the letter of credit, price is paid to the vendor in his own country against the Bill of lading endorsed in blank. ^ Held, that the price in respect of the goods was not received in the Province of Madras and the property in the goods also did not pass to the buyer within the province. Therefore tax in respect of the sale transactions was not exigible under the Madras General Sales Tax Act 1939. The expansion of international trade involving overseas transactions has raised problems of peculiar difficulty. The 956 parties to a contract (which is as a result of correspondence) are generally unknown to each other; often neither the seller nor the buyer is prepared to trust the other and the seller is reluctant to tie up his funds and the buyer is also unwilling to make payment in advance. To tide over the problem created by this reluctance of the seller and the buyer, bankers of international repute and credit interpose. They for small commission undertake by opening letters of credit to honour the bill of exchange drawn by the seller accompanied by the insurance policy and the invoice relating to goods forming the subject matter of the contract. At the instance of the buyers the bank issues a letter of credit which is addressed to the world at large or more frequently to specified person or persons thereby the bank undertakes to honour the Bills of Exchange drawn on the faith of that letter. Invariably the bills are payable in future but the exporters as the benefit ciaries under the contract, have the guarantee of the banker that payment will be forthcoming and are also entitled to discount the Bills with any party cognisant of the undertaking of the original banker. The relation between the buyer and his issuing banker was not of principal and agent, nor was the relation between the issuing banker and the intermediary banker that of principal and agent. The two bankers were interposed for the protection of the seller as well as the buyer. The issuing banker did not purport to act as agent of the buyer and the intermediary bankers accepted the general offer of the issuing banker negotiating the draft. By so accepting the offer and by taking over the Bill of Lading, the insurance certificate and the invoice which represented title to the goods the intermediary banker did not act as an agent of the seller.

Civil Appeal No. 967 of 1975. (From the judgment and order dated 13 2 1974 of the Calcut ta High Court in Copyright No. 2/73). A.K. Sen, E.P. Skons James, J. 1. Mehta, J. Roy Choud hary, S.K. Mehta, K.R. Nagaraja and P.N. Puri, for the appellant. section Chaudhury, R.K. Bachawat, D.K. Sinha, H.S. Parihar and I. N. Shroff, for respondents 1 5 and 12 and 22. J.C. Bhat, Atul Munim and B.R. Agarwala, for respondents 6 8. B. Sen, B.K. Bachawat, D.K. Sinha, H.S. Parihar and I. N. Shroff, for respondents 12 and 22. J.L. Nain, Atul Munim and B. R. Agarwala, for re spondent No. 19. , V.R. Krishna Iyer, J. also gave a separate opin ion. JASWANT SINGH, J. This appeal by certificate granted under Article 133(1) of the Constitution by the High Court of Judicature at Calcutta which is directed against its judgment dated February 13, 1974, raises the following substantial question of law of general importance : "Whether in view of the provisions of the , an existing and future rights of music . composer, lyricist is capable of assignment and whether the producer of a cinematograph film can defeat the same by engaging the same person. " The facts giving rise to the appeal are: The Indian Performing Right Society Ltd. (hereinafter referred to for the sake of brevity as 'the IPRS '), the appellant before us, was incorporated in the State of Maharashtra on August 23, 1959, as a company limited by guarantee, for the purpose of carrying on business in India of issuing or granting li cences for performance in public of all existing and future Indian Musical works in which copyright subsists in India. The incorporation of the IPRS was in terms of section 2(r) of the , 211 1957 (Act 14 of 1957) (hereinafter referred to as 'the Act ') which was enacted after taking into consideration the Report of the (British) Copyright Committee,1952, the suggestions of the various Ministries of the Government of India and the State Governments, the Indian Universities and certain interested industries and associations who were invited to send their comments on the subjects of copyright. The IPRS has amongst its members the composers of musical works, authors of literary and dramatic works and artists. In accordance with the provisions of section 33 of the Act, the IPRS published on September 27, 1969 and November 29, 1969 in the 'Statesman ' and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences far perform ance in public of works in respect of which it claimed to be an assignee of copyrights and to have authority to grant the aforesaid licences. A number of persons including various associations of producers of cinematograph films who claimed to be the owners of such films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the aforesaid tariff in accordance with the provisions of section 34 of the Act repudiating the claim of the IPRS that it had on behalf of its members authority to grant licences for. performance in public of all existing and future musical works which are incorporated in the sound track of cinematograph films in which copyright may subsist in India or the right to collect in relation thereto any fees, charges or royalties. The association of producers averted inter alia that their members engaged composers and sound writers under contracts of service for composing songs to be utilised in their films; that the musical works prepared by the composers of lyric and music under contract of service with their mem bers producers of the cinematograph films having been utilised and incorporated in the sound track of the cinemat ograph films produced by the latter, all the rights which subsisted in the composers and their works including the right to perform them in public became the property of the producers of the cinematograph films and no copyright sub sisted in the composers which they could assign to and become the basis of the claim of the IPRS under section 33 of the Act; that their members i.e. the producers of cine matograph films being the authors and first owners of the copyright in the cinematograph films produced by them had the exclusive right inter alia to cause the said films in so far as the same consisted of sounds (which include musical works) to be heard in public as also the exclusive right to make records embodying the sound track of the films produced by them (including any musical work incorporated therein) and to cause the said records to be beard in public; that in the making of a cinematograph film as contemplated by the Act a composer composes a lyric or music under a contract of service or for valuable consideration which is substantial a music director sets it to tunes and imparts music to it and a singer sings the same but none of them nor any one of their aforesaid works can and have any separate copyrights; that motion picture is the combination of all arts and music in the sound track which cannot be detached from the film itself; that the purpose of making a motion picture is not only to complete it but also to publicly exhibit it through out the world; that having regard to the provisions of the Act the ' copyright in the case of 212 a cinematograph film vests in the owner of the film as defined in section 2(d) (v) of the Act; and that in the premises any assignment purporting to have been made in favour of the IPRS was void and of no effect and was incapa ble of conferring any rights whatsoever in such musical works on the IPRS. The Cinematograph Exhibitors Association of India also filed objections challenging the right of the IPRS to charge fees and royalties in respect of performance in public of the musical works incorporated in the sound track of the films. Besides raising contentions identical to those raised by various associations of producers they averred that copyright in a cinematograph film which vested in the producers meant copyright in the entirety of the film as an integrated unit including the musical work incorporated in the sound track of the film and the right to perform the work in public; that in accordance with the agreement with the distributors of films the exhibition of cinematograph film includes the right to play in public the music which is an integral part and parcel of the film; that the producers lease out copyrights of public performance of the films vested in them to the distributors who give those rights to the exhibitors an agreement and that when an exhibitor takes a licence for exhibition, it is complete in all respects and a third party like the IPRS cannot claim any licence fee from the exhibitors. On the aforesaid objections being referred to it for determination under section 35 of the Act, the Copyright Board expressed the view that in the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed or written and that they could assign the performing right in public to the IPRS. The Copyright Board further held that the tariff as published by the IPRS was reasonable and the IPRS had the right to grant licences for the public performance of music in the sound track of copyrighted Indian cinematograph films and it could collect fees, royalties and charges in respect of those films with effect from the date on which the tariff was published in the Gazette of India. Aggrieved by the decision of the Copyright Board, the objectors preferred an appeal under section 72 of the Act to the High Court which allowed the same holding that unless there is a contract to the contrary, a composer who composes a lyric or music for the first time for valuable considera tion for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning and that under proviso. (b) to section 17 of the Act, the owner of the film at whose instance, the composition is made, becomes the first owner of the copy right in the composition. The High Court further held that "the composer can claim a copyright in his work only if there is an express agreement between him and the owner of the cinematograph film reserving his copyright". The High Court also held that "though section 18 of the Act confers power to make a contract of assignment, the power can be exercised only when 213 there is an 'existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect". Dissatisfied with this decision, the IPRS has,as already stated, come up in appeal to this Court. The copyright law in our country being fairly complicat ed because of the involved language in which some of its provisions are couched and the case being of first impres sion, learned counsel for the parties have tried hard to help us in solving the knotty points by advancing copious and able arguments. Appearing on behalf of the appellant, Mr. Ashok Sen has urged that the author (composer) of a literary or musical work has copyright which includes inter alia the exclusive right (a) to perform the work in public 'and (b) to make any cinematograph film or a record in respect of the work; that copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or performs the work in public by exhibiting the cinematograph film; that if a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the permission not only of the owner of the copyright in the cinematograph film but also the permission of the owner of the copyright in the literary or musical work which is incorporated in the cinematograph film, as according to section 1. 3 (4) of the Act, the copyright in a cinematograph film or a record does not affect the separate copyright in any work i.n respect of which or a substantial part of which, the film, or as the case may be, the record is made; that the provisions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work em bodied in a cinematograph film; that the only modes in which the author of a literary or musical work ceases to be the owner of copyright m the work are (a) by assignment, '(b) by relinquishment and (c) by the composer composing the work in 'the course of his employment under a contract of service with an employer in which case, the employer becomes the owner of the copyright in the musical work; that in the case of an assignment of copyright in future work and the employ ment of the author to produce a work under a contract of service, the question of priorities will be decided ac cording to the principle "where equities are equal, the first in time shall prevail". Mr. Sachin Chaudhary, learned counsel for respondents 1, 2 and 3, as well as Mr. J.C. Bhat, learned counsel for respondents 6, 7 and 8, and Mr. J.L. Nain, learned counsel for respondent 19, who followed Mr. Chaudhary have on the other hand submitted that the dispute in the instant case, according to the petition of appeal, the judgment of the Copyright Board and the judgment of the Calcutta High Court is confined to the sound track associated with a cinemato graph film (which expression, according to Copinger and Skone James on COPYRIGHT, means "any record of sounds which is incorporated in any print, negative, tape or other arti cle on which the film or part of it, in so far as it con sists of visual images, is recorded, or which is issued by the maker 214 Of the film for use in conjunction with such an article"); that the contention advanced on behalf of the appellant that copyright in a literary or musical work incorporated in the sound track of a cinematograph film vests in the composer of literary or musical work and when the cinematograph film is performed i.e. exhibited in public, the composer is entitled to fee or royalty in that behalf and since the appellant is the assignee of the copyright from the composers, it has the right to collect the fee or royalty is entirely unfound ed; that unlike (the law) in England, in India unless a music is notationally written, printed or graphically repro duced, it is not musical work within the meaning of the and there is no copyright 'in songs or orches tral pieces sung or played directly without its notation being written ' that since a 'cinematograph film ' is defined in section 2(f) of the 'Act as including the sound track and the 'cinematograph ' is required to be construed to include any work produced by any process analogous to cine matography, the owner of the cinematograph film is the firt owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film; that in the case of the film in which a lyric (which literally means a short poem directly expressing the poet 's own thoughts and sentiments in stan zas falling within the purview of the expression "literary work" as defined in section 2(0) of the Act) has been plagiarised, there will be copyright in the film vesting in the producer; that the Act confers a separate copyright on a cinematograph film as a film, its author under section 2(d)(v) of the Act being the owner of the film at the time of its completion; that in the case of a lyric or music incorporated in the sound track of a cinematograph film, since under section 2(f) of the Act, cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the owner of copyright the. right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. They have further urged that it is not correct to say that under section 17, proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commis sioned. According to counsel for respondents section 17 proviso (b) will equally apply if someone is commissioned to make any component part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer; that as the Act confers a sepa rate copyright on a cinematograph film as a film, the pro ducer can exercise both the rights conferred on him under section 14(1).(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall co exist with those created by section 14(1)(c) and (d) of the Act, e.g. under clause (a), the 215 copyright in a literary work such as a novel entitles its author to make a cinematograph film in respect of the work, and to exercise the remaining rights created by section 14(1)(a) of the Act. But once he has licensed someone to make a cinematograph film, the licensee shall have the rights provided in clauses (c) and (d) of section 14(1) of the Act in respect of the film. We have given our earnest consideration to the submis sions made by learned counsel for the parties. So far as the first part of the question reproduced above is con cerned, there is no dispute between the parties. Both sides are agreed that in view of the provisions of section 18 of the Act, the material portion of which lays down that "(1) the owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partial ly and either generally or subject to limitations and either for the whole term of the copyright or any part thereof; provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence, (2)where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly", the first part of the question should be answered in the affirmative. It is accordingly held that an existing and future right of music . composer and lyricist in their respective 'works ' as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act, as also in section 19 of the Act which requires an assignment to be in writing, signed by the assignor or by his duly authorised agent. It is the second part of the question which has been a hot bed of controversy between the parties that has got to be tackled. The main point for determination in regard to this part of the question is whether the composer of lyric or musical work (which in terms of section 2(p) of the Act means only a notationally written, printed or graphically produced or reproduced music) retains a copyright in the lyric or musical work if he grants a licence or permission to an author (owner) of a cinematograph film for its incor poration in the sound track of a cinematograph film. For a proper appreciation and determination of the contentions raised before us, it is necessary to notice certain provi sions of the Act. The terms 'author ', 'Cinematograph film ', 'exclusive licence ', 'infringing copy ', 'musical work ', 'performance ' performing rights society ', 'radio diffusion ' and 'work ' are defined in clauses (d), (f), (j), (m), (p), (q), (r), (v) and (y) respectively of section 2 of the Act as under : "(d) author means, (i) in relation to a literary or dramatic work, the author of the work; 5 240SC I / 7 7 216 (ii) in relation to a musical work, the com poser; (iii) ** ** ** (iv) ** ** ** (v) in relation to a cinematograph film, the owner of the film at the time of its comple tion; and (vi) in relation to a record, the owner of the original plate from which the record is made, at the time of the making of the plate". "(f) cinematograph film includes the sound track, if any, and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography." "(j) exclusive licence means a licence which confers on the licensee or on the licen see and persons authorised by him. to the exclusion of all other persons (including the owner of the copyright), any right comprised in the copyright in a work, and "exclusive licensee" shall be construed accordingly." "(m) infringing copy means, (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematograph film; (ii) in relation to a cinematograph film, a copy of the film or a record embodying the recording in any part of the sound track associated with the film; (iii) ** ** ** (iv) ** ** **" "(p) musical work means any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced". "(q) performance includes any mode of visual or acoustic presentation including any such presentation by the exhibition of a cinematograph film, or by means of radiodif fusion, or by the use of a record, or by any other means and, in relation to a lecture, includes the delivery of such lecture". "(r) performing rights society means a society, association or other body, whether incorporated or not, which carries on business in India of issuing or granting licences for the performance in India of any works in which copyright subsists". 217 (v) radio diffusion includes communication to the public by any means of wireless diffu sion whether in the form of sounds or visual images or both". "(y) work means any of the following works, namely (i) aliterary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a record". Section 13 of the Act provides as follows : "13. Works in which copyright subsists. (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say, (a) original literary, dramatic musical and artistic works; (b) cinematograph films; and (c) records. (2) ** ** ** (3) Copyright shall not subsist (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any record made in respect of a liter ary, dramatic or musical work, if in making the record, copyright in such work has been infringed. (4) The copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made. (5) ** ** ** Section 14 of the Act which contains the meaning of the expression "copyright" is to the following effect : "14. Meaning of copyright. " (1) For the purposes of this Act: "copyright" means the exclusive right, by virtue of, and subject to the provisions of, this Act, (a) in the case of literary, dramatic or musical work, to do and authorise the doing of any of the following acts, namely (i) to reproduce the work in any material form; (ii) to publish the work; (iii) to perform the work in public; 218 (iv) to produce, reproduce, perform or publish any translation of the work; (v) to make any cinematograph film or a record in respect of the work; (vi) to communicate the work by radio diffu sion or to communicate to the public by a loud speaker or any other similar instrument the radio diffusion of the work; (vii) to make any adaptation of the work; (viii) to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (vi): (b) ** ** ** (c) in the case of a cinematograph film, to do or authorise the doing of any of the following acts, namely (i) to make a copy of the film; (ii) to cause the film, in so far as it con sists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public; (iii) to make any record embodying the record ing in any part of the sound track associated with the film by utilising such sound track; (iv) to communicate the film by radio diffu sion; (d) in the case of a record, to do or authorise the doing of any of the following acts by utilising the record, namely (i) to make any other record embodying the same recording; (ii) to cause the recording embodied in the record to be heard in public; (iii) to communicate the recording embodied in the record by radio diffusion. (2) Any reference in sub section (1) to the doing of any act in relation to a work or a translation or an adaptation thereof shall include a reference to the doing or that act in relation to a substantial part thereof". Section 17 of the Act which relates to ownership of copyright provides as under : "17. First owner of copyright. Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein; Provided that 219 (a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agree ment to the contrary. be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work; (b) Subject to the provisions of clause (a), in the case of a photograph taken, or a paint ing or portrait drawn, or an engraving or a cinematograph film made. for valuable consid eration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (c) in the case of a work made in the course of the author 's employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (d) ** ** ** (e) ** ** ** Sections 22 and 26 of the Act which deal with the term of copyright in musical and other works and cinematograph films are to the following effect : "22. Term of copyright in published liter ary, dramatic musical and artistic works. Except as otherwise hereinafter pro vided, copyright shall subsist in any liter ary, dramatic, musical or artistic work (other than a photograph) published within the life time of the author until fifty years from the beginning of the calendar year following the year in which the author dies. Explanation. In this section, the refer ence to the author shall, in the case of a work of Joint authorship, be construed as a reference to the author who dies last . Term of copyright in cinematograph films. In the case of a cinematograph film, copyright shall subsist until fifty years from the beginning of the calendar year next fol lowing the year in which the film is pub lished". 220 Section 30 of the Act which deals with grant of licences by owners of copyright runs thus : "30. Licences by owners of copyright. The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing signed by him or by his duly authorised agent: Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence. Explanation. When a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, is entitled to the benefit of the licence". The interpretation clause (f) of section 2 reproduced above, which is not exhaustive, leaves no room for doubt when read in conjunction with section 14(1)(c)(iii) that the term "cinematograph film" includes a sound track associated with the film. In the light of these provisions, it cannot be disputed that a "cinematograph film" is to be taken to include the sounds embodied in a sound track which is asso ciated with the film. Section 13 recognises 'cinematograph film ' as a distinct and separate class of 'work ' and de clares that copyright shall subsist therein throughout India. Section 14 which enumerates the fights that subsist in various classes of works mentioned in section 13 provides that copyright in case of a literary or musical work means inter alia (a) the right to perform or cause the performance of the work in public and (b) to make or authorise the making of a cinematograph film or a record in respect of the work. It also provides that copyright in case of cinemato graph film means. among other rights, the right of exhibit ing or causing the exhibition m public of the cinematograph film i.e. of causing the film in so far as it consists of visual images to be seen in public and in so far it consists of sounds to be heard in public. Section 13(4) on which Mr. Ashok Sen has leaned heavily in support of his contentions lays down that the copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made. Though a conflict may at first sight seem to exist between section 13(4) and section 14(1) (a) (iii) on the one hand and sec tion 14(1) (c) (ii) on the other, a close scrutiny and a harmonious and rational instead of a mechanical construction of the said provisions cannot but lead to the irresistible conclusion that once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film producer to make a cinematograph film in respect of his work and thereby to have, his work incorporated or recorded on the sound track of a cinematograph film, the latter acquires by virtue of section 14(1) '(e) of the Act on completion of the cinematograph film a copyright which gives 221 him the exclusive right inter alia of performing the work in public i.e. to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in pub lic. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of British Copyright Committee set up in 1951 relates both to copying the film and to its performance in public. Thus if an author (composer) of a lyric or musical work authorises a cinematograph film pro ducer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act on which Mr. Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. The composer of a lyric or a musical work, however, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be re strained from doing so. In other words, the author (com poser) of lyric or musical work who has authorised a cinematograph film producer to. make a cinematograph film of his work and has thereby permitted him to appropri ate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio diffu sion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of the cinematograph film to do all these things. In such cases, the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the express provisions of clauses (f), (m), (y) of section 2, section 13(1)(b) and section 14(1)(c) of the Act otiose but would also defeat the intention of the Legislature, which in view of the growing importance of the cinemato graph film as a powerful media of expression, and the highly complex technical and scientific process and heavy capital outlay involved in its production, has sought to recognise it as a separate entity and to treat a record embodying the recording in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. On a conspectus of the scheme of the Act as disclosed in the provisions reproduced above particularly clauses (d)(v), (f) (m), (v)and (y) of section 2, sections 13(1) and 14(1)(c), provisos (b)and (c) to section 17 and sections 22 and 26 of the Act, it is, therefore, abundantly clear that a protectable copyright (comprising a 222 bundle of exclusive rights mentioned in section 14(1)(c) of the Act) comes to vest in a cinematograph film on its com pletion which is said to take place when the visual portion and audible portion are synchronized. This takes us to the core of the question namely, wheth er the producer of a cinematograph film can defeat the right of the composer of music . or lyricst by engaging him. The key to the solution of this question lies in provisos (b) and (c) to section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricst for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric there fore i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein 'and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprentice.ship to compose the work. It is, therefore, crystal clear that the rights of a music composer or . lyricst Can be defeated by the producer of a cinemat ograph film in the manner laid down in provisos (b) and (c) of section 17 of the Act. We are fortified in this view by the decision in Wallerstein vs Herbert (1867) Vol. 16, Law Times Reports 453, relied upon by Mr. Sachin Chaudhary where it was held that the music composed for reward by the plain tiff in pursuance of his engagement to give effect to cer tain situations in the drama entitled "Lady Andley 's Secret", which was to be put on the stage was not an inde pendent composition but was merely an accessory to and a Fart and parcel of the drama and the plaintiff did not have any right in the music. For the foregoing reasons, we do not find any justification to interfere with the order of the High Court. Conse quently, the appeal fails and is dismissed but in the circumstances of the case without any order as to costs. KRISHNA IYER, J. The judgment just delivered is on behalf of the Court, which makes this footnote, in a sense, otiose. But I do append the abbreviated opinion solely to belight a slightly penumberal area of the law and to voice a need for legislative exploration to protect a category now left in the cold. A cinematograph is a felicitous blend, a beautiful totality, a constellation of stars, if I may use these lovely imageries to drive home my point, slurring over the rule against mixed metaphor. Cinema is more. than long strips of celluloid, more than miracles in photography, more than song, dance and dialogue and indeed, more than dramatic story, exciting plot, gripping situations and marvellous acting. But it is that 223 ensemble which is the finished product of orchestrated performance by each of the several participants, although the components may, sometimes, in themselves be elegant entities. Copyright in a cinema film exists in law, but section 13(4) of the Act preserves the separate survival, in its individuality, of a copyright enjoyed by any 'work ' notwith standing its confluence in the film. This persistence of the aesthetic 'personality ' of the intellectual property cannot cut down the copyright of the film qua film. The latter right is, as explained earlier in my learned broth er 's judgment, set out indubitably in section 14(1)(c). True, the exclusive right, otherwise called copyright, in the case of a musical work extends to all the sub rights spelt out in section 14(1)(a). A harmonious construction of section 14, which is the integral yoga of copyrights in creative works, takes us to the soul of the subject. The artist enjoys his copyright in the musical work, the filmproducer is the master of his combination of artistic pieces and the two can happily co exist and need not conflict. What is the modus vivendi ? The solution is simple. The film producer has the sole right to exercise what is his entitlement under section 14(1)(c) qua film, but he cannot trench on I the composer 's copyright which he does only if the 'music ' is performed or produced or reproduced separately, in violation of section 14(1)(a). For instance, a film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or other theatre. To do that is the privilege of the composer and that right of his is not crowned in the film copyright except where there is special provision such as in section 17, proviso (c). So, beyond exhib iting the film as a cinema show, if the producer plays the songs separately to attract an audience or for other reason, he infringes the composer 's copyright. Anywhere, in a restaurant or aeroplane or radio station or cinema theatre, if a music is played, there comes into play the copyright of the composer or the Performing Arts Society. These are the boundaries of composite creations of art which are at once individual and collective, viewed from different angles. In 'a cosmic perspective, a thing of beauty has no boundary and is humanity 's property but in the materialist plane on which artists thrive, private and exclusive estate in art subsists. Man, the noblest work of the Infinite Artist, strangely enough, battles for the finite products of his art and the secular law, operating on the temporal level, guard ians material works possessing spiritual values. The enig matic small of Mona, Lisa is the timeless heritage of man kind but, till liberated by the prescribed passage of time, the private copyright of the human maker says, 'hands off '. The creative intelligence of man is displayed in multiform ways of aesthetic expression but it often happens that economic systems so operate that the priceless divinity which we call artistic or literary creativity in man is exploited and masterS, whose works are invaluable, are victims of piffling payments. World opinion in defence of the human right to intellectual property led to internation al conventions and municipal laws, commissions, codes and organisations, calculated to protect works of article India responded to this universal need by enacting the . 224 Not the recommendations in conventions but provisions in municipal laws determine enforceable rightS. Our copyright statute protects the composite cinematograph work produced by lay out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged, through the sound track, into the motion picture, is copyrighted by the producer but, on account of this monopoly, the music composer 's copyright does not perish. The twin rights can co exiSt, each ful filling itself in its delectable distinctiveness. Section 14 has, in its careful arrangement of the rights belonging to each copyright, has a certain melody and harmony to miss which is to lose the sense of the Scheme. A somewhat un Indian feature we noticed in the Indian copyright Act falls to be mentioned. Of course, when ' our law is intellectual 'borrowing from British reports, as admittedly it is, such exoticism is possible. 'Musical work ', as defined in s.2 ( p) reads: "(p) musical work means any combina tion of melody and harmony or either of them printed, re duced to writing or otherwise graphically produced or reproduced." Therefore, copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonderful render ing. It is the melody or harmony reduced to print, writing or graphic form. The Indian music lovers throng to listen and be enthralled or enchanted by the nada brahma, the sweet concord of sounds, the rags, the bhava, the lava and the sublime or exciting singing. Printed music is not the glamour or glory of it, by and large, although the content of the poem or the lyric or the song does have appeal. Strangely enough, 'author ', as defined in s.2(d), in rela tion to a musical work, is only the composer and section 16 confies 'copyright ' to those works which are recognised by the Act. This means that the composer alone has copyright in a musical work. The singer has none. This disentitle ment of the musician or group of musical artists to copy right is un Indian, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician. Perhaps, both deserve to be recognised by the copyright law. I make this observation only because act in one sense, depends on the ethos and the aesthetic best of a people; and while universal protection of intellectual and aesthetic property of creators of 'works ' is an international obligation, each country in its law must protect such rights wherever originality is con tributed. So viewed, apart from the music composer, the singer must be conferred a right. Of course, law making is the province of Parliament but the Court must communicate to the lawmaker such infirmities as exist in the law extant. S.R. Appeal dismissed.

The appellant society was incorporated in terms of section 2(r) of the (Act 14 of 1957), in the State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of all existing and future Indian musical works in which copyright within the meaning of section 13 subsists in India. The appellant company has amongst its members the composers of musical works, authors of literary and dramatic works and artistes. In accordance with the provisions of section 33 of the Copyright Act, the appellant published on September 27, 1969 and November 29, 1969 in the "Statesman" and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copy rights and to have authority to grant the aforesaid li cences. A number of persons including various associations of producers of cinematograph films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the tariff before the Copyright Board in accordance with the provisions of section 34 of the Act, repudiating the rights of the appel lant. The Copyright Board held : (1) In the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed on written and that they could assign the performing right in public to the appellant. (2) The tariff as published by the appellant was reasonable. (3) The appellant had the right to grant li cences for the public performance of music in the sound track of copyrighted Indian cinematograph films and (4) It could collect fees, royalties and charges in respect of those films w.e.f. the date on which the tariff was pub lished in the Gazette of India. The High Court allowed the appeal preferred by the respondents under section 72 of the Act and held: (i) Unless there is a contract to the contrary a composer who composes a lyric or music for the first time for valuable consideration for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning. (ii) Under proviso (b) to section 17 of the Act, the owner of the film at whose instance the composition is made becomes the first owner of the copyright in the composition. (iii) The compos er can claim a copyright in his work only if there is an express agreement between him and the owner of the cinemato graph film reserving his copyright. (iv) Though section 18 of the Act confers power to make a contract of assignment. the power can be exercised only when there is an existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect. In appeal by certificate to this Court, the appellant contended (1) The author (composer) of a literary or musical work has copyright which includes. inter alia. the exclusive right (a) to perform the work in public and 207 (b) to make any cinematograph film or a record in respect of the work. (2) That copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or perform the work in public by exhibiting the cinematograph film. (3) If a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the per mission not only of the owner of the copyright in the cine matograph film but also the permission of the owner of the copyright in the literary or musical work which is incor porated in the cinematograph film, as according to section 13(4) of the Act, the copyright in a cinematograph film or a record does not effect the separate copyright in any work in respect of which or a substantial part of which the film or as the case may be, the record is made (4). The provi sions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work embodied in a cinematograph film. (5) The only modes in which the author of a literary work or musical work ceases to be the owner of copyright in the work are (a) by assigning under section 18(b) by relinquishment under section 21 and (c) by the composer composing the work in the course of his employment under a contract of service with an employer in which case the employer becomes the owner of the copyright in the musical work. (6) In the case of an assignment of copyright in future work and the employment of the author to produce a work under a contract of service, the question of priorities will be decided according to the principles "where equities are equal, the first in time shall prevail". The respondent 's contentions were (i) Unless a music is notationally written, printed or graphically reproduced it is not a musical work within the meaning of Copyright Act and there is no copyright in songs or orchestral pieces sung or played directly without its notation being written. (ii) Since a "cinematograph film" is defined in section 2(f) of the Act as including the sound track and the "cinema tograph" is required to be construed to include any work produced by any process analogous to cinematography the owner of the cinematograph film is the first owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film. (iii) In the case of the film in which a lyric (which literally means a short poem directly expressing the poet 's own thoughts and sentiments in instances failing within the purview of the expression "literary work" as defined in section 2(0) of the Act has been plagiarised, there will be copyright in the film vesting in the pro ducer. (iv) The Act confers a separate copyright of a cinematograph film as a film, its author under section 2(d)(v) of the Act being the owner of the film at the time of its completion. (v) In the case of a lyric or music incorporat ed under the sound track of a cinematograph film, since in section 2(f) of the Act cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the. owner of copyright the right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. (vii) It is not correct to say that under section 17 proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commissioned. Section 17(b) will equally apply if someone is commissioned to make any compo nent part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer. (viii) As the Act confers a separate copyright on a cinematograph film as a film the producer can exercise both the rights conferred on him under section 141(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall coexist with those created by section 14(1)(e) and (d) of the Act. Dismissing the appeal the Court, HELD: (Per Krishna Iyer, J. concurring) 208 (1) Copyright in a cinema film exists in law but section 13(4) of the Act preserves the separate survival in its individuality of a copyright enjoyed by any work notwith standing its confluence in the film. This persistence of the aesthetic personality of the intellectual property cannot cut down the copyright of the film qua film. The exclusive right, otherwise, called copyright, in the ' case of a musical work extends to all the sub rights spelt out in section 14(1) (a). A harmonious construction, of section 14, which is the integral yoga of copyright shows that the artiste enjoys his copyright in the musical _work the film producer is the master of his combination of artistic .pieces and the two can. happily co exist and need not conflict. [223 A C] (2) The boundaries of composite creations of art which are at once individual and collective may be viewed from different angles. In a cosmic perspective, a thing of beauty has no boundary and is humanity 's property but in the materialist plane on which artistes thrive private and exclusive estate inert subsists. The enigmatic smale of Mona Lisa is the timeless heritage of mankind, but, till liberated by the prescribed passage of time, the private copy right of the human maker says, "hands off. [223 F G] (3) The film producer has the sole right to exercise what is his entitlement under section 14(1)(c) qua film. But, he cannot trench on the composer 's copyright which he does only if the 'music ' is performed or produced or repro duced separately, in violation of section 14(1)(a). A film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or the theatre. To do that is the privilege of the composer and that right of his is not drowned in the film ' copyright except where there is special provision such as section 17, proviso (c). Beyond exhibiting the film as a cinema show if the producer plays the songs separately to attract an audience or for other reasons he infringes the composer 's copyright, the copyright of the composer or the Performing Acts Society comes into play, if a music is played, whether in a restaurant or aeroplane or radio sta tion or cinema theatre. [223 C E] (4) Section 14 has in its careful arrangement of the right belonging each copyright has a certain melody and harmony to music which is to loose the sense of the same. Our copyright statute protects the composite cinematograph work produced by lay out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged through the sound track, into the motion picture is copyright by the producer but, on account of this monopoly, the music composer 's copyright does not perish. The twin rights can co exist each fulfil ing itself in its delectable distinctiveness. [224 A B] Observation: Apart from the music composed, the singer must be conferred a right. Copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonder ful rendering. It is the melody or harmony reduced to print writing or graphic form of musical works. Author as defined in s.2(d) in relation to a musical work is only the composer and section 16 confines copyright to those works which are recognised by the Act, which means the composer alone has copyright in a musical work and the singer has none. This disentitlement of the musician or group of musical artistes to copyright is un Indian because the major attraction which lends monetary value to a musical performance is not the music maker so much as the musician. Perhaps both deserve to be recognised by the copyright law, because art in one sense depends on the ethos and the aesthetic best of a people and while universal protection of intellectual and aesthetic property of creators of "works" is an international obliga tion each country in its law must protect such rights wher ever originally is contributed. [224 E H] Per Jaswant Singh J. (1) The existing and future right of music . . composer and lyrics in their respective works as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act as also in section 209 19 of the Act which requires an assignment to be in writing, signed by the assigner or by his duly authorised agent. [215 D E] (2) The interpretation of clause (f) of section 2 which is not exhaustive leaves no room for doubt when read in conjunction with section 14(1)(c)(iii), that the term cine matograph film includes a sound track associated with the film. [220 D] (3) A harmonious and rational instead of mechanical construction of section 34, section 14(1)(a)(iii) and section 14(1)(c)(ii) will be: (A) Once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film pro ducer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded in sound track of a cinematograph film, the latter.acquires by virtue of section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives him the exclu sive right, inter alma, of performing the work in public that is, to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. A distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which relates both to copying the film and to its performance in public. (B) If an author (composer) of a lyric or a musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track or a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or the musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. (C) The composer of a lyric or musical work retains the right of performing it in public for profit otherwise than as a part of cinematograph film and he cannot be restrained from doing so. In other words, the author (composer) of a lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his work and thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of a cinematograph film to do all these things. In such cases the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the ex press provisions of clause (f), (m), (y) of section 2, section 13(1)(b) ,red section 14(1)(c) of the Act otiose but would also defeat the intention of the legislature which in view of the growing importance of the cinematograph film as a powerful media of expression and the highly complex, technical and scientific process and heavy capital outlay involved in its production has sought to recognise as a separate entity and to treat a record embodying the record ing in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. [220 G H; 221 A G] (4)Clauses (d), (v), (f), (m), (v) and (y) of section 2, section 13(1) and 14(1)(c), provisos (b) and (c) to section 17 and section 22 and 26 of the Act abundantly make it clear that protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act comes to 210 vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized. [221 H; 222 A] (5) The rights of music . . composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in proviso (b) and (c) of section 17 of the Act. In both the. cases falling under clauses (b) and (c) of section 17, a cinematograph film producer becomes the. first owner of the copyright and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on one hand and the producer of the cinemato graph film on the other. [222 D F] Wallerstein vs Herbert (1867) Vol. 16, Law Times Reports 453, quoted with approval.

Civil Appeal No. 1178 of 1988. From the Judgment and Order dated 5.11.1986 of the Delhi High Court in F.A.O. (OS) No. 231 of 1986. Hardev Singh and Miss Madhu Moolchandani for the Appellant. S.B. Saharya, V.B. Saharya and Ratna Nair for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special Leave granted. 353 The Delhi Development Authority vide its letter dated 5th October, 1976 accepted the tender of the appellant for construction of 240 Janta Houses at the estimated cost of Rs.24,49,262. The work was to commence on 15th October, 1976 and was required to be completed by 14th July, 1977. By a subsequent extension of time the work was finally completed on 2nd April, 1980 and the houses so constructed have been allotted to several people. Between February 1983 to December 1985 the appellant sent several letters to the respondent requesting them to finalise the bills. It appears, however, that the first of such letters was written on 28th February, 1983. Thereafter the appellant wrote several letters and finally on 4th September, 1985 to the respondent to finalise the bills and ultimately served the notice through his counsel requesting it to release the security of Rs.1 lakh and refer the dispute to arbitration. The respondent failed to do so. In January, 1986 the appellant filed an application under section 20 of the (hereinafter called 'the Act ') seeking a direction from the Court that the respondent be directed to file the arbitration agreement in the Court and the dispute be referred to the arbitration. The learned Single Judge of the High Court of Delhi dismissed the application as barred by time. There was an appeal to the Division Bench of the High Court of Delhi. The Division Bench upheld the decision of the learned Single Judge. Hence this appeal to this Court. The question is, whether the High Court was right in upholding that the application under section 20 of the Act was barred by limitation. In view of the decision of this Court in Kerala State Electricity Board, Trivandrum vs T.P.K.K. Amsom and Bensom, Kerala, ; , it is now well settled that Article 137 of the would apply to any petition or application filed in a Civil Court. Sub section (1) of section 20 of the Act provides as follows: "Application to file in Court arbitration agreement: Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a court having jurisdiction in the matter to which the agreement relates, that the agreement be filed in Court. " Therefore, in order to be entitled to order of reference under 354 section 20, it is necessary that there should be an arbitration agreement and secondly, difference must arise to which this agreement applied. In this case,there is no dispute that there was an arbitration agreement. There has been an assertion of claim by the appellant and silence as well as refusal in respect of the same by respondent. Therefore, a dispute has arisen regarding non payment of the alleged dues of the appellant. The question is for the present case when did such dispute arise. The High Court proceeded on the basis that the work was completed in 1980 and, therefore, the appellant became entitled to the payment from that date and the cause of action under article 137 arose from that date. But in order to be entitled to ask for a reference under section 20 of the Act there must not only be an entitlement to money but there must be a difference or dispute must arise. It is true that on completion of the work a right to get payment would normally arise but where the final bills as in this case have not been prepared as appears from the record and when the assertion of the claim was made on 28th February, 1983 and there was non payment, the cause of action arose from that date, that is to say, 28th of February, 1983. It is also true that a party cannot postpone the accrual of cause of action by writing reminders or sending reminders but where the bill had not been finally prepared, the claim made by a claimant is the accrual of the cause of action. A dispute arises where there is a claim and a denial and repudiation of the claim. The existence of dispute is essential for appointment of an arbitrator under section 8 or a reference under section 20 of the Act. See Law of Arbitration by R.S. Bachawat, 1st Edition, page 354. There should be dispute and there can only be a dispute when a claim is asserted by one party and denied by the other on whatever grounds. Mere failure or inaction to pay does not lead to the inference of the existence of dispute. Dispute entails a positive element and assertion in denying, not merely inaction to accede to a claim or a request. Whether in a particular case a dispute has arisen or not has to be found out from the facts and circumstances of the case. The application under section 20 of the Act was filed in Court in January, 1986, that is to say, within the period of three years; therefore the application was within time. The High Court was in error in dismissing the application on the ground of limitation. The judgment and order of the High Court are, therefore, set aside. The High Court is directed to make an order under section 20 of the Act and give consequential directions in respect of the same. The costs of this appeal would be costs in the arbitration proceeding. The appeal is thus allowed and disposed of as aforesaid. N.P.V. Appeal allowed.

% The appellant undertook construction of certain houses for the respondent Development Authority and completed the same on 2nd April, 1980. The appellant sent several letters to the respondent requesting for finalisation of the bills; the first one on 28th February, 1983 and the last on 4th September, 1985. Ultimately, the appellant served notice, through his counsel requesting the respondent to release the security amount and refer the dispute to arbitration. On respondent 's failure to do so, the appellant filed an application in the Court, under section 20 of the seeking a direction for filing the arbitration agreement in the court and referring the dispute to arbitration. A Single Judge of the High Court dismissed the application as barred by time. This decision was upheld by the Division Bench. Allowing the appeal, ^ HELD: 1.1 Article 137 of the would apply to any petition or application filed in a civil court. [353E F] Kerala State Electricity Board, Trivandrum vs T.P.K.K. Amsom and Bensom, Kerala, ; relied on. 1.2 In order to be entitled to an order of reference under section 20, it 352 is necessary that there should be an arbitration agreement and secondly, difference must arise to which this agreement applied. The existence of a dispute is, therefore, essential for appointment of an Arbitrator under section 8 or a reference under section 20 of the Act. [353H, 354A] 1.3 Dispute entails a positive element and assertion in denying, not merely inaction to accede to a claim or a request. Whether in a particular case, a dispute has arisen or not has to be found out from the facts and circumstances of the case. [354F] 1.4 A right to get payment would normally arise on completion of the work and a party cannot postpone accrual of cause of action by writing reminders or sending reminders. But where a bill had not been finally prepared, the claim made by the claimant is the accrual of the cause of action. [354C D] In the instant case there was an arbitration agreement. There has been an assertion of claim by the appellant and silence as well as refusal in respect of the same by the respondent. Therefore, a dispute has arisen regarding non payment of the alleged dues of the appellant. Since final bills had not been prepared, and there was assertion of claim on 28th February, 1983 and there was non payment, the cause of action arose on that date. [354A B, D] The application under section 20 of the Act having been filed in the Court in January, 1986, i.e. within the period of three years from the date of cause of action, it was within time and the High Court was in error in dismissing it on the ground of limitation. [354G]

Civil Appeal Nos. 1217 1222 of 1973. Appeals by certificate from the Judgment and order dated 21.12 1972 of the Gujarat High Court in Wealth Tax Reference No. 2 of 1969. V. section Desai, Shardul section Shroff and H. section Parihar for the Appellant. section T. Desai, P. A. Francis and Miss A. Subhashini for the Respondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. On the basis of a certificate granted under section 29(1) of the (hereinafter referred to as the Act ) the appellant has filed these appeals against the judgment and order dated December 21 1972 of the High Court of Gujarat in Wealth tax Reference No 2 of 1969. The questions referred to the High Court under section 27 of the Act by the In come tax Appellate Tribunal Ahmedabad Bench read thus: "(1) Whether on the facts and in the circumstances of the case the liability in respect of income tax payable on the concealed income disclosed by the assessee pursuant to section 68 of the Finance Act 1965 is deductible under section 2(m) of the in computing the net wealth of the assessee for the 405 assessment years 1959 60 1960 61 1961 62 1962 63 A 1963 64 and 1964 65. (2) Whether the Tribunal was right in holding that the liability to pay tax on the amount disclosed under section 68 of the Finance Act 1965 arose not under that Finance Act but under section 3 of the Indian Income tax Act 1922. Having regard to the assessment years in question the second question should be read as including within its scope also the question whether the Tribunal was right in holding that the liability to pay tax on the amount disclosed under section 68 of the Finance Act, 1965 arose not under that Finance Act but under section 4 of the Income tax Act 1961. The assessee who is the appellant in these appeals had been assessed on the basis of his returns of net wealth and the statements filed therewith in the status of an individual to wealth tax under section 16(3) of the Act during the assessment years 1957 58 t 1964 65 on various dates between January 15 1960 and July 14 1964. Subsequently the assessee made a disclosure under section 68 of the Finance Act 1965 (hereinafter referred to as the Finance Act) of Rs.7,00,000 which had been shown as having been covered by some hundi transactions with a concern known as M/s Abdul Razack & Co. in his books of account at the Bombay branch of his business. Alongwith the declaration the assessee filed a statement that this concealed income had been earned by him during the assessment years 1957 58 to 1964 65. He however did not allocate the total sum disclosed amongst different assessment years but showed it in a lump sum. The amount of income tax was computed at 60% of the total concealed income and it was paid as contemplated under section 68 of the Finance Act. The Wealth tax officer thereafter reopened the assessments or the assessee to wealth tax for assessment years 1957 58 to 1964 65 on the ground that he had reason to believe that certain wealth of the assessee had escaped assessment during the said years and that his belief was founded on the disclosure made by the assessee under section 68 of the Finance Act. We are concerned in these appeals only with the assessment years 1959 60 to 1964 65. On scrutiny it was found on the basis of peak cash credits in each assessment year that the amounts covered by hundies were as under: 406 Assessment years Peak cash credits 1959 60 RS. 4,57,465/ 1960 61 RS. 5,59,8231 1961 62 RS. 6,38,325/ 1962 63 RS. 6,82,974/ 1963 64 RS. 7,01,578/ 1964 65 RS. 7,01,578/ As can be seen from the above statement the assessee had substantial sums with him in the years in question which had not been disclosed earlier. Since these amounts constituted the wealth which was liable to tax on the respective valuation dates the assessee filed returns of wealth for the above mentioned years in compliance with the notices issued to him and in the course of the assessment proceedings he claimed the deduction for income tax payable by him in respect of the sums which had been progressively earned by him from year to year and which were liable to income tax under the relevant income tax law in force during the years relying upon the decision of this Court in Kesoram Industries and Cotton Mills Ltd vs Commissioner of Wealth tax (Central), Calcutta. The Wealth tax officer however held that since in his balance selects the assessee had not shown the liability to pay income tax the deduction of the amounts claimed could not be allowed in any of the assessment years and accordingly the orders of reassessment were passed by him after disallowing the claim made by the assessee. He however included the sums mentioned in the above statement in the net wealth of the respective assessment years and determined the wealth tax payable by the assessee. The appeals filed by the assessee against the orders of the Wealth tax officer before the Appellate Assistant Commissioner were dismissed. On further appeal to the Income tax Appellate Tribunal the Tribunal held that the deduction claimed in respect of each assessment year was in truth and substance a liability under the Indian Income tax Act 1922 or the Income tax Act 1961 as the case may be and not a new liability created by the Finance Act and therefore it constituted a debt owed by the assessee on the respective valuation dates within the meaning of section 2(m) of the Act and that the deduction claimed should be allowed while computing the net wealth 407 of the assessee. Accordingly the Tribunal allowed the appeals of the assessee. Thereafter at the instance of the Commissioner of Wealth tax the Tribunal referred under section 27 of the Act the two questions mentioned above to the High Court. After hearing the parties the High Court answered both the questions in the negative and in favour of the Revenue by its judgment dated December 21 1972. On a certificate granted by the High Court under section 29(1) of the Act the assessee has come up in appeal to this Court. The relevant part of section 2(m) of the Act reads: "2. (m) net wealth means the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets wherever located belonging to the assessee on the valuation date including assets required to be included in his net wealth as on that date under this Act is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than In the case of Kesoram Industries and Cotton Mills Ltd. (supra.) this Court has held that income tax other than that falling under clause (iii) of section 2(m) of the Act payable on the valuation date is a debt owed by the assessee and hence is deductible from the total wealth of the assessee while determining the net wealth for the purpose of levying wealth tax. The principal question which arises for consideration in these appeals relates to the true character of the tax paid by the assessee in the proceedings under section 68 of the Finance Act and the applicability of the ratio of the decision of this Court in the case of Kesoram Industries and Cotton Mills Ltd. (supra). Since it is contended by the assessee that the tax so paid was the tax which he was liable to pay under the relevant income tax law in force during the assessment years in question and it is urged by the Department that the said payment was in discharge of a liability created for the first time by the Finance Act it is necessary to examine the provisions of section 68 of the Finance Act in some detail in so far as they relate to the question involved in this case. The relevant part of section 68 of the Finance Act which came into force on March 1 1965 reads: 408 "68. Voluntary disclosure of income (1) Where any person makes a declaration in accordance with sub section (2) in respect of the amount representing income (a) which he has failed to disclose in a return of income for any assessment year filed by him before the first day of March 1965 under the Indian Income tax Act 1922 (Xl of 1922) or the Income tax Act 1961 (XLIII of 1961) or (b) which has escaped assessment for any assessment year for which an assessment has been made before the 1st day of March 1965 under either of the said Acts or (c) for the assessment of which no proceeding under either of the said Acts has been taken before the 1st day of March 1965, he shall notwithstanding anything contained in the said Acts be charged income tax at the rate specified in sub section (3) in respect of the amount so declared if he (i) pays the amount of income tax as computed at the said rate or (ii) furnishes adequate security for the payment there of in accordance with sub section (4) and under takes to pay such income tax within a period not exceeding six months from the date of the declaration as may be specified by him therein or (iii)On or before the 31st day of May 1965 pays such amount as is not less than one half of the amount of income tax as computed at the said rate or furnishes adequate security for the payment there of in accordance with sub section (4) and in either case assigns any shares in or debentures of a joint stock company or mortgages any immovable property in favour of the President of India by way o f security for the payment of the balance and undertakes to Fay such balance within the period referred to in clause (ii). 409 (2) The declaration shall be made to the Commissioner and shall specify the period required to be specified under clause (ii) of sub section (1) contain the name address and signature of the person making the declaration and also full information in respect of the following matters namely: B (a) Whether he was assessed to income tax or not and if assessed the name of the Income tax Circle in which he was assessed. (b) The amount of income declared giving where available details of the financial year or years in which the income was earned and the amount pertaining to each such year. (c) Whether the amount declared is represented by cash (including bank deposits) bullion investments in shares debts due from other persons commodities or any other assets and the name in which it is held and location thereof: Provided that the declaration shall be of no effect unless it is made after the 28th day of February 1965 and before the Ist day of June 1965. F (3) The rate of income tax chargeable in respect of the amount referred to in sub section (1) shall be sixty per cent of such amount: Provided that if before the Ist day of April 1965 the tax on the amount declared is paid by the declarant at the rate of fifty seven per cent of such amount he shall not be liable to pay any further tax on such amount. (4) A person shall not be considered to have furnished adequate security for the payment of the tax for the purposes of sub section (I) unless the payment is guaranteed by a scheduled bank or the person makes an assignment in favour of the President of India of any security of the Central or State Government. Explanation For the purposes of this sub section where an assignment of Government securities is made in 410 favour of the President the amount covered by such assignment shall be the market value of the securities on the date of the assignment. (5) Any amount of income tax paid in pursuance of a declaration made under this section shall not be refundable in any circumstances and no person who has made the declaration shall be entitled i n respect of any amount so declared or any amount of tax so paid to reopen any assessment or reassessment made under the Indian Income tax Act 1922 (XI of 1922) or the Income tax Act 1961 (XLIII of 1961) or the Excess Profits Tax Act 1943 (XV of 1940) or the Business Profits Tax Act 1947 (XXI of 1963) or the Companies (Profits) Surtax Act 194 (VII of 1964) or claim any set off or relief in any appeal reference revision or other proceeding in relation to any such assessment or reassessment. (6) (a) Any amount declared by any person under this section in respect of which the tax referred to in subsection (3) is paid shall not be included in his total income for any assessment under any of the Acts mentioned hl sub section (5) if he credits in the books of account if any maintained by him for any source of income or in any other record the amount declared as reduced by the tax paid thereon under this section. Section 68(1) of the Finance Act provides that where any person makes a declaration in accordance with section 68(2) in respect of any amount represent n g income which he has failed to disclose in his return or which has escaped assessment for any assessment year for which an assessment has been made before March 1, 1965 under either of the two Acts namely the Indian Income tax Act 1922 and the Income tax Act 19 1 or for the assessment of which no proceeding is taken before March 1, 1965 he shall notwithstanding anything contained in the said Acts be charged income tax at the rate specified in sub section (3) thereof in respect of the amount so declared. If he pays the amount of income tax as computed at the said rate or furnishes adequate security for the payment thereof in accordance with sub section (4) thereof and undertakes to pay such income tax within the period specified in the section he would be absolved from the liability under the relevant law of in 411 come tax. The declaration should however be filed with the particulars mentioned in section 68(2). Section 68(3) provides that the rate of income tax chargeable in respect of the amount referred to in the declaration shall be sixty percent of such amount provided that if the tax is paid within April 1, 1965 the tax payable would be fifty seven percent. Sub section (5) of section 68 of the Finance Act provides that any amount of income tax paid in pursuance of a declaration made under that section shall not be refundable in any circumstances nor a declarant is entitled in respect of any amount declared or tax paid thereon to reopen any assessment or reassessment made under the Indian Income tax Act 1922 or Income tax Act 1961 or any other Act mentioned therein. He cannot also claim any set off or relief in any appeal reference revision or other proceeding in relation to any such assessment or reassessment. Clause (a) of sub section (6) of section 68 grants immunity from proceedings under the Acts mentioned in section 68(5) to the assessee by providing that any amount declared by any person under section 68 in respect of which the tax referred to hl sub section (3) thereof is paid shall not be included in his total income for any assessment under any of the assessments made under any of the Acts mentioned in section 68(5) if he credits in the books of account if any maintained by him for any source of income or hl any other record the amount declared as reduced by the tax paid thereon under section 68. On an examination of the several provisions contained in section 68 of the Finance Act it becomes clear that they had been enacted as a part of the measures adopted with a view to unearthing unaccounted money in possession of the members of the public on which income tax had not been paid and also to create an incentive to such persons to make disclosure of their unaccounted incomes and to pay tax thereon at the specified rate without the liability to pay any interest thereon or penalties for non compliance with the law of income tax. The declaration to be riled by a person under section 68 is about an amount representing his income earned in an earlier accounting period which has not been subjected to tax in the ordinary course although income tax was payable hl respect of it. If the declarant pays tax at the rate specified in sub section (3) of section 68 he would be absolved from any further liability to tax on such income. The declaration has to be made before the Commissioner of Income tax and it should contain full information namely whether he was assessed to income tax or not and if assessed the name of the Income tax circle in which he was assessed the 412 amount of income declared giving w ere available details of the financial year or years in which the income was earned and the amount pertaining to each such year and whether the amount declared is represented by cash (including bank deposits) bullion investment in shares debts due from other persons commodities or any other assets and the name in which it is held and the location thereof. Section 68 also states at more than one place that what is payable pursuant to a declaration is income tax. Section 68 (1) contains words such as he shall notwithstanding anything contained in the said Acts be charged income tax at the rate specified in sub section (3) . if he pays the amount of income tax at the said rate and undertakes to pay such income tax . Section 68(3) contains the words: the rate of income tax chargeable. Section 68(5) refers to: (a) any amount of income tax paid and section 68(7) contains the words: paid the income tax under this section . These words show that Parliament was of the view that what was payable under section 68 was income tax. The points of difference between any Finance Act that may be passed annually fixing the rates of income tax and section 68 of the Finance Act however relate to (i) the time within which and the manner in which information in regard to the income is to be furnished (ii) the method of computation of taxable income and E(iii) the rate of tax payable on such income. The declaration which is equivalent to a return to be filed under the Indian Income tax Act 1922 or Income tax Act 1961 need not contain all the particulars that have to be furnished in such return. The declaration can be filed during the period mentioned in proviso to section 68(2). There is no provision to claim various deductions exemptions set off etc. in respect of the income disclosed in the declaration as in the case of income shown in an ordinary return. Since the rate of tax is a uniform one and does not vary with the quantum of the income disclosed there is no need to trace it to any specific assessment year. Further the declaration is a voluntary one and it is not pursuant to any notice issued by the Department. The question is whether these distinguishing features make the amount disclosed in a declaration anything different from the income of an assessee and the tax paid under section 68 anything different from a tax on income. In other words does section 68 impose a new charge on the income of the declarant for the first time wholly independent of the levy under section 3 of the Indian Income tax Act 192 ' or section 4 of the Income tax Act 1961 ? The High 413 Court has given the following reasons for holding that the tax paid under section 68 is not tax on income payable under the Indian Income tax Act 1922 and Income tax Act 1961: (i) the charge under the Income tax Act is on the total income of the previous year and not on any particular item of income but that is not so under section 68,(ii) payment of tax under section 68 has no reference to any assessment year and unless it is correlated to an assessment year it can not be ordinary income tax and (iii) the disclosed income is chargeable to tax without allowing usual deductions and without providing for any procedure for qualification. The High Court proceeded to hold that section 68 enacted a new charge of tax on an ad hoc basis on disclosed income irrespective of the assessment year in which it was earned. The disclosure of concealed income coupled with the payment of tax as contemplated in clause (i) of sub section (1) according to the High Court not only created a charge of tax but also satisfied it. In its view the disclosure of concealed income coupled with furnishing of security and undertaking as contemplated in clause (ii) created a new charge of tax and when the undertaking was carried out by payment of tax the liability arising from the charge of tax was satisfied. one basic fallacy underlying the conclusion of the High Court that a new charge is being levied under section 68 appears to be the assumption that the amount in question in respect of which tax is payable under that provision was not liable to income tax earlier. lt should be borne in mind that the declaration contemplated under section 68 is a declaration in respect of income of earlier years which had been concealed and on which tax was payable during the relevant assessment years in the ordinary course. Section 3 of the Indian Income tax Act 1922 and section 4 of Income tax Act 1961 which are couched more or less in the same language state that where any Central Act enacts that inc me tax shall be charged for any year at any rate or rates income tax at that rate or those rates shall be charged for that year in accordance with and subject to the provisions of the relevant Act in respect of the total income of the previous year or previous years as the case may be of every person. Now it is well settled by a series of judicial decisions that the liability to income tax arises by virtue of the charging section in the relevant Income tax Act and it arises not later than the close of the previous year even though the rate of tax for the year of assessment may be fixed after the close of the previous year and the assessment has necessarily to be made after the previous year. 414 The quality of chargeability of any income to tax is not dependent upon the passing of the Finance Act though its quantification may be governed by the provisions of the Finance Act in respect of any assessment year vide Wallace Brothers and Co. Ltd. vs Commissioner of Income tax. Messers Chatturam Horilram Ltd. vs Commissioner of Income tax and Ors. and Kalwa Devadattam & Ors. vs The Union of India & Ors. In the case of Kesoram Industries and Cotton Mills Ltd. (supra) Subba Rao J. (as he then was) summarised the legal position thus : To summarize: A debt is a present obligation to pay an ascertainable sum of money, whether the amount is payable in prasenti or in futuro: debitum in prsesenti, solvendum in futuro. But a Sum payable upon a contingency does not become a debt until the said contingency has happened. A liability to pay income tax is a present liability though it becomes payable after it is quantified in accordance with ascertainable data. There is a perfected debt at any rate on the last day of the accounting year and not a contingent liability. The rate is always easily ascertainable. If tile Finance Act is passe l it is the rate fixed by that Act; if the Finance Act has not yet been passed it is the rate proposed in Finance Bill pending before Parliament or the rate in force in the preceding year whichever is more favourable to the assessee. All the ingredients of a debt are present. It is a present liability of an ascertain able amount. It is thus clear that it the assessee had brought to the notice of the Department in the usual course the existence of incomes which were later on declared under section 68 they would have been taxed during the relevant assessment year. Hence merely because they are disclosed in a declaration filed under section 68, they cannot cease to be income not already charged for income tax. It is true that the Finance Act in question merely levied a fixed rate of tax in respect of all the income disclosed without allowing deductions exemptions and set off under the relevant income tax law yet its function was no more than that of a Finance Act passed annually even though it made certain alterations with regard to filing of declaration and computation of taxable income 415 It was however urged on behalf of the Department that the nature of the declaration which was dependent upon the volition of the declarant and the fact that the liability to tax the amount mentioned therein was contingent upon the willingness of the declarant to disclose the amount ought to make a difference. We do not think so because any such voluntary disclosure by an assessee even in the absence of section 68 would have exposed him to an assessment or reassessment as the case may be being made in respect of the sum disclosed as part of the income of the relevant assessment year and of course with the additional liability to payment of interest and levy of penalty and perhaps with the right to claim deductions if any admissible in the circumstances of the case and the benefit of other procedural rights. The voluntary character of the declaration cannot therefore alter the character of the tax. There is also no substance in the contention that in the absence of the allocation of the amount disclosed amongst different assessment years the tax payable under section 68 cannot be termed as a tax on income because such allocation would not achieve any additional purpose in the scheme of section 68 Irrespective of the other income which may have been determined in an ordinary proceeding under the relevant law of income tax a fixed rate of tax is payable under section 68(3) and hence the amount disclosed being treated as the income of any particular year would not make any difference regarding the quantum of tax. Nor is there any other purpose to be served by such allocation. Section 68 is in the nature of a package deal but the net result achieved is that the declarant is treated as having discharged all his liability in respect of the said income under the income tax law. There is one other circumstance which may be noticed here. The tax levied under section 68 can be only a tax on income. If we hold it otherwise it may become a tax on wealth itself. The basis of the liability in this case is the admission made by the declarant that the amount declared was his income earned in previous years but concealed from the knowledge of the Department. In these circumstances it cannot be said that the amount declared under section 68 is not income which was not taxable under the Indian Income tax Act 1922 or the Income tax Act 1961 as the case may be. The finding of the High Court that section 68 created a fresh charge is incompatible with the foundation of the very reassessment proceedings under section 17 of the Act. The basis of these proceedings is the information which the Wealth tax officer acquired 416 from the declaration filed by the assessee in this case that the assessee was in possession of unaccounted funds represented by the non genuine hundis which had progressively reached the level of Rs. 7,01,578 during the assessment year 1964 65 from the level of Rs. 4,57;465 in 1959 60 by gradual accumulation of income. But for this assumption in the absence of any other material reassessment under the Act would have been possible only in the last year in which the disclosure was made. That however is not the case here. The High Court in support of its view has relied on the decision of the Kerala High Court though not the reason given in support of that decision in C. K. Babu Naidu vs Wealth tax Officer. That decision has since been reversed in appeal by a Division Bench of that Court in C. K. Babu Naidu vs Wealth tax Officer, 'A ' Ward, Calicut & anr in which the Kerala High Court has held that the liability for tax arising under section 68 of the Finance Act was nothing other than the liability under the Income tax Act 1961 itself and accordingly has allowed the deduction of tax paid under section 68 as a debt owed on the valuation date. In Commissioner of Wealth Tax, Haryana, H.P. & Delhi III vs Girdhari Lal, Commissioner of Wealth tax vs B. K Sharma, Commissioner of Wealth tax, West Bengal III, Calcutta vs Bansidhar Poddar, D. C. Shah vs commissioner of Wealth tax Mysore and Shri Bhagwandas Jain vs Addl. Commissioner of Wealth tax, M. P., the High Courts of Delhi Allahabad Calcutta Karnataka and Madhya Pradesh have accepted the view that the tax paid under section 68 of the Finance Act should be treated as a debt owed for purposes of determining net wealth as denied in section 2(m) of the Act. The High Court of Bombay has also recalled the same conclusion in Bhagwandas Binani vs Commissioner of Wealth tax, Bombay City III but in doing so it observed that it appears to us that although it is not possible to say that the amount of income tax paid under section 68 of the Finance Act 1965 is income tax under the charging sec 417 tion 3 or section 4 of the I.T. Acts it must be regarded as income tax paid in lieu of such income tax and would be entitled to the same considerations as lavished by the Supreme Court on the ordinary charge of income tax. The High Court of Bombay appears to take the view as the High Court of Gujarat has done in the decision under appeal that a new liability is created by section 68 but it however would not have any adverse effect on the right of the assessee to claim the deduction. While we approve of the conclusion reached by the High Court of Bombay we feel that the said decision to the extent it attempts to follow the reason given by the Gujarat High Court to hold that the liability under section 68 is a fresh liability is not correct. The true position is that the amount declared has the liability to pay income tax imbedded in it on the valuation date but only the ascertainment of that liability is postponed to a future date. In the instant case its determination is allowed to he done in accordance with the provisions of section 68. Even though it may appear to be itself a complete code it is only a scheme which provides a method for the liquidation of an already existing income tax liability which was present on the relevant valuation date. The view does not in any way To counter to any observations made by this Court in Commissioner of Income Tax, Bombay City I vs Khatau Makanji Spinning and Weaving Co. Ltd. In that case this Court was concerned with the validity of a charge levied by the Finance Act 1951 in respect of dividends distributed in excess of the specified limit under clause (ii) of the proviso to Paragraph of Part I of the First Schedule to that Act as applied to the assessment year 1953 54 by the Finance Act 1953. This Court held that income tax was a tax on income of the previous year and it would not cover some thing which was not the income of the previous year or made fictionally so and according to the scheme of that provision it was impossible to say that the additional income tax was properly laid upon the total income because what was actually taxed was never a part of the total income of the previous year. This decision is clearly distinguishable from the present case where what is taxed is the income which was ordinarily liable to tax but which had not been included in the return of the assessee or which had escaped assessment or which was still to be assessed to income tax under the relevant Income tax Act. It was in fact a part of the total income though not assessed till the declaration was made. Merely because it is stated that the rate of tax charged on the 418 amount declared is sixty per cent or fifty seven per cent as the case may be it does not cease to be a part of the total income. This is not a case where what was not in fact income had been converted into income by section 68. For the same reason the Department cannot derive any support from the observations made by this Court in Madurai District Central Co operative Bank Ltd. vs Third Income tax officer, Madurai.(l) We are therefore of the view that the assessee was entitled to claim deduction of income tax payable on the amounts added to his total wealth under section 2(m) of the Act in the course of the reassessment proceedings. In the result these appeals are allowed the judgment of the High Court is set aside and the questions referred to it are answered in the affirmative and in favour of the assessee. The Department will pay the costs of the appellant assessee Hearing fee one set. P.B.R. Appeals allowed.

As part of a measure to mop up unaccounted money on which no income tax had been paid, an incentive scheme was prepared by the Government under which a person disclosing such income was required to pay a specified rate of tax without attracting the penal provisions of the Income Tax Act. Section 68 of the Finance Act, 1965 provided that a person making voluntary disclosure of his income in accordance with the provisions of the section would be charged income tax at a specified rate notwithstanding anything contained in the Income Tax Act. The assessee had a large sum of such unaccounted money in his possession. Without allocating the total sum amongst the different assessment years, he declared that he had a sum of Rs. 7 lakhs in his possession which was earned by him during the assessment years 1957 58 to 1964 65. Income Tax in respect of this income computed in accordance with section 68 of the Finance Act was paid by him. In the wealth tax returns filed by him in response to the notice issued by the Wealth Tax officer for re assessment consequent on the disclosure of his wealth the assessee claimed deductions of income tax paid under section 68 of the Finance Act. But the Wealth Tax officer disallowed the claim holding that since the assessee had not shown the liability to pay income tax in his balance sheets for the respective years the deductions claimed by him could not be allowed in any of the assessment years. The Appellate Assistant Commissioner dismissed the assessee 's appeal. The Tribunal, on the other hand, held that the liability constituted a "debt owed" because in truth and substance, it was a liability under the Income Tax Act, 1922 or 1961 and not a new liability created by the Finance Act, 1965. On reference the High Court held in favour of the Revenue on the ground that section 68 of the Finance Act enacted a new charge of tax on an ad hoc 403 basis on disclosed income and, therefore, it was not a "debt owed" which could be allowed as a deduction under the Wealth Tax Act. On behalf of the Revenue it was contended that since the tax paid by the assessee under the voluntary disclosure scheme was in discharge of a liability created for the first time by the Finance Act, 1965 it was not an allowable deduction under the Wealth Tax Act. Allowing the appeal, ^ HELD: The assessee was entitled to claim deduction of income tax paid on the amounts added to his total wealth under section 2 (m) of the Wealth Tax Act in the course of the assessment proceedings. [418 B] C 1. Merely because the amounts were disclosed in a declaration under section 68 of the Finance Act, they did not cease to be incomes not already charged to income tax. Although the Finance Act merely levied a fixed rate of tax in respect of all the income disclosed without allowing deductions, exemptions and such other allowances which are allowable under the Income Tax Acts, its function was no more than that of an annual Finance Act despite the fact that it made certain alterations in regard to the filing of declaration and computation of taxable income. [414 G H] 2. The nature of the declaration which was dependent on the volition of the declaring and the fact that the liability to tax the amount was contingent upon the willingness of the declaring to disclose the amount would not make a difference because such voluntary disclosure, even in the absence of section 68, would have exposed the assesseee to assessment or reassessment. The voluntary character of the declaration cannot alter the character of the tax. [415 A B] 3. The true position is that the amount declared has the liability to pay income tax embedded in it on the valuation date but only the ascertainment of that liability is postponed to a future date. [417 C] In the instant case its determination was allowed to be done in accordance with the provisions of section 68. Even though this section was a complete code in itself it was only a scheme which provided a method for the liquidation of an already existing income tax liability which was present on the relevant valuation date. [417 D] 4. Nor did the absence of allocation of the amount disclosed amongst different assessment years detract the tax from being called a tax on income because such allocation would not achieve any additional purpose in the scheme of section 68 This section is in the nature of a package deal. The net result achieved was that the declarant was treated as having discharged all his liability in respect of such income under the income tax law. [415E] 404 5. The finding of the High Court that section 68 created a fresh charge is incompatible with the foundation of the very reassessment proceedings under section 17 of the Wealth Tax Act. [415 H] 6. Moreover section 68, at more than one place stated that what was pay able was income tax which clearly showed that what was payable under the section was income tax. [412 B C] C.I.T. vs Khalau Makanji Spinning and Weaving Co. Ltd., Madurai District Central Cooperative Bank Ltd. vs Third I.T.O. , distinguished. C. K. Bahu Naidu vs Wealth Tax Officer, ; C. Ii T vs GirdhariLal, ; C.W.T. vs B.K Sharma, ; C.W.T. vs Bansidhar Poddar. ; D.C. Shah vs C.W.T., ; Bhagwandas Jain vs Addl. C.W.T. and Bhagwanidas Binani vs C.W.T., , approved.

Civil Appeal No. 2213 of 1978. From the Judgment and Order dated 31.1.1978 of the Delhi High Court in Civil Writ Petition No. 106 of 1978. V.M. Tarkunde, S.B. Wad, Mrs. J.S. Wad and Mrs. Tamali Wad for the Appellants. K.T.S. Tulsi, Solicitior General, T.C. Sharma and P. Parmeshwaran for the Respondents. Kirpal Singh and M.A. Krishna Moorthy for the Intervener. The Judgment of the Court was delivered by KASLIWAL, J. This appeal by the Ramjas Foundation, a society duly registered under the Societies Registration Act, 1960 and five others who are the Secretary and trustees of the Ramjas Foundation is directed against the order of the Delhi High Court dated January 31, 1978 dismissing the civil Writ Petition No.106 of 1978 in limine. On November 13, 1959, the Chief Commissioner Delhi issued a Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act ') Land measuring 34070 acres was notified as land likely to be acquired by the Government at the public expense for a public purpose, namely, the planned development of Delhi. The following land was excluded from the scope of the notification: (a) Government land and evacues land; (b) the land already notified, either under Section 6 of the Land Acquisition Act for any Government Scheme; (c) the land already notified either under Section 4 o. under Section 6 of the Land Acquisition Act, for House Building Cooperative Societies mentioned in annexure lII; (d) the land under graveyards, tombs, shrines and the land attached to religious institutions and Wakf property. The aforesaid land measuring 34070 acres included land measuring about 872 bighas, 9 biswas situated in Chowkri Mubarikabad and measuring about 730 bighas situated in Chowkri Sadhurakhurd, belonging to the Ramjas Foundation. The present appeal relates to the land situated in Chowkri Sadhurakhurd. The Ramjas Foundation on December 11, 1959 filed objections under Section 5A of the Act for the entire land situated in Mubarikabad as well as Sadhurakhurd. The Lt. Governor of Delhi subsequently issued notifications under Section 6 of the Act on 15.4.1968, 27.4.1968, 15.5.1968, 19.8.1968, 14.1.1969 and 18.1.1969. The Lt. Governor also issued notices under Sections 9 and 10 of the Act on December 27, 1972 for Sadhurakhurd land. As regards the land in Mubarikabad notification under Section 6 of the Act was issued on February 28, 1968. Ramjas Foundation filed a writ petition in may, 1968 in the Delhi High Court challenging the action of the Government in acquiring their lands situated in Mubarikabad. In the said writ petition Sachar, J. (as he then was) who heard the petition was of the view that the matter ought to be tried in a suit instead of writ proceedings. He, therefore, by his order dated August 10, 1971 permitted the Ramjas Foundation to withdraw the petition with liberty to agitate the matter in a suit and as such the writ petition was dismissed as withdrawn. The Ramjas Foundation then filed a suit in the Delhi High Court on November 8, 1971 for quashing the notifications issued under Sections 4 and 6 of the Act in respect of the land situated in Mubarikabad. The suit was dismissed by Awadh Behari Rohtagi, J. of the Delhi High Court by order dated 21.3.1977 reported in AIR 1977 Delhi 261. Learned Counsel for the appellants brought to our notice that Letters Patent Appeal before the Division Bench of the High Court is pending against the aforesaid Judgment of the Learned Single Judge. So far as the land situated in Sadhurakhurd with which we are concerned in the present appeal a Writ Petition No. 213 of 1973 was filed in the High Court and the same was dismissed as withdrawn on 30th March, 1977. Thereafter another Writ Petition No. 106 of 1978 was filed challenging the notifications issued under Sections 4, 6, 9 and 10 of the Act and the same was dismissed by the High Court by the impugned order dated January 31, 1978 in limine as already mentioned above. We have heard Mr. Tarkunde, Learned Senior Advocate on behalf of the appellants and Mr. Tulsi, Learned Additional Solicitor General on behalf of the respondents. Learned counsel for the appellants contended that the appellants had submitted their objections under Section 5A of the Act on 11.12.1959 but the same were rejected without affording any opportunity of personal hearing. It was submitted that it was mandatory on the part of the respondents to have given an opportunity of personal hearing specially when the same was desired and a denial of such opportunity of personal hearing invalidates the notifications issued under Sections 6 and 9 of the Act. Reliance in respect of the above contention is placed on Farid Ahmed Abdul Samad & Anr. vs Municipal Corporation of the City of Ahmedabad & Anr., [19771 1 SCR 71. It was also contended on behalf of the appellants that the notification issued under Section 4 of the Act itself excludes the land of wakf property. It has thus been contended that so far as the land in question is concerned the same being also a wakf property as such ought to have been exempted under the notification itself. It was submitted that Ramjas Foundation is an educational charitable society which is running several schools and post graduate college in Delhi and several educational institutions are being run on the alleged acquired land itself. As an alternative argument it was submitted that in case this Hon 'ble Court takes the view that wakf property mentioned in the alleged notification does not include the educational and charitable institutions run by Hindus or non Muslims then such notification is void for violation of article 14 of the Constitution. As regards the objection of the violation of the mandatory provisions of Section 5A of the Act in. not affording an opportunity of personal hearing while deciding such objections, we granted an opportunity to the Learned Additional Solicitor General to place material after examining the original record. We granted, this opportunity to the respondents on account of the reason that the writ petition had been dismissed by the High Court in limine without issuing notice to the respondents and as such the respondents had not been given any opportunity before the High Court to place any material to refute the allegations made by the appellants in this regard. The Additional Solicitor General during the course of the hearing of the matter placed an order of the Land Acquisition Collector, Delhi dated 23.2.1968 which has been taken on record and for the purposes of identification has been marked as Annexure 'X '. A copy of the said Annexure 'X ' was also given to the Learned counsel for the appellants. A perusal of the aforesaid order dated 22.3.1968 clearly shows that the Ramjas Foundation Society was represented through Sh. Ratan Lal Gupta, Advocate who was given a personal hearing. From a perusal of the aforesaid document Annexure 'X ' dated 23.2.1968 it is clear that full opportunity of hearing through counsel was afforded to the Ramjas Foundation. It has been further mentioned in this order that the Ramjas Foundation Society was also allowed to file fresh objections if so desired, but Sh. Ratan Lal Gupta, Learned Advocate for the Petitioner society declined and stated that there was nothing more to add in the previous objection petition. After bringing the said document Annexure 'X ' to the notice of the Learned counsel for the appellants, no satisfactory explanation or argument came forward on behalf of the appellants. The conduct of the appellants in raising the plea that no opportunity of personal hearing was given to the appellants in respect of the objections filed under Section 5A of the Act was totally baseless and factually incorrect and such conduct is reprehensible. lt is well settled that a person invoking an equitable extraordinary jurisdiction of the Court under article 226 of the Constitution is required to come with clean hands and should not conceal the material facts. The objection regarding not affording an opportunity of personal hearing in respect of objections filed under Section 5A of the Act was one of the main planks of the grounds raised in the writ petition as well as in the Special Leave Petition filed before this Court and ought we know if such ground had not been taken this Court would have entertained this appeal or not. The appellants have taken the advantage of obtaining the stay order also from this Court which is continuing for the last 14 years as the Special Leave Petition was filed in 1978 itself. It may be further noted that a common objection petition under Section 5A of the Act in respect of both the lands situated in Mubarikabad as well as in Sadhurakhurd was filed on 11.12.1959 through Sh. Ratan lal Gupta, Advocate. The said objections were heard in the presence of Shri Ratan Lal Gupta, Advocate and disposed of by one common order Annexure 'X ' and we cannot believe an ipse dixit explanation made orally during the course of arguments on behalf of the appellants that they had no knowledge of any personal hearing being given to Shri Ratan Lal Gupta, Advocate. It is also important to note that no such objection was taken in respect of land in Mubarikabad. Another ground on which the present appeal has been contested is the ground of delay, laches and acquiescence in filing the writ petition challenging the acquisition proceedings. As already mentioned above a common notification was issued under Section 4 of the Act for an area of 34070 acres of land needed for planned development of Delhi. Between 1959 and 1961, about, six thousand objections were filed under Section 5A of the Act. The objections were overruled. On March 18, 1966, the declaration under Section 6 of the Act was published in respect of a portion of the area. Thereafter, in 1970 notices were issued under Section 9(1) of the Act and some of the persons who had received such notices challenged the validity of acquisition proceedings by filing writ petitions before the High Court of Delhi. The High Court negatived all the contentions raised in those cases and dismissed the writ petitions. Thereafter appeals by grant of special leave against the judgment of the Delhi High Court as well as writ petitions filed directly under article 32 of the Constitution were heard and disposed of by this Court by a common Judgment reported in Aflatoon & Ors. vs Lt. Governor Delhi & Ors., ; In the aforesaid case a Constitution Bench of this Court held that in the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with regard to the acquisition of the whole area. Unlike in the case of an acquisition of a small area, it might be practically difficult to specify the particular purpose for which each and every item of land comprised in the area is needed. It was further held in the above case that about six thousand objections were filed under Section 5A by persons interested in the property. Several writ petitions were also filed in 1966 and 1967 challenging the validity of the acquisition proceedings. The Government had necessarily to wait for the disposal of the objections and petitions before proceeding further in the matter. The High Court was of the view that there was no inordinate delay on the part of the Government in completing the acquisition proceedings. The conclusion of the High Court was held to be correct. It was also held in the above case that the writ petitions were liable to be dismissed on the grounds of laches and delay on the part of the petitioners. In the above case this Court had found that the appellants of that case had not moved in the matter even after the declaration under Section 6 was published in 1966. They approached the High Court with their writ petitions only in 1970 when the notices under Section 9 were issued to them. This Court then observed as under: "There was apparently no reason why the writ petitions should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notification under Section 4 is sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when tile notification was published would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners". The delay and laches in the case before us are even worse than those in the above cited Aflatoon 's case. The appellants had initially filed a writ petition No. 213/73 challenging the notification dated 13.11.1959 under Section 4 of the Act and notification dated 27.4.1968 under Section 6 of the Act with respect to 245 bighas and 1 biswas of land situated in the revenue estate of Sadhurakhurd and the notices dated 27.12.1972 under Sections 9 and 10 of the Act issued by the Land Acquisition Collector, Delhi with respect to Khasra No. 1040/353 (12 bighas and 8 biswas). On 30.3.1977 Shri M.C. Gupta, Learned counsel for the Ramjas Foundation stated that he had instructions from his clients to state that they did not want to press the petition and wish to withdraw it. The statement of Sh. Gupta had been separately recorded. The Court, in these circumstances permitted to withdraw the petition and dismissed the same as withdrawn. lt is important to note that in the statement Sh. M.C.Gupta, Learned counsel for the petitioners stated as under: "I may be permitted to withdraw this petition in view of the Judgment delivered by Hon. Mr. Justice Awadh Behari in Suit 451 of 1971 decided on 21st March, 1977, between the parties, wherein the contentions urged were precisely the same as urged in this petition, my clients reserved the opportunity to file a fresh suit if so necessitated by the circumstances in future. " It may be noted that the reference with regard to suit No. 451 of 1971 decided on 21st March, 1977 is in respect of the land of petitioners situated in Mubarikabad. It is surprising that though the opportunity was sought for filing a fresh suit, the appellants again filed a writ petition No. 106 of 1978 in the High Court on 7.1.1978 which was ultimately dismissed by the High Court in limine on 31st January, 1978 by a Division Bench comprising of T.P.S. Chawla and Awadh Behari, JJ. In this writ petition No. 106 of 1978 the appellants conveniently omitted to mention that the permission to withdraw the petition No. 213 of 1973 was granted on the statement of Sh. M.C. Gupta that his clients reserved the liberty to file a fresh suit and not writ. Thus no liberty was sought or given for filing a fresh writ petition. In any case there were no fresh ground or circumstances available to the appellants to file a fresh writ petition No. 106 of 1978 on 7.1.1978 on identical grounds when the earlier writ petition No. 213 of 1973 had been dismissed as withdrawn on 30.3.1977. Nothing had happened between 30.3.1977 and 7.1.1978 for giving a fresh cause of action to the appellants to file the writ petition No. 106 of 1978. Awadh Behari, J. had dismissed the suit No. 451 of 1971 by order dated 21.3.1977 in regard to the lands in Mubarikabad and he was also one of the Judges of the Division Bench who passed the impugned order dated January 31, 1978 dismissing the writ petition in limine as he was fully aware of the entire background of this litigation. The appellants are themselves responsible for creating confusion in initiating separate proceedings at different period of time in respect of the lands situated in Mubarikabad and Sadhurakhurd though challenge to the acquisition proceedings was on common grounds. Learned counsel for the appellants was unable to satisfy in respect of such conduct of hide and seek on the part of the appellants. In case, as sought to be explained by Mr. Tarkunde, Learned Senior Counsel for the appellants, the appellants were depending on the result of the civil suit filed in respect of the lands situated in Mubarikabad there was no justification for filing the writ petition No. 213 of 1973 in respect of the land situated in Sadhurakhurd as the suit was not decided in 1973 but was in fact dismissed on 21.3.1977. We find no justification for filing the writ petition in respect of the land situated in Sadhurakhurd in 1973 and subsequently withdrawing the writ petition on 30th March, 1977 reserving the liberty to file a fresh suit but thereafter again filing the writ petition on 7.1.1978 instead of suit. Independently, of all the circumstances mentioned above, we shall now consider the question of delay and laches in filing the writ petition No. 106 of 1978 and the earlier writ petition No. 213 of 1973 relating to lands in Sadhurakhurd. Mr. Tarkunde, Learned Senior Counsel vehemently contended that there is no limitation prescribed for filing the writ petition and the question of delay and laches has to be examined independently in the facts and circumstances of each case. He has argued that the appellants are continuing in possession uptil date and though challenge has been made to the validity of notifications issued under Section 4 in 1959, Section 6 in 1968 and 1969 and Section 9 and 10 in 19722, there is no delay, since no award has been passed so far and no loss has occasioned to the respondents due to lapse of time. It has been submitted that there was no change of circumstances during the intervening period and the delay had been fully explained on the aforesaid grounds. It has also been argued that notifications under Sections 9 and 10 were issued in 1972 and soon there after the appellants came forward with a writ petition No. 213 of 1973 challenging the notifications issued under Sections 4, 6, 9 and 10 of the Act. We find no force at all in the above contentions. It is an admitted fact that notification under Section 4 of the Act was issued as early as 1959 and all the notifications under Section 6 of the Act in relation to the land of the appellants in Sadhurakhurd were issued in 1968 and 1969. The challenge to the acquisition proceedings was mainly based on the ground that in the notification dated 13.11.1959 issued under Section 4 of the Act the lands of wakf property were excluded and the lands of the appellants being also used for educational and charitable purposes the same were also liable to be excluded. At a later stage a ground was also taken that if wakf property in the aforesaid notification under Section 4 of the Act meant only wakf properties of the Mohammedans, then such notification was discriminatory and violative under article 14 of the (Constitution as there was no reasonable ground to discriminate such properties of Hindus or non Muslims also meant for charitable purposes. So far as the notifications under Section 6 of the Act are concerned the same were attacked on the ground that no opportunity of personal hearing was given to hear the objections filed under Section 5A of the Act. Thus it is abundantly clear that the challenge was in respect of notifications under Sections 4 and 6 of the Act alone and though in the prayer clause relief had been sought to quash the notification under Sections 9 and 10 of the Act also which were issued in 1972 but no ground whatsoever has been pleaded in the writ petition nor raised before us as to how the notifications under Sections 9 and 10 had any concern for explaining the delay in respect of the challenge to notifications under Sections 4 and 6 of the Act. It is worthwhile to note that according to the appellants own showing the notices under Sections 9 and 10 issued to the appellants in 1972 were in respect of the land being Khasra No. 1040/353 which related to 12 bighas and 8 biswas only. The challenge on the other hand in the writ petition is in respect of notifications under Sections 4 and 6 covering the entire land measuring about 730 bighas situate in village Sadhurakhurd. We find no justification at all in explaining the delay on the ground that no award has been passed nor the appellants have been dispossessed so far. This cannot be an explanation for not challenging the notifications under Sections 4 and 6 of the 9Act and in the present case the appellants had themselves sought stay from this Court as early as 15.11.1978 for not making and declaring the award and not to dispossess the appellants. Thus we find no justification at all for the delay in not challenging the notification issued under Section 4 on 13.11.1959 till 1973. Even notifications under Section 6 of the Act were issued in 1968 and 1969 but not challenged till 1973. As already mentioned above in Aflatoon 's case (supra) a Constitution Bench of this Court has clearly held that even after the declaration under Section 6 of the Act published in 1966, the appellants had approached with their writ petitions in 1970 when the notices under Section 9 were issued to them the writ petitions were liable to be dismissed on the grounds of laches and delay. Mr. Tarkunde, learned senior counsel made strenuous effort to distinguish the aforesaid case on the ground that in the aforesaid case the Court was influenced with the fact that the petitioners had sat on the fence and allowed the Government to complete (emphasis added) the acquisition proceedings. Much emphasis has been laid on the word 'to complete ' the acquisition proceedings. We find no force in this submission as the facts narrated in the above case clearly shows that the petitioners in those cases had filed writ petitions in the High Court in 1970 and in the Supreme Court in 1972 after the issuance of notices under Sections 4, 6 and 9 of the Act. The use of the word complete ' was not of much significance and the main reasoning of the case was that grounds to attack the notification under Sections 4 and 6 of the Act were available at the time of publication of such notifications. In the facts and circumstances of the case before us the appellants were also sitting on the fence and did not take any steps of challenging the notification under Sections 4 and 6 of the Act till 1973 though the grounds now sought to be urged were available to the appellants as soon as such notifications were issued. Thus viewing the matter from any angle we are clearly of the view that the writ petition was also liable to be dismissed on the ground of laches and delay on the part of the appellants apart from other grounds already dealt by us. In the face of the aforesaid view taken by us, it is not necessary at all to go on other questions raised in the case. We decline to express any opinion on any questions of law raised in the appeal. In the result we dismiss this appeal with costs. In view of the dismissal of the appeal itself all interim orders stand vacated automatically. G.N. Appeal dismissed.

Notification under Section 4 of the Land Acquisition Act, 1894 was issued in respect of certain lands including the lands belonging to the appellant foundation situated at two different places. The appellant Foundation filed objections. Subsequently notifications under Sections 6 and Notices under Sections 9 and 10 were also issued. The appellant Foundation challenged the notifications in respect of the land situated at one of the two places, by way of a Writ Petition before the High Court and the same was dismissed as withdrawn with liberty to the petitioner to agitate the matter in a suit. Thereupon, the appellant Foundation filed a suit and the same was dismissed by a Single Judge of the High Court. The Letters Patent Appeal filed against that decision is pending. In respect of the land situated at the other place, a Writ Petition was filed by the appellant before the High Court, which came to be dismissed as withdrawn. Thereafter, another Writ Petition was filed by the appellant Foundation before the High Court challenging the notifications. The High Court having dismissed the Writ Petition, the appellant Foundation preferred the present appeal. On behalf of the appellants, it was contended that they filed their objections under Section 5A of the Act, but the same were rejected without affording any opportunity of personal hearing, and the denial of such opportunity invalidated the notifications; and that the land of the appellants being wakf property it ought to have been excluded on the basis of the notification under Section 4 of the Act. Alternatively it was contended that the appellant has been running several educational institutions on the very land and that if the exemption for wakf property is not applicable to such educational and charitable institutions run by Hindus or non Muslims, then such a notification would be violative of Article 14 of the Constitution. The Respondents contested the appeal on grounds of delay, laches and acquiescence in fling the Writ Petition challenging the acquisition proceedings. It was also stated that the appellants were given opportunity of personal hearing. Dismissing the appeal, this Court, HELD: 1. The conduct of the appellants in raising the plea that no opportunity of personal hearing was given to the appellants in respect of the objections filed under Section 5A of the Land Acquisition Act, 1894 was totally baseless and factually incorrect and such conduct is reprehensible. It is well settled that a person invoking an equitable extraordinary jurisdiction of the Court under article 226 of the Constitution is required to come with clean hands and should not conceal the material facts. [431 F, G] Farid Ahmed Abdul Samad & Anr. vs Municipal Corporation of the City of Ahmedabad & Anr., [1977] 1 SCR 71, referred to. 2. The challenge to the acquisition proceedings was mainly based on the ground that in the notification dated 13.11.1959 issued under Section 4 of the Act the lands of wakf property were excluded and the lands of the appellants being also used for educational and charitable purposes the same were also liable to be excluded. At a later stage a ground was also taken that if wakf property in the aforesaid notification under Section 4 of the Act meant only wakf properties of the Mohammedans, then such notification was discriminatory and violative under article 14 of the Constitution as there was no reasonable ground to discriminate such properties of Hindus or non Muslims meant for charitable purposes. Thus the challenge was in respect of notifications under Sections 4 and 6 of the Act alone and though in the prayer clause relief has been sought to quash the notification under Sections 9 and 10 of the Act also which were issued in 1972, no ground whatsoever has been pleaded in the writ petition nor raised in the present appeal as to how the notifications under Sections 9 and 10 had any concern for explaining the delay in respect of the Challenge to notification under Sections 4 and 6 of the Act, Admittedly the notices under sections 9 and 10 issued appellants in 1972 were in respect of a portion of the land. The challenge on the other Land in the writ petition is in respect of notifications under Sections 4 and 6 covering the entire land. There is no justification at all in explaining the delay on the ground that no award has been passed nor the appellants have been dispossessed so far. This cannot be an explanation for not challenging the notifications under Sections 4 and 6 of the Act and in the present case the appellants had themselves sought stay from this Court as early as 15.11.1978 for not making and declaring the award and not to dispossess the appellants. Thus there is no justification at all for the delay in not challenging the notification issued under Section 4 on 13.11.1959 till 1973. Even notifications under Section 6 of the Act were issued in 1968 and 1969 but not challenged till 1973. [435 H; 436 A G] Aflatoon & Ors. vs Lt. Governor Delhi & Ors., [2975] 1 SCR 802, relied on.

15 of 1959, 14 of 1960 and 21 of 1959. Petitions under article 32 of the Constitution of India for enforcement of Fundamental Rights. Frank Anthony and J. B. Dadachanji, for the petitioners (In Petns. Nos. 15 and 21 of 1959). 612 H. J. Umrigar, O. P. Rana and A. G. Ratnaparkhi, for the petitioners (In Petn. No. 14 of 1960). L. K. Jha and section P. Varma, for the respondent (In Petn. No. 15 of 1959). C. K. Daphtary, Solicitor General of India, M. Adhikari, Advocate General for the State of Madhya Pradesh and I. N. Shroff, for the respondent (In Petn. No. 14 of 1960). H. N. Sanyal, Additional Solicitor General of India and C. P. Lal, for the respondent (In Petn. No. 21 of 1959). November 23. The Judgment of the Court was delivered by section K. DAS, J. These three writ petitions have been heard together, as they raise common questions of law and fact. They relate, however, to three different enactments made by the Legislatures of three different States Bihar in writ petition No. 15, Uttar Pradesh in writ petition No. 21, and Madhya Pradesh in writ petition No. 14. The petitioners in the several petitions have challenged the 'validity of a number of provisions of the enactments in question and, in some cases, also of the rules made thereunder. The impugned provisions are similar in nature, but are not exactly the same. Therefore, we shall first state in general terms the case of the petitioners and then consider in detail and separately the impugned provisions in each case. But before we do so, it is necessary to refer to some background history of the legislation under consideration in these cases. In the year 1958 this Court had to consider the validity of certain provisions of three Acts: (1) The Bihar Preservation and Improvement of Animals Act, (Bihar Act II of 1956); (2) the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 (U. P. Act 1 of 1956); and (3) the Central Provinces and Berar Animal Preservation Act, 1949 (C. P. and Berar Act LII of 1949). The Bihar Act put a total ban on the slaughter of all 613 categories of animals of the species of bovine cattle. The U. P. Act put a total ban on the slaughter of cows and her progeny which included bulls, bullocks, heifers and calves. The C. P. and Berar Act placed a total ban on the slaughter of cows, male or female calves of cows, bulls, bullocks, and heifers, and the slaughter of buffaloes (male or female, adults or calves) was permitted only under a certificate granted by the proper authorities. These three Acts were enacted in pursuance of the directive principle of State policy contained in article 48 of the Constitution. The petitioners who challenged the various provisions of the aforesaid Acts in 1958 were engaged in the butcher 's trade and its subsidiary undertakings; they challenged the constitutional validity of the Acts on the ground that they infringed their fundamental rights under articles 14, 19(1)(f) and (g) of the Constitution. In the decision which this Court gave in Mohd. Hanif Quareshi vs The State, of Bihar (1), it held (i) that a total ban on the slaughter of cows of all ages and calves of cows and of she buffaloes, male or female, was quite reasonable and valid; (ii) that a total ban on the slaughter of she buffaloes or breeding bulls, or working bullocks (cattle as well as buffaloes) so long as they were capable of being used as milch or draught cattle was also reasonable and valid; and (iii) that a total ban on slaughter of she buffaloes, bulls and bullocks (cattle or buffalo) after they ceased to be capable of yielding milk or of breeding or working as draught animals was not in the interests of the general public and was invalid. In the result this Court directed the respondent States not to enforce their respective Acts in so far as they were declared void by it. This led to some amending or new legislation, and we are concerned in these three cases with the provisions of these amending or new Acts and the rules made thereunder. In Bihar (Writ Petition No. 15 of 1959) the impugned Act is called the Bihar Preservation and Improvement of Animals (1) ; 78 614 (Amendment) Act, 1959 which received the assent of the Governor on January 13, 1959. in Uttar Pradesh (Writ Petition No. 21 of 1959) the impugned Act is called the Uttar Pradesh Prevention of Cow Slaughter (Amendment) Act, 1958 and in Madhya Pradesh (Writ Petition No ' 14 of 1960) a new Act was passed called the Madhya Pradesh Agricultural Cattle Preservation Act, 1959 (Act 18 of 1959) which received the assent of the President on July 24, 1959 and came into force on January 15, 1960. The rules made there under are called the Madhya Pradesh Agricultural Cattle Preservation Rules, 1959. The general case of the petitioners, who are several in number in each of the three cases, is that they are citizens of India and carry on their profession and trade of butchers; they allege that the various provisions of the impugned legislation infringe their fundamental rights in that they, for all practical purposes, have put a total ban on the slaughter of she buffaloes, bulls or bullocks, even after such animals have ceased to be useful, and have virtually put an end to their profession and trade. It is pointed out that the age up to which the animals referred to above cannot be slaughtered (20 or 25 years) has been put so high that the practical effect is that no animals can be slaughtered, and the amending or new legislation has put in other restrictions so arbitrary and unreasonable in nature that in effect they amount to a prohibition or destruction of the petitioner 's right to carry on their trade and profession. The following allegations quoted from one of the petitions (Writ Petition No. 15 of 1959) give a general idea of the nature of the case which the petitioners have put forward: "That there is good professional authority for the view that even in countries where animal husbandry is organised on a highly progressive and scientific basis, cattle seldom live beyond 15 or 16 years. That there is also good authority to the effect that even pedigree breeding bulls are usually discarded at the age of 12 or 14 years. , That in India bulls and bullocks and she buffaloes rarely live even up to the age of 15 years; draught bullocks begin to age after eight years, 615 That the raising of the age limit from 15 to 20 years is arbitrary, unreasonable and against the general public interests and is repugnant to and infringes the, fundamental rights of the, petitioners under Article 19 (1)(f) and (g) of the Constitution. That section 3 of the amending Act is a mala fide, colourable exercise of power, repugnant to the fundamental rights of the petitioners under Article 19 (1)(f) and (g). That this arbitrary raising of the age limit will be against the public interests For the following among ' other reasons: (i) That there will, in fact, be no bulls or bullocks or she buffaloes available for slaughter as few, if any, of such animals survive in India up to the age of 15 years; (ii) that the profession, trade and occupation of millions of Muslims will be permanently and irreparably injured; (iii) that millions of members of the minority communities such as Christians, Scheduled Castes, Scheduled Tribes and Muslims, for whom cattle beef is a staple item of their diet, will be deprived of this diet; (iv) that the menace of the rapidly increasing uneconomic cattle population in such matters as the destruction of crops, being a public nuisance, will be accentuated by this arbitrary age limit, and in effect will ensure that bulls and bullocks cannot be slaughtered; (v) that the menace of the rapidly increasing population of uneconomic cattle to the fodder and other animal food resources of the country will be accentuated. (vi) that the competition between the rapidly increasing cattle population, a large percentage I of which is uneconomic and useless, add the human population for available land will be accentuated; (vii) that this piece of legislation will ensure the steady increase of useless bulls and bullocks and must react disastrously against any attempt to improve milk production, bullock power or animal husbandry generally." 616 Similar allegations have been made in the other two petitions also. The correctness of these allegations has been con. tested on behalf of the respondent States, which through some of their officers have filed affidavits in reply. We shall presently examine at greater length the averments made in these affidavits, but we may indicate here in broad outline what their general effect is. In Bihar the age below which the slaughter of she buffaloes, bulls and bullocks is prohibited is 25 years. The respondent State has taken the plea that the usefulness or longevity of live stock for breeding and other purposes depends to a very great extent on (a) better animal husbandry facilities like feeding and management and (b) control of animal diseases, and as these facilities are now available in a greater measure, the legislature came to the conclusion that a bull or bullock or a she buffalo below 25 years of age continues to remain useful; if a bull, bullock or shebuffalo is permanently incapacitated below that age the impugned provision permits its slaughter and therefore the legislation which is challenged conforms to the decision of this Court and does not violate any fundamental right. In Uttar Pradesh the age is 20 years as respects bulls or bullocks, with a further restriction to be referred to later. The reply of the res pondent State is that bulls or bullocks do not become unfit at the age of 12 or 14 years as alleged by the petitioners; on the contrary, they continue to be useful and at no time they become entirely useless. It is then stated in the affidavit: "As a matter of fact, the age up to which the animals can live and are serviceable depends upon the care and attention they receive and the quality of the grass on which they are grazed. . . . . .According to a high authority the average age of an ox under favourable conditions would be between 15 to 20 years. Even under conditions prevailing in Uttar Pradesh, bulls can live upto 20 years or more as would appear from an analysis of a survey report of the animal husbandry department. " 617 On these averments the respondent State contends that the legislation is valid. In Madhya Pradesh also the age is 20 years. The Under Secretary to the( State Government in the Agricultural Department ' has made the reply affidavit in which it has been stated inter alia that conditions in Madhya Pradesh are different from conditions in other States. The affidavit then states: "The State of Madhya Pradesh has a total area of 107,589,000 acres, out of which total cropped area is 43,572,000 acres. Forest area is 33,443,000 acres, area not available for cultivation is 11,555,000 acres, uncultivated land is 18,405,000 acres and fallow land is 5,834,000 acres. It will thus be seen that this State has a large forest area and plenty of grass land for pasturage. As the forests supply the greater part of the fuel needs of the human population, the dung of animals is largely available as manure. The legislature considered that bulls, bullocks and buffaloes are useful in this State till they are well past twenty years of age and that they should not be slaughtered till they are past that age and are also unfit for work or breeding. The problem of animals dying of slow starvation or of worthless animals depriving useful animals of fodder needs no consideration in this State. The agricultural community in the State benefits by the existence of animals as long as they are useful. " There are also further averments as to the shortage of breeding bulls, working bullocks and she buffaloes in Madhya Pradesh. On these averments the contention of the respondent State is that the cattle in that State are useful up to the age of 20 years. We have indicated above in general terms the case of the petitioners and the reply which the respondent States have given. We proceed now to a detailed consideration of the impugned legislation in each case. (1) We take up first the Bihar Preservation and Improvement of Animals (Amendment) Act, 1959 and the rules made under the main Act of 1955. Section 3 of the Act as amended reads: "section 3.

In Mohd. Hanif Quareshi vs The State of Bihar the Supreme Court held that a total ban on the slaughter of bulls, bullocks and she buffaloes after they had ceased to be useful was not in the interests of the general public and was invalid. Thereafter, the Bihar Legislature passed the Bihar Preservation and Improvement of Animals (Amendment) Act, 1958, the Uttar Pradesh Legislature passed the U. P. Prevention of Cow Slaughter (Amendment) Act, 1958 and the Madhya Pradesh Legislature passed a new Act, the M. P. Agricultural Cattle Preservation Act, 1959. Section 3 of the Bihar Act prohibited the slaughter of a bull, bullock or she buffalo except when it was over 25 years of age and had become useless. Rule 3 of the Bihar Preservation and Improvement of Animals Rules, 1960 prescribed that the certificate for slaughtering an animal could be granted only with the concurrence of the Veterinary Officer and the Chairman or Chief Officer of a District Board, Municipality etc., and if the two differed, then according to the decision of the Sub Divisional Animal Husbandary Officer. Section 3 of the U. P. Act permitted the slaughter of a bull or bullock only if it was over 20 years of age and was permanently unfit. It further provided that the animal could not be slaughtered within 20 days of the grant of 'a certificate that it was fit to be slaughtered and gave a right of appeal to any person aggrieved by the order granting the certificate. Section 4(1)(b) of the Madhya Pradesh Act provided that no bull, bullock or buffallo could be slaughtered except upon a certificate issued by the competent authority and section 4(2)(a) provided that no certificate could be issued unless the animal was over 20 years of age and was unfit for work or breeding. Section 4(3) gave a right of appeal to any person aggrieved by the order of the competent authority. Section 5 provided that no animal 611 shall be slaughtered within 10 days of the date of the issue of the certificate and where an appeal was preferred against the grant of the certificate, till the time such appeal was disposed of. The petitioners, who carried on the profession and trade of butchers, contended that the various provisions of the three Acts set out above infringed their fundamental rights by practically putting a total ban on the slaughter of bulls, bullocks and she buffaloes even after the animal had ceased to be useful and thus virtually put an end to their profession and trade. Held, (i) that the ban on the slaughter of bulls, bullocks and she buffaloes below the age of 20 or 25 years was not a reasonable restriction in the interests of the general public and was void. A bull, bullock or buffalo did not remain useful after 15 years, and whatever little use it may have then was greatly offset by the economic disadvantages of feeding and maintaining unserviceable cattle. The additional condition that the animal must, apart from being above 20 or 25 years of age, also be unfit was a further unreasonable restriction. Section 3 of the Bihar Act, section 3 of the U. P. Act and section 4(2)(a) of the M. P. Act were invalid. (ii) Rule 3 of the Bihar Rules was bad as it imposed dis proportionate restrictions on the rights of the petitioners. The procedure involved such expenditure of money and time as made the obtaining of the certificate not worthwhile. (iii) The provisions in the Uttar Pradesh and Madhya Pradesh Acts providing that the animal shall not be slaughtered within 20 and10 days respectively of the issue of the certificate and that any person aggrieved by the order of the competent authority, may appeal against it, were likely to hold up the slaughter of the animal for a long time and practically put a total ban on slaughter of bulls, bullocks and buffaloes even after they had ceased to be useful. These provisions imposed unreasonable restrictions on the fundamental rights of the petitioners and were void. Mohd. Hanif Quareshi vs The State of Bihar, [1959] S.C.R. 629, State of Madras vs V. G. Row, ; and The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga, , referred to.

: Criminal Appeal No. 67 of 1991. From the Judgement and Order dated 27.11.1987 of the Delhi High Court in Crl. W. No. 527 of 1987. N.N. Gupta and Rajiv Dutta for the Appellant. J.D. Jain, Maninder Singh and Ms. Sushma Suri for the Respondents. The Judgement of the Court was delivered by K. JAYACHANDRA REDDY, J. This appeal, pursuant to the special leave granted, is directed against the order of the High Court of Delhi dismissing the writ petition filed by the appellant summarily. The appellant was serving as a Jawan in the Indian Army. On 17th September, 1985, he applied for leave and it was granted. He was going to his home town, a village in Rajasthan. He purchased 11 bottles of sealed rum and one bottle of brandy from his Unit Canteen as he required the same to celebrate the marriage of one of his close relations at his home town. Admittedly, the appellant was entitled to carry 4 bottles of rum and one bottle of brandy as per the Unit Regulations/leave certificate when he was proceeding on leave. According to the appellant, the remaining 7 bottles of rum he was able to purchase from the Unit Canteen over and above his entitlement on the orders of its Company Commander and Commanding Officer on compassionate grounds and that there was a written order to that effect which was retained by the Salesman of the Unit Canteen at the time of delivery of the extra 7 bottles of rum. Enroute to his home 679 town he had to pass through Surendra Nagar which was under prohibition. The local Civil Police at Surendra Nagar intercepted him and confiscated the bottles of liquor and handed over the appellant alongwith the liquor bottles to the City Police Station, Surendra Nagar. The City Police in turn handed over him to his Unit authorities for action. The 6th respondent, the Officer Commanding, 98 Field Regiment, ordered a summary court martial during which the witnesses including the Civil, Police Officer of Surendra Nagar were examined. Ultimately the summary court martial sentenced the appellant to three months ' R.I. and dismissed him from service with effect from 9th October, 1985 by which time the appellant had already put in 10 years of service. His plea throughout has been that he had purchased the liquor for the marriage of his brother in law on the basis of the permit issued to him and the chits issued by his superiors enabling him to draw the extra 7 bottles of rum and that he had no other bad intention in carrying the liquor bottles. He preferred an appeal to the Army Commander mentioning several irregularities in the summary trial. He also pleaded that he was having unblemished record of service in the Army, but his appeal was rejected. Thereafter he filed a writ petition in the Delhi High Court which was summarily rejected. In this appeal the learned counsel for the appellant submitted that several irregularities have been committed in conducting the summary trial. But from the records we find that the evidence has been duly recorded and further it is an admitted fact that the appellant was carrying extra 7 bottles of rum without the necessary permit. Therefore we are unable to agree with the counsel that the trial is vitiated and we are of the view that no prejudice has been caused. The main submission and perhaps the only submission, if we may say so, in this appeal is that the sentence awarded to the appellant is wholly disproportionate to the offence committed by him. According to the learned counsel the extreme punishment of imprisonment for 3 months and dismissal from the service under the circumstances is uncalled for. We find considerable force in this submission. Admittedly the appellant was granted leave when he was proceeding to his home town and unfortunately enroute to his home town he had to pass through Surendra Nagar where there was prohibition in force. However, he had a valid permit to carry 5 bottles, the extra 7 bottles of rum, according to the appellant, were purchased from the Army Canteen itself and there is no dispute about the same. Unless he had some permits or chits given by some higher authorities permitting him to purchase these bottles, he could not have purchased the same from the Canteen 680 over and above the bottles for which he had a valid permit. He was taking this liquor to his home town to celebrate his brother in law 's marriage, but to his bad luck, the Civil Police of Surendra Nagar checked his baggage and confiscated the bottles as he had no valid permit to carry the extra bottles. Under these circumstances the question is whether such a severe penalty is called for. In the chargesheet it is merely stated that the action of the appellant in carrying 11 bottles of sealed rum and one bottle of sealed brandy when he was proceeding to his home town is "contrary to the existing orders on the subject". In the counter affidavit it is stated that such an act of the appellant comes within the meaning of Section 63 of Chapter VI of the (`Act ' for short) which enumerates various types of offences. Section 63 lays down as under: "63. Violation of good order and discipline Any person subject to this who is guilty of any act or omission which, though not specified in this , is prejudicial to good order and military discipline shall, on conviction by court martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this act mentioned". The Section may cover various types of misconducts committed by a person by way of an act or omission. This Section also provides for awarding any other lesser punishment mentioned in the . Therefore such depends on the nature of the act or omission of which the person is found guilty. The provisions in Chapter VII enumerate various punishments that can be awarded. Section 71 of the deals with punishments awardable by court martial and reads as under: "71. Punishments awardable by courts martial Punishments may be inflicted in respect of offences committed by persons subject to this and convicted by courts martial, according to the scale following, that is to say (a) death; (b) transportation for life or for any period not less than seven years; (c) imprisonment, either rigorous or simple, for any period not exceeding fourteen years; 681 (d) cashiering, in case of officers; (e) dismissal from the service; (f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers. ; and reduction to the ranks or to a lower rank or grade, in the case of non commissioned officers; Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy; (g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and non commissioned officers; and forfeiture of all or any part of their service for the purpose of promotion, in the case of any of them whose promotion depends upon length of service; (h) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; (i) severe reprimand or reprimand, in the case of officers, junior commissioned officer, warrant officers and non commissioned officers; (j) forfeiture of pay and allowances for a period not exceedind three months for an offence committed on active service; (k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal; (l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good. " It can be seen that Sections 71(a) to 71(e) and Section 71(k) provide for extreme punishments and are severe in nature. Sections 71(f) to 71(j) and Section 71(l) provide for comparatively lesser punishments. Section 72 of the is the next relevant Section which reads as under: 682 "72. Alternative punishments awardable by court martial Subject to the provisions of this , a Court Martial may, on convicting a person subject to this to any of the offences specified in Sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lower in the scale set set out in Section 71, regard being had to the nature and degree of the Offence." (emphasis supplied) Section 73 of the deals with combination of punishments and it reads as under: "73. Combination of punishments A sentence of a court martial may award in addition to, or without any one other punishment, the punishment specified in clause (d) or clause (e) of Section 71 and any one or more of the Punishments specified in clauses (f) to (l) of that section. " It can be seen that under Section 73 of the , the court martial may award more than one punishments as mentioned therein. In the instant case Section 63 also is not mentioned in the chargesheet. Assuming that the offence committed by the appellant is covered by the residuary Section 63 but in awarding the punishment the court martial has to keep in view the spirit behind Section 72 of the and it has to give due regard to the nature and degree of the offence. It can be seen that Section 63 provides for awarding any of the lesser punishments enumerated in Section 71 of the . In view of these provisions of law and having regard to the nature and degree of the offence, we are firmly of the view that the punishments awarded to the appellant namely, three months ' R.I. and dismissal from service are severe and are also violative of Section 72. In Council of Civil Service Unions vs Minister for the Civil Service, ; , 950 Lord Diplock said: "Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call `illegality ', the second `irrationa 683 lity ' and the third 'procedural impropriety ! This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality ' which is recognised in the administrative law of several of our fellow members of the Eurpoean Economic community,. ." This principle was followed in Ranjit Thakur vs Union of India and Others, where this Court considered the question of doctrine of proportionality in the matter of awarding punishment under the and it was observed thus: "The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. but the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. " In Bhagat Ram vs State of Himachal Pradesh, [1983] 2 SCC 442 this Court held as under: "It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. " Applying these principles to the instant case, We are also constrained to say that there is an element of arbitrariness in awarding these severe punishments to the appellant. We have heard both the learned counsel on this aspect elaborately and we are satisfied that an interference is called for and the matter has to be remanded on the question of awarding any of the lesser punishments. Having given our earnest consideration to the 684 facts and circumstances of this case and in view of the submissions made by both the counsel, we feel that ends of justice will sufficiently be met if a lesser punishment as provided under Section 71(f) is awarded to the appellant. Accordingly, we set aside the punishments of three months ' R.I. and dismissal from service and remand the matter to the court martial which shall award any of the lesser punishments having due regard to the nature and circumstances of the case and in the light of the above observations made by us. Since we are setting aside the sentence of three months ' R.I. any detention suffered by the appellant after the orders of the court martial shall not be treated as a disqualification for being reinstated into service which shall, however, be subject to any of the minor punishments to be awarded by the court martial. Already much time has lapsed, therefore, we hope the court martial would dispose of the matter as expeditiously as possible preferably within three months. The appeal is thus disposed of subject to the above directions. N.P.V. Appeal disposed of.

The appellant, who had put in 10 years of service as Jawan in the Army, was sentenced to 3 months ' R.I. and dismissed from service by the Summary Court Martial, on the charge that his action in carrying 12 bottles of liquor while proceeding on leave to his home town was contrary to the orders on the subject. The appeal preferred by the appellant, pointing out the irregularities committed in the summary trial, and pleading that he had unblemished record of service, was also rejected by the higher authority. The writ Petition filed by the appellant was also summarily rejected by the High Court. In the appeal before this Court, on behalf of the appellant it was contended that the summary trial was vitiated on account of several irregularities committed in conducting the trial, and the sentence awarded to him was wholly disproportionate to the offence committed by him. Disposing of the appeal, and remanding the case to the Summary Court Martial on the question of sentence, this Court HELD 1. The trial is not vitiated and no prejudice has been caused to the appellant, inasmuch as from the records it is found that the evidence has been duly recorded and, admittedly, the appellant was carrying extra seven bottles of liquor without the necessary permit. However, there is an element of arbitrariness in awarding severe punishments and, therefore, an interference is called for and the matter has to be remanded on the question of awarding any of the lesser punishments provided in the . [679E. 683G H] 677 2.1 Section 72 of the provides that the court martial may, on convicting a person subject to the Act, of any offences specified in Sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lower in the scale set out in Section 71, regard being had to the nature and degree of offence. [680C D] 2.2 In the instant case, in the charge sheet it is merely stated that the action of the appellant in carrying 12 bottles of liquor when he was proceeding to home town was against the orders on the subject. But in the counter affidavit it is stated that such an act of the appellant came within the meaning of Section 63 of the Act. This Section may cover various types of misconducts committed by way of an act or omission. It also provides for awarding any other lesser punishment mentioned in the Act. Therefore, much depends on the nature of the act or omission of which the person is found guilty. [680B,E] 2.3 Admittedly, the appellant was granted leave when he was proceeding to his home town. Enroute he had to pass through a place where prohibition was in force. He had a valid permit to carry 5 bottles of liquor and the extra 7 bottles were purchased from the Army Canteen itself. Unless he had some permits or chits given by some higher authorities, he could not have purchased these extra bottles from the Canteen. He was taking this liquor to his home town to celebrate his brother in law 's marriage, but the local Civil Police checked his baggage and confiscated the bottles as he had no valid permit to carry the extra bottles. [679G H, 680A] 2.4 Assuming that the offence committed by the appellant is covered by the residuary Section 63, but in awarding the punishment, court martial has to keep in view the spirit behind Section 72 and it has to give due regard to the nature and degree of the offence. Section 63 provides for awarding of any of the lesser punishments enumerated in Section 71. In view of these provisions of law and having regard to the nature and degree of the offence, the punishments awarded to the appellant, namely, three months ' R.I. and dismissal from service are severe and are also violative of Section 72. Ends of justice will be sufficiently met if a lesser punishment as provided under Section 71(f) is awarded to the appellant. [682E F, 684F] 2.5 Accordingly, the punishments are set aside and the matter remanded to the court martial which shall award any of the lesser 678 punishments having due regard to the nature and circumstances of the case. Any detention suffered by the appellant after the orders of the court martial will not be treated as a disqualification for being rein stated into service. [648B] Ranjit Thakur vs Union of India and Others, and Bhagat Ram vs State of Himachal Pradesh, [1983] 2 SCC 442, relied on. Council of Civil Service Unions vs Minister for the Civil Service, [1984]3 AII ER 935, 950, referred to

ition (Civil) No. 590 of (Under Article 32 of the Constitution of India) B.B. Sawhney for the Petitioners. G.B. Pai, O.C. Mathur, Ms. Meera Mathur, Ms. Deepa Chhabra and N. Misra for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. Under the Burmah Shell (Acquisition of Undertakings in India) Act 2 of 1976, (hereinafter referred to as the 'Act '), the Union of India acquired the right, title and interest of Burmah Shell oil Storage and Distributing Company of India Limited (hereinafter referred to as Burmah Shell) in relation to its undertakings in India. Sections 3, 4, and 9 of the Act are relevant. Under section 3 the right, title and interest of Burmah Shell in relation to its undertakings in India stood transferred and became vested in the Central Government. In terms of section 4, the assets and liabilities were taken over by the Government of India. Under section 9 persons employed under Burmah Shell came under the employment of the 314 Government company known as Bharat Petrolium Corporation A Limited (respondent No. I herein) Section 1()(1) provides thus: "Where a provident, superannuation, welfare or other fund has been established by Burmah Shell for the benefit of the persons employed by it in connection with its undertakings in India, the monies relatable to the employees (i) whose services are transferred by or under this Act to the Central Government or the Government company; or (ii) who are in receipt of pension or other pensionary benefits immediately before the appointed day, shall, out of the monies standing on that day to the credit of such provident, superranuation, welfare or other fund stand transferred to and vested in, the Central Government or the Government company, as the case may be, free from any trust that may have been constituted by Burmah Shell in respect thereof." The detailed provisions for administration of the fund are contained in that section. This petition under Article 32 of the Constitution is by the erstwhile Burmah Shell Management Staff Pensioners who claim two reliefs: (1) Extension of the benefit of restoration of commuted pension after the period of 15 years from the date of commutation as decided by this Court in the case of Common Cause & Ors. vs Union of lndia & Ors. ; , and (2) Adequate escalation in the pension keeping in view the loss of purchasing power of the rupee and the general rise in the cost of living. In answer to the rule nisi, the respondent made its return by contending that the pension scheme of the first respondent is a funded scheme. The decision of this Court in the case of Common Cause rendered in respect of Government servants, both of civil and defence services, cannot be extended to a public sector undertaking. The pen 315 sion scheme of Burmah Shell was set up by Non Contributory Pension A Fund by a Trust Deed in December, 1950, but effective from 1st January, 1947, of which both the management staff as also the clerical staff were members. This Court on 13th of November, 1987, referred two questions arising for determination for the opinion of Mr. D.K. Lodaya, Chief Actuary of the Life Insurance Corporation of India at Bombay, with the consent of parties and the two questions referred to are: ( 1) Is the pension fund actuarially solvent to bear the liability flowing from restoration of commuted portions of pensions after 13 or 15 years from the respective dates of commutation ? If not, the extent of additional funds necessary for the purpose may be indicated, and the tax relief which will be available for such contribution of additional funds may also be indicated. (2) Is the pension fund actuarially solvent to bear (a) enhancement of pensions and (b) linking pensions with the cost of living index? If so, the extent by which the pensions can be enhanced by utilising the existing resources of the Fund may be indicated. The report has been received and kept on record. It indicates that the additional liability on account of restoration of the commuted value of the pension on the basis of 13 years would be more that Rs. 3 Crores and on the basis of 15 years would be more than Rs.2 1/2 Crores. Counsel for the petitioners has, however, told us in course of the hearing that the question of restoration of the commuted value of the pension may not be adjudicated at present. In view of such submission, we do not examine this issue. The writ petition is, therefore, confined to the only question as to the escalation of pension. Burmah Shell has a fund known as Burmah Shell India Pension Fund and it has its own rules. When Government nationalised the Petroleum industry, another company known as Caltex India Ltd. was also acquired and came to be known as Hindustan Petroleum Corporation. It is thus a sister concern owned by the Central Government. Petitioners relied upon the increase in the pension granted by the Hindustan Petroleum Corporation to its employees in support of their claim for the increase in the pension. While Burmah Shell had a pension fund which has been taken over by the Government company, Caltex did not have such a fund The allegation made by the petitioners that the Hindustan Petroleum Corporation 316 Where there is no such fund has granted a steep escalation in the pension has not been disputed before us. Admittedly Burmah Shell is a bigger company than Hindustan Petroleum Corporation. We have been told that the total Burmah Shell management staff presently in the employment of the respondent No. 1 would be around a thousand. Nothing acceptable has been placed before us from where support can be received for the argument of Mr. Pai, learned counsel for respondent No. 1, that if the escalation admitted by Messrs Hindustan Petroleum Corporation is accepted as the basis for escalation in Burmah Shell there would be injustice or a burden would arise which the respondent Company cannot discharge. The respondent Company has an obligation to pay from its earnings into the Fund and merely because the existing fund is not adequate to bear the additional liability the claim which is otherwise justified cannot be rejected. As we have already pointed out, the Company 's current funds are available to supplement the pension fund. Judicial notice can be taken of the fact that the rupee has lost its value to a considerable extent. Pension is no longer considered as a bounty and is has been held to be property. In a welfare State as ours, rise in the pension of the retired personnel who are otherwise entitled to it is accepted by the State and the State has taken the liability. If the similarly situated sister concern like Hindustan Petroleum Corporation can admit appropriate rise in the pension, we see no justification as to why the respondent Company should not do so. We, therefore, hold that the petitioners being the management staff of the Burmah Shell would be entitled to a hike in the pension admissible at the same rate as is being given by Hindustan Petroleum Corporation. We accordingly direct respondent No. 1 to give the necessary hike in the pension effective from 1st May, 1988 If the amount available from the pension fund is not adequate, it would obviously mean that the Government company would allocate appropriate funds to meet the demand. The additional pension should be disbursed latest by 31st of July, 1988. No costs. P.S.S. Petition allowed.

Burmah Shell oil Storage and Distributing Company of India Limited had a non contributory pension fund. Consequent upon nationalisation of the petroleum industry, this fund was taken over by the Government company, respondent No. 1, under section 10(1) of the Burmah Shell Acquisition of Undertakings in India) Act 2 of 1976. In this writ petition under article 32 of the Constitution the erstwhile Burmah Shell Management Staff Pensioners claimed adequate escalation in their pension keeping in view the loss of purchasing power of the rupee and the general rise in the cost of living. In support of their claim they relied upon the steep escalation in the pension granted by the Hindustan Petroleum Corporation, a sister concern, to its employees. The latter has no such fund. It was contended for the respondent Company that if the escalation admitted by the Hindustan Petroleum Corporation is accepted as the basis for escalation in the respondent company there would be injustice or a burden would arise which they cannot discharge. Allowing the writ petition, ^ HELD: 1. The petitioners being the management staff of the Burmah Shell are entitled to a hike in the pension. [316E F] 2. Judicial notice can be taken of the fact that the rupee has lost its value to a considerable extent. Pension is no longer considered as a bounty and it has been held to be property. In a welfare state, as ours, 313 rise in the pension of the retired personnel, who are otherwise entitled to it, is accepted by the State and the State has taken the liability. In the instant case, if the similarly situated sister concern like Hindustan Petroleum Corporation can admit appropriate rise in the pension, there is no justification as to why the respondent company should not do so. [316D E] 3. The respondent company has an obligation to pay from its earnings into the fund and merely because the existing fund is not adequate to bear the additional liability the claim which is otherwise justified cannot be rejected. The company 's current funds are available to supplement the pension fund. [316C] 4. Respondent No. 1 to give to the petitioners hike in the pension effective from 1st May, 1988 at the same rate as is being given by Hindustan Petroleum Corporation. If the amount available from the pension fund is not adequate the Government company would allocate appropriate funds to meet the demand. The additional pension to be disbursed latest by 31st of July, 1988. [316F G]

ivil Appeal No. 4599 of 1989. From the Judgment and order dated 16.9.1988 of the Punjab and Haryana High Court in Review Application 22 CII of 1988 in Civil Revision No. 2439 of 1980. S.P. Goel, G.B. Singh and K.K. Mohan for the Appellant. S.M. Ashri for the Respondent. The Judgment of the Court was delivered by K. RAMASWAMY, J. Special leave granted. This appeal under Article 136 arises against the order dated Sept. 16, 1988 of the High Court of Punjab & Haryana refusing to review the order dated August 11, 1988 made in Civil Revision No. 2439/80 on its file. The facts leading to the decision are that the respondent Govind Ram, the father of the respondents/landlord laid the suit No. 118/77 (ini tially numbered as O.S. No. 276/75) on the file of Sr. Sub Judge for ejectment and recovery of arrears of rent and damages for use and occupation of the shop in Gurgaon, let out to the appellant/tenant. The suit was originally laid in the Court of Sub 152 Judge, IIIrd Class, Gurgaon, which was transferred later to the Sr. Sub Judge, Gurgaon, which was decreed ex parte on October 20, 1977. The application under Order 9 Rule 13 C.P.C. to set aside the ex parte decree was dismissed on January 10, 1979, and was confirmed on appeal on August 17, 1979 and in revision by the High Court on October 15, 1979. When the landlord laid the execution application for eject ment the appellant objected under section 47 of C.P.C. contending that the decree of the Civil Court is a nullity as the premises in question is governed by the Haryana Urban (Control of Rent & Eviction) Act 11 of 1973, for short 'the Act '. The Controller under the Act is the competent forum regarding claims for ejectment on fulfilment of any of the conditions enumerated under Section 13 thereof. The Civil Court is divested of jurisdiction to take cognisance and pass a decree for ejectment of the appellant. That objection was overruled and on further revision the High Court dis missed the revision by order dated March 19, 1980. Simulta neously he also filed Writ Petition under Article 227 which was dismissed on September 30, 1988. This appeal is directed against that order of dismissal. The contention raised by Shri S.P. Goel, the learned Sr. counsel for the appellant is that by operation of Section 13 of the Act the only authority to pass a decree of ejectment of the appellant tenant is the Controller under the Act and by necessary implication the jurisdiction of the Civil Court is ousted. The Civil Court lacked inherent jurisdiction to take cognisance of the cause and to pass a decree. The decree is thus a nullity. The challenge to a decree on the ground of nullity can be raised at any stage and even in execution. The courts below have committed manifest error of law in not considering the legal question in its proper perspective. The shop consists of the original building belonging to the landlord, but a small part thereof in the frontside was constructed on municipal land. Tenancy of the building is governed by the Special Act and, therefore, the decree of the Civil Court is a nullity and is inexecutable. Shri Ashri, the learned counsel for the respondents refuted this contention. Firstly he argued that the leave applica tion is barred by limitation. Secondly, he contended that the appellant had raised the plea of want of jurisdiction at the trial. Though he remained ex parte, the trial court considered the objection under issue Nos. 4 and 5 and over ruled the objection. The decree became final; thereby the decree operates as res judicata. He also further contends that the Act does not apply to the building in question. Under Section 3, municipal land is exempted from the provi sions of the Act and thereby the only forum to lay the action is the Civil Court. The Civil Court having jurisdic tion has validly granted the 153 decree. The decree having been allowed to become final, it is not open to the appellant to ask the executing court to go behind the decree The question that emerges is whether the Civil Court lacked inherent jurisdiction to entertain the suit for ejectment of the appellant tenant and the decree so passed is a nullity. The Act was enacted with the object of con trolling the increase of rent of buildings and rented lands situated within the limits of urban areas and "the eviction of the tenants therefrom". Section 2(a) defines 'building ' which means any building or a part of a building let for any purpose whether being actually used for that purpose or not, including any land . . . . appurtenant to such building . . . . but does not include a room in a hotel, hostel or boarding house. Section 2(b) defines 'Controller ' as any person who is appointed by the State Government to perform the functions of a Controller under the Act. Landlord has been defined under Section 2(c) and Section 2(f) defines rented lands to mean any land let separately for the purpose of being used principally for business or trade. 'Tenant ' has been defined under Section 2(h). Section 3 authorises the State Government by notifica tion to exempt any particular building or rented land or any class of building or rented lands from the application of any or all the provisions of the Act. Section 13 contains the provisions for eviction of tenants, Sub section (1) thereof reads: "Eviction of tenants (1) A tenant in posses sion of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of this section. " The other provisions are not necessary. The sole ground raised by the landlord for eviction was that the appellant had committed default in the payment of rent and thereby had became liable for ejectment. Accordingly, he issued a notice under Section 106 of the Transfer of Property Act determin ing the tenancy and laid this suit. Section 13 gives the right to the landlord to seek eviction of the tenant for default in the payment of rent. The Act provides the protec tion of continued tenancy and remedy of ejectment for breach of covenants in the lease and other statutory grounds as provided. It provides that the remedy and the forum and the decree of ejectment passed by the Controller or the appel late authority or the revisional authority or confirmation thereof either in appeal or revision is final under the Act. Thereby the exclusive jurisdiction to take cognisance of the cause of action for ejectment of the tenant from a building or rented land situated in urban areas is governed by the provisions of the Act and is 154 exclusively to be dealt with under Section 13 of the Act. By necessary implication the jurisdiction of the Civil Court under Section 9 of C.P.C. is excluded. It is undoubtedly true that open land is a part of the frontage of the shop and belonged to the municipality which the landlord had taken on lease from the Municipality. As regards the munici pal land, the landlord was a lessee of the Municipal Commit tee. But on construction of the building covering a portion of the municipal land the landlord became landlord and the appellant his tenant for the purposes of the Act. This view was held by the full Bench of the Punjab and Haryana High Court in Hari Parshad Gupta vs Jitender Kumar Kaushik, [1982] Vol. 84, Punjab Law Reporter, 150. We agree with the view. Thereby though there is a notification issued by the State Government exempting the lands belonging to Gurgaon Municipality from the provisions of the Act, the building of the respondent does not get exempted from the provisions of the Act. It is the finding of the forums below that the shop in question stands mainly on the land of the landlord and a small portion is located on municipal land. Therefore, we are of the view that the building was governed by the provi sions of the Act and the exemption accorded by the Govern ment under Section 3 was not attracted to the premises. In Sadhu Singh vs District Board, Gurdaspur & Anr., [1962] Punjab Law Reporter, Vol. 64, 1 the question was whether to the reconstructed building governed by the provisions of East Punjab Urban Rent Restriction Act the exemption under Section 3 applied. It was held to be so by the Division Bench. But the present facts are different. In Barrachlough vs Brown, the House of Lords held that when a special statute gave a right and also provided a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the common law court has no jurisdiction. In Doe vs Bridges, ; at 859 the famous and oft quoted words of Lord Tenterdan, occur: "Where an Act creates an obligation and en forces the performance in a specified manner, we take it to be a general rule that perform ance cannot be enforced in any other manner." This statement of law was approved not only by the House of Lords in several cases, but also by this Court in Premier Automobiles vs K.S. Wadke, ; where this Court was called upon to consider whether the Civil Court can decide a dispute squarely coming 155 within the provisions of the Industrial Disputes Act. While considering that question, this Court laid down four propo sitions and third of them is relevant for consideration here. It is as follows: "(3) If the industrial dispute relates to the enforcement of a fight or an obligation creat ed under the Act, then the only remedy avail able to the suitor is to get an adjudication under the Act." Thus on construction of relevant provisions of the Act and in the light of the position in law it must be held that the provisions of Section 13 of the Act applies to the building leased out to the appellant by the landlord and the Controller was the competent authority to pass a decree of ejectment against the appellant and the Civil Court lacked inherent jurisdiction to take cognisance of the cause and to pass a decree of ejectment therein. The next question is whether the impugned decree is a nullity and whether the plea can be raised in execution and further whether the decree in the suit does not operate as res judicata. In Kiran Singh & Ors. vs Chaman Paswan & Ors. , ; = AIR 1954 SC 430 the facts were that the appellant had undervalued the suit at Rs.2,950 and laid it in the court of the Subordinate Judge, Monghyr for recovery of possession of the suit lands and mesne profits. The suit was dismissed and on appeal it was confirmed. In the second appeal in the High Court the Registry raised the objection as to valuation under Section 11. The value of the appeal was fixed at Rs.9,980. A contention then was raised by the plaintiff in the High Court that on account of the valuation fixed by the High Court the appeal against the decree of the court of the Subordinate Judge did not lie to the District Court, but to the High Court and on that account the decree of the Dis trict Court was a nullity. Alternatively, it was contended that it caused prejudice to the appellant. In considering that contention at page 121, a four Judge Bench of this Court speaking through Vankatarama Ayyar, J. held that: "It is a fundamental principle well estab lished that a decree passed by a Court without jurisdiction is a nullity, and that its inva lidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdic tion, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the 156 action, strikes at the every authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. " On merits it was held that since the appellant himself had invoked the jurisdiction of the Civil Court with under valuation, the objection as to jurisdiction was not avail able by operation of Section 99 of the Code and as to the territorial jurisdiction he was precluded by operation of Section 21 of C.P.C.; and on such premise it was held that the decree of the District Court could not be treated to be a nullity and person who invoked the jurisdiction cannot plead prejudice to himself by his own act. This Court has held that it is a well established prin ciple that a decree passed by a court without jurisdiction is a nullity and the plea can be set up whenever and wherev er the decree is sought to be enforced or relied upon, and even at the stage of execution or in collateral proceedings. In the case of Ferozi Lal Jain vs Man Mal & Anr., AIR 1979 SC 794 the facts were that the appellant was the owner of a shop. One of the covenants under the lease was that the lessee respondent should not sub let the shop. On the ground that the respondent had sub let the shop, a suit was laid for eviction under Section 13 of the Delhi and Ajmer Rent Control Act, 1952. The matter was compromised and a compro mise decree was passed. Twice time was given for delivery of the vacant possession by the respondent. On his failure to deliver vacant possession the appellant filed execution to recover possession. The tenant raised the objection that unless any one of the grounds prescribed under Section 13 of the Rent Control Act was satisfied, the decree even on compromise was a nullity, and therefore, he could not be evicted. This Court held that the order made did not show that it was satisfied that the sub letting complained of had taken place, nor was there any other material on record to show that it was so satisfied. It is clear from the record that the Court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there was hardly any doubt that the Court was not competent to pass the impugned decree. Hence the decree under execu tion must be held to be a nullity. On that basis it was held that the objection could be 157 raised even at the execution stage. Ultimately, the decree was held to be void. In Bahadur Singh vs Muni Subrat Dass, the decree under execution was made on the basis of an award and it was held that the decree was passed in contravention of section 13(1) of the Rent Control Act. Thereby the decree was held to be void and hence no execution could be levied on the basis of the void decree. A similar view was also taken by this Court in Smt. Kaushalya Devi & Ors. vs K.L. Bansal, AIR 1970 SC 838. This was also a case under the Delhi and Ajmer Rent Control Act and was on the basis of a compromise. It was held that the decree passed on the basis of the award was in contravention of Section 13(1) of the Act as the Court had passed the decree without satisfying itself that any good ground of eviction existed. Therefore, the decree for delivery of possession was held to be a nullity and could not be executed. This is also a decision by a Bench of three Judges speaking through Sikri, J. as he then was. In Chandrika Misir & Anr. vs Bhaiya Lal, ; Palekar J. speaking for a Bench of two Judges held that the decree passed by the Civil Court in relation to matters governed by U.P. Zamindari Abolition and Land Reforms Rules, 1952 for possession was a nullity and in the appeal it was for the first time permitted to be raised in this Court and the decree was declared to be a nullity. In Ledgard vs Bull, [1886] Law Report, 13 AC, 134 the Privy Council laid down that where the original Court in a suit was inherently lacking jurisdiction, and was incompe tent to try the same, on its transfer by consent of parties, to a Court with jurisdiction such consent did not operate as a waiver of the plea of want of jurisdiction. In Bartan vs Fincham, [1921] 2 Kings Bench Division, 291 at 299 it was held that: "Parties cannot by agreement give the Courts jurisdiction which the Legislature has enacted they are not to have The Court cannot give effect to an agreement whether by way of compromise or otherwise, inconsistent with the provisions of the Act. " In Peachery Property Corporation vs Robinson, [1966] 2 All Eng. 158 Report 981 at 983 Winn, Lord J. took the same view. In Choudari Rama (dead) per L.R. Choudhary Ganapathi vs Qureshi Bee, [1983] 2 Andhra Law Times 133 one of us Ramas wamy, J. was called upon to consider the question on a set of similar facts. Therein the petitioner who died subse quently was protected under A.P. (Telangana Area) Tenancy and Agricultural Holdings) Act, 1950. The protected tenant was given possession in exercise of statutory power under Section 38 A of that Act. That was done during the pendency of the suit for partition between the co sharers. The tenant was impleaded co nominee defendant to the suit. A prelimi nary decree for partition and for possession was passed. A final decree followed. The decree became final and execution was levied for possession. Objection was taken that since the tenant was a protected tenant under the Act, the decree was a nullity and could not be executed against the legal representatives. After considering the scope of relevant provisions of the Act, it was held that the Civil Court cannot go into the legality or correctness of the Exhibit B I issued by the Tehsildar. The revenue authorities consti tuted under that Act were competent to go into the validity thereof. Civil Court inherently lacked jurisdiction and the decree of ejectment of the protected tenant from the lands covered by the protected tenancy was a nullity because of the provisions of Chapter IV of the Act. The plea can be set up even at the stage of execution, as was rightly done in that case. Otherwise it would have the effect of nullifying the operation of the statutory provisions in Chapter IV of the Act and deprived the protected tenant of his vested interest in the land created in his favour under the tenancy certificate (exhibit B I). It was also held in paragraph 64 that "Its validity can be assailed in the execution proceedings. " We approve the view of the High Court. In Mathura Prasad Bajoo Jaiswal & Ors. vs Dossibai N.B. Jeejeebhey; , the Bench consisting of Shah, CJ., Hegde and Grover, JJ. was called upon to consider whether a decree passed without jurisdiction operates res judicata. The facts therein were that the respondent leased out the land for construction of a building to the appel lant, which was duly constructed. The tenant applied for fixation of the standard rent. The Civil Court rejected the prayer holding that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 does not apply to the open land let out for construction. But later the High Court reversed that view in another decision and held that the Act applied to the open land leased out. Relying upon that judgment, an application was again filed for fixation of the standard rent of the 159 premises. Objection was raised that the earlier rejection operated as res judicata. In that context, in negating the contention, this Court held that the doctrine of res judica ta belongs to the domain of procedure. It cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpreta tion of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in other proceedings between the same parties. The matter in issue may be an issue of fact. The fact decid ed by a competent Court is final determination between the parties and cannot be re opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata. The reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other. The claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the founda tion of the right and the relevant law applicable to the determination of the transactions which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision; the decision of law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be res judicata in a subsequent proceeding if it be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier suit nor when the earlier decision declares valid a transac tion which is prohibited by law: "A question of jurisdiction of the Court, or of procedure, or a pure question of law unre lated to the right of the parties to a previ ous suit, is not res judicata in the subse quent suit. Rankin, CJ., observed in Tarini Charan Bhattacherjee 's I.L.R. case: "The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and 160 the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory or pre cluding the parties from reopening or recon testing that which has been finally decided." "A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly, by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litiga tion is the same or otherwise." (Emphasis supplied) In that case it was held that since it relates to the jurisdiction of the Court as per law declared by the legis lature, it does not operate as res judicata. In Vasudev Dhanjibhai Modi vs Rajabhai Abdul Rehman & Ors., a Bench of three Judges of this Court consisting of Shah, J., as he then was, Hegde and Grover, JJ. was considering the question of nullity of a decree. The facts therein were that the appellant, owner of the plot of land, leased out the same to the respondent at an annual rental of Rs.411. The suit was dismissed and on appeal it was reversed and suit was decreed. On revision it was con firmed by the High Court. Special leave petition filed in this Court was also dismissed. In the execution the conten tion was raised that the Small Causes Court had no jurisdic tion to entertain the suit. It was contended that the decree was a nullity on the ground that Bombay Rents Hotel and Lodging House Rates (Control) Act 57 of 1947 applied to the facts in that case. In that context Shah, J., as he then was, speaking for the Court held that challenge to a decree which is a nullity can be raised at any time, but the Court executing the decree cannot go behind the decree between the parties or on their representation it cannot entertain any objection that the decree was incorrect in law or on facts, unless it is set aside by an appropriate proceeding in appeal or revision. A decree even if it be erroneous is still binding between the parties. In that context it was held that the question whether the Court of Small Causes had jurisdiction to entertain the Suit depended upon 161 the interpretation of the terms of the agreement of lease, and the use to which the land was put at the date of the grant of the lease. These questions cannot be permitted to be raised in an execution proceedings so as to displace the jurisdiction of the Court which passed the decree. It was further held that for the purpose of determining whether the Court which passed the decree had jurisdiction to try the suit, it is necessary to determine facts relevant to the issue on which the question depends, and the objection does not appear on the face of the record, the executing Court cannot enter upon an enquiry into those facts. It is seen that on the facts in that case it is for the first time the executing Court is to adjudicate upon the terms of the lease whether the Court of Small Causes had jurisdiction to enter tain that suit. It is not a case of interpretation of the statutory provisions or inherent lack of jurisdiction. It is already seen that in fact for the first time this Court in Chandrika Misir 's case (supra) had to go into the statutory provisions though no case in that regard had been set up in the courts below and held that the Civil Court lacked inher ent jurisdiction to pass the decree. Therefore, the ratio in this case is not in conflict with the view taken by this Court. It is no doubt true that in Seth Hiralal Patni vs Sri Kali Nath, ; the facts were that the suit was instituted on the original side of the Bombay High Court against the appellant for recovery of certain arrears out of transactions taking place at Agra. The dispute was referred to arbitration. The arbitrator gave his award in favour of the respondent which was upheld on appeal by the High Court. In execution proceedings an objection was raised by the appellant that the Bombay High Court has no jurisdiction to entertain the suit to make the award a decree of the Court as no part of the cause of action had arisen within its territorial jurisdiction. Therefore, the decree was without jurisdiction. It was held that since the parties had agreed to refer the matter to arbitration through Court, which had jurisdiction, he would be deemed to have waived the objec tion as to the territorial jurisdiction of the Court. There fore, it is not a nullity and the appellant was held to be estopped from challenging the jurisdiction of the Bombay High Court. The ratio therein does not apply to the facts of this case. The case of Phool Chand Sharma & Ors. vs Chandra Shanker Pathak & Ors., 828 also does not help the respondent. It was a case where the suit was decreed and possession was taken thereunder. On appeal by the respondent it was dismissed. On Second Appeal before the Board of Revenue the matter was com 162 promised, whereunder Ramprasad was recognised as a tenant of the land in dispute and the order of eviction was thus nullified. When he made an application under Sec. 144 C.P.C. for restitution it was resisted by the tenants subsequently inducted on the ground that the respondent was inducted as tenant by the decreeholder, and the decree does not bind them. This was upheld by the trial court and on appeal. A writ petition was also dismissed on merits. The decree became final. The order of the High Court under article 227 became final. Then against the order of the Board of Revenue an appeal under article 136 was filed in this Court. A prelimi nary objection was raised that the decision of the High Court under article 227 operated as res judicata. In that context it was held by this Court that the appeal was barred by res judicata as the decision of the High Court was on merits and would bind the parties unless it was modified or reversed in appeal or by other appropriate proceedings. The facts are clearly distinguishable. The case of Mohanlal Goenka vs Benoy Krishna Mukherjee & Ors., ; is also of little assistance to the respondent. The decree passed by the Calcutta High Court on its original side was transferred for execution to the Court of Subordinate Judge of Asansol with proper certified copy of the decree and order of transmission. The execution application was dismissed for default and a certificate was sent under Sec. 41 C.P.C. stating that the execution case was dismissed for default without transmitting the decree or the covering letter sent by the High Court. The decree holder again applied for execution. It was accordingly executed. Then an application to set aside the sale was made under Order 21 Rule 90 C.P.C. on the ground that the decree is a nullity and the Court had no jurisdiction to execute the decree. While negating the contention it was held that since the decree sent was not transmitted it would be re garded as a fresh application for execution and, therefore, the executing Court had jurisdiction and the decree was not a nullity. That case also is not one of inherent lack of jurisdiction. Thus it is settled law that normally a decree passed by a Court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judica ta in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a Court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a corum non 163 judice. A decree passed by such a Court is a nullity and is non est. Its validity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the Court to pass a decree which cannot be cured by consent or waiver of the party. If the Court has jurisdiction but there is defect in its exercise which does not go to the root of its authority, such a defect like pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits. The doctrine of res judicata under Sec. 11 C.P.C. is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus the decision of a competent Court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a Court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvi ous; a pure question of a law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibi tion by law it does not operate as res judicata. Thus a question of jurisdiction of a Court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a Court or interpretation of provisions of a statute cannot be deemed to have been finally deter mined by an erroneous decision of a Court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the Court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the Court inherently lacks jurisdiction. In the light of this position in law the question for determination is whether the impugned decree of the Civil Court can be assailed by 164 the appellant in execution. It is already held that it is the Controller under the Act that has exclusive jurisdiction to order ejectment of a tenant from a building in the urban area leased out by the landlord. Thereby the Civil Court inherently lacks jurisdiction to entertain the suit and pass a decree of ejectment. Therefore, though the decree was passed and the jurisdiction of the Court was gone into in issue Nos. 4 and 5 at the ex parte trial, the decree there under is a nullity, and does not bind the appellant. There fore, it does not operate as a res judicata. The Courts below have committed grave error of law in holding that the decree in the suit operated as res judicata and the appel lant cannot raise the same point once again at the execu tion. It is seen from the dates mentioned that there is no delay in filing the leave application. The leave application was filed within the limitation from the date of original order of dismissal of the revision or on a later date dis missing the review application. It is true that the writ petition was filed against the order in revision, but it does not preclude the appellant to contest its invalidity in the appeal under article 136. The decree was executed pending the special leave petition. This Court would relieve the party from injustice in exercise of power under article 136 of the Constitution when this Court notice grave miscarriage of justice. It is always open to the appellant to take aid of Sec. 144 C.P.C. for restitution. Therefore, merely because the decree has been executed, on the facts when we find that decree is a nullity, we cannot decline to exercise our power under article 136 to set at nought illegal orders under a decree of nullity. The appeal is accordingly allowed. But in the circumstances parties are directed to bear their own costs. Y. Lal Appeal allowed.

The respondent had filed a suit before the Senior Sub Judge, against the appellant for ejectment and recovery of arrears of rent and damages for use and occupation of the shop, let out to him. The suit was decreed ex parte on October 20, 1977. The application under Order 9, Rule 13. C.P.C. to set aside the ex parte decree was dismissed on January 10, 1979 and was confirmed on appeal on August 7, 1979 and later in revision by the High Court. When the respondent landlord took out execution proceed ings for ejectment of the appellant tenant, he objected under Section 47 of Code of Civil Procedure contending that the decree passed by the civil court was a nullity, as the premises in question was governed by the Haryana Urban (Control of Rent and Eviction) Act 11 of 1973. According to him the Controller under the Act was the competent authority regarding claims for ejectment and by necessary implication, the civil Court was divested of jurisdiction to take cogni sance and pass a decree for ejectment. That objection was overruled and further revision to the High Court also failed. Simultaneously the appellant had also filed a writ petition under article 227 of the Constitution which was also dismissed. Hence this appeal by the appellant tenant by special leave. Allowing the appeal, this Court, HELD: Normally a decree passed by a court of competent jurisdiction after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties 150 or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings, its validity cannot be questioned. [162G] A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise of jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party. [162H; 163A] (See Kiran Singh & Ors. vs Chaman Paswan & Ors., ; Ferozi Lal Jain vs Man Mal & Anr., AIR 1979 SC 794: Bahadur Singh vs Muni Subrat Dass, ; Smt. Kaushalya Devi & Ors. vs K.L. Bansal, AIR 1970 SC 838; Chandrika Misir & Anr. vs Bhaiya Lal, ; ; Ledgard vs Bull, [1886] Law Report, 13 AC 134; Bartan vs Fincham, [1921] 2 K.B. Division, 291 at 299; Peachery Property Corporation vs Robinson, ,983; Choudari Rama (dead) per L.R. Choudharv Ganapathi vs Qureshi Bee, [1983] 2 Andhra Law Times 133 approved;) A question relating to jurisdiction of a court or inter pretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are creat ed, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction. [163F G] (See Mathura Prasad Bajoo Jaiswal & Ors. vs Dossibai N.B. Jeejeebhey, ; ; Tarini Charan Bhattacher jee 's case I.L.R. It is the Controller under the Act that has exclusive jurisdiction to order ejectment of a tenant from a building in the urban area leased out by the landlord. Thereby the civil court inherently lacks jurisdiction to entertain the suit and pass a decree of ejectment. [164A] (See Barrachlough vs Brown, ; Doe vs Bridges, 151 ; at 859; Premier Automobiles vs K.S. Wadke; , Therefore in the instant case, though the decree was passed and the jurisdiction of the court was gone into in issue Nos. 4 and 5 at the ex parte trial, the decree there under is a nullity and does not bind the appellant. There fore it does not operate as res judicata. The courts below have committed grave error of law in holding that the decree in the suit operated as res judicata and the appellant cannot raise the same point once again at the execution. [164B] Hari Prashad Gupta vs Jitender Kumar Kaushik, [1982] Vol. 84, Punjab Law Reporter, 150; Sadhu Singh vs District Board, Gurdaspur & Anr., [1962] Punjab Law Reporter, Vol. 64, 1; Vasudev Dhanjibhai Modi vs Rajabhat Rabdul Rehman & Ors., ; Seth Hiralal Patni vs Sri Kali Nath, ; ; Phool Chand Sharma & Ors. vs Chandra Shankar Pathak dr Ors., 828; Mohanlal Goenka vs Benoy Krishna Mukherjee & Ors.

Appeal No. 181 of 1956. Appeal by special leave from the judgment and order dated September 5,1955, of the Judicial Commissioner 's Court, Ajmer, in Civil Writ Petition No. 108 of 1955. M. M. Kaul and R. H. Dhebar, for the appellants. The respondent did not appear. November 15. The Judgment of the Court was delivered by BHAGWATI J. This is an appeal with special leave from the judgment of the Judicial Commissioner, Ajmer, restraining the District Magistrate, Ajmer, from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955. The respondent claimed to be a voter of the Ajmer Municipality. By an order dated March 12, 1953, the Ajmer Municipal Committee had been suspended and that suspension was to continue till September 11, 1955. In view of the impending elections after the period of suspension was over, the Chief Commissioner, Ajmer, the appellant before us, framed the Ajmer State Municipalities Election Rules, 1955, in exercise of the powers conferred by section 43 of the Ajmer Merwara Municipalities Regulation, 1925 (VI of 1925) and published them in the Government Gazette dated August 4, 1955. On August 8, 1955, he notified an election programme and also authenticated and published an electoral roll. This electoral roll had been corrected and altered by the orders of the Sub Divisional Officer on certain days prior to August 8, 1955, but the respondent 's name was alleged to have been incorrectly described therein, his father 's name having been mentioned as Ratan Lal instead of Chitar Mal. On August 10, 1955, he applied for the correction of his father 's name in the Parliamentary Electoral Roll and on August 16, 1955, he filed his nomination paper. His nomination was, however, rejected on August 17, 1955, 70 the Returning Officer stating that he was not one of the electors according to the roll. His application for rectification of the mistake in the Parliamentary Electoral Roll was also rejected on August 18, 1955, by the Electoral Registration Officer on the ground that the roll of the Municipal elections had been finally published on August 8, 1955, and therefore no correction could be made. The respondent thereupon filed on August 26, 1955, a writ petition being Civil Writ Petition No. 108 of 1955 in the Court of the Judicial. Commissioner at Ajmer against the appellant and the District Magistrate, Ajmer, inter alia for a mandamus against the appellant to reconstitute the Ajmer Municipal Committee by a properly made and published notification under section 8(1) of the Regulation and an order against the District Magistrate, Ajmer, restraining him from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955, as notified. The learned Judicial Commissioner upheld the contention of the respondent in regard to the reconstitution of the Committee but did not issue any directions in regard to the same in view of the fact that the appellant had already before that date issued a notification under section 8(1) of the Regulation to reconstitute the Committee. He also held that Rule 7 of the Election Rules was not in consonance with and was in contradiction to section 30, sub section (2), of the Regulation and was in excess of the rule making power conferred upon him, and the elections proposed to be held on September 9, 1955, were not lawful. He, therefore, directed the District Magistrate, Ajmer, to refrain from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955. On an application made by the appellant for a certificate under article 133(1)(c) of the Constitution, the learned Judicial Commissioner was of opinion that the direction given by him against the District Magistrate, Ajmer, was merely not to hold elections on September 9,,1955, and as that date had already passed when the application was disposed of by him, no useful purpose would be served by granting him a certificate and he accordingly refused to grant the same. The appellant, 71 however, approached this Court and obtained special leave under article 136 for filing an appeal against the, decision of the learned Judicial Commissioner. When the appeal came up for hearing before us, the respondent communicated to us his desire not to appear and contest the appeal with the result that the appeal has been heard by us exparte. At the outset we pointed out to the learned counsel for the appellant that the appeal had become academic. The appellant had in fact reconstituted the Ajmer Municipal Committee by a proper notification under section 8(1) of the Regulation and the date on which the elections and the poll to the Ajmer Municipal Committee were to he held, viz., September 9, 1955, had also passed. The learned counsel for the appellant, however, urged before us that the pronouncement of the learned Judicial Commissioner to the effect that Rule 7 of the Election Rules was not in consonance with and was in contradiction to section 30, sub section (2), of the Regulation and was in excess of the rule making power conferred upon the appellant was a stumbling block in the way of the appellant holding further elections on the basis of the electoral roll as it had been authenticated and published by him on August 8, 1955. If that pronouncement stood, it would be incumbent on the appellant to authenticate and publish another electoral roll and incur the expenses which were inevitable in that process. He, therefore, pressed upon us that we should set aside that pronouncement so that the Municipal elections may be held hereafter without straining the attenuated finances of the Municipality. The relevant provisions which fall to be considered by us are the following: " Section 30. (1): A person shall not be deemed to be an elector for any purpose of this Regulation or of any rule unless he is enrolled as an elector. (2)as amended by Act LX V of 1950: Every person who would be entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if 72 that Constituency had been co extensive with the Municipality, and whose name is registered in the electoral roll for the Parliamentary Constituency comprising the Municipality shall be entitled to be enrolled as an elector of the Municipality. Section 43: The Chief Commissioner may, by notification, make rules consistent with this Regulation for the purpose of regulating all or any of the following matters, namely, : (a). . . . . (b). . . . . (c)the preparation and revision of electoral rolls, and the adjudication of claims to be enrolled and objections to enrolment; Section 248. (4): On publication in the official Gazette of any rules made under this Regulation, such rules shall have effect as if enacted in this Regulation. Elections Rules: Rule 7 Electoral rolls: In accordance with the provisions of sub section (2) of section 30 of the Ajmer Merwara Municipalities Regulation, 1925 (VI of 1925) the electoral roll of the particular Municipality shall be the same as the final printed roll for a Parliamentary Constituency representing the area covered by that Municipality. 9 Electors: No person shall be deemed to be an elector for the purposes of these rules unless his name appears in the electoral rolls. mentioned above It is clear from section 30, sub section (2), of the Regulation that in order to be entitled to be enrolled as an elector of a Municipality, a person has to fulfill two conditions, viz., (1) that he should be entitled under the Re. presentation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if that Constituency had been co extensive with the Municipality ' nd (2) that his name should be registered in the electoral roll for a Parliamentary Constituency comprising the Municipality. If 73 both these conditions are fulfilled he would be entitled to be enrolled as an elector of the Municipality. In regard to the first condition reference need be made to the qualifications prescribed for being registered in the electoral roll for the Parliamentary Constituency and it is only if these qualifications are possessed by the person that he would be entitled to be so registered. In order, therefore, to determine whether a person is entitled to be enrolled as an elector of a Municipality, it would be necessary to ascertain in the first instance whether he is entitled to be registered in the electoral roll for the Parliamentary Constituency. Once that condition is fulfilled, it would be further necessary to consider whether his name is registered in the electoral roll for the Parliamentary Constituency. If, in spite of his fulfilling the condition that he is entitled to be registered in the electoral roll for the Parliamentary Constituency, his name is not registered in the electoral roll for the same, he would not be entitled to be enrolled as an elector of the Municipality. The latter condition does not require any scrutiny for its fulfillment. The fact of his being registered in the electoral roll for the Parliamentary Constituency would be apparent on the face of the electoral roll itself. The fulfillment of the first condition, however, would be subject to scrutiny and it would be open to any resident of the Municipality to object to the enrolment of a particular person as an elector of the Municipality. Even in the case of the electoral roll for the Parliamentary Constituency it would be open to a person to apply for a revision of that roll by applying for a correction of the mistakes or mis descriptions which might have crept therein as also to have his name registered in the roll if it had not been so registered provided he fulfilled the first condition, viz., that he was entitled to be registered in the electoral roll for the Parliamentary Constituency. Objections could also be filed to the enrolment of particular persons as electors in the Parliamentary Constituency and also in the Municipality. Apart from the preparation of the electoral roll for the Municipality it would, therefore, be necessary to have a, revision of such electoral rolls and 19 74 also the adjudication of claims to be enrolled therein and objections to such enrolment. This was clearly envisaged by the framers of the Ajmer Merwara Municipalities Regulation, 1925, and with that end in view it was provided in section 43(c) that the Chief Commissioner may by notification make rules consistent with the Regulation for the purpose of regulating inter alia the preparation and revision of electoral rolls and the adjudication of claims to be enrolled and the objections to enrolment. Such rules when framed and published in the official Gazette were, by virtue of section 248(4) to have effect as if enacted in the Regulation. They were to have statutory effect and were to be treated as part and parcel of the Regulation and contained therein. Before the amendment of section 30, sub section (2), of the Regulation by Act LXV of 1950 there were in existence sub sections (2) and (3) of that section which prescribed the qualifications for being enrolled as electors of the Municipality. They were, however, substituted by the amended section 30, sub section (2), set out hereinabove. It thus substituted for the qualifications which had till then been considered requisite for such enrolment all the qualifications which were required. for being registered in the electoral roll for the Parliamentary Constituency. That, however, was a provision prescribing the qualifications for the purposes of such enrolment and the object of the amendment was to adopt the electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the Municipality. It did not eliminate the further steps in the matter of the revision of such electoral roll as also the adjudication of claims to be enrolled therein and objections to such enrollments. The amendment did not obviate the necessity of taking these further steps inspite of the electoral roll for the Parliamentary Constituency being treated as the electoral, roll of the Municipality. By thus treating the electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the Municipality, the trouble and expenses involved in the preparation of the electoral roll for the Municipality were saved but the Municipality was not absolved 75 from the obligation of providing for the revision of such electoral roll as well as the adjudication of claims to be enrolled therein and objections to such enrolment. When the Ajmer State Municipalities Election Rules, 1955, came to be framed in exercise of the power conferred by section 43 of the Regulation, the Chief Commissioner framed Rule 7 which provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the Municipality. He dispensed with the independent preparation by the Municipality of the electoral roll but did nothing further. Rule 9 provided that no person shall be deemed to be an elector for the purpose of the Rules unless his name appeared in the electoral rolls mentioned above. That had reference obviously to the second condition prescribed in section 30, sub section (2), of the Regulation but did not go far enough. It did not say that a person whose name appeared in the electoral rolls for the Parliamentary Constituency was to be deemed to be an elector for the purposes of the Rules so as to obviate the necessity of fulfilling the first condition therein prescribed and rightly so, because, if it did say so, it would be in conflict with section 30, sub section (2), of the Regulation. These Rules did not eliminate the scrutiny which could be made at the instance of the parties concerned as to whether a person whose name was registered in the electoral roll for the Parliamentary Constituency was in fact entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be so registered and whether he possessed the qualification prescribed in that Act in this behalf nor did they eliminate the further scrutiny for the purpose of the revision of such electoral roll or the adjudication of claims to be enrolled therein and objections to such enrolment. It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll 76 opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolnaent. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective. It was urged that the expression " the final printed roll for the Parliamentary Constituency " predicated that the electoral roll for the Parliamentary Constituency had been finalised after going through the whole procedure in accordance with the provisions of the Representation of the People Act, 1950 (XLIII of 1950) and, therefore, there was no necessity for making any further provision of that nature in the matter of the electoral roll of the Municipality. This contention is unsound for the simple reason that by using this phraseology the whole of the procedure laid down in the Representation of the People Act, 1950 (XLIII of 1950) is not bodily incorporated in the Ajmer Merwar Muni cipalities Regulation, 1925 (VI of 1925). Neither the Regulation nor the Rules which have been framed by the Chief Commissioner in exercise of the powers conferred under section 43 of the Regulation make any mention of any such incorporation nor is it possible to urge that, merely because the electoral roll for the Parliamentary Constituency was treated as the basis for the electoral roll of the Municipality, these provisions were bodily incorporated in the Rules. If Rules 7 and 9 above referred to were intended to form a complete code for the finalisation of the electoral roll of the Municipality they did not serve the intended purpose and were either inconsistent with the provisions of section 30, sub section (2), of the Regulation or were defective in so far as they 77 failed to provide the proper procedure for taking of the steps therein above indicated for finalising the electoral roll of the Municipality. If that was the true position the electoral roll of the Municipality which had been authenticated and published by the Chief Commissioner on August 8, 1955, was certainly not an electoral roll prepared in accordance with law on the basis of which the elections and poll to the Ajmer Municipal Committee could be held either on September 9, 1955, or at any time thereafter. In the view which we hold, it is not necessary to consider whether, in the event of an inconsistency between section 30, sub section (2), of the Regulation and the Rules framed by the Chief Commissioner in exercise of the power conferred under section 43 of the Regulation, the section would prevail or the Rules. Suffice it to say that the electoral roll of the Ajmer Municipality which was authenticated and published by the Chief Commissioner on August 8, 1955, was not in conformity with the provisions of section 30, sub section (2), and the relevant provisions of the Regulation and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee. Under the circumstances we see no substance in the appeal and dismiss the same. There will be, however, no order as to costs of the appeal in so far as the respondent has not appeared and contested the appeal before us. Appeal dismissed.

Sub section (2) Of section 30 of the Ajmer Merwara Municipalities Regulation, 925, as amended, provided that " every person who would be entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if that Constituency had been co extensive with the Municipality, and whose name is registered in the electoral roll for the Parliamentary Constituency comprising the Municipality, shall be entitled to be enrolled as an elector of the Municipality"; and section 43 enabled the Chief Commissioner to make rules consistent with the Regulation for the preparation and revision of electoral rolls and the adjudication of claims to be enrolled and objections to enrolment. In exercise of this power the appellant framed Rules which, inter alia, provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the Municipality. He notified an election programme and also authenticated and published an electoral roll on August 8, 1955. The respondent whose father 's name was recited wrongly in the electoral roll applied for rectification of the mistake in the Parlia mentary Electoral Roll, on August 10, 1955, but it was rejected on the ground that the roll of the Municipal elections had been finally published on August 8, 1955, and therefore no correction could be made. The respondent challenged the validity of the notification and the electoral roll. Held, that under section 30 (2) Of the Ajmer Merwara Municipalities Regulation, 1925, the electoral roll for the Parliamentary constituency was only treated as the basis for the electoral roll of the Municipality and that the rules in so far as they made no provision for the revision of the electoral roll, for the adjudication of claims to be included therein or for entertaining objections to such inclusion, were defective and, therefore, the electoral roll of the Ajmer Municipality which was authenticated and published by the appellant on August 8, 1955, was not in conformity with the provisions of section 30 (2) and the relevant,provisions of the Regulation 69 and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee.

(Crl.) No. 270 of 1986 Under Article 32 of the Constitution of India. 178 Mrs. K. Hingorani for the Petitioner. Kapil Sibal, Karanjawala, Mrs. Karanjawala and C.V. Subba Rao for the Respondents. The Judgment of the Court was delivered by BALAKRISHNA ERADI, J. Immediately on conclusion of the hearing of arguments in the above Writ Petition on June 11, 1986, having regard to the urgency of the matter, we passed the following order: "We allow the Writ Petition and direct that the minor boy, Dustan be restored forthwith to the custody of the petitioner i.e. the mother with liberty to the petitioner to take him to the United States. The child will be a ward of the concerned Court in Michigan and it will be open to the father, first respondent herein to move that Court for a review of the custody of the child, if he is so advised. Detailed reasons will follow. The passport of the child which is in deposit with the Registrar of this Court will be returned to the petitioner i.e. the mother of the child today itself. The concerned authori ties of the Govt. of India will afford all facilities to the mother to take the child back to the United States pursuant to the order passed by this Court. " We now proceed to state in this judgment our reasons in support of the order. The petitioner, Mrs. Elizabeth Dinshaw is a citizen of the United States of America residing in the State of Michi gan. She is employed as a case worker for the State of Michigan in Genesee County Department of Social Services, Flint Michigan. The first respondent, Mr. Arvand M. Dinshaw, who is an Indian citizen was a student at Northern Michigan University in 1971. During that period the petitioner was also studying there. What started as a friendship between them on the campus later developed into love and the peti tioner was married to the first respondent in a civil mar riage before a legal magistrate in Negaunee, Michigan on February 26, 1972. The first respondent thereafter settled down in the United States more or less on a permanent basis having secured employment as an Accountant for the Control ler 's Office in Genesee County. and having obtained a perma nent 179 immigration Visa. A male child, Dustan, was born to the couple on August 30, 1978 in Rochester, Michigan, United States of America where they were having their marital home. Unfortunately, differences arose between the two spouses late in the year 1980 and on December 23, 1980, the peti tioner along with her son took up separate residence in a women 's shelter in Saginaw, Michigan. She filed a petition for divorce on January 2, 1981 in the Circuit Court for the County of Saginaw, Michigan. By a decree dated April 23, 1982, the Circuit Court held that it had been established that there had been a breakdown in the marriage relationship to the extent that the objects of matrimony had been de stroyed and there remained no reasonable likelihood that the marriage could be preserved and hence it declared the mar riage as dissolved and granted a divorce to the petitioner as prayed for. By the same decree, it was directed that the petitioner shall have the care, custody and control of the minor child of the parties until he reaches the age of 18 years or until the further orders of that Court. The first respondent, the father was given visitation rights by the decree and it was provided that he shall 'have visitation with the minor child from approximately 5 P.M. to 8 P.M. on the Wednesday of every week during which he does not have a weekend visitation. It was further ordered that the father shall have visitation with the minor child on alternate weekends from 5 P.M. on Friday until the following Monday morning when he should return the child to his day care centre. On the subject of travel with the minor child to any place outside the United States, it was specifically direct ed in the decree as follows: "IT IS FURTHER ORDERED AND ADJUDGED THAT should the Defendant ARVAND M. DINSHAW. wish to travel with the minor child outside the territorial limits of the United States. he shall bring a petition before this Court. setting forth the conditions under which he intends to leave the country with the minor child. The court shall then make a determina tion as to whether such travel is in the best interests of the minor child. and what condi tions shall be set forth to ensure the child 's return. " Taking advantage of the weekend visitation rights grant ed to him by the above decree, the first respondent picked up Dustan from his school on January 10, 1986 and secretly left the United States of America for India on January 11, 1986. at about 8.30 in the night. He 180 had not intimated the Court about his intention to take the child out of its jurisdiction and outside country nor had he given the slightest indication to the petitioner about.his intention to leave the United States of America permanently for India. It may be stated that immediately before leaving for India, the first respondent had sold away the immovable property consisting of a house and its premises owned by him in Seymour, Lindan, Michigan, where he had been residing and it was only from the Airport that he posted a letter tender ing his resigation from his job as Accountant in the Coun try. In this context it is significant to recall that the decree of the Circuit Court contained the following direc tions: . "IT IS FURTHER ORDERED AND ADJUDGED that the Defendant shall notify the Office of the Friend of the Court promptly concerning any changes in his address. The Court further finds that the Defendant is presently residing at 14155 Seymour, Lindan, Michigan. " It was only late in the day on Monday, January 13., 1986 that the petitioner came to know that the minor child, Dustan had not been returned to the day care centre by the first respondent. She immediately moved the Michigan Circuit Court complaining against the violation by the first re spondent of the terms of its decree. A warrant of arrest was issued by the Michigan Circuit Court against the first respondent on January 16, 1986 on the ground of unlawful taking and retaining the child outside the State. This was later followed by the issue of a Federal warrant of arrest against the first respondent on the January 28, 1986 on the ground of unlawful flight to avoid prosecution. Since the first respondent had already come over to India with the minor child, these warrants could not be executed in .the United States. The first respondent has his ancestral home in Pune where his parents are residing. The petitioner made frantic efforts through American Consulate General at Bombay to trace out the whereabouts of Dustan. She received a reply that the Consular Officer, American Consulate General, Bombay travelled to Pune on Friday, March 7, 1986 and though she was able to visit the residence of the first respond ent 's parents and she spoke with them, the minor child, Dustan was not present there and the grand parents reported that Dustan and his father had gone North, possible, to Kashmir and that they were not aware of the exact where abouts of Dustan and the first respondent. The petitioner finding herself totally helpless to recover back the custody of her minor child, whom she had brought up for more than 7 181 years, thereafter arranged to have this petition tiled in this Court seeking the issuance of writ of Habeas Corpus directing the respondents to produce in Court her minor child, Dustan and to handover his custody to her as the person entitled to his custody under the order of a compe tent foreign Court. In response to the notice issued by this Court directing production of the child before the Court, the first respond ent appeared and produced the child in Court. He has filed a counter affidavit but significantly there is absolutely no satisfactory explanation given there for his conduct in abducting the child from America without seeking permission of the Court in that country of which the minor child, was ward. His only explanation is that his father was seriously ill and he wanted that his father in his ailing condition to see Dustan. He has further stated that his son Dustan has told him on an enquiry that he would prefer to stay with him in Pune and hence he had got Dustan admitted in St. Helena 's School in Standard III. According to him he had not deliber ately done anything wrong in bringing Dustan with him from the United States and that now the minor child is well settled here in India and it will be in the interest of the child that he should be allowed to reside with him in India as per the child 's desire. The conduct of the first respondent in taking the child from the custody of the person to whom it had been entrusted by the Court was undoubtedly most repprehensible. The expla nation sought to be given by him namely, his father 's ill ness, is far from convincing and does not in any way justify such gross violation and contempt of the order of the Cir cuit Court in Michigan. Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice inter viewed Dustan in our Chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citi zen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in the United States of America and he was doing well in school there. In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guar 182 dianship of the mother to whom such custody and guardianship have been entrusted by a competent Court in that country. We are also satisfied that the petitioner who is the mother, is full of genuine love and affection for the child and she can be safely trusted to lookafter him, educate him and attend in every possible way to his proper upbringing. The child has not taken root in this country and he is still accus tomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America. The child 's presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child to some school in Pune. The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present. In Re. H. (infants) , the Court of Appeal in England had occasion to consider a somewhat simi lar question. That case concerned the abduction to England of two minor boys who were American citizens. The father was a natural born American citizen and the mother, though of Scottish origin, had been resident for 20 years in the United States of America. They were divorced in 1953 by a decree in Mexico, which embodied provisions entrusting the custody of the two bOys to the mother with liberal access to the father. By an amendment made in that order in December, 1964, a provisions was incorporated that the boys should reside at all times in the State of New York and should at all times be under the control and jurisdiction of the State of New York. In March, 1965, the mother removed the boys to England, without having obtained the approval of the New York court, and without having consulted the father; she purchased a house in England with the intention of remaining there permanently and of cutting off all contacts with the father. She ignored an order made in June, 1965, by the Supreme Court of New York State to return the boys there. On a motion on notice given by the father in the Chancery Division of the Court in England, the trial ' judge Cross, J. directed that since the children were American children and the American Court was the proper Court to decide the issue of custody, and as it was the duty of courts in all coun tries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing, the Court without going into the merits of the question as to where and with whom the children should live, would order that the children should go back to Ameri ca. In the appeal filed against the said judgment in the Court of Appeal, Willmer 183 L.J. while dismissing the appeal extracted with approval the following passage from the judgment of Cross, J. : "The sudden and unauthorised removal of chil dren from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing. The Courts in all countries ought, as I see it, to be careful not:to do anything to 'encourage this tendency. This substitution of self help for due process of law in this field can only harm the interests of wards general ly, and a judge should, as I see it, pay regard to the orders of the proper foreign Court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child. " With respect we are in complete agreement with the aforesaid enunciation of the principles of law to be applied by the Courts in situations such as this. As already observed by us, quite independently of this consideration we have come to the firm conclusion that it will be in the best interests of the minor child that he should go back with his mother to the :United States of America and continue there as a ward of the concerned Court having jurisdiction in the State of Michigan. The first respondent has tendered before this Court in an affidavit filed by him an unconditional apology for having illegally brought Dustan over to India from the United States in violation of the order of the competent Court in that coun try. The proper step to be taken by him is to tender such an apology to the Court whose order he has violated. It was brought to our notice that by an order passed by the Circuit Court, Saginaw, Michigan on February 11, 1986, the first respondent has been found to be in contempt of that Court for violation of its order and the Court has consequently terminated the visitation rights which had been conferred on the first respondent by the decree dated April 23, 1982. It will be open to the first respondent, if he is so advised, to move the Saginaw County Circuit Court in the State of Michigan for modification of this order on tendering his unconditional apology to that Court, and if he is able to satisfy that Court that there is genuine 184 contrition and regret on his part for the wrong that he has done, we have no doubt that the Circuit Court will take a lenient view and pass appropriate orders working out justice between the parties keeping in mind the important aspect that it will not be in the interest of the minor child to completely alienate him from his father for whom the child has developed genuine affection. We have also no doubt that the petitioner will not take a vindictive attitude but would forget and forgive what has happened in the past and cooper ate with the father in the matter of enabling him to have restricted visitation rights in America with all necessary, proper and adequate safeguards and that the petitioner would also extend her cooperation for the withdrawal of the war rants of arrest outstanding against the first respondent in case he approaches her with such a request. For the reasons stated above, the Writ Petition is disposed of with the directions issued by our order dated June 11, 1986. A.P.J. Petition disposed of.

The petitioner, a citizen of the United States of America residing Michigan, was married to the first respondent, an Indian citizen, who after marriage settled down in the United States and secured employment. A male child was born to the couple in America. Difference arose between them and the petitioner alongwith her son took up separate residence. She tiled a petition for divorce in the Circuit Court for the country of saginaw, Michigan which granted a decree holding that there had been a breakdown in the marriage relationship and declared tile marriage as dissolved. The decree also directed that the petitioner slab hove the care,. custody and control of the minor child until he reaches the age of 18 years. The first respondent, the father was given visitation rights by the decree. On the abject of travel with the minor child to any place outside the United States, it was directed that only on a petition the Court shall make a determination as to whether such travel is in the best interest of the minor child, and what conditions shall he set forth to ensure the child 's return. The Court also directed that the lint respondent shall notify the Office of. the Friend of the Court promptly concerning any changes in his address. Taking advantage of the weekend visitation rights grant ed by the said decree, the first respondent picked up the child from his school and secretly left America for India an January 11th, 1986. He had not intimated the Court about his intention to take the child out of its jurisdiction and outside the country nor had he given the slightest indica tion to the petitioner about his intention to leave America permanently for India. Immediately before leaving for India, the first respondent sold away his immovable property and it was only from the Airport that he posted a letter tendering his resignation from his Job. 176 Coming to know that the minor child had not been re turned to the day care centre by the first respondent, the petitioner moved the Circuit Court complaining against the violation by the first respondent of the terms of the Court 's decree. The Court issued a warrant of arrest against the first respondent an the ground of unlawful taking and re taining the child outside the State, followed by the issue of a Federal warrant of arrest on the ground of unlaw ful flight to avoid prosecution. Since the first respondent had already come over to India with the minor child these warrants could not he executed in the United States. The Consular Officer, American Consulate General, Bombay, visit ed the residence of the first respondent 's parents in Pune but the minor child was not present there and the grand parents reported that the child and his father had gone North, possibly to Kashmir and that they were not aware of their exact whereabouts. Thereafter, the petitioner flied a petition in this Court seeking the issuance of a writ of Habeas Corpus directing the respondents to produce in Court her minor child and to hand over custody to her as the person entitled to it under the order of a competent foreign Court. In response to the notice issued by this Court, the first respondent appeared and produced the child in Court and filed a counter affidavit explaining his conduct the explanation tendered by him was that his father was serious ly ill and he wanted his father to see the child. It was further submitted that the child prefers to stay With him in Pune and hence he was admitted in a School there and that it will be in the interest of the child that he should he allowed to reside with him in India. Disposing of the petition, HELD: 1. Whenever a question arises before Court per taining to the custody of a minor child, the matter is to he decided not on consideration of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. [181F] 2. It is the duty of all Courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing. The Courts in all countries ought to be careful not to do anything to encourage the tendency of sudden and unauthorised removal of children from one country to another. This substitution of self help for due process of law in this field can only harm the interests of the wards generally, and a judge should pay due regard to the orders of the proper foreign Court unless he is satis fied beyond reasonable doubt that to do so would inflict serious harm on the child. [183B D] 177 Re H. (infants), 1966 (I) All E.R. 886, relied upon. The conduct of the first respondent in taking the child from the custody of the person to whom it had been entrusted by the Court was undoubtedly most repprehensible. The explanation sought to be given, namely, his father 's illness, is far from convincing and does not in any way justify such gross violation and contempt of the order of the Circuit Court in Michigan. [181E] 4. The child 's presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school. The conduct of the father has not been such as to inspire confidence in the Court that he is a fit and suitable person to be entrusted with the custody and guardianship of the child. [182C] 5. It will be in the best interest and welfare of the child that he should go back to the United States of AmeriCa and continue his education there under the custody and guardianship of the mother to whom such custody and guard ianship have been entrusted by a competent Court in that country. The petitioner who is the mother, it full of genu ine love and affection for the child and she can be safely trusted to look after him, educate him, and attend in every possible way to his proper up bringing. The child has not taken root in this country and he is still accustomed and acclamatized to the place of his origin in the United States of America. [181 H 182A, B] 6. The first respondent has tendered before this Court an unconditional apology. The proper step to be taken by him is to tender such an apology to the Court whose order he has violated. He has been found to be in contempt of the Circuit Court, Saginaw, Michigan for violation of its order and that Court has consequently terminated the visitation rights conferred on the first respondent. He may move that Court for modification of its order on tendering his unconditional apology to that Court. The petitioner should cooperate with the respondent in the matter of enabling him to have re stricted visitation rights in America and should also extend her cooperation for the withdrawal of the warrants of arrest outstanding against the first respondent. [I83F 184C]

Appeal No. 1460 of 1969. Appeal by special leave from the judgment and decree dated January 16, 1969 of the Gujarat High Court in Letters Patent Appeal No. 31 of 1966. S.T. Desai, M. H. Chhatrapati, P. N. Tiwari and O. C. Mathur, for the appellants. D. Y. Patel and I. N. Shroff, for respondents Nos. 1 and 3. R. H. Dhebar, B. Datta and section P. Nayar, for respondent No. 2. The Judgment of the Court was delivered by Bhargava, J. The predecessors in interest of plaintiff respondents 1 to 3 gave, in 1895, land, bearing Serial Nos. 503 and 506 of Asarva within the limits of Ahmedabad Municipal Corporation, on lease for a period of 49 years at an annual rent of Rs. 199/ , to three persons, Shri Ramchandra Ambaram, Pardesi Sukhlal Anandram and Mehta Bogha Mugatram. These original lessees, during the currency of the lease, made transfers of their rights and also granted sub leases. A number of chawls and some other buildings were constructed on the land and some of them were let out on rent. In 1945, the lessors, after serving notice on the occupants to give vacant possession, filed a suit for recovery of possession. The suit was decreed on 8th July, 1946 on the basis of a consent decree as against some of the occupants including the four defendant appellants. In the agreement, on the basis of which the decree was passed, it was agreed that the defendant appellants will continue in possession of the property for a period of five years and will hand over possession after the expiry of this period of five years. For this period, they undertook to pay mesne profits every month at various rates on the lands in their possession. Between them, the four appellants were required to pay @ Rs. 227 10 0 per mensem making up an annual amount of mesne profits of Rs. 2,731 8 0. Similar terms were included 173 in the consent decree against other defendants who joined the compromise on the basis of which the decree was passed on 8th July, 1946. The remaining defendants in the suit entered into a later compromise and,, as a result, another consent decree was passed on ' 28th January, 1949 against those defendants. Under this decree, these remaining defendants were also entitled to continue in, possession for a period of five years from the date of the decree, but were required to pay mesne profits for this period. All the defendants governed by the two decrees dated 8th July, 1946 and28th January, 1949, had to pay between them mesne profits monthly which worked out to an amount of Rs. 7,314 8 0 per annum. Before, the expiry of the period of five years prescribed by either of the two decrees, the Custodian of Evacuee Property, in 1950, took possession of all the properties, as one of the decreeholders had become an evacuee. After the property was released by the Custodian of Evacuee Property, an application was filed by the decree holders on 26th March, 1953 for execution of the consent decree dated 8th July, 1946 and, in that execution, possession was sought against the appellants of the property which was in .their possession. Subsequently, a number of suits were filed for recovery of mesne profits also. The Execution Court directed eviction of the appellants after over ruling the various objections ' raised by them in the execution proceedings. The decision of the Execution Court on the objections taken by the appellants was challenged in appeal before the District Judge, in second appeal before a single Judge of the High Court of Gujarat, and by a Letters Patent appeal before a Division Bench. All the Courts rejected the objectic raised by the appellants and upheld the order of the Execution Court directing delivery of possession. It is against the judgment of the Division Bench in Letters Patent appeal in this execution that the appellants have come up to this Court in this appeal by special leave. It is unnecessary for us to mention all the various objections that were taken at various stages by the appellants in the Execution Court, in the Court of the District Judge, or before the single Judge or the Division Bench in the High Court. Only three of the points raised have been urged before us and, therefore, we are called upon to deal with these three points only. The first point raised is that the decree which was passed on 8th July, 1946 was a nullity, because it was passed in contravention of section 11 ( 1 ) of the Bombay Rent Restriction Act No. XVI of 1939 (hereinafter referred to as "the Act"). This objection has been over ruled by the High Court on 'the ground that the provisions of the Act were not attracted by the lease in question on the expiry of which the suit for ejectment was decreed under the 174 consent decree dated 8th July, 1946. Counsel appearing for the appellants urged that the terms of the decree passed as well as the terms contained in the lease deed of 1895 show that the Act was applicable because the land, to which the suit for ejectment related, was covered by the definition of "premises" to which the Act applies. The expression "premises" is defined in section 4(2) of the Act as meaning (a) any building or part of a building let separately for any purpose whatever, including any land let therewith, or, (b) any land let separately for the purpose of being used principally for business or trade. Admittedly, the lease of 1895 was not in respect of any building or part of a building let separately for any purpose whatever. Reliance was placed on section 4 (2) (b) of the Act on the contention that the land had been let for the purpose of being used principally for business or trade. Having gone through the documents relied upon by counsel for the appellants, we are unable to accept this submission. In the plaint of the suit, as well as in the decree dated 8th July, 1946, there is no mention of the purpose for which the land was let out by the lease of 1895. Reliance was,, however, placed on one of the pleadings in the plaint which had been reproduced in the decree in which the plaintiff respondents recited one of the terms of the lease in the following words : "On the expiry of the period of 49 years, the land shall be handed over without raising any dispute or objection or causing any obstruction, after removing whatever structures that might have been erected thereon and after making it as clear as it is." The argument was that this pleading indicates that the land was let out for making structures and those structures could only be utilised by being let out on rent. This purpose would constitute business or trade. We are unable to see any justification for such an inference. The mere fact that there was a mention that structures that might have been erected will be removed can in no way lead to a reasonable conclusion that the principal purpose of the lease was the use of the land for business or trade. Reference, in this connection, was also made to the terms of the lease of 1895; but we are unable to hold that it establishes the case of the appellants that the lease was taken principally for the purpose of using the land for business or trade. All that the lease mentions is that it is for constructing houses and, at a later stage, 175 there is a mention that "in the said fields, the lessees could construct houses in any manner or use it in any manner. " The other parts of the lease, on which reliance has been placed are as follows : 1.On the land of those fields we can build houses in any manner and we will receive income thereof and you will not raise any dispute or obstruction in respect thereof. We can spend any amount on the construction of those houses which we will not demand from you for whatever reason nor we will have the right to deduct from rent payable to you. 2.If any houses are constructed thereon, we will remove the superstructures. If we do not remove the structures then you will be the owners of the said structures. If you take them, then we and our heirs and representatives will not object. " We are unable to find even in these quotations from the lease any mention that the land is going to be used principally for the purpose of business or trade. The lease does mention that it was being taken for constructing houses. 'Mere was no mention at all, however, of the manner in which the constructed houses were to be utilised. Further, there is a clear option given to the lessees that they could us, , the land in any manner if they did not construct any houses. These are terms on the basis of which it cannot be said that the land was being let out for business purposes. The submission of counsel for the appellants was that, if the purpose was to construct houses and let them out on rent, that would constitute the use of the land for the purpose of business inasmuch as the lessees would be earning income from letting out those houses. We are unable to accept this submission, because we do not think that the word "business ' or "trade" used in the definition of "premises" in section 4 (2) (b) of the Act comprehends within it a lease which is merely for constructing houses. Learned counsel cited before us a number of decisions of Indian and English Courts, including decisions of the Privy Council and this Court,, in which the scope of the word "business" was interpreted. That interpretation was given in connection with the word "business" as used either in income tax law or in the terms of a covenant or the Companies Act, etc. We do not consider that it will be at all profitable to refer to them when interpreting the word "business" or "trade" as used in section 4(2) (b) of the Act, because none of those interpretations will cover a case similar to the one before us, where the lease was merely a permissive one giving a right to the lessees to construct houses and let them out or to use the land in any manner. When the purpose of the lease 176 was expressed in this way, it is impossible to hold that the principal use, to which the land was to be put by the lessees, was business or trade. As a consequence of this interpretation, it has to be held that the Act was not applicable to the lease of 1895 and, therefore, no question arises of the decree of 8th July, 1946 being invalid on the ground of contravening section 11 ( 1 ) of the Act. The second point urged by learned counsel was that, by the consent decree itself, a new tenancy was created which was to continue for five years and, in the, meantime, the Bombay Rents Hotel & Lodging House Rates Control Act, 1947 came into force and the appellants were protected from ejectment under the provisions of that Act. The consent decree does not state that a new tenancy is being created. The argument was that the terms of that consent decree should be interpreted as indicating an intention to create a new tenancy. ' We are unable to find any such terms. On the face of it, all that the, consent decree envisaged was that, though the judgment debtors were liable to immediate eviction, the decree holders agreed to let them continue in possession for a period of five years. Since this concession was being granted as a special case, the decree holders insisted that mesne profits should be paid at a much higher rate so much so that between all the defendants, governed by the two decrees of 8th July, 1946 and 28th January, 1949, the amount payable as mesne profits became Rs. 7,314 8 0 per annum which had no relation with the original rent of Rs. 199/ per annum for the entire land fixed by the lease of 1895" In fact the decree holders sought further protection by requiring the judgment debtors to pay the mesne profits in monthly instalments, and the instalments were so fixed that the mesne profits due for five years were to be paid within a period of three years. There was the further clause that, in case of default of payment of the mesne profits, the defaulting judgment debtors could be immediately called upon to deliver possession. These terms can, in no way, be interpreted as creating a new tenancy constituting the decree holders as landlords and the judgmentdebtors as their tenants. The terms of the consent decree neither constituted a tenancy nor a licence. All that the decree holders did was to allow the judgment debtors to continue in possession for five years on payment of mesne profits as a concession for entering into a compromise. The argument advanced must, therefore, be rejected. Reference was made by learned counsel for the appellants, in support of his argument, to a decision of the Bombay High Court in Gurupadappa, Shivlingappa Itgi vs Sayad Akbar Sayad Budan Kadri(1), but that case, in our opinion, has no application. In (1) 52 B.L.R. 143. 177 that case, in the consent decree itself, the first clause was that the defendant admits that he is a monthly tenant of the plaintiff and is to continue in possession till January 31, 1948. This clause specifically and clearly, in the language used, made it manifest that the defendant was a monthly tenant and was to continue in that capacity in possession. It was in these circumstances that it was held that a new tenancy had been created from the date of the consent decree. In the case before us, the terms of the consent decree are in no way comparable with the terms used in the consent decree in that case. The language used in the consent decree in the present case contains no indication of any intention to create a tenancy, so that the Bombay Rent Control, Act. 1947 could never apply to the case of the appellants. The third point raised by learned counsel was that, since there was one single suit based on the lease of 1895 for ejectment of persons in possession, there could be only one single decree in that suit and the Court was incompetent to pass two separate decrees on 8th July, 1946 and 28th January, 1949. Counsel, in this connection, relied on the provisions of rules 1 and 12 of Order XX of the Code of Civil Procedure which relate to the pronouncement of judgment and the Court passing a decree in a suit. These rules have really no relevance. On the other hand, rule 3 of Order XXIII, C.P.C., clearly envisages a decree being passed in respect of part of the subject matter of the suit on a compromise, and rule 6 of Order XII, C.P.C., permits the passing of a judgment at any stage without waiting for determination of other questions. Thus, it is clear that, in the same suit, there can be more than one decree passed at different stages. In the present case, the first decree of 8th July, 1946, was based on a compromise between the plaintiffs and some of the defendants, while the second decree dated 28th January, 1949 decided the rights of the remaining defendants. Th. , two decrees were separate and independent and neither of them could be treated as a nullity. In these circumstances, the Execution Court was right in re jecting all the objections raised by the appellants and in directing delivery of possession. The appeal fails and is dismissed with costs. V.P.S. Appeal dismissed.

The predecessors in interest of the respondents, leased certain land at an annual rent of Rs. 199, in 1895 for 49 years. The lease was a permissive one and gave right to the lessees to construct houses and let them out or to use the land in any manner. The original lessees, during the currency of the lease made transfers of their rights and also granted sub leases. A number of chawls and other buildings were constructed on the land and were let out. The respondents terminated the lease and sued for recovery of possession in 1945. A compromise was entered into with the appellants, who were some of the occupants, and a consent decree was passed on 8th July 1946. Another consent decree was passed against the remaining defendants on 28th January 1949. Under the two decrees the defendants were allowed to remain in possession for 5 years from the dates of the respective decrees and they bad also to pay monthly mesne profits which worked out to more than Rs. 7,000 per annum, and that amount was so fixed that the mesne profits due for the 5 years were to be paid in 3 years. There was also a clause that in case of default, the defaulting judgment debtors could be immediately called upon to deliver possession In 1953, the respondents sought possession by executing the consent decree dated 8th July 1946. On the questions : (1) Whether the decree contravened the provisions of the Bombay Rent Restriction Act, 1939, as the leased land was 'premises ' within the meaning of section 4(2)(b) of that Act; (2) whether the consent decree created a new tenancy which was protected by the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947; and (3) whether the passing of two separate decrees was illegal as the court was not competent to do so. HELD : (1) 'Premises ' is defined in section 4(2) (b) as any land let separately for the purpose of being used principally for business or trade. The words 'business or trade ' do not comprehend a lease which is merely for constructing houses. The terms of the lease, in the present case, do not establish that the lease was taken principally for using the land for 'business or trade. ' [174 C D ; 175 G H] The mere fact that there was a mention in the pleadings that any structure that might have been erected would have to be removed, would in no way lead to the conclusion that the principal purpose of the lease was to build structures and that the structures should be utilised for being let out on rent and thus constitute business or trade. Therefore tile decree did not contravene the provisions of the Bombay Rent Restriction Act. [174 F G; 175 D E; 176 A] 172 (2)On the face of it, all that the consent decree envisaged was that though the judgment debtors were liable to immediate eviction, the decree holders agreed to let them continue in possession for a period of 5 years, and, since the concession was granted as a special case, the decree holders insisted on payment of mesne profits at a much higher rate. The terms of the consent decree could in no way be interpreted as creating a new tenancy constituting the decree holders as landlords and the judgment debtors as their tenants. [176 C E, F G] (3)Order 23, r. 3 and 0. 12, r. 6 of the Civil Procedure Code envisage that in the same suit there can be more than one decree passed at different stages [177 D F]

Criminal Appeal No. 624 of 1979. From the Judgment and Order dated 27.3.1979 of the Madhya Pradesh High Court in Criminal Appeal No. 498 of 1977. Frank Anthony, Sushil Kumar Jain, Ms. Pratibha Jain and R.V. Singh for the Appellants. U.N. Bachhavat, Uma Nath Singh and J.M. Sood for the Respon dent. The following Order of the Court was delivered: These two appellants, namely, Mathura Prashad and Binda Prashad have preferred this appeal questioning the correct ness and legality of the judgment rendered in Criminal Appeal No. 498/77 by the High Court of Madhya Pradesh at Jabalpur Bench. These two appellants (A4 and A5 before the Trial Court) along with three others, namely, Gulab Chand and Gulab Singh and Laxman Rao (who were arrayed as accused Nos. 1 to 3) took their trial on the accusation that on the night intervening 5/6.12.75 at about 12.30 a.m. at Sarkanda, Bilaspur within the limits of Bilaspur Police Station, Civil Lines intentionally caused the death of the deceased, Keshav Singh by Gulab Singh stabbing the deceased with a knife and the rest of the people assaulting him and that in the course of the same transaction, they also committed the offence of dacoity. Under the above accusation, they were tried for offences punishable u/s 302 IPC in the alternative u/s 302 IPC read with 149 IPC and also for offence u/s 396 IPC. The Trial Court found the third accused, namely, Laxman Rao not guilty of any of the charges and consequently, acquitted him but convicted these two appellants and accused Nos. 1 and 2 who are not before us u/s 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life. However, the Trial Court acquitted the appellants and the other two accused of the offence u/s 396 IPC. On being aggrieved by the judgment of the Trial Court, the convicted accused namely, these two appellants, Gulab Chand and Gulab Singh filed 429 an appeal before the High Court which for the reasons men tioned in its judgment, dismissed the appeal confirming the conviction recorded by the Trial Court. Challenging this judgment, these two appellants filed their SLP No. 1902/79 and the other two convicted accused, namely, Gulab Chand and Gulab Singh (A1 and A2) filed a separate petition in SLP (Crl.) No. 1435/79. This Court by an order dated 29.10.79 granted leave so far as SLP filed by these two appellants, but dismissed the SLP filed by the first and the second accused namely, Gulab Chand and Gulab Singh. Hence, the present appeal by these two appellants. The facts of the case which led to the filing of this appeal are well set out in the judgments of the Trial Court and the High Court and hence we think that it is not neces sary for us to proliferate the same except to refer to certain salient features relevant for the disposal of this appeal. The deceased Keshav Singh was a petition writer. He was living in his house at Sarkanda in Bilaspur with his wife Smt. Phatokan Bai (PW 19) and two daughters, namely, Anjani Bai (PW 1) and Shail Kumari (PW 2) and his son, Ram Kumar (PW 3) who was younger to PW 1 and eider to PW 2. There were some tenants in different parts of that house. The accused Gulab Chand occupied a portion of that house as a tenant, but vacated the same about two months before this occurrence due to frequent quarrels between the children and ladies of the families belonging to Gulab Chand and that of the deceased. It is alleged that the wife of Gulab Chand had complained about some alleged misbehaviour of the deceased with her. According to the prosecution, when the deceased was sleeping in a room with his wife on the iII fated night, he heard someone knocking at the door. On this, the deceased switched on the light and opened the door. This appellant and the other accused entered his room. Gulab Chand and Gulab Singh whipped up their knives and gave stab wounds; one on the chest, another on the back while bending. These two appellants slapped and fisted the deceased. It is fur ther stated that the second appellant herein, namely, Binda Singh caught hold of the deceased and banged him against the wall repeatedly. PW 19 tried to save her husband but she was pushed aside. During the course of the occurrence, a gold 'PUTRI ' which PW 19 was wearing, was attempted to be snatched away from her. PW 1 who was sleeping in a room on the first floor, on hearing the cry, got down and saw these appellants and the other accused leaving her father 's room. It is alleged that the appellant while running away took with them a box con taining some clothes and other articles belonging to PW 1. According to the prosecution, the appellants had chained the doors in such a way that the other inmates of the house could not reach the spot. 430 After the appellants had fled away, PW 1 opened the doors. PW 3 who was sleeping in another room reached the spot. PW 15 was a tenant in an adjoining room and he on hearing the distress cry of PW 19, wanted to come out of his room but he could not do so as the house was chained from outside. Therefore, PW 15 shouted for opening the latches of the door. He came to the spot after the door was opened. One Ramji Dayal who seemed to have played an important role in the prosecution, also reached the spot but he has not been examined by the prosecution as a witness. All the witnesses saw bleeding injuries on the body of Keshav Singh (the deceased herein) who was unable to speak. PW 3, at the instance of his deceased father brought a pen and a piece of paper on which the injured Keshav Singh wrote 'Gulab Chand ' and thereafter became unconscious. The injured Keshav Singh was then taken to the Government hospital at Bilaspur where he succumbed to his injuries. The medical officer sent a requisition exhibit P 14 to the police station. PW 19, by then, lodged the first information report Exh. P 43 at about 3.00 a.m. on 6.12.75 before PW 21. PW 21 held inquest and pre pared the inquest report Exh. During the course of the investigation, he has seized exhibit P.50, the paper on which the deceased had written the name 'Gulab Chand ' on being produced by PW 3. PW 9, the medical officer who conducted autopsy on the dead body of the deceased, found two stab wounds and one incised wound on the person of the deceased. PW 8, another medical officer examined accused Gulab Singh and found on his person a small incised wound at the base of the index finger on the palmer aspect. After completing the investigation, the charge sheet was laid against all the accused persons. As aforementioned, the trial court convicted the four accused inclusive of these two appellants which conviction was confirmed by the High Court. Hence, this appeal by these two appellants. Of the witnesses examined, PWs 1, 2 and 19 speak about the participation of the appellants in the perpetration of this heinous crime. No doubt both the Courts below have concurrently found that these two appellants and the other two accused 1 and 2 were responsible for causing the death of the deceased and consequently convicted and so, the question would be whether this Court while exercising its jurisdiction under Article 136 of the Constitution of India, will be justified in interfering with the concurrent find ings of fact. This Court in Balam Ram vs State of U.P. 11975] 3 SCC 219 at 227 held, that the powers of the Supreme Court under Article 1.36 of the Constitution are wide but in criminal appeals, this Court does not interfere with the concurrent findings of fact save in exceptional circumstances. The 431 scope of interference by this Court under Article 136 of the Constitution of India in a case of concurrent findings of fact arose in Arunachalam vs PSR Sadhanathan, ; wherein this Court has held that "Article 136 of the Constitution of India invests the Supreme Court with a plenitude of plenary appellate power over all Courts and Tribunals in India. The power is plenary in the sense that there are no words under Article 136 itself qualifying that power. But, the very nature of the power has led the Court to set limits to itself within which to exercise such power. It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the Court. But, within the restrictions im posed by itself, this Court has the undoubted power to interfere even with findings of the fact, making no distinc tion between judgments of acquittal and conviction, if the High Court, in arriving at those findings had acted "per versely or otherwise improperly". (See State of Madras vs A. Vaidyanatha Iyer ; and Himachal Pradesh Admin istration vs Om Prakash, We think that it is not necessary to swell this judgment by citing all the decisions relating to this principle of law. When the facts and circumstances of the case are scruti nised, in our considered opinion, they do compel this Court to interfere on the ground that the findings of the Courts below suffer from the vice of perversity. I1 is the admitted case that the deceased was a petition writer and so in that capacity he was very well conversant as to how to draft a complaint. He asked for a pen and paper, and wrote the name, 'Gulab Chand ', evidently thereby saying that Gulab Chand was the assailant. The deceased had not written any other name except the name of Gulab Chand. Now the explana tion given by the prosecution is that the deceased became unconscious after writing this one name Gulab Chand, thereby saying had he not become unconscious, probably he would have written the names of other assailants also. But we have to test this evidence in the background of the evidence given by other witnesses namely PWs '1, 2 and 19. PW 19 who is none other than the wife of the deceased, was sleeping in the same room in which the deceased was sleeping and, there fore, she must be the proper and natural witness and her evidence has to be given credence. PW 19 admittedly did not inform either PW 1 or PW 2 the names of the assailants but she gave the names only to PW 3, her son. It transpires from the evidence of PW 19 that after PW 1 went to fetch the rickshaw, PW 3 asked his father as to who had assailed him 'and that it was only thereafter the injured Keshav Singh wrote the name of Gulab Chand on a piece of paper. The relevant portion of the evidence of PW 19 reads as follows: 432 Then Ram Kumar asked my husband as to who had assaulted and he asked for a pen and paper. Ram Kumar brought a paper and pen and my husband could write on it the name of Gulab Chand. In this connection, evidence of PW 2 may also be re ferred to which is as follows: "Then at this stage, my brother asked him as to who had assaulted him. My father asked by a sign of hand for a pen and paper, whereupon my brother brought the pen and paper and gave that to my father. My father wrote on it by his hand; he wrote the name of Gulab Singh and thereafter he became unconscious. ' This dearly indicates that before the deceased wrote the name of Gulab Chand on the paper given by his son, PW 3, no one including PW 19 came forward with the names of the assailants but it is only thereafter, PW 19 gave the names of the assailants. Here also, the prosecution is not con sistent because PW 2 says that her father also gave the name of all the assailants to Ram Kumar (PW 3). The relevant part of PW 2 's evidence reads thus: "Then my mother and father both mentioned the names of the assailants. At that time my brother, Ram Kumar was also there. After Ramji had enquired, my brother also enquired them. My father asked for by a sign of hand for pen and a copy. " The above extracted pieces of evidence of PWs 2 and 19 indicate that PW 3 was not informed of the names of the assailants before his father (the deceased herein) wrote the name of Gulab Chand. Had PW 3 informed by his mother (PW 19) of the names of the assailants, he might not have asked his father as to who the assailants were. In other words, till the deceased wrote the name of Gulab Chand on a piece of paper evidently PW 3 did not know as to who assailant or assailants was/were. It seems that both the Courts below have not approached this significant aspect of this salient feature in the proper perspective. On the other hand, it has conveniently omitted this significant factor from consideration which gives the death knell to the prosecution case so far as the alleged participation of these two appellants in this brutal crime. In the inquest report Exh. P 24, it is stated that all the relatives of the deceased 433 Keshav Singh were examined and the following conclusion was arrived at: ". . the conclusion was reached that the death of deceased Keshav Singh by Gulab Singh, Gulab Chand etc. was due to knife wounds. " This 'etc. ' in the present case has no relevance because there is a specific averment that the two assailants namely, Gulab Singh and Gulab Chand stabbed the deceased with knives which case alone fits in with the earlier statements of PWs 2 and 19 as well as the version of the deceased in Exh. If really the names of these two appellants had been mentioned by the witnesses, those names also would have been specifically mentioned in Exh. P :24. At this juncture, the learned senior counsel appearing on behalf of the State referred to a decision of this Court reported in ; Pedda Narayana vs State of Andhra Pradesh wherein this Court has held that the question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances, he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. This decision will not be of any help to the prosecution because only two names are mentioned in the inquest report as as sailants, leaving the names of these two appellants who are now rightly attempting to take advantage of this conspicuous omission in Exh. P. 24. Though PW 19 is said to be the author of Exh. P 43, she before the Trial Court does not claim to be the author of the entire averments. She states that the police who record ed the report, asked only her name and her husband 's name and nothing further was asked from her and she did state anything more than that. PW 19 further had deposed that she did not give the names of the accused who assaulted, that she did not know whether her husband was then dead or alive, that at Thana (Police Station) she came to know about the death of her husband, that even then she did not mention the names of the assailants, and that before going to the Thana, she did not give the names of any of the assailants to any person. It is in evidence that both these appellants were present at the scene of occurrence when the police constable came, but none pointed out to the police that these two appellants also participated in the crime. Now the explana tion offered by the prosecution is that these two appellants took the constable aside and whispered something and there fore, PW 1 suspecting that the police constable was taking side with the appellants did not come forward with a state ment that these two appellants were also the participants in the crime. This explanation seems to have been offered only before the Trial Court. Both the Courts below have conven iently over 434 looked and ignored all the above glaring infirmities appear ing in the case and as such the concurrent findings recorded by both the Courts are not proper but perverse. After meticulously and scrupulously analysing the evi dence, we are left with an impression that the prosecution has not satisfactorily established the guilt of these two appellants beyond all reasonable doubt. Hence, we are unable to agree with the findings of the lower Courts that these two appellants also participated in the crime with the other two accused. In the result, the conviction of these two appellants u/s 302 read with 34 IPC and the sentence of imprisonment for life imposed therefore are set aside and both of them are acquitted. The appeal is thus allowed. V.P.R Appeal al lowed.

According to the prosecution, when the deceased a peti tion writer, was sleeping in a room with his wife (PW.19) on the iII fated night, he heard someone knocking at the door. The deceased switched on the light and opened the door. The accused (A.1 and A.2) entered his room. They whipped up their knives and gave stab wounds; one on the chest, another on the hack while bending. They also slapped and listed the deceased. It was further stated that the second appellant (A 5) caught hold of the deceased and banged him against the wall repeatedly. PW19 tried to save her husband but she was pushed aside. During the course of the occurrence, a gold 'PUTRI ' which PW 19 was wearing, was attempted to be snatched away from her. The eldest daughter of the deceased, PW 1, who was sleeping in a room on the first floor, on hearing the cry, got down and saw the appellants and the other accused leav ing her father 's room. The appellants while running away took with them a box containing some clothes and other articles belonging to PW 1 and chained the doors in such a way that the other inmates of the house could not reach the spot. The deceased 's son, PW 3, who was sleeping in another room reached the spot. PW 15, a tenant in an adjoining room on hearing the distress cry of PW 19, wanted to come out of his room but he could not do 426 so as the house was chained from outside. He came to the spot after the door was opened. All the witnesses saw bleeding injuries on the body of the deceased who was unable to speak. PW 3, at the instance of his deceased father brought a pen and a piece of paper on which the injured deceased wrote 'Gulab Chand ' and thereaf ter became unconscious, and he was then taken to the Govern ment hospital where he succumbed to his injuries. The two appellants (A4 and A5 before the Trial Court) along with three others were tried section 302 IPC or section 302/149 and section 396, for causing the death of the deceased, accused No. 2 stabbing the deceased with a knife and the rest of the accused assaulting him and for committing the offence of dacoity. The Trial Court found the third accused not guilty of any of the charges and acquitted him but convicted others section 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life, and acquitted them of the offence section 396 IPC. The High Court confirmed the conviction. The present two appellants (A4, A5) filed the present appeal against the judgment of the High Court through special leave. The other two accused (A1 and A2) preferred a separate special leave petition, which was dismissed by this Court. Allowing the appeal of the two accused (A4, A5), this Court, HELD: 1. The powers of the Supreme Court under Article 136 of the Constitution are wide but in criminal appeals, this Court does not interfere with the concurrent findings of fact, save in exceptional circumstances. [430 H] 2. Within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of the fact, making no distinction between judgments of acquit tal and conviction, if the High Court, in arriving at those findings has acted perversely or otherwise improperly. [431 C] Arunachalam vs PSR Sadhananthan, ; ; State of 427 Madras vs A. Vaidyanatha Iyer; , ; Himachal Pradesh Administration vs Om Prakash, [1972]1 SCC 249, referred to. 3.01 The deceased was a petition writer and so in that capacity he was very well conversant as to how to draft a complaint. He asked for a pen and paper, and wrote the name, 'Gulab Chand ', evidently thereby saying that Gulab Chand was the assailant. The deceased had not written any other name except the name of Gulab Chand. Now the explanation given by the prosecution is that the deceased became unconscious after writing this one name Gulab Chand, thereby saying had he not become unconscious, probably he would have written the name of other assailants also. [431 E F] 3.02. PW 19 the wife of the deceased, was sleeping in the same room in which the deceased was sleeping did not inform either PW 1 or PW 2 the names of the assailants but she gave the names only to PW 3, her son. It transpires from the evidence of PW 19 that after PW 1 went to fetch the rickshaw, PW 3 asked his father as to who had assailed him and that it was only thereafter the injured deceased wrote the name of Gulab Chand on a piece of paper. Before the deceased wrote the name of Gulab Chand on a piece of paper given by his son, PW 3, no one including PW 19 came forward with the names of the assailants. [431 F G] 3.03. The evidence of PW 2 and 19 indicated that PW 3 was not informed of the names of the assailants before his father (the deceased) wrote the name of Gulab Chand. Till the deceased wrote the name of Gulab Chand on a piece of paper evidently PW 3 did not know as to who the assailant or assailants was/were. The Courts below have not approached this signifi cant aspect of this salient feature in the proper perspec tive. [432 G] 3.05. In the inquest report there is a specific averment that the two assailants namely, Gulab Singh (A.2) and Gulab Chand (A.1) stabbed the deceased with knives which case alone fits in with the earlier statements of PWs 2 and 19 as well as the version of the deceased in Exh. P. 50. If really the names of the two appellants had been mentioned by the witnesses, those names also would have been specifically mentioned in Exh. P. 24, the inquest report. [433 B C] 428 3.06. It is in evidence that both the appellants were present at the scene of occurrence when the police constable came, but none pointed out to the police that these two appellants also participated in the crime. The prosecution has not satisfactorily established the guilt of the two appellants beyond all reasonable doubt.

Appeal No. 1749 of 1980. From the Judgment and Order dated 26.3. 1980 of the Gujarat High Court in Special Civil Application No. 1606 of 1975. D.A. Dave, Vimal Dave, R. Karanjawala, Mrs. Manik Karanjawala, Jitender Singh and P.K Mullick for the Appellant. R.R. Goswami, S.K Dholakia, P.H. Parekh, Fazal, H.K Rathod and S.C. Patel for the Respondents. The following Order of the Court was delivered: The State of Gujarat, the appellant herein, is aggrieved against a mandamus issued by the High Court of Gujarat on March 26, 1980 'in Special Civil Application No. 1606/75 whereby its decision to impose a ratio while working out a, Quota rule was upset. The minimum facts are these: In the State Public Works Department there was an Electrical Engineering Branch. By Resolution dated July 10, 1972, the services in the said branch w.e.f May 1, 1972 were trifurcated on the same pattern as was 386 done in other branches. The result was that the trifurcation ended into three cadres (1) Junior Engineers, (2) Supervisors and (3) Over seers. The compartment of Over seers is a surplus age. There was only one Overseer at the relevant time and he stood retired. In substance it was a bifurcation between Junior Engineers and Supervisors, the former being graduates and the latter being diploma holders. This exercise of the State Government was challenged in a writ petition before the High Court in Special Civil Application No. 1855/73, which was negatived by the High Court by an order dated 2nd April, 1975. The High Court directed that in working out the trifurcation the Government must provide criterion for promotion from the three independent cadres. In compliance thereof, the State Government adopted a Resolution dated 26.9.1975 introducing a quota rule effective from May 1, 1972 at the ratio of 2:1 for Junior Engineers and, Supervisors respectively for promotion to the posts of Deputy Engineers. The nine contesting respondents herein preferred a writ petition being Special Civil Application No. 1606/75 before the High Court challenging the trifurcation as also the quota rule. The High Court repelled the challenge in so far as it related to the trifurcation and the adoption of quota rule but struck down the ratio of 2:1 holding it to be unjustified as also the disparity in qualifying service from both the channels. The High Court concluded as follows: "We are, therefore, of the opinion that though it was within the power of the State Government to bifurcate the unified cadre into two distinct cadres of Junior Engineers and Supervisors and though it was within the power of the State Government to prescribe a quota for both of them for the purpose of promotion to the higher posts of a Deputy Engineer there was no justification for prescribing the quota of 2:1 and a longer qualifying service for the Supervisors. Therefore, the promotional rule which prescribes unequal quota and an unequal length of qualifying service for Supervisors for promotion to the posts of a Deputy Engineer is liable to be struck down. " And accordingly it did by issuing a mandamus. The State Government of Gujarat when appealing to this Court was unsuccessful in obtaining a stay of operation of the impugned judgment. 387 As a consequence it had to obey the mandate of the High Court which was to the effect that the ratio of 2:1 could not be enforced. As a result the quota rule went out of gear. It was left open all the same to the State Government to make any other rational rule in that behalf. Even this Court on 18.12.1980, at that juncture, ordered, "Let the Government frame a fresh quota rule consistent with the High Court judgment under appeal for the purpose of making promotions during the pendency of the appeal. ' Pursuant thereto, it appears that the State Government was constrained to introducing of a Rule under Article 309 of the Constitution. But before we advert to that Rule it would be relevant to mention that earlier in point of time, by Notification dated July 4, 1978, Rules known as Deputy Engineer (Electrical) Recruitment Rules, 1978, were framed under Article 309 of the Constitution giving a statutory clothing to the Resolutions dated 10.7.72 and 26.9.75. Unfortunately, these statutory provisions were not brought to the notice of the High Court nor were they put to challenge. The matter in the High Court proceeded on the assumption that an executive action of the State was under challenge. The necessary assumptions and presumptions, well known to law and the placement of onuses went unnoticed. In this background and facing the situation so arising the State Government issued a Notification on April 12, 1982 by causing a substitution in the earlier Rules of 1978 aforementioned by fixing t he promotional ratio from both sources at 1:1, but subjected them to the result of the instant litigation emerging from this Court. We stand deprived of the pleadings of the parties before the High Court. The pleadings now introduced do not help us. Significantly, the High Court judgment is silent as to the basis on which it was persuaded to strike down the ratio of 2:1 for Junior Engineers and Supervisors respectively. The tenor of the judgment of the High Court does however suggest that the executive flexibility, with which the Government works could not justify the fixation of the ratio of 2:1. The High Court could not and did not substitute what was the right ratio in the circumstances and left it to the Government to devise another ratio. Had the, factum of the legislation on the subject the Rules dated 4.7.1978, been brought to its notice, perhaps the High Court 's angle of vision would have been different. The State has no doubt compulsively carried out the mandate but has done so with reservation so as to meet the eventuality. No such measure can ever be permanent that would hold good for all times, to meet not only the present needs but also future exigencies as well. Hands of the State cannot to so 388 tied down. That would be a step retrograde to the growth and working of a democracy. The State is now left to devise a ratio other than the ratio of 2:1 and cause a variation. It cannot come to that ratio again. This appears to us an undesirable situation. It must be left to the State to get at, it again. Though obeying the mandamus of the High Court the State must be free to arrive at the original ratio of 2:1. On some basis the Governor of the State appears to have legislated on the subject. It was on the writ petitioner 's (now respondents) to lay data before the High Court and bear the onus to show that the legislative measure was unfair and arbitrary, violative of Article 14 of the Constitution. As said before no such data appears to have been placed before the High Court. On these circumstances, we are left with no option but to upset the judgment of the High Court and remand the matter back to it for reconsideration. In doing so we may set at rest the controversy regarding difference of length of qualifying service, from both sources. The controversy does not survive in view of Roop Chand Adlakha & Ors. vs Delhi Development Authority & Ors., [1989] Supp. I SCC 116. The High Court need not advert now to the disparity in length of qualifying service from the channels of promotion. In the meantime, however, status quo needs to be preserved. The substituted Service Rules of 1982 shall continue to operate till the decision of the High Court and the promotions, as before, shall continue, subject to the result of the judgment of the High Court. In these terms we allow the appeal and set aside the judgment. The High Court may pass appropriate orders afresh, after permitting the parties to amend their pleadings, if necessary, and putting the onus on the writ petitioners to prove unfairness in the 1978 Rules, or violation of Article 14 of the Constitution. Since it is an old matter, we request the High Court to dispose it of as quickly as possible, preferably within six months. No Costs. V.P.R. Appeal allowed.

The appellant State by resolution dated 10.7.1972, trifurcated the services, in the Electrical Engineering Branch of the Public Works Department into three cadres, namely, (1) Junior Engineers, (2) Supervisors and (3) Over seers, w.e.f. 1.5.1972. At the relevant time there was only one Overseer and he stood retired. Therefore, In substance it was a bifurcation between Junior Engineers and Supervisors the former being graduates and the latter being diploma holders. In a writ petition before the High Court exercise of the State was challenged. The High Court directed the State to provide for a criterion for promotion from the three independent cadres, for working out the trifurcation. In compliance of the order of the High Court, the appellant adopted a Resolution dated 26.9.1975 introducing a quota rule effective from May 1, 1972 at the ratio of 2:1 for Junior Engineers and Supervisors respectively for promotion to the posts of Deputy Engineers. The respondents challenged the trifurcation and also the quota rule in a writ petition before the High Court. 384 The High Court struck down the ratio of 2:1 holding it to be unjustified as also the disparity in qualifying service from both the channels. Hence this appeal by special leave by the State, being aggrieved against a mandamus issued by the High Court not to impose the ratio of 2:1 while working out the quota rule. As the appellant was unsuccessful in obtaining a stay of operation of the High Court 's judgment, it had to obey the mandate of the High Court and the ratio of 2:1 could not be enforced. This Court on 18.12.1980 ordered the Government to frame a fresh quota rule consistent with the High Court judgment for the purpose of making promotions during the pendency of the appeal and under Article 309 of the Constitution, a Rule was framed. Earlier the appellant had framed the Deputy Engineer (Electrical) Recruitment Rules, 1978 under Article 309 of the Constitution, which were not brought to the notice of the High Court nor the Rules, 1978 were challenged. Allowing this appeal, this Court, HELD:1.01. The matter in the High Court proceeded on the as sumption that an executive action of the State was under challenge. The necessary assumptions and presumptions, well known to law and the placement of onuses went unnoticed. In this background and facing the situation so arising the State Government issued a Notification on April 12, 1982 by causing a substitution in the earlier Rules of 1978 by fixing the promotional ratio from both sources at 1:1, but subjected them to the result of the instant litigation emerging from this Court. [387D E] 1.02. The High Court judgment is silent as to the basis on which it was persuaded to strike down the ratio of 2:1 for Junior Engineers and Supervisors respectively. The tenor of the judgment of the High Court does however suggest that the executive flexibility, with which the Government works could not justify the fixation of the ratio of 2:1. The High Court could not and did not substitute what was the right ratio in the circumstances and left it to the Government to devise another ratio. Had the factum of the legislation on the subject i.e. the Rules dated 4.7.1978, been brought to its notice, perhaps the High Court 's angle of vision would have been different [387F G] 385 1.03. The State has no doubt compulsively carried out the mandate but has done so with reservation so as to meet the eventuality. No such measure can ever be permanent that would hold good for all times, to meet not only the present needs but also future exigencies as well. Hands of the State cannot be so tied down. 'Mat would be a step retrograde to the growth and working of a democracy. [387H, 388A] 1.04. It was on the Writ petitioner 's (now respondents) to lay data before the High Court and bear the onus to show that the legislative measure was unfair and arbitrary, violative of Article 14 of the Constitution. No such data appears to have been placed before the High Court. [388B] 1.05. On these circumstances the case is remanded to the High Court for reconsideration. [388C] Roop Chand Adlakha & Om vs Delhi Development Authority & Ors., [1989] Supp I SCC 116, referred to. [388D]

t Petition No. 581 of 1979 (Under Article 32 of the Constitution.) M. K. Ramamurty, Ramesh Chand Pathak for the Petitioner. (Dr.) L. M. Singhvi, Altaf Ahmed and L. K. Pandey for the Respondents. The Judgment of R. section Sarkaria and P. N. Shinghal, JJ. was delivered by Shinghal, J. O. Chinnappa Reddy, J. gave a separate Opinion. SHINGHAL J., This petition of Mohammad Yousuf Rather under article 32 of the Constitution challenges his detention under section 8 (a) (i) of the Jammu and Kashmir Public Safety Act, 1978, hereinafter referred to as the Act. The order of detention has been made by the District Magistrate of Anantnag on April 12, 1979, and it is not in controversy that it has really been made under sub section (2) of section 8 of the Act on the basis of the satisfaction provided for in sub clause (i) of clause (a) of sub section (1) of that section. While the petitioner has stated that he did not receive the order of detention, and only the grounds of detention were communicated to him, his learned counsel Mr. Ramamurthi has not raised any controversy on that account. He has in fact given up several other points on which the writ petition has been filed, and has contended himself by putting his arguments in two ways. Firstly he has argued that some of the grounds are so vague that the petitioner has not found it possible to exercise his fundamental right of making a representation under article 22 (5) of the Constitution. Secondly he has argued that some of the grounds are irrelevant for the purpose of making of an order under section 8 of the Act. We shall therefore confine ourselves to a consideration of these two points of controversy. The grounds of detention have admittedly been sent to the petitioner by way of an annexure to the District Magistrate 's order No. 49 54/ST dated April 12, 1979. It has been stated therein that the detention has been ordered on "the grounds specified in the Annexure. which also contains facts relevant thereto," and the peti 261 tioner has been informed that he may make a representation to the Government against the order of detention if he so desires. We shall refer to the annexure in a while, but it may be stated here that the counsel for the respondents has not found it possible to contend that no part thereof is vague. He has however tried to argue that the annexure contains a preamble as well as the grounds of detention, and that the vagueness of the preamble could not possibly justify the argument that the grounds of detention are also vague. Learned counsel has tried to support his argument by reference to the decision of this Court in Naresh Chandra Ganguli vs State of West Bengal and others. The annexure reads as follows, "You are a die hard Naxalite and you are notorious for your activities which are proving prejudicial to the maintenance of public order. You are in the habit of organising meetings, secret as well as public, in which you instigate the people to create lawlessness which spreads panic in the minds of a common people. You are also reported to be in the habit of going from one village to the other, with intent to compel the shopkeepers to close down their shops and participate in the meetings. You are reported to have recently started a campaign in villages, asking the inhabitants not to sell their extra paddy crop to the Government and in case they are compelled to do so, they should manhandle the Government officials deputed for the purpose of purchasing shali on voluntary basis from the villagers. On 9 2 79 you, after compelling the shopkeepers to close down their shops, organised a meeting at Chowalgam and asked the participants to lodge protests against the treatment meted out to Shri Z. A. Bhutto, late Prime Minister of Pakistan by General Zia UI Haq, in fact, you did not have any sympathy for the late Prime Minister, but you did it with the intent to exploit the situation and create lawlessness. On 23 3 79 you presided over a meeting at Kulgam and delivered a speech. Among other things, you passed derogatory remarks against Sheikh Mohd. Abdullah, the Chief Minister of the State and compared him with General Zia of Pakistan, said that he (the Chief Minister) also wants to become a dictator. You further stated that the Mulas of Kashmir are preparing for distribution of sweets on the day when Shri Bhutto is sent to gallows. You also stated that 262 the people of the State have been oppressed and blamed the Chief Minister for their oppression. You asked the audience to shun the life of dishonour and rise is revolt against oppression. You went to the extent of saying that India should vacate the forcible occupation of the State, as the Kashmir question has not so far been settled. These irresponsible utterances of you are likely to create feelings of hatred and enmity which will ultimately disturb the public order. On 29 3 1979 posters were found pasted on walls in Kulgam area which were got published by the CPI (ML). It was learnt that there was your hand in pasting these posters, the posters were captioned 'Inqalab ke bager koe hal nahin '. The contents of the poster, among other things, revealed that it made a mention of plebiscite saying that the demand was given up with ulterior motives. It further stated that the people should prepare themselves for revolution. You were also noticed instigating the "Educational" (sic) unemployed youth who had recently gone on a hunger strike at Anantnag. On 4 4 1979 and 5 4 1979 after Mr. Z. A. Bhutto was hanged, you were found leading the unruly mobs in different villages and instigating them to set the house of J.E.I. worker on fire. As a result of this instigation a number of houses were set on fire, property looted and heavy damages caused to the people at village Rarigam. In this connection a case FIR No. 34/79 U/s 395, 436, 148, 307 etc. has been registered at Police Station Kulgam against you and others. Property worth thousands has so far been recovered during the investigation of this case. Your activities are highly prejudicial to the maintenance of public order and I am convinced that unless you are detained, large scale disturbances resulting in wide spread loss to the public and private property and to the safety of peaceful citizens will occur." 'Preamble ' has been defined in the Oxford English Dictionary to mean "a preliminary statement, in speech or writing; an introductory paragraph, section, or clause; a preface, prologue, introduction. " It has further been defined there as "an introductory paragraph or part in a statute deed, or other document, setting forth the grounds and intention of it. " The preamble thus betokens that which follows. The respondents ' learned counsel has not however found it possible to point 263 out where the preamble could be said to begin, or to finish, and which of the paragraphs could be said to constitute the grounds of detention as such. As it is, in very first paragraph, which alone could be said to be in the nature of an introductory paragraph or a preliminary statement, it has been stated, inter alia, that the petitioner was reported to have "recently" started a campaign in villages asking the inhabitants not to sell their extra paddy crop to the Government and to manhandle the Government officials in case they were compelled to do so. There is however no mention, in any other part of the annexure, of the petitioner 's asking the inhabitants not to sell their paddy crop anywhere else or to manhandle the Government officials deputed for its purchase. We are therefore unable to think that even the first paragraph is in the nature of a preamble to what has been stated in the subsequent paragraphs. A reading of the first paragraph shows that it is vague in several respects. It does not state the places where the petitioner is said to have organised the meetings, or the nature of lawlessness instigated by him. It does not also mention the names of the villages where he is said to be in the habit of going for compelling the shopkeepers to close down their shops and to participate in the meetings. So also, it does not mention the villages where the petitioner was reported to have "recently" started the campaign asking the inhabitants not to sell their extra paddy, or to manhandle the government officials. The paragraph is therefore undoubtedly very vague. But even if the first paragraph is left out of consideration on the pretext that it is in the nature of a preamble, the fifth paragraph is quite vague, for while it states that the petitioner was noticed instigating the educated unemployed youth who had recently gone on a hunger strike in Anantnag, the nature or the purpose of the alleged instigation has not been stated so that it is not possible to appreciate whether it could be said to fall within the mischief of clause (b) of sub section (3) of section 8 which defines what is meant by "acting in any manner prejudicial to the maintenance of public order" within the meaning of clause (a) (i) of sub section (1) of section 8. For instance, if it was noticed that the petitioner was instigating the educated unemployed youth to go on hunger strike for the purpose of pressing their demand for employment, that would not amount to acting in any manner prejudicial to the maintenance of public order as it would not be covered by any of the four meanings assigned to that expression in clause (b) of sub section (3) of section 8. 264 The sixth paragraph is also vague, for while it states that the petitioner was found leading the unruly mobs in different villages and instigating them to set fire to the house of the worker of Jamaiat e Islami the names of those villages and the name of the owner of burnt house have not been stated. It is obvious therefore that the above grounds of detention are vague. This Court has disapproved of vagueness in the grounds of detention because that impinges on the fundamental right of the detenu under article 22(5) of the Constitution to make a representation against the order of detention when the grounds on which the order has been made are communicated to him. The purpose of the requirement is to afford him the earliest opportunity of seeking redress against the order of detention. But as is obvious, that opportunity cannot be said to be afforded when it is established that a ground of detention is so vague that he cannot possibly make an effective representation. Reference in this connection may be made to this Court 's decision in State of Bombay vs Atma Ram Sridhar Vaidya where the guarantee of article 22(5) has been characterised as an elementary right of a citizen in a free democratic state, and it has been held that if a ground of detention is not sufficient to enable the detained person to make a representation at the earliest opportunity, it must be held that his fundamental right in that respect has been infringed inasmuch as the material conveyed to him does not enable him to make the representation. So as the aforesaid grounds of detention are vague, the petitioner is entitled to an order of release for that reason alone. It is true that, as has been held in Naresh Chandra Ganguli 's case, (supra) "vagueness" is a relative term, and varies according to the circumstances of each case, but if the statement of facts contains any ground of detention which is such that it is not possible for the detenu to clearly understand what exactly is the allegation against him, and he is thereby prevented from making an effective representation, it does not require much argument to hold that one such vague ground is sufficient to justify the contention that his fundamental right under clause (5) of article 22 of the Constitution has been violated and the order of detention is bad for that reason alone. Reference in this connection may also be made to the decisions in Tarapada De and others vs The State of West Bengal, Dr. Ram Krishan Bhardwaj vs State of Delhi and other Shibban Lal Saxena vs State of Uttar Pradesh Rameshwar Lal Patwari vs State of 265 Bihar, Motilal Jain vs State of Bihar and others and Pushkar Mukherjee and others vs State of West Bengal. It has next been argued by the learned counsel for the petitioner that at least five of the grounds of detention are irrelevant. It has been stated in paragraph 2 of the grounds of detention that after compelling the shopkeepers to close down their shops on February 9, 1979, the petitioner organised a meeting at Chowalgam and asked the participants to lodge a protest against the treatment meted out to Shri Z. A. Bhutto, and that while in fact the petitioner did not have any sympathy for the late Prime Minister of Pakistan, he did it with the intention of exploiting the situation and to create lawlessness. We have made a reference to clause (b) of sub section (3) of section 8 of the Act which defines what is meant by "acting in any manner prejudicial to the maintenance of public order" in sub section (1) of that section, but the ground mentioned in the second paragraph does not fall within the purview of any of the four clauses of clause (b) as it does not state that the petitioner promoted, propagated, or attempted to create feelings of enmity or hatred or disharmony on grounds of religion, race, caste, community, or region, or that he made preparations for using or attempting to use, or using, or instigating, inciting, provoking, or otherwise abetting the use of force in a manner which disturbed or was likely to disturb the public order within the meaning of sub clauses (i) and (ii) of clause (b). As is obvious, the remaining two sub clauses (iii) and (iv) can possibly have no application to the allegation in paragraph 2. The ground contained in that paragraph was therefore clearly irrelevant for the satisfaction of the District Magistrate in making an order of detention under section 8(2) of the Act. Then it has been stated in paragraph 3 that the petitioner presided over a meeting at Kulgam and delivered a speech where, among other things, he passed "derogatory remarks against Sheikh Mohd. Abdullah, the Chief Minister of the State and compared him with General Zia of Pakistan, and said that he (the Chief Minister) also wants to become a dictator." That allegation also does not fall within any of the four sub clauses of clause (b) of sub section (3) of section 8, as it does not refer to the promoting or propagating or attempting to create feelings of enmity or hatred or disharmony on grounds of religion, race, caste, community or region or making of preparations for using or attempting to use, or using, or instigating, inciting, provoking or other 266 wise abetting the use of force in any manner whatsoever. For this allegation also, the remaining two sub clauses are of no relevance. What has been alleged is that the petitioner stated in his speech at the Kulgam meeting that the people of the State had been oppressed, that he blamed the Chief Minister for their oppression, and that he asked his audience to "shun the life of dishonour and rise in revolt against oppression. " It has not been stated that the petitioner thereby promoted, propagated or attempted to create feelings of enmity or hatred or disharmony on grounds of religion, race, caste, community, or region, or that he instigated or incited or provoked the audience to use force. Peaceful and lawful revolt, eschewing violence, is one of the well known modes of seeking redress in this country. A substantial part of the statement of facts mentioned in paragraph 3 of the grounds of detention is therefore irrelevant and can not justify the order of detention under section 8 of the Act. It has been stated in paragraph 4 that a poster was found pasted on walls in Kulgam area on March 29, 1979, in the pasting of which the petitioner had a hand. The poster was captioned "Inqilab ke baghair koi hall nahin", and it mentioned that the demand for plebiscite was given up with ulterior motives. It further said that the people should prepare themselves for revolution. But even if it were assumed that the petitioner had hand in pasting the poster, which is alleged to have been published by the CPI (ML), it cannot be said that he thereby acted in any manner prejudicial to the maintenance of public order, for his alleged action did not fall within the purview of any of the subclauses of clause (b) of sub section (3) of section 8 of the Act. Apart from the fact that it has not been stated that the poster promoted, or propagated or attempted to create feelings of enmity or hatred or disharmony on grounds of religion, race, caste, community etc., it has also not been stated that the poster instigated, incited, provoked or otherwise abetted the use of force so as to amount to acting in any manner prejudicial to the maintenance of public order. As has been stated, a revolution can be brought about by peaceful and lawful means, and asking the people to prepare themselves for it cannot be a ground of detention under section 8. We have made a reference to paragraph 5 of the grounds of detention, which states that the petitioner was noticed instigating the educated unemployed youth who had gone on hunger strike at Anantnag, to show the vagueness of that ground. It may further be stated that it is quite an irrelevant ground also, because any such instigation could not be said to fall within the purview of clause (b) of sub section (3) of section 8. 267 It is well settled that a ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention under the appropriate law. It nevertheless appears that the aforesaid irrelevant grounds were taken into consideration for making the impugned order, and that is quite sufficient to vitiate it. Reference in this connection may be made to the decisions in Keshav Talpade vs The King Emperor, Tarapada De and others vs State of West Bengal (supra), Shibban Lal Saxena vs State of Uttar Pradesh and others (supra), Pushkar Mukherjee and others vs State of West Bengal (supra), Satya Brata Ghose vs Mr. Arif Ali, District Magistrate, Sibasagar, Jorhat and others and to K. Yadava Reddy and others vs The Commissioner of Police, Andhra Pradesh, Hyderabad, and another. It has been held there that even if one of the grounds of detention is irrelevant, that is sufficient to vitate the order. The reason is that it is not possible to assess in what manner and to what extent that irrelevant ground operated on the mind of the appropriate authority and contributed to provide the satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of the public order. It is obvious that the detention of the petitioner was illegal, and that is why we made an order on August 3, 1979 for his release. CHINNAPPA REDDY, J. A good deal of vehement argument was advanced by Dr. Singhvi to sustain the order of detention and this has led me to add this brief note to the opinion of my brother Shinghal, J., with whose conclusions I agree. The Constitution of India recognizes preventive detention as a necessary evil, but, nonetheless, an evil. So we have, by constitutional mandate, circumscribed the making of laws providing for preventive detention. While Article 22 Clauses (4), (5), (6) and (7) expressly deal with preventive detention, Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law and Article 19(1) (d) guarantees to citizens the right to move freely throughout the territory of India subject to reasonable restrictions made in the interests of the general public as mentioned in Article 19(5). At one time it was thought that Article 22 was a complete code in regard to laws providing for preventive detention and that the validity of an order of detention should be determined strictly according to the terms and "within the four corners of that 268 article". It was held in A.K. Gopalan vs State of Madras, that a detenu may not claim that the freedom guaranteed by Article 19(1) (d) was infringed by his detention, and that the validity of the law providing for preventive detention was not to be tested in the light of the reasonableness of the restrictions imposed thereby on the freedom of movement, nor on the ground that his right to personal liberty was infringed otherwise than according to procedure established by law. A theory was evolved that the nature and extent of the Fundamental Rights was to be measured by the object and form of the State action and not by the operation of the State action upon the rights of the individual. This has now been shown to be wrong. In R.C. Cooper vs Union of India the Full Court opted for a broader view and it was held that it was not the object of the authority making the law impairing the right of the citizen, nor the form of action taken that determined the protection the citizen could claim; it was the effect of the law and of the action upon the right which attracted the jurisdiction of the Court to grant relief. So, in that case, they rejected the submission that Article 31(2) was a complete code in relation to the infringement of the right to property by compulsory acquisition and the validity of the law was not to be tested in the light of the reasonableness of the restrictions imposed thereby. So it follows that a law providing for preventive detention and action taken under such a law, to pass muster, have now to satisfy the requirements of both Articles 19 and 22 of the Constitution. We are primarily concerned in this case with Article 22(5) which is as follows: "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, 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". The extent and the content of Article 22(5) have been the subject matter of repeated pronouncements by this Court (Vide, State of Bombay vs Atmaram, Dr. Ramkrishna Bharadwaj vs State of Delhi, Shibbanlal Saxena vs State of Uttar Pradesh, Dwarkadas Bhatia vs 269 State of Jammu & Kashmir. The interpretation of Article 22(5), consistently adopted by this Court, is, perhaps, one of the outstanding contributions of the Court in the cause of Human Rights. The law is now well settled that a detenu has two rights under Article 22(5) of the Constitution: (1) To be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him. The inclusion of an irrelevant or non existent ground among other relevant grounds is an infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. In either case there is an invasion of the Constitutional rights of the detenu entitling him to approach the Court for relief. The reason for saying that the inclusion of even a single irrelevant of obscure ground among several relevant and clear grounds is an invasion of the detenu 's constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority. Dr. Singhvi very strenuously submitted that the first paragraph of the 'grounds ' supplied to the petitioner was of an introductory nature, that Paragraphs 2, 3, 4 and 5 referred to the events which furnished the background and that the penultimate paragraph alone contained the grounds of detention as such. He submitted that it was permissible to separate the introduction and the recital of events constituting the background from the grounds of detention and if that was done it would be apparent that the order of detention suffered from no infirmity. He sought to draw support for his submission from the decision in Naresh Chandra Ganguli vs State of West Bengal and others. It is impossible to agree with the submission of Dr. Singhvi. The annexure to the order of detention detailing the grounds of detention has been fully extracted by my learned brother Shinghal, J. we are unable to see how factual allegations such as those contained in the paragraphs 1 to 5 of the grounds of detention can be said to be merely introductory or as constituting the background. In Naresh Chandra Ganguly vs State of West Bengal what was read by the Supreme Court as the 'preamble ' was the recital in terms of Section 3(1) 270 clauses (a) and (b) of the Preventive Detention Act, namely, that the detenu was being detained in pursuance of a detention order made in exercise of the power conferred by Section 3 of the Preventive Detention Act on the ground that the detenu was acting in a manner prejudicial to the maintenance of public order as evidenced by the particulars given thereafter. The particulars given in the subsequent paragraphs, the Court said, constituted the grounds. We do not understand Naresh Chandra Ganguly vs The State of West Bengal as laying down that it is permissible to dissect or trisect the grounds of detention into introduction, background and 'grounds ' as such. There is no warrant for any such division. The distinction made in Naresh Chandra Ganguly 's (supra) case between the 'preamble ', meaning thereby the recital in terms of the statutory provision and the 'grounds ' meaning thereby the conclusions of fact which led to the passing of the order of detention does not justify any distinction being made between introductory facts, background facts, and 'grounds ' as such. All allegations of fact which have led to the passing of the order of detention are 'grounds of detention '. If such allegations are irrelevant or vague the detenu is entitled to be released. The attempt of Dr. Singhvi was to treat that allegation which according to him was the immediate cause of the order of detention as the only ground of detention and all other allegations earlier made as were introductory and background facts. We are unable to so dissect the factual allegations mentioned in the document supplied to the detenu as furnishing the grounds of detention. The last straw which breaks a camel 's back does not make weightless the other loads on the camel 's back. The grounds of detention begin with the statement that the detenu is a 'die hard Naxalite '. Dr. Singhvi described a Naxalite as a 'votary of change by resort to violence ' and urged that as the meaning ascribed to the expression by the daily press (Marxist Exclamation: the Capitalist Press !). Many may not agree with Dr. Singhvi. Some think of Naxalites as blood thirsty monsters; some compare them to Joan of Arc. It all depends on the class to which one belongs, one 's political hues and ideological perceptions.) At one stage of the argument Dr. Singhvi himself described a Naxalite as an 'ideological revolutionary '. The detenu himself apparently thought that it meant no more than that he was a believer in the Marxist Leninist ideology and so he affirmatively declared that he was a firm believer in that ideology and was proud of that fact. Though he did urge that the expression 271 Naxalite connoted a person who sought change through violent means, Dr. Singhvi had, ultimately, to confess that the expression 'Naxalite ' was as definite or as vague as all words describing ideologies, such as democracy etc., were. It is enough to say that it is just a label which can be as misleading as any other and is, perhaps, used occasionally for that very purpose. In the third paragraph of the grounds of detention it is said that the detenu made a speech in which he asked his audience to shun the life of dishonour and rise in revolt against oppression. In the fourth paragraph he is stated to be responsible for posters bearing the caption "No solution without revolution". It is also stated that the posters asked the people to prepare themselves for revolution. Now, expressions like 'revolt ' and 'revolution ' are flung about by all and sundry in all manner of context and it is impossible to attach any particular significance to the use of such expressions. Every turn against the establishment is called 'revolt ' and every new idea is labelled as 'revolutionary '. If the mere use of expressions like 'revolt ' and 'revolution ' are to land a person behind the bars what would be the fate of all our legislators ? It all depends on the context in which the expressions are used. Neither paragraph three nor paragraph four of the grounds of detention specifies the particular form of revolt or revolution which the detenu advocated. Did he incite people to violence ? What words did he employ ? What, then, is the connection between these grounds and "acting in any manner prejudicial to the maintenance of the public order" ? There is no answer to be gleaned from the grounds recited in paragraphs three and four which must therefore, be held to be both irrelevant and vague. In paragraph five it is said that the detenu instigated educated unemployed youth to go on a hunger strike. A hunger strike, in our country, is a well known form of peaceful protest but it is difficult to connect it with public disorder. We consider this ground also to be vague and irrelevant. The allegation that the detenu made derogatory remarks about Shri Sheikh Mohammed Abdullah, Chief Minister of Kashmir, and compared him with General Zia of Pakistan appears to us, again, to be entirely irrelevant. I do not think it is necessary to refer to all the grounds in any further detail as that has been done by my brother Shinghal, J. N. K. A. Petition allowed.

The petitioner challenged his detention under the Jammu were sent to him by way of an annexure to the District Magistrate 's order of detention. The petitioner was informed that, if he so desired, he could make a representation to the Government against the alleged order of detention. It was argued on behalf of the petitioner that some of the grounds of detention were so vague that he did not find it possible to exercise his fundamental right of making a representation under article 22(5) of the Constitution and that some of the grounds were irrelevant for the purposes of making an order under section 8. ^ HELD: The argument that only the "preamble" of the order of detention was vague but not the grounds is not tenable. [264B] "Preamble" has been defined "as an introductory paragraph or part in a statute deed, or other document setting forth the grounds and intention of it". The preamble thus betokens that which follows. The respondents ' counsel did not, however, find it possible to point out where the preamble could be said to begin, or to finish, and which of the paragraphs could be said to constitute the grounds of detention as such. [262 G H, 263A] This Court has disapproved of vagueness in the grounds of detention because that impinges on the fundamental right of the detenu under article 22(5) of the Constitution to make a representation against the order of detention when the grounds on which the order has been made or communicated to him. The purpose of the requirement is to afford him the earliest opportunity of seeking redress against the order of detention. But, as is obvious, that opportunity cannot be said to be afforded when it is established that a ground of detention is so vague that he cannot possibly make an effective representation. Reference made to paragraphs which were held to be vague. [263E, H, 264 B D] State of Bombay vs Atma Ram Sridhar Vaidya ; , Tarapada De and Ors. vs The State of West Bengal, ; , Dr. Ram Krishan Bhardwaj vs State of Delhi and Ors. ; , Shibban Lal Saxena vs State oj Uttar Pradesh ; , Rameshwar Lal Patwari vs State of Bihar and Ors., ; , and Pushkar Mukherjee and Ors. vs State of West Bengal, ; 259 It is equally well settled that a ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention under the appropriate law and taking any such ground into consideration vitiates the order of detention. It was held that irrelevant grounds were, nevertheless, taken into consideration for making the impugned order, and that was quite sufficient to vitiate it. [267A B] Keshav Talpade vs The King Emperor, , Satya Brata Ghose vs Mr. Arif Ali, District Magistrate Shibsagar, Jorhat and Ors, , and K. Yadava Reddy and Ors. vs The Commissioner of Police, Andhra Pradesh, Hyderabad and Anr., I.L.R. 1972 Andhra Pradesh 1025, affirmed. Chinnappa Reddy, J. (Concurring) ^ HELD: A law providing for preventive detention and action taken under such a law, to pass muster, have to satisfy the requirements of both Articles 19 and 22 of the Constitution. [268D E] The interpretation of Article 22(5) consistently adopted by this Court is, perhaps, one of the outstanding contributions of the Court in the cause of Human Rights. The law is now well settled that a detenu has two rights under Article 22(5) of the Constitution (1) to be informed as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him. The inclusion of an irrelevant or non existent ground among other relevant grounds is as infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. In either case there is an invasion of the Constitutional rights of the detenu entitling him to approach the Court for relief. The reason for saying that the inclusion of even a single irrelevant or obscure ground among several relevant and clear grounds is an invasion of the detenu 's constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority. [269A D] The argument that only that allegation which was the immediate cause of the order of detention was to be treated as the ground of detention and all other allegations recited in the order of detention were to be treated as introductory and background facts cannot be accepted. The factual allegations contained in the document supplied to the detenu as furnishing the ground of detention cannot be so dissected. The last straw which broke the camel 's back does not make weightless the other loads on the camel 's back. [269 G H, 270E] The expression 'Naxalite ' conveys different meanings to different persons depending on the class to which one belongs, his political hues and ideological perceptions. It is as vague or as definite as all words describing ideologies such as "democracy" etc. It is a label which may be as misleading as any other. [270F G, 271A] Expressions like 'revolt ' and 'revolution ' are flung by all and sundry in all manner of context and it is impossible to attach any particular significance to 260 the use of such expressions. Every turn against the establishment is called 'revolt ' and every new idea is labelled as 'revolutionary '. Without specification of the particular form of revolt and revolution which was advocated, the ground of detention must be held to be irrelevant and vague. [271 C D] A. K. Gopalan vs State of Madras, ; R. C. Cooper vs Union of India, ; distinguished.

Appeal No. 2433 of 1968. Appeal by special leave from the Award dated August 9, 1968 of the Labour Court Gauhati in Case No. 6 of 1968 published in the Assam Gazette dated the 4th September 1968. B. Sen, G. Mukhuty and D. N. Gupta, for the Appellant. D. L. Sen Gupta and section K. Nandy, for the respondents. The Judgment of the, Court was delivered by VAIDIALINGAM, J. In this appeal, by special leave, the question that arises for consideration is whether the appellant has contravened section 9 D of the (hereinafter referred to as the Act), when at the request of the majority of the workmen the holiday for Diwali was changed from 11th November, 1966 to the ,next day. According to the usual practice, at the commencement of the year 1966, the appellant had published a list of holidays for that year. According to this list, the holiday for Kali Puja was stated to be on Friday, the 11th November, 1966. On November 5, 1966, the appellant notified that the factory will remain closed for Kali Puja on Friday, the 11th November, '1966. This notification was only on the basis of the list of holidays referred to earlier. The workmen in this company were represented by two unions (1) Amco Employees Association (hereinafter referred to as the Association) and (2) Amco Sramik Sangha (hereinafter referred to as the Sangh ). There is no controversy that the Sangha represented the majority of the workmen of this company. On November 10, 1966, the General Secretary of the Sangha wrote a letter to the factory Manager of the appellant requesting him to close the factory on Saturday, the 12th November, 1966, on account of Kali Puja instead of the 11th instant as already notified by the com 118 pany on November 5, 1966. A further request was made in this letter that the factory may be kept working on Friday, the 11th November, in accordance with the timings mentioned therein. The General Secretary further stated in this letter that if the request of change in the holiday is not accepted, a large number of workmen will not be attending on Saturday, the 12th November, which will result in heavy loss of production. On receipt of this letter, the appellant put up a notice the same 'day that in response to the request of the Sangha, the factory will remain closed for Kali Puja on Saturday, the 12th November, instead of Friday, the 11th, as previously notified. This notice further stated that the factory will remain open on Friday, the 11th November during the hours mentioned therein. Quite naturally, this notice cancelled the previous notice dated November 5, 1966. After the company 's notice regarding the change of holiday for Diwali was put up on the notice board, the Association, on the same day (November 10, 1966), addressed a letter to the management that the change of holiday for Diwali was not justified and that the date originally declared as a holiday, namely, the 11th November, should be allowed to stand. The company obviously did not accede to this request of the Association with the result that most of the workmen attached to the association did not attend to work on November 11, 1966. The wages for that day were not paid by the appellant to those workmen on the ground that they were absent from duty. Nearly a year later on December 30, 1967, the respondents in this appeal, 83 in number, filed an application before the Labour Court, Gauhati, under section 33 A of the Act. The grievance of these workmen appears to be that there was an industrial dispute pending at the relevant time and that without complying with the provisions of section 33, and without conforming to the provisions of section 9 A, the employer had altered the condition of service by changing the date of the holiday for Diwali. According to them, one day holiday for Kali Puja was being allowed for a number of years and that it has become a condition of service. The notice issued on November 5, 19766, declaring November 11, 1966, as a holiday for Diwali was in conformity with the right of the workmen under the conditions of their service. The Standing Orders of the company did not give any power to the appellant to change the holiday for Diwali and, therefore, section 3 3 (2) (a) of the Act does not give power to the appellant to alter the, said date. Any change of date can only be effected in accordance with section 9 A. As that has not been done, the action of the employer in declaring 12th November, 1966, as a holiday and refusing to pay wages for 11th November, 1966, were both illegal. Accordingly they proved for directing the appellant to pay them 'Wages for November 11, 1966, which has been denied to them, as their absence on that day was perfectly legal. The management contested the application on the ground that there has been no change effected in the conditions of service of the workmen by altering the holiday of Diwali from November 11, to the next day. As the holiday is for Diwali and as the majority of the workmen specifically desired the holiday on the 12th November the 119 change was made to suit the convenience of the workmen. Even if the fixation of a holiday is a condition of service, the change has been made for the benefit of the workmen. The management further pleaded that under the Standing Orders they were entitled to fix the holidays and also to effect any changes therein and, therefore, section 33 (2) (a) of the Act gives power to them to effect such a change, although an industrial dispute was then pending. The management also cited certain previous instances when the holiday for Holiday or for Diwali once fixed had been altered at the request of the workmen. The Labour Court has accepted the plea of the management that the Sangha represented the majority of the workmen of the appellant. It has further found that the appellant altered the date from 11th to 12th at the specific request of the Sangha. But the Labour Court held that, as the holiday has been originally fixed for the 11th November by the notice dated November 5, 1966, on the basis of the list of holidays announced by the company, the alteration of the holiday from 11th to 12th November, though at the request of the majority of the workmen, amounted to a change in the condition (if service and as such, the procedure under section 9 A should have been followed. As the said procedure had not been followed by the appellant, the Labour Court held that there has been a violation of section 33 read with section 9 A of the Act. In this view, it granted the reliefs asked for by the 33 workmen. Mr. B. Sen, on behalf of the appellant company supported the stand taken by it before the Labour Court. He urged that there is no question of any cancellation of a holiday that the workmen were entitled to, in which case it may be stated that the condition of service is effected. On the other hand, the workmen did have a holiday for Diwali on the 12th November. The counsel also referred us to the evidence on record to show that on previous occasions such changes had been effected in the holidays when a request was made by the workmen concerned. Mr. Sen Gupta, learned counsel for the respondents, has adopted the reasons given by the Labour Court for holding that a change in the condition of service has been effected by the appellant. In particular, Mr. Sen Gupta pointed out +hat if the employer wanted to effect a change in the date of the holiday, it should have been done by the appellant entering into a settlement with the work men, as contemplated by clause (a) of the proviso to section 9 A. The sum and substance of the arguments of Mr. Sen Gupta was that the appellant, having fixed the holiday for Diwali as per its previous circular". had no power to change the same oven though a majority of the workmen had desired the appellant to do so. Section 9 A no doubt provides that the conditions of service of any workmen in respect of any matter specified in the Fourth Schedule cannot be changed without following the procedure indicated therein. If the alteration of the date of a holiday amount to a change in the Condition of service. it is needless to state that the appellant is bound to follow the Procedure laid down in section 9 A. Item 5 of the Fourth Schedule deals with "leave with wages and holiday". There 120 fore, prima facie, if a holiday has been fixed, the management may not have power to totally cancel the same or deprive the workmen of such a holiday without conforming to provisions of section 9 A. In the notice published at the beginning of the year 1966 regarding the holidays for the said year, the appellant has no doubt stated that Friday, the 11th November, will be a holiday for Kali Puja. But there is a statement in this notice to the effect that this list is subject to modification, if thought necessary". Under paragraph 6 of the company 's certified Sanding Orders, it is provided that "Notice specifying (a) the days observed by the Factory as holidays and (b) pay days, shall be posted as required by the Factory Act and the payment of wages Act respectively". There is no controversy that the list of holidays published at the beginning of the year 1966 as well as the circular dated November 5, 1966 are in conformity with this provision. Similarly the notice dated November 10, 1966, by the management regarding the 12th November being a holiday for Diwali, acceding to the request of the workmen, must also be considered to satisfy the provisions of this clause in the Standing Orders. In our opinion, the alteration of the date regarding the holiday for Diwali, from 1 1 the to the next day, cannot be considered to be an alteration in the conditions of service. The workmen may be entitled to have a holiday for Diwali. But on what particular day Diwali Calls or it is being observed and a holiday is to be declared, is a matter to be decided by the management in consultation with the workmen. If a large body I of the workmen require a change in the date of the holiday on the ground that the festival is not being observed on the day originally fixed and the management changes the date,, it cannot be stated that there is an alteration in the conditions of service. The workmen are not being deprived of a holiday at all for Diwali. In fact they have got it on the 12th November, 1966. In The Workmen of M/S. Sur Iron & Steel Co. Pvt. Ltd. vs M/S. Sur Iron & Steel Co. Pvt. Ltd., and another(1), the workmen contended that the change in the weekly off day, from Sunday to Saturday, without complying with the provisions of section 9 A, was illegal. This Court rejected that contention on two grounds that (1) there was no specific entry in the Fourth Schedule covering a condition of service relating to a weekly off day and (2) even assuming that the grant of a weekly off day falls under item 4 of the Fourth Schedule, the State Government had issued a notification on April 10, 1962 under section 9,B laying down that no notice under section 9 A was required to be served in respect of the matters covered by items 4, 6 and 11 of the said Schedule for a period of three months. Therefore, it will be seen that this decision did not express any opinion on the question whether the alteration of the weekly off day from Sunday to Saturday, amounts to a change in the conditions of service coming within section 9 A. In fact the indications in the judgment are that such an alteration will not attract section 9 A. The decision in M/s Tata Iron and Steel Co. Ltd. vs The Workmen and others(2) does not advance the case of the respondents. From (1) (2) 121 the facts of that case it is seen that Sunday had been a holiday in the factory concerned for a long number of years. The company, for the reasons stated in the judgment, cancelled this holiday and in turn gave a holiday in the mid week without following the procedure under section 9 A. It was held in the particular circumstances of that case that the alteration amounts to a change in the conditions of service. It must be noted that the workmen have been having for a long number of years Sunday as a holiday and that may have become a condition or their service. A holiday on a Sunday can only be on that day and no other day of the week can be Sunday. On this basis the decision has been rendered holding that canceling, the holiday enjoyed on Sunday amounts, in the circumstances, to a change in the conditions of service. The position in the case before. us is entirely different. The fact is that the workmen have not been deprived of a holiday for Diwali. Even assuming that the workmen have got a right to get a holiday for Diwali and that it has become a condition of service, in this case the workmen did have a holiday for Diwali. The holiday for the said festival is to be given on the date when the majority of the workmen claim that they are celebrating Diwali. It has been emphasised in M/s. Tata Iron and Steel Co. Ltd. vs The workmen and others(1) that the real object and purpose of section 9 A is to afford an opportunity to the workmen to consider the effect of a proposed change and. if necessary, to represent their view on the proposal. Even assuming that the alteration of the date of the holiday for Diwali will amount to a condition of service, there is no question, in this case, of a contravention of section 9 A, when the majority of the workmen themselves requested the employer to make the ' alteration. The employer was within its rights under section 3 3 (2) (a). The evidence on the side of the respondents shows that the workmen actually celebrated Diwali ,on the 12th November, which was declared to be a holiday. For the reasons stated above, we are of the opinion that the application filed by the workmen before the Labour Court under section 33 A was misconceived. In the result, the order of the Labour Court is set aside and this appeal is allowed. There will be no order as to ,costs. S.C. Appeal allowed.

The appellant, according to the usual practice of the company, at the beginning of 1966, had published a list of holidays for that year. According to this list, the holiday for Kalipuja was stated to be on Friday the 11th November 1966. The workmen in this company were represented by two Unions The Amco Employees Association ' and Amco Shramic Sangha ' of which the Sangha represented the majority of the workmen of this company. On November 8, 1966, the appellant notified that the factory will remain closed for Kalipuja on 11th November 1966. On 10th November 1966, the General Secretary of the Sangha wrote a letter to the Factory Manager of the Company requesting him to close the factory on Saturday the 12th November, 1966 on account of Kalipuja instead of 11th November, 1966. A further request was made that the factory may be kept working on Friday in accordance with the timings of the company and stated in his letter that if the request for change in the holiday is not acceptable a large number of workmen will not be attending on Saturday and there will be heavy loss of production. On receipt of this letter, the appellant put up a notice the same day that in response to the request of the Sangha the factory will remain closed on Saturday the 12th November instead of Friday the 11th. After the company 's notice regarding the change of holiday for Kalipuia, the other Union, the Association on the same day addressed a letter to the Management that the change of holiday for Kalipuja was not justified and that the original date should be allowed to stand. The company did not accede to this request and as a result most of the workmen belonging to the Association did not attend work on November 11, 1966. The wages for the day were not paid by the appellant to those workmen who were absent on that day. After about a year, the respondent& filed an application before the Labour Court under section 33 A of the Act. The grievance of these workmen was that there was an industrial dispute pending at the relevant time and that without complying with the provisions of section 33 and section 9 A, the employer had altered the condition of the service by changing the date of the holiday for Kalipuja. According to the respondents, one day holiday for Kalipuja was allowed to them for a number of years and that it had become a condition of service. The standing orders of the company did not give any power to the appellant to change the, holiday for Kalipuja, and therefore section 33 (2) (a) of the Act was violated. According to them, any change of date can only be affected in accordance with section 9 A. Therefore the employer in declaring 12th November as a holiday and refusing to pay wages for 11 November 1966 acted illegally. The management on the other hand, Contested the application on the ground that there had been no change in the conditions of service of the workmen. The change was made to suit the convenience of the workmen themselves and it was done for their benefit. The Labour Court accepted the plea of the management but held that as the holiday has been originally fixed for 11th but later changed to 12th amounted to a change in the condition of service and therefore, the procedure under section 9 A had not been followed. As the said procedure had not been followed by the appellant, the Labour Court held that there had been it violation of section 33 read with section 9 A of the Act and he granted the reliefs accordingly. Allowing the appeal, 117 HELD : (i) The alteration of the date regarding the holiday for Kalipuja from 11th to 12th November 1966 cannot be considered to be an alteration in the conditions of service. The workmen may be entailed to have a holiday for ' Kalipuja. But on what particular date Kalipuja falls or it is being observed and a holiday is to be declared, is a matter to be decided by the management in consultation with the workmen. If a large body of the workmen require a change in the date of the holiday on the ground that the festival was not being observed on the day originally fixed. and the management changed the date, it cannot be stated that there was an alteration in the conditions of service. The workmen were no, being deprived of a holiday at all for Kalipuja. In fact, they had got it on the 12th November 1966. [120D] The Workmen of M/s. Sur Iron & Steel Company Private Ltd. vs M/s. Sur Iron & Steel Co. Private Ltd. , referred to. (ii)Even assuming that alteration of the date of the holiday for Kalipuja will amount to a condition of service there is no question in the present case of a contravention. of section 9 when the majority of the workmen themselves requested the employer to make the alteration. The employer was within its rights under section 33(2). Further. the evidence on the side of the respondents showed that the workmen actually celebrated Kalipuja on the 12th November which was declared to be a holiday. Therefore, the application filed by the workmen before the Labour Court under section 33 A was misconceived. [121E] M/s. Tata Iron & Steel Co. Ltd. vs Workmen and Ors. , discussed and distinguished.

Appeals Nos. 2024 and 2025 of 1972. 786 C. K. Daphtary, R. C. Misra, Advocate General for the State of Orissa, Santosh Chatterjee and G. section Chatterjee, for the appellants (in both the appeals). M. C. Setalvad and Vinoo Bhagat, for respondent No. 1 (in C.A. No. 2024 of 1971). Vinoo Bhagat, for respondent No. 1 (in C.A. No. 2025 of 1971). The Judgment of the, Court was delivered by Hegde, J. These appeals by certificate raise common questions of law for decision. The questions of law arising for decision can be more conveniently brought out if the material facts are first set out. It is sufficient, if we refer to the facts in Civil Appeal No. 2024 of 1971. The 1st respondent in Civil Appeal No. 2024 of 1971 is carrying on the business of selling country liquor. 'In pursuance of the order made by the State of Orissa, the Excise Commissioner notified on January 8, 1971 that the exclusive privilege of selling by retail the country liquor in the eight specified shops in the Cuttack District for the period from April 1, 1971 to March 31, 1972 will be sold by public auction on February 15, 1971 and on the following days. The auction was accordingly held on the notified day. The 1st respondent was the highest bidder for those eight shops. His bids were provisionally accepted by the Collector subject to confirmation by the Government. The Government rejected those bids being of the view that inadequate price had been offered as a result of collusion between the bidders. It ordered the Excise Commissioner to call for tenders in respect of those shops. After the tenders were duly received, the Government accepted the tender in respect of one shop and rejected the other tenders as it was again of the opinion that the price offered was inadequate. Thereafter it sold the seven shops by negotiating with some of the tenderers. The price ultimately fetched was substantially more than that offered either at the auction or as per tenders. Thereafter the 1st respondent moved the, High Court of Orissa under article 226 of the Constitution for a direction to the Government to confirm his bids and cause the necessary licences to be issued to him. Various pleas were taken in support of the relief asked for. Such of them that were pressed before us will be referred to later. The Government resisted that application. The High Court came to the conclusion that the Government had no power to refuse to confirm the bids of the highest bidders except on good grounds and the ground that had commended itself to the Government for refusing to confirm the bids were irrelevant. It 787 also opined that the absolute power conferred on the Government to confirm or refuse to confirm the highest bids without giving any reason was an unguided power and consequent by violative of articles 14 and 19 (1) (g) of the Constitution. The High Court was further of the opinion that monetary considerations were irrelevant for 'deciding the question whether the highest bid should be confirmed or not. Aggrieved by that decision, the State of Orissa has come up in appeal. Before proceeding to pronounce on the contentions advanced at the hearing, it is convenient to set out the relevant provisions of law as well as the orders passed by the Government under section 29 of the Bihar and Orissa Excise Act, 1915 (as amended upto October 6, 1970) (to be hereinafter referred to as the Act). The preamble to the Act reads "Whereas it is expedient to amend and reenact the law in the Province of Bihar and Orissa relating to the import, export, transport, manufacture, possession, and sale of certain kinds of liquor and intoxicating drugs; And whereas the previous sanction of the Governor General has been obtained,, under section 5 of the Indian Councils Act, 1892, to the passing of this Act; It is hereby enacted as follows Section 22 deals with the grant of exclusive privilege of manufacture and sale of country liquor or intoxicating drugs. To the extent it is material for our present purpose, it reads : "The State Government may grant to any person, on such conditions and for such period as it may think fit, the exclusive privilege (a). . . . . . (b). . . . . . (c). . . . . . (d). . . . . . (e) of manufacturing and supplying wholesale and selling retail, any country liquor or intoxicating drug within any specified local area : Provided that public notice shall be given of the intention to grant any such exclusive privilege, and that any objections made by any person residing within the area affected shall be considered before an exclusive 788 privilege is granted." Sub section (2) says : "No grantee of any privilege under sub section (1) shall exercise the same unless or until he has received a license in that behalf from the Collector or the Excise Commissioner. " Section 29 deals with payment for grant of exclusive privilege. It reads : "(1) Instead of or in addition to, any duty leviable under this Act, the State Government may accept payment of a sum in consideration of the grant. of any exclusive privilege under section 22. (2) The sum payable under sub section (1) shall be determined as follows : (a) by calling tenders or by auction or otherwise as the State Government may, by general or special order direct; and (b) by such authority and subject to such control as may be specified in such order." Excise revenue is defined in section 2(9) : " "Excise revenue" means revenue derived or derivable from any duty, fee, tax, payment other than a fine imposed by a Criminal Court or confiscation imposed or ordered under this Act or any other law for the time being in force relating to liquor or intoxicating drugs and includes any payment to be made to the State Government under section 29. " In exercise of the powers conferred by section 29(2) of the Act, the State Government issued an order on January 6, 1971 directing that any sum payable under the aforesaid section for grant of the exclusive privilege of manufacturing and selling by retail of country liquor shall, unless otherwise directed by the State Government, in any particular case or cases for any reason, 'be determined by auction to be held in accordance with the procedure specified below: "(i) the dates and centers for the auction shall be fixed and notified by the Excise Commissioner with the prior approval of Government and the Collector shall then issue notice for auction and give wide publicity to the same in such manner as ' he considers necessary, 15 days before the date fixed for commencement of the auction; (ii) the auction shall determine the amount of monthly consideration money and shall ordinarily 789 be conducted by the Collector and in his absence by the Additional District Magistrate; Provided that the State Government in by depute an officer from head quarters to aid and advise the officer conducting such sales; (iii) the officer conducting the auction may satisfy himself as to the solvency of any bidder and may not allow a person of doubtful solvency or a person to whom grant of a licence for retail sale of any intoxicant is prohibited under Orissa Excise Rules, 1965 to offer bids in the auction; (iv) the officer conducting the auction shall be at liberty to close the auction if he is satisfied that, there has not been sufficient or fair competition in which case he may publicly adjourn the auction, to a specified hour on the following day or on ' some other convenient day to be notified by him in the auction hall; (v) the highest bid in an auction shall ordinarily be, accepted provisionally by the Collector subject to confirmation by the State Government and in case where the officer conducting the auction, refuses to accept the highest bid as offered, he shall record the reasons for such non acceptance and shall report forthwith the same to the Excise Commissioner for further action after receipt of advances from the highest bidder; (vi) when any bid in an auction for an exclusive privilege or privileges is provisionally accepted by the Collector, the bidder shall deposit two months ' consideration money as an advance deposit which will be refunded in case the provisional acceptance is not confirmed by the State Government. No sale shall be deemed to be final unless confirmed by the State Government who shall be at liberty to accept or reject any bid without assig ning any reason therefore; (vii) no licence for any exclusive privilege shall be granted until acceptance of the bid is confirmed by the State Government; (viii) when any bid in an auction for any exclusive privilege is provisionally accepted but the advance deposit is not paid, the exclusive privilege shall 790 be put to reauction as soon as possible at the risk and loss of the defaulter; (ix) all bids in an Auction shall be offered by the bidder in person or by his agent legally authorised for the purpose. " As mentioned earlier in pursuance of the above order, the Collector held an auction in respect of the shops mentioned earlier. The highest bidder had made the necessary deposits. the Government did not accept his bids. On March 7, 1971, the Government issued the following order "Whereas for determining the sums payable for the grant of exclusive privilege of manufacturing and selling by retail of country liquor auction had been held in the district of Cuttack in accordance with the procedure laid down in the order of the Government of Orissa in the Excise Department No. S.R.O. 12/71, dated the 6th January 1971; Whereas due to collusive bids among the bidders at the said auction it is not possible to determine the said sums in the aforesaid manner; Now, therefore, in exercise of the powers conferred by sub section (2) of Section 29 of the Bihar and Orissa Excise Act, 1915 (Bihar and Orissa Act 2 of 1915) read with the Order No. S.R.O. 12/71, dated the 6th January, 1971, the State Government do hereby direct that the procedure for determining the aforesaid sum in respect of the grant of exclusive privilege of manufacturing and selling by retail of country liquor in the local areas specified in the Schedules I for the year 1971 72 shall be as laid down in Schedule II hereof SCHEDULE I . . SCHEDULE II 1. The sum payable under sub section (1) of Section 29 of the said Act for grant of exclusive privilege of manufacturing and selling by retail of country liquor in the aforesaid local areas shall be determined by the Excise Commissioner by calling tenders which may be 791 for individual local area or for lots of such area as the Excise Commissioner may consider proper; 2. Tender notice shall be issued by the Excise Com missioner and published in the Notice Board of his office the C uttack Collectorate and the offices of Sub Divisional Officers in that district and shall also be widely published in such manner as the Excise Commissioner considers necessary. The tender notice shall, among other things,, mention that it is open to the State Government not to accept any tender or to order for calling fresh tenders or otherwise for such reason as they deem proper in the public interest; 4 to 8. . . . . . . 9. The Excise Commissioner shall prepare a list of all the tenders received and submit the list with his recommendations of any particular tender with sufficient reasons alongwith the tender papers to the State Government for approval. The tenderers whose tenders have been recommended for acceptance shall deposit two month 's consideration money as an advance deposit which will be refunded in case their tenders are not approved by Government. 10. . . . . . . " As mentioned earlier, the Government accepted the tender in respect of only one shop and sold the exclusive privilege to sell country liquor in other shops by negotiation. Before us the writ petitioners did not challenge the validity of any of the provisions in the Act; possibly in their own interest. They are not interested in raising any contention which might vitiate the auctions held. The contentions urged on behalf of the writ petitioners have to be examined, in the background that the provisions of the Act are not contended to be invalid. One of the contentions taken on behalf of the writ petitioners was that the power retained by the Government "to accept or to reject any bid without assigning any reason therefore" in cl. (6) of the order made by the Government on January 6, 1971 in exercise of its powers under section 29(2) of the Act was an arbitrary power and therefore it is violative of articles 14 and 1 9 ( 1 (g). This contention has been upheld by the High Court. It was urged on behalf of the writ petitioners that they have a fundamental right to carry on trade or business in country liquor. That right can 792 be regulated only by imposing reasonable restrictions in the interest of the general public. Restrictions imposed by the order in question cannot be considered as reasonable restrictions in the interest of the general public. It was further urged that the power retained by the Government to accept or to reject the highest bid without assigning any reason is an unguided power and hence it is violative of article 14. These contentions were accepted by the High Court. To us, none of these contentions appear to be well founded. As seen earlier section 22 of the Act confers power on the Government to grant to any person on such conditions and for such period as it may think fit the exclusive privilege of selling in retail any country liquor. Section 29 empowers the Government to accept payment of a sum in consideration for the grant of any exclusive privilege under section 22 either by calling tenders or by auction or otherwise as it may by general or special order direct. The, powers conferred on the State Government by section 22 and section 29 are absolute powers. As seen earlier, the validity of those provisions has not been challenged before us. Under section 29(2) the Government had power to dispose of any of the exclusive privileges mentioned in section 22 either by calling for tenders or by auction or otherwise as it may by general or special order direct. That being the amplitude of the power of the Government, we fail to see how the Government can be said to have conferred on itself arbitrary power under clause (6) of its order made on January 6, 1971, when it provided that : " No sale shall be deemed to be final unless confirmed by the State Government who shall be at liberty to accept or reject any bid without assigning any reason therefore. " The power that the government reserved for itself under that clause is nothing more than what was conferred on it by the legislature under section 22 and section 29 of the Act. It is not possible to challenge the validity of the order made without challenging the validity of section 29 itself. It is true that this Court has ruled that the right to trade in intoxicating drugs is also a right to carry on any trade or business within the meaning of article 19 (1) (g) see Krishna Kumar Narula vs Jammu Kashmir State and ors(1). At the same time, it was held by this Court in Cooverjee B. Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer and ors.(2) that for determining reasonable restrictions within the meaning of Art ' 19 (6) of the Constitution on the right given under cl. 19 (1) (g) regard must be had to the nature of the business and the conditions prevailing in a particular trade; State has power to prohibit trades which are illegal or immoral or injurious to the health and (1) ; (2) ; 793 welfare of the public and there is no inherent right in a citizen to sell intoxicating liquors by retail. In that case the court held that the provisions in the Excise Regulation 1 of 1915 purporting to regulate trade in liquor in all its different spheres are not invalid. It was further held in that case that the charge of licence fee by public auction is more in the nature of a tax than a licence fee though it is described as a licence fee. One of the purposes of the Regulation is to raise revenue. Revenue is collected by the grant of contracts to carry on trade in liquor and these contracts are sold by auction. The grantee is given a licence on payment of the auction price. The Regulation specially authorises this. The decision in Lala Harichand Sarda vs Mizo District Council and anr. (1) relied on by the writ petitioner does not bear on the point under consideration. it deals with power to grant or refuse to grant licence to trade in some ordinary commodity under Lushai Hill Distt. Regulation. Even apart from the power conferred on the Government under sections 22 and 29, we fail to see how the power retained by the Government under cl. (6) of its order dated January 6, 1971 can be considered as unconstitutional. As held by this Court in Cooverjee Bharucha 's case (supra), one of the important purpose of selling the exclusive right to sell liquor in wholesale or retail is to raise revenue. Excise revenue forms an important part of every State 's revenue. The Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. Hence quite naturally, the legislature has empowered the Government to see that there is no leakage in its revenue. It is for the. Government to decide whether the price offered in an auction sale is adequate. While accepting or rejecting a bid, it is merely performing an executive function. The correctness of its conclusion is not open to judicial review. We fail to see how the plea of contravention of article 19(1)(g) or article 14 can arise in these cases. The Government 's power to sell the exclusive privileges set out in section 22 was not denied. It was also not disputed that those privileges could be sold by public auction. Public actions are held to get the best possible price. 'Once these aspects are recognised, there appears to be, no basis for contending that the owner of the privileges in question who had offered to sell them cannot decline to accept the highest bid if he thinks that the price offered is inadequate. There is no concluded contract till the bid is accepted. Before there was a concluded contract, it was open to the bidders to withdraw their bids see Union of India and ors. vs M/s. Bhimsen Walaiti Ram (2) . By merely giving bids, the bidders had not acquired any vested rights. The fact that the Government was the seller (1) ; (2) ; 794 does not change legal position once its exclusive right to deal with those privileges is conceded. If the Government is the exclusive owner of those privileges, reliance on article 19(1)(g) or article 14 becomes irrelevant. Citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the Government, nor can there be any infringement of article 14, if the Government tries to get the best available price for its valuable rights. The High Court was wholly wrong in thinking that purpose of sections 22 and 29 of the Act was not to raise revenue. Raising revenue as held by this Court in Cooverjee Bharucha 's case (supra) was one of the important purposes of such provisions. The fact that the price fetched by the sale of country liquor is an excise revenue does not change the nature of the right. The sale in question is but a mode of raising revenue. Assuming that the question of arbitrary or unguided power can arise in a case of this nature, it should not be forgotten that the power to accept or reject the highest bid is given to the highest authority in the State i.e. the Government which is expected to safeguard the finances of the State. Such a power cannot be considered as an arbitrary power. If that power is exercised for any collateral purposes, the exercise of the power will be struck down. It may also be remembered that herein we are not dealing with a delegated power but with a power conferred by the legislature. The High Court erroneously thought that the Government was bound to satisfy the Court that there was collusion between the bidders. The High Court was not sitting on appeal against the order made by the Government. The inference of the Government that there was a collusion among the bidders may be right or wrong. But that was not open to judicial review so long as it is not proved that it was a make believe one. The real opinion formed by the Government was that the price fetched was not adequate. That conclusion is taken on the basis of Government expectations. The conclusion reached by the. Government does not affect any one 's rights. Hence, in our opinion the High Court misapplied the ratio of the decision of this Court in Barium Chemicals Ltd. and anr. vs Company Law Board and ors.(1) and Rohtas Industries Ltd. vs section T. Agarwal (2) . It was next urged that having had recourse to the auction method once, the Government was precluded from either calling for tenders or to sell by negotiation. The High Court has accepted that contention. We are unable to agree with the High Court in its conclusion. Neither the provisions of the Act nor the order issued by the Government lend any support to such a conclusion. (1) (2) ; 795 Once the Government declines to accept the highest bid, the auction held became useless. Similar is the effect when the Government refused to accept the highest tender. That left the Government free to have recourse to other methods. The power given to the Government by the Act to sell the exclusive privilege in such other manner as it thinks fit is a very wide power. That power is unrestricted. It undoubtedly includes the power to sell the privileges in question by private negotiation. It was urged that before adopting the method of selling the privileges by private negotiation. The Government is required by section 29 (2) (a) to make an order that the, privileges in question will be sold by private negotiation. The Government has failed to make such an order. Hence the sales effected are invalid. We, are, unable to accept these contentions. In the cases of public auctions or in the case of calling for tenders, orders from the Government directing its subordinates to notify or hold the auctions or call for tenders is understandable. Public auctions as well as calling for tenders are done by subordinate officials. Further due publicity is necessary in adopting those methods. TOP require the Government to make an order that it is going to sell one or more of the privileges in question by negotiating with some one is to make a mockery of the law. If the Government can enter into negotiation with any person, as we think it can, it makes no sense to require it to first make an order that it is going to negotiate with that person. We must understand a provision of law reasonably. Section 29 (2) (a) does not speak of any order. It says that "the State Government may by general or special order direct". The direction contemplated by that provision is a direction to subordinate officials. It is meaningless to say that the Government should direct itself. In the result these appeals are allowed and the writ petitions dismissed. No costs. V.P.S. Appeals allowed.

The first respondent was carrying on business of selling country liquor. In exercise of the powers conferred by section 29(2) of the Bihar and Orissa Excise Act, 1915, the appellant issued an Order and in pursuance of that Order a date was notified for selling by public auction the exclusive privilege. of selling by retail, country liquor in 8 shops. The respondent was the highest bidder but his bid was rejected because the Government was of the view that inadequate prices had been offered as a result of collusion between the bidders. Thereafter, tenders were called for and the appellant accepted the tender in respect of one shop and rejected the others as it was again of the opinion that the price offered was inadequate. Thereafter, the remaining 7 shops were ' sold by private negotiation for substantially higher prices. A writ petition filed by the respondent in the High Court was allowed mainly on the ground that the power centered on the Government by cl. (vi) of the Order, that no sale shall be deemed to be final unless confirmed by the State who shall be at liberty to accept or reject without assigning any reason, was an unguided power violative of articles 14 and 19(1) (g). Allowing the appeal to this Court, HELD : (1) Section 22 of the Act confers power on the Government to grant to any person on such conditions and for such period as it may think fit the exclusive privilege of selling in retail country liquor; and section 29 empowers the Government to accept payment in consideration of the grant either by calling tenders or by auction or otherwise as it may by general order direct. The powers conferred on the State Government by sections 22 and 29 are absolute. The Government cannot be said to have conferred on itself arbitrary power under cl. (vi) of its Order, passed under section 29(2), because, the power that the Government reserved for itself under that clause is nothing more than what was conferred on it by the Legislature under the sections. Since the validity of the sections was not challenged the validity of the Order could not also be challenged. [792 B F] (2) Even otherwise, one of the important purposes of selling the exclusive right to sell liquor in wholesale or retail is to raise revenue; and excise 'revenue forms an important part of every State 's revenue. The Government is a guardian of the finances of the State and is expected to protect its financial interests. The fact that the prices fetched by the sale of the privilege to sell country liquor is an excise revenue does not change the nature of the right in the Government. Therefore, the 785 Legislature has empowered the Government to see that there is no leakage in the revenue. It was for the Government to decide whether the price offered in an auction is adequate and the conclusion reached by the Government does not affect anyone 's rights. [793 D F; 794 F G] (3) Public auctions are held to get the best possible price and there is no completed contract till the bid is accepted. There is, therefore, no basis for, contending that the owner of the privileges who had offered to sell them cannot decline to accept the highest bid if he thinks that the price offered is inadequate, and, it makes no difference that the Government was the seller. [793 G H; 794 A] (4) If the Government is exclusive owner of the privileges, the respondent could not rely on article 14 and 19(1)(g), because, citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to Government, nor can there be any infringement of article 14 if Government tries to get the best available price for its valuable, rights. Further there is no inherent right in a citizen to sell intoxicating liquor by retail. [793 A; 794 A B] Coverjee B. Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer and Ors., ' ; and Union of India and Ors. vs M/s. Bhimsen Walait Ram, ; , followed. (5) Assuming that the question of arbitrary or unguided power can be raised it should be remembered that the power to accept or reject the highest bid is given to the highest authority in the State, namely, the Government, which is expected to safeguard the finances of the State and it is not a case of delegated power but of power conferred by the Legislature. While accepting or rejecting a bid Government is performing an executive function and the correctness of its conclusion is not open to Judicial review where the power is not used for any collateral purpose. [793 F , 794 C E] (6) The real conclusion. of the Government was that the price fixed was inadequate and hence High Court erred in thinking that the Government was bound to satisfy the Court that there was collusion between the bidders. [794 E F] Barrium Chemicals Ltd. and Anr. vs Company Law Board and Ors. [1966] Supp. S.C.R. 311 and Rohtas Industries Ltd. vs section T. Agarwal; , referred to. (7) The Government was not precluded, having had recourse to the auction method once, from either calling for tender or selling by negotiations. Once the Government declines to accept the highest bid or the tender price offered, the government was free to have recourse to other methods. The pow(* given to the Government to sell in such other manner as it thinks fit is a very wide and unrestricted power and includes within it the power to; sell the privilege by private negotiation. [795 A B] (8) The Government is not required by section 29 (2) (a) to make an order that the privilege will be sold by private negotiation, since, it makes no sense to require Government to first make an order that it is going to negotiate. The section only says that the State Government 'may by general or special order direct ' and the direction contemplated is one to subordinate officials and not to itself. [795 D F]

Appeal No. 1192 and 1193 of 1967. Appeal by special leave from the order dated January 13, 1969 of the Punjab and Haryana High Court, at Chandigarh, in L.P.A. No. 6 of 1969. 699 B. Sen and G. D. Gupta, for the appellant. V. C. Mahajan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by GROVER, J. These two appeals by certificate from a judgment of the Allahabad High Court must succeed on the short ground that the provisions of section 4(1) of the Land Acquisition Act, 1894, were not complied with. In C.A. 1192/67 a notification was issued under section 4 of the Act on October 15, 1960 for acquisition of the land in dispute. Under section 17 (4) of the Act the provisions of section 5A were dispensed with. On October 28, 1960 the notification under section 6 was issued. The appellant was directed to be present before the Collector in pursuance of a notice under section 9 on December 4, 1960. On December 5, 1960 the appellant filed a petition under article 226 of the Constitution challenging the acqui sition proceedings. The petition, was dismissed by a single judge of the High Court whose judgment was affirmed in Special Appeal by the Division Bench. Section 4(1) of the Act is in the following terms "Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be, needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality"; It is common ground that the Collector did not cause public notice of the substance of the notification to be given at convenient places in the locality where the land sought to be acquired was situated. In other words there was no compliance whatsoever with the second part of sub section ( 1 ) of section 4. The law as settled by this Court is that. such a notice under second part of section 4(1) is mandatory and unless that notice is given in accordance with the provisions contained therein the entire acquisition proceedings are vitiated. We may refer in this connection to Khub Chand & Others vs The State of Rajasthan, & Ors. In that case this Court pointed out that the object is to give intimation to a person whose land is sought to be acquired of the intention of the officer to enter the land. Under section 4(2) such a notice is a necessary condition for the exercise of the power of entry noncompliance with that condition makes the entry unlawful. In State of Mysore vs Abdul Razak Sahib(2) no notices as required by section 4(1)of the Act were published in the locality till after the lapse of about 10 weeks. The question for consideration ' (1) ; (2) C. A. 2361 of 1968 dt. August 11. 700 was whether the notification issued under section 4 was a valid one. This Court held that in the case of a notification under section 4 the law has prescribed that in addition to publication of a notice in the official gazette the Collector must also give publicity: of the substance of the notification in the concerned locality. Unless both these conditions are satisfied section 4 of the Act cannot be said to have been complied with. The purpose behind such a notice was that interested persons should know that the land is being acquired so. as to prefer any objections under section 5 A which confers a valuable right. Learned counsel for the State has, however, contended that according to these decisions it is only when the persons interested can file objections under section 5 A that the, public notice of the substance of the notification under section 4(1) by the Collector would be necessary whereas in the present case the, applicability of the provisions of section 5 A have been dispensed with under section 17(4) of the Act at the same time the notification under section 4(1) was issued. It is wholly unnecessary that the interested parties should have the requisite information of the acquisition proceedings as they are not entitled to file objections under section 5A. We are unable to accept such a contention. In our judgment the provisions of section 4(1) cannot be held to be mandatory in one situation and directory in another. Section 4(1) does not contemplate any distinction between those proceedings in which in exercise of the power under section 17 (4) the appropriate government directs that the provisions of section 5 A shall not apply and where such a direction has not been made dispensing with the applicability of section 5A. It lays down in unequivocal and clear terms that both things have to be simultaneously done under section 4(1), i.e., a notification has to be published in the official gazette that the land is likely to be needed for any public purpose and the Collector has to cause notice to be given of the substance of such notification at convenient places in the locality in which the land is situated. The scheme of section 4 is that after the steps contemplated under sub section (1) have been taken the officer authorized by the Government can do the various acts set out in sub section It is not required under section 17(4) of the principal Act that when a notification under section 4(1) is issued the direction should be made simultaneously if the State Government so desires. Such an order or direction can be made even at a later stage. The effect of the direction made under section 17(4) is that a declaration can be made under section 6 in respect of the land at any time after the Publication of the notification under section 4(1) and thereafter the Collector can take possession. But as mentioned before in a given case the appropriate government may not consider it necessary to take action under section 17(4) simultaneously with the notification under section 4(1) and it may choose to invoke its provisions only at a later stage in view of any urgency that may crop 701 up. Thus the construction of section 4(1) cannot be made to depend upon any action or direction which the State Government may choose to make under section 17 (4) of the principal Act. In our opinion section 4 (1) has to be read as an integrated provision which contains two conditions; the first is that the notification in the official gazette must be published and the second is that the Collector has to cause public notice of the substance of such notification to be given. These two conditions must be satisfied for the purpose of compliance with the provisions of section 4(1). In the above view of the matter the appeals which involve the same point must succeed. They are consequently allowed and the acquisition proceedings in question in both the appeals shall stand quashed. The appellants will be entitled to costs in this Court One hearing fee. S.B.W Appeals allowed.

A notification was issued under section 4 of the Land Acquisition Act on October 15, 1960 for acquisition of the land in dispute. The Collector did 'not. cause Public notice of the substance of the notification to be announced at convenient places in the locality where the land sought to be acquired was situate, as required by the second part of section 4(1). Under section 17(4) of the Act the provisions of section 5A were dispensed with. On October 28, 1960 the notification under section 6 was issued. The appellant was directed to be present before the Collector in pursuance of a notice under Sec. 9 on December 4, 1960. On December 5, 1960 the appellant filed a petition under article 226 of the Constitution challenging the acquisition proceed ings. The petition was dismissed by a single Judge of the High Court whose judgment was affirmed in Special Appeal by the Division Bench. Allowing the appeals, HELD : (i) The law as settled by this Court is that such a notice under second part of section 4(1) is mandatory and unless that notice is given in accordance with the provisions contained therein the entire acquisition proceedings are vitiated. Under section 4(2) such a notice is necessary condition for the exercise of the power of entry. Non compliance with that condition makes the entry unlawful. The purpose behind such a notice is that interested persons should know that the land is being acquired so as to prefer any objections under section 5 A which confers a valuable right., [699G] Khub Chand and Others vs The State of Rajasthan and Ors. ; and State of Mysore vs Abdul Razak Sahib, C.A. 2361 of 1968 dt. August 11, 1972 referred to. (ii)The construction of S.4(1) cannot be made to depend upon any action or direction which the State Govt. may choose to make under section 17(4) of the principal Act. section 4(1) has to be read as an integrated provision which contains two conditions both being mandatory. , Requirement of public notice in the locality cannot be rendered directly by a notification under section 17(4) dispensing with hearing under Sec. 5A. [700H]

Appeal No. 2170 of 1967. Appeal from the judgment and order dated September 5, 1963 of the Calcutta High Court in Civil Rule No. 2864 of 1952. Purshottam Chatterjee and G. section Chatterjee, for the appellant. D. B. Mukherjee and section C. Majumdar, for respondent No. 1. The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgment of the Calcutta High Court arising, out of a petition filed by the appellant under section 26F of the Bengal Tenancy Act, 1885 claiming a right of preemption over certain lands purchased by respondent No. 1. 926 The facts may be briefly stated. On July 23, 1950, the ap pellant purchased certain portion of land in C.S. Dag No. 3605 of Monza Kasba from the occupancy raiyats respondents Nos. 2 and 3 and one Bhabesh Chandra Kundu deceased. By another deed the appellant purchased from the said vendors another plot of land measuring 31 acres. By a Kabala dated October 8, 1950 the said vendors sold 10 acres of land in the same Dag number to respondent No. 1 for Rs. 2,700. The appellant filed an application before the Second Subordinate Judge, Alipore district 24 Parganas under section 26F of the Bengal Tenancy Act claiming the right of preemption over the land purchased by respondent No. 1. The latter took up the position that the appellant was not a co sharer in the land which had been purchased by her and that he along with his uncle Dinabandhu Chatterjee had acted as brokers in the transaction and received Rs. 300 as brokerage; the appellant had thus waived his right of preemption. The learned trial Judge disbelieved the case set up by respondent No. 1 and allowed the application of the appellant for preemption. Respondent No. 1 filed an appeal in the court of,the Additional District Judge, Alipore. He held that the appellant 's claim for preemption was barred owing to waiver on his part. The appellant filed a petition for revision in the High Court but the same was dismissed on the ground that it was open to the appellant to waive his right and that there had been actual waiver. The main point which was sought to be raised before us was that waiver could be brought about only by a contract and since no consideration had passed it could not be said that there had been any waiver in the present case. Moreover waiver could not be proved by estopped. Learned counsel for the appellant relied on the observations of Lord Russel of Killowen in Dawson 's Bank Limited vs Nippon Menkwva Kabushiki Kaisha(1). While stating the distinction between estopped and waiver, it was said, that "waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right. " According to the appellant all that had been found was that by his act and conduct he had waived his right of preemption. It was pointed out that there was no evidence for any consideration having moved from respondent No. 1 in the matter of abandonment of the appellant 's right of preemption. In the well known work of Sir William P. Anson "Principles of the English Law of Contract", 22nd Edn., it has been stated at p. 107 that at Common Law the waiver of existing obligations does not appear to require the presence of detriment in order to make it effective. (1) 62 I.A. 100, 108. 927 In India the general principle with regard to waiver of contractual obligations is to be found in section 63 of the Indian Contract Act. Under that section it is open to a promise to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. This Court has already laid down in Waman Shriniwas Kini vs Ratilal Bhagwandas & Co.(1) that waiver is the abandonment of a right which normally everybody is at liberty to waive. "A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right. " It is well known that in the law of preemption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a preemptive right has the effect of the forfeiture of such a right. So far as the law of preemption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence. The contention that the waiver of the appellant 's right under section 26F of the Bengal Tenancy Act must be founded on contract or agreement cannot be acceded to and must be rejected. A faint attempt was made to assail the finding of the High Court that on the facts which had been proved waiver had been established. We find no reason or justification for interfering with the conclusion of the High Court on the point. The appeal fails and it is dismissed with costs. R.K.P.S. Appeal dismissed. (1) [1959] Supp. 2 S.C.R. 217, 226.

The appellant filed an application under section 26(f) of the Bengal Tenancy Act claiming right of preemption over the land purchased by the respondent. The respondent took up the position that the appellant was not a co sharer in the land which had been purchased by her and that he along with his uncle had acted as brokers in the transaction and received brokerage; the appellant had thus waived his right of preemption. The trial Judge allowed the application. The appeal Court held that the appellant 's claim was barred owing to waiver on his part. A revision to the High Court was unsuccessful. In appeal to this Court it was urged that waiver could be brought about only by a contract and since no consideration had passed it could not be said that there had been any waiver. HELD, : Under the Indian Law neither consideration nor an agreement would be necessary to constitute waiver. A waiver signifies nothing more than an intention not to insist upon the right. It is well known that in the law of preemption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a preemptive right has the effect of forfeiture of such a right. So far as the law of preemption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence. The contention that the waiver of the appellant 's right under section 26F of the Bengal Tenancy Act must be founded on contrast or agreement cannot therefore be acceded to. [927 A D] Wanman Shrinwas Kini vs Ratilal Bhagwandas & Co., [1959] Supp. 2, S.C.R. 217, 226 and Dawson 's Bank Limited vs Nippon Menkwa Kabushiki Kaisha, 62 I.A. 100, 108 referred to.

ivil Appeal No. 1407 15 of 1988. PG NO 97 From the Judgment and Order dated 29.9.1987 of the Kerala High Court in W.A. Nos. 601, 602, 604, 605, 610, 655, 664, 680 and 735 of 1987. P.S. Poti, K. Sudhakaran and K.R. Nambiar for the Appellants. T.S. Krishnamurthy Iyer, K.K. Venugopal, Dr. Y.S. Chitale, E.M.S. Anam and Mrs. Baby Krishnan for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. These appeals by special leave arise out of a common judgment rendered by the High Court of Kerala in a batch of writ appeals filed by the respondents herein against the dismissal of their petitions under Article 226 of the Constitution of India for the issue of writs of certiorari, mandamus, prohibition etc. by a learned single Judge. Though the appeals were allowed and the order of learned single Judge was reversed, the Division Bench has granted only limited reliefs to the respondents in that it has quashed the impugned order of the Government under exhibit P 7 dated 19 5 87 and issued a mandamus to the State Government to consider the applications of the respondents on their merits on the basis of the earlier order passed in their favour under exhibit P 4 dated 4 2 87. The State of Kerala, feeling aggrieved with the judgment of the Division Bench, has preferred these appeals. Pursuant to the State Government publishing in the Gazette a final list of areas where new unaided recognised high schools/upper primary schools/lower primary schools are to be opened or existing unaided lower primary schools/upper primary schools are to be upgraded in the year 1986 87, the respondent educational agencies submitted applications for grant of sanction to open new unaided recognised schools or for upgrading the schools already run by them. By 4 2 87, the State Government issued an order under exhibit P 4 granting sanction to the respondents to open new unaided schools or to upgrade their existing schools subject to the conditions set out therein. However, by an order under exhibit P 5 dated 20 2 87, the Government directed the earlier order under exhibit P 4 to be kept in abeyance. The respondents challenged the order of the Government by means of petitions under Article 226 of the Constitution. During the pendency of the writ petitions, the general elections were held in Kerala State and a new ministry came to assume office. The government under the new ministry passed an order dated 19 5 87 under exhibit P 7 cancelling in toto the order under exhibit P 4 granting PG NO 98 sanction to the respondents to open new schools or to upgrade the existing schools. This led to the respondents amending the writ petitions suitably so as to direct their challenge to the validity of the cancellation order passed under exhibit P 7. The respondents failed before the single Judge but on appeal the Division Bench has granted them limited reliefs as set out above. Before adverting to factual matters. it is necessary to refer to some of the relevant provisions of the Kerala Education Act (for short `The Act ') and the Kerala Education Rules (for short `The Rules). After the Kerala Education Bill, 1957, had been passed by the Kerala Legislative Assembly and was reserved by the Governor for the consideration of the President, the President made a reference to the Supreme Court under Article 143(1) of the Constitution for obtaining the opinion of the Court upon certain questions relating to the constitutional validity of some of the provisions of the Bill and the Supreme Court gave its opinion as reported In re. Kerala Education Bill, 1957 ( 1959 SCR 995). The preamble to the Act states that the Act is being enacted "to provide for the better organisation and development of educational institutions in the State providing a varied and comprehensive educational service throughout the State". Section 2 is the definition section and for our purpose it is enough if we look at the definitions of 'educational agency ', 'private school ', and 'recognised school ' because we are concerned in these appeals only with private recognised schools and not with government or departmental schools or aided schools. Section 2(2), 2(7) and 2(8) read as under: 2(2). "Educational agency" means any person or body of persons permitted to establish and maintain any private school under this Act; 2(7). ` Private school" means an aided or recognised school; 2(8). "Recognised school," means a private school recognised by the Government under this Act". Section 3(1) empowers the Government to regulate primary and other stages of education and courses of instruction in government and private schools. It is apposite to mention here that recognised schools do not receive any financial aid from the Government though they are bound to impart instruction only according to the prescribed curriculum of studies and they can have recognised standards or divisions of classes only in accordance with the Act and the Rules. Section 3(3) sets out that the Government may provide PG NO 99 educational facilities by (a)establishing and maintaining schools or (b) permitting any person or body of persons to establish and maintain aided schools or (c) recognising any school established and maintained by any person or body of persons. Section 3(4) confers deemed recognition to all the schools which were in existence when the Act came into force. Section 3(5) stipulates that after the commencement of the Act, the establishment of a new school or the opening of a higher class in any private school shall be subject to the provisions of the Act and the Rules made thereunder and that if any school or higher class is established or opened otherwise than in accordance with the provisions of the Act and the Rules, they will not be entitled to be recognised by the Government. Section 9 provides that the Government shall pay the salary of all teachers in aided schools direct or through the Headmaster of the school. Section 13 lays down that if there is any retrenchment of teachers in any aided school on account of orders of Government, then the retrenched teachers can be absorbed in any Government school or aided school. Section 36 confers power on Government to make Rules, either prospectively or retrospectively for the purpose of carrying into effect the provisions of the Act. Section 37 provides that all Rules made under the Act shall be laid before the Legislative Assembly for its approval. In exercise of its powers under Section 36, the Government have framed Rules and they have been approved by the Legislature. Though the Rules contain several chapters, we need look only into chapter V and the relevant rules therein. Rule 2 provides for the Director of Public Instructions (hereinafter the Director) preparing once in two years "a report indicating the locality where new schools or class or grades are to be opened and existing lower primary schools or upper primary schools or both are to be upgraded. " In preparing such a report, the Director is enjoined to take into consideration several factors. The list so prepared by the Director should be published in the Gazette before the end of January of the year of publication, inviting objections or representations against such list. Every objection filed by an objector has to be accompanied by a challan for Rs.10. On receipt of the objection. the educational authorities have to conduct enquiries, hear the parties, visit the areas and submit their reports, together with their views on the objections raised, to the Director within a period of two months. The Director, if he find6 it necessary, may also hear the parties and thereafter he has to finalise the list and send his recommendations with the final list to Government within a period of two months. The Government has thereafter to PG NO 100 scrutinise the records and approve the list with or without modifications and cause the approved list to be published by the Director. As against the final list published by the Director, there is no right of appeal or revision for anyone but the Govern nent is empowered to review the list. As Rules 2(4) and 2(5) are relevant for consideration, they are extracted hereunder: "2(4). Government after scrutinising all the records may approve the list, with or without modification and forward it to the Director within a month from the last date of the receipt of the recommendation of the Director. The list shall be finalised before the end of July by the Government and shall be published by the Director." "2(5). No appeal or revision shall lie against the final list Published by the Director Provided that the Government may, either suo moto or on application by any person objecting to the list published by the Director under sub rule (4) made before the expiry of thirty days from the date of such publication, review their order finalising such list and make such modifications in that list as they deem fit by way of additions or omissions, if they are satisfied that any relevant ground has not been taken into consideration or any irrelevant ground has been taken into account while finalising the said list; Provided further that no modification shall be made under the preceding proviso without giving any person likely to be affected thereby an opportunity to make representations against such modification. " Then comes Rule 2A which is an important provision and requires close scrutiny. Rule 2A(1) provides that after the publication of the final list under Rule 2(4) the Director shall, by notification in the Gazette in the month of October, call for applications for opening of new schools and for upgradation of existing schools in the areas specified in the final list. Rule 2A(2) lays down that only applications made in response to the notification published by the Director will merit consideration and not applications made otherwise. Rule 2A(3) lays down that on receipt of such applications for permission to open new schools or for upgrading of existing schools, the District Educational Officer should make appropriate enquiries regarding the cor PG NO 101 rectness of the particulars contained in the application and other relevant matters and then forward the applications with his report thereon to the Director. Rule 2A(4) obligates the Director to peruse the applications and the reports of the District Educational Officers and forward all the papers to the Government with his own report. Rule 2A(S) enJoins the Government to consider the applications and the reports accompanying them and take a finfill decision and publish the same in the Gazette. As this sub rule is of importance it requires extraction: "2A(5). The Government shall consider the applications in the light of the report of the District Educational Officer and the Director and other relevant matters which the Government think necessary to be considered in this connection nd shall take a final decision and publish their decision in the Gazette with the list containing necessary particulars. " Rule 2A(7) sets out the time schedule in which the applications are to be made and the orders of Government are to be issued. It is worthy of note that as against the list of applications approved by the Government and published in the Gazette under Rule 2A(S), there is no provision for the Government reviewing the list to the detriment of the applicants whose applications have been approved and the provision made under Rule 12 is only for unsuccessful applicants to present revision petitions to complain of their non selection. The next rule which requires notice is Rule 9 which sets out the conditions for grant of permission to open new schools. Rule 10 which was originally in the Rules and which prescribed the preparation of a Development Plan by the Director came to be deleted when the Rules were amended. Rule 11 pertains to grant of permission to open new schools. The rule provides that if the Government are satisfied that permission to open the schools included in the development plan may be granted, the Government may issue orders to that effect through the Director specifying (i) the educational agency to whom permission i9 granted, (ii) the grade of the school, (iii) the standard or standards to be opened, (iv) the location of the school, (v) the date from which the school should start functioning and (vi) the conditions to be fulfilled by the educational agency in respect of the site, area, buildings, equipments, staff, financial guarantee etc. Rule 14 provides that when a new school is opened with permission granted under Rule 11, the District Educational Officer and the Director should be informed of the date of opening of the school. the location. the standards opened, the name and qualifications of the PG NO 102 staff etc. The District Educational Officer should then visit the school and report to the Director about the conditions stipulated for opening the school being complied with. Rule 15 provides for withdrawal of permission if the conditions stipulated have not been fulfilled. Rule 16(a) deals with applications for recognition of schools or of additional standards. The rule states that within three B months from the date of opening of schools or of additional standards, applications should be made to the educational authorities for grant of recognition or continuance of temporary recognition. Rule 17 sets out that if all the conditions prescribed have been satisfied, then the school shall be granted recognition. Now turning to factual matters, the Director published on March 6, 1986 a list indicating the areas where new un recognised schools are to be opened and existing lower/upper primary schools are to be upgraded and inviting objections or representations against the list from interested parties. Thereafter, the educational authorities conducted the necessary enquiries, considered the objections/representations received and submitted their reports to the Director. There upon the Director bestowed his consideration to the matter and finalised the list and sent his recommendations to the Government. The Government approved the list with some modifications and then caused the approved list to be published by the Director on June 24, 1986 in the Gazette. The list published by the Government set out 122 areas where new schools are to be opened or existing schools are to be upgraded in order to fulfil the educational needs of the notified areas. The Gazette publication was under the caption "The final list of areas where new unaided recognised High schools/Upper primary schools/Lower primary schools are to be opened or existing unaided L.P. Schools/Upper primary schools are to be upgraded in the year 1986 87. " The task of identifying and approving the areas where new unaided schools are to be opened or existing schools are to be upgraded having been accomplished, the Director took the next step of issuing a notification under Rule 2A( I) calling for applications from intending applicants for opening new schools or for upgrading of existing schools in the selected areas. The respondents submitted their applications in response to the notification made by the Director. These applications were duly enquired into and considered by the District Educational Officer and thereafter by the Director as laid down in Rule 2A(3) and (4) and thereafter the Government considered the applications in accordance with Rule 2A(5) and took a H final decision and caused their decision to be published in the Gazette on February 4, 1g87. As per the Gazette notification, the Government granted sanction for the opening/upgrading of 36 lower primary schools, 36 upper primary schools and 19 high schools, totalling in all 91 schools in the list of areas selected. This Gazette PG NO 103 notification has been marked as exhibit P 4. The names of all the respondents found a place in the notification and they were granted permission to open/ upgrade unaided schools. The order reads as under: "Government are pleased to accord sanction to open/ upgrade unaided recognised schools as detailed in Annexure to the Government Order subject to the following conditions. The schools will be permitted to be opened during the academic year 1986 87 . . 2. For L.P. Schools and U.P. Schools without L.P. Scction, the educational agencies must provide one acre of land; for U.P. School with L.P. Section 1.5 acres of land; and for High Schools with or without primary section 3 acres of land. Recognition will be given only to the educational agency who produce evidence before the concerned controlling authority of having provided the required site. The applicants for opening of the schools or upgradation of the schools shall give an undertaking as provided under Note (V) to Rule I l Chapter V of K. E. Rs . It so happened that on February 4, 1987, itself an announcement was made regarding the holding of general elections in Kerala State but no dates were announced for the election. Presumably, to avoid criticism about the timing of the publication of the sanction order, the Chief Minister passed orders for keeping in abeyance the sanction accorded to the successful applicants under exhibit P 4 and a Gazette notification to that affect was published on February 23, 1987. Thereupon. the respondents moved the High Court through petitions under Article 226 of the Constitution challenging the action of the Government. During the pendency of the writ petitions, the general elections came to be held and a new ministry assumed power in Kerala State. The new ministry decided to revoke the order of sanction passed under exhibit P 4and caused a Gazette notification exhibit P 7 to be made in that behalf. The notification was as under: PG NO 104 "In the G.O. read as first paper above sanction was accorded to open/upgrade 91 unaided recognised schools of various categories during the academic year 1986 87. As per G.O. read as second paper above the orders issued in the said G.O. were kept in abeyance until further orders. Government have reconsidered the matter. At present there are more than 16000 schools in the State. Thousands of protected teachers will have to be absorbed from these schools. Every time a recognised school is started in an area, there is an immediate impact on the neighbouring aided and Government schools leading to fall in strength and divisions, creating more protected teachers and thereby leading to wasteful expenditure. The 91 schools sanctioned were at the fag end of the academic year 1986 87 and it was not possible to start the schools during the same year. Many schools do not fulfil the conditions for starting the schools. In several cases exemption will have to be given to fulfil the conditions year after year. AS such Government strongly feel that instead of starting new schools the existing schools should be strengthened in all respects, i.e. site, building, equipment etc. In the circumstances the orders issued in the G.O. read as first paper will stand cancelled. No recognised schools will be upgraded or sanctioned during 1987 88 also. " The learned single judge who heard the writ petitions filed by the respondents took the view that while it was obligatory for the Government to follow the procedure prescribed in Rules 2 and 2A of Chapter V of the Rules, if it was to permit the opening of new unaided recognised schools or the sanctioning of upgradation of existing schools, the converse result would not follow i.e. wherever the Government had gone through the exercise of the procedure laid down in Rules 2 and 2A, the Government could not retrace its steps and was bound to proceed further in the matter of the opening of new schools or upgrading of existing schools and that the Government had no option to reverse its decision. In so far as the Government 's power to revoke an order of sanction made under Rule 2A(5) is concerned, the learned judge held that the Government 's power to sanction new schools also carried with it an inherent right of cancellation of an order passed under Rule 2A(5). The learned judge saw justification for the cancellation order being passed by the Government on another ground also viz. that the sanction for opening of new PG NO 105 schools or upgrading of schools was given only at the fag end of the academic year 1986 87 and, as such, the order of sanction was not capable of implementation. Besides these grounds, the single judge found merit in the reasons given by the Government in the impugned order exhibit P 7 for revoking the sanction viz. that the opening of new unaided schools or upgrading of existing unaided schools invariably resulted in fall of pupil strength and/or division strength in the government run as well as aided schools and this led to the ousting of teachers from aided schools whom the State had to treat as "protected teachers" and take care of them and provide appointments for them in government as well as aided schools. The last reason which weighed with the single judge was that the Government 's experience in the past showed that many of the schools proposed to be started or seeking upgradation were not able to fulfil the minimum requirements and resorted to seeking Government 's indulgence for granting them exemption from complying with the prescribed conditions and requirements. In accordance with these views, the learned single judge dismissed the writ petitions. The Division Bench which heard the writ appeals viewed the matter in a wholly different manner and allowed the appeals. The Division Bench held that firstly the writ petitioners had adequate locus standi to challenge the cancellation order of the Government and that the Government did not have power or jurisdiction to revoke the sanction order; secondly the order of cancellation violated the principles of natural justice; thirdly there was no application of mind and fourthly the order of cancellation was passed on the basis of irrelevant grounds. In presenting the case of the State before us in these appeals Mr. Subramania Poti, learned senior advocate appearing for the State assailed everyone of the findings and reasons given by the Division Bench and argued that the notifications made under Exs. P 4 and P 7 were only announcements of the policy decisions taken by the Government and, the Government could revise its decision at any time and even if they are to be viewed as administrative orders passed by the Government, it was always open to the Government, in exercise of its powers under Section 20 of the Kerala General Clauses Act (corresponding to Section 21 of the General Clauses Act X of 1897) to add, amend, vary, or rescind the notifications. The learned counsel further stated that the respondents would get the status of 'aggrieved persons ' and acquire locus standi to question any order of revocation passed by the Government only if they had been granted permission under Rule l1 to open new schools and not before as they would acquire "legitimate expectation rights" only after satisfying the requirements of Rule 11. Proceeding on the same lines, the learned PG NO 106 counsel stated that the Government had not indulged in any adjudicative process nor had the Government violated any provisions of the Act or Rules or even the principles of. natural justice and, as such, the writ petitions did not B present any justiciable issue for consideration by the Court. The last submission made was that the cancellation order did not suffer either from the vice of non application of mind or the permeation of irrelevant grounds. Controverting the arguments of the appellant 's counsel, Dr. Chitale, Mr. Krishnamurthy Iyer and Mr. K.K. Venugopal, learned Sr. Advocates appearing for the respondents contended that the decision rendered by the Division Bench is fully in accordance with law and needs no interference by this Court. They pointed out that the Division Bench has done nothing more than to place the parties in their status quo ante position by quashing exhibit P and directing the Government to proceed further with the applications in order to see whether permission could be granted under Rule 11 of Chapter V. In the light of these conflicting arguments what falls for consideration in these appeals may broadly be enunciated under the following heads: (I) Whether any rights accrued to the respondents pursuant to the sanction granted to them under exhibit P 4 for opening new schools or upgrading existing schools; so as to challenge the cancellation order under exhibit P 7 or whether the right of challenge would accrue to them only after further approval was granted under Rule l1. Whether it was open to the Government under the Act and Rules or under Section 20 of the Kerala General Clauses Act to cancel in toto the sanction given to 91 approved applicants for opening new schools or upgrading existing schools; 3. Even if the Government had powers of cancellation, whether the order under exhibit P 7 is vitiated by reason of (a) nonobservance of the principles of natural justice (b) non application of mind and (c) influence of irrelevant grounds. PG NO 107 Before taking up for consideration these questions, we may set out the various stages contemplated by the Rules which have to be passed through by an educational agency in order to open a new school or upgrade an existing school and obtain recognition from the Government. It is relevant at this juncture to mention that the Act and the Rules do not prohibit the starting and running of private unaided schools by any agency and the only restriction is that it will not be entitled to secure recognition for the said school from the Government unless the conditions imposed by the Rules are satisfied and complied with. The importance of securing recognition lies in the fact that without recognition the students studying in the unaided schools will neither be permitted to appear as candidates in the examinations conducted by the State nor be eligible to avail of the opportunities for higher education or to enter public service examination. The obtainment of recognition from the Government is therefore a vital factor for the educational agencies starting new schools or newly upgrading their existing schools. Coming now to the stages which should be gone through, there are five stages as set out by the Division Bench and which enunciation is accepted by the learned counsel for the appellants as the correct position. The first stage consists of the Government going through the exercise under Rule 2 culminating in the Government publishing under Rule 2(4) the localities where new schools are to be opened or existing schools are to be upgraded. The second stage consists of the Government calling for applications under Rules 2A(1) from intending applicants for opening new schools or for upgrading the existing schools in the areas specified and taking a final decision and publishing the list of approved applicants in the Gazette under Rule 2A(5). Then comes the third stage when the applications are subjected to more detailed scrutiny under Rule 11 regarding the fulfilment of conditions set out in Rule 9 and the drawing up of the order setting out the name of the educational agency, the grade of the school, the standards to be opened, the location and the date of opening of the school etc The fourth stage is envisaged under Rule 14 and it consists of the educational agency permitted under Rule 11 to report to the educational, authorities the factum of the opening of the school and the fulfilment of the conditions set out in the order and the names and qualifications of the staff etc. so that the educational officer can visit the school and submit a report to the Director regarding the fulfilment of all the conditions by the school authority. The fifth and the last stage l5 set out in Rules 16 and 17 and it pertains to the school authority applying for recognition under Rule 16A and the Director granting sanction under rule 17 after being satisfied that the school authority has satisfied all the requisite conditions for grant of recognition. PG NO 108 A four fold argument was advanced by Mr. Poti to assail the judgment of the Division Bench. The contentions were formulated as under: 1. The respondents are not entitled to the issue of a writ of mandamus because firstly they had unauthorisedly opened new schools in contravention of Section 3(5) without obtaining the Government 's permission under Rule 11 Chapter V and secondly the proceedings under Chapter V had reached only the second stage of passing of an order under Rule 2A(5) and had not reached the third stage of permission being granted under Rule 11 whereafter only the respondents would acquire "legitimate expectation rights" cognisable in law. There was no violation of any Rule or the principles of natural justice when the Government dropped the proposal of permitting new schools to be opened or existing schools to be upgraded in the 91 localities mentioned in exhibit P 4 notification because it was an administrative decision based on Government 's policy and no adjudicative process was involved in the passing of the cancellation order. In any event the Government had inherent powers of revocation under Section 20 of the Kerala General Clauses Act corresponding to Section 21 of the Central Act and the exercise of such powers is not open to challenge. In any view of the matter, this was not a case where the High Court should have exercised its powers under Section 226 to restore the sanction order under exhibit P 4 because the Court cannot impose an economic burden on the State 's resources by issuance of a writ. Taking up for consideration the first limb of the first contention of the learned counsel, it is true the respondents have opened new schools or upgraded their existing schools at the approved localities on 2.6.1986 itself i.e. even before the final list of approved areas under Rule 2(4) was published on 24.6.1986 and the sanction order under exhibit P 4 was published on 4.2.1987. The question however will be whether by reason of the opening of the schools prematurely, the respondents stand forfeited of their right to question the cancellation order under exhibit P 7. We think not. This is because Section 3(5) of the Act PG NO 109 does not totally ban the establishment of a new school or the opening of a higher class but only states that if any school or higher class is opened without following the procedure, then such new school or higher class will not be entitled to recognition by the Government. It will not therefore, be per se a contravention of the Act and the Rules if an educational agency started a new school or opened a higher class without following the provisions of the Act and the Rules and the only disqualification it would suffer is its disentitlement to Government 's recognition. That apart the order of cancellation is not challenged by the respondents on the ground they have already established new schools or opened higher classes in existing schools but on the ground the earlier order of sanction under exhibit P 4 had been cancelled without justifiable reason and without the respondents being heard. Therefore, the respondents cannot be non suited merely on the ground they had opened new schools or higher standards even before the Government published its final list of approved areas under Rule 2(4). Hence, the first limb of the first argument of Mr. Poti cannot be countenanced. In so far as the second limb of the first contention is concerned, it was urged by Mr. Poti that the publication of the final list under Rule 2(4) was only a preliminary exercise and not a final one because the initial selection of localities under Rule 2(4) for opening new schools or upgrading existing schools requires further scrutiny and approval under Rule 9 and consequently any order of sanction granted under Rule 2A(5) would leave the grantee only in the position of an applicant and not confer on him legitimate expectation rights. In support of his contention Mr. Poti placed reliance on certain passages in Chingleput Bottlers vs Magestic Bottling. 11984] 3 SCR 190 at 211 to 213: AIR 1982 SC 149 paras 14 to 17; State of Kerala vs A. Laxmi Kutti, [ at 654 and certain passages in Wade on Administrative Law pages 464, 465, 624 and 625. Looking at Rule 2 and the procedure enunciated therein for determining the areas where new schools are to be opened or existing schools are to be upgraded, we are unable to accept the contention of Mr. Poti that the selection of areas where additional educational facilities are to be provided is only an informal and inconsequential exercise and as such the final list published by the Government carried no force with it till such time the further selection process under Rule 9 is gone through. The reason for our saying so is because Rule 2 prescribes an elaborate procedure and the due application of mind by several agencies before the final list of approved areas is published under Rule 2(4). Rule 2(1), enjoins the Director PG NO 110 to prepare a list of localities where new schools or upgraded schools are to be opened after taking into consideration all the relevant factors viz. the existing schools in and around the locality, the strength of the several standards and the accommodation position in the existing schools, distance factors and the educational needs of the locality with reference to the habitation and backwardness of the area etc. Besides publishing the tentative list, the Director has to call for representations and objections from interested parties and they have to be duly considered by the Educational Officers of the locality and then by the Director himself and eventually the Government itself has to apply its mind to the selection of areas and then cause the final list to be published. The proviso to Rule 2(5) grants only limited powers of modification to the Government viz. to alter the list here and there and not to scrap it outright. Even the power of modification can be exercised only after giving the affected parties an opportunity to make representations against the proposed modification. The selection of approved areas becomes final once the list is published under Rule 2(4), with or without modification and the finality is not contingent upon further approval under Rule 9. What Rule 9 itself provides for is the grant of permission to applicants approved under Rule 2A(5) to open new schools depending upon the applicant subjectively satisfying the Government about his ownership or right to possession of the site, buildings and other needs of the school, his financial guarantee, has not being convicted of any offence involving moral terpitude and about the locality being in need of the new school and the accessibility of the new school to the members of the public. It is significant to point out that Rule 9 speaks of fulfilment of conditions only for opening new schools and not for the upgrading of existing schools. Thus it may be seen that Rule 9 lays down subjective tests while Rule 2 prescribe objective as well as subjective standards in the matter of selecting areas which are in need of new schools or upgraded schools. It was also pleaded that the final list published under Rule 2(4) was vulnerable to cancellation at any time before new schools were actually opened in the selected areas in accordance with the Rules because of change of conditions in the selected areas or because of the selected area losing their place of priority. This is too fragile a statement to merit acceptance because the need of a selected area, given recognition after an elaborate process of selection, cannot disappear overnight unless the need is fulfilled by the Government itself opening a new school or by the residents of the locality migrating on a large scale to another place. That the publication of the final list under Rule 2(4) PG NO 111 has not only binding force on the Government but it also entails consequential obligations on the Government could be seen from the fact that Rule 2A( 1) makes it imperative for the Director to call for applications from interested parties for opening new schools or upgrading existing schools in the selected areas. Mr. Poti argued that it was only to prevent a deluge of applications for opening new schools all over the States the selection of areas under Rule 2 is gone through so that the number of applications could be restricted. It is difficult for us to accept this statement because it runs counter to the scheme of Rule 2 regarding the selection of areas on objective factors and subjective considerations. Be that as it may, the mandate contained in Rule 2A(1) goes to show that the identification and selection of inadequately served areas under Rule 2(4) is not an idle or meaningless exercise. Such being the case the applications made under Rule 2A( 1) cannot be treated as applications made by mere speculators or adventurers. On the contrary the applications carry with them a certain amount of legitimacy in that they pertain to opening of schools in the inadequately served areas notified by the Government and are made in response to the Director 's notification calling for applications. In fact Rule 12 confers a right of revision on those applicants whose applications for the opening of new/upgraded schools are not included in the list of approved applicants published by the Government under Rule 2A(5). Thus when even an unsuccessful applicant is conferred a right to represent to Government against the non approval of his application, can it be said that an approved applicant has no right whatever to complain when the sanction granted to him is revoked all of a sudden without he being given any opportunity to show cause against such cancellation. It is significant to note that the Rules do not provide for the revocation or cancellation of a final list published under Rule 2A(5) and that the right of cancellation is given to the Government only if the approved applicant fails to satisfy the conditions laid down in Rule 9 and thereby becomes disentitled to obtain sanction under Rule 11. The scheme of the Rules is such that after sanction is accorded to an applicant under Rule 2A(5) to open a new/upgraded school, then the applicant acquires a right to have his application considered further under Rule 9 as regards his ownership or possession of land, buildings etc. his declaration of financial guarantee, the suitability of the place offered by him for location of the school and about he being free of any conviction by any criminal court so as to entitle him to the issue of an order under Rule 11. The further scrutiny of the application of the approved applicant under Rule 9 and the confirmation of approval under Rule 11 would not, however, mean that the earlier sanction granted under Rule 2A(5)does not create "legitimate PG NO 112 expectation rights" in the approved applicant. Mr. Poti contended that an applicant obtaining sanction under Rule 2A(5) would only remain in the position of an applicant and it is only after further permission is granted under Rule 11, the applicant can be said to acquire "legitimate expectation rights" and the requisite locus to challenge any order of cancellation passed by the Government. In support of his argument Mr. Poti relied upon (1) State of Kerala vs Laxmi Kutty, (supra) where the Court after referring to the ruling in Mani Subrat Jain vs State of Haryana, [ ; that a person whose name had been recommended for appointment as a District Judge by the High Court under Article 233(1) had no legal right to the post, held that unless there was a judicially enforceable right no w t of mandamus for enforcement of a right would lie; (2) Chinglepet Bottler vs Majestic Bottling, (supra) where the distinction drawn by Megarry V.C. in Mecinnes vs Onslow Fane and Anr., [19781 3 All. E.R. 211 between initial applications for grant of licence and the revocation, suspension or refusal to renew licence already granted was referred to and the Court observed that "the principle that there was a duty to observe the audi alteram partem" Rule may not apply to cases which relate not to rights or legal expectations but to mere privilege or licence; (3) Wade on Administrative Law, Vth Edition, where difference between rights, liberties and expectations have been set out as under: 'In many cases legal rights are affected, as where property is taken by compulsory purchase or someone is dismissed from a public office. But in other cases the person affected may have no more than an interest. a liberty or an expectation. An applicant for a licence, though devoid of any legal right to it, is as a general rule, entitled to a fair hearing and to an opportunity to deal with any allegations against him. The holder of a licence who applies for its renewal is likewise entitled to be fairly heard before renewal can be refused. So also is a race goer before he can be put under a statutory ban against entering a public race course. In none of these situations is there legal right, but they may, involve what the courts sometimes call "legitimate expectation '. This expression furnishes judges with a flexible criterion whereby they can reject unmeritorious or unsuitable claims. It was introduced in a case where alien students of scientology" were refused extension of their PG NO 113 entry permits as an act of policy by the Home Secretary. The Court of Appeal held that they had no legitimate expectation of extension beyond the permitted time, and so no right to a hearing, though revocation of their permits within that time would have been contrary to legitimate expectation. Likewise where car hire drivers had habitually offended against airport byelaws, with many convictions and unpaid fines, it was held that they had no legitimate expectation of being heard before being banned by the airport authority. There is some ambiguity in the dicta about legitimate expectation, which may apparently mean either expectation of a fair hearing or expectation of the licence or other benefit which is being sought. But the result is the same in either case: absence of legitimate expectation will absolve the public authority from affording a hearing. For the purpose of natural justice the question which matters is not whether the claimant has some legal right but whether legal power is being exercised over him to his disadvantage. It is not a matter of property or of vested interests, but simply of the exercise of governmental power in a manner which is fair and considerate. " The argument, therefore, was that the respondents had no locus standi to move the court to seek the quashing of exhibit P 7 order and mandamus for their applications being approved and granted sanctioned under Rule 17. Refuting this contention Dr. Chitale argued that the respondents were "persons aggrieved" and they had locus standi in the full sense of the term to move the court since their right to open a school, though not claimed as a constitutional right was a natural right and their suitability to open a school in the selected area having been accepted and their names included in the list published under Rule 2A(S), the Government could not cancel the list. Dr. Chitale relied upon the decisions of this Court in Ebrahim Aboobakar and Anr. vs Custodian General of Evacuee Property, ; and S.P. Gupta vs Union of India, [1981] Supp. SCC 87. Arguments were also advanced by the appellant 's counsel to contend that any permission given under the Rule to run a school would only be a privilege while the respondent 's counsel would say that it was a right within the meaning of Article 19(1)(g) of the Constitution. We do not think it necessary to go into this aspect of the matter because of the controversy narrowing down to the question whether after having granted sanction to the respondents under Rule 2A(5) PG NO 114 to open/upgrade schools, subject to satisfying the conditions under Rule 9 and obtaining clearance under Rule 11, the Government could go back on the matter and cancel the sanction order and that too without giving the respondents any hearing at all. In the course of the arguments Mr. Poti laid stress upon the fact that while Rule 9 lays down several conditions for being fulfilled before permission can be granted under Rule 11 to an educational agency to start a new school or upgrade a school, the order made under Rule 2A(5) makes mention of only one of the several conditions being noticed by the Government viz the provision of land for the proposed school and as such the order, despite the use of the word "sanction" can by no stretch of imagination be considered as an order which conferred rights upon the respondents and therefore it was futile for the respondents to say that legally enforceable recognition had been given to them to open schools in the selected areas. Going a step further Mr. Poti said that in many cases even the solitary factor noticed by the Government viz the provision of land for the proposed school had not been adequately satisfied and this shortcoming has been referred to in the alleged sanction order passed under Rule 2A(S). Going to the other end, Mr. Iyer and Dr. Chitale tried to take up the stand that the sanction order passed under Rule 2A(5) was virtually one under Rule 11 because the respondents had furnished information pertaining to all the conditions enunciated in Rule 9 and therefore what remained for the Government was only to see whether the schools opened or upgraded by the respondents were entitled to grant of recognition under Rule 17 or not. We are unable to find merit in the last contention of the respondents in this behalf because the Division Bench has clearly stated in para 52 of the judgment that the stage of the Govern ment giving directions for fulfilment of various conditions has not been reached and therefore it was directing 'the State to proceed to take the further steps commencing from Rule 11, Chapter V of the K.E.R." In view of this categoric finding and since it is the admitted position that the Government have not subjectively scrutinised the application of each of the respondents with reference to the conditions enunciated in Rule 9, there is no scope for the respondents to say that the sanction order made under exhibit P 4 was for all practical purposes an order made under Rule 11. Even so, we cannot accept the contention of the State that the applications submitted by the respondents, despite their approval by the District Educational Officer, the Director and the Government and the publication of the sanction order under Rule 2A(5) remained only at the threshold and it was therefore open to the Government to revise its policy of PG NO 115 opening new schools or upgrading existing schools and throw overboard all the approved applications. We do not therefore feel persuaded to accept the first contention of the appellant 's counsel that the sanction order passed in favour of the respondents under Rule 2A(5) carried no rights with them and that they would remain still born orders till they passed through the third stage and were given acceptance under Rule 11. The second major contention of the appellant 's counsel, it may be recalled, was that the Government had not violated any statutory provision or the principles of natural justice when it passed the cancellation order exhibit P 7 revoking the earlier order exhibit P 4. To a large extent the arguments on this aspect of the matter overlapped the arguments advanced with reference to the first ground of attack already dealt with. It was once again argued that the identification and selection of poorly served areas in the matter of educational facilities under Rule 2 was only an administrative exercise in order to restrict the number of applications for opening new schools within manageable limits and that the real test of selection of the areas began only when the applications were processed under Rule 9. It was likewise urged that though the Government was bound to implement the Directive Principles contained in Article 41 of the Constitution in the matter of providing educational facilities, the obligation was subject to the limits of the economic capacity of the Government and as such the Government cannot be compelled by any educational agency or even by the Court to open new schools unmindful of the financial burden that would be cast on the State by the opening of such schools. The last submission made in this behalf was that the revocation order passed under exhibit P 7 was not in pursuance of any adjudication of the rights of the applicants but to make known the revised policy of the Government which was taken after considering several relevant factors such as the inadequate resources of the applicants in providing lands, buildings, equipment, financial guarantee etc. for opening the proposed schools, the backlash on Government 's finances due to the resultant surplusage of teachers that would occur in aided and government schools due to opening of more unaided schools etc. and therefore the respondents could neither complain of violation of the statute or the principles of natural justice when the Government passed the impugned order under exhibit P 7. It was pointed out by Mr. Poti that the Secretary to Government, Education Department had pointed out in January 1983 about the inadvisability of opening new schools and aboutt many of the applicants failing to satisfy most of the required conditions for PG NO 116 opening new schools but in spite of it the Education Minister had acted in a cavalier manner in passing the order of sanction under exhibit P 4 and therefore the Government was well within its rights in witholding the order in the first instance and revoking it in toto subsequently. We are unable to see persuasive force in these contentions because they do not take notice of the realities of the situation. As we have already pointed out, the identification of inadequately served local areas in the matter of educational facilities and their selection process under Rule 2 cannot be construed as a meaningless and idle exercise. That apart, the final list of selected areas published under Rule 2(4) has not been revoked or cancelled by the Government. Though a fresh list of areas has to be prepared once in two years, that would not mean that the list can be rendered irrelevant due to nonimplementation. Such being the case the sanction order granted to the 91 applicants from among the total number of 122 applications has the support of the earlier Government order made under Rule 2(4). It must, therefore, logically follow that the approved applicants are entitled to have their applications taken to the next stage for consideration on more subjective factors so as to obtain permission under Rule 11 if they satisfied the requirements laid down by Rule 9. We have already pointed out that the Rules do not provide for the Government reviewing suo motu any order of sanction passed under Rule 2A(5) in favour of any applicant for opening of a new school or upgrading an existing school and its power of revision under Rule 12 is confined to the reconsideration of the case of any applicant whose name did not find a place in the final list of approved applications published by the Government. In so far as the argument that the Government cannot be compelled by any educational agency or by the Court to incur additional financial burden by opening new schools, or new classes is concerned, we have to point out that the argument in the present context has no force because all the applications that were approved pertained to the opening of unaided schools. Therefore, there is no question of the Government being put to additional financial burden due to the opening of new schools in the selected areas. Moreover, the sanction order under exhibit P 4 specifically provided that "the applicants for opening of the schools or upgradation of the schools shall give an undertaking as provided under note (v) to Rule 11 Chapter (V) of the K.E.R." The undertaking referred to above is for ensuring that the approved applicant "shall not move the Government at any time for the conversion of the school into an aided school" and clause (b) of Rule 11 further provides that "if any application is made for conversion into an aided school, the permission granted for opening of the school shall automatically lapse." Hence the argument that the Government will be saddled with additional financial burden by the opening of new unaided schools is a mis conceived one. PG NO 117 It cannot be disputed that the applicants have to necessarily make arrangements for purchasing or taking on lease the required extent of land as well as making arrangements for the building and equipment that would be needed, for obtaining sanction from the Government even at the stage of making an application under Rule 2A(2). The Government cannot, therefore, be heard to say that no prejudice would occur to the respondents by reason of the cancellation order and that no principles of natural justice would be voilated if the Government unilaterally revokes an order of sanction granted under Rule 2A(5) to the respondents for opening new schools or for upgrading existing schools. For all these reasons, we are unable to accept the second contention of the appellant 's counsel. We now pass on to the third contention that even if there is no provision in the Rules for the Government cancelling the sanction order passed under exhibit P.4, the Government is always possessed of inherent powers of revocation under Section 20 of the Kerala General Clauses Act and hence the Division Bench was wrong in holding that the Government had no jurisdiction to pass the impugned order exhibit P 7. In support of this argument, Mr. Poti referred to the decisions in M. P. State vs V. P. Sharma, [ ; at 570 and Lt. Governor vs Avinash Sharma ; at 416. Both the cases arose under the Land Acquisition Act and what was in 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. In the first case, after the issue of a notification under Section 4(1), the Government issued successive notifications under Section 6 of the Act covering different portions of the land notified for acquisition under Section 4(1). The validity of the last of the notifications under Section 6 was challenged on the ground that a notification under Section 4(1) could be followed only by one notification under Section 6 and that successive notifications with respect to different parts of the land comprised in one notification under Section 4(1) cannot be made. The contention was upheld by the High Court and also by this Court after over ruling the plea that once notification was made under Section 4(1), the Government PG NO 118 could issue successive notifications under Section 6 as long as the notification under Section 4(1) was not withdrawn by the Government in exercise of its powers under Section 48. In repelling this contention, the Court incidentally observed that the argument "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 vs Avinash Sharma, (supra) the Government caused a notification under Section 4 of the Land Acquisition Act to be made on March 31, 1964 and followed the same by a composite notification on May 16, 1964 under Section 6, 17(1) and (4). Then the Collector served notices under Section 9 in June 1964. Subsequently on October 5, 1965 the State Government published an order cancelling the earlier notifications dated March 31, 1964 and May 16, 1964. The owner of the land challenged the cancellation order and sought a mandamus to direct the Government to proceed with the acquisition in accordance with law and determine the compensation payable to him for compulsory and urgent acquisition. It was contended on behalf of the State that under Section 21 of the General Clauses Act the State had the power to cancel the notification at any time and that Section 48 of the Land Acquisition Act did not trench upon that power. The contention was rejected and the Writ Petition filed by the owner of the land was allowed. In the course of the judgment it was observed as follows: "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 notifications under Sections 4 and 6 of the Land Acquisition Act". The Court, however pointed out that "The power under Section 21 of the General Clauses Act cannot be exercised after the land statutorily vested in the State Government. In another portion of the judgment it was observed that after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government and the notification cannot be cancelled under Section 21 of the PG NO 119 General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 and that any other view would enable the Government to circumvent the specific provision by relying upon a general power. Mr. Poti 's contention was that till the permission was granted under Rule 11 for opening new schools or upgrading schools, the power of the Government under Section 20 of the Kerala General Clauses Act remained unaffected. We are unable to accept this argument because as pointed out by the Division Bench, the Act and the Rules do not provide for revocation of an order of sanction granted under Rule 2A(5) before taking the application to the third stage and evaluating it on subjective considerations as to whether permission should be granted under Rule 11 or not. In other words once the government approves an application for opening a new unaided school or a higher class in an existing unaided schools and passes an order under Rule 2A(5), then the successful applicant acquires a right of legitimate expectation to have his application further considered under Rules 9 and 1 l for the issue of a sanction order under Rule 11 for opening a new school or upgrading an existing school. It is no doubt true, as pointed out by the Division Bench, that by the mere grant of an approval under Rule 2A(5), an applicant will not acquire a right to open a new school or to upgrade an existing school but he certainly acquires a right enforceable in law to have his application taken to the next stage of consideration under Rule l l. The Division Bench was, therefore, right in taking the view that the general power of rescindment available to the State Government under Section 20 of the Kerala General Clauses Act has to be determined in the light of the "subject matter, context and the effect of the relevant provisions of the statute. " For the aforesaid reasons the fourth contention of Mr. Poti has also to fail. The last contention of Mr. Poti was that the Division Bench of the High Court ought not to have issued writs under Article 226 of the Constitution for quashing the order under exhibit P 7 and issuing a mandamus to the Government to proceed with the approval exercise ' and consider the eligibility of the respondents for being granted permission under Rule 11 for opening new schools or upgrading existing schools in the selected areas. Various factors were adverted to in support of this plea. It was first of all stated that the respondents have no enforceable right under law to open a school or to insist upon government according them sanction. Secondly, it was stated that many of the respondents were not possessed of adequate land or suitable buildings or PG NO 120 necessary equipment or financial resources etc. to open the schools. Thirdly, it was urged that the academic year 1986 87 had almost come to a close when the order under exhibit P 4 was issued and hence the order had practically become infructuous. Fourthly, it was stated that though there would be no direct expenditure for the State in the opening of unaided schools, the consequential results would affect the finances of the State. It was said that as a result of the opening of new unaided schools or upgraded schools, the pupil strength and the division strength in the existing government and aided schools inevitably get reduced and this led to reduction in the teaching staff strength of those schools and the teachers thrown out of employment have to be given protection by the State by treating them as protected teachers and absorbing them in other government and aided schools as and when vacancies arose and it was in this manner the,State 's finances came to be affected. By this devious reasoning it was contended that the State cannot be compelled to incur additional expenditure in order to oblige the respondents opening new schools etc. We have given our careful consideration to these submissions and find that they have no merit or substance. We have already set out step that though the respondents do not claim a fundamental right, since them base their claim under Article 30(1), to open new schools, they do acquire a legal right under the Act and the Rules, after the Government finalises the list of approved applicants for opening new schools or upgrading existing schools in the selected areas. The Rules enjoin the Government to scrutinise the applications at various levels and then cause a list of the approved applications to be published. Any applicant whose name is not included in the approved list can file a revision to Government under Rule 12 and seek redressal of his grievance. Therefore it follows that if an application is approved and sanction is granted under Rule 2A(5), the applicant acquires a justiciable right to have his application considered at the next level of determination under 9 and Rule 11. To take any other view of the matter would run counter to the Rules in Chapter V and the legislative intent underlying them. In so far as many of the respondents not possessing the required extent of land or the type of building or the amount of finance etc. for opening a new school, it is always open to the Government when scrutinising the applications in the context of Rule 9, to refuse grant of permission to those applicants and reject their applications. By the judgment of the Division Bench, the right of the State Government to pass appropriate orders under Rules 9 and 11 have not been taken away. As regards the contention that the sanction granted under exhibit P 4 on 4.2.87 was almost at the PG NO 121 close of the academic year and as such the order could not have been effectively implemented by the respondents even if the order had not been revoked, we have only to point out that the applications were made well in time but at the instance of some parties who moved the High Court, the Government was restrained from passing sanction orders and it was on account of that there was some delay. Even otherwise Rule 11 provides for the Government prescribing the date from which the school should start functioning. It is always therefore open to the Government to fix the date from which the school should start functioning and the Government is not left without power to exercise regulatory control in such matters. The last of the reasons given viz. that by the opening of new aided schools, the teachers in the government and aided schools will be rendered surplus due to fall in the pupil strength or the division strength in the existing schools, it speaks rather poorly of the standards of education in Government and aided schools. Be that as it may, this cannot be a reason which can be advanced by the Government after it had gone half the way through the exercise of opening new schools in areas and localities where educational facilities are not adequate. It was urged that there are 16,000 schools in Kerala State and they themselves cast a heavy burden on the finances of the State and as such the State cannot afford to have more teachers thrown out of employment in Government and aided schools due to opening of new schools and pay them their salary till such time they are absorbed in regular vacancies in the existing schools. The argument fails to take note of the fact that all these factors were not new developments but were in existence even when the Government took steps under Rule 2 to identify the poorly served areas and then called for applications from interested parties for grant of permission to open new schools or to upgrade existing schools. If really the opening of new aided schools would result in an adverse effect upon the finances of the State, then the Government should find remedy for the situation by amending the Rules suitably so as to severely limit the scope for opening new unaided schools by putting more stringent conditions. In fact, the Government have already proceeded in that direction and even now Rule 11 stipulates that any unaided school granted recognition should not seek conversion into an aided institution and that if such conversion is sought for, then the recognition granted earlier will automatically lapse. Over and above all these things, it is inconceiveable that by the opening of 1 unaided schools, new or upgraded, even assuming all of them are granted permission under Rule 11, the impact on the pupil strength of division strength the existing government and aided schools will be so great as to cause a large number of teachers being rendered surplus and the Government PG NO 122 being forced to incur heavy expenditure by treating them as protected teachers and paying them their salary. We are, therefore, in complete agreement with the Division Bench that these factors are undoubtedly extraneous ones and do not afford justification for the passing of the impugned order exhibit P 7 for revoking the earlier sanction order exhibit p 4. Hence the last contention also fails. In the light of our reasoning and conclusions, our answers for the three questions formulated by us are as under: (1) Though the sanction granted to the respondents under exhibit P 4 would not by itself entitle them to open new schools or upgrade the existing schools, it did confer on them a right to seek the continuance of the statutory procedural stream in order to have their applications considered under Rule 9 and dealt with under Rule 11 (2) It was not open to the Government, either under the Act or Rules or under Section 20 of the Kerala General Clauses Act to cancel in toto the approval granted to the respondents under Rule 2A(S), for opening new schools or upgrading existing schools in the selected areas on the basis of a revised policy. (3) The impugned order under exhibit P 7, irrespective of the question whether the Government had the requisite power of cancel lation or not, is vitiated by reason of non observance of the principles of natural justice and the vice of extraneous factors. In the result, all the appeals fail and are accordingly dismissed. There will be no order as to costs. However, even as the Division Bench has done, we make it clear that we are not making any pronouncement about the suitability or otherwise of the respondents to be granted permission under Rule 11 to open new schools or upgrade existing Schools. All that we hold is that the respondents are entitled, on the basis of the earlier order passed in their favour under exhibit P 4, to seek continuance of the statutory procedure in order to have their applica tions considered under Rule 9 and for appropriate orders being passed under Rule 11 in accordance with law. Y. Lal Appeals dismissed.

Respondents are running Private Schools. In pursuance of the State of Kerala publishing in the Gazette a final list of areas where new unaided recognised high schools/upper primary schools/lower primary schools were to be opened or existing unaided lower primary schools/ upper primary schools were to be upgraded in the year 1986 87 the Respondents educational agencies submitted applications for grant of sanction to open the unaided recognised schools or for upgrading the schools already run by them. These applications were duly inquired and considered by the District Educational Officer as also by the Director of Education as per the Rules & procedure laid down therefor, particularly Rules 24(3) and (4) and thereafter the Government considered the applications in accordance with Rule 2A(5) and took a final decision for grant of necessary sanction for opening/upgrading of 36 lower primary schools, 36 upper primary schools and 19 high schools, totalling in all 91 schools in the list of areas selected. On 4.2.87, the State Government issued an Order under exhibit P 4, granting sanction to the Respondents to open new unaided schools or to upgrade their existing schools subject to the conditions set out therein. However, by an Order exhibit P 5, dated 20.2.87, the Government directed that the earlier order under Ex P 4 be kept in abeyance. The Respondents challenged the Order of the Government by means of a Writ Petition. During the pendency of the Writ Petition general elections were held to the Kerala Legislative Assembly as a result whereof a new Ministry assumed office. The Government under the new Ministry passed an order dated 19.5.87 under Ex P 7 cancelling in toto the order under Ex P 4 granting sanction to the Respondents to open the school or to upgrade the existing schools. PG NO 94 PG NO 95 The Respondents thereupon amended their Petition suitably and challenged the validity of the order of cancellation passed under Ex. The Singie Judge of the High Court before whom the Writ Petition first came up for hearing took the view that while it was obligatory for the Government to follow the procedure prescribed in Rules 2 & 2A, Chapter V, if it was to permit the opening of new unaided recognised schools or upgradation of existing schools, the converse result would not follow i.e. wherever the Government had gone through the procedure under the Rules the Government could not retrace its steps and was bound to proceed further in the matter and that the Government had no option to reverse its decision. On the question of revocation of the order of sanction, however, the learned Judge held that the power to sanction new schools carried with it the inherent power of cancellation of an order passed under Rule 2A(5). Accordingly the learned Singie Judge dismissed the petitions. The respondents thereafter preferred appeals before the Division Bench. The Division Bench allowed the appeals, reversed the order passed by the Single Judge but granted only limited reliefs to the Respondents in that it quashed the order under exhibit P 7 dated 19.5.87 and issued a mandamus to the State Government to consider the applications of the Respondents on their merits on the basis of the earlier order passed in their favour under exhibit P 4 dated 4.2.87. The Division Bench further held that the Respondents have locus standi to challenge the order of cancellation and that the Government did not have the power or jurisdiction to revoke the cancellation order. It also held that the cancellation order violated the principle of natural justice. Being aggrieved by the decision of the Division Bench of the High Court, the State filed these appeals after obtaining special leave. Dismissing the appeals this Court, HELD: The importance of securing recognition lies in the fact that without recognition the students studying in the unaided schools will neither be permitted to appear as candidates in the examinations conducted by the State nor be eligible to avail of the opportunities for higher education or to enter public service examination. The obtainment of recognition from the Government is therefore a vital factor for the educational agencies starting new schools or newly upgrading their existing schools. [ 107B C] Rule 2A(1) makes it imperative for the Director to call for applications from interested parties for opening new schools or upgrading existing schools in the selected areas. The mandate contained therein goes to show that the PG NO 95 idenffication and selection of inadequately served areas under Rule 2(4) is not an idle or meaningless exercise. [111A C] When even an unsuccessful applicant is conferred a right to represent to Government against the non approval of the application, can it be said that an approved applicant has no right whatever to complain when the sanction granted to him is revoked all of a sudden without he being given any opportunity to show cause against such cancellation. [111D E] The further scrutiny of the application of the approved applicant under Rule 9 and the confirmation of approval under Rule 11 would not, however, mean that the earlier sanction granted under Rule 2A(S) does not create "legitimate expectation right" in the approved applicant. [111G H: 12A] The Rules do not provide for the Government reviewing suo moto any order of sanction passed under Rule 2A(5) in favour of any applicant for opening of a new school or upgrading an existing school and its power of revision under Rule ] 2 is confined to the reconsideration of the case of any applicant whose name did not find a place in the final list of approved applications published by the Government. [116D E ] Though the sanction granted to the respondents under exhibit P 4 would not by itself entitle them to open new schools or upgrade the existing schools, it did confer on them a right to seek the continuance of the statutory procedural stream in order to have their applications considered under Rule 9 and dealt with them under Rule 11 [122C] It was not open to the Government, either under the Act or Rules or under Section 20 of the Kerala General Clauses Act to cancel the approval granted to the respondents under Rule 2A(5), for opening new schools or upgrading existing schools in the selected areas on the basis of a revised policy. [122D] The impugned order under exhibit P 7, irrespective of the question whether the government had the requisite power of cancellation or not, is vitiated by reason of non observance of the principles of natural justice and the vice of extraneous factors. [ 122E]

Appeal No. 2113 of 1968. Appeal by special leave from the Award dated May 24, 1968 of the Industrial Tribunal, Andhra Pradesh in I.D. No. 10 of 1967. Niren De,. Attorney General, S.K. Dholakia, R.H. Dhebar and S.P. Nayar, for the .appellant. K. Srinivasamurthy and Naunit Lal, for respondents Nos. 1 to 12. B.P. Maheshwari, for respondent No. 13. The Judgment of the Court was delivered by Vaidialingam, J. This appeal, by special leave, by the Vizagapatam Dock Labour Board (hereinafter referred to as the Board), is directed against the award, dated May 24, 1968 of the Industrial Tribunal, Andhra Pradesh, Hyderabad in I.D. No. 10 of 1967 holding that the appellant should pay the .Dock workers employed at Vizagapatam Port bonus for the accounting years 1964 65, 1965 66 and 1966 67. The Central Government, by its order dated April 13, 1967 referred for adjudication, to the said Tribunal, the question whether the demand for payment of bonus to Dock Labour Board Workers employed at Visakhapatnam Port for the acconting years 305 1964 65, 1965 66 and 1966 67 was justified and, if so, at what rate should such bonus be paid. The parties to the Reference included the Board, the Visakhapatnam Stevedores Association, certain individual Stevedores and two Unions representing workers. The two Unions were the Port Khalasis Union and the Dock Workers Union. Both the Unions filed statements of claim on behalf of their workmen. They referred to the demands made by them for payment. of bonus and the rejection thereof by the Board and the Stevedores Association. They referred to certain agreements having been reached in respect of bonus between the workmen and the respective Stevedores Associations, in Calcutta, Cochin, Madras and Bombay. They claimed that the work done by the workmen at Visakhapatnam Port was exactly similar to the type of work done by the Stevedores workmen at Bombay, Calcutta, Cochin and Madras and that therefore their claim for bonus was justified. They further referred to the fact that the Board and the Stevedores Association were all governed by the (Act IX of 1948) (hereinafter referred to as the Act) and the Vizagapatam Dock Workers (Regulation of Employment) Scheme, 1959 (hereinafter referred to as the Scheme), framed thereunder. The said Scheme is similar to the Scheme obtaining in the areas where a settlement had been entered into regarding bonus and the relationship between the Stevedores and the Dock Labour Board was also the same in all ports. The Unions claimed bonus at 14 paise per ton for 196465, 15 paise per ton for 1965 66 and 16 paise per ton for 1966 67. The Visakhapatnam Stevedores Association and its member Stevedores filed statements contesting the claim of the workmen. After referring to some of the provisions of the Act and the Scheme, the Association urged that the Dock Workers were the workmen of the Board as all the ingredients of master and servant existed as between the Board and the Dock Workers. The Association further urged that the Dock Labour workers were not the employees of the Stevedores and, as such no claim for bonus could be made as against the Stevedores Association or its members. the Association further pleaded that it. was an unnecessary party of the Reference and the workmen had no claim as against it in view of the fact that the Association or its members were not the employers of the dock workers. They also contested the claim of the workmen on merits. The Board, represented by its Chairman, filed a written statement contesting the claim of the Stevedores that they were not the employers of the dock workers. The Board claimed that it was a statutory body constituted under the Act and governed by the 306 statutory Scheme in the discharge of its statutory functions. According to it none of t,he functions discharged by it under the Act or the Scheme could be characterised as 'carrying on of an industry ' so as to attract the provisions of the Industrial Disputes Act. On the other hand, the Board urged that it was the Stevedores and their Association that carried on the stevedoring industry during the years for which a claim for bonus was made by the workmen and therefore, if at all, the liability for payment of bonus should be that of the Stevedores and their Association. It further urged that the claim, having been made by the workmen against the Stevedores, the latter should not be allowed to convert. the said claim into one against the Board. The Board also further pleaded that it was not a necessary or proper party to the dispute. It filed an additional written statement pointing out that the Visakhapatnam Stevedores Association had been appointed by the Central Government as the Administrative Body for the purpose of carrying on the day to day administration of the Scheme and that the said Administrative Body is deemed to act as an agent for the employers, as would be evident from the Scheme. After referring to the functions of the Administrative Body under the Scheme, the Board claimed that it had no further part to play in the proceedings before the Tribunal. The Industrial Tribunal, after referring to the nature of the duties performed by the Board as well as the Setvedores Association and its members and their relationship with the Dock Labour Boards, held that it is the Board that is the employer of the dock workers and that the Board is liable for meeting the claim for bonus. The Tribunal has proceeded on the basis that the bonus claim by the workmen is 'tonnage bonus ' because while loading or unloading cargo any particular gang or gangs of workmen may not be working continuously for a given period for a particular Stevedore and therefore the bonus that has to be paid to the dock workers must be on the basis of the tonnage handled by them. The Tribunal then considered the rate at which bonus it to be awarded for the three years. Ultimately it has held that the demand for bonus by the workmen for the three years in question is justified and it has to be paid by the Board at the rate of 13 paise per ton for the year 1964 65, at 14 paise per ton for the year 1965 66 and at 15 paise per ton for the year 1966 67. The learned Attorney General, on behalf of the appellant, raised two contentions: (i) That the Tribunal has acted illegally and without jurisdiction in making the Board liable for payment of bonus when the claim of the workmen for such payment was against the Stevedores Association and its members and; (ii) having due regard to the provisions of the Act and the Scheme and the 307 functions discharged by the Board, the Tribunal should have held that there is no employer employee relationship between the Board and the Dock Labour workmen and, as such the Board could not be made liable for the claim. Regarding the first contention, the learned Attorney General invited our attention to the nature of the claim made by the two Unions as well as the discussion contained in respect of such claim in the award. The Attorney General also referred us to the plea taken by the Board in its written statement that a claim exclusively made by the dock workers as against the Stevedores should not be allowed by the Stevedores to be converted into a claim made as against the Board and that no award could be passed against the Board contrary to the claim of the workmen themselves. Mr. K. Srinivasamurthy, learned counsel appearing for the Stevedores Association, urged that the claim by the Unions was for payment of bonus against the Board and therefore the Board has been properly made liable. Alternatively, the counsel urged that the claim by the Unions was for payment of bonus and the Tribunal was perfectly justified in considering which party was liable to meet this claim. It was in considering such a claim that the Tribunal had held the Board to be liable. Having due regard to the nature of the claim and the basis on which the Tribunal itself has proceeded, we are satisfied that the claim for bonus has been made by the Unions specifically against the Stevedores Association and its members and, as such, the Tribunal was not justified in making the Board liable. In the statement of claim filed by the Port Khalasis Union, m paragraph 2 it is stated that since the Stevedores are the registered employers of the Dock Labour Board, the bonus should be settled by the Stevedores Association only. In paragraph 14 the Union has stated that the plea of the Stevedores at Visakhapatnam that they are not concerned with the demand for bonus since the workers are registered with the Dock Labour Board is wrong, baseless and aimed at confusing the issue. After referring to the agreements arrived at between the Stevedores workmen and the Stevedores at Bombay, Calcutta, Cochin and Madras, the Union has stated in paragraph 15 that the Stevedores at Visakhapatnam Port are in no way different and they cannot disclaim their responsibilities for payment of bonus to the workmen. Similarly, the Dock Workers Union in its statement, has referred to the fact that it has been agitating for many years for the introduction of payment of bonus as obtaining in Madras, Bombay, Calcutta and Cochin. The Union has further stated that the Ste 308 vedores of Visakhapatnam are the employers registered in the Dock Labour Board as the real employers. It has further stated that the Stevedore companies are private employers who work for a consideration and derive large profits out of the employment and the operations of the Stevedore workers. The Stevedores have been resisting the claim of the workmen for payment of bonus and have been postponing consideration of the claim. The Union has further stated that payment of bonus can be made by the Board on behalf of the Stevedores and the Stevedoring business is very lucrative and profitable. The Union further prayed the Tribunal to summon the accounts of the Stevedores as the claim of the workmen regarding the financial position of the Stevedores will be fully found established. The Stevedores Association no doubt has stated that the Dock workers are the workmen of the Board as all the ingredients of master and servant exist as between the Board and the dock workers. The Board has categorically stated in its written statement that the dock workers ' claim against the Stevedores should not be allowed to be converted by the Stevedores into a claim against the Board. The Board has further specifically pleaded that no award could be passed against it contrary to the claim made by the dock workers themselves. The various averments contained in the statements referred to above will clearly show that the claim for payment of bonus by the dock workers was essentially and in the main directed against the Stevedores Association and its members. Otherwise a reference by the Union to the prosperity and lucrative business conducted by the Stevedores and the large profits mad.e by them wilt have no relevancy at all. No doubt here and there are certain averments regarding the Board, but so far as we could see, no specific claim for payment of bonus as against the Board has been made. On the other hand the claim is that the Board 'on behalf of the Stevedores in Visakhapatnam ' can pay the bonus claimed by the Unions. The statement filed by the Stevedores Association also makes it clear that they understood the claim by the workmen as directed against them because it makes various averments to establish that the workmen have no claim as against them as the Stevedores Association or its members are not the employers of the workmen. The Board has specifically stated that a claim made against the Stevedores should not be converted into a claim made against the Board and no award can be passed contrary to the claim ' of the workmen themselves. That the Tribunal also understood that the claim of the workmen was against the Stevedores Association and its members is also evident from the state 309 ment in para 4 of the award wherein ' the Tribunal observes as follows: "The claimants claim bonus for the three years mentioned in the issue, and they claim that it should be paid by the Stevedores. They claim that it should be paid on the same basis as adopted at the other ports viz., Calcutta, Bombay, Madras and Cochin. " That the claim for bonus in the four areas referred to above was being met by the respective Stevedores Associations though on the basis of ,agreement is not in dispute. The observation extracted earlier shows that the Tribunal has also proceeded on the basis that the claim by the workmen has to be adjudicated upon on the basis that. it is the liability of the Stevedores. But, unfortunately, in the latter part of the award the Tribunal has mixed up the discussion regarding the liability of the Board or the Stevedores Association and has ultimately held that the Board is liable for payment of bonus. No doubt the basis for this conclusion is that the Board is the employer of the dock workers. The correctness of the view about the Board being the employer of the dock workers will be considered by us when we deal with the second contention of the learned Attorney General. To conclude on the first aspect the learned Attorney General is well rounded in his contention that in view of the pleadings and the nature of the claim made by the workmen the award making the Board liable for payment of 6onus is not correct. Normally, our decision accepting the first contention of the learned Attorney General is enough to dispose of the appeal. But, as the Tribunal has adjudicated upon the contention of the Board that. it is not the employer of the dock workers and held against it, we shall proceed to consider the second contention of the learned Attorney General. In order to appreciate the relationship between the Board, the dock workers and the Stevedores Association, it is necessary to refer to certain provisions of the Act and the Scheme. But before we do so, we can broadly set out how the work of loading and unloading of ships in the port of Visakhapatnam is being done. The Board maintains a Dock Labour pool. The shipping companies have their agents at Visakhapamam. The Stevedores enter into contracts with the ship owners for the loading and unloading of cargo. The contracts contain clauses regarding the rate per ton of cargo payable to the Stevedores who handle the loading or the unloading of cargo. The shipping agents inform the Stevedores about the ship that is due to arrive as also the nature and ' quantity of the cargo to be loaded or unloaded. The Stevedores inform the Board about the quantity of cargo to be loaded or L2SupCI/70 8 310 unloaded and place an indent stating the approximate labour force that may be required for the said purpose. The Board supplies the labour force as asked for. Along with the labour force the Board deputes two supervisors who are called the loading mazdoors and the tindal. The Stevedores employ one Foreman for the entire operation of either loading or unloading. The duty of the Foreman appears to be to see that the cargo is not damaged and that it is properly handled by the labour force supplied by the Board. The Stevedores have to carry on the work with the labour force supplied by the Board and they cannot engage outside labour for the work. The Stevedores pay to the Board for the services of the workers supplied by it. Over and above the wages due to the labourers and paid to the Board the Stevedores have also to pay 105% of the actual wages to the Board known as 'General & Welfare Levy '. The Board utilises this additional amount for making certain payments to the workers. The Stevedores cannot take any disciplinary action against the workmen but, on the other hand, they have to complain to the Board. The Board takes the necessary disciplinary action against the workers concerned. It fixes the rates of wages to be paid by the Stevedores and collects the sam.e from them and pays to the workers. A particular ,gang of workmen may work for one Stevedore on a particular day and on the next day they may work for another Stevedore. In fact it may even happen that one gang of workmen work for different Stevedores in the course of the same day. We shall now refer to the salient features of the Act and the Scheme. The object of the Act is to provide for regulating the employment of dock workers. Section 2 defines inter alia the expressions 'Board ', 'Dock worker ', 'employer ' and 'scheme. The expression 'Dock worker ' in brief means a person employed or to be employed in, or in the vicinity of, any port on work in connect.ion with the various matters referred to in the definition. 'Employer ' in relation to a dock worker, means the person by whom he is employed or to be employed as aforesaid. 'Scheme ' has been defined to mean a scheme made under the Act. Section ' 3 provides for the scheme being made for the registration of dock workers and employers with a view to ensuring greater regularity of employment and for regulating the employment of dock workers, whether registered or not, in a port. A perusal of clauses (a) to (k) of sub section (2) of section 3 shows that the scheme may take provision for various matters which include regulating the recruitment and entry into the scheme of dock workers, the registration of dock workers and employers, the employment of dock workers as well as the terms and conditions of employment, including rates of remuneration etc. The scheme may also provide for the manner in which, and the persons by whom, the cost of operating the scheme is to be derrayed as well as for constituting the autho 311 rity to be responsible for the administration of the scheme. Section 5 provides for the Central Government or the State Government, as the case may be, when making a scheme, constituting an Advisory Committee to advise upon such matters arising out of the administration of the Act or any scheme made under it as well as regarding its composition. The Advisory Committee shall include an equal number of members representing the Government, the dock workers and the employers of dock workers and shipping companies. Section 5A provides for the establishment of a Dock Labour Board by the Government for a port or group of ports, as well as its composition. Under section 5B the Board is made responsible for administering the scheme for the port or group of ports for which it has been established and also the Board is to exercise such powers and perform such functions as may be conferred on it by the scheme. The Central Government has flamed a scheme under sub section (1) of section 4 of the Act for the Port of Vizagapatnam. Clause 2 states that the objects of the Scheme are to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of dock work. The Scheme applies to the registered dock workers and registered employers. Clause 3 definies the various expressions. 'Daily worker ' means a registered dock worker who is not a monthly worker. Monthly worker ' means a registered dock worker who is engaged by a registered employer or a group of such employers on a monthly basis under a contract which requirs for its termination at least 1 month 's not.ice on either side. 'Dock employer ' means a person by whom a dock worker is employed or is to be employed and also includes a group of dock employers formed under cl. 14(1)(d). 'Registered dock worker 's means a dock worker whose name is for the time being entered in the employers ' register. 'Reserve pool ' means a pool of registered dock workers who are available for work and who are not for the time being in the employment of a registered employer or a group of dock employers as monthly workers. Clause 5 provides for the Central Government appointing an Administrative Body for the purpose of carrying on the day to day administration of the Scheme. There is no controversy that. the Vizagapatam Stevedores ' Association, in this case, has been appointed as the Administrative Body. Under cl. 7 dealing with the various functions of the Board, the latter is authorised to take various measures for furthering the objects of the Scheme. The measures contemplated under subcls. (a) to. (i) of cl. 7(1) include ensuring the adequate supply and the full and proper utilisation of the dock labour, regulating the recruitmeant and entry into and the discharge from the Scheme, 312 of dock workers, the allocation of registered dock workers in the reserve pool to. registered employers, maintaining the employers ' registers and dock register of dock workers, the levying and recovering from registered employers, contributions in respect of the expenses of the Scheme, administering the Dock Workers Welfare Fund and recovering from registered employers contribution for such fund, administering a Provident Fund 'and a Gratuity Fund for registered dock workers in the reserve pool. The various functions enumerated show that the Board 's primary responsibility is the administration of the Scheme and to, see that the work in the dock is properly done and the labour employed ,for such purpose is not exploited. Among the responsibilities and duties enumerated in el. 8 are the fixing of the number of dock workers to. be registered under various categories, considering registration of new employers, determination of the wages, allowance and other conditions of service and fixing the rate of contribution to be made by registered employers to the Dock Workers Welfare Fund. Under el. 9 (1 )(k), the Chairman of the Board is given power to take disciplinary action against registered dock workers and employers in accordance with the provisions of the Scheme. Under cl. 11, the Administrative Body has been made responsible for the administration of the Scheme and in particular of the various matters mentioned in sub cls. (a) to (k). Sub cl. (e) thereof provides for the Administrative Body allocating registered dock workers in the reserve pool who are available for work to registered employers and for this purpose, under cl. (i) thereof the Administrative Body is deemed to act as an agent for the employer. Sub cls. (i) and (ii) of cl. (f) cast the duty on the Administrative Body of collecting the levy, contribution to the Dock Workers Welfare Fund or any other contribution from the employers as may be prescribed under the Scheme, 'as well as the collection of the registered dock workers ' contribution to the Provident Fund, Insurance Fund or any other fund which may be constituted under the Scheme. Sub cl. (iii) makes the Administrative Body responsible for payment as agent of the registered employer to each daily worker of all earnings properly due to the dock worker from the employer and the payment to such workers of all monies payable by the Board to those workers in accordance with the Scheme. Two points emerge from cl. 11 (viz.) when allocating registered dock workers in the reserve pool for work to registered employers, the Administrative Body is deemed to act as agent for the employer; and the payment to each daily worker of all earnings properly due to him from the employer is made by the Administrative Body as ,agent of the registered employer. Clause 14 deals with the maintenance of Employers. ' Register and the Workers ' Registers. Clause 18 deals with promotion and 313 transfer of workers. Sub cl. (3) thereof deals with the transfer of a monthly worker to the reserve pool at the request of the employer or the worker, 'but such transfer is made subject to the fulfilment of any contract subsisting between the monthly worker and his employer. Sub cl. (4)provides for considering the request for transfer to a reserve pool by a monthly worker whose services have been terminated by his employer for an act of indiscipline or misconduct. Clauses 30, 31 'and 33 deal with the payment of guaranteed minimum wages. to a worker in the reserve pool register, payment of attendatnce allowance and disappointment money to such worker, respectively. Clause 36 deals with the obligations of registered dock workers and cl. (2) thereof states that a registered worker in the reserve pool who is available for work shall be deemed to be in the employment of the Board. We have already seen that under el. 11 (e), when allocating registered dock workers in the reserve pool for work to registered employers, the Administrative Body shall be deemed to act as 'an agent for the employer. Under sub el. (5) of el. 36 a registered dock worker when allocated for employment under a registered employer is bound to carry out his duties in accordance with the directions of such registered employer or his authorised representative or supervisor 'and the rules of the port or place where he is. working. Clause 37 enumerates the obligations of registered employers. They are prohibited from employing a worker other than a dock worker who has been allocated to him by the Administrative Body under el. Il(e). The registered employers are also bound to pay the Administrative Body the levy under cl. 51(1) as well as the gross wages due to a daily worker. They are also bound to make contributions to the Dock Workers Welfare Fund under el. Clause 38 deals with restriction on employment. Registered employers are prohibited from engaging workers on dock work unless they are registered dock workers. It also prohibits persons other than registered employers employing any worker on dock work. Under cl. 40 it is provided that it shall be an implied condition of contract between a registered worker (whether in the reserve pool or on the monthly register) and ' 'a registered employer that the rates o,f wages, 'allowances and overtime, hours of work shall be such as may be prescribed by the Board for each category of workers and the fixation of wage periods etc. , shall be in 'accordance with the provisions of the . Clause 44 deals with disciplinary procedure to be followed in taking action against a registered employer and a registered dock worker. Clause 46 deals with termination of employment. Clause 51 provides for the cos.t of operating the Scheme being defrayed by payments made by registered employers to the Board. 314 It provides ,for the registered employer paying to the BOard such amount by way of levy in respect of the Reserve Pool Workers when paying the gross amount of wages due from them under cl. 37(5)(i). Clauses 52 and 53 provide for Provident Fund and Gratuity and Dock Workers Welfare Fund respectively. We have rather elaborately gone into the various matters dealt with under the Act and the Scheme as that will give a true picture of the nature of the functions and duties that the Board discharges in respect of the work carried on in the port. From the various provisions of the Act 'and the Scheme referred to above, it is evident that the Board is a statutory body charged with the duty of administering the Scheme, the object of which is to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers are available for the efficient performance of dock work. The Board is an 'autonomous body, competent to determine and prescribe the wages, allowances and other conditions of service of the Dock workers. The purport of the Scheme is that the entire body of workers should be under the control and supervision of the BOard. The registered employers are allocated monthly workers by the Administrative Body and the Administrative Body supplies whenever necessary, the labour force to the Stevedores from the Reserve Pool. The workmen who are allotted to the registered employers 'are to do the work under the control and supervision of the registered employers and to act under their directions. The registered employers pay the wages due to the workers to the Administrative Body and the latter, in turn, as agent of the registered employers, pay them over to the concerned workmen. All these circumstances, in our opinion, prima facie establish that the Board cannot be considered to be the employer of the Dock Labour workmen. In fact the various provisions referred to in the. Scheme, clearly show that the registered employer to whom the labour force is allotted by the Board is the employer whose work of loading or unloading of ships is done by the dock workers allotted to them. Mr. Srinivasamurthy, learned counsel for the respondents, referred us to certain circumstances to support his contention that the relationship. of employer employee exists between the Board and the dock workers. Some of those circumstances are recruitment and registration of the dock labour force, fixation of wages and dearness allowance, payment of workmen 's compensation, taking of disciplinary action and prohibition against employment of workmen who are not registered with the Board. These circumstances, in our opinion, do not establish a relationship of employer and employee between the Board and the dock labour. 315 The functions referred to above are discharged by the Board under the Scheme, the object of which, as mentioned earlier, is to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of dock work. It is with this purpose in view that the Scheme has provided for various matters and considerable duties and responsibilities are cast on the Board in this regard. But we have also 'already pointed out that under sub cl. (5) of cl. 36 a registered dock worker when allotted for employment under a registered employer, shall carry out his duties in accordance with the directions of such registered employer and cl. 11 (e) also makes it clear that in the matter of allocation of registered dock workers in the Reserve Pool to registered employers, the Administrative Body shall be deemed to act as agent for the employer. Though the contributions for the Dock Workers ' Welfare Fund as well as the wages and other earnings due to a worker are paid by the registered employer to the Board at the rates fixed by it, the latter p.asses on the same to the dock worker concerned, as agent of the registered employer, under cl. 1 l(f)(iii). Further, the definition of the expression 'dock worker ' and 'employer ' under section 2(b) and (c) respectively of the Act and the definition of 'dock employer ' and 'monthly worker ' in cls. 3(g) and (k) respectively of the Scheme and the obligation cast under section 36(5) of the Scheme on a registered dock worker when allocated for employment under a registered employer to carry out his duties in accordance with the directions of the latter and the provisions contained in cl. 37(5) of the Scheme regarding payment by 'a registered employer to the Administrative Body of the gross wages due to the dock worker and the implied condition of contract between the registered dock worker and the registered employer under cl. 40, read along with the provisions regarding the functions of the Board, in our view, clearly lead to the conclusion that the Board cannot be considered to be the employer of the dock workmen and there is no relationship of master and servant between the two. Mr. Srinivasamurthy, learned counsel, referred us to the decision of this Court in Kirloskar Oil Engines vs Hanmant Laxman Bibawe(1) in which, according to him, an inference of relationship of master 'and servant was not drawn, though for all practical purposes a person was working under the directions of another. The question that arose for consideration in that case was whether a watchman deputed to work by the Police Department under a private individual on the basis of a Scheme could be considered to be the employee of the latter, after considering the salient features of the scheme framed by the Police Department and after (1) [1963] 3. S.C.R.514. 316 observing that a decision on the question as to the relationship of employer employee has to be determined in the light of relevant facts 'and circumstances and that it would not be expedient to lay down any particular test as decisive in the matter, this Court held that a relationship. of master and servant, between the watchman and the private employer, did not exist, notwithstanding the fact that the private employer was enitled to issue orders to the watchman deputed to work under him. The scheme dealt with in this decision was entirely different from the Scheme before us. The learned counsel then referred us to a decision of a Single Judge of the Kerala High Court in C.V.A. Hydross & Son vs Joseph Sanjon(1). That decision had to consider the question regarding payment of retrenchment compensation to certain workmen who had registered 'themselves as workmen under the Dock Labour Board. They had filed a claim against the permanent Stevedores under whom they were working originally. The learned Judge, after a consideration of the Scheme framed for the Cochin Port, which is substantially similar to the one before us, held that the Board was the employer of the workmen. We are not inclined to agree with this decision. We may also refer to the decision of the Calcutta High Court in A.C. Roy & Co. Ltd. vs Taslim(2). There No. doubt the question arose in respect of a claim under the . The learned Chief Justice, after a brief analysis of the Act and the Scheme framed for the Calcutta Port, held that when the Administrative Body of the Board allocated a worker in the Reserve Pool to the registered employer, then for the time being and for the purpose of the work concerned, that worker becomes an employee under the registered employer; and in that decision the Court came to the conclusion that the particular worker concerned was at the material time under the employ of the Stevedore. When that is the position with regard to a workman in the Reserve Pool, it stands to. reason that the monthly worker who is engaged by a registered employer under a contract on a monthly basis is an employee of such registered employer, The matter can also be considered from another point of view, viz., can it be stated that the Board is carrying on an industry,, so as to attract the provisions of the Industrial Disputes Act ? We have already referred to the various. circumstances which will show that there is no employment as such of the dock worker by the Board. As observed by this Court in G. vmkhana Club Union vs Management ( 3 ). (1) (2) (31 317 "What matters is not the nexus between the employee and the product of the employer 's efforts but the nature of the employer 's occupation. If his work can not be described as an industry his workmen are not industrial workmen and the disputes arising between them are not industrial disputes. The cardinal test is thus to find out whether there is an industry according to the denotation of the word in the first part. The second part will then show what will be included from the angle of employees. " Dealing with the definition of 'industry ', this Court further observed: "The definition of 'industry ' is in two parts. its first part it means any business, trade, undertaking, manufacture or calling of employers. This part of the definition determines an industry by reference to occupation of employers in respect of certain activities. These activities are specified by five words and they determine what an industry is and what the cognate expression 'industrial ' is intended to convey. This is the denotation of the term or what the word denotes. We shall presently discuss what the words 'business, trade, undertaking, manufacture or calling ' comprehend. The second part views the matter from the angle of employees and is designed to include something more in what the term primarily denotes. By the second part of the definition any calling, service, employment, handicraft or industrial occupation or avocation of workmen is included in the concept of industry. This part gives the extended connotation. If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part. But the second part standing alone cannot define 'industry '. An industry is not to be found in every case of employment or service. " Dealing with the expression industri 'al dispute ' in the Industrial Disputes Act, this Court further proceeds to state, in the above decision, at p. 757: ". the words are 'industrial dispute ' and not 'trade dispute '. Trade is only one aspect of industrial activity; business and manufacture are two others. The word also is not industry in the 'abstract which means diligence or assiduity in any task or effort but a branch 318 of productive labour. This requires cooperation in some form between employers and workmen and the result is directly the product of this association but not necessarily commercial." and wound up the discussion, at p. 758, thus: "Industry is the nexus between employers 'and employees and it is this nexus which brings two distinct bodies together to produce a result. " Applying the above principles to the case on hand, in our opinion it is clear that it cannot be stated that the Board, ,functioning under the Act and the Scheme, carries on any industry so as 10 attract the provisions of the Industrial Disputes Act. As a claim for any type of bonus can be met only from the actual employer in respect of any industry and as we have held that the Board is neither the employer nor carries on any industry, it follows that the Industrial Tribunal was wrong in directing the Board to pay bonus for the years in question. In this view the order of the Industrial Tribunal, dated May 24, 1968 has to be set aside. But, as the claim of the workmen against the Stevedores Association and its members who 'are parties to the Reference has to be considered and adjudicated by the Industrial Tribunal, I.D. No. 10 of 1967 has to be remanded to the Industrial Tribunal concerned for disposal according to law. The Tribunal will be at liberty to call upon the parties concerned to file supplementary statements and permit them to adduce further evidence, oral and documentary, which may be considered necessary; but it is made clear that the Dock Labour Board, the appellant, will be completely out of the picture in the rein 'and proceedings. In the result, the order of the Industrial Tribunal, Andhra Pradesh, Hyderabad, dated May 24, 1968 is set aside, and this appeal allowed. I.D. No. 10 is remanded to the said Tribunal to be dealt with 'and disposed of, according to law and the directions contained in this judgment. Parties will bear their own costs of this appeal. Y.P. Appeal allowed.

The claim for bonus of the Dock Board Workers employed at Vizakhapatnam was referred to the Industrial Tribunal. The parties to the reference included the Vizagapatnam Dock Labour Board (the appellant), the Stevedores Association, and two Unions representing the workers. The Industrial Tribunal after referring to the nature of the duties performed by the Board as well as the Stevedores Association and its members and their relationships with the Dock Labour Board held that it was the Board that was the employer of the dock workers and that the Board was liable for meeting the claim for bonus. The Board in appeal to this Court, contended, that (i) it was not liable for the payment of bonus when the claim of the workers was against the Stevedores Association and its members; and (ii) having regard 10 the provisions of the Dock Workers (Regulation of Employment) Act (9 of 1948), and the Vizagapatnam Dock Workers (Regulation of Employment) Scheme, 1959 and the functions discharged by the Board there was no employer employee relationship between the Board and the workmen, and as such the Board could be made liable for the claim. Accepting the contentions, this Court, HELD: (i) Having regard to the nature. of the claim and the basis on which the tribunal itself proceeded, the claim for bonus was made by the unions specifically against the Stevedores Association and its members and. as such, the tribunal was not justified in making the Board liable. (ii) The Board cannot be considered to be the. employer of the Dock Labour Workmen. From the provisions of Dock Workers (Regulation of Employment) Act and the Vizagapatnam Dock Workers (Regulation of Employment) Scheme, it is evident that the Board is a statutory body charged with the duty of administering the scheme, the object of which is to ensure that greater regularity of employment for dock workers arc available for the efficient performance of dock work. The Board is an autonomous body, competent 10 determine and prescribe the wages, allowances and other conditions of service of the dock workers. The purport of the Scheme is that the entire body of workers should be under the Control and supervision of the Board. The registered employers are allocated monthly workers by the Administrative Body and the Administrative Body supplies whenever necessary, the labour force to the Stevedores from the Reserve Pool. The workmen who are allotted to the registered employers are to do the work under the control and supervision of the registered employers and to act under their directions. The registered employers pay the wages due to the workers to the Administrative Body and the latter. in turn, as agent of the registered employers, pay them 304 over to the concerned workmen. The registered employer to whom the labour force is allotted by the Board is the employer whose work to them. The functions of the Board such as recruitment and registration of the dock labour force, fixation of wages and dearness allowance, payment of workmen 's compensation, taking of disciplinary action and prohibition against employment of workers who were not registered with the. Board do not establish a relationship of employer and employee between the Board and the dock labour. Further, the Board functioning under the Act and the Scheme cannot be. said to carry on any industry so as to attract the provisions of the Industrial Disputes Act. As a claim for any type of bonus can be met only from the actual employer in respect of any industry and as the Board is neither the employer nor carries on any industry the Tribunal was wrong in directing the Board to pay Bonus for the years in question. [316 B E; G H; 320 C] Gymkhana Club Union vs Management, [1968] 1 S.C.R. 742. 752, applied. A. C. Roy & Co. Ltd. vs Taslim, , referred to. Kirlosker Oil Engines vs Hanmant Laxman Bihawej, , distinguished. C.V.A.Hydross & Son vs Joseph Senjon, 11967] 1 L.L.J. 509 disapproved.

etition (Criminal) No. 1632 of 1981. 476 Under article 32 of the Constitution of India. S.K Jain for the Petitioner. The Judgment of the Court was delivered by SEN, J. This petition under article 32 of the Constitution is clearly not maintainable and must be dismissed but in view of the growing trend of filing such frivolous applications, we deem it necessary to state the reasons therefor. It appears that the petitioner along with two others was arraigned before the Sessions Judge of Alwar in Sessions Trial No. 110 of 1976 for having committed an alleged offence punishable under section 302 of the Indian Penal Code, alternatively, under section 302 read with section 34 of the Code. By his finding and sentence dated April 21, 1977 the learned Sessions Judge convicted the petitioner and his two associates for having committed the murder of the deceased Jharia in furtherance of their common intention under section 302 read with section 34 and sentenced each of them to undergo imprisonment for life, while recording their acquittal under section 302. On appeal, a Division Bench of the Rajasthan High Court (Jaipur Bench) in Criminal Appeal No. 219 of 1977 by judgment dated July 3, 1980 maintained the conviction of the petitioner under section 302 read with s.34 but acquitted his two associates giving them the benefit of doubt. Dissatisfied with the judgment of the High Court, the petitioner applied to this Court for grant of special leave under article 136 of the Constitution. The special leave petition was dismissed by this Court on February, 23, 1981. An application for review was also dismissed on November 19, 1981. Thereafter, the petitioner filed this petition under article 32 assailing his conviction and sentence. The petitioner seeks the issuance of a writ of mandamus directing the State of Rajasthan to forbear from giving effect to the judgment and sentence passed by the learned Sessions Judge as also the judgment of the High Court as well as the order passed by this Court dismissing the special leave petition. He further seeks a declaration that his conviction under section 302 read with section 34 by the High Court was illegal and therefore his detention in jail was without the authority of law and in violation of article 21 read with articles 14 and 19 of the Constitution. 477 The petitioner contends that in view of the decisions of this Court in Krishna Govind Patil vs State of Maharashtra(1), Maina Singh vs State of Rojasthan(2) and Piara Sinnh vs State of Punjab(3), his conviction under section 302 read with section 34 was illegal as he had been charged with two other named persons who have been acquitted by the High Court and therefore he cannot be convicted of an offence punishable under section 302 read with section 302 read with section 34. Upon this basis, the contention is that the petitioner has been deprived of his life and liberty without the authority of law in violation of article 21 read with articles 14 and 19 of the Constitution. It is represented to us that the contention based upon the decisions of this Court had been advanced during the course of the hearing of the special leave petition, but both the special leave petition and the application for review have been dismissed and therefore the petitioner has no other remedy except to approach this Court for appropriate writ, direction or order under article 32 of the Constitution. We fail to appreciate the propriety of asking for a declaration n in there proceedings under article 32 that conviction of the petitioner by the High Court for an offence punishable under section 302 read with section 34 of the India Penal Code is illegal, particularly when this Court has declined to grant special leave under article 136. Nor can the petitioner be heard to say that his detention in jail amounts to deprivation of the fundamental right to life and liberty without following the procedure established by law in violation of article 21 read with articles 14 and 19. When a special leave petition is assigned to the learned Judges sitting in a Bench, they constitute the Supreme Court and there is a finality to their judgment which cannot be upset in these proceedings under article 32. Obviously, the Supreme Court cannot issue a writ, direction or order to itself in respect of any judicial proceedings and the learned Judges constituting the Bench are not amenable to the writ jurisdiction of this Court. In Shankar Ramchandra Abbyankar vs Krishnaji Dattatreya Bapat,(4) this Court laid down that if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been 478 chosen as exhausted, it would not be a proper and sound exercise of discretion to grant relief the other set of proceedings in respect of the same order of the Subordinate Court. In that case, the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure 1908, but a learned Single Judge dismissed the revision. Thereupon, the respondent moved the High Court by a petition under articles 226 and 227 of the Constitution challenging the same order of the appellate court. A Division Bench of the High Court held that in spite of the dismissal of the revision petition, it could interfere under articles 226 and 227 on a proper case being made out, and after going into the merits of the case, it granted relief to the respondent. On appeal to this Court, the contention was that the High Court could not have interfered under articles 226 and 227. That contention of the appellant prevailed and the judgment of the Division Bench of the High Court was set aside. It was observed: "The refusal to grant relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own decisions. " There is no reason why the same principle should not equally apply to proceedings under article 32 of the Constitution which are initiated after the Court has declined to interfere under article 136. For these reasons, the writ petition fails and is dismissed. H.L.C. Petition dismissed.

The petitioner and his two associates were convicted and sentenced under section 302 read with section 34, I.P.C. On appeal, the High Court maintained the conviction of the petitioner but acquitted his associates giving them the benefit of doubt. The Petitioner applied to this Court for grant of special leave to appeal under article 136 but the same was dismissed. By this petition under article 32 the petitioner sought issuance of a writ of mandamus directing the State to forbear from giving effect to the judgment and sentence passed by the trial court as also the judgment of the High Court as well as the order passed by this Court dismissing the special leave petition on the ground that his conviction was illegal and therefore his detention in jail was in violation of article 21 read with articles 14 and 19. Dismissing the petition, ^ HELD: The propriety of asking for a declaration in these proceedings under article 32 that conviction of the petitioner by the High Court for an offence punishable under section 302 read with section 34 I.P.C. is illegal, particularly when this Court has declined to grant special leave under article 136 cannot be appreciated. Nor can the petitioner be heard to say that his detention in jail amounts to deprivation of the fundamental right to life and liberty without following the procedure established by law in violation of article 21 read with articles 14 and 19. When a special leave petition is assigned to the learned judges sitting in a Bench, they constitute the Supreme Court and there is a finality to their judgment which cannot be upset in these proceedings under article 32. Obviously, the Supreme Court cannot issue a writ, direction or order to itself in respect of any judicial proceedings and the learned judges constituting the Bench are not amenable to the writ jurisdiction of this Court. [470 D F] Shankar Ramchandra Abbyankar vs Krishnaji Dattatreya Bapat, ; , referred to.

: Contempt Appeal No. 19 of 1981. From the judgment and order dated the 17th November, 1980 of the Himachal Pradesh High Court at Simla in Contempt Petition (Crl.) No. 7 of 1980. V. M. Tarkunde, section section Ray, K.K.Venugopal, Dr. L. M. Singhvi, Kapil Sibbal, C. M. Nayar and L. K. Pandey for the Appellant. L. N. Sinha, Attorney General for the Respondent (Registrar, High Court) K. Parasaran, Soli. General and Miss A. Subhashini for the Respondent (State of H. P.) 538 The Judgment of the Court was delivered by CHANDRACHUD,C. J. This is an appeal under sec. 19(1)b of the , ("the ",) against the judgment of the High Court of Himachal Pradesh dated November 17, 1980 in Contempt Case (Criminal) No. 7 of 1980, whereby the appellant was sentenced to simple imprisonment for six months and a fine of Rs. 200. The appellant practises as an Advocate at Solan which is a district place in the State of Himachal Pradesh. It appears that only one court generally sits at Solan which is that of the Senior Sub Judge cum Chief Judicial Magistrate. The learned Judge, who presides over that Court, also exercises the powers of a Rent Controller and of the Court of Small Causes. On June 18, 1980, Shri Kuldip Chand Sud, who was the Presiding Officer of the Court, was hearing a petition under the Rent in which the petitioner was represented by the appellant. When the case was called out for hearing, the learned Judge noticed that the petitioner had not paid the process fee, as a result of which the summons could not be issued to the respondent. The Judge therefore proceeded to dismiss the petition under Order 9, Rule 2 of the Civil Procedure Code. Taking umbrage at the dismissal of the petition, the appellant hurled his shoe at the Judge which hit him on the shoulder. The Judge asked his Orderly to take the appellant in custody but the appellant slipped away. The Judge evidently wanted to proceed under section 228 of the Penal Code for which purpose he issued a warrant of arrest against the appellant. The appellant successfully evaded the warrant and managed to prevent proceedings being taken by the Judge for the contempt of his court. The Judge then made a reference to the High Court of Himachal Pradesh under section 15(2) of the . The High Court issued notice to the appellant enclosing therewith a copy of the reference made by the Judge. The appellant did not dispute in the High Court that he hurled a shoe at the Judge. He explained his conduct by saying that he acted under an irresistible impulse generated by the provocative language used by the Judge. The appellant 's version is like this: On the previous date of hearing, the Judge had directed the appellant to pay fresh process fee and to supply the address of the respondent to the Rent petition. The appellant informed the Judge that he was unable to comply 539 with that order since the respondent had been admitted to a hospital and had since left the hospital. The house in which the respondent lived was locked. The Judge then declared that he proposed to take action under Order 9 Rule 2 of the Civil Procedure Code. The appellant asked the Judge to record his statement as to why he was unable to pay the process fee and supply the address of the respondent. Instead of recording the appellant 's statement, the Judge remarked: "You rascal, I will set you right". The appellant protested at the abusive language used by the Judge, but the Judge retorted: "I repeat what I said". The appellant thereafter lost control over himself and under the "extreme heat of moment and passion, his hand fell on his shoe" which he threw towards the dais. Many persons were present in the court who witnessed the incident. After hurling the shoe at the dais, the appellant took off his coat and tie and told the court: "An unfortunate incident has happened. Do you want to take any action against me ? I surrender". Upon this the Judge remarked: "You scoundrel get out of my court". The appellant thereafter left the court room. The High Court had called for the comments of the Judge on the version of the appellant, from which it was satisfied that the appellant was making a false allegation that the Judge had used abusive language against him. The High Court also held that the appellant had given an untrue version of the very genesis of the incident since the Judge had not given any direction for furnishing the complete address of the respondent before him. Many technical contentions were raised in the High Court, one of them being that section 10 of the was a bar to the High Court taking cognizance of the matter. It is unnecessary to go into that question or into various other matters raised in the High Court on behalf of the appellant since, Shri V. M. Tarkunde and Shri section section Ray who appear on behalf of the appellant, stated before us that the appellant did not desire to take a contentious attitude. It was stated on behalf of the appellant that he was prepared to tender an unconditional written apology to this Court and to produce evidence before us of his having tendered a similar apology to the trial court. Such apologies have been duly tendered. Learned counsel appearing on behalf of the appellant appealed to us in all their persuation that in view of the fact that the appellant 540 was genuinely repentant for his conduct, he should be enlarged on a mere admonition. Counsel plead that the appellant evidently lost his balance and whether or not there was any justification for it, he acted under the impulse of grave passion for which he has been sufficiently punished by the publicity which the incident has received and the notoriety which he has invited for himself. We had made it clear to the learned counsel at the very time when they conveyed to us the willingness of the appellant to apologise that we offer no promise or inducement that if the appellant apologises we will take a lenient view of the matter. In our opinion the appellant is guilty of conduct which is highly unbecoming of a practising lawyer. He hurled his shoe at the Judge in order evidently to overawe him and to bully him into accepting his submission that the case should not be dismissed under Order 9 Rule 2, C.P.C. The appellant did his best or worst to see that the petition was not dismissed for non payment of process fee and finding that the Judge was not willing to accept his argument, he took out his shoe in show of his physical prowess. We cannot adequately condemn the appellant 's behaviour which strikes us as most reprehensible, remembering that, as a practising lawyer, he is an officer of the court. Such incidents can easily multiply considering the devaluation of respect for all authority, whether in law, education or politics. We do not, however, propose to impose a long sentence of imprisonment on the appellant, since he has tendered an unconditional apology to this Court and to learned trial Judge. The appellant was present in our Court at the time when his appeal was argued and though, on such occasions, histrionics cannot entirely be ruled out, we did form an impression, backed by our small little experience of life and its affairs, that the appellant is deeply regretful and genuinely contrite. He has suffered enough in mind and reputation and no greater purpose is going to be served by subjecting him to a long bodily suffering. Accordingly, we reduce the sentence of six months to a period of one month, enhance the fine from Rs. 200 to Rs. 1000 and direct that the fine, if recovered, shall be paid over to a Legal Aid Society, if any, functioning in the State of Himachal Pradesh. The High Court will decide which society should get the money, if there is more than one such society, of which there is precious little likelihood. Order accordingly. We will be failing in our duty if before parting with the case we did not draw attention to what the appellant 's counsel Shri 541 Bhagirath Das said in the High Court during the course of his arguments. Shri Bhagirath Das told the learned Judges of the High Court: "Better part of discretion is to ignore it instead of fanning it. It is a tussle between legal profession and judiciary". (emphasis supplied since it must have been placed). This part of the argument of the appellant 's counsel in the High Court is as much to be regretted as the conduct of the appellant before the learned trial Judge. Discretion is undoubtedly the better part of valour but we did not know, until we read the argument advanced by the appellant 's counsel in the High Court, that the better part of discretion is to ignore that a practising advocate had hurled a shoe at a Judge. We are also unable to understand how the High Court was "fanning" the incident by taking cognizance of it, which it was its clear duty to do. It makes sorry reading that "a tussle between legal profession and judiciary" should find its culmination in a member of that noble profession throwing a shoe at a Judge. Those who are informed of the question and think deeply upon it entertain no doubt that the Bar and the Bench are an integral part of the same mechanism which administers justice to the people. Many members of the Bench are drawn from the Bar and their past association is a source of inspiration and pride to them. It ought to be a matter of equal pride to the Bar. It is unquestionably true that courtesy breeds courtesy and just as charity has to begin at home, courtesy must begin with the Judge. A discourteous Judge is like an ill tuned instrument in the setting of a courtroom. But members of the Bar will do well to remember that such flagrant violations of professional ethics and cultured conduct will only result in the ultimate destruction of a system without which no democracy can survive. All this, of course, is said without meaning any disrespect to Shri Bhagirath Das. Not he, but what he said, is the cause of this comment. N.V.K. Appeal partly allowed.

The appellant a practising Advocate appeared for the petitioner in a petition under the Rent Act. When the case was called out for hearing, the Judge noticed that the petitioner had not paid the process fee, as a result of which the summons could not be issued to the respondent. The Judge, proceeded to dismiss the petition under Order IX Rule 2 of the Civil Procedure Code. Taking umbrage at the dismissal of the petition the appellant hurled his shoe at the Judge which hit him on the shoulder. The Judge intending to proceed under Section 228 of the Penal Code issued a warrant of arrest against the appellant. The appellant evaded the warrant and successfully managed to prevent proceedings being taken by the Judge for the contempt of his Court. The Judge thereupon made a reference to the High Court under Section 15(2) of the . Before the High Court the appellant did not dispute that he hurled a shoe at the Judge. He explained his conduct by saying that he acted under an irresistible impulse generated by the provocative language used by the Judge. The High Court being satisfied, that the appellant was making a false allegation that the Judge had used abusive language against him and that he had given an untrue version of the very genesis of the incident, held the appellant guilty of contempt of Court and sentenced him to simple imprisonment for six months and a fine of Rs. 200/ . In the appeal to this Court it was pleaded that the appellant evidently lost his balance and whether or not there was any justification for it, he acted under the impulse of grave passion for which he had been sufficiently punished by the publicity which the incident had received and the notoriety which he had invited for himself and as the appellant was genuinely repentant for his conduct he should be enlarged on a mere admonition. Allowing the appeal in part, ^ HELD: 1. (i) The sentence of simple imprisonment for six months is reduced to a period of one month and the fine for Rs. 200/ is enhanced to Rs. 1000/ . 537 The fine if recovered shall be paid over to the Legal Aid Society functioning in the State. [540 G] (ii) The appellant is guilty of conduct which is highly unbecoming of a practising lawyer. He hurled his shoe at the Judge in order to overawe him and to bully him into accepting his submission that the case should not be dismissed under Order IX Rule 2 C.P.C. The appellant did his best or worst to see that the petition was not dismissed for non payment of process fee and finding that the Judge was not willing to accept his argument, he took out his shoe in show of his physical prowess. [540 C] (iii) The appellant 's behaviour is condemned. It is most reprehensible remembering that, as a practising lawyer he is an officer of the Court. [540 D] (iv) A long sentence of imprisonment is not imposed on the appellant since he has tendered an unconditional apology to this Court and to the trial Judge. The appellant is deeply regretful and genuinely contrite. He has suffered enough in mind and reputation and no greater purpose is going to be served by subjecting him to a long bodily suffering. [540 E, F] 2. (i) The argument of the appellant 's counsel in the High Court that: "better part of discretion is to ignore it instead of fanning it. It is a tussle between legal profession and judiciary", is as much to be regretted as the conduct of the appellant before the trial Judge. [541A B] (ii) The Bar and the Bench are an integral part of the mechanism which administers justice to the people. A discourteous Judge is like an ill tuned instrument in the setting of a Court room. But Members of the Bar will do well to remember that flagrant violations of professional ethics and cultured conduct will only result in the ultimate destruction of a system without which no democracy can survive. [541 E, F]

Appeal No. 526/59. Appeal by special leave from the judgement and order dated March 3, 1958, of the Patna High Court in Misc. case No. 940 of 1956. B. K. Khanna and P. D. Menon for the appellant. P. K. Chatterjee, for the respondents. April 26. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave against the judgment of the Patna High Court. The brief facts necessary for present purposes are these. There is a colliery in the district of Dhanbad known as Allabad colliery of which the respondents are the owners. On February 5, 1955, there was an accident in the colliery as a result of which 52 p6rsons lost their lives. In consequence, the Government of India ordered an inquiry into the disaster under section 24 of the , No. 35 of 1962, (hereinafter referred to as the Act). The court of inquiry contained of Mr., Justice B. P. Jamuar and two persons were appointed to assist him as assessors. The court of inquiry submitted its report on September 26, 1955, which was published on December 17, 1955. A question was raised before the court of inquiry whether the management should be ordered to pay the expenses of the inquiry as provided by r. 22 of the Mines Rules, 1955, (hereinafter referred to as The Rules), which lays down that "if a court of 478 inquiry finds that the accident was due to any carelessness or negligence on the part of the management the court may direct the owners of the mine to pay all or any part of the expenses of the inquiry in such manner and within such time as the court may specify. The court of inquiry found in its report that the accident was due to negligence on the part of the management and therefore ordered the owners to pay the expenses of the inquiry. The amount of the expenses to be paid were however not quantified in the report of September 26, 1955. On July 27,1956 the Chief Inspector of Mines requested Mr. Justice Jamuar that the amount of expenses should be specified and the manner in which it should be paid and the time within which the payment might be made, might be fixed. Notices were issued to the parties concerned thereafter and on September 7, 1956, Mr. Justice Jamuar ordered the owners to pay Rs. 17,778/2/as expenses of the inquiry within two months of the date of the order. Thereupon a petition was filed under article 226 of the Constitution by the respondents challenging the order of September 7, 1956. It was conceded there in that r. 22 of the Rules conferred power on the court of inquiry to direct the owner to pay all or any part of the expenses of inquiry within such time as the court may specify. But the order passed in this case was challenged on three grounds, firstly that the court of inquiry became functus officio after it had submitted its report on September 26, 1955 and therefore Mr. Justice Jamuar had no power left to pass the order of September 7, 1959. It was also contended that if the order of September 7, 1956, be treated as a review of the order of September 26, 1956 it would still be void, as there was no power of review in the court of inquiry, Lastly. it was urged that when the order of September 479 7, 1956, was passed, the assessors were not present and were not associated with the inquiry and therefore Mr. Justice Jamuar could not pass the order alone. All these three contentions were accepted by the High Court and it allowed the writ petition adding that it was not interfering with the order relating to expenses made by Mr. Justice Jamuar in his report of September 26, 1955. It is this order of the High Court, which is being challenged before us. The main contention on behalf of the respondents is that as the court of inquiry became functus officio after the report of September 26, 1955, it was not open to Mr. Justice Jamuar to quantify the expenses by the order of September 7, 1956. Before we deal with this main argument we should like to dispose of briefly the other two submissions made before the High Court which were also accepted by it. The first of these contentions is that the order of September 7, 1957 is an order of, review and as there is no power of review granted to the court of inquiry. Mr. Justice Jamuar had no power to pass that order. It is enough to say that the order of September 7, 1956, cannot be called an order of review. We have already pointed out that the order that the owners should pay the expenses of the inquiry was already incorporated in the report of September 26, 1955, though it was not quantified. All that the order of September 7, 1956, has done is to quantify the amount of expenses. Therefore, this order cannot be treated as a review or any variation of the order passed in the report of September 26, 1955. It would have been a different matter if no order as to the payment of expenses had been made in the report of September 26, 1955. In that case it may have been possible for the respondents to argue that the later order was an order reviewing the failure to am an order as to expenses in. the report. But 480 when the report itself contained the order for payment of expenses, the later order is merely a quantification of that order and would be on a par with what happens every day in courts which pass decrees with costs. When giving judgment, courts do not quantify costs in the judgment. This quan tification is done later in the office of the court and if there is any dispute about it the court settles that dispute and then includes the cost in the decree or final order. What has happened in the present case is something similar and the order of Mr. Justice Jamuar dated September 7, 1956, cannot in ' the circumstances be called an order of review which he had no power to pass. The contention therefore under this head must fail. Turning now to the other contention, namely, that the order of September 7, 1956, was bad because the two assessors were not associated with Mr. Justice Jamuar when the order was passed, it is enough to say that under section 24 (1) the inquiry is held by a competent person appointed for the purpose and assessor are appointed to assist the person appointed to hold the inquiry. Even so, the person who holds the inquiry is the person appointed to do so and the assessors need not in our opinion be associated with him in all orders which are in the nature of ministerial orders and quantification of expenses must be treated as an order of a ministerial nature. It is not disputed that the assessors were associated with Mr. Justice Jamuar when the report of September 26, 1955, was made and it was ordered that the owners should pay the expenses of the inquiry. That was in our opinion the order of the court of inquiry as to payment of expenses and in that the assessors were associated. The later order wag mere quantification of that and it was in our opinion not necessary that the assessors should be associated at that stage also, for the 481 order of quantification is more or less of a ministerial nature and was made by the person who was appointed to hold the inquiry. In the circumstances we are of opinion that the fact that the order of September 7, 1956, was passed only by Mr. Justice Jamuar and the assessors were not associated with him would not make it invalid for this was merely carrying out the order in the report of September 26, 1956 by which the owners were ordered to pay the expenses of the inquiry and in that order the assessors were associated. The contention on this head also must therefore fail. This brings us to the main contention raised on behalf of the respondents, namely, that the., court of inquiry became functus officio when the report was made on September 26, 1955, and thereafter it was not open to Mr. Justice Jamuar to pass any order quantifying the expenses. Now it is not in dispute that there was no time fixed within which the report had to be made by the court of inquiry. Therefore, it cannot be said that the period for which the court of inquiry was appointed came necessarily to an end on September 26, 1955, and so the court of inquiry became functus officio on that date. If the court of inquiry when it submitted its report in this case on September 26, 1955 had ordered the owners to pay the expenses of the inquiry and had added further that expenses would be quantified later by the person holding the inquiry it could not possibly be argued that it was not open to the person appointed to hold the inquiry to quantify the expenses later. But it is said that in this case though the court of inquiry ordered that the expenses should be paid by the owners it did not say in the report that the expenses to be paid would be quantified later by the person appointed to hold the inquiry. That is undoubtedly so. But we have to see what the order in the report of Septmber 26, 1955 by which the owners were 482 ordered to pay the expenses of the inquiry, necessarily implies. It is obvious that the intention of the court of inquiry was that the owners should pay the expenses. Generally it may Dot be possible to quantify the expenses incurred in the inquiry at that stage and a quantification of expenses would ordinarily take place after the report is submitted. It seems to us therefore clear that when a court of inquiry orders that the owners shall pay the expenses such an order necessarily carries with it the implication that the person appointed to hold the inquiry would later quantify the expenses after necessary materials are put before him. This is exactly what happened in this, case. After the order of the court of inquiry that the owners should pay the expenses was known to the Chief Inspector of Mines, he applied that the expenses should be quantified and Mr. Justice Jamuar passed the order doing so. The order therefore that was passed on September 7, 1956, was merely a consequential order to what the court of inquiry had decided on September 26, 1955 and in our view the earlier order of September 26, 1955, had necessarily implicit in it that the person appointed to hold the inquiry would quantify the expenses as soon as the materials for that purpose are placed before him. It was not necessary therefore to say in so many words in the report of September 26, 1955, that the expenses would be quantified by the person appointed to hold the inquiry later on materials being placed before him. If this were not to be implicit in the order that was passed on September 26, 1955, that order would be completely useless for it does not specify the amount which could be recovered as expenses. We are therefore of opinion that when such an order is passed in a report of a court of inquiry it necessarily carries with it the implication that the person appointed to hold the inquiry would quantify the expenses later on materials being 483 placed before him, as otherwise such an order would be rendered completely nugatory. Therefore, unless we find anything in section 24 which prevents such an order of quantification being passed later by the person appointed to hold the inquiry, we see no reason why such a quantification should not be made later. We have also pointed out that the order appointing the court of inquiry in this case did not fix a date by which the report was to be made. Therefore, in these circumstances we are of opinion that it was open to Mr. Justice Jamuar to quantify the expenses and that it was not necessary that at that stage the assessors should be associated with him. We are therefore of opinion that it cannot be said that the person appointed to hold the inquiry was functus officio in this case and could not quantify the expenses in accordance with the direction contained in the report of September 26, 1955. The appeal is hereby allowed and the order of the High Court is set aside. The High Court has allowed no costs in its order; in the circumstances we think that the parties should bear their own costs of this Court. Appeal allowed.

The Government of India under section 24 of the , ordered an enquiry into the disaster in the respondent 's colliery. The Court of inquiry submitted its reporto 476 September 26, 1955, and found inter alia that the accident was due to the negligence on the part of the management and therefore ordered the owners to pay the expenses of the en quiry as provided by r. 22 of the Mines Rules, 1955. The amount of the expenses to be paid were, however, not quanti fied in the report. At the request of Chief Inspector, Mines, the judge of the Court of Inquiry after due notice to the parties concerned quantified the expenses by his order dated September 7, 1956. The respondents petitioned under article 226 of the Constitution challenging the order quantifying the expenses on three grounds (1) the Court of Inquiry became functus officio after it had 'submitted its report and therefore the judge had no power left to pass the order quantifying the expenses. If the said order was to be treated as review of the order awarding expenses it would still be void as there was no power of review in the Court of Inquiry (3) When the order quantifying the expense was passed the two assessor were not present and were not associated with the enquiry therefore, the judge could not pass the order alone. The High Court allowed the writ petition adding that it was not interfering with the order relating to expenses made by the judge in his report dated September 26, 1955. Held, that when an order to pay expenses is passed without quantifying the amount in a report by a Court of Inquiry, it necessarily carries with it the implication that the person appointed to hold the enquiry would quantify the expenses later in materials being placed before him as otherwise such an order would be rendered completely nugatory. Where no time was fixed within which the report had to be made by the Court of enquiry it cannot be said that the period for which the Court of enquiry was appointed necessarily came to an, end with the submitting of the report and this Court of Inquiry became functus officio. Held, further, that when the report itself contained the order for payment for expenses, the later order is merely a quantification of the earlier order and would be on a par with what happens everyday in courts which pass decrees with costs. When giving judgment, courts do not quantify cost in the judgment. Therefore the order dated September 7, 1956, cannot be treated as a review or any variation of the order pawed in the report of September 26, 1955, which the judge had no powers to pass. Held, also, that it was open to the judge of the Court of inquiry to quantify the expenses and that it was not necessary that at that stage the assessors should be associated with him. Under section 24(1) of the Act$ the enquiry is held by a competent 477 person for the purpose, and assessors are appointed to assist the person to hold the enquiry and the assessors need not be associated with him in all orders which are in 'the nature of ministerial order and quantification of expenses must be treated as an order of a ministerial nature.

Civil Appeals Nos. 2001 2002 of 1978. Appeals by Special Leave from the Judgment and order dated 14 12 1971 of the Kerala High Court in Income Tax Reference No 19 of 1969. V. section Desai, section P. Nayar and Miss A. Subhashini for the Appellant section T. Desai, N. Sudhakaran and P. K. Pillai for the Respondent. The Judgment of the Court was delivered by TULZAPURKAR, J. These appeals by special leave raise a common question whether on proper construction of the Agreement dated November 10, 1955, entered into by the assessee with Kamala Mills Ltd., the latter was the "manager" of the assessee within the meaning of section 384 read with section 2(24) of the and if so, whether the remuneration paid by the assessee to the latter in the two calendar years 1957 and 1958 relevant to the assessment years 195859 and 1959 60 cannot be allowed as business expenditure under section 10(2) (xv) of the Indian Income Tax Act, 1922? The facts giving rise to the question may briefly be stated as follows: The assessee (M/s Alagappa Textiles (Cochin) Ltd.) is a public limited company carrying on business of manufacture and sale of yarn and has its registered office at Alagappa Nagar in Kerala State. It entered into an Agreement dated November 10, 1955 with Kamala Mills Ltd. Coimbatore for financing and managing the assessee mills at Alagappa Nagar for a period of five years. Clause 8 of the Agreement provided that Kamala Mills Ltd. shall be paid, for the services rendered by it by way of purchases, sales and management, remuneration at the rate of 1% on all purchases made by it for the assessee mills and at half a per cent on all sales of yarn, yarn waste and cotton waste and other products of the mill. Pursuant to the aforesaid term Kamala Mills Ltd. drew remuneration to the tune of Rs. 1,03,547/ and Rs. 18,294/ respectively for the calendar years 1957 and 1958 727 corresponding to the assessment years 1958 59 and 1959 60. These amounts were assessed to tax in the hands of Kamala Mills Ltd. The assessee in its assessment proceedings for the said two assessment years claimed deduction in respect of the said two amounts as business expenditure under section 10(2) (xv) of the Act. The claim was disallowed by Income Tax officer on the ground that under section 384 of the new , which had come into force on April 1. 1956, the continuation of a body corporate as manager was prohibited for the period beyond six months from the coming into force of the Act, that remuneration paid to Kamala Mills Ltd. subsequent to October 1, 1956, was illegal being in violation of section 384 and, therefore, the deduction claimed in respect of such payment for the calendar years 1957 and 1958 could not be allowed. In the appeals preferred by the assessee against the decision of the Income Tax officer, it was contended that though the payment of remuneration to a body corporate as Manager after October 1, 1956 was illegal under section 384, the payments were for services rendered and were fully justified by commercial expediency and as such the same should be allowed under section 10(2) (xv) of the Act. It was also urged that even if the expenses incurred were in violation of the statute such expenses should be allowed since in computing the profits even of illegal business only the net profit was taxed after allowing all the expenses. The Appellate Assistant Commissioner was not impressed by these arguments; but he disallowed the deduction mainly on the ground that the assessee by its own conduct had disputed its liability to pay any remuneration to Kamala Mills Ltd. after October 1, 1956 and in that behalf he relied on an admitted fact that the assessee had filed a suit against Kamala Mills Ltd. to recover such remuneration which had been paid to it in contravention of section 384 on the basis that since the payment was illegal Kamala Mills Ltd. was holding such amounts of remuneration in trust for and on behalf of the assessee and in such a situation the deduction could not be allowed. The assessee carried the matter in further appeals to the Tribunal, but the Tribunal confirmed the view of the taxing authorities that under section 384 of the it was not legal for the assessee to have permitted Kamala Mills Ltd. to continue to work as its Manager after October 1, 1956 and that the payment of remuneration after the said date was illegal and could not be considered as valid expenditure for the purpose of Income Tax Act. fn this behalf the Tribunal relied on two decisions in C.I.T. vs Haji Aziz and Abdul Sakoor Bros. and Raj Woollen Industries vs C.I.T. An argument was raised before the Tribunal that Kamala 728 Mills Ltd. was not only a manager but also a financier and that the remuneration should be treated as having been paid to the financier While observing that it was a new case put forward by the assessee, the Tribunal negatived the contention holding, on construction of the Agreement, that it was by virtue of its position as Manager that Kamala Mills Ltd. was allowed to carry on the financial affairs of the assessee and the remuneration was payable to it as Manager and in no other capacity. The Tribunal also held that the claim for deduction was in respect of a disputed liability inasmuch as the assessee had not merely filed a suit to recover the amount but had in the meantime obtained a decree against Kamala Mills Ltd., and, therefore, the amounts could not be lawfully claimed as permissible deduction. At the instance of the assessee the following question was referred to the High Court for its opinion: "Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in disallowing the claim of the assessee for deduction of Rs. 1,03,547/ and Rs. 18,294/ from the income of the assessment years 1958 59 and 1959 60 as not an admissible business expenditure under sec. 10(2)(xv) of the Indian Income Tax Act, 1922 " The High Court answered the question in the negative in favour of the assessee and against the Department. The High Court, on construction of the Agreement dated November 10, 1955, took the view that since in the matter of the exercise of its powers and the discharge of its functions thereunder Kamala Mills Ltd. could not be said to be "subject to the superintendence control and direction of the Board of Directors" of the assessee, Kamala Mills Ltd. was not a "manager" of the assessee within the definition given in section 2(24) of the , and, therefore, the illegality under section 384 was not attracted and as such the remuneration paid by the assessee to Kamala Mills Ltd. for services rendered during the calender years 1957 and 1958 was allowable as a business expenditure under section 10(2) (xv) of the Act. As regards the decree that had been obtained by the assessee against Kamala Mills Ltd. the High Court observed that the appeal filed by Kamala Mills Ltd. against the said decree was still pending in the High Court and if ultimately the appeal was dismissed and the amounts were recovered back from Kamala Mills Ltd., the assessee could be taxed on those amounts under section 41(1) of the 1961 Act, but that could not be a valid ground for disallowing the deduction claimed by the assessee. The Revenue has challenged in these appeals the view of the High Court that Kamala Mills Ltd. was not the Manager of the 729 assessee within the meaning of section 384 read with section 2(24) of the and the further view that the remuneration paid to Kamala Mills Ltd. during the calendar years 1957 and 1958 was deductible as business expenditure under section 10(2) (xv) of the Act. Before we consider the principal question relating to the proper construction of the Agreement dated November 10, 1957, it will be desirable to note the relevant provisions of the Indian Companies Act, 1913 as also the new , which have a bearing on the question at issue. Since the Agreement between the assessee on the one hand and the Kamala Mills Ltd. On the other was entered into at a time when the Indian Companies Act, 1913 was in force it will be proper first to refer to the definition of 'Manager ' given in section 2(9) of the said Act. Section 2(9) ran thus: "2(9) "manager" means a person who, subject to the control and direction of the directors has the management of the whole affairs of a company, and includes a director or any other person occupying the position of a manager by whatever name called and whether under a contract of service or not. It will be clear that to satisfy the aforesaid definition a person, which could include a firm, body corporate or an association of persons, apart from being in management of the whole affairs of. a company had to be "subject to the control and direction of the directors". This definition has undergone a substantial change under the . Under this Act section 2(24) defines the expression "manager" thus. 2(24) "manager means an individual (not being the managing agent) who, subject to the superintendence, control and direction of the Board of directors, has the management of the whole, or substantially the whole, of the affairs of a company, and includes a director or any other person occupying the position of a manager, by whatever name called, and whether under a contract of service or not." In this definition three conditions are required to be satisfied: (a) the manager must be an individual, which means that a firm or a body corporate or an association is excluded and cannot be a manager (a fact which is expressly made clear in section 384), (b) he should have the management of the whole or substantially the whole affairs of the company and (c) he should be subject to the superintendence, control and directions of the Board of Directors in the matter of managing the affairs of the company. Subject to the changes made in the aspects 730 covered by (a) and (b), in both the definitions the aspect that a manager has to work or exercise his powers under the control and directions of the Board of Directors is common and essential. In fact it is this aspect which distinguishes 'Manager ' from 'Managing Agent '. If the definition of 'Manager ' as given in section 2(24) is compared with that of 'Managing Agent ' as given in section 2(25) it will appear clear that though there is an overlapping of the functions of the manager as well as the managing agent of the company the essential distinction seems to be that whereas the manager has to be subject to the suprintendence, control and direction of the Board of directors the managing agent is not so subject. Section 384 of the in express terms prohibits, after the commencement of the Act, the appointment of a firm or a body corporate or an association of persons as a manager as also the continuation of such employment after expiry of six months from such commencement. It runs thus: "384. No company shall, after the commencement of this Act, appoint or employ, or after the expiry of six months from such commencement continue the appointment or employment of, any firm, body corporate or association as its manager. The aforesaid provision positively disqualifies a firm, body corporate or association from being appointed as manager of a company or from continuing the employment of a firm, body corporate or association as manager after the expiry of six months from the commencement of the Act. Obviously, to attract the prohibition or disqualification contained in section 384, a firm, body corporate or association must be a "manager" within the meaning of section 2(24), that is to say, it should be in management of the whole or substantially the whole of the affairs of a company, and should be under superintendence, control and direction of the Board of directors of the company. It was not seriously disputed that under the terms and conditions contained in the Agreement dated November 10, 1955, Kamala Mills Ltd. could be said to be in management of substantially the whole of the affairs of the assessee mills but the question is whether it was working under the superintendence, control and direction of the Board of directors of the assessee so as to be its 'Manager ' within section 2(24) of the Act? Turning now to the Agreement in question it may be stated that at the commencement of the deed the parties thereto have been described in a particular manner, namely, the assessee has been described 731 and referred to as the "Company" while Kamala Mills Ltd. has been described and referred to as the "Managers" throughout the document. Then follow two recitals which make very clear the object or purpose with which the Agreement was entered into; according to these recitals the assessee was not having sufficient finance to carry on its business of manufacture and sale of yarn and the Board of directors thought it proper of find out a financier who was agreeable to help the assessee monetarily and take active interest in its business and that since Kamala Mills Ltd. agreed to assist the assessee with sufficient finance and to manage the assessee 's mill on certain terms and conditions which the Board of Directors had approved, the Agreement was executed between the parties. Then follow the operative parts of the deed setting out the terms and conditions on which Kamala Mills Ltd. agreed to provide sufficient finance as also to manage the business of the assessee. Clause 1 enlisted in sub clauses (b) to (m) the powers and functions which were to be exercised and performed by Kamala Mills Ltd. during the period of five years for which the Agreement was to operate; such powers were conferred and functions entrusted for the purpose of "managing and running the mill" of the assessee; inter alia, Kamala Mills Ltd. was to make purchases of all cotton, staple fibre or any other raw material for the manufacture of the yarn and to enter into contracts in that behalf at such rates and prices as it may deem fair and proper and make payments for all such purchases and incur all expenses incidental thereto; it was also to make purchases of all stores and spares and other materials necessary for the manufacture of yarn; it was to appoint all staff, technical or non technical and workers skilled and unskilled as also clerks and other staff necessary for the working of the mill and fix their terms and remuneration and could discharge or dismiss or take disciplinary action against them; it had to sell and make contracts for sale for immediate or future delivery of yarn, yarn waste or cotton waste or any other material or products of the mill at such rates or prices and on such terms and conditions as it may think fit; it could decide, lay down and change from time to time the programme of manufacture of yarn and other products of the mill and to insure against fire and other risks all cotton, yarn, material, stock in trade and incur and pay all premia necessary in that behalf; it could pledge, secure and hypothecate all stocks and stores and stock in trade with such bank or banks where arrangements for overdrafts shall have been completed by the Board of Directors; and it could claim, demand, realise and sue for all goods, materials and amounts due to the assessee in the exercise and carrying out of any or all of the powers conferred under sub cls. (a) to (k). Clause 2 of the Agreement stipulated that Kamala Mills Ltd. shall 732 provide funds or arrange for finance necessary for exercising the powers of purchase of cotton, stores and other materials and for payment of wages, salaries, commissions and allowances and for meeting all expenses incidental to manufacture and sale of yam and other pro ducts of the mill. Under clause 3 the assessee was to open a separate Current Account and an overdraft Account for a limit not exceeding Rs. 30,00,000/ with such bankers as Kamala Mills may require with power to Kamala Mills to operate on the said accounts exclusively by itself and in the name of the assessee and it was to have power to receive, endorse, sign, transfer and negotiate all bills, cheques, drafts etc. that may be received in the name of the assessee in the course of the management of the mill and it was specifically agreed that no one except Kamala Mills shall have power to operate on the said accounts. Clause 4 entitled Kamala Mills Ltd. to charge the assessee interest at the rate of 7.5% per annum with half yearly rests on all advances made by it and funds provided for the purposes set out in clause 2. Clause 5 gave Kamala Mills Ltd. a first and prior charge on all the stocks and stores and stock in trade for all the moneys and amounts that may be advanced by it to the assessee except to the extent of any charge or security of such stocks and stores and stock in trade that may be created in favour of the banks for the overdraft account and such charge in favour of Kamala Mills was to be a possessory charge. Clause 8 quantified the remuneration payable to Kamala Mills Ltd. for services rendered by way of purchases, sales, and the management of the mill at the rate of 1 % on all purchases made by it for the assessee mill and at 0.5% on all sales of products effected for and on behalf of the assessee. Clause 10 required Kamala Mills Ltd. to maintain proper accounts in respect of all purchases, sales and expenses, commissions and remunerations due to it etc. and submit to the assessee monthly statements of accounts. Clause 11 put the outer limit of Rs. 15,00,000/ at any one point of time on the advances and financial assistance to be given by Kamala Mills Ltd. to the assessee and it was provided that if and when sums over and above the said limits become necessary to be advanced, Kamala Mills would be entitled to appropriate and take for itself as owner such quantity of yarn as may be in stock as in value would be equivalent, at cost or market value whichever was lower, to the sum that it may be obliged to advance over and above Rs. 15,00,000/ . Clause 13 of the Agreement is very important having a crucial bearing on the question at issue and may be set out verbatim. It ran thus: "13. The Company (assessee) either represented by its Managing Agent or Board of Directors shall not exercise the powers delegated to the Managers (Kamala Mills Ltd.) 733 under the foregoing clauses, except by way of general supervision and advice, nor interfere with the discretion of the Managers in the exercise of their functions and powers vested in them by virtue of this Agreement. " Under cl. 14 it was provided that the Managers ' (Kamala Mills Ltd.) powers were limited in the manner aforesaid and they were not and shall not be deemed to be managers in charge of the whole affairs of the company within the meaning of section 2(9) of the Indian , a significant provision showing the intention of the parties that Kamala Mills Ltd. was not to be regarded as a 'Manager ' under the Indian Companies Act, 1913. Clause 16 is significant and it provided that the Agreement shall be, in force for a period of five years commencing from the date thereof and that "this Agreement for management being an Agency coupled with interest", it could be revoked before the expiry of the said period of five years by 12 months notice in writing being given by one party to the other but if the assessee were to revoke it the assessee shall be liable to compensate Kamala Mills for the loss of remuneration for the unexpired period of the Agreement at the average rate at which Kamala Mills Ltd. had been earning by way of remuneration under the Agreement till the date of such notice of termination. A modification by introducing one additional term. in the Agreement was made on November 21, 1955 but the additional term is not material for our purposes. On a perusal of the aforesaid clauses of the Agreement in question two or three things stand out very clearly. It is true that at the commencement of the deed Kamala Mills Ltd. has been described and referred to as the "Managers" of the assessee throughout the document but mere label or nomenclature given to a party in the document will not be decisive. It is also true that the. several powers and functions were entrusted to Kamala Mills Ltd. under cl. 1 of the Agreement to enable it "to manage or run the mill" of the assessee. But simply because powers and functions were given to Kamala Mills Ltd. for the purpose of "managing and running the mills" of the assessee, it would not follow that Kamala Mills Ltd. was in truth and substance a 'manager ' of the assessee within the meaning of section 2(24) of the 1956 Act. For this purpose the Agreement will have to be read as a whole and the Court will have to decide that was the true, intention of the parties in entering into such agreement. The two recitals clearly indicate the object with which and the purpose for which the Agreement was entered into. It does appear that the assessee was in financially straightened circumstances and on that account was utterly unable to carry on its business of manufacture and sale of yarn and, therefore, 734 the board of directors were in search of a financier who would make available the necessary finances for the running of the mill as also to take active interest in the business of the assessee and when Kamala Mills Ltd. agreed "to assist the company (assessee) with sufficient finance and manage the mill" belonging to the assessee on terms and conditions that were approved b y the Board of Directors of the assessee that the Agreement was entered into between the parties; in other words, it is clear that the dominant object with which the Agreement was entered into was that Kamala Mills Ltd. should really act as financier so that the assessee mill could run and since heavy finances were to be procured by Kamala Mills Ltd. large powers and functions connected with the working of the mill were entrusted to it. This aspect becomes abundantly clear from cl. 16 of the Agreement wherein the parties expressly provided that this Agreement for management was by way of and amounted to an Agency coupled with interest so far as Kamala Mills Ltd. was concerned and, therefore, revocation of the Agreement before the expiry of the five years ' period was made dependent upon 12 months ' notice in writing being given by one party to the other and further if such revocation was done by the assessee suitable compensation was made payable to Kamala Mills Ltd. In other words, managerial functions were incidental and had to be entrusted to Kamala Mills because of the financier 's role undertaken by it. The large powers and functions entrusted to Kamala Mills Ltd. under the several sub clauses of cl. 1 of the Agreement do show that management of substantially the whole, if not the whole, of the affairs of the assessee company had been made over to Kamala Mills Ltd. But the crucial question is whether such management was to be done by Kamala Mills Ltd. under "the superintendence, control and direction of the Board of Directors" of the assessee and in that behalf cl. 13 of the Agreement which we have quoted above is very eloquent. In terms it provided that so far as the powers conferred and the functions entrusted to Kamala Mills Ltd., were concerned, the Board of Directors shall not exercise or perform the same except by way of general supervision and advice and it was further made clear that the Board of Directors shall not interfere with the discretion of Kamala Mills Ltd. in the exercise of their functions and powers vested in it by virtue of the Agreement. In other words, the general supervision or advice of the Board of Directors was of such character that the Board had not say whatsoever nor could it interfere with the discretion of Kamala Mills Ltd. in the matter of the exercise of the powers and the discharge of the functions entrusted to Kamala Mills Ltd. under the Agreement. It is thus clear to us that the dominant object of the Agreement was that Kamala Mills Ltd. should act as financiers of the assessee mill and in the 735 matter of the exercise of its powers and discharge of its functions Kamala Mills Ltd. was never "subject to the superintendence, control or direction" of the Board of directors of the assessee. If this position clearly emerges on true construction of the Agreement in question then it is obvious that Kamala Mills was not acting or working as the "Manager" of the assesses within the meaning of section 2(24) of the and as such the illegality of section 384 of that Act was not attracted. In this view of the matter, the remuneration paid by the assessee to Kamala Mills Ltd. for the two calendar years 1957 and 1958 relevant to the assessment years 1958 59 and 1959 60 could not be regarded as being in violation of section 384 of the and as such the expenditure incurred by way of paying such remuneration would be deductible as business expenditure under section 10 (2) (xv) of the Income Tax Act. In view of our aforesaid conclusion the aspects whether the assessee had disputed its liability to pay such remuneration to Kamala Mills Ltd. Or had filed a suit at the instance of the Company Law Board to recover it back from Kamala Mills Ltd. Or had obtained a decree in that behalf against Kamala Mills Ltd. become irrelevant. However, we would like to place on record the fact that the decree obtained by the assessees against Kamala Mills Ltd. has been reversed or set aside in appeal by the Kerala High Court a fact which was brought to our notice by the Advocate on Record for the assessee communicated to him by his client in a letter dated 22nd August, 1979. However, even 7 if in further appeal the trial court 's decree were restored and the assessee were to recover back the remuneration the assessee can be taxed on the two amounts under section 41(1) of the 1961 Act. In our view, therefore, the High Court was right in answering the question in favour of the assessee. The appeals are, therefore, dismissed with costs. V.D.K. Appeals dismissed.

Respondent, assessee (M/s. Alagappa Textiles (Cochin) Limited company was carrying on business of manufacture and sale of yarn. It entered into an Agreement dated November 10, 1955 with Kamala Mills Ltd., Coimbatore for financing and managing the assessee Mills at Alagappa Nagar for a period of five years. Clause 8 of the Agreement provided that Kamala Mills Ltd. shall be paid for the services, rendered by it by way of purchases, sales and management remuneration at the rate of 1% on all purchases made by it for the assessee Mills and at half a percent on all sales of yarn, yarn waste and cotton waste and other products of the Mill. Clause 13 of the agreement was to the effect that "the company (assessee) either represented by its managing Agent or Board of Directors shall not exercise the powers delegated to the Managers (Kamala Mills Ltd. under the foregoing clauses, except by way of general supervision and advice nor interfere with discretion of the managers in the exercise of their functions and powers vested in them by virtue of this Agreement." Clause 14, provided that the Managers (Kamala Mills Ltd.) powers were limited in the manner aforesaid and shall not be deemed to be manager in charge of the whole affairs of the company within the meaning of section 2(9) of the companies Act, 1913. Clause 16 provided that the agreement shall be in force for a period of five years commencing from the date thereof and that "this Agreement for management being an Agency coupled with interest" could be revoked before the expiry of the said period of five years by 12 months ' notice in writing being given by one party to the other, but if the assessee were to revoke it the assessee shall be liable to compensate Kamala Mills for the loss of remuneration for, the unexpired period of the Agreement at the average rate at which Kamala Mills Ltd. had been earning by way of remuneration under the Agreement fill the date of such notice of termination Pursuant to the aforesaid terms, Kamala Mills Ltd. drew remuneration to the tune of Rs. 1,03,547/ and Rs. 18,249/ respectively for the calendar years 1957 and 1958 corresponding to the assessment years 1958 59 and 1959 60. The amounts were assessed to tax in the hands of Kamala Mills Ltd. Respondent, Assessee in its assessment proceedings for the said two assessment years claimed deduction in respect of the said two Amounts as business expenditure under section 10(2)(xv) of the Income tax Act. The claim was disallowed by the Income Tax officer on the ground that under section 384 of the companies Act. 1956 which had come into force on April 2, 1956 the continuation of a 724 body corporate as manager was prohibited for the period beyond six months from the coming into force of the Act, that the remuneration paid to Kamala Mills Ltd. subsequent to October 1, 1956 was illegal being in violation of section 381. The Appellate Assistant Commissioner rejected the Appeal mainly on the ground that the assessee by its own conduct had disputed its liability to pay any remuneration to Kamala Mills Ltd. as after October 1, 1956 and in that behalf he relied on an admitted fact that the assessee had filed a suit against Kamala Mills to recover such remuneration which had been paid to it in contravention of section 384 of the on the basis that since the payment was illegal Kamala Mills was holding such amounts of remuneration in trust for and on behalf of the assessee. Respondent carried the matter in further appeals to the Tribunal, but the Tribunal confirmed the view of the taxing authorities. On a reference, the High Court answered the question in the negative in favour of the assessee and against the Revenue. The High Court held that Kamala Mills could not be said to be "subject to the superintendence, control and directions of the Board of Directors" of the respondent and therefore was not a "manager" of the assessee within the meaning of section 2(14) of the , so as to attract the illegality under section 384 ibid. and (b) that in view of the provisions of section 41(1) of the Income tax Act, the pendency of an appeal against the Judgment the suit for recovery could not be a valid ground for disallowing the deduction permissible under ) section 10(2)(xv) of the Income tax Act. Dismissing the appeal by Revenue by special leave, the Court ^ HELD: 1. Section 384 of the in express terms prohibits, after the commencement of the Act, the appointment of a firm or a body corporate or an association of persons as manager as also the continuation of such employment after expiry of six months from such commencement. To attract the prohibition or disqualification, under this section, a firm, body corporate or association must be a "manager" within the meaning of section 2(24), that is to say, it should be in management of the whole or substantially the whole of the affairs of a company and should be under superintendence, control and direction of the Board of Directors of the company [730 C D, E F] 2. Section 2(24) of the requires three conditions to be satisfied: (a) the Manager must be an individual, which means that a firm or body corporate or an association is excluded and cannot be a Manager (a fact which is expressly made clear in section 384). (b) he should have the management of the whole or substantially the whole affairs of the company and (c) he should be subject to the superintendence, control and directions of the Board of Directors in the matter of managing the affairs of the company. Subject to the changes made in the aspect covered by (a) and (b), in both the definitions [section .2(9) of 1913 Act and section 2(24) of the 1956 Act], the aspect that a Manager has to work or exercise his powers under the control and directions of the Board of Directors is common and essential. In fact, it is this aspect which distinguishes 'Manager ' from "Managing Agent". A comparison of the definition of "Manager" as given in s; 2(24) of the 1956 Act with that of "Managing Agent" in section 2(25) makes it clear that though there is an overlapping of the functions of the Manager as well as the Managing Agent of the company the essential distinction is that whereas the 725 Manager has to be subject to the superintendence, control and direction of the Board of Directors, the managing Agent is not so subject. [729 G H, 730 A C] 3. On a perusal of the clauses and in particular clauses 8, 13, 11 and 16 of the Agreement dated November 10, 1955 in the instant case, two or three things stand out very clearly. It is true that at the commencement of the deed Kamala Mills Ltd. has been described and referred to as the "Managers" of the asses see throughout the document but mere label or nomenclature given to a party in the document will not be decisive. It is also true that the several powers and functions were entrusted to Kamala Mills Ltd. under clause 1 of the Agreement to enable it "to manage or run the Mill" of the assessee. But simply because powers and functions were given to Kamala Mills Ltd. for the purpose of "managing and running the Mills" of the assessee, it could not follow that Kamala Mills Ltd. was in truth and substance a 'manager ' of the assessee within the meaning of section 2(24) of the 1956 Act. For this purpose the Agreement will have to be read as a whole and the Court w ill have to decide what was the true intention of the parties in entering into such Agreement. [733 E G] 4. The dominant object with which the Agreement was entered into was that Kamala Mills Ltd. should really act is a financier so that the assessee Mill could run and since heavy finances were to be procured by Kamala Mills Ltd. large powers and functions connected with the working of the mill were entrusted to it. This aspect become abundantly clear from cl. 16 of the Agreement wherein the parties expressly provided that this Agreement for management was by way of and amounted to an Agency coupled with interest so far as Kamala Mills Ltd. was concerned and, therefore, revocation of the Agreement before the expiry of five years ' period was made dependent upon 12 months ' notice in writing being given by one party to the other and further if such revocation was done by the assessee suitable compensation was made payable to Kamala Mills Ltd. In other words, managerial functions were incidental and had to be entrusted to Kamala Mills because of the financier 's role undertaken by it. The large powers and functions entrusted to Kamala Mills Ltd. under the several sub clauses of cl. 1 of the Agreement do show that management of substantially the whole, if not the whole, of the affairs of the assessee company had been made over to Kamala Mills Ltd. [734 B E] 5. Clause 13 of the Agreement which is very eloquent. provided that so far as the powers conferred and the functions entrusted to Kamala Mills Ltd. were concerned, the Board of directors shall not exercise or perform the same except by way of general supervision and advice and it was further made clear that the Board of Directors shall not interfere with the discretion of Kamala Mills Ltd in the exercise of their functions and powers vested in it by virtue of the Agreement. In other words, the general supervision or advice of the Board of directors was of such character that the Board had no way whatsoever nor could it interfere with the discretion of Kamala Mills Ltd. in the matter of the exercise of the powers and the discharge of the functions entrusted to Kamala Mills Ltd. under the Agreement. It is thus clear that the dominant object of the Agreement was that Kamala Mills Ltd. should act as financiers of the assessee Mill and in the matter of the exercise of its powers and discharge of its functions Kamala Mills Ltd. was never "subject to the superintendence control or direction" of the Board of 726 directors of the assessee. This is the position which clearly emerges on true construction of the Agreement. [734 F H, 735A] 6. Therefore, Kamala Mills Ltd. was not acting or working as the "Manager" of the assessee within the meaning of section 2(24) of the and as such the illegality of section 384 of the Act was not attracted. In this view of the matter, the remuneration paid by the assessee to Kamala Mills Ltd. for the two calendar years 1957 & 1958 relevant to the assessment years 1958 59 and 1959 60 could not be regarded as being in violation of section 384 of the companies Act, 1956 and as such the expenditure incurred by way of paying such remuneration would be deductible as "Business Expenditure" under section 10(2)(xv) of the Income tax Act, 1922. [735A D]

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

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

Appeal No. 1693 of 1967. 14 Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated September 21, 1967 of the Madhya Pradesh High Court in Election Petition No. 10 of 1967. G. N. Dikshit and R. N. Dikshit, for the appellant. C. B. Agarwala Uma Mehta, section K. Bagga and Shureshta Bagga, for respondent No. 1. The Judgment of the Court was delivered by Hidayatullah, J. This is an appeal against the, judgment of the High Court of Madhya Pradesh at Jabalpur, dated September 21, 1967. dismissing the election petition filed by the appellant on the preliminary ground that a proper copy of the election petition was not served upon the answering parties. The facts of the case are as follows The appellant was a candidate for election to the Sagar Lok Sabha Scheduled Castes constituency No. 24. The election took place on February 20, 1967. There were three other contesting candidates of whom the first respondent secured the largest number of votes and was declared elected. The appellant secured the second largest number of votes, her votes being less by just under 300 than the successful candidate 's votes. An election petition was thereafter filed by the appellant on April 5, 1967. In this ,election petition the appellant challenged the election of the first respondent on four grounds. They were (a) wrongful acceptance . ,of his nomination paper, (b) corrupt practice inasmuch as .he appealed to religion through a pamphlet marked Annexure (c) undue influence, and (d) breaches of the. Act and Rules. The pamphlet to which reference is made was styled Bhayankar Vajraghat and was published by Sarvadaliya Goraksha Mahabhiyan Samiti, Deori Kalan Branch. It charged the party of the appellant namely the Congress with encouraging cow slaughter and ,offending. the Hindu Sentiment. Details were given in it of the number of animals slaughtered every day in Madhya Pradesh land elsewhere and blamed the Congress with being a party to the practice. In the body of the election petition a translation in English of the Hindi pamphlet was incorporated. The original pamphlet was attached to the election petition and was marked Annexure 'A '. The election petitioner proceeded to say in her petition "it forms part of the petition". When parties appeared the first respondent filed his written statement in great. detail. He dealt with this pamphlet and answered the allegations of the election petitioner in relation thereto paragraph by paragraph. As a result of these pleas a number of issues were raised on July 18, 1967. No issue was raised in 15 regard to the service of a defective copy of the election petition upon the respondents in general and the first respondent in particular. However, on August 3, 1967, a special objection was made by the first respondent claiming that the copy of the pamphlet had not been annexed to the copy of the election petition served upon him and therefore the election petition was liable to be dismissed in accordance with the provisions of section 86 of the Representation of the People Act. A detailed reply to this objection was given by the election petitioner. She stated that this was an after thought inasmuch as the translation of the pamphlet was incorporated in the election petition and the allegations regarding the pamphlet had been answered in detail by the answering respondent. The Court thereupon framed an additional issue on August 4, 1967. The issue ran as follows "Whether the election petition is liable to be dismissed for contravention of section 81 (3) of the Representation of the People Act, 1951 as copy of Annexure A to the petition was not given along with the petition for being served on the respondents". Parties first filed a number of affidavits pro and con. Later the Court ordered attendance of the deponents for crossexamination. In this way the appellant and her counsel who had filed affidavits earlier were examined. Their. case was that the copies of the election petition had been properly, put together including in each copy an original pamphlet for service on the respondents. On the other side the first respondent and two others filed affidavits stating that when the copy of the election petition was received it was not accompanied by the pamphlet. In their examination in Court all maintained the same position, and were cross examined. The learned Judge trying the case also ordered the attendance of the Reader of the Deputy Registrar of the High Court who had dealt with the election, petition and he ' was examined as Court witness No. 1. He stated that the copies of the petition were complete except that the pamphlet was not annexed to each copy. He stated that he had noted at the time this fact but had treated the pamphlet as a document and not as an Annexure to the election petition. The learned Judge, on an appraisal of this material held that the copies of the election petition served upon the respondents were not accompanied by the pamphlet which was an Annexure to the election petition. After examining the law on the subject the learned Judge came to the conclusion that the election petition should be dismissed under section 86 of the Representation of the People Act and he accordingly dismissed it with costs. No other 16 issue which was struck between the parties was gone into because the election petition failed at the very threshold. In this appeal it is contended that the learned Judge was in error in thinking that the pamphlet ought to have accompanied the copies of the election petition or that the law required that it should have been annexed to the copy of the election petition served on the respondents. In this connection our attention was drawn to the provisions of the Representation of the People Act to which we shall refer presently. On the other side it was contended that whatever the meaning of the expressions "the election petition", "annexures" or "schedules" in the Act, the election petitioner by her own conduct had made this document a part Of the election petition and therefore it was incumbent upon her to have served the whole of the election petition and not only a part of it as she did and therefore the order now appealed against was correct. Before we come to these rival contentions we find it necessary to refer first to the relevant provisions on the subject Section 81 of the Representation of the People Act occurs in Chapter 11 which is headed "Presentation of Election Petitions to Election Commission". It provides as follows: "Presentation of Petitions (1) An election petition calling in question any election may be presented on one or more of the , rounds specified in sub section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. Explanation : In this subsection, 'elector ' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (3) Every election petition shall be accompanied by as many copies thereto as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." 17 The first respondent draws pointed attention to the third sub section which says that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The dispute therefore is whether the pamphlet could be described in this case as, a part of the election petition. The answering respondent says that it is so and was considered to be so by the election petitioner herself when she stated that it was to be read as a part of the election petition. The matter, in our opinion, is not to be resolved on how the election petitioner viewed the matter but from the point of view of the requirement of the law on the subject. For this purpose we have to turn to section 83 of the Representation of the People Act which provides what the contents of the election petition shall be. It reads as follows (1) An election petition (a) shall contain a concise statement of the material facts on which,the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908), for the verification of pleadings. Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the The answering respondent herein again draws pointed attention to the fact that the schedules and the annexures to the petition are mentioned and they have to be signed and verified in the same manner as the petition meaning thereby that as the election petitioner had made the pamphlet a part of the election petition she was required to sign and verify the pamphlet and also to serve a 18 copy of it as required by sub section (3) of section 81 when the election petition was served. 'He then relies upon section 86 which provides that the High Court shall dismiss an election petition which does not comply with the provisions of section 81, section 82 or section 117. An argument was raised in this case as to whether section 86(1) is mandatory or merely directory. We need not go into this aspect of the case. In our opinion the present matter can be resolved on an examination of the relevant facts and the contents of the election petition as detailed in section 83 reproduced above. It may be pointed out here that the trial of election petition has to follow as. far as may be ,the provisions of the Code of Civil Procedure. We are therefore of opinion that it is permissible to look into the Code of Civil Procedure to see what exactly would have been the case if this was a suit and not a trial of an election petition. Under the Code of Civil Procedure, a suit is commenced by a plaint. This is provided by O.IV, r. 1 which says that every suit shall be instituted by presenting a plaint to the Court. After the plaint, is received O.V provides the summoning of the defendants in the case and r. 2 of that order says that every summons shall be accompanied by a copy of the plaint, and if so permitted, by a concise. statement. We then turn to the provisions of O.VII Which. deals with the contents of a plaint. The first rule mentions the particulars which must be in a plaint. It is not necessary to refer to them '. The plaint has to be signed and verified. Rule 9 then provides that the plaintiff shall endorse on the plaint and annex thereto a list of documents, if any, which he has produced along with it and, if the plaint is admitted, shall present as many .copies on plain paper of the plaint as there are defendants unless the Court by reason of the length of the plaint or the number of defendants, or for any other sufficient reason, permits him to present a like number of concise statements of the nature of the claims made,. It will be noticed here that what is required to be provided are copies of the plaint itself or the concise statement according to the number of defendants. There is no mention here of any, other documents of which a copy is needed to be presented to the Court for service to the defendants. Then we come to r. 14 which states that where a plaintiff sues upon a document in his possession or power he shall produce it in court when the plaint is presented and shall at the same time deliver the document or a copy thereof to. be filed with the plaint. It will be noticed that he is required to file only one copy of the document and not as many copies as there are defendants in the case. It would therefore follow that a copy of the document is not expected to be delivered with the copy of the plaint to the answering defendants when summons is served on them. In the schedules to the Code of Civil Procedure we have got Appendix B which 19 prescribes the forms for summons to the defendants. There is only one form of summons in Appendix B, (Form No. 4) in which the copy of the negotiable instrument is to accompany the copy of The plaint. That is so, because of the special law applying to the negotiable instruments and the time limit within which pleas to that document have to be raised and this is only in summary suits. No other form makes any mention of any document accompanying the summons with the, copy. of the plaint. We need not go into more details,. It is clear that the documents which are filed with the plaint have to be accompanied by one copy of those documents. This is because the copy is compared with the original and the copy is endorsed by the clerk of court and the document is sometimes returned to the party to be produced into Court later. 'the copy takes the place of the document concerned and is not to be sent out to the parties with the plaint. We may now see whether the election law provides anything different. The only provision to which our attention has been drawn is sub section (3) of section 81 and sub section (2) of section 83. The first .provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the ;petition and that every such copy shall be an authenticated true copy. The words. used here are only "the election petition". There is no mention of any document accompanying the election petition. If the matter stood with only this sub section there would ;be no doubt that what was intended to be served is only a copy of the election petition proper. Assistance is however taken from the provisions of sub section (2) of section 83 which provides that. any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition it is contended that since the pamphlet was an annexure to the petition it was not only necessary to sign and verify it, but that it should have been treated as a part of the election petition itself and a copy served upon the respondents. in this way, non compliance with the provisions of section 86(1) is made Out. In our opinion, this is too strict a reading of the provisions. We have already pointed. out that section 81(3) speaks only of the election petition. Pausing here, we would say that since the election petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves a part of the petition and therefore the pamphlet was served upon the respondents although in a translation and not in original. Even if this be not the case, we are quite clear that subs. (2) of section 83 has reference not to. a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put, not in the election petition but in he accompanying schedules or annexures. We can 20 give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set. out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondent if the requirement regarding service of the election petition is to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity ,and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no, sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. The pamphlet therefor must be treated as a document and not as a part of the election petition in so far as averments are concerned. When ,the election petitioner said that it was to be treated as part of her election petition she was merely indicating that it was not to be thought that she had not produced the document in time. She was insisting upon the document remaining with the petition so that it could be available whenever the question of the election petition or its contents arose. It would be stretching the words of sub section (2) of section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. In this particular case we do not think that the pamphlet could be so treated. We are, therefore, of the opinion that whether or not section 86(1) is mandatory or directory there was no breach of the provisions of the Representation of the People Act in regard to the filing of the election or the service of the copies thereof and the order under appeal was therefore erroneous. We accordingly set aside the order and remand the case for trial from this stage. The costs of the appellant will be costs in the cause. The respondent will bear his own costs. Y. P. Appeal allowed and case remanded.

The appellant filed an election petition with a pamphlet as annexure thereto. A translation in English of the pamphlet was incorporated in the body of the election petition, and it was stated in the petition that it formed part of the petition. The first respondent raised an objection that a copy of the pamphlet had not been annexed to the copy of the election petition served on him and therefore, the election petition was liable to be dismissed under section 86 of the Representation of the People Act. The High Court accepted the objection and dismissed the election petition. In appeal, this Court, HELD : The order of the High Court must be set aside. The words used in section 81(3) are only "the election petition". There is no mention of any document accompanying the election petition. Since the election petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves a part of the petition, and therefore the pamphlet was served upon the respondents although in a translation and not in original. [19 E H] Even if this be not the case, it is quit,. clear that section 83 (2) has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures. Details of averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified. The annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondents if the requirement regarding service of election petition is to be wholly complied with. But this does not apply to documents which are merely evidence In the case but for reasons of clarity and to lend force to the petition are not kept back but produced or filed with election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. [19 H 20 D] The pamphlet, therefore. must be treated as a document and not as a part of the election petition in so far as averments are concerned. When the election petitioner said that it was to be treated as part of her election petition she was merely indicating that it was not to be though that she had .not produced the document in time. She was insisting upon the document remaining with the petition so that it could be available whenever the question of the election petition or its contents arose. [20 D E]

Appeal No. 145 of 1953. Appeal by Special Leave from the Judgment and Order dated the 8th day of September, 1950, of the High Court of Judicature for the State of Punjab at Simla in Civil Reference No. 3 of 1949. Achhru Ram (R. section Narula and Naunit Lal, with him) for the appellants. M. C. Setalvad, Attorney General for India, (G. N. Joshi and P. G. Gokhale, with him) for the respondent. October 25. The Judgment of the Court was delivered by DAS J. This appeal by special leave arises out of a consolidated reference made on the 19th April, 1949, under section 66(1) of the Indian Income tax Act read with section 21 of the Excess Profits Tax Act by the Income tax Appellate Tribunal, Madras Bench. The reference arose out of four several proceedings for assessment to excess profits tax of the appellant, the chargeable accounting periods being periods ending with 31st March of each of the years 1942, 1943, 1944 and 1945. The relevant facts appearing from the consolidated statement of the case are as follows: Narain Swadeshi Weaving Mills, the appellant before us (hereinafter referred to as the assessee firm), is a firm constituted in 1935 upon terms and conditions set forth in a deed of partnership dated the 6th November, 1935. The partners were Narain Singh and two of his sons, Ram Singh and Gurdayal Singh, their respective shares in the partnership being 6 annas, 5 annas and 5 annas. The business of the firm which was carried on 954 at Chheharta, Amritsar, in the Punjab, was the manufacture of ribbons and laces and for this purpose it owned buildings, plant, machinery , etc. On the 7th April, 1940, a public limited liability company was incorporated under the name of Hindus,tan Embroidery Mills Ltd. The objects for which the company was established were to purchase, acquire and take over from the assessee firm the buildings and leasehold rights, plant, machinery, etc., on terms and conditions mentioned in a draft agreement and the other objects set forth in the Memorandum of Association of the said company. Out of the total subscribed capital represented by 41,000 shares 23,000 shares were allotted to the assessee firm. Of these 23,000 shares so allotted 20,000 shares were not paid for in cash but the remaining 3,000 shares were paid for in cash. The directors of the company were Narain Singh and his three sons Ram Singh, Gurdayal Singh and Dr. Surmukh Singh and one N. D. Nanda, a brother in law of Gurdayal Singh. Dr. Surmukh Singh was at all material times residing in South Africa. These 4 directors between themselves hold 33,340 shares including the said 23,000 shares. The company was, accordingly, a director controlled company. The funds available to the company were not sufficient to enable it to take over all the assets of the assessee firm. The company, therefore, purchased only the buildings and the leasehold rights therein but took over the plant, machinery, etc. on lease at an annual rent of Rs. 40,000. On the 28th July, 1940, the company executed a managing agency agreement in favour of Uppal & Co., a firm constituted on the same day with Ram Singh and Gurdayal Singh, two of the sons of Narain Singh, as partners with equal shares. Under the managing agency agreement dated the 28th July, 1940, Uppal & Co., was to be paid 10% of the net profits of the company besides salary and other allowances mentioned therein. On the 25th January, 1941, the company appointed as its selling agent Ram Singh & Co., a firm which 955 came into existence on the same day with Ram Singh, Gurdayal Singh and Dr. Surmukh Singh, the three sons of Narain Singh, as partners, each having an one third share. The terms of this partnership were recorded in writing on the 17th March, 1941. Ram Singh & Co., was to get a commission of 3% on the net sales and 6% on the gross income of the company. In the two new firms so constituted Narain Singh had no share and eventually with a view to make up for his loss the shares of the partners in the assessee firm were modified by an agreement made by them on the 21st April, 1941. Under this agreement Narain Singh was to get a 12 annas share and the two sons Ram Singh and Gurdayal Singh 2 annas share each. All the three firms mentioned above, namely, the assessee firm, Uppal & Co., and Ram Singh & Co., were registered as firms under section 26A of the Indian Income tax Act. On the facts summarised above, the Excess Profits Tax Officer came to the conclusion that the main purpose of the formation of the company and the two firms of Uppal & Co., and Ram Singh & Co., was the avoidance of liability to excess profits tax. Accordingly, on the 16th November, 1944, the Excess Profits Tax Officer issued notices under section 10A of the Excess Profits Tax Act to the company and the three firms. Eventually, however, the proceedings against the company were dropped and the Excess Profits Tax Officer considered the case of the three firms only. He held that the three firms were really one and he, therefore, amalgamated the income of all three and proceeded to assess the assessee firm to excess profits tax on that basis for the four several chargeable accounting periods mentioned above. Under sub section (3) of section 10 A the assessee company preferred four several appeals to the Appellate Tribunal. In their order the, Appellate Tribunal considered the four following issues: (1)Whether the income of the firms styled as "Uppal & Co.," and "Ram Singh & Co.," could be amalgamated with the income of the assessee firm 956 under the provisions of section 10 A of the Excess Profits Tax Act ? (2) Whether the share of income of Dr. Surmukh Singh, a partner in the selling agency of Ram Singh & ,Co., could be included under section 10 A in the excess profits tax assessment of the assessee firm ? (3) Whether the lease money obtained by the assessee firm could be legally treated as business profits liable to excess profits tax ? (4) Whether proper opportunity under section 10 A had been given to the assessee firm?" Before the Appellate Tribunal, as before the Excess Profits Tax Officer, the assessee firm objected to the application of the provisions of section 10 A of the Excess Profits Tax Act. The contention was. that as the assessee firm did not, during the relevant chargeable accounting periods, carry on any business within the meaning of section 2(5) of the Excess Profits Tax Act, section 10 A had no application and, therefore, the profits of Uppal & Co., and Ram Singh & Co., could not be amalgamated with its own income. In other words, the argument was that there must be an existing business of an assesses during the relevant period before section 10 A could be applied in respect of transactions concerning that business. The Appellate Tribunal took the view that instead of using the plant, machinery, etc., for its own manufacture the assessee firm turned that revenue yielding asset into another use by lettinh it out on an annual rent of Rs. 40,000 and that this was certainly an adventure in the nature of trade as contemplated by section 2(5) of the Excess Profits Tax Act read with rule 4 of Schedule I thereto. Accordingly, it decided issue No. 3 against the assessee firm holding that the assessee firm carried on business in the letting out of the plant, machinery, etc., on hire and the lease money obtained thereby could be legally treated as business profits liable to excess profits tax. On issue No. I the Appellate Tribunal agreed with the Excess Profits Tax Officer that it was evident beyond doubt that a definite scheme was adopted creating separate charges in order to avoid excess profits tax 957 by the three firms, namely, the assessee firm, Uppal & Co., and Ram Singh & Co., taken together. Thefirst step in the scheme was the formation of the company. The second step was the appointment of Uppal & Co., as managing agents instead of appointing the assessee Tfirm itself. The third step was the creation of the firm Ram Singh & Co., for taking up the selling agency of the company and the final step was to adjust the shares of the partners of the assessee firm so as to equalise, as far as possible, the share of Narain Singh with the shares which his sons got in the several firms. The Appellate Tribunal held that all the various steps noted above need not necessarily have been fictitious or artificial but they were certainly transactions so as to attract the operation of section 10 A. The Appellate Tribunal decided issues Nos. 2 and 4 against the assessee. All the four appeals were accordingly dis missed by the Appellate Tribunal. The assessee firm thereupon preferred four several applications under section 66(1) of the Income tax Act read with section 21 of the Excess Profits Tax Act praying that the following questions arising out of the order of the Appellate Tribunal be referred to the High Court : (1) Whether, under the facts and circumstances of the case, the application of section 10 A with a view to amalgamating the income of the firms "Uppal & Co." and "Ram Singh & Co.", with the income of the appellant firms was correct and valid in law ? (2) Whether, in view of the facts admitted on record, the share of income of Dr. Surmukh Singh, a partner in the selling agency and not a partner in the appellant firm, could be legally included along with the share of income of section Ram Singh and section Gurdial Singh and is this inclusion at all within the purview of section 10 A ? (3) Whether, in view of the facts, circumstances and observations on record, the lease money obtained by the appellant firm could be legally treated as business profits or profits from an adventure in trade liable to excess profits tax ? 122 958 (4) Whether the type of a notice served on the appellant, under the facts and the circumstances of the case, legally amounts to a proper opportunity under section 10 A of the Excess Profits Tax Act, and if not ,what is the legal effect of such opportunity being not afforded ? (5) Whether the proceedings under section 1O A were not null and void ab initio, for want of necessary previous sanction from the Inspecting Assistant Commissioner of Excess Profits Tax, the fact of such previous sanction having been obtained being neither mentioned in the order nor proved before the Appellate Tribunal at the time of hearing although expressly required by the Court. The Appellate Tribunal declined to refer questions (4) and (5) sought to be raised by the assessee firm and no grievance has been made before us on that score. The Appellate Tribunal referred the earlier three questions after reframing the same so as to read as follows : (1) Whether there is any evidence before the Tribunal to support the conclusion that the main purpose of the transactions was the avoidance of excess profits tax ? (2) Whether on the facts admitted or proved the share of income of Dr. Surmukh Singh in the firm of Ram Singh & Co., can be legally included along with the share of income of Ram Singh and Gurdayal Singh ? (3) Whether on the facts and circumstances of the case the leasing of machinery, etc., by the assessee firm to the company was a business within the meaning of section 2(5) of the Excess Profits Tax Act ? The learned counsel appearing for the assessee firm submitted before the High Court that the third of the referred questions should be discussed and decided first, but the High Court took the view that the decision of the first question was a necessary preliminary to the consideration of the third question. Taking up, then, the first question first the High Court referred to the ,several facts found by the Appellate Tribunal and 959 described as steps and regarding them as circumstantial evidence came to the conclusion that it could not be said that there was no evidence upon which the Tribunal was justified in coming to the conclusion that the formation of the firms, Uppal & Co., and Ram Singh & Co., was mainly for the purpose of avoidance or reduction of liability to excess profits tax. In the result, the High Court held that the three firms, the assessee firm, Uppal & Co., and Ram Singh & Co., were in fact one and the same and on that basis proceeded next to take up the third question. After referring to section 2(5) and certain judicial decisions, the High Court concluded as follows: " The argument of Mr. Pathak when applied to the present case would have force were it a fact that the sole concern of the assessee firm was the receipt of hire of machinery from a company or firm, in which the assessee firm had Do interest. But this is not the state of affairs. On the finding under the first question referred, the assessee firm, the firm of managing agents and the firm of selling agents are really one and the same firm. This firm and its partners held the majority of shares in the company. The agreement for payment of Rs. 40,000 as rent of machinery is an agreement between the assessee firm and the company which the assessee firm controls. The business of the assessee firm was, and in effect still is, the manufacture of ribbons and laces, and the receipt of Rs. 40,000 is a profit from that business diverted into the pockets of the assessee firm. " The High Court accordingly answered the third question in the affirmative and against the assessee firm. The necessary certificate of fitness for appeal to this Court having been refused by the High Court, the assessee firm obtained special leave of this Court to prefer the present appeal. The learned counsel appearing for the assessee firm has submitted before us and we think rightly that the approach of the High Court was erroneous in that they took up the discussion of question No. I first. That question, as framed, proceeded on the assumption 960 that section 1O A applied to the case and only raised the question as to whether there was any evidence to support the finding of the Appellate Tribunal arrived at as a result of the enquiry under that section, namely, that the main purpose of the transaction was the avoidance of excess profits tax. The long title and the preamble of the Excess Profits Tax Act refer to the imposition of tax on excess profits arising out of certain businesses. Section 4, which is the charging section and section 5 which lays down the application of the Act to certain business, clearly postulate the existence of a business carried on by the assessee on the profits of which the excess profits tax can be imposed. Therefore, if there is such a business during the relevant period, then and then alone can arise the question of the applicability of section 10 A. If there is no such business as is contemplated by the Act, then the Act does not apply and section 10 A cannot come into operation at all. Before the Excess Profits Tax Officer can embark upon an enquiry as to whether a transaction was effected for the avoidance or reduction of liability to excess profits tax and to make such adjustments as he considers appropriate_ there must be proof that the assessee was, during the chargeable accounting period, carrying on any business of the kind referred to in section 5 of the Act. Logically, therefore, the Appellate Tribunal as well as the High Court should have taken up question No. 3 first, for on a decision of that question would depend the applicability of section 1O A and if that question were answered in favour of the assessee firm the further question of law as raised in question No. I would not, in such event, arise. The approach of the High Court was, therefore, logically misconceived on the facts of this case. What then are the facts found by the Appellate Tribunal apart from its findings under section 10 A ? The findings are that after the formation of the company the assessee firm was left with no business at all. The company purchased the leasehold rights in the lands and buildings where the plant, machinery, etc., were installed. The firm as such ceased to manufacture any ribbons and laces. It was left with the plant, 961 machinery, etc., which it did not require and which ceased to be a commercial asset in its hands, for it had no longer any manufacturing business at all. Further, the assessee firm had put it out of its power to use the plant, machinery, etc. , for it had no right in the lands and buildings where the plant, machinery, etc., had been installed. In these circumstances, the assessee firm let out the plant, machinery, etc., to the company. It was thenceforth the company which was carrying on the business of manufacturing ribbons and laces and for that purpose hired the plant, machinery, etc., from the assesee firm. Prima facie it was the company which appointed the managing agents and the selling agents. Ex facie and apart from the alleged result of any enquiry under section 10 or section 1O A of the Excess Profits Tax Act those were not transactions of the assessee firm. The assessee firm was, therefore, left only with some property which at one time was a commercial asset but had ceased to be so. The assessee firm thereupon let out that property on rent. The question is whether such letting out in such circumstances amounted to carrying on of a business. "Business" as defined in section 2(5) of the Excess Profits Tax Act includes amongst others, any trade, commerce or manufacture or any adventure in the nature of trade, commerce or manufacture. The first part of this definition of "a business" in the Excess Profits Tax Act is the same as the definition of a business in section 2(4) of the Indian Income tax Act. Whether a particular activity amount to any trade, commerce or manufacture or any adventure in the nature of trade, commerce or manufacture is always a difficult question to answer. On the one hand it has been pointed out by the Judicial Committee in Commissioner of Income tax vs Shaw Wallace & Co.(1), that the words used in that definition are no doubt wide but underlying each of them is the fundamental idea of the continuous exercise of an activity. The word "business" connotes some real, substantial and systematic or organised course of activity or conduct with a set purpose. On the other hand, a single and (1) Cal. 962 isolated transaction has been held to be conceivably capable of falling within the definition of business as 'being an adventure in the nature of trade provided the transaction bears clear indicia of trade. The question therefore, whether a particular source of income is business or not must be decided according to our am ordinary notions as to what a business is. The case of Commissioner of Excess Profits Tax, Bombay City vs Shri Lakshmi Silk Mills Ltd.(1), decided by this Court is clearly distinguishable. There, the respondent company which was formed for the purpose of manufacturing silk cloth installed a plant for dying silk yarn as a part of its business. During the relevant chargeable accounting period, owing to difficulty in obtaining silk yarn on account of the war, it could not make any use of this plant and it remained idle for some time. In August, 1943, the plant was let out to another company on a monthly rent. The question arose whether the income received by, the respondent company in the chargeable accounting period by way of rent was income from business and assessable to excess profits tax. It should be noted that in that case the respondent company was continuing its business of manufacturing silk cloth. Only a part of its business, namely, that of dying silk yarn had to be temporarily stopped owing to the difficulty in obtaining silk yarn on account of the war. In such a situation, this Court held that part of the assets did not cease to be commercial assets of that business since it was temporarily put to different use or let out to another and accordingly the income from the assets would be profits of the business irrespective of the manner in which that asset was exploited by the company. This Court clearly indicated that no general principle could be laid down which would be applicable to all cases and that each case must be decided on its own circumstances according to ordinary common sense principles. In the case before us the assessee firm 's business had entirely closed. It no longer 'manufactured any ribbons and laces. It had accordingly no further trading or commercial activity. It could not in fact use the plant, machinery, etc., (1) ; 963 after the land and the buildings where they were installed had been sold to the company. In these circumstances the assessee firm let out the plant, machinery, etc., on an annual rent of Rs. 40,000. These facts are very similar to those found in Inland. Revenue , Commissioners vs Broadway Car Co., Ltd.(1). There the war conditions bad reduced the company 's business to very small proportions. In that situation it was observed that in that case the company dealt with part of its property which bad become redundant and was sublet purely to produce incomes transaction quite apart from the ordinary business activities of the company. The ratio decides in that case which was noticed in the judgment of this Court appears to us to apply to the facts found in the present case apart from the findings Under section 10 A. Applying also the common sense principle to the fact so found it is impossible to hold that the letting out of the plant, machinery, etc., was at all a business operation when its normal business activity had come to a close. It is interesting to note that sub sections (3) and (4) of section 12 of the Indian Income tax Act recognise that letting out of plant, machinery, etc., may be a source of income falling under the head "other sources" within that section and not necessarily under the head "business" dealt with in section 10 of that Act. In the facts and circumstances of this case, therefore, the letting out of the plant, machinery, etc. ,cannot be held to fall within the body of the definition of "business" under section 2(5) of the Excess Profits Tax Act. In this view of the matter it is not necessary for us to express an opinion as to the meaning or implication of the proviso to that definition or rule 4(4) of Schedule I to the Act. In our opinion, in the facts and circumstances of this case, question No. 3 should have been answered in the negative. The question of law raised in the third question being answered in favour of the assessee firm, the question of the applicability of section 1O A of the Excess Profits Tax Act could not arise, for the assessee firm having, during the relevant period, no business to which that (1) 964 Act applied section 1O A could not be invoked by the revenue and, therefore, the question whether there was "evidence to support the finding of the Tribunal under that section could not arise. On the contrary, the further question of law which would really arise out of the order of the Appellate Tribunal consequent upon the aforesaid answer to question No. 3 would be whether under the facts and circumstances of the case the application of section 1O A with a view to amalgamating the income of the firms Uppal & Co., and Ram Singh & Co., with the income of the assessee firm was correct and valid in law and that was precisely the first question which the assessee firm sought to raise by its application. In our view the High Court should not only have answered question No. 3 in the negative but should also have raised, as a corollary to that answer to question No. 3, the further question of law on the lines indicated in question No. I of the assessee 's petition. In other words, the High Court should have, after answering question No. 3 in the negative reframed the referred question No. I by restoring question No. 1 as suggested by the assessee firm in its petition and should have answered the question so restored in the negative and in favour of the assessee. For the reasons stated above, we allow this appeal, reframe question No. I by restoring the first question suggested by the assessee firm, namely " Whether under the facts and circumstances of the case the application of section 1O A with a view to amalgamating the income of the firms Uppal & Co., and Ram Singh & Co., with the income of the appellant firm was correct and valid in law?" and we answer the question so reframed in the negative. Question No. 2 must be answered in the negative and in favour of the assessee by way of necessary corollary. We also answer question No. 3 in the negative. The appellant will be entitled to the costs of this appeal and we order accordingly.

As condition precedent to the applicability of section 10 A of the Excess Profits Tax Act, 1940, it must be proved that during the chargeable accounting period the assessee was carrying on the kind of business to which the Act applies by virtue of section 5 of the Act. Section 2(5) of the Act states what is included in the word "business". It is not possible to lay down a general definition which would cover all cases of business. Business involves the fundamental idea of a continuous activity. It connotes some real, substantial and systematic or organised course of activity with a set purpose. Single isolated transaction may also bear the clear indicia of trade or an adventure in the nature of trade which is included in the word "buisiness" mentioned in section 2(5) of the Act. Hence whether a particular source of income is business or not must be decided on the facts and circumstances of each case according to our ordinary conception of business. Since 1935 the assessee firm carried on the business of manufacturing ribbons and laces and for this purpose owned buildings, leasehold rights, plant, machinery etc. On April 7, 1940, a public limited liability company was incorporated with the object of acquiring and taking over the buildings, leasehold rights, plant, machinery etc. , from the assessee firm. The company purchased leasehold rights in the lands and buildings where plant, machinery etc. were installed. The assesses firm as such ceased to manufacture ribbons and laces and was left with plant and machinery etc. which it did not require and which ceased to be commercial asset in the hands of the firm. The land and the buildings having been sold the assessee firm put it out of its power to use the plant, machinery etc. In these circumstances the company took and the assessee firm granted a lease of the plant, machinery etc., at an annual rent of Rs. 40,000. Held, that this lease of the plant, machinery etc., given by the assesses firm could not be "business" within the meaning of section 2(5) of the Excess Profits Tax Act, 1940. 953 Commissioner of Excess Profits Tax, Bombay City vs Shri Lakshmi Silk Mills Ltd. ([1952] S.C.R. 1), distinguished. Inland Revenue Commissioner vs Broadway Car Co., Ltd. ([1946] 2 A.E.R. 609), relied upon. Commissioner of Income tax vs Shaw Wallace & Co., ([1932] I.L.R. , referred to.

Civil Appeal No.2215 of 1977. From the Judgement and Order dated 237 1976 of the Madhya Pradesh High Court in Misc. Appeal No.23 of 1976. T.U.Metha, S.K. Gambhir, Vivek Gambhir and Surinder Karnail for the Appellants. Uday U. Lalit and A.G.Ratnaparkhi for the Respondents. The Judgement of the Courtwas delivered by SHAREMA,J,. The question for decision in this appeal by special leave is whether a petition under s.11 of the , for declaring the marriage of the petitioner as nullity is maintainable after the death of the petitioners ' spouse. The appellent No. 1, hereinafter referred to as the Maharani, was marriedto Maharaja Rameshwarsighji in1960 and a daughter, the appellant no.2, was born of the wedlock in 1964. The relationship between the husband and the wife thereafter ceased to be cordial and the appellants started living in Bombay and the Maharaja within his estate in Madhya Pradesh. According to the case of the respondent no.1 the Maharaja decided to remarry without legally separating from the appellant Maharani. The respondent who is a relation of the Maharaj 's mother, respondent No.2, was misled both by theMaharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under the belief she married the Maharaja and the couple got several issues. In 1974 when the Maharaja died, an application for grant of Letters of Administration was filed by the appellant Maharani and the respondent applied for probate on the basis of an alleged will which is denied by the appellant. The proceedings are still pending. In this background the respondent 197 No. 1 filed the present application under section 11 of the for declaring her marriage as nullity. The Maharaja 's mother was impleaded as the sole respondent. When the appellants learnt about the case, they intervened and were joined as parties. The appellants challenged the maintainability of the application on the ground that the marriage could not be declared nullity after the death of the Maharaja. Both the trial court and the High Court have rejected the appellants ' plea. 4. mr. Mehta, the learned counsel for the appellants, has contended that having regard to the very special relationship between husband and wife, a marriage cannot dissolved or declared to be a nullity unless both of them are parties thereto. The marital status of a person stands on a much higher footing than other positions one may hold in the society or may have in relation to a property; and cannot be allowed to be challenged lightly. The marriage of a person, therefore, cannot be declared as a nullity after his death when he does not have an opportunity to contest. He relied upon the language of s.11. After its amendment in 1976 the section read this: "11. Void marriages: Any marriage solemnized after the commencement of this Act shall be null and void and may , on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i),(iv) and (v) of Section 5." (emphasis added) 5. The present proceeding was started in 1974, that is, before the amendment, and the section did not contain the words which have been underlined by us above. At that time all that was required was that the application had to be filed by a party to the marriage under challenge. On the plain language of the section as it stood then, it could not be claimed that in absence of the other spouse as a party to the proceeding, the same would not be maintainable. The argument of Mr. Mehta is that the section had the same meaning before and after the amendment and the addition of the words in 1976 was merely clarificatory in nature. He strongly relied upon the 69th Report of the Law Commission. 6. The Report recommended several amendments in the which led to the passing of the Amending Act of 1976. 198 Reliance was placed on paragraph 6.1A of Chapter 6 of the Report which referred to the divergent views taken by the High Courts of Punjab and Madras on the question of maintainability of a petition under s.11 after the death of the other spouse. The Commission, thereafter, observed thus: "We ought, however, to point out that in such a case, the proper remedy is a suit under the Specific Relief Act. A petition under section 11 of the cannot be appropriate, because the other spouse is an essential party to any such petition. This should be clarified by an amendment. " It has been argued before us that the view of the Madras High Court referred to in the Report is the correct view which was accepted by the Law Commission, and since there was scope for controversy on the language of the section, the legislature agreeing with the Law Commission added the aforementioned additional words by way of clarification. It is urged that such interpretation of the section did not lead to any injustice inasmuch as a suit for such a declaration was and is maintainable in the civil court. Reliance has also been placed on "Rayden and Jackson 's Law and Practice in Divorce and Family matters." (15th Edn.), and several English cases in support of the proposition that on the death of a party to a matrimonial action the cause of action does not service. Reference has been made to the case of Butterfield vs Butterfield, I.L.R. (Vol.50) Calcutta 153, where after the wife had obtained a decree nisi for dissolution of her marriage the husband died. Following the English case of Stanhope vs Stanhope,[1886] 11 P.D.103, it was held that the decree could not be confirmed. The learned counsel for the respondent relied upon certain observation made in other High Courts ' judgments supporting his stand. He pointed out that having regard to the language of section 16, as it stood before the amendment, the children born of the respondent would not have been entitled to the benefit of the section in the absence of a decree declaring the marriage of their parents as nullity, and this was precisely the reason that the respondent had to commence the present litigation. We have considered the argument of Mr. Mehta closely but do not find ourselves in a position to agree with him. It is not correct to suggest that one uniform rule shall apply for deciding the maintainability of all proceedings involving issues relating to marital status. The 199 question will be dependent upon the nature of the action and law governing the same. The provisions of the relevant statute relating to a proceeding in question will be very material. This aspect has been taken note of by Rayden and Jackson also in their book which has been relied upon by Mr. Mehta. The passage at page 650 summarises the position in the following words: "Death of a party: effect on suit. In many cases the fact of the death of one of the parties will render the process meaningless by reason of the circumstances that a marriage brought to an end by death could no longer be dissolved by an Act of the court. But there is no general rule that, where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken in it. It has been said that it is unhelpful to refer to abatement at all. The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken. The answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third. The first matter is the nature of the further proceedings sought to be taken. The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both. The third matter is the applicability of section I (I) of the Law Reforms (Miscellaneous Provisions) Act 1934. The dispute issue in the present appeal has to be answered by considering the nature of the proceedings and the true construction of the relevant provisions of the . Under the general law a child for being legitimate has to be born in lawful wedlock, and if the marriage is void or declared to be so by the court, it will necessarily have the effect of bastardising the child born of the parties to such a marriage. By enacting section 5(i) of the Act, the legislature abolished polygamy, which had always remained permissible and prevalent among the Hindus in the past. The Act was bringing about a very significant departure in this regard; and taking into account the possibility of violation of the law in numerous cases atleast for sometime to come special provisions were included under s.16 of the Act with the object of protecting the legitimacy of the children. The original section before the amendment of 1976 read as follows: "16. Where a decree of nullity is granted in respect 200 of any marriage under section 11 or section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity. Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possession of acquiring any such rights by reason of his not being the legitimate child of his parents. " It will be seen that the benefit of the section was confined to only such cases where a decree of nullity was granted under section 11 or s.12. it did not extend to other cases. In 1976 s.11 was amended by inserting the words "against the other party", and along with the same s.16 was amended as it read now. the following words in section 16(i). ". and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act." enlarged the applicability of the beneficial provisions, so as not to deny the same to children who are placed in circumstances similar to those of the present respondent. By the amendment in s.11, in so far the cases where marriage can be declared as nullity, the application of the rule protecting the legitimacy was widened. If that had not been done, the children born of such marriage would have been deprived of the advantage on the death of either of the parents. By the simultaneous amendment of the two sections it can safely be deduced that the Parliament did not hold identical views as expressed by the Law Commission 's Report. Even if it be assumed that the meaning of the section was not free from ambiguity, the rule of beneficial construction is called for in ascertaining its meaning. The intention of the legislature in enacting s.16 was to protect the legitimacy of the children who would have been 201 legitimate if the Act had not been passed in 1955. There is no reason to interpret s.11 in a manner which would narrow down its field. With respect to the nature of the proceeding, what the court has to do in an application under s.11 is not bring about any change in the marital status of the parties. The effect of granting a decree of nullity is to discover the flaw in the marriage at the time of its performance and accordingly to grant a decree declaring it to be void. we, therefore, hold that an application under s.11 before its amendment in 1976, was maintainable at the instance of a party to the marriage even after the death of the other spouse. Accordingly, this appeal is dismissed with costs.

The appellant No.1 Maharani was married to a Maharaja in 1960 and the daughter appellant no.2 was born of the wedlock in 1964. The relationship between the husband and the wife thereafter ceased to be cordial and the appellant started living in Bombay and the Maharaja within his estate in Madhya Pradesh. It is the case of the respondent No.1 that the Maharaja decided to remarry without legally separating from the appellant. The respondent who is a relation of the Maharaja 's mother, respondent No.2,was misled both by the Maharaja and his mother, respondent No.2 was misled both by the Maharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under that belief she married the Maharaja had been dissolved and under that belief she married the Maharaja and several issues were born of this wedlock. In 1974 when the Maharaja died, on application for grant of Letters of Administration was filed by the appellant Maharani, and the respondent No.1 applied for probate on the basis of an alleged will. This will was denied by the appellants. These proceedings are still pending. Respondent No.1 filed an application under Section 11 of the for declaring her marriage as nullity, and the Maharaja 's mother was impleaded as the sole respondent. The appellants intervened and were impleaded as parties. The maintainability of the aforesaid application was challenged by the appellants on the ground that the marriage could not be declared 194 a nullity after the death of the Maharaja but both the trial court and the High Court have rejected this plea. In the appeal to this Court it was contended on behalf of the appellants that having regard to the very special relationship between husband and wife,a marriage cannot be dissolved or declared to be a nullity unless both of them are parties thereto. The martial status of a person sands on a much higher footing than other positions one may hold in the society and cannot be allowed to be challenged lightly,and that the marriage of a person, therefore, cannot be declared as nullity after his death when he does no have an opportunity to contest. Reliance was placed upon the language of Section 11 of the . On behalf of the respondent, it was pointed out that having regard to the language of Section 16 of the as it it stood before its amendment in 1976,he children born of the respondent would not have been entitled to the benefit of the section in absence of a decree declaring the marriage of their parents as nullity, and this was precisely the reason that the respondent had to commence the present litigation On the question: whether a petition under Section 11 of the for declaring the marriage of the petitioner as a nullity is maintainable after the death of the petitioner 's spouse. Dismissing the appeal, this Court, HELD: 1 .An application under Section11 of the before its amendment in 1976, was maintainable at the instance of a party to the marriage even after the death of the other spouse.[201B]. In the instant case, the proceeding was started in 1974 that is, before the amendment was made in the Hindu Marriage Act,1955. Section II did not contain the words "against the other party". At that time all that was required was that the application had to be filed by a party to the marriage under challenge. On the plain language of the section as it stood then,it could not be claimed that in absence of the other spouse as a party to the proceedings, the same would not be maintainable.[197F] 3.Under the general law a child for being legitimate has to be 195 born in lawful wedlock and if the marriage is void or declared to be so by the Court, it will necessarily have the effect ofbastardising the child born of the parties to such a marriage.[199F] 4. By enacting Section 5(i) of the the legislature abolished polygamy, which had always remained permissible and prevalent among the Hindus in the past. The Act was bringing about a very significant departure in this regard; and taking into account the possibility of violation of the law in numerous cases at least for sometime to come special provisions were included under Section 16 of the Act with the object of protecting the legitimacy of the children.[199G] 5. The benefit of Section 16 was confined to only such cases where a decree of nullity was granted under Section 11 or section 12. It did not extend to other cases. in 1976 section 11 was amended by inserting the words "against the otherparty" and alongwith the same section 16 was amended.[200D] 6. By the amendment in section 11, in so far the cases where marriage can be declared as nullity, the application of the rule protectingthe legitimacy was widened. If that had notbeen,the children born of such marriages would have been deprived of the advantage on the death of either of the parents. By the simultaneous amendment of the two sections it can safely be deducted that the Parliament did not hold identical views as expressed by the law Commission in its59th Report.[200F G] 7. The intention of the legislature in enacting section 16 was to protect the legitimacy of the children who would have been legitimate if the Act had not been passed in 1955.[200H] 8. There is no reason to interpret section 11 in a manner which would narrow down its field. With respect to the nature of the proceedings, what the court has to do in an application under section 11 is not to bring about any change in the marital status of the parties. The effectof granting a decree of nullity is to discover the flow in the marriage at the time of its performance and accordingly to grant a decree declaring it tobe void. [201A B] Butterfield vs Butterfield; I.L.R.(Vol.50) Calcutta 153 and Stanhope vs Stanhope, , and Law Commission of India 59th Report Chapter 6, para 6.1A referred to. 196 9.It is not correct to suggest that one uniform rule shall apply for deciding the maintainability of all proceedings involving issues relating to marital status. The question will be dependent upon on the nature of the action and law governing the same. The provisions of the relevant statue relating to a question will be very material.[198H 199A] Rayden and Jackson 's Law and Practice in Divorce and Family Matters, (15th Edn.). p.650, referred to.

Appeal No. 281 of 1955. Appeal from the judgment and order dated March 18, 1954, of the Bombay High Court in Income tax Reference No. 35 of 1953. K. N. Rajagopal Sastri and D. Gupta, for the appellant. R. J. Kolah and Ram Ditta Mal, for the respondent. May 8. The Judgment of the Court was delivered by HIDAYATULLAH J. This appeal on a certificate of fitness granted by the High Court of Judicature at Bombay has been filed by the Commissioner of Income tax, Bombay against Ranchhoddas Karsondas of Bombay (hereinafter referred to, as the assessee) under section 66A of the Indian Income tax Act. The facts leading tip to this appeal are as follows For the assessment year 1945 46, a public notice under section 22(1) of the Income tax Act (hereinafter called the Act) was issued, requiring every person whose total income during the previous year exceeded the maximum amount which was not chargeable to income tax to furnish, within such period not being less than sixty days as might be specified in the notice, a return of his income in the prescribed form and verified in the prescribed manner. This notice was published on or about May 1, 1945. The assessee did not make a return of his income. The Income tax Officer, while examining the books of account of a partnership called the " Assar Syndicate " of which the assessee was a partner, found that in the account year corresponding to the assessment year 1945 46, there were six cash credits aggregating to Rs. 59,026 in the name of the assessee 's wife. Before, however, the Income tax 116 Officer could take any action, the assessee submitted a " voluntary " return on January 5, 1950 of his income for the accounting year 1944 45 (assessment year 1945 46) showing a total net income of Rs. 1,935. He added a footnote to the return to the following effect: " My wife has sold her old ornaments and deposited the sum of Rs. 59,026 in the firm of Assar Syndicate in which I am a partner." The Income tax Officer did not act on this return, but on February 27, 1950 he issued a notice purporting to be under section 34 of the Act calling upon the assessee to submit his return. This notice was served on the assessee on March 3,1950, and in answer thereto, the assessee submitted a similar return on March 14, 1950 showing the same income and adding the same footnote. The Income tax Officer then issued and served upon the assessee notices under sections 22(4) and 23(2) of the Act asking him to produce his books of account and to tender any evidence he cared to lead. It appears from the record that these notices were complied with, but on February 26, 1951 the Income tax Officer included the sum of Rs. 59,026 in the total income of the assessee and assessed him on it for the assessment year 1945 46. The assessee appealed, in turn, to the Appellate Assistant Commissioner and the Income tax Appellate Tribunal. His contentions were three, viz., that the amount of Rs. 59,026 could not and should not have been included in his income, that the amended section 34 of the Act had no retrospective effect, and that the assessment completed on February 26, 1951 was invalid, inasmuch as it was completed four years after. the end of the relevant assessment year. Both the Appellate Assistant Commissioner as well as the Tribunal rejected his contentions, but the Tribunal on being moved by him, raised and referred two questions of law under section 66(1) of the Act to the High Court of Judicature, Bombay, for its decision. These questions were: " (1) Whether the notice issued under Section 34 of the Act by the Income tax Officer on 27 2 1950, 117 after the assessee had filed a voluntary return was valid in law? (2) Whether the assessment made on 26 2 1951 is valid in law? This reference was heard by the High Court on March 18, 1954, and by a judgment delivered on the same day, Chagla, C.J., and Tendolkar, J., answered ' both the questions in the negative. Before the High Court, it was again contended by the assessee that since he had submitted a return under section 22(3) of the Act on January 5, 1950, the assessment, if any, had to be completed before March 31, 1950, as required by section 34(3) of the Act. He also contended that he was entitled under section 22(3) to make a " voluntary " return on the date he did, and with a voluntary return before the Income tax Officer, there was no scope for the issuance of a notice under section 34. The High Court upheld the contentions of the assessee, and gave its opinion that the Department ought to have issued a notice under section 22(2) within the assessment year, and if no return was made within the time fixed by the notice, the Department should have proceeded under section 23(4) to a 'best judgment ' assessment. The other alternative for the Department was to issue a notice under section 34 of the Act, if the period for sending a notice under section 22(2) had expired. But it could not issue a notice under section 34 after a return was already made before it, and the benefit of the extended period of limitation for assessment available under the first proviso to sub section (3) of section 34 of one year from the service of the notice under sub section (1) of that section was not available in this case. The High Court granted a certificate of fitness, and hence this appeal. The arguments which were urged before the High Court were all raised in this Court by the parties. The case of the Department was supplemented by an argument that, inasmuch as the assessee had suppressed his income or given incorrect particulars thereof, the period during which action under section 34 could be taken was the extended one of 8 years. In the arguments before us, our attention was drawn to a cleavage of opinion between the Bombay High 118 Court on the one hand and the Calcutta High Court on the other. While the Bombay High Court seems to be of the view that a " voluntary " return showing a nontaxable income is still a good return for all purposes under the Act, the Calcutta High Court is of the view that what section 22(1) of the Act requires is a return of taxable income and not a return of income, which shows a loss or is below the taxable limit. It appears that at one time the Calcutta High Court also entertained the view that such a return was no return at all, but it was explained later that this meant that the return was ineffective for the purposes of section 22(1) of the Act, though it might be a " return " being in the prescribed form. The Bombay High Court also entertains the view that the assessment proceedings commence with the issue of a public notice, and that section 34 of the Act cannot apply, where in answer to the public notice a return is made whether of taxable income or not. The view of the Calcutta High Court is that assessment proceedings commence either with a notice under section 22(2) of the Act or with the filing of a return showing taxable income. We are not here concerned with the quantum but only with the legality of the assessment. The side issue whether, in point of fact, the cash credits in the name of the wife, represented the income (if the husband does not survive for decision. Thus, the only question is whether the notice issued under section 34 of the Act on February 27, 1950 (after the assessee filed his " voluntary " return on January 5, 1950) and the assessment thereon, were valid in law. Section 34(3) of the Act provides that no assessment except the assessment within el. (a) of sub section (1) thereof or under section 23 to which el. (c) of sub section (1) of section 28 applies, shall be made after the expiry of four years from the end of the year in which income, profits or gains were first assessable. A proviso, however, allows one year from the date of the service of the notice for the completion of the assessment. It reads, omitting matters not relevant here: " . where a notice under sub section (1) has been issued within the time therein limited, the assessment or reassessment to be made in pursuance of such 119 notice may be made before the expiry of one year from the date of the service of the notice even if such period exceeds the period of . four years . " It is, therefore, quite clear that the extra period is available only if a notice under sub section (1) of section 34 has been issued within the time therein limited. This takes us to section 34(1). Section 34(1), omitting parts not relevant, reads: " (1)If . . . . . . . (a) the Income tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22, for any year. I or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income tax have escaped assessment for any year . he may in cases falling under clause (a) at any time within eight years and in cases falliny under clause (b) at any time within four years of the end of that year, serve on the assessee. a notice . and may proceed to assess such income. " It would appear from this that if the return filed on January 5, 1950, was a return of income, there was no failure or omission on the part of the assessee, so as to bring the matter within section 34(1)(a) of the Act, and subs. (3) of section 34 would then apply to the case limiting the period to four years. In that event, the assessment should have been completed on or before March 31, 1950. But if the return made by the assessee was no return at all, then the conditions under the first subsection of section 34 obtained, and the assessment could be completed within one year of the date of service of the notice (March 3, 1950), i.e. on or before March 2, 1951. In that event, the assessment would be valid. The validity of the return in this context is tied to the validity of the notice and also vice versa. 120 Section 22 of the Act (omitting the parts not relevant) may now be quoted: " (1) The Income tax Officer shall, on or before the 1st day of May, in each year, give notice, by publication in the press. , requiring every person whose total income during the previous year exceeded the maximum amount which is not chargeable to income tax to furnish, within such period not being less than sixty days. a return. setting forth. his total income and total world income during that year: (2) In the case of any person whose total income is, in the Income tax Officer 's opinion, of such an amount as to render such person liable to income tax, the Income tax Officer may serve a notice upon him requiring him to furnish, within such period, not being less than thirty days. a return . setting forth . his total income and total world income during the previous year: (3) If any person has not furnished a return within the time allowed by or under sub section (1) or sub section (2), or having furnished a return under either of those sub sections, discovers any omission or wrong statement therein, he may furnish a return or a revised return, as the case may be at any time before the assessment is made. " It will be seen from this, that, as the Bombay High Court correctly pointed out, there is a time limit provided in sub sections (1) and (2) and the failure or omission occurs when that period passes, but sub s (3) allows a locus poenitentiae before the assessment is actually made. There is no dispute that a return could be filed in this case, late though it was. The controversy centres round the fact that the return, when it was filed, disclosed an income which was below the maximum not chargeable to tax, and the question is whether in such an event the Income tax Officer was precluded from issuing a notice under section 34 of the Act. There has been in the past a well marked difference of opinion between the Bombay and the Calcutta High 121 Courts, the leading cases in Bombay being Harakchand Makanji & Co. vs Commissioner of Income tax (1), All India Groundnut Syndicate Ltd. vs Commissioner of Income tax(2) and the decision under appeal here, while the Calcutta view is to be found in Commissioner of Agricultural Income tax vs Sultan Ali Gharami (3), R. K. Das & Co. vs Commissioner of Income tax (4) and Commissioner of Income tax vs Govindlal Dutta (5). To these may be added P. section Rama Iyer vs Commissioner of Income tax (6), in which the Madras High Court has accepted the Bombay view. No useful purpose will be served in discussing these cases in detail. In some of them, the point need not have been taken up for decision, though it was. We shall refer very briefly to the two rival views and the grounds on which they are rested, and in doing so, we begin with the Calcutta decisions. In Sultan Ali Gharami 's case (3), a notice under section 24(1) of the Bengal Agricultural Income tax Act (corresponding to section 22(1) of the Act) was issued. No return was filed. Three years later, a notice under section 24(2) of that Act (corresponding to section 22(2) of the Act) was served, and a return showing an income below the taxable minimum was filed. The contention was that without a notice under section 24(2) within the assessment year or a notice under section 38(1) (corresponding to section 34 (1) of the Act) the best judgment ' assessment was bad. The contention further was that the return could be taken to be under section 24(1) or section 24(3). Chakravarti, J. (as he then was) and Das Gupta, J., held that a person who had no assessable income was not placed under a duty to file a return, that the return whether filed under section 24(1) or section 24(3) which had failed to show an assessable income could not possibly be 'treated ' as a return under section 24(1) or even section 24(3)when filed in answer to a notice under section 24(2). They further observed at p. 442: " A return under section on 24(1) is a return filed by a person who decides for himself that he had an assessable income in the previous year and by filing (1) (1948) 16 , (4) (1056) (2) (1954) 25 1. T. R. R (5) (1957) 33 ; (3) 16 122 the return he offers that income for assessment. A person who had no assessable income in the previous year is placed under no duty by a notice under section 24(1) to furnish a return and a person who thinks, rightly or wrongly, that he had no assessable income will furnish none. A return under section 24(1), whether filed within the time allowed under the section or filed subsequently under the provisions of section 24(3), will therefore show an assessable income. A return which showed no assessable income, could not possibly be 'treated ' as a return filed under section 24(1) or a return called for under that section but filed under section 24(3), when in fact it was filed in response to a notice under section 24(2). " The opinion here expressed was criticised in the judgment under appeal, and in the next case, R. K. Das & Co vs Commissioner of Income tax(1), the Calcutta High Court (Chakravarti, C.J., and Sarkar, J.) explained what was really meant. It is not necessary to refer to the facts of that case. This is what Chakravarti, C.J., observed at p. 449: " It should be remembered ', I observed 'that the return in the present case is being sought to be treated as a return under section 24(1), belatedly filed. ' And then I went on to say that a return under section 24(1) would only be filed by a person who thought that he had a taxable income and therefore a return showing an income below the taxable limit could not be held, on a construction thereof, to be a return under section 24(1) and consequently the return in the case we were then considering could not be treated as such a return filed under section 24(3). To say that, was not to say that even a return filed in, compliance with a notice under section 22(2), if filed belatedly under section 22(3) could not be a return showing an income below the taxable limit. " This left the matter somewhat ambiguous as to what was really meant, and in Commissioner of Income tax vs Govindlal Dutta(2),Chakravarti, C. J., and Guha, J., (1) (2) 123 again explained the true import of the law laid down. They referred to section 22(1) of the Act as it stood prior to the amendment of 1953, and observed that under that section a person was required to file a return only if his total income during the preceding year exceeded the maximum amount which was not chargeable to tax. The return contemplated was thus only a return of income and not a return of loss and not even a return of income, but a return of taxable income. Not only had a person no duty but he had even no right to file a return voluntarily, if he had suffered a loss, to 'report ' that loss. The learned Judges concluded that it was a complete mistake to think that section 22(3) provided for the filing of a voluntary return showing loss, at any time, before assessment. That section, they opined, contemplated the filing of a return of taxable income, and a return not showing such income was not a return at all in law. The Calcutta view, as shown above, really proceeds upon the wording of section 22(1). It lays down that the public notice requires only persons having an income above the taxable limit to make a return. A person who has no such income need not make a return, and if he does make a return, it is not a return which need be considered, being not a return in law. It is a little difficult to understand how the existence of a return can be ignored, once it has been filed. A return showing income below the taxable limit can be made even in answer to a notice under section 22(2). The notice under section 22(1) requires in a general way what a notice under section 22(2) requires of an individual. If a return of income below the taxable limit is a good return in answer to a notice under section 22(2), there is no reason to think that a return of a similar kind in answer to a public notice is no return at all. The conclusion does not follow from the words of section 22(1). No doubt, under that sub section only those persons are required to make a return, whose income is above taxable limits, but a person may legitimately consider himself entitled to certain deductions and allowances, and yet file a return to be on the safe side. He may show his income and the 124 deductions and allowances he claims. But it may be that on a correct processing his income may be found to be above the exempted limit. No doubt, it is futile for a person not liable to tax to rush in with a return, but the return in law is not a mere scrap of paper. It is a return, such as the assessee considers, represents his true income. We are unable (and we say this with due respect) to accept the view adumbrated in the Calcutta cases. The contrary view is expressed by the Bombay High Court in the earlier case of Harakchand Makanji & Co. vs Commissioner of Income tax (1) and in the judgment under appeal. That view was accepted by the Madras High Court in P. section Rama Iyer vs Commissioner of Income tax (2) and also, in our opinion, is the sounder view of the two. In the earlier of the two Bombay cases, Chagla, C. J., and Tendolkar, J., held (as stated in the head note): " Notice under section 34 is only necessary if at the end of the assessment year no return has been made by the assessee, and the authorities wished to proceed under section 22(2), but where the assessee himself chooses voluntarily to make a return, no question can arise under section 34 of assessment escaping, and therefore there is no necessity to serve any notice under section 34. " This represents the law applicable to the facts as they are to be found in this case. In the assessment year no return of income was filed, nor was any notice served under section 22(2). There was, however, the general notice under section 22(1). A return in answer to that notice could be filed under section 22(3) before assessment, and for this there is no limit of time. It was filed on January 5, 1950. There was nothing to prevent the Income tax Officer from taking up the return and proceeding to assess the income of the assessee. It was open to him, if there was sufficient justification for it, to hold that the amount noted in the footnote was really the assessee 's income, in which case an assessable income would have been found and the tax could be charged thereon. If the Income tax Officer had acted on that return and assessed the assessee (1) (2) 125 before March 31, 1950, the assessment would have been valid. He chose to ignore the return, and served on the assessee a notice under section 34(1). This notice was improper, because with the return already filed there was neither an omission nor a failure on the part of the assessee, nor was there any question of assessment 'escaping '. The notice under section 34(1) was, therefore, invalid and the consequent assessment equally so. We accordingly agree with the judgment under appeal. Before leaving this case, we may refer to two other arguments, which were raised. Mr. Rajagopala Sastri pointed out that an assessee might file the 'voluntary ' return on the last day showing income less than the taxable limit, and the Department would, in that case, be driven to complete the assessment proceedings within a few hours or lose the right to send a notice under section 34(1). An argument ab inconvenienti is not a decisive argument. The Income tax Officer could have avoided the result by issuing a notice under section 23(2) and not remaining inactive until the period was about to expire. Further, all laws of limitation lead to some inconvenience and hard cases. The remedy is for the legislature to amend the law suitably. The Courts can administer the laws as they find them, and they are seldom required to be astute to defeat the law of limitation. This argument is thus no answer to the clear meaning and implications of the Act. The other argument was that the return was not a true one, and fell within the mischief of cl. (c) of sub s.(1) of section 28, and that, therefore, the period during which action could be taken was the extended one of 8 years. The short answer to that is that this was not a part of the Department 's case at any prior stage, and cannot be allowed to be raised now. In our opinion, the answers given by the High Court of Bombay were correct in all the circumstances of this case. The appeal thus fails, and is dismissed with costs. Appeal dismissed.

A public notice under section 22(1) of the Income tax Act, 1922 was published on May 1, 1045, requiring every person whose total income exceeded the maximum amount which was not chargeable to income tax to file returns for the assessment year 1945 46. On January 5, 1950, the assessee submitted a voluntary return showing an income of Rs. 1,935 for the assessment year 1945 46 and added a footnote to the return that his wife had sold her old ornaments and deposited a sum of Rs. 59,026 with the Assar Syndicate in which he was a partner. The Income tax Officer, who had discovered these credits while examining the accounts of the Assar Syndicate, ignored the voluntary return, and, on February 27, 1950, issued a notice under section 34(1) of the Act calling upon the assessee to submit his return. On March 14, 1950, the assessee submitted an identical return. The Income tax Officer made the assessment on February 26, 1951, and included the sum of Rs. 59,026 in the total income of the assessee. The assessee contended that the assessment was invalid as it was completed more than four years after the end of the assessment year in violation Of section 34(1)(b). The appellant contended that the voluntary return was no return as it did not disclose any taxable income and the assessment was valid under the proviso to section 34(3) Of the Act, having been made within one year of the notice issued under section 34(1). Held, that the assessment was invalid. The voluntary return filed by the assessee, even though it did riot disclose any taxable income, was a good return and could not be ignored. As such no question arose under section 34(1) of income escaping assessment and the Income tax Officer was not justified in issuing the notice under section 34(1). The proviso to section 34(3) was applicable only when there was a Proper notice issued under section 34(1) and the appellant could not take advantage of the time allowed by this proviso. The assessment was clearly made beyond four years of the end of the assessment year 1945 46 and was time barred. Harakchand Makanji & Co. vs Commissioner of Income tax, All India Groundnut Syndicate Ltd. vs 115 Commissioner of Income tax, (1953) 25 I.T.R. go and P. section Rama Iyer vs Commissioner of Income tax, (1957) 33 I.T.R. 458, approved. Commissioner of Agricultural Income tax vs Sultan Ali Gharami ; B. K. Das & Co. vs Commissioner of Income tax, and Commissioner of Income tax vs Govindlal Dutta (1957) 33 ; , disapproved.

minal Appeal No. 193 of 1961. Appeal by special leave from the judgment and order dated February 9 and 10, 1961, of the Gujarat High Court in Criminal Appeal No. 367 of 1960. D.R. Prem, K.L. Hathi and R.H. Dhebar. for the appellant. The respondent did not appear. December 6, 1963. The Judgment of the Court was delivered by 1/SC1/64 51 802 SARKAR J. This appeal raises a question under the . It was unfortunate that there was no appearance on behalf of the respondent but Mr. Prem appearing in support of the appeal has placed the matter very fairly before us with all the relevant reported decisions from the point of view of both the appellant and the respondent. We are much beholden to him for this assistance. The respondent is the Manager of an oil mill. The mill had a spur gear wheel. A workman of the mill while greasing the spur gear wheel which was then in motion had one of his hands caught in it. Eventually that hand had to be amputated. It appeared that the spur gear wheel bad a cover which had bolts for fixing it to the base but at the time of the accident the cover was not there, having apparently been removed earlier. There is no evidence to show when it was last in position. The respondent was prosecuted under section 92 of the Act for having failed to, comply with section 21(1) (iv) (c). The relevant part of this section is as follows: section 21. (1) In every factory the following namely, . . . . . . . . . . . . (iv) unless they are in such position or of such construction as to be safe to every person employed in the factory as they would be if they were securely fenced, the following, namely . . . . . . (c) every dangerous part of any other machinery, shall be securely fenced by safeguards of substantial construction which shall be kept in position while the parts of machinery they are fencing are in motion or in use: Section 92 of the Act provides as follows: 803 section 92. Save as is otherwise expressly provided in this Act if in, or in respect of, any factory there is any contravention of any of the provisions of this Act the occupier or manager of the factory shall be guilty of an offence and punishable with imprisonment or with fine There is no dispute that a guard had been put over the spur gear wheel and it was a proper guard. It is not contended that if it had been there, then the respondent could be said. to have committed any offence, but it was not there. The workman said that it had been removed by the respondent for repairs while the case of the respondent was that the workman had himself removed it. The learned trial Judge was unable to accept either version and he acquitted the respondent observing that he could not be held liable if the cover was removed by someone without his consent or knowledge. The learned Judges of the High Court when the matter came to them in appeal, referred to a very large number of cases, mostly of the English Courts under the English and a few of our High Courts and from them they deduced the two following principles: (1) Though the obligation to safeguard is absolute under section 21(1)(iv)(c) of the Indian Act, yet it is qualified by the test of foreseeability, and (2) If the 'Safeguard provided by the employer or manager is rendered nugatory by an unreasonable or perverted act on the part of the workman, there is no liability of the employer or manager. With great respect to the learned Judges of the High Court we are unable to appreciate the relevancy of these two principles to the decision of the case in hand. Nor does it seem to us that the learned Judges of the High Court rested their judgment on any of these principles. We, therefore, think it unnecessary to notice the cases mentioned in the judgment of the High Court or discuss the principles to be deduced from them. 804 As the High Court stated, there is no dispute that the spur gear wheel was a dangerous machine within the meaning of section 21(1)(iv)(c). That being so, clearly, there was an obligation to securely fence it and to see that the fence was "kept in position while the parts of machinery they are fencing are in motion or in use". Indeed the fact that the respondent had provided the guard over the machine puts it beyond doubt, as the High Court observed, that the machine was dangerous within the meaning of the section. It was not contended that the risk from the unguarded machine was not a foreseeable risk. No question of the risk not being foreseeable, therefore, arises in this case nor is this put up by way of a defence. The High Court proceeded on the assumption that it had not been proved that the workman had himself removed the guard. We will also proceed on that assumption. The High Court held that in a criminal case an accused was not bound to offer any explanation and if he did and that explanation was not established, that would not justify his conviction for the offence with which he was charged. This is a proposition which it is unnecessary to dispute in the present case. The High Court then observed that section 21(1)(iv)(c) of the Act contemplated a default and that default had to be established by the prosecution. It lastly said that there was nothing in the Act to indicate that the legislature intended that an occupier or manager must always be on the look out to bring to book every offender who removed the safeguard furnished by him or that a failure on his part to do so must entail his conviction. It also observed that the statute did not require that where the occupier or manager had carried out his obligation under the section by providing a proper safeguard, he would be liable if someone else, not known to him, removed it without his knowledge, consent or connivance. It, therefore, held that as in the present case it could not be said that either he or the workman had removed the guard, it followed that someone whom the occupier or the manager could not fix 805 upon had removed it and that was something which the occupier or manager could not reasonably be expected to anticipate and he could not be made liable for such removal. We are unable to accept this view of the matter. No doubt the default on the part of the person accused has to be established by the prosecution before there can be a conviction. It has to be observed that section 21 (1)(iv)(c) requires not only that the dangerous part of a machine shall be securely fenced by safeguards but also that the safeguards "shall be kept in position while the parts of the machinery they are fencing are in motion or in use". We should have thought that the words "shall be securely fenced" suggest that the fencing should always be there. The statute has however put the matter beyond doubt by expressly saying that the fencing shall be kept in position while the machine is working. That is the default that has happened here; the fencing was not there when the machine had been made to work. This is an admitted fact and no question of establishing it arises. Does the mere fact that someone else had removed the safeguard without the knowledge, consent of connivance of the occupier or manager always provide a defence to him? We do not think so. When the statute says that it will be his duty to keep the guard in position when the machine is working and when it appears that he has not done so, it will be for him to establish that notwithstanding this tie was not liable. It is not necessary for us to say that in every case where it is proved that the manager or occupier had provided the necessary fence or guard but at a particular moment it appeared that the fence or guard had been removed, he must be held liable. Suppose the fence for some reason for which the manager or occupier is not responsible, suddenly breaks down and the machine remains unfenced for sometime before the owner or occupier found that out and replaced the fence. It may be that in such a case he cannot be made liable. A statute does 806 not, of course, require an impossibility of a person. But there is nothing to show that is the case here. The respondent has given no evidence whatever to show what he had done to carry out his duty to see that the guard was kept in position when the machine was working. The onus to prove that was on him because his defence depended on it. He has completely failed to discharge that onus. We, therefore, think that he is liable under section 92 of the Act for having failed to carry out the terms of section 21(1)(iv). Section 101 of the Act was referred to as supporting the contention that the liability of an occupier or manager for failure to observe the terms of the Act was absolute and the only defence available to him was that provided by it. In our view, it is unnecessary to deal with that question. It does not arise in the present case, for we find that the respondent had offered no defence whatever, whether under section 101 or otherwise. His only point was that he did not know what happened to the guard and that, in our opinion, is no defence at all. We wish, however, to refer to the section for another purpose. The section states that where an occupier or manager of a factory is charged with an offence punishable under this Act, he shall be entitled to have any other person whom he charges as the actual offender brought before the Court and if he proves to the satisfaction of the Court (a) that he used due diligence to enforce the execution of the Act, and (b) that the said other person committed the offence in question without his knowledge, consent or connivance, then that other person shall be convicted of the offence and the occupier or the manager shall be discharged. It will appear, therefore, that even where the occupier or manager proves that somebody else has removed the fencing without his knowledge, consent or connivance, that alone would not exempt him from liability but he has further to prove that he had used due diligence to enforce the execution of the Act which can only mean, in a case like the present, that he exercised due diligence 807 to see that the fence which under the Act it was his duty to see was kept in position all along had not been removed. It seems to us clear that if it was his duty to exercise due diligence for the purpose in a case where he could establish that somebody else had removed the fence, it would be equally his duty to exercise that diligence where be could not prove who had removed it. If it were not so, the intention of the Act to give protection to workmen would be wholly defeated. For these reasons we are unable to agree with the view of the High Court or the learned trial magistrate. Accordingly we allow the appeal and set aside the judgment of the Courts below and convict the respondent under section 92 for contravening the terms of section 21(1)(iv)(c). We impose on him a fine of Rs.200. In default he shall undergo one week 's simple imprisonment. Appeal allowed.

While greasing the spur gear wheel of an oil mill, one of the hands of a workman got caught and had to be amputated. It appeared that at the time of the accident the cover of the spur gear wheel was not there. The respondent, who is the manager of the mill was prosecuted under section 92 of the for having failed to comply with section 21(1) (iv) (c) of the Act. The workman said that the cover had been removed by the respondent for repairs, while the case of the respondent was that the workman had himself removed it. The trial Judge was unable to accept either version and he acquitted the respondent observing that he could not be held liable if the cover was removed by someone, without his consent or knowledge. On appeal, the High Court affirmed the acquittal. Held: (i) The mere fact that someone else had removed the safeguard without the knowledge, consent or connivance of the occupier or manager does not provide a defence to him. When the statute says that it will be his duty to keep a guard in position while the machine is working and when it appears that he has not done so, it will be for him to establish that notwithstanding this he was not liable. (ii) Even where the occupier or manager could establish that somebody else had removed the fence, he has further to prove that he exercised due diligence to see that the fence, which under the Act was his duty to see was kept in position all along, had not been removed.

Civil Appeal No. 2406 of 1968. From the Judgment and Order dated 13 2 1968 of the High Court of Mysore at Bangalore in R.S.A. No. 477 of 1962. M. section K. Sastri and M. section Narasimhan for the Appellant. B. D. Bal, R. B. Datar and Rajan Yashpal for the respondents 1, 5, 6,10, 11, 17, 19, 23, 25, 26, 27, 35, 36 and 50. The Judgment of the Court was delivered by BHAGWATI, J. This appeal by special leave raises two questions relating to the interpretation of certain provisions of the Bombay Municipal Boroughs Act, 1925. The facts giving rise to the appeal are few and may be briefly stated as follows: The respondents are rate payers liable to pay property tax in respect of their lands and buildings situate within the limits of the erstwhile Municipal Borough of Dharwar now converted into the Hubli Dharwar Municipal Corporation. The Municipal Borough of Dharwar (hereinafter referred to as the Municipal Borough) was at the material time governed by the provisions of the Bombay Municipal Boroughs Act, 1925 (hereinafter referred to as the Act). The Chief Officer of the Municipal Borough prepared an assessment list for the official year 1951 52 containing revised valuation and assessment of the lands and buildings situated within the limits of the Municipal Borough and published it on 1st May, 1951 in accordance with the provisions of the Act. The respondents and several other rate payers filed their objections against the valuation and assessment in the assessment list and consequent on the decisions on the objections, modifications were made in the assessment list and the assessment list so finalised was authenticated on 24th July, 1952. Since the authentication of the assessment list was made after the expiry of the official year, the respondents and other rate payers took the view that the assessment list was void and inoperative and the Municipal Borough was not entitled to recover property tax at the revised rates which were higher than the rates charged in the previous official years. It seems, however, that from a few persons, whose names do not appear in the record property tax in accordance with the revised rates was collected by the Municipal Borough. There was consequently an agitation amongst the rate payers and a body called the Citizens Welfare Association championing the causes of the rate payers addressed a communication dated 30th November, 1952 to the Director of Local Authorities requesting him to direct the Municipal Borough to refund the excess amount of property tax collected from the rate payers, because according to them the levy and collection of property 886 tax at the revised rates was illegal in view of the fact that the assessment list was authenticated only on 24th July, 1952 beyond the expiration of the official year for which the property tax was sought to be levied. The Director of Local Authorities by his reply dated 16th December, 1952 informed the Citizens Welfare Association that the levy of property tax under the authenticated assessment list was, according to him, perfectly valid. The President of the Municipal Borough thereafter issued a public notice dated 10th November, 1954 calling upon the rate payers to "pay immediately all the tax still due from them and extend their full cooperation to the Municipal Borough". Since the Municipal Borough was determined to recover the amount of property tax from the rate payers at the enhanced rates appearing in the assessment list, the respondents, acting for and on behalf of themselves and other rate payers, filed a suit against the Municipal Borough on 6th June, 1955. after giving notice dated 1st April, 1955 on the hypothesis that such notice was required to be given under s 206A of the Act. The main reliefs claimed in the suit were, firstly, a declaration that the Municipal Borough was not entitled to recover property tax from the rate payers at the revised rates since the assessment list was authenticated beyond the expiration of the official year and secondly, an order directing the Municipal Borough to refund the excess property tax recovered by it from the rate payers. The Municipal Borough in its written statement raised a preliminary objection that the suit was barred by limitation since it was not filed within six months of the accrual of the cause of action as required by section 206A of the Act and it also disputed the claim of the rate payers on merits on the ground that there was nothing in the Act which required that the assessment list should be authenticated before the expiration of the official year and that even if the assessment list was authenticated beyond the expiration of the official year, it did not have the effect of invalidating the assessment list. The Trial Court negatived the plea of limitation based on section 206A of the Act and so far as the merits were concerned, held that since the authentication of the assessment list was admittedly made beyond the expiry of the official year, the assessment list was void and inoperative and the Municipal Borough was not entitled to levy and collect property tax at the revised rates on the strength of such assessment list. The Municipal Borough, being aggrieved by this decision, filed an appeal to the District Court, but the appeal was unsuccessful and a second appeal to the High Court also failed. Hence the present appeal by the Municipal Borough with special leave obtained from this Court. The principal contention that was urged before us on behalf of the Municipal Borough was that on a true construction of the relevant provisions of the Act, the authentication of the assessment list, in client to impose liability to tax for the official year even if it is made the official year to which the assessment list relates and it is sufficient to impose liability to tax for the official year even if it is made at any time after the expiry of the official year and, therefore, in the present case, though the authentication of the assessment list for the official year 1951 52 was made on 24th July, 1952 after the expiry of 887 the official year, it was valid and effective and operated to create liability on the tax payers for payment of tax at the revised rates. In order to appreciate this contention it is necessary to examine briefly the scheme of the Act in regard to assessment and levy of property tax. The tascicunus or section from 78 to 89 deals with assessment of and liability to rates of buildings and lands. These sections set out the procedure which must be followed for levy of rates on buildings and lands. Section 78, sub section (1) requires the Chief Officer to cause an assessment list of all lands and buildings in the Municipal Borough to be prepared containing various particulars set out in the section. When the preparation of the assessment list is completed, the Chief Officer is required under section 80 to give public notice of the list and of the place where the list or a copy thereof could be inspected. Simultaneously the Chief Officer has also to give public notice under sub section (1) of section 81 of a date not less than one month after such publication before which objections to the valuation or assessment in such list shall be made. Sub section (2) provides for the mode in which the objections must be made and sub section (3) provides for the hearing and disposal of the objections by the Standing Committee and the proviso to this sub section permits the powers and duties of the Standing Committee to be transferred to another committee or to any officer of the government. This sub section provides that before the objections are investigated and disposed of, the objector shall be given an opportunity of being heard in person or by an agent and it is only after the hearing the objectors that the objections can be disposed of. When the objections are thus considered and disposed of, the assessment list with the modifications which may have been made consequent upon the decisions on the objections has to be authenticated in the manner set out in sub section Sub section (5) provides that the list so authenticated shall be deposited in the Municipal office and shall be open for inspection during office hours to all rate payers. The completion of this procedure leads to certain important consequences and they are set out in sub section (6) which reads as follows: "(6) Subject to such alterations as may be made therein under the provisions of section 82 and to the result of any appeal or revision made under sec. 110, the entries in the assessment list so authenticated and deposited and the entries, if any, inserted in the said list under the provisions of sec. 82 shall be accepted as conclusive evidence (1) . (ii) for the purposes of the rate for which such assessment list has been prepared, of the amount of the rate liable on such buildings or lands or both buildings and land in any official year in which such list is in force. " section 82 then provides for amendment of assessment list in certain cases. This section is rather material and it may be reproduced in full: "82. (1) The standing committee may at any time alter the assessment list by inserting or altering an entry in respect of any property, such entry having been omitted from or 888 erroneously made in the assessment list through fraud, accident or mistake or in respect of any building constructed altered, added to or reconstructed in whole or in part, where such construction, alteration, addition or reconstruction had been completed after the preparation of the assessment list, after giving notice to any person interested in the alteration of the list of a date, not less than one month from the date of service of such notice, before which any objection to the alteration should be made. (2) An objection made by any person interested in any such alteration, before the time fixed in such notice, and in the manner provided by sub section (2) of section 81, shall be dealt with in all respects as if it were an application under the said section. (3) An entry or alteration made under this section shall subject to the provisions of section 110, have the same effect as if it had been made in the case of a building constructed altered, added to or reconstructed on the day on which such construction, alteration, addition or reconstruction was completed or on the day on which the new construction, alteration, addition or reconstruction was first occupied, whichever first occurs, or in other cases, on the earliest day in the current official year on which the circumstances justifying the entry or alteration existed; and the tax or the enhanced tax as the case may be shall be levied in such year in the proportion which the remainder of the year after such day bears to the whole year. " The next important section is section 84 which provides for the adoption of valuation and assessment contained in the assessment list of any particular year for the year immediately following. That section is in the following terms: "84. (1) It shall not be necessary to prepare a new assessment list every year. Subject to the condition that every part of the assessment list shall be completely revised not less than once in every four years, the Chief Officer may adopt the valuation and assessment contained in the list for any year, with such alterations as may be deemed necessary, for the year immediately following. (2) But the provisions of sections 80, 81 and 82 shall be applicable every year as if a new assessment list had been completed at the commencement of the official year. " The other sections in this group are not material and it is not necessary to refer to them. It is clear from the scheme of these provisions that the official year is the unit of time for the levy of the tax. The provisional assessment list is prepared for the official year. This may be done before the commencement of the official year or even thereafter in the course of the official year. Then objections are invited and when made, they are disposed of and amendments consequential upon the 889 decisions on the objections are carried out in the assessment list. The assessment list is then authenticated. The process of assessment and levy of the tax which begins with the preparation of the provisional assessment list is thus completed when the assessment list is authenticated. The assessment list, when authenticated, becomes effective from the first day of the official year and gives rise to the liability to pay tax. It is on the authentication of the assessment list that the liability of the rate payers to pay tax arises and the tax is levied on the rate payers. This position would seem to be clear as a matter of plain interpretation and in any event there is a long line of decisions of the Bombay High Court commencing from Sholapur Municipality vs Governor General(1) and ending has Sholapur Municipal Corporation vs Ramchandra(2) which has consistently accepted this position and the learned counsel appearing on behalf of the Municipal Borough did not dispute the correctness of these decisions. The only contention raised by him was as to within what time the assessment list must be authenticated, if it is to be a valid and effective assessment list. It is to this contention that we must now address ourselves. Now, once we take the view that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate payers, it is difficult to resist the conclusion that the authentication must be made within the official year. The tax, being a tax for the official year, must obviously be levied during the official year and since the levy of the tax is complete only when the assessment list is authenticated, it must follow a fortiori that the authentication on the making of which alone the levy of the tax is effected, must take place in the official year. Any other view would result in an anomalous and rather absurd situation, namely, that the tax for an official year would be leviable at any time, even years after the expiration of the official year. That could not possibly have been intended by the legislature. That would indeed be a strange consequence in case of a tax which is annual in its structure and organisation and which is intended to be levied for each official year. But, apart from this consideration, there is inherent evidence in the sections themselves which shows that the authentication was intended by the legislature to be a step which must be taken before the close of the official year. Section 84 provides that it shall not be necessary to prepare a new assessment list every year but, subject to the conditions that every part of the assessment list shall be completely revised not less than once in every four years, the Chief Officer may adopt the valuation and assessment contained in the list for any year, with such alterations as may be deemed necessary, for the year immediately following. This provision postulates that there would be an assessment list for each official year at the close of that official year, so that the valuation and assessment contained in it can be adopted by the Chief Officer for the immediately following year. Now clearly the assessment list which can be adopted for the immediately following year 890 is the authenticated assessment list and it would, therefore, seem that the legislative assumption underlying this provision is that in respect or each official year, there would be an authenticated assessment list before the close of that official year, so that the valuation and assessment contained in it can be adopted by the Chief Officer for the immediately following year. Otherwise, it would not be possible for the Chief Officer to adopt the valuation and assessment of the preceding official year and he would have to prepare a new provisional assessment list every time when the assessment list for the preceding year is not finalised and authenticated and this might lead to the rather startling result of there being several provisional assessment lists for different official years in the process of finalisation at the same time. We should be slow to accept an interpretation which might lead to such a strange consequence. Then again considerable light on this question is thrown by the provision enacted in section 82. It is a well settled rule of interpretation that the Court is "entitled and indeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act. " The statute must be read as a whole and every provision in the statute must be construed with reference to the context and other clauses in the statute so as, as far as possible, to make a consistent enactment of the whole statute. Obviously, therefore, section 78 to 81 must be so construed as to harmonise with section 82. They must be read together so as to form part of a connected whole. Section 82, sub section (1) provides for making of an amendment in the assessment list by insertion or alteration of an entry in certain events after hearing objections which may be made by any person interested in opposing the amendment. Sub section (3) of section 82 makes the amendment effective from "the earliest day in the current official year on which the circumstances justifying the entry or alteration existed. " The expression 'current official year ' in the context in which it occurs in section 82, sub section (3) clearly signifies the earliest day in the official year which is current when the amendment in the assessment list takes place and that expression refers only to the official year which is running at the time when the amendment is made by insertion or alteration of an entry under sub section (1) of section 82. It would, therefore, seem clear, on a combined reading of sub sections (1) and (3) of section 82, that an amendment, in order to be effective in levying tax for an official year, must be made during the currency of the official year. That is now well settled as a result of several decisions of the Bombay High Court culminating in the Full Bench decision in Sholapur Municipal Corporation vs Ramchandra (supra) and we do not see any reason to take a different view. Now the scheme of sections 78 to 81 is identical with that of section 82 and in both cases what is contemplated first is a proposal to which objections are invited and after the objections are investigated and disposed of, the assessment list in the one case and the altered entry in the other are authenticated giving rise to liability in the rate payer. It must follow a fortiori that if an alteration in the assessment list, in order 891 to fasten liability on the rate payer, is required to be made during the currency of the official year, equally, on a parity of reasoning, the assessment list, in order to give rise to liability in the rate payer, must also be authenticated before the expiry of the official year. Moreover, it is difficult to behave that the legislature did not intend that there should be any time limit in regard to the levy of tax for an official year and that the tax should be legally leviable at any time after the close of the official year. There is, in our opinion, sufficient indication in the various provisions of the Act to show that the authentication of the assessment list, in order to be valid and effective, must be made within the official year, though the tax so levied may be collected and recovered even after the expiry of the official year. We may point out that the Karnataka High Court is not alone in taking this view the present case. This view has been consistently taken by the Bombay High Court in a series of decisions over the years and it has also been followed by the Gujarat High Court. When we find that three High Courts having jurisdiction over the territories in which the Act is in force have all taken this view over a course of years, we do not think we would be justified in departing from it, merely on the ground that a different view is possible. This Court is ordinarily loathe to interfere with the interpretation of a State statute which has prevailed in the State for a long number of years and which the State Legislature has chosen not to disturb by legislative amendment. As a matter of fact, we find that, in the present case, the Bombay Legislature accepted this interpretation of sections 78 to 81 and gave legislative recognition to it by introducing section 84A by Bombay Act 53 of 1954. That section provides that where in any year a new assessment list is prepared, or a list is revised, or the valuation and assessment contained in the list for the year immediately preceding is adopted with or without alteration, such new, revised or adopted assessment list shall be authenticated in the manner provided by section 81 at any time not later than the thirty first day of July of the official year to which the list relates, and if it is not so authenticated, then the State Government shall appoint such person or persons as it thinks fit to prepare, revise or adopt and authenticate the assessment list, and thereupon such person or persons shall duly authenticate such list at any time before the last day of the official year to which such list relates, and sections 78 to 81 or section 84 shall, as far as may be, apply to the preparation, revision or adoption of the list, as the case may be, by the person or persons appointed by the State Government. It is clear from this provision that the Legislature not only did not amend the Act for the purpose of removing the time limit of the official year or enlarging such time limit, but on the contrary, made the time limit more stringent by providing that the authentication shall be made by the Municipal Borough not later than 31st July of the official year and if the authentication is not made within that time, the State Government shall be entitled to appoint a person for the purpose of authenticating the assessment list and the authentication by such person shall not. in any event, be later than the last day of the official year. We are, therefore, of the view that the assessment list, in order to be effective in levying the tax, not be authenticated before the expiry of the official year and if it is not, the assessment list would be void and inoperative and not give rise to liability in the rate payers to pay tax. 892 That takes us to the second contention urged on behalf of the Municipal Borough based on section 206A. That section provides inter alia that no suit shall lie against a municipality or against any officer or servant of any municipality in respect of any act done in pursuance or execution or intended execution of the Act, or in respect of any alleged neglect or default in the execution of the Act, unless it is commenced within six months next after the accrual of the cause of action. The argument of the Municipal Borough was that the cause of action for the suit arose in favour of the respondents and other rate payers on 24th July, 1952 when the assessment list was authenticated and since the suit was not filed within six months from that date, it was barred by limitation under s.206A. This argument is plainly unsustainable. The assessment list being authenticated on 24th July, 1952, after the expiry of the official year 1951 52, was void and inoperative and the respondents and other rate payers were entitled to ignore it as a nullity. It is only when the Municipal Borough sought to recover the amount of tax from them on the strength of the assessment list, that it became necessary for them to challenge the validity of the assessment list with a view to resisting the demand of the Municipal Borough. Then and then only could a cause of action be said to have accrued to them which they were required to enforce within a period of six months. Now, in the present case, there is no material to show as to when notices of demand requiring the respondents and other rate payers to pay the amount of tax were issued by the Municipal Borough or which rate payers paid the amount of tax and when. It is not possible to say, in the absence of such material, as to when the cause of action for filing the suit arose to the respondents and other rate payers and whether it arose within six months before the filing of the suit or at a point of time earlier than that. The Municipal Borough cannot, in the circumstances, be held to have established that the suit was not commenced by the respondents and other rate payers within six months after the accrual of the cause of action and the plea of limitation based on section 206A must fail. We are, therefore, of the view that there is no substance in the appeal and it must be dismissed, but in the peculiar circumstances of the case, we make no order as to costs. V.P.S. Appeal dismissed.

The scheme of Ss. 78 to 84 of the Bombay Municipal Boroughs Act, 1925, shows that the official year is the unit of time for the levy of rates on buildings and lands. Under these provisions the provisional assessment list is prepared for the official year, either before the commencement or in the course of the official year, objections are invited, and amendments consequential upon the decisions on the objections are carried out in the list. The assessment list is then authenticated. The process of assessment and levy of tax which begins with the preparation of the provisional assessment list is thus completed when the assessment list is authenticated. The assessment list, when authenticated, becomes effective from the first day of the official year and gives rise to the liability or the rate payers to pay the tax levied. [889 C] For the assessment year 1951 52, the appellant followed the procedure but the authentication was on July 24, 1952, after the expiry of the official year on March 31, 1952. Since property tax in accordance with the revised rates was sought to be levied, the respondents filed a suit for a declaration that the appellant was not entitled to recover any property tax at the revised rates. The suit was decreed and the decree was affirmed by the High Court. In appeal to this Court, it was contended that, (1) the authentication of the assessment list in order to be valid and effective, need not be made before the expiry of the official year to which the assessment list relates; and (2) the suit was barred under section 206A of the Act. Dismissing the appeal, ^ HELD: (1) The assessment list in order to be effective in levying the tax must be authenticated before the expiry of the official year and if it is not, the assessment list would be void and inoperative and would not give rise to any liability in the rate payers to pay tax. [891 H] (a) Once the view is taken that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate payers, it follows that the authentication must be made within the official year. The tax being a tax for the official year must obviously be levied during the official year and since the levy of tax is complete only when the assessment list is authenticated it must follow a fortiori that the authentication must take place in the official year. Otherwise, the tax for an official year would be leviable at any time, without any time limit, even years after the expiration of the official year, which could not have been the intention of the legislature, since it is an annual tax intended to be levied for each official year. [889 D F] (b) Section 84 provides that it shall not be necessary to prepare a new assessment list every year but subject to the condition of revision once in every four years, the Chief Officer may adopt the assessment list for any year, with necessary alterations for the year immediately following. The provision 884 postulates that there would be an assessment list, that is, the authenticated assessment list, for each official year before the close of that official year so that it can be adopted by the Chief Officer for the immediately following year. Otherwise, he would have to prepare a new provisional assessment list every time when the Assessment List for the preceding year is not finalised and authenticated, and this might lead to the starting result of there being more than one provisional assessment list in the process of finalisation at the same time. [889 G 890 C] (c) In interpreting a provision of a statute the court is entitled and indeed bound to consider any other parts of the Act which throw light on the intention of the legislature. The statute must, therefore, be read as a whole and every provision in it must be construed with reference to the context and other clauses so as, as far as possible, to make a consistent enactment of the whole statute. Section 82(1) provides for making of an amendment in the assessment list by insertion or alteration of an entry in certain events, after hearing any objections to the amendment, Section 82(3) makes the amendment effective from 'the earliest day in the current official year in which the circumstances justifying the entry or alteration existed. ' The expression clearly signifies the earliest day in the official year which is current when the amendment in the assessment list takes place, that is, the official year which is running at the time when the amendment is made by insertion or alteration of an entry. Therefore, a combined reading of section 82(1) and (3) shows that an amendment, in order to be effective in levying tax for an official year, must be made during the currency of the official year. The scheme of sections 78 to 81 is identical with section 82 and in both cases what is contemplated first is a proposal to which objections are invited and after the objections are investigated and disposed of, the assessment list in one case, and the altered entry in the other, are authenticated, giving rise to liability in the rate payer. It must follow a fortiori that if an alteration in the assessment list in order to fasten liability on the rate payer, is required to be made during the currency of the official year equally, the assessment list, in order to give rise to liability in the rate payer, must also be authenticated before the expiry of the official year. [890 C 891 B] Sholapur Municipality vs Governor General, 49 Bom. L.R. 752 and Sholapur Municipal Corporation vs Ramchandra 74 Bom. L.R. 489 referred to. (d) Three High Courts having jurisdiction over the territories in which the Act is in force have all taken this view over a course of years and this Court will not be justified in departing from it, merely on the ground that a different view is possible. This Court is ordinarily loathe to interfere with the interpretation of a State statute which has prevailed in the State for a long number of years and which the State Legislature has chosen not to disturb by legislative amendment. [891 C D] (e) In the present case, the Bombay Legislature has accepted the interpretation of sections 78 to 81 by the three High Courts and given legislative recognition to it by introducing section 84A by Bombay Act 53 of 1954. This provision makes it clear that the legislature not only did not amend the Act for the purpose of removing the time limit of the official year as interpreted by the High Courts or enlarging such time limit, but on the contrary, made the time limit more stringent by providing that the authentication shall be made by the Municipal Borough not late than July 31, of the official year, and that if the authentication is not made within that time, the State Government shall be entitled to appoint a person for the purpose of authenticating the assessment list and that the authentication by such person shall not, in any event, be later than the last day of the official year. [891 D H] (2) Section 206A provides, inter alia, that no suit shall lie against a municipality in respect of any act done in pursuance of execution or intended execution of the Act unless it is commenced within 6 months next after the accrual of the cause of action. It could not, however, be contended that the cause of action for the suit in the present case arose in favour of the respondents and other rate payers on July 24, 1952, when the list was authenticated and that the suit, not having been filed within 6 months of that date, is barred. The assessment list in the present case was authenticated after the expiry of 885 the official year and was void and inoperative and the respondents and other rate payers were entitled to ignore it as a nullity. Their cause of action arose only when the appellant sought to recover the amount of tax from them on the strength of that assessment list. In the absence of material to show when the notices demand requiring the respondents and other rate payers to pay the amount of tax were issued, or which rate payers paid and when it is not possible to say whether the cause of action for filing the suit arose to the respondents within six months before the filing of the suit or earlier. [892 A E]

ION: Criminal Appeal No. 120 of 1961. Appeal by special leave from the judgment and order dated March 17, 1961 of the Punjab High Court in Criminal Writ No. 2 of 1961. WITH Petition No. 147 of 1961. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. The appellant/petitioner in person. H. section Doabia, Additional Advocate General, Punjab, Gopal Singh and P. D. Menon. for respondent (in the appeal and the petition.) 1961. November 2. 'The Judgment of Sinha, C. J., Subba Rao, Shah and Mudholkar, JJ, was delivered by Subba Rao, J. Dayal, J. delivered a separate Judgment. SUBBA RAO, J. Both these matters are connected and raise the same questions, and they may be disposed of together. Ranbir Singh Sehgal, the petitioner in the writ petition, is now a prisoner in the Central Jail Ambala, in the State of Punjab. He was prosecuted for committing offence in different places. On June 13, 1961, he was convicted by the Additional District Magistrate, Ambala, under section 5 of the Indian Explosive Substances Act and sentenced to 298 5 years rigorous imprisonment and to pay a fine of Rs. 2,000/ . The petitioner has preferred an appeal against the said conviction and sentence, and the said appeal is now pending the High Court of Punjab. On January 30, 1961, the Additional Sessions Judge (II), Ambala, convicted the petitioner under sections 120 B and 399 of the Indian Penal Code and sentenced him to 7 years rigorous imprisonment and a fine of Rs. 2,000/ under the former section, d to 5 years rigorous imprisonment and a fine of Rs. 2,000/ under the latter section. The petitioner preferred an appeal against this conviction and sentence to the High Court of Punjab and the same is now pending there. The other eases are not disposed of and they are still pending in various courts. The petitioner was arrested by the Ambala, police on September 11, 1958, and was detained in police custody for a period of about 8 months, and on May 7, 1959, he was transferred to judicial custody at Ambala. On June 13,1960, he was convicted under the Indian Arms Act, and from that date he is in the Central Jail, Ambala,, as a convicted prisoner. On December 15, 1960, the Governor of Punjab ordered that the petitioner should be treated as a 'B ' class prisoner. On February 9, 1961, he filed a petition under article "26 of the Constitution in the High Court of Punjab at Chandigarh, questioning inter alia his confinement in that prison on the ground that para. 575 of the Punjab Jail Manual where under he was confined to a separate cell in the prison, offended article 14 of the Constitution, and that in fact discriminatory treatment was meted out to him not for the maintenance of discipline but for extraneous reasons. That petition was dismissed by the said High Court on March 17, 1961, and Criminal Appeal No. 120 of 1961 was filed against the said order by special leave granted by this Court. That apart he also filed the present writ petition (Writ Petition No. 147 of 1961) in this Court under article 32 of the Constitution covering the same ground. The prisoner 299 argued his own case. He raised before us two points, namely, (1) para. 575 of the Punjab Jail Manual offends article 14 of the Constitution in as much as it confers arbitrary power on the Superintendent of Jail to deal with a prisoner under the colour of the said provision in a brutal way circumventing other stringent provisions of the Prisons Act and other paragraphs of the Punjab Jail Manual conceived in the interest and fair treatment of prisoners, (2) the Superintendent of Jail, for extraneous reasons on the pretext of disciplinary action, gave him solitary confinement in a cell since the date he was transferred to that Jail, and thus acted with mala fide. that apart, he discriminated him in the matter of treatment from other prisoners and even from the co accused, who were convicted along with him, and thus offended article 14 of the Constitution. The first question falls to be decided on the relevant provisions of the Indian Penal Code, the Prisons Act, and the Punjab Jail Manual. There are three types of punishment, namely, (i) solitary confinement,(ii) cellular confinement, and (iii) separate confinement. Solitary Confinement means such confinement with or without labour as entirely secludes the prisoner both from sight of, and communication with, other prisoners. The punishment of solitary confinement can be imposed by a Court only, and, in view of its dangerous potentialities stringent conditions are imposed thereon. No person can be sentenced to undergo solitary confinement for more than three months. There is a limit prescribed on the punishment of solitary confinement that can be imposed on a prisoner: it shall not exceed (a) one month, if the term of imprisonment does not exceed six months, (b) two months, if the term of imprisonment exceeds six months, but does not exceed one year, and (c) three months if the term exceeds one year: (vide section 73 of the Indian Penal Code). Section 74 of the Indian Penal Code says, 300 In executing a sentence of solitary confinement, such confinement hall in no case exceed fourteen days at a time with intervals between the periods of solitary confinement of not less duration than such periods, and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods. " Section 29 of the Prisons Act reads, "No cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with an officer of the prison, and every prisoner so confined in a cell for more than twenty four hour, whether as a punishment or otherwise, shall be visited at least once a day by the Medical officer or Medical Subordinate." Cellular confinement is a punishment which can be imposed on a prisoner by a Superintendent of Jail. A Superintendent of Jail can punish in a suitable case a prisoner by imposing on him cellular confinement for a period not exceeding fourteen days, provided that after each period of cellular confinement an interval of not less than such period must elapse before the prisoner is again sentenced to cellular or solitary confinement. Cellular confinement in defined to mean such confinement with or without labour as entirely secludes a prisoner from communication with, but not from sight of, other prisoners. Separate confinement is defined to mean such confinement with or without labour as secludes a prisoner from communication with, but not from sight of, other prisoners, and allows him not less than one hour 's exercise per diem and to have his meals in association with one or more 301 other prisoners. Separate confinement for a period not exceeding three months can be imposed on prisoner in a suitable case by the Superintendent of Jail. (Vide section 46(8) of the Prisons Act). Section 47 of the Prisons Act prohibits the combination of cellular confinement with separate confinement so as to prolong, the total period of seclusion to which a prisoner shall be liable. Solitary confinement can he given only by a court and the other two by a Superintendent of Jail for jail offences. The provisions conceived in the interest of the physical, moral and mental health of prisoners impose stringent conditions in carrying out those sentences in order to prevent their abuse. But in the interest of maintaining discipline among the inmates of jail, the Prisons Act and the Jail Manual prescribe rules for a separation of prisoners. The separation of prisoners depends upon the nature of the prisoner, the class to which he belongs and the availability of adequate number of cells. Section 27 of the Prisons Act provides that, (1) in a prison containing female as well as male prisoners, the females shall be imprisoned in separate buildings, or separate parts of the same building, in such manner as to prevent their seeing, or conversing or holding any intercourse with the male prisoners (2) in a prison where male prisoners under the age of twenty one are confined, means shall be provide for separating them altogether from the other prisoners and for separating those of them who have arrived the age of puberty from those who have not (3) unconvicted criminal prisoners shall be kept apart from convicted Criminal prisoners; and (4) civil prisoners shall be kept apart from criminal prisoners. Section of the said Act says, "Subject to the requirements of the last foregoing section, convicted criminal prisoners may be confined either in association or 302 individuals in cell or partly in one way and partly in the other". Presumably in exercise of the power conferred on the State Government by section 59 of the Prisons Act, certain rules were framed for the separation of prisoners and they are contained in the Jail Manual. Under para. 571 of the Jail Manual, 'shall convicts shall, so far as the requirements of labour and the cell accommodation of the Jail will allow, be kept separate both by day and by night. " Paragraph 572 deals with the occupation of vacant cells, and para. 573 says that " 'convicts of the habitual class shall be subjected to the system of separation prescribed in the preceding rules, in rotation. " Paragraph 574 provides. If, at any time, there are more cells in any jail than suffice for the separation of all convicts of the habitual class, prisoners of the casual class shall be confined in cells, both by day and night, in rotation. " Then comes the impugned provision, namely, para. 576, which reads: "A convict who would ordinarily came under the operation of any of the preceding rules relating to the separation of prisoners, but cannot be confined in a cell by day, by reason that he is required for some jail service, shall be confined in a cell by night. " There rules, along with the provisions of the Prisons Act, form an integrated scheme conceived for the maintenance of discipline of prisoners, and the preferential treatment in the allotment of cells is based upon sex, age, nature of the crime committed and the nature of the prisoners, and also the availability of cells. The question is whether para. 575 of the Jail Manual offends Act. 14 of the Constitution. The said provision is only in a group of rules providing for the separation of prisoners and it only says that if a prisoner to whom any of the prison rules 303 applies cannot be confined to a cell by day shall be confined in a cell by night. It pre supposes that the prisoner concerned belongs to the category to whom a separate cell is allotted and, by reason of his being required for jail service, cannot be confined to the cell by day: in such a case it says that he shall be confined to the cell by night. It is only a rule providing for a contingency when a prisoner who should be so confined in a cell both by day and night cannot be confined by day in such a cell. But the objection may be taken to mean that the other rules, along with this rule enable a Superintendent of Jail to put a prisoner in a cell offends article 14 of the Constitution. It is settled law that article 14 of the Constitution permits classification, and the said classification must bear just and reasonable relation to the object of the legislation. The object of the said provision is to maintain discipline among the inmates of jail. The classification is made on the basis of sex and the nature of the prisoners and also on the availability of cells. The classification has certainly a reasonable relation to the object sought to be achieved by the legislation nor can the power conferred on the Superintendent to separate prisoners be said to be arbitrary. The object of the conferment of the said power is very limited, and the provisions clearly lay down the conditions for separation. The power to separate is entrusted to the highest officer in the jail premises, who may ordinarily be expected to not reasonably, objectively and without bias. In these circumstances, we must hold that para. 575 of the Jail Manual in it setting does not offend the provisions of article 14 of the constitution. The next question is whether in purported exercise of the said power the Superintendent in the present case acted with mala fide and meted out discriminatory treatment to the petitioner and thus offended article 14 of the constitution the 304 affidavit filed in the Writ Petition, the petitioner made certain allegations against the Superintendent in respect of his treatment in jail. The said allegations may be summarized thus: The petitioner was transferred to the judicial custody at the Central Jail Ambala, on May 7, 1959, after protracted police custody of over eight months. On the very day of his arrival in the Jail, the petitioner was looked up in solitary confinement in a cell in the condemned prisoners block and lock up period of 24 hours inside the cell was clamped." Though several representations were made by the relatives of the petitioner to the higher authorities, no redress was given to him. He was sought to be kept in the cell for 13 months till June 13, 1 when he was convicted in one of the cases filed against him. On June 14, 1960, the Superintendent of the Jail again ordered the petitioner to be looked up in complete solitary confinement under para. 575 of the Punjab Jail Manual, and again a confinement of 24 hours inside the cell was "clamped". On December 15, 1960, the Governor of Punjab ordered that the petitioner should be treated as a 'B ' class prisoner, and even thereafter he was not transferred to the general ward of the prison where others ' class prisoners were kept confined, but he was kept in the same condemned prisoners wards Though the look up period of 24 hours inside the cell was considerably reduced the ban imposed on his association with other prisoners had not been relaxed. The petitioner was not allowed even to meet his co accused who were in the general ward of the prison. While the other prisoners in the jail including the petitioner 's co accused were given numerous facilities i.e. of association work and recreation he was completely segregated in a cell without any such facilities. The jail authorities adopted this method of torture for ulterior purposes, 305 The Superintendent of the Jail filed a counter affidavit. His answer to the grave allegations may be stated thus: on the very day of his arrival in the jail the petitioner behaved rudely and impertinently towards the jail staff and in a defiant way tried to undermine jail discipline. he was not kept in solitary cell for ulterior motives. He committed 12 jail offences and he was punished for them. After he was convicted he was put in a separate cell and that he was allowed one hour in the morning and one hour in the evening for exercise and also to have his bath outside the courtyard. After he was classified as a 'B ' class prisoner, he was given amenities to which a 'B ' class prisoner was entitled under the rules, but in the interest of jail discipline he was segregated from other prisoners. The cell in which the petitioner was kept was one of the cells in block of 32 cells out of which only were allocated for condemned prisoners and the rest were utilized for separate confinement for the segregation of hardened and troublesome convicted criminal prisoners. The petitioner was confined in the cell only for the night and he could move about in the open compound of the cell throughout the day. The affidavit and the counter affidavit disclose the following admitted facts: The cell in which the petitioner was and is confined is one of the cell in the block of 32 cells out of which 8 cells are used for condemned prisoners. The cell has a small separate enclosure of its own. From the date the petitioner entered the prison, that is, on May. 7, 1959, till he was convicted, that is, on June 13, 1960, when he was an under trial prisoner, he was separately confined to a cell. though the superintendent vaguely says that the petitioner was not looked up in a solitary cell, he practically admits that the petitioner was given separate confinement in a cell as punishment for jail offences committed by him. Though he 306 denies that the petitioner was kept in a cell for 24 thee hours, he does not say what facilities were provided for him to move about or mix with other prisoners. The statement of offences committed by the J. petitioner and the punishments inflicted on him filed by the Superintendent does not contain any details and is thus vague. Section 12 of the Prisons Act enjoins on a Superintendent to maintain a punishment book, and section 51 thereof requires him to enter the details therein. But the statement before us does not strictly comply with that section and it is represented in court that no other register is maintained in the jail. The statement, vague as it is, shows that even on the first day of imprisonment, the petitioner was kept in a separate cell and the offence alleged to have been committed by him is that he was rude and impertinent. The subsequent entries show that the petitioner attempted to break articles and even struck his head against wall or door. These acts of the petitioner appear to us to be more due to the effect of the inhuman and discriminatory treatment given to him even when he was an under trial prisoner rather than a conscious attempt on his part to commit any jail offences. Be that as it may, we are not concerned at this stage whether the petitioner had committed those offences, for those were committed at a time when he was an under trial prisoner with which we are not now directly concerned. The facts remain that even as an under trial prisoner from the date he entered the premises of the jail, he was segregated from other prisoners and kept in a separate cell. Now coming to the second period, that is, the period commencing from the date he was convicted till he was classified as a 'B ' class prisoner, that is from June 14 1960 to December 15, 1960, the petitioner alleges that he was kept in solitary confinement as before throughout 24 hours of the day. In the counter affidavit of the Superintendent 307 it is not denied that the petitioner was kept in a separate cell, but it is stated therein that he was given one hour in the morning and one hour in the evening for exercise and also he was allowed to have his bath outside the courtyard of the cell. The Superintendent does not state that he allowed the petitioner to communicate with others or to talk to other prisoners. It is not stated whether he was allowed for exercise to go out of the separate enclosure of the cell or whether he was allowed to mix up with other prisoners or to talk to them. During this period, the petitioner did not commit any jail offences and, therefore, his separate confinement in a cell could not be a punishment for an offence, but only for the maintenance of discipline in the jail and for convenience of accommodation. There is nothing on the record to suggest that he was guilty of any indiscipline during this period. If so, his confinement in a separate cell for a period of six months without allowing`him to communicate with others is a punishment of either cellular confinement, separate confinement or solitary confinement. The restrictions imposed on the prisoner on the pretext of separate allotment of a cell ignored even the limitations on the said confinements prescribed by section 73 of the Indian Penal Code or section 46 of the Prisons Act. The confinement of the prisoner in a separate cell in the manner it was done was certainly illegal. Coming to the third period after he was classified as a 'B ' class prisoner, the petitioner says that he was kept in the same condemned prisoners ' book with the exception that the look up period of 24 hours inside the cell was considerably reduced, but the ban imposed on his association with other prisoners was not relaxed. The Superintendent does not say that the petitioner was allowed to communicate or to speak with other prisoners. He also admits that the petitioner was continued to the 308 cell only in the night and that he can move about within the open compound of the cell throughout the days to put it in other words, the Superintendent admit that the petitioner is confined in a cell J. with a small separate enclosure and that the prisoner can only move in that enclosure in the morning. This kind of confinement is either a solitary confinement or cellular confinement, for it secludes the prisoner from communicating with or from the sight of other prisoners. If it is not a solitary confinement, it would certainly be a cellular confinement. Even in a separate confinement as a punishment the prisoner should be allowed to have one hour 's exercise per diem and to have his meals in association with one or more prisoners. The Superintendent therefore, acted illegally in confining the prisoner in the manner he did, and he is not entitled to do so under the rules prescribed for separation of prisoners. It may also be mentioned that during this period, there is no allegation that the petitioner 's conduct was otherwise bad. It is said that the confinement is neither solitary, cellular or separate, for he is allowed to go to courts. The fact that a prisoner is to be sent to a court on summons has no bearing on the question whether the confinement is legal or not. On the facts disclosed in the case, we have no doubt that, for one reason or other, which is not clear from the record, the petitioner was discriminated from other prisoners and, under the colour of the rules for separation, was illegally confined in a manner not authorized by law. Before closing we would like to make some general remarks. The modern development of criminology has revolutionized the system of treatment of convicted prisoners. The old brutal treatment has given place to more humane one. The concept of vengeance by society and of the deterence is fast disappearing and is being replaced by the concept of correction and rehabilitation. 309 Though our jail administration is moving with times, it is not keeping pace with advanced countries. A statute may reflect the modern trend and may contain salutary provisions for fair treatment of prisoners; but in practice much depends upon the Superintendent, who is expected to implement them in the spirit in which they are conceived. A superintendent of a jail may be a good disciplinarian, but it is not enough: he should also be a humanitarian possessing conscience and having an awareness that to his care is entrusted an abnormal class of society deserving more a sympathetic approach and sincere attempt at rehabilitation than that of vindictiveness. In this case, the Superintendent, as we have already stated, not only did not carry out the spirit of the rules but also broke the letter of the law and illegally placed the petitioner practically in solitary confinement from May 7, 1959 up to date. In the result we hold that the confinement of the petitioner in a separate cell in the manner it is being done in this case is illegal and we direct the respondent to confine the petitioner in the prison in strict compliance with the provisions of the Prisons Act and the rule made thereunder. It is for the Government to consider, in the circumstances of this case, whether it is a fit case for transferring the petitioner to some other jail. Writ Petition No. 147 of 1961 is allowed to the said extent, and there will be a similar order in criminal Appeal No. 120 of 1961. RAGHUBAR DAYAL, J. I have had the advantage of perusing the judgment prepared by my learned brother, Subba Rao J., and agree with him that paragraph 575 of the Punjab Jail Manual does not offend the provisions of the Constitution. I however do not agree that there had been any illegal confinement of the appellant. 310 The appellant was admitted to the jail as an undertrial prisoner for offences under section 19 of the Indian Arms Act and under section 5 of Indian Explosive Substances Act and the allegation was that he was concerned in a conspiracy with others to muder certain persons and to create disorder and anarchy in India. He behaved rudely and impertinently on admission into jail and showed a defiant attitude. In there circumstances, according to the affidavit of the Superintendent of the Jail, the appellant was ordered to be kept in cell under paragraph 569 A of the Jail Manual to maintain jail discipline. The entry in the punishment register, in this connection, states in the column meant for noting the offences: 'He is very rude and impertinent. He has defiant attitude and tries to undermine the jail discipline. ' I am of opinion that it was not necessary for the jail authorities to make a more detailed note in the register with respect to the various acts committed or words spoken by the appellant on the occasion. Section 51 of the Prisons Act provides what is to be recorded in this punishment book and requires to be recorded, among other matters, the prison offence of which the prisoner is guilty. It does not require a detailed account of the actions of the prisoner which constituted the prison offences. The description of the offences committed, suffices for the purpose of this register. The entry is not made for the purpose of adjudication of the offences or for the purposes of the appellate authority, if any. It is just a record of the conduct of the accused and the action taken. The Superintendent, in this case, did not inflict any punishment of solitary confinement or separate confinement on the appellant for his conduct. He simply ordered that the appellant be kept in a cell under paragraph 469 A of the Jail Manual. There had been eleven other occasions when the appellant committed prison offences. Those 311 offences and the action taken there are also mentioned in the punishment register and a copy of those entries has been filed in Court. What I have said in connection with the nature of the entry in connection with the incident on the day of admission, applies equally to the other entries mentioned above. The Superintendent has denied the allegations made by the appellant that he was kept in a separate cell, not in the interests of the jail discipline, but for ulterior motives or under orders of a vindictive Government. There is no material on the record to suggest that the Superintendent of the jail was actuated, in passing the order for keeping the appellant in a separate cell, by any consideration other than that of the interests of jail discipline. Therefore, the mere fact that the appellant was kept in a separate cell from the moment of his admission in jail does not indicate malafides on the part of the jail Superintendent. The appellant was kept segregated in a separate cell after his conviction as well, in view of paragraph 575 of the Jail Manual. He was allowed an hour in the morning and an hour in the evening for exercise. He was allowed to have a bath in the court yard outside the cell. The fact that the Superintendent did not state in his affidavit that he allowed the petitioner to communicate with others or to talk to other prisoners or that the appellant was allowed to mix up with other prisoners or to converse with them, does not necessarily mean that he disallowed any such thing or that, if he did so, the Superintendent acted against rules of law. The Superintendent denied that the appellant 's request to meet Hari Das was disallowed. There is no allegation that he had not been afforded the facilities which are to be provided to a prisoner or to a B class prisoner kept in a cell and therefore there was no occasion for the Superintendent to state about matters not complained of. 312 The mere fact that a person is kept in a separate cell will not make his confinement solitary, cellular or separate, though the difference between it and any of them be not appreciable. Section 27 of the prisons Act provides for separation of prisoners. If there happens to be only one prisoner of a particular category, he is necessarily to be kept separate from others. His being kept alone from other prisoners and his not being allowed to mix with other prisoners will not be called solitary or cellular or separate confinement. It is just an incident that he happens to be the only prisoner of a particular category and had therefore to be kept separated from all other prisoners in the jail. Section 28 allows convicted criminal prisoners to be confined either in association or individually in cells or partly in one way and partly in the other. The discretion is with the Superintendent of the Jail. The Act contemplates an individual prisoner to be kept in a cell. It is clear from the provisions of paragraphs 571 to 575 of the Jail Manual that the rules contemplate convicted prisoner to be kept separate. Paragraph 571 of the Jail Manual provides that all convicts, subject to cell accommodation and requirements of labour, be kept separate both by day and by night, and justifies the segregation of the appellant as a convicted criminal in a separate cell. Paragraphs 572, 573 and 574 lay down the order in which convicted prisoners are to be selected for being kept separate in cells when each of them cannot be so kept. All these provisions are consistent with what is enacted in section 28 of the Prisons Act. Paragraph 575 reads: "A convict who would ordinarily come under the operation of any of the preceding 313 rules relating to the separation of prisoners, but cannot be confined in a cell by day, by reason that he is required for some jail service, shall be confined in a cell by night. Note 1 Separation under paragraphs 571 to 575 is distinct from 'solitary ' confinement and 'separate ' confinement inflicted as a punishment under section 46 of the Prisons Act, and is restricted merely to the separation of individual prisoners either by day or night for purposes of jail management; such separation is not to have any irksome conditions attached to it. Note 2 Paragraphs 571 to 575 are of general application. If, in the opinion of the Superintendent, the presence of any convict in association with others, is detrimental to good order and discipline or is likely to encourage or lead to the commission of any offence, such convict should be kept separate, in preference to others of his class. " These provisions provide an exception to the provisions of paragraphs 571 to 574 and allow the convicted prisoner to be kept in a cell during night only instead of both by day and by night, in case he cannot be confined in the cell by day for reasons that he be required for jail service. Note 1 makes it clear that keeping prisoners separate in view of the provisions of paragraphs 571 to 575 is not 'solitary ' or 'separate ' confinement which can be inflicted as punishment and is merely separation of the prisoner for purposes of jail management. Further, Note 1 enjoins that no irksome conditions be attached to such separation. We are not shown that any such conditions were attached to the order for keeping the appellant in a cell. Note 2 further empowers the Superintendent of the Jail to keep a convict separate if he be of opinion that his association with others of his class 314 is detrimental to good order and discipline in the jail. The Superintendent states in his affidavit he that he was of such opinion. The entire scheme of the Act and the rules is that ordinarily a prisoner should be kept separated from others and that it is only in view of limitations of providing separate cells for each prisoner that prisoners of a particular category are kept together in a large hall. The order classifying the appellant as a B class prisoner further necessitated his being kept separate from other prisoners. There is no provision in the Act or the rules that a prisoner kept in a cell be specially allowed to associate or mix with other prisoners. The main grievance of the appellant is that he was not allowed to associate with his co accused, even for purpose of consultation with respect to the defence to be put up and the grounds to be taken in the appeal. The whole object of keeping convicted prisoners segregated in jail is defeated if they are allowed to meet and discus matters even when they are under special orders for being kept separate on account of their conduct being considered detrimental to jail discipline. If it was really necessary for the appellant to have consultations with his co accused for the purpose of the case, it was open to him to obtain orders of the Court and facilities for such consultations, if considered necessary, could have been given just as facilities are provided for accused to consult their counsel. I am therefore of opinion that the Jail authorities committed no discriminatory or illegal act against the appellant in keeping him in a separate cell. I would therefore dismiss both the writ petition and the appeal. BY COURT. In accordance with the opinion of the majority, the Writ Petition and the Appeal are allowed to the extent indicated in the majority judgment.

In May, 1959, the appellant was sent to Ambala Jail as an undertrial prisoner. On account of certain jail offences alleged to have been committed by him the Superintendent of Jail segregated him from other prisoners and kept him in a separate cell. He was convicted in June, 1960. Though he was 296 not alleged to be guilty of any jail offence or indiscipline after this date he was still confined in a separate cell without being allowed to communicate with other prisoners; he was only allowed to come out in the compound attached to the cell for one hour in the morning and for one hour in the evening. In December, 1960, the Governor ordered that the appellant be treated as a B" class prisoner. Even after this he was still kept in a separate cell with this difference that he locked up only at night and was allowed to move in the compound attached to the cell during the day. But he was still not allowed to communicate with others. The Prisons Act provided for the separation of prisoners and s.28 thereof permitted convicted criminal prisoners to be confined in cells either in association or individually. Paragraph 571 of the Punjab Jail Manual provided that so far as possible all convicts shall be kept separate both by day and by night. Paragraph 575 provided that a convict who could not be confined in a cell by day by reason that he was required for some jail service shall be confined in a cell by night. The appellant contended that his confinement was under para 575, that para 575 offended article 14 of the Constitution and that the Superintendent of Jail acted mala fide and discriminated against him by keeping him in solitary confinement. ^ Held, that para 575 of the Punjab Jail Manual did not offend article 14 of the Constitution. This paragraph was a part of an integrated scheme for the maintenance of discipline of prisoners by providing for their separation. The classification was made on the basis of sex and the nature of the prisoners and depended on the availability of cells; is had a reasonable relation to the object sought to be achieved. The power to separate was entrusted to the highest officer in the jail who was ordinarily expected to act reasonably, objectively and without bias. Held, further (per Sinha, C. J., Subba Rao, Shah and Mudholkar, JJ.) that the confinement of the appellant in a separate cell in the manner it was being done was illegal. The separation of the appellant so as to seclude him from communicating with or from the sight of other prisoners certainly amounted to cellular confinement if not to solitary confinement. This could only be done as a measure of punishment, and even then the prisoner was entitled to have one hour 's exercise every day and to have his meals in association with one or more prisoners. The appellant was discriminated from other prisoners and, under the colour of the rules for separation, was illegally confined in a manner of authorised by law. Per Dayal,J. There was no discrimination or illegality in keeping the petitioner in a separate cell. The mere fact 297 that a person was kept in a separate cell did not make his confinement solitary, cellular or separate. Paragraph 571 of the Jail Manual provided that subject to cell accommodation and requirement of labour all convicts be kept separate both by day and by night. Paragraph 575 provided an exception that where the convict could not be kept separate by day he could be kept separate by night. The entire scheme of the Prisons Act and the rules was that ordinarily a prisoner was to be kept separate and that only in cases of limitation of providing separate cells were prisoners to be kept together. There was no provision that a prisoner kept in a cell was to be specially. allowed to associate or mix with other prisoners.

iminal Appeal No. 23 of 1965. Appeal by special leave from the judgment and order dated July 17, 1964 of the Patna High Court in Criminal Revision No. 597 of 1963. Nur ud din Ahmed and D. Goburdhan, for the appellant. R.C. Prasad. for respondent No. 1. The Judgment of the Court was delivered by Hidayatullah, J. This is an appeal against the judgment. July 17, 1963. of a learned single Judge of the High Court at Patna setting aside the acquittal of the appellant ordered by the 1 st Additional Sessions Judge. Gaya and directing his retrial. The only question in this appeal is whether the High Court in exercising its revisional powers under section 439 of the Code of Criminal Procedure acted in accordance with the principles settled by this Court for interference with acquittal by way of revision filed 288 by a private party. To apply those principles, certain facts first be stated. The appellant was tried on three charges levelled against him First was under section 302 of the Indian Penal Code for intentionally causing the death of one Kuldip Singh with a fire arm on December 18, 1961 in village Gajra Chatar; the second was attempt murder Kuldip Shigh 's companion Sarju Singh by shooting at him with the same weapon; and the third was the unlawful possession of the weapon (a revolver) which is an offence under the Arms Act. It appears that there was some iII feeling between the appellant and Kuldip Singh, not directly, but because the appellant, who is a lawyer, was conducting cases on behalf of his sister in prolonged litigation started by Kuldip Singh and his party. The litigation concerned the possession of land and it is admitted before us that all the cases had in fact ended in favour of the appellant 's sister. The occurrence is stated to have taken place when an inquiry into a case under section 107 of the Code of Criminal Procedure was taking place. A notice had been issued to Kuldip Singh 's party to show cause why they should not be proceeded against and asked to furnish interim bail. The prosecution story is that the deceased Kuldip Singh accompanied by Sarju Singh the injured man, and one Musafir Singh (P. W. 12) were proceeding towards village Nawadah via Tilaiya Railway Station. ' They had started early in the morning and had taken an hour and a half to reach village Gajra Chatar where the incident is said to have taken place. When they reached near a garden. they found two persons sitting under a tree and approaching them they recognised the appellant but the other was unknown. These persons began to shadow Kuldip Singh and his companions, and after they had proceeded a little further towards the garden, one of them fired at Kuldip on his back. The prosecution case is that Sarju immediately turned round and attempted to catch hold of the appellant who had fired with a revolver, but 'the appellant shot Sarju on his leg behind the knee. Thereafter. the appellant and his companion ran away. The report of the incident was made by Kuldip Singh himself who seems not to have lost his consciousness and in that report he named the appellant. Subsequently, Kuldip made two dying declarations in which he again named the appellant as the assailant. describing the weapon of attack as a revolver. Kuldip died and the case was started against the appellant as stated already. The, learned Sessions Judge on an appraisal of the evidence found it unsatisfactory. He began by stating that the medical evidence as also the evidence of 'the ballistic expert (P.W. 17) clearly disclosed that the assault was not committed with a revol vet but with a shot gun. He also could not believe the evidence. 289 that Sarju could be shot from behind when he was grappling with the appellant. He felt that this created doubt as to whether the injured persons and Musafir who all consistently described the weapon as a revolver had in fact been able to see the weapon or to identify the assailant. Having found this unworthy of credit, the learned Sessions Judge went into a number of other circumstances which in his opinion tended to show that the prosecution case was not free from concoction and hence not free from doubt. He felt that the attack was from an ambush and the deceased and 1he witnesses had named the appellant with whom they had deep enmity but they had not seen the real assailant. He accordingly gave the benefit of doubt to the appellant and ordered his acquittal. In revision, the learned Judge in 'the High Court went into the evidence very minutely. He questioned every single finding of the learned Sessions Judge and gave his own interpretation of the evidence and the inferences to be drawn from it. He discounted the theory that the weapon of attack was a revolver and suggested that it might have been a shot gun or country made pistol which the villagers in the position of Kuldip and Sarju could not distinguish from a revolver. He then took up each single circumstance on which the learned Sessions Judge had found some doubt and interpreting the evidence de novo held, contrary to the opinion of the Sessions Judge that they were acceptable: All the time he appeared to give the benefit of the doubt to the prosecution. The only error of law which the learned Judge found in the Sessions Judge 's judgment was a remark by the Sessions Judge that the defence witnesses who were examined by the police before they were brought as defence witnesses ought to have been cross examined with reference to their previous statements recorded by the police, which obviously is against the provisions of the ' Code. Except for this error, no defect of procedure or of law was discovered by the learned Judge of the High Court in his appraisal of the judgment of the Sessions Judge. As stated already by us,he seems to have gone into the matter as if an appeal against acquittal was before him making no distinction between the appellate and the revisional powers exercisable by the High Court in matters of acquittal except to the extent that instead of convicting the appellant he only ordered his retrial. In our opinion the learned Judge was clearly in error in proceeding as he did in a revision filed by a private party. against the acquittal reached in 1he Court of Session. The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens vs Nosibolla(1), only two grounds are mentioned by this Court as entitling the High Court set aside an acquittal in a revision and to order a retrial. They 290 are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misapprehensions of evidence. Again, in Logendranath Jha and others vs Shri Polailal Biswas(1), this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is "perverse" or "lacking in true correct perspective". It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to reweigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy vs State of Andhra Pradesh(2), it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated ', ' not one of these points which have been laid down by this Court was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned Judge has reweighed the evidence from his own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them. We have had the two judgments read out to us and we are of opinion that there is much that can be said in favour of the judgment of the Sessions Judge who probably felt that the identity of the real assailant not having been found, the persons chose to name the most likely persons or one who was responsible for their discomfiture in the litigation which was going on for years. That the appellant might have hired some assassins or might even have himself been present at the occurrence may be true but the question (1) ; (2) ; 291 was whether the Sessions Judge was not within his rights in rejecting the prosecution case on a proper appraisal of the evidence which he found to be unsatisfactory. Looking to all the circumstances that have been brought to our notice, we are satisfied that the Sessions Judge acted within his rights in deciding the case which to us appears also to be somewhat doubtful in many respects and the High Court was therefore in error in taking upon itself the l duty of hearing a revision application as if it was an appeal and setting aside the acquittal not by convicting the accused but reaching the same result indirectly by ordering a retrial. In our opinion, the judgment of the High Court cannot be allowed to stand. The appeal succeeds and the order of retrial is therefore revoked and the acquittal is restored. Y.P. Appeal allowed.

In a revision filed by a private party, the High Court in its powers under section 439, Code of Criminal Procedure directed the retrial of the appellant, who had been acquitted by the Sessions Judge. In doing so. the High Court, went into the evidence very minutely, questioned every finding of the Sessions Judge, gave its own interpretation of the evidence de novo. HELD: In setting aside an acquittal in a revision and ordering a retrial, there must exist a manifest illegality in the judgment of acquittal or a gross miscarriage of justice. An interference in revision with an order of acquittal can only take place, if there is a glaring defect of procedure such as that the Court has no jurisdiction to court had shut out some material evidence which was admissible or attempt to take into account evidence which was not admissible or had overlooked some evidence. Although the list given is not exhaustive of all the circumstances in which the High Court may interfere with an an, acuital in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. [290 A,D E] D. Stephens vs Nosibolla, ; , Logendranath ]ha and others vs Shri Polailal Biswas; , and K. Chinnaswamy Reddy vs State of Andhra Pradesh, ; , followed.

ivil Appeal Nos. 400 401 of 1984 From the Judgment and Order dated 15 7.1983 of the Calcutta High Court in C.R. No. 7979 (W) Of 1981. M.K. Ramamurthi, B. Datta, Rishi Kesh, Badri Prasad and Pudisserry for the Appellants. S.N. Kacker, H.K. Puri, D.N. Mukharjee, J.R. Das and D.R. Sinha for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The wars of the Roses go on. How else is one to describe the perpetual battles waged between the 'direct recruits ' and the 'promotees ' ? This time the front is the Calcutta Police, the posts are those of Sub Inspectors of Police and the question is the same old one of seniority. Petitioners 1 and 2, who joined the Calcutta Police as Constables in November 1947 were first promoted as Assistant Sub Inspectors of Police and later, on August 6, 1951, as officiating Sub Inspector of Police. They were confirmed as Sub Inspectors of Police on January 1, 1975. In the meanwhile, a large number of persons were directly recruited as Sub Inspectors of Police and also confirmed as such, All of them are now ranked above the petitioners in the seniority list, and the petitioners, therefore, have a natural grievance. They claim that as laid down by a series of decisions of this court, their seniority must be reckoned from the date of their continuous officiation as Sub Inspectors of Police. Petitioner No.3, we may mention, was promoted as officiating Sub Inspector of Police on September 6, 1975, but the precise date of his confirmation is not available from the record. Apart from the claim to seniority, 917 the petitioners also alleged that they were never considered for promotion to the next higher post of Inspector of Police because of their delayed confirmation and because of the insistence of the Rules that they should be confirmed as Sub Inspectors of Police before they could be considered for promotion to the post of Inspector of Police. they want the offending rule to be quashed. Other reliefs were claimed in the writ petition filed by them in the High Court, but we are not now concerned in this appeal with those other reliefs. While the State of West Bengal appeared to support the claim of the appellants to seniority on the basis of continuous officiation, the direct recruits contested the writ petition in the High Court. The High Court refused to recognise the claim of the appellants to seniority from the dates of their continuous officiation on the ground that their promotion as officiating Sub Inspectors of Police could only be considered as promotion to posts outside the cadre. The High Court held that their seniority could only be reckoned from the date of their confirmation. The High Court further held that the rule prescribing confirmation as Sub Inspector as a condition precedent for promotion to the post of Inspector of Police was not invalid. The 'promotee ' Sub Inspectors have preferred this appeal by special leave of the court under article 136 of the Constitution. It is necessary now to refer to the various recruitment and seniority rules made from time to time under the powers conferred by the statute. Rule 2(b) of the Recruitment Rules for the Subordinate Ranks of the Calcutta Police, 1936 provided that twenty five per cent of the vacancies shall be filled by promotion of Assistant Sub Inspectors and Sergeants and the rest by direct recruitment. Rule 2(f) prescribed the qualification for outside candidates meaning thereby direct recruits. What is important to be noted is that they were required to be Graduates of a University. Rule 2(g) prescribed the qualifications for departmental candidates and it is necessary to extract the whole of it, which is as follows: "(g) Qualifications for departmental candidates On the first of June, nominations shall be called for from all District Officers of Assistant Sub Inspectors and Sergeants fit for promotion to the rank of Sub Inspectors. Nominees shall have had at least 3 years ' service as Ser 918 geant or Assistant Sub Inspector, be less than 40 years of age and normally have passed one of the following examination. (1) Matriculation or the Indian Army Special Certificate of Education, (2) Junior Cambridge, (3) First Class Army Certificate, or have, in the opinion of the Selection Board, other wise attained a satisfactory educational standard. They shall sit in a preliminary departmental test examination at the Calcutta Police Training School. The names of all nominees who pass that examination shall be submitted to the Selection Board. The candidates shall have (i) a good record of service, and (ii) a good social position; The Judge of this should be the Selection Board. Note On passing out of the Calcutta Police Training School officers shall remain on probation prior to confirmation. Rule 2 (j) which applied both to outside and departmental candidates was as follows: "(j) Qualified Candidates shall be summoned before a Selection Board consisting of the Commissioner of Police, the Deputy Commissioner of Police, Head quarters. ' a District Deputy Commissioner, and an Assistant Commissioner of Police. The Selection Board shall make the final selections for appointment. " The Probation Rules for the Subordinate Ranks of the Calcutta Police, 1936 prescribed that for Sub Inspectors, the period of probation of a person directly recruited or of an officer who was 919 promoted from a lower rank shall be two years counting from the date of his joining the Calcutta Police Training School. While Rule 2 sub rule 3 provided that persons directly recruited shall draw the minimum pay in the time scale of Sub Inspectors through the period of their probation. Rule 2 sub rule 4 provided that promoted officers shall draw the minimum pay in the time scale of Sub Inspectors, subject to the condition that they shall count towards increment, officiating and temporary service in that rank rendered prior to their appointment as probationers and also their probationary period or any part thereof and draw increment that may fall due to them during the period of their probation. It was further stipulated that a probationer shall be confirmed on the termination of his probationary period unless the Deputy Commissioner in charge of a District shall during the period of probation make an order extending this period of probation or discharging him from service or reverting him to his substantive rank. An order of extension of probation was not to extend beyond one year, except with the sanction of the Commissioner of Police. By an order dated December 16, 1940, it was provided that when determining the relative seniority of probationary Sub Inspectors in the Calcutta Police, the following principles were to be observed: "(1) Departmentally appointed Sub Inspectors will be senior to direct recruits of the same year and will be graded inter se according to the date of their confirmation in the rank of Assistant Sub Inspector. (2) The seniority of directly recruited Sub Inspectors will be in accordance with their position In the final examination at the Police Training School." In supersession of this order, a further order was issued on December 14, 1960 laying down the principles to be followed in determining the relative seniority of probationary Sub Inspectors of the Calcutta Police. The principles were as follows: "(1) The seniority of departmentally promoted and directly recruited Sub Inspectors will be determined in accor 920 dance with the dates of their probationary appointment in the rank. (2) Where a departmentally promoted Sub Inspector and a directly recruited Sub Inspector are appointed on probation with effect from the same date, the depart mental officer will be senior to the direct recruit, provided they undergo training at the Police Training College the same year. (3) The seniority of the directly recruited Sub Inspectors will be in order of their position in the final examination held at the Police Training College and that of the departmentally promoted officers be in accordance with their position in the approved list of officiating Sub Inspectors, fit for confirmation in the rank of Sub Inspector. " In 1962, the Calcutta and Suburban Police (subordinate ranks recruitment, conditions of service and discipline) Rules were made. Schedule I prescribed the method of recruitment, qualifications for appointment including age and conditions of service. Paragraph 2 of the Schedule dealt with Sub Inspectors not belonging to the Armed Branch and to the extent it is relevant, is extracted below: "Sub Inspectors not belonging to the Armed Branch 2. (1) Method of recruitment: Recruitment in the rank of Sub Inspector shall be made each year in the month of January. Twenty five per cent of the vacancies shall be filled by promotion of Assistant Sub Inspectors and the remaining vacancies shall be filled by direct recruitment. (2) For filling up vacancies by promotions candidates shall be selected on the basis of merit only. (3) (a) For filling up vacancies by direct recruitment applications from outsiders shall be invited through the Press in the 1st week of August. . . 921 (b). . . . . . (c). . . . . (4) Qualifications for outside candidates The candidates shall (i) be graduates of one of the lndian universities; (ii) . . (iii) . . (iv) . . (V) . . . (5) Qualifications for departmental candidates On the first day of June every year nominations shall be called for from all Deputy Commissioners of Assistant Sub Inspectors fit for promotion to the rank of Sub Inspector. Nominees shall have had at least 3 years of service as Assistant Sub Inspector, be less than 40 years of age and normally have passed one of the following examinations: (a) Matriculation, School Final or Higher Secondary Examination or the Indian Army Special Certificate of Education Examination: (b) Junior Cambridge Examination; (c) First class Army Certificate Examination; or have, in the opinion of the Selection Board referred to insub rule (7), otherwise attained a satisfactory educational standard. They shall be required to sit in a preliminary departmental test examination. The names of all nominees who pass that examination shall be submitted to the said Selection Board. The candidates shall have in the the opinion of the said Selection Board a good record of service, 922 Note Selected candidates shall have to undergo a course of training in the Police Training College. On passing out of the Police Training College, officers shall remain on probation prior to confirmation. (6) . . (7) Qualified candidates shall be summoned before a Selection Board consisting of the Deputy Commissioner, Headquarters, a Divisional Deputy Commissioner and an Assistant Commissioner of Police. Appointment shall be made of candidates included in an approved list of candidates prepared on the recommendation of the Selection Board. (8) . . Paragraph 19 of Schedule I deals with the probation of Sub Inspectors and to the extent necessary it is extracted below: "Sub InsPectors 19. 1) The period of probation of a person directly recruited as a Sub Inspector shall be two years counting from the date of leaving the Police Training College and that of an officer promoted as a Sub Inspector from a lower rank shall be one year counting from the date of joining the Police Training College on such promotion. (2) . . (3) Promoted Sub lnspectors shall draw the grade pay in the time scale of Sub Inspectors, subject to the condition that they shall count towards increment officiating and temporary service in that rank rendered prior to their appointment as probationers and also their probationary period or any part thereof and draw increment that may fall due to them during the period of their probation. A probationer Sub lnspector shall be confirmed on the completion of his probationary period unless the Deputy Commissioner, Headquarters, shall make an order extending his period of probation or discharging him from service 923 or reverting him to his substantive rank. Any order for such extension of the probationary period or reversion or discharge shall indicate grounds on which the order is made. Such an order of extension shall not ordinarily extend the period of probition beyond one year. For extension for any Period beyond one year, the sanction of the Commissioner shall be obtained. (4) (a) The training period of promoted Sub Inspectors shall be one year, of which the first six months shall be spent in the Police Training College. The training period of direct recruits as Sub Inspectors shall be two years of which one year shall be spent in the Police Training College. (b) The initial pay of direct recruits as Sub Inspectors when posted to the Police Training College shall be Rs. 200 per mensem, the minimum of the time scale of pay of Sub Inspectors. (csuch part of the training period of direct recruits as Sub Inspectors as is spent in the Police Training College, namely, one year, shall be exclusive of the probationary period and count towards increment of pay. (d) The training period of promoted Sub Inspectors shall count towards increment of pay." In 1967, the Police Regulations, Calcutta were framed under section 3 of the Calcutta Suburban Police Act, 1866 and section 9 of the Calcutta Police Act. Chapter XV dealt with method of recruitment, qualifications for appointment including age and conditions of service. Paragraph 3 of Chapter XV dealt with Subspectors not belonging to the Armed Branch. To the extent necessary, paragraph 3 is extracted again: "3. Sub Inspectors not belonging to the Armed Branch: (1) Method of recruitment Recruitment in the rank of Sub lnspector shall be made each year in the month of January. One third of the vacancies shall be filled 924 by promotion of Assistant Sub Inspectors, and the remaining vacancies shall be filled by direct recruitment. (2) For filling up vacancies by promotion candidates shall be selected on the basis of merit with due regard to seniority, (3)(a) . . (b) . . (c) . . (4) Qualifications for candidates for direct recruitment The candidates shall (i). . (ii) be graduates of one of the Indian Universities. (iii) . . (iv) . . (v) . . (vi) . . (5) Qualified candidates shall be required to appear for an interview before a Selection Board consisting of the Deputy Commissioner, Headquarters, and two other Deputy Commissioners nominated by the Commissioner. Appointment shall be made of candidates included in an approved list of candidates prepared on the recommendation of the Selection Board. (6) . . (7) Qualifications for departmental candidates Nominations shall be called for as and when necessary from all Deputy Commissioners of all Assistant Sub Inspec. 925 tors fit for promotion to the rank of Sub Inspector. A Nominees shall have had at least three years of service as Assistant Sub Inspector and normally have passed one of the following examinations: (a) Matriculation, School Final or Higher Secondary Examination or the Indian Army Special Certificate of Education Examination, (b) Junior Cambridge Examination; (c) First Class Army Certificate Examination; or have, in the opinion of the Selection Board, referred to in Sub rule (8) below otherwise attained a satisfactory educational standard. They shall be required to sit in a departmental examination the procedure and syllabus for which shall be such as may be determined by the Commissioner. (8) The names of all nominees who pass that examination shall be submitted to the Selection Board. The candidates shall have in the opinion of the Selection Board, good records of service. The S election Board shall consist of Deputy Commissioner, Headquarters, and two other Deputy Commissioners nominated by the Com missioner. (9) Candidates must have passed the departmental exami nation completely before they are interviewed by the Selection Board. Candidate shall be eligible for the examination referred to above after they are confirmed in the rank of Assistant Sub Inspector. Selected candidate (both direct recruits and departmental) shall have to undergo a course of training in the Police Training College. (10) An officiating Sub Inspector having completed two years ' continuous service in the rank and on completion of the required course of training shall be eligible 926 for appearing before the Selection Board concerned for inclusion of his name in the panel of officiating Sub Inspector fit for confirmation in the rank of Sub Inspector. " Paragraph 46 may also be extracted here: (1) The period of probation of a person directly recruited as a Sub lnspector or a Sub lnspectoress shall be two years counting from the date of leaving the Police Training College or School, as the case may be, and that of an officer promoted as a Sub Inspector or Sub lnspectoress from the lover rank shall be one year counting from the date of his or her appointment on probation. Such part of the training period of direct recruit as Sub Inspectors or Sub Inspectoress as is spent in the Police Training College or School, namely, one year, shall be exclusive of the probation any period and count towards increment of pay. (2) . . . (3) Promoted Sub Inspectors including Sub Inspectoresses shall draw the grade pay in the time scale of Sub Inspectors, subject to the condition that officiating and temporary service in that rank rendered prior to their appointment as probationers and also their probationary period or any part thereof shall counttowards increment and they shall draw increment that may fall due to them during the period of their probation. A probationary Sub Inspector or Sub Inspectoress shall be confirmed on the completion of his or her pro bationary period unless the Deputy Commissioner, Head quarters, shall make an order extending his or her period of probation or discharging him or her from service or in the case of a promoted Sub Inspector or Sub lnspectoress reverted him or her to his or her substantive rank. Any order for such extension of the probationary period or reversion or discharge shall indicate grounds on which the order is made. Such an order of extension shall not exceed the period 927 of probation beyond one year in the case of a direct recruit and six months in the case of a promotee. For extension of any period beyond one year or six months, as the case may be, sanction of Government shall be obtained. " In 1981 the West Bengal Services (Determination of Seniority) Rules were made and it is not disputed before us that these rules are applicable to the Calcutta Police. Rule 3 (iv) defines "post"," cadre" or "grade" as meaning any post, cadre or grade in connection with the affairs of the State of West Bengal. Rule 3 (vi) says, "date of Joining" shall be reckoned from the date of continuous officiation in a post/cadre or grade. Rules 4, 5 and 6 which deal with 'Determination of seniority of direct recruits ', 'determination of seniority of promotees, and relative seniority of direct recruits and promotees, are important and have to be extracted in full. They are as follows: "4. Determination of seniority of direct recruits. The relative seniority of all persons appointed directly through competitive examination or interview or after training or otherwise shall be determine by the order of merit in which they are selected for such appointment on the recommendation of the Commission or other selecting authority, persons appointed on the result of an earlier selection being senior to those appointed on the result of a subsequent selection: Provided that where appointment of persons initially made otherwise than in accordance with the relevant recruitment rules is subsequently regularised in consultation with the Commission, where necessary, seniority of such persons shall be determined from the date of regularisation and not from the date of appointment. The inter se seniority amongst such persons shall how ever, depend on the date of appointment of each such person in the department or office concerned: Provided further that if any person selected for ap pointment to any post does not join within two months of the offer of appointment, his seniority shall count from the date on which he joins the post unless the 928 appointing authority for reasons to be recorded in writing condones the delay. Note (1) A list of candidates for the purpose of selection for appointment shall be prepared in all cases by the selecting authority, when there will be recruitment in a single process of selection Or more than one person. (2) Where the inter se seniority amongst several persons has not been determined prior to the coming into force of these rules; such seniority shall, on the coming into force of these rules, be determined on the basis of actual date of their joining. When the date of joining of all such persons is the same, seniority shall be determined on the basis of date of birth, person retiring earlier being adjudged as senior. When the date of birth is the same, seniority shall be determined on the basis of total marks obtained by each in the examination, passing of which is the qualification prescribed for recruitment to the particular cadre or grade. (3) In so far as the determination of relative seniority Of persons selected either by the Commission or by other selecting authority for appointment to different posts in the same grade with different qualifications such as posts of Assistant Professors in History, Economics, Physics, Chemistry, etc., is concerned, seniority shall be determined from the date of joining. Determination of seniority of promotees (1) Seniority of person appointed on promotion to any Post, cadre or grade shall be determined fro n the date of joining such post, cadre or grade. (2) When there will be appointment in a single process of selection of more than one person the; relative seniority of persons so appointed shall be determined by the order in which they are selected for such promotion. 929 (3) Persons appointed on the result Or an earlier selection shall be senior to those appointed on the results of a subsequent selection. (4) Where promotions to a post, cadre or grade are made from more than one post, cadre or grade, the relative seniority of the promotees from different posts, cadre or grades shall be according to the order of merit determined by the commission or the selecting authority, if such posts, caders or grades do not come within the purview of the commission. Note 1 A list of candidates for the purpose of selection for promotion shall be prepared in all cases by the selecting authority when appointments are made on promotion in a single process of selection of more than one person. Note 2 Where the inter se seniority amongst several persons has not been determined prior to the coming into force of these rules, such seniority shall, on the coming into force of these rules, be determined on the basis of date of joining. When the date of joining of such person is the same, seniority in the promotion post, cadre or grade shall follow the seniority in the lower feeder post, cadre or grade. Relative seniority of direct recruits and promotees 1. The relative seniority between a promotee and a direct recruit shall be determined by the year of appointment or promotion of each in the post, cadre or grade irrespective of the date of joining. The promotees shall be en bloc senior to the direct recruits of the same year. " A certain amount of confusion has been created by the reliance placed by the High Court upon the decisions of this Court in Ganga Ram vs Union of India(l) and Katyani Dayal vs Union of Media.(2) We wish to make it clear, straightaway, that neither of (1) ; (2) [l980] 3 SCR 139. 930 these cases has any application to the facts of this case, as we shall presently explain. The proposition is now undisputed, and, indeed none of the Counsel who appeared before us disputed it, that in the absence of Rules to the contrary regulating the question of seniority between direct recruits ' and the 'promotees ', the general principle to be implied and followed to determine seniority is to base it on continuous officiation in non fortuitous vacancies. In the case of section B. Patwardhan vs State of Maharashtra (1) Chandrachud, CJ. Observed: "We, however, hope that the Government will bear in mind the basic principle that if a cadre consists of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for deter mining seniority as between 'direct recruits ' and the 'promotees '. All other factors being equal, continuous officiation in a non fortuitous vacancy ought t receive due recognition in determining rules of seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities. " In Roleshwar Dass vs State of U. P.(2), Krishna Iyer, J. had occasion to observe: We must emphasise that while temporary and permanent posts have great relevancy in regard to the career of Government servants, keeping posts temporary for long, sometimes by annual renewal for several years, and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointees are functionally identified. If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights. Not so, if the post is, for certain departmental or like purposes, declared temporary, (I) [l977] 3 S.C.R. 775 (2) [l981] 1 S.C.R. 449. 931 but it is with in the ken of both the Government and the appointee that the temporary posts are virtually long lived. It is irrational to reject the claim of the 'temporary ' appointee on the nominal score of the terminology of the post. We must also express emphatically that the principle which has received the sanction of this Court 's pronounce ments is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. It may be permissible, within limits, for Government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categorical and do not admit of any ambiguity and cruelly arbitrary cut off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of articles 14 and 16. ' ' To the same effect in A. Janardhana vs Union of India,(1), D. A. Desai, J. Observed: ". In other words, after having rendered service in a post included in the service, he is hanging outside the service, without finding a berth in service, whereas direct recruits of 1976 have found their place and berth in the service. This is the situation that stares into one 's face while interpreting the quota rota rule and its impact on the service of an individual. But avoiding any humanitarian approach to the problem, we shall strictly go by the rele vant Rules and precedents and the impact of the Rules on the members of the service and determine whether the impugned seniority list is valid or not. But, having done that we do propose to examine and expose an extremely undesirable, unjust and inequitable situation emerging in service, jurisprudence from the precedents namely, that a (1) [1983]3 SCC 601. 932 person already rendering service as a promotee has to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service. A time has come to recast service jurisprudence on more just and equitable foundation by examining all precedents on the subject to retrieve this situation. " These cases were quoted with approval by Chandrachud,CJ. and one of us (Pathak, J.) in O.P. Singla vs Union of India(1). In that case as a result of the application of Rules 16 and 17 of the Delhi Higher Judicial Service Rules, the quota and rota ' Rule ceased to apply and the question arose what was the criterion to be adopted to determine the seniority between 'direct recruits ' and 'promotees '. Chandrachud, CJ. and Pathak, J. Observed: Since the rule of 'quota and rota ' ceases to apply when appointments are made under Rr. 16 and 17, the seniority of direct recruits and prormotees appointed under those Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating continuously either in temporary posts created in the ser vice or in substantive vacancies to which they were appoint ted in a temporary capacity, G. section Lamba & Ors. vs Union of India,(2) there was a break. down of the 'quoto rota ' Rule as it had not been followed. The problem was how seniority to be determined between direct recruits and promotees. D.A. Desai, 1. with whom Khalid, J. agreed after noticing the decisions in B.S. Gupta vs Union of Indiu(3). A.K. Subrarnana vs Union of India.(4) P.S. Mahal vs Union of India, Janardhana vs Union of India, O.P. Singla vs Union of India (Supra) observed . (1) ; (2) ; (3) [1975] SUPP. SCR 401. (4) 933 "In the absence of any other valid principle of senio rity it is well established that the continuous officiation in the cadre, grade or service will provide a valid principle of seniority. The seniority lists having not been prepared on this principle are liable to be quashed and set aside. " We may now refer to the two decisions of this Court upon which reliance was placed by the High Court. In Ganga Ram vs Union of India (1), the question arose with regard to the validity of a provision of the Indian Railways Establishment Manual according to which amongst Clerks Grade I who had been promoted from the rank of Clerks Grade Il after passing the prescribed qualifying examination, those who had been promoted earlier because they had passed the examination earlier, were, nevertheless required to take their place in the seniority list after those who were promoted later because they had passed the examination later if the latter happened to be senior in Grade 11. In other words, notwithstanding their actual dates of commencement of continuous officiation, promotees to Grade I carried with them their seniority in Grade Il. The Rule was challenged on the ground of discrimination. It was said that in the case of direct recruit to Grade I seniority was reckoned from the date of appointment to Grade I whereas in the case of promotees amongst themselves their seniority was based on their seniority in Grade Il. This argument was repelled by this Court on the ground that direct recruits and promotees constituted different classes and the classification was sustainable. It was said that promotion to Grade I was guided by the consideration of seniority cum merit and it was, therefore, difficult to find fault with the provision which placed in one group all those Grade II clerks who had qualified by passing the examination. The fact that the promotees from Grade II who had OFFICIATED for some time were not given the credit of that period when a permanent vacancy arose also did not attract the prohibition contained in articles 14 and 16. It did not constitute any hostile discrimination and was neither arbitrary nor unreasonable. It applied uniformly to all Grade 11 clerks who had qualified and become eligible. The onus, it was said, was on the petitioners to establish discrimination. The difference emphasized on behalf of the petitioners, it was finally observed, was too tenuous to form the basis of a serious argument. It will be seen that the case was not concerned at all with the rival claim of direct recruits and promo ; 934 themselves. The comparison with direct recruits was only for the purpose of advancing the claim that since amongst direct recruits seniority was reckoned in a particular way, there was no reason why the same principle should not be adopted in the case of promotees also instead of the principle of basing seniority in Grade I on seniority in Grade ll. We do not think that this case is of any avail to the II direct recruits in the present case. In Katyani Dayal Y. Union of India, in order to meet some special requirements of new situations created by new projects, some new posts of temporary Assistant Officers, were created under a special scheme. These Temporary Assistant Officers belonged neither to class I nor to class II service, though on completion of three years service it was declared that they could be considered for absorption in Class I, Junior Scale. The temporary Assistant Officers filed a writ petition claiming that they were appointed to the Indian Railway Service of Engineers Class I right from the beginning and that the Railway Board was wrong in treating them as belonging to neither class I nor class II. The court held that the service comprising the Temporary Assistant Officers and the Indian Railway Service of Engineers Class I started separately and never become one. The objects of their recruitment were dissimilar and the appointing authority was not the same. The training that was imparted was also unlike. The very tenure of the Temporary Assistant Officers was precarious and their immediate aspiration was only to be absorbed into the Indian Railway Service of Engineers Class I. These distinctive features marked out the Temporary Assistant Officers as a Class apart from the Indian Railway Service of Engineers Class I and therefore there was no question of entitlement of equal rights with the later. Of course, once they were absorbed into the Indian Railway Service of Engineers they would be entitled not to be treated differently thereafter. Their seniority would ordinarily be reckoned from the date of their absorption into the Railway service of Engineers, as promised in their letters of appointment. It was further pointed out that there was a fundamental qualitative difference, linked with the method of recruitment. Though the minimum educational qualification was the same, those who were recruited directly to the Indian Railway Service of Engineers Class I were subjected to stiff and competitive, written and personality tests. Only the very best could aspite to come out successful. The Temporary Assistant Officers were not subjected either to a written test or to a personality 935 test but were selected on the basis of an interview by the Union Public Service Commission. In addition to the minimum educational qualification, three years ' experience as a Civil Engineer was also prescribed. Thus while brilliance was the beacon light which beckoned those aspiring to become members of the Indian Railway Service of Engineers Class 1, it was replaced by experience in the case of those wanting to be Temporary Assistant Officers. Again the appointing authority in the case of Indian Railway Service of Engineers Class I was the President while the appointing authority in the case of temporary assistant Officers was the Railway Board, no doubt, pursuant to the authority given by the President. Different courses of training were prescribed for the Indian Railway Service of Engineers and the Temporary Assistant Officers. For the Indian Railway Service of Engineers the training was an intensive and comprehensive one designed to equip them for higher posts in the Department too while the training for Temporary Assistant Engineers was a brief six months ' training intended merely to equip them for carrying out the specific jobs. In the matter of terms and conditions of service, while the provisions of the Indian Railway Establishment Code were fully applicable to the Indian Railway Service of Engineers Class 1, those provisions were applicable to 'Temporary Assistant Officers ' to the extent there was no specific provision in their letter of appointment and agreement. It was on those facts and circumstances that it was held that there was no discrimination directed against the temporary Assistant Officers. We are unable to see how this case can possible help the direct recruits in the present case. It was suggested that the officiating Sub Inspectors of Police who had been promoted from the rank of Assistant Sub Inspectors were appointed to posts outside the cadre as in Katyani Dayal s case and it was this argument that found favour with the High Court. There is no basis whatsoever for the supposition that there was any new cadre or any new class of posts created by the Government, known as officiating Sub Inspector of police. The officiating Sub lnspectors of Police were obviously appointed to officiate in permanent or temporary vacancies in the existing subordinate ranks of the Calcutta Police, governed by the same Rules and regulations as other Sub lnspectors of police, drawing the same pay and discharging the same duties. There was not and there could never be any question of officiating Sub Inspectors constituting a different cadre, class or category by themselves. 936 The next question is whether the Rules regulating the recruitment, seniority etc. Of Sub Inspectors of Police in the Calcutta Police make any departure from the general pri nciple laid down in the whole series of cases commencing with Patwardhan to which we have already referred. Earlier we have set out in great detail all the relevant rules in force from time to time. We do not find anything in any of the rules indicating an intention to depart from the gene ral principle. Shri section N. Kacker, learned counsel for the direct recruits invited our attention to Rule 6 of the West Bengal Services (Determination of Seniority) Rules, 1981 and asked us to read it in the light of Rule 3 (vi) which defines 'date of joining ' and stipulates that date of joining shall be reckoned from the date of continuous officiation in a post/cadre or grade. Rule 6 (i) provides that relative seniority between a promotee and a direct recruit shall be deter mined by the year of appointment or promotion of each in the post, cadre or grade irrespective of the date of joining and Rule 6 (2) provides that the promotees shall be en block senior to the direct recruits of the same year. The submission of Shri Kackar was that 'date of joining ' as defined in Rule 3 (vi) was expressly made irrelevant by Rule 6 (1) for the purpose of determining Seniority between a promotee and a direct recruit and it meant that the period of continuous officiation was not to be taken into account in determining relative seniority between promotees and direct recruits. The argument though superficially attractive lacks substance. A perusal of Rule 4 and 5 makes the position clear. Rules 4, 5 and 6 constitute a single scheme. Now Rule 4 which deals with seniority amongst direct recruits, broadly, provides that their relative seniority shall be according to the cadre of merit when they are selected at the same examination persons appointed on the basis of an earlier examination taking precedence over those appointed on the basis of a later examination. Rule 4 further provides that where seniority has not been previously determined it shall be determined according to the actual date of joining Rule 5 deals with determination of seniority of promotees and broadly again, provides that seniority of person appointed to any post, cadre of grade shall be determined from the date of joining such post, cadre or grade. which we know from Rule 3 (vi) means the date of continuous officiation in the post, cadre or grade. Then comes Rule 6 which prescribes that the relative seniority between a promotees and a direct recruit shall be determined by the year of appointment or promotion of each in the post, cadre or grade irrespective of the date of joining and that the promotees 937 shall be en blow senior to the direct recruits of the same year Now, if Rules 4, 5 and 6 are read together the scheme becomes clear. While date of joining is important to decide, the question of seniority amongst promotees, it is the year of joining that is relevant when the question of relative seniority is to be determined between promotees and direct recruits. If direct recruits are appointed and promotees are promotee in the same year, all promotees are to take precedence over the direct recruit, irrespective of the actual date of their joining but as amongst the promotees themselves, the seniority is to be based on the date of joining. That according to us is the true and appropriate construction of Rules 4, 5 and 6. We are indeed very happy to note that this is precisely what the West Bengal Government wanted to do and it was done with a view to give effect to the judgments of this Court. Paragraph 5 (Il) the affidavit of Nirupom Som, Commissioner of Police, Calcutta, is worth extracting and it is as follows : "5 (1). . . " 5 (II) With effect from 11. 3. 81, the West Bengal Services (Determination of Seniority) Rules, 1981 were promulgated under Article 209 of the Constitution. These rules were made following the judgment of the Hon 'ble Supreme Court in the Patwardhan vs State of Maharashtra case ; Previously the seniority was determined under provisions laid down in the Finance Department Memo No. 568 F dated 20. Prior to 20.2.68, there was no codified principles, the respective Departments following principles that might be different in different departments. " (b) The Hon 'ble Supreme Court made observations, inter alia as follows in the aforesaid case: (i) The vice of the seniority rule (with determines seniority between direct recruits and promotees from the date of confirmation) is that it leaves the valuable right of seniority to depend upon the mere accident of confir mation. That under Article 14 and 16 of the Constitution is impermissible and therefore, we must strike down the said rule as being unconstitutional. " 938 "(ii) We do not want to take upon ourselves task of framing rules of seniority. That is not the function of this Court and frankly it lacks the expertise and data to do so. We, however, hope that the Government will bear in mind the basic` principles that if a cadre consists of both perma nent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees. All others factors being equal continuous officiating in a non fortuitous vacancy ought to receive due recognition in terminating rules of seniority as between person recruited from different sources, so long as they belong the same cadres discharge similarly functions and bear similar res ponsibilities. " " (c) In the light of the aforesaid observations of the Hon 'ble Supreme Court the provisions in Finance Department Memo No. 568 F dated 20. 68 were examined in Consultation with the law officers of Government and the public service commission. The West Bengal Service (Determination of Seniority) Rules 1981 were promulgated with effect from 11. 3. 81 after due observance of all formalities and considering all aspects of the matter. " Again in paragraph 10 it was said, "10. I submit that in the instant case it can hardly be disputed that both the direct recruits as well as the promotees Sub lnspectors of Police form one class. They are both known by the same designation, they have the same scales of pay, they discharge the same functions, and the posts held by them arc interchangeable. Thus there is nothing to show that the two groups are kept apart, and both are merged together in the same class. It is not competent to the Government thereafter to discriminate between directly recruited Sub lnspectors and promotee Sub lnspectors in the matter of further promotion to the posts of Inspectors, as that would be violation of Article 16 of the Constitution. It is submitted that the rule of pro motion is inextricable linked with the rule of weightage and seniority in the lower grade. There is a well recognised discrimination between promotion and confirmation 939 and the tests to be supplied for the purposes of promotion are entirely different from those that had to be applied at the time of confirmation. Though drawn from two different sources, the direct recruits and promotees constitute in the instant case a single integrated cadre. They discharge in dentical functions, bear similar responsibilities and acquire an equal amount of experience in their respective aisignment. The superseded principles for Determination of Seniority denied to the promotees the benifit of their long and valuable experience. If there was some intelligible grounds for this differentiation being nexus with efficiencies in public services, it might perhaps have been possible to sustain such a classification. Confirmation is one of the inglorions uncertainities of Government Service depending within an efficiency of the incumbent nor on the availability of substantive vacancies. The vice of the seniority rule (which determines seniority between direct recruits and promotees) from the date of confirmation is that it leaves the valuable right of seniority to depend upon the mere accident of confirmation. that under Article 14 and 16 of the constitution, is impermissible. If a cadre consist of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees. All other facts being equal continuous officiating in a non fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruits from different sources, so long as they belong to the same cadre discharge similarly functions and bear similar responsibilities. " We think it is needless to further dilate on this topic except to express our appreciation of the stand taken by the West Bengal Government in these paragraphs. The final submission of Mr. Kacker was that the appellants had never appeared at the prescribed examination, had never been called before the Selection Board and had never been sent to the Police Training College. They had never gone through the selection process prescribed by the Rules and could not therefore have been validly appointed as Officiating Sub lnspectors of Police or confirmed as Sub lnspectors of Police. The appellants, at least two 940 of them, have been officiating as Sub Inspectors of Police since almost three decades and even confirmed as Sub Inspectors of Police for a decade. We are afraid it is rather late in the day for Mr. Kacker to raise this question at almost the final stages of a long drawn out battle. It is true that in their writ petition in the High Court, the appellants made the barest of allegations in regard to their process of selection which they went through before they were promoted to the rank of Sub lnspectors of Police. They had said, "After passing the departmental examination for pro motion to the rank of Sub Inspector, your petitioners were declared fit for promotion to the rank of Sub Inspector and your petitioners Nos. 1 and 2 were promoted to the rank of Sub Inspector on the 6th August, 1957 while your petitioner No. I was promoted to the rank of Sub lnspector on the 8th September, 1975 " Even this bare allegation was not properly denied in the counter filed by the respondents and that was never seriously put in issue. At the conclusion of the hearing we called upon the State of West Bengal to produce all the relevant records pertaining to the service careers of the three appellants but we do not purpose to wait for them. Enough for us to do justice is it appears from the records now before us. We think that the three appellants are entitled to have the benefit of their continuous officiating service as Sub Inspectors of Police counted for seniority as Sub lnspectors of Police. A writ will, therefore, issue directing the respondents to re fix the seniority of the appellants and other officers similarly situated in accordance with what we have said above. A further question was raised by the appellants regarding the validity of the paragraph 1 (iii) of the Police Regulation, Calcutta, 1967 which provides that directly recruited Sub Inspectors shall be eligible to sit for the departmental examination to qualify themselves for promotion after their confirmation and on completion of 7 years ' service, including temporary service in their rank. On the other hand, they complain that the rule provides that department Sub Inspectors who have been so appointed by promotion shall be eligible to sit for the examination after their confirmation in the rank of Sub lnspectors provided that their total length of service as Sub lnspector is not less than 7 years . Seemingly, the rule 941 appears to treat both the direct recruits and promotees on the same footing, but it was submitted by a learned counsel for the petitioners that in practice the rule works harshly on the promotees because of the 'inglorious ' uncertainty of the confirmation of the promotees. It was said that the date of confirmation of a promotee was so incurably uncertain, compelling a promotee to wait for more than a decade for confirmation and thus he will not be eligible to appear for the qualifying examination for promotion as Inspector of Police even though he has completed 7 years of continuous officiating service as Sub Inspector of Police. There appears to be some legitimate scope for grievance on this question because of the vagaries of dates of confirmation of promotees, but we are not inclined to examine this question in the present case as petitions 1 and 2 made no efforts to qualify themselves for promotion by appearing in the examination after their confirmation in 1975 even though they had already completed 7 years of service. In the case of the 3rd petitioner, he had not even completed 7 years ' service by the date of the filing of the writ petition and we are told that he had also now retired from service. In the circumstances, we do not think it necessary to examine this question. The appeal is, therefore, allowed in the manner and to the extent indicated. Such other benefits to which the appellants are entitled under the judgment of the High Court will remain uneffected. The appellants will get their cost, which we quantify to Rs. 5, 000. N. V. K. Appeals allowed.

The appellants joined the State Police Force as Constables, were promoted as Assistant Sub Inspectors of Police, and later as officiating Sub Inspectors of Police and confirmed as Sub Inspectors. In the meanwhile, a large number persons were directly recruited as Sub Inspectors, and also confined. All these persons were ranked above the appellants in the seniority list. In writ petitions to the High Court, the appellants contended that their seniority must be reckoned from the date of their continuous officiation as sub Inspectors, and that they were never considered for promotion to the next higher post of Inspector of Police, because of their delayed confirmation, and of the insistence of the Rules that they should be confirmed as Sub Inspectors of Police before they could be considered for promotion to the post of Inspector of Police and that the offending Rule be quashed. The State supported the claim of the appellants to seniority on the basis of continuous officiation, but the direct recruits contested the writ petition. The High Court refused to recognise the claim of the appellants to seniority from the dates of their continuous officiation, on the ground that their promotion as officiating Sub Inspectors of Police could only be considered as promotion to posts outside the cadre. It further held, that their seniority could only be reckoned from the date of their confirmation, and that the rule pres 915 cribing confirmation as Sub Inspector as a condition precedent for promotion to the Post of Inspector of Police was not invalid. Allowing the Appeals, ^ HELD: 1. The three appellants are entitled to have the benefit of their continuous officiating service as Sub Inspectors of Police counted for seniority as Sub Inspectors of Police. A writ will issue, directing the state to re fix the seniority of the appellants and other officers similarly situated. [939 F] 2. It is not undisputed, that in the absence of Rules to the contrary, regulating the question of seniority between 'direct recruits ' and the 'promotees ' the general principle to be implied and followed to determine seniority is to base it on continuous offication in non fortuitous vacancies. [929B] In the instant case, the officiating Sub Inspectors of Police were obviously appointed to officiate in permanent or temporary vacancies in the existing subordinate ranks of the Calcutta Police, governed by the same Rules and Regulations as other Sub Inspectors of Police, drawing the same pay and discharging the same duties. There was not and there could never be any question of officiating Sub Inspectors constituting a different cadre, class or category by themselves. [934G H] 3. Rule 4 of the West Bengal Services (Determination of Seniority) Rules, 1981 which deals with seniority amongst direct recruits, broadly provides that their relative seniority shall be according to the cadre of merit when they are selected at the same examination persons appointed on the basis of an earlier examination taking precedence over those appointed on the basis of a later examination. It further provides that where seniority has not been previously determined it shall be determined according to the actual date of joining. Rule 5 deals with determination of seniority of promotees and provides that seniority of a person appointed to any post, cadre or grade shall be determined from the date of joining such post, cadre or grade, which by Rule 3 (vi) means tho date of continuous officiation in the post, cadre or grade. Rule 6 prescribes that the relative seniority between a promotee and a direct recruit shall be determined by the year of appointment or promotion of each in the post, cadre or grade irrespective of the date of joining, and that the promotees shall he en bloc senior to the direct recruits of the same year. Rules 4, 5 and 6 constitute a single scheme and if read together the scheme becomes clear. While date of joining is important to decide the question of seniority amongst promotees, it is the year of joining that is relevant when the question of relative seniority is to be deter mined between promotees and direct recruits. If direct recruits are appointed and promotees are promoted in the same year, all promotees are to take precedence over the direct recruit, irrespective of the actual date of their joining but as amongst the promotees themselves, the seniority is to be based on the date of joining. That is the true and appropriate construction of Rules 4, 5 and 6, and that was what the State Government wanted to do and was done. [935 F H ;936 A C] 916 Ganga Ram vs Union of India, ; , Katyani Dayal vs Union of India ; , distinguished. S.B Patwardhan vs State of Maharashtra, ; Baleshwar Dass vs State of UP. [1981] 1 SCR 449; A. Janardhana vs Union of India, ; , O.P. Singla , . Union of India; , ; G.S. Lamba & Ors. vs Union of India; , , B.S. Gupta vs Union of India, [1975] SUPP SCR 491; A.K. Subramana vs Union of India, P.S. Mahal vs Union of India. ; ; referred to.

Civil Appeal No. 56 of 1951. Appeal from a judgment and decree of the High Court of Allahabad (Malik and Wali Ullah JJ.) dated 14th February 1946, in Appeal No. 240 of 1943 which 37 arose out of a decree dated 19th January, 1943, of the Court of the Civil and Sessions. Judge, Kanpur, in Original Suit No. 34 of 1942. Achhru Ram (P. section Safeer, with him) for the appellant. S.P. Sinha (K. N. Aggarwala, with him) for the respond ent. 1951. November 1. The Judgment of the Court was deliv ered by FAZL ALI J. This is an appeal by special leave against a decision of the High Court at Allahabad, reversing the decision of the trial court, in a suit instituted by the appellant to recover damages from the respondent firm for breach of a contract. It appears that between the 10th and 18th April, 1941, the parties entered into 5 contracts, by which the respond ent firm undertook to supply to the appellant 184 bales of cloth of certain specifications manufactured by the New Victoria Mills, Kanpur, and the Raza Textile Mills, Ramput. Only 99 bales were taken up and there was a dispute about the remaining 85 bales. On the 17th October, 1941, a settle ment was arrived at between the parties, and it was agreed that the respondent firm should deliver to the appellant 61 bales, and that the goods should be delivered by the 17th November, 1941. The actual text of the agreement (exhibit 4) was as follows: " 61 bales as noted below are to be given to you by us. We shall continue sending goods as soon as they are prepared to you upto Magsar Badi 15 Sambat 1998. We shall go on supplying goods to you of the Victoria Mills as soon as they are supplied to us by the said Mill. (Specifications of cloth given here). We shall go on deliv ering the goods to you upto Magsar Badi 15 out of the goods noted above which will be prepared by the Mill. " 38 As the 61 bales were not supplied, the appellant sent a telegraphic notice to the respondent firm on 20th November, 1941, to the following effect "Give delivery of our 61 bales through Bank. Otherwise suing within a days. " The appellant did not receive any reply to this notice, and so he instituted the suit which has given rise to this appeal, on the 23rd April, 1942, claiming a sum of Rs. 9,808 and odd, which, according to him, represented the loss sustained by him on account of the rise in the market rate of the contracted goods, and he also claimed costs and interest. The respondent firm resisted the suit on a number of grounds, but their main plea, with which alone we are concerned in this appeal, was that the performance of the contract had been frustrated by circumstances beyond their control and hence the appellant 's claim must fail. This plea was negatived by the trial court, but it was upheld by the High Court, and hence this appeal. The only point which arises in this appeal is whether the circumstances of the case afford any basis for the application of the doctrine of frustration of. contract, a doctrine which is embodied, so far as this country is con cerned, in sections 32 and 56 of the . The main grounds of attack against the judgment of the High Court are : (1) that it has misread the agreement (exhibit 4) dated the 17th October, 1941, on which both parties rely; and (2) that it has paid more attention to an abstract legal doctrine than to the facts of the case. In our opinion, both these contentions are correct. The construction placed by the High Court upon the agree ment and its conclusion based thereon, are set out in the following passage in the leading judgment of Wali Ullah J. : "It seems to me that the parties clearly intended that the defendant was to supply the goods to the 39 plaintiff ' if and when and only in that event the particu lar goods were prepared by the Victoria Mills and were supplied to the defendant between the 17th of October, 1941, and 17th of November, 1941. As the fundamental assumption on which the contract was made ceased to exist during the time of performance and consequently it became impossible for the defendant to fulfil the contract, it must be held that the contract was discharged by supervening impossibility. " The construction suggested by the High Court is precise ly the construction which was attempted to be put on a similar contract by the defendant respondents in the case of Harnandrai vs Pragdas (1) but the Privy Council negatived it. ' In that case, the provision as to delivery of goods ran as follows : "The said goods are to be taken delivery of as and when the same may be received from the Mills." The Mills failed to perform their contract with the defendants as they were engaged in fulfilling certain con tracts with the Government, and consequently the defendants could not supply the goods to the plaintiffs. The questions raised before the Privy Council were as to the meaning of the contract and whether its performance had been frustrat ed, and the Privy Council disposed of them in these words : "It was also suggested that the words 'as and when the same may be received from the Mills ' should be construed, as if they were ' if and when the same may be received from the Mills. ' This is to convert words, which fix the quantities and times for deliveries by instalments into a condition precedent, to the obligation to deliver at all, and virtual ly makes a new contract. The words certainly regulate the manner of performance, but they do not reduce the fixed quantity sold to a mere maximum, or limit the sale to such goods, not exceeding 864 bales, as the Mills might deliver to the defendants during the remainder of the year. " Their Lordships then proceeded to observe: (1) (1888) L.R. 15 I.A. 9. 40 "The Mills, from which the goods were to come, no doubt were contemplated as continuing to exist, though it does ' not follow that, in a bargain and sale such as this, the closing or even the destruction of the Mills would affect a contract between third parties, which is in terms absolute; but the Mills did continue to exist and did continue to manufacture the goods in question, only they were made for and delivered to somebody else. " We agree with the reasoning of the Privy Council, and it seems to us that the considerations which prevailed with them must govern the construction of the agreement with which we are concerned in this case. The agreement does not seem to us to convey the meaning that the delivery of the goods was made contingent on their being supplied to the respondent firm by the Victoria Mills. We find it difficult to hold that the parties ever contemplated the possibility of the goods not being supplied at all. The words "prepared by the Mill" are only a description of the goods to be supplied, and the expressions "as soon as they are prepared" and "as soon as they are supplied to us by the said Mill" simply indicate the process of delivery. It should be remem bered that what we have to construe is a commercial agree ment entered into in a somewhat common form, and, to use the words of Lord Sumner in the case to which reference has been made, "there is nothing surprising in a merchant 's binding himself to procure certain goods at all events, it being a matter of price and of market expectations. " Since the true construction of an agreement must depend upon the import of the words used and not upon what the parties choose to say afterwards, it is unnecessary to refer to what the parties have said about it. Even apart from the construction of the agreement, it seems to us that the plea of the respondents must fail on their own admissions. The defendant has stated in his evidence that he had not sold the 61 bales of cloth to any other person at the time he received the telegraphic notice of the 20th November, 1941, (exhibit 1). On his own admis sion, therefore, he was 41 in a position to supply 61 bales of the contracted goods at the time when the breach of the agreement is alleged to have happened. That being so, we are unable to hold that the performance of the contract had become impossible. The matter however does not rest there. Guruprasad, a clerk of the Mills Company, who is the second witness for the defend ants, has made an important statement to the following effect "The customers all place their requirements before the sales manager. If the goods required are ready, they are sold to the customers and if they are not ready and if the customer wants them to be manufactured they are delivered to the customers after manufacture. An order book is main tained at the Mills. " Such being the practice which prevailed in the Victoria Mills, it was for the defendants to show that an order for the manufacture of the contracted goods was placed with the Mills and yet the Mills failed to supply the goods. No such evidence has however been offered by the defendants The High Court has surmised that it might not have been possible to supply the goods within the period mentioned in the agreement, but there is no material to support that state ment. In these circumstances, this is obviously not a case in which the doctrine of frustration of contract can be in voked. That doctrine has been explained in a number of cases, some of which are referred to in the judgment of the High Court, but the latest pronouncement with regard to it is to be found in the speech of Viscount Simon in British Movietone News vs London Cinemas(1), in which the Lord Chancellor referred with approval to the following enuncia tion of the doctrine by Earl Loreburn in a previous case F.A. Tamplin S.S. Co. Ltd. vs Anglo Mexican Petroleum Products Co., Ltd(2): ". a court can and ought to examine the contract and the circumstances in which it was made, not of course (1) ; (2) , 404. 6 42 to vary, but only to explain it, in order to see whether or not from the nature of it the parties must have made their bargain on the footing that a particular thing or state of things would continue ,to exist. And if they must have done so, then a term to that effect will be implied, though it be not expressed in the contract . no court has an absolving power, but it can infer from the nature of the contract and the surrounding circumstances that a condition which is not expressed was a foundation on which the par ties contracted," It seems necessary for us to emphasize that so far as the courts in this country are concerned, they must look primarily to the law as embodied in sections 32 and 56 of the . These sections run as fol lows : "32. Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened. If the event becomes impossible such contracts become void." "56. An agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. . The enforcement of the agreement in question was, as we have already pointed out, not contingent on the happening of an uncertain future event, nor does the present case fall within the second paragraph of section 56, which is the only provision which may be said to have any relevancy to the plea put forward by the respondents. Clearly, the doctrine of frustration cannot avail a defendant, when the non per formance of a contract is attributable to his own default. We accordingly allow the appeal, set aside the judgment of the High Court, and restore the decree of the trial court. The appellant will be entitled to his costs through out. Appeal allowed. Agent for the respond ent: S.S. Sukla.

The respondents agreed to deliver 61 bales of cloth to the appellant by the 17th November, 1941. The agreement provided "we shall continue sending the goods as soon as they are prepared to you up to Magsar Badi 15, Sambat 1998 . We shall go on supplying goods to you of the Victoria Mills as soon as they are supplied to us by the said Mills . We shall go on delivering the goods to you . out of the goods noted above which will be prepared by the Mill. " In a suit for damages for non deliv ery of the goods the respondents pleaded that as they had not received the goods from the Victoria Mills before the 17th of November, 1941, performance of the contract had become impossible by reason of an event which they could not prevent and the contract had therefore become void under Sec. 56, Indian Contract Act: Held, (i) that, on a proper construction of the con tract, delivery of the goods was not made contingent on their being supplied to the respondents by the Victoria Mills. The words "prepared by the Mills" were only a de scription of the goods to be supplied, and the expressions "as soon as they are prepared" and "as soon as they are supplied to us by the said Mill "simply indicated the proc ess of delivery. This was not therefore a case in which the doctrine of frustration of contract could be invoked. (ii) Even apart from the construction of the agreement, as the respondents had not shown that they had placed an order for the goods with the Victoria Mills and yet the Mills had failed to supply, there was a clear breach of contract to deliver and the appellant was entitled to recover damages. Harnandrai vs Pragdas (L. R. 15 I.A. 9) and British Movietone News vs London Cinemas relied on.

minal Appeal No. 49 of 1956. Appeal by special leave from the judgment and order dated October 13, 1954, of the Madras High Court in Criminal Revision Case No. 267 and 1954 154 1212 (Criminal Revision Petition No. 249 of 1954) arising out of the judgment and order dated January 12, 1954, of the Court of the District and Sessions Judge as Tiruchirapalli in Criminal Revision Petition No. 17 of 1953. R. Ganapathy Iyer and G. Gopalakrishnan, for the appellant. No one appeared for the respondents. August 25. The Judgment of the Court was delivered by SINHA J. The only question for determination in this appeal by special leave, is whether the petition of complaint, disclosed a prima facie offence under section 295 of the Indian Penal Code. The courts below have taken the view that it did not, and on that ground, it stood summarily dismissed, before evidence pro and con had been recorded. It appears that the appellant filed a petition of complaint in the court of the Additional First Class Magistrate, Tiruchirappalli, against the respondents, three in number. The petition of complaint alleged inter alia that the first accused is the leader of Dravida Kazakam (a community of persons who profess to be religious reformers, one of whose creeds is to carry on propaganda against idol worship), and as such, be was out to " vilify a certain section of the Hindu community and do propaganda by holding meetings and writing articles. " It is further alleged in the petition of complaint that " recently, the first accused announced his intention of breaking the image of God Ganesa, the God sacred to the Saiva Section of the Hindu Community on 27th May, 1953, in a public meeting at Town Hall. This caused terror commotion in the mind of the Saivite Section of the Hindu Community. " The complainant claims to be a Saivite. The complainant further alleged in his petition that on May 27, 1953, at about 5 30 p.m., the accused broke an idol of God Ganesa in public at the Town Hall Maidan, and before breaking the idol, lie made a speech, and expressly stated that he intended to insult the feelings of the Hindu community by breaking the idol of God 1213 Ganesa. The said act of breaking the idol was alleged to have been actively abetted by instigation and aid by the other two accused persons, who also made speeches. The petition of complaint also alleged that the said act of breaking the image of God Ganesa was done with the intention of insulting the religious feelings of certain sections of the Hindu community, who hold God Ganesa in veneration, and that the acts complained of, amounted to offences under sections 295 and 295A of the Indian Penal Code. On those allegations, the petition of complaint (dated June 5, 1953) prayed that processes might issue against the three accused persons. In the list of witnesses appended to the petition, figured the Additional District Magistrate, the Sub Divisional Magistrate, the Town Sub Inspector of police, Tiruchi Fort, and Sub Magistrate, Tiruchy Town. On the same date, the learned magistrate examined the complainant on oath. The complainant made statements in support of his allegations in the petition of complaint. Thereupon, the learned magistrate directed that the petition of complaint be sent to the Circle Inspector of police, Trichy, for inquiry and report under section 202, Criminal Procedure Code. On June 26, 1953, on receipt of the police report which " showed that though the occurrence as alleged had taken place it was a point of law if the act of the accused would amount to any offence ", the learned magistrate passed his order, dismissing the complaint under section 203 of the Criminal Procedure Code. In the course of his order, the learned magistrate observed as follows: "The mud figure of Ganesa alleged to have been broken by accused is not an object held sacred or worshipped by any class of persons. Simply because it resembled the God Ganesa held in veneration by a section it cannot become an object hold sacred. Even Ganesa idol abandoned by the people as unworthy of worship loses its sanctity and it is no longer an object held sacred by anybody, since such given up idols are found in several places of defilement. It is not an offence if a person treads union any such abandoned idol. Therefore the breaking of mud figure of Ganesa 1214 does not amount to an offence under Section 295, Indian Penal Code. " "The speeches delivered by the accused with deliberate and malicious intention of outraging religious feelings of a community, no doubt amount to an offence under Section 295 A, Indian Penal Code. But for laying a complaint under this section the sanction of the Government is necessary. This section has been clearly mentioned in the complaint and it cannot be said it was included by oversight. Without a proper sanction an offence under this section is unsustainable. I therefore see no sufficient ground for proceeding with the complaint and I dismiss the same under section 203, Criminal Procedure Code. " The complainant moved the learned Sessions Judge of Tiruchirappalli, by his petition in revision, filed on July 9, 1953, under sections 435 and 436 of the Criminal Procedure Code, for setting aside the order of dismissal of the complaint. In the petition filed in the Court of Session, the complainant stated that the petition was confined to the complaint in respect of the alleged offence under section 295, Indian Penal Code, and that it did not seek to revise the order of dismissal of the complaint in respect of an offence tinder section 295 A of the Indian Penal Code. The learned Sessions Judge dismissed the petition by an order dated January 12, 1954, holding, in agreement with the learned magistrate, that the acts complained of did not amount to an offence under section 295, Indian Penal Code. In the course of his order, the learned Sessions Judge made the following observations: " I agree with the learned Magistrate that the acts complained of do not amount to an offence. The accused, who profess to be religious reformers in a campaign against idolatory organized a public meeting at which they broke an earthern image of the God Ganesa. The particular image broken was the private property of the accused and was not in itself an object held sacred by any class of persons; nor do I think that idol breaking by a non believer can reasonably be regarded by a believer as an insult to his religion ; and the ingredients of Section 295, Indian Penal Code, are therefore not made out. " 1215 The complainant then moved the High Court in its revisional jurisdiction under section 439 of the Code of Criminal Procedure. The matter was heard by a learned single Judge of that Court. The learned single Judge also agreed with the courts below in the reasons given by them for dismissing the petition of complaint, and refused to order further inquiry. In the course of his judgment, he discussed the question whether a mud image of God Ganesa, came within the scope of the words " any object held. sacred by any class of persons " in section 295, and he answered the question in the negative. In this connection, he referred to the judgment of the Full Bench of the Allahabad High Court in the case of Queen Empress vs Imam Ali (1), which is directly an authority for this proposition only that the word 'object ' in section 295 of the Indian Penal Code, does not include animate objects. That case dealt with the complaint of killing a cow. Edge C. J. in the course of his judgment, made an observation that the word ' object ' should be interpreted ejusdem generis with the words 'place of worship ', and by way of an example of such an inanimate object, he mentioned an idol. That observation, if anything, is not against the complainant. The learned single Judge also referred to the case of Romesh Chunder Sannyal vs Hiru Mondal (2), which also is not in point inasmuch as it dealt with the case of a dedicated bull. But the learned Judge seemed to draw from those cases the inference which may be stated in his own words, as follows: " Interpreted like that, it would mean that the section would apply only to cases where an idol in a temple is sought to be destroyed, damaged, or defiled. The words 'any object held sacred by any class of persons ' even otherwise will apply only to idols in a temple or when they are carried out in processions on festival occasions. The object held sacred ' will mean only the idols inside the temple and when they are taken out in processions on festival occasions. In such circumstances as in the present case the breaking is nothing more than a doll taken from the shop. (1) All. 150. (2) Cal. 1216 Though the intention of the respondents may be to decry the feelings and wound the susceptibilities of a large section of the people, still the intention alone is not sufficient unless it is carried out by an act which must fall within the scope of this section. The dolls in the shop, though they may resemble several of the deities in the temple, cannot be held to be objects held sacred by any class of persons. In modern society there are several images of the deities in the drawing rooms of several houses. It cannot for a moment be suggested that these images are objects held sacred. These have got to be distinguished from the objects held sacred, which can only be when they are duly installed in a temple and from which they are subsequently taken out in procession on festival occasions. What was broken therefore by the respondents is nothing more than a doll taken either from a shop or made for the occasion, and it cannot by any means be called ail object held sacred. The offence is not made out and the dismissal is therefore justified. " The petitioner moved the High Court for the necessary certificate of fitness for making an appeal to this Court. The learned Judge, who had heard the case on merits, also dealt with this application, and refused to certify that this was a fit case for appeal to this Court under article 134(1)(c) of the Constitution. The petitioner moved this Court and obtained the necessary special leave to appeal. It is regrettable that the respondents have remained ex parts in this Court. The learned counsel for the appellant has urged that the courts below had unduly restricted the meaning of the words of section 295, particularly, the words " any object held sacred by any class of persons ", and that the words have been used in their fullest amplitude by the Legislature, in order to include any object consecrated or otherwise, which is held sacred by any class of persons, not necessarily belonging to a different religion or creed. In the first place, whether any object is held sacred by any class of persons, must depend upon the evidence in the case, so also the effect of the words " with the intention of thereby insulting the religion of any class 1217 of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion. " In this case, the facts alleged in the petition, do not appear to have been controverted, but the learned magistrate, as also the learned Sessions Judge and the learned Judge in the High Court, have thrown out the petition of complaint solely on the ground that the image of God Ganesa, treated by the respondents as alleged by the complainant, could not be said to be held sacred by any class of persons. In the instant case, the insult alleged was by destruction of the image of God Ganesa. Apart from the question of evidence, which had yet to be adduced, it is a well knonwn fact that the image of Lord Ganesa or any objective representation of a similar kind, is held sacred by certain classes of Hindus, even though the image may not have been consecrated. The learned Judge in the Court below, has given much too restricted a meaning to the words any object held sacred by any class of persons ", by holding that only idols in temples or idols carried in processions on festival occasions, are meant to be included within those words. There are no such express words of limitation in section 295 of the Indian Penal code, and in our opinion, the learned Judge has clearly misdirected himself in importing those words of limitation. Idols are only illustrative of those words. A sacred book, like the Bible, or the Koran, or the Granth Saheb, is clearly within the ambit of those general words. If the courts below were right in their interpretation of the crucial words in section 295, the burning or otherwise destroying or defiling such sacred books, will not come within the 'Purview of the penal statute. In our opinion, placing such a restricted interpretation on the words of such general import, is against all established canons of construction. Any object however trivial or destitute of real value in itself, if regarded as sacred by any class of persons would come within the meaning of the penal section. Nor is it absolutely necessary that the object, in order 1218 to be held sacred, should have been actually worshipped. An object may be held sacred by a class of persons without being worshipped by them. It is clear, therefore, that the courts below were rather cynical in so lightly brushing aside the religious susceptibilities of that class of persons to which the complainant claims to belong. The section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds. Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the court. As a result of ' these considerations, it must be held that the courts below have erred in their interpretation of the crucial words of section 295 of the Indian Penal Code. But the question still remains whether, even after expressing our strong disagreement with the interpretation of the section by the courts below, this Court should direct a further inquiry into the complaint, which has stood dismissed for the last about 5 ),ears. The action complained of against the accused persons, if true, was foolish, to put it mildly, but as the case has become stale, we do not direct further inquiry into this complaint. If there is a recurrence of such a foolish behaviour on the part of any section of the community, we have no doubt that those charged with the duty of maintaining law and order, will apply the law in the sense in which we have interpreted the law. The appeal is, therefore, dismissed. Appeal dismissed.

The words " any object held sacred by any class of persons" occurring in section 295 Of the Indian Penal Code are of general import and cannot be limited to idols in temples or idols carried on festival occasions. Not merely idols or sacred books, but any other object which is regarded as sacred by any class of persons, whether actually worshipped or not, fall within the description. Queen Empress vs Imam Ali, All. 150 and Romesh Chunder Sannyal vs Hiru Mondal, Cal. 852, considered. Consequently, in a case where the allegation in the petition of complaint was that one of the accused broke the idol of God Ganesa in public and the two others actually aided and abetted him with the intention of insulting the religious feeling of the complainant and his community who held the deity in veneration and the trial Magistrate, on receipt of the Police report that the alleged occurrence was true, dismissed the complaint under section 203 of the Code of Criminal Procedure holding that the breaking of a mud image of Ganesa was not an offence under section 295 of the Indian Penal Code and the Sessions judge and the High Court in revision, agreeing with the view of the trial Court, refused to direct further enquiry : Held, that the courts below were clearly in error in inter preting section 295 of the Indian Penal Code in the way they (lid, but since the complaint stood long dismissed, no further enquiry need be directed into the matter. Held, further, that the Courts must be circumspect in such matters and pay due regard to the religious susceptibilities of different classes of persons with different beliefs, whether they shared those beliefs or not or whether those beliefs in the opinion of the Court were rational or not.

Civil Appeal No. 1432 of 1968, (From the judgment and decree dated the 26 10 1959 of the Patna High Court in appeal from original decree No. 280 of 1953.) Sarjoo Prasad with D. Goburdhun, for the appellants. V. section Desat with D. P. Mukherjee for respondents 3, 4, S, 6(a) 14 and is. Ex parte, for respondents 1, 2, 6, 7 to 13 & 16 17. The Judgment of the Court was delivered by KHANNA, J. The plaintiff appellants field a suit in the Court of Subordinate Judge against 41 defendants for a declaration of their title to land measuring 142 bighas, 17 kathas described in the schedule to the plaint situated in village Shivpur Diar in District Shahbad. Prayer was also made for delivery of possession of the land and for mesne profits amounting to Rs. 4,100. The trial court dismissed the suit in respect of land measuring 28.36 acres out of plot No. 3863/ 41. Suit in respect of the remaining land was decreed. The plaintiffs were also held entitled to recover mesne profits from defendants who might be found in possession of the land decreed. On appeal by defendants 3, 7, 12 and 14 the Patna High Court accepted the appeal and dismissed the suit in its entirety. The plaintiffs have come up in appeal to this Court against the judgment and decree of the High Court on certificate granted under article 133 (1) (a) of the Constitution. Village Shivpur Diar consists of five Mahals, Shivpuur Diar Nambari, Shivpur Diar Gangbarar Shurnali, Shivpur Diar Gangbarar Janubi, Shivpur Diar Sarju Barar and Shivpur Diar Naubarar. Each of the two Mahals, Shivpur 'Diar Gangbarar Chummily and Shivpur Diar Nambari has 18 pattis. Proprietorship rights in each patti were calculated as 16 annas. One Brahmdeo Singh had a share of S annas 4 pies in patti Bhrighunath Singh in the above Mahals. He also held different shares in the other pattis of the two Mahals. Brahmdeo Singh mortgaged with possession his share in the said lands in favour of Sitaram Sahu and Sheogulam Sahu by means of several mortgage deeds. As the mortgagees were dispossessed from some of the lands mortgaged in their favour, they filed a suit for recovery of the mortgage amounts. Final decree was awarded in that suit on June 13, 1925. In execution of that decree proprietary interest of Brahmdeo Singh in Mahal Shivpur Diar Nambari and Mahal Shivpur Diar Gangbarar Shumali were auctioned on June 15, 1932 and was purchased by Maine Kuer, widow of Sitaram Sahu mortgagee. Sale certificate was granted to Maine Kuer auction purchaser on February 26, 1935. She got delivery of possession of the land sold in her favour on March and 20, 1935. On November 9, 1936 Shea Prasad Singh, who held general power of attorney from Maina Kuer, executed a patta (lease) for seven years in respect of 135 bighas, 15 kathas out of the land purchased by Maina Kuer in favour of Mahadeo Rai and others. On September 27, 1940 Sheo Prasad Singh 557 executed on behalf of Maina Kuer a deed for perpetual lease of land measuring 134 bighas, 17 kathas out of the land purchased by her in favour of plaintiffs 1 to 9, 14, 16 to 18 and father of plaintiffs 10 to 13. Three days later on September 30, 1940 Sheo Prasad Singh executed another deed for perpetual lease in respect of the remaining land measuring 8 bighas in favour of plaintiff No. 15. On May 16, 1941 Mahadeo Rai and others, in whose favour lease deed of the land had been executed for seven years, relinquished their rights under the lease in favour of the plaintiffs. On July 13, 1942 Maina Kuer sold her proprietary interest which she had acquired under the auction sale lo Rajendra Prasad Singh and others. The plaintiffs in whose favour deed for perpetual lease of the land purchased by Maina Kuer had been executed filed the present suit in January 1950 against the defendants, on the allegation that defendants 1 to 18 had taken wrongful possession of the land. Prayer was also made, as mentioned above, for recovery of Rs. 4,100 as mesne pretty. It was also mentioned by the plaintiffs that proceedings under section 145 of the Code of Criminal Procedure in respect of the land in dispute had been initiated but as those proceedings were dropped the plaintiffs had to seek redress by means of the present suit. The suit was resisted by the defendants who denied the title of the plaintiffs or Maina Kuer to the land in dispute. It was also stated that the said land had not been partitioned. Plea was also taken that the defendants had all along remained in possession of the land and the plaintiffs suit was barred by limitation. The trial court dismissed the suit in respect of 28.36 acres of land on the ground that the defendants had built their houses on that land. The plaintiffs suit was held to be barred in respect of that land on account of the doctrine of waiver and acquiescence. The suit in respect of the remaining land, as already mentioned, was decreed. on appeal the High Court held that the plaintiffs had failed to prove their title to the land in dispute. The land in dispute, it was held, was not shown to be the same as had been purchased by Maina Kuer in auction sale. The plaintiffs suit for possession of the land was also held to be barred by limitation. In appeal before us Mr. Sarjoo Prasad on behalf of the appellants had made a number of contentions, but in our opinion, it is not necessary to go into all of them for the appeal is liable to be dismissed on the short ground that the plaintiff appellants have failed to establish that the land in dispute is the same as had been purchased in auction by Maina Kuer as per sale certificate dated February 26, 1935 and was thereafter leased on her behalf in favour of the appellants as per two lease deeds dated September 27 and 30, 1940. It is not disputed that if on the above view of the matter the appellants are found to have not proved their title to the land in dispute, the question of going into other contentions would not arise. Mr. Sarjoo Prasad, however, sub mist that the defendant respondents did not dispute in the trial court that the land in dispute was the same which had been purchased by Maina Kuer in auction sale and had been leased in favour of the 558 plaintiffs. We find it difficult to accede to this submission. In para 15 of their written statement defendants 2, 3, 12 and 14 stated as under: "That Maina Kuer was not ' at all auction purchaser of the property in dispute nor was she a proprietor nor Zamindar nor was she at any time in possession and occupation of the lands in dispute. The allegation of the plaintiff in respect of these facts are altogether wrong." In the same language is couched para 15 of the written statement of defendant No. 7 who filed a separate written statement. It was incumbent in view of the averments in para 15 of the written statements for the plaintiff appellants to establish by clear evidence that the land in dispute was the same which had been purchased in auction sale by Maina Kuer and had been subsequently leased by her in favour of the appellants. The learned Judges of the High Court discussed the or and documentary evidence which had been adduced in the case and came to the conclusion that there was no cogent material to show that the land in dispute was the same which and been purchased by Maina Kuer and had been leased by her in favour of the appellants. After hearing Mr. Sarjoo Prasad we find no sufficient ground to take a different view. The land which had been purchased by Maina Kuer in the auction sale as per sale certificate dated February 26, 1935 was situated in Bihar district in the State o Uttar Pradesh on the left bank of the Ganges. The land which is the subject matter of the present that land in situated in Shahbad district in the State of Bihar on the right bank of the Ganges. Although the land is subject to river action, the onus to prove that the land in dispute in Shahbad district represents the land which got submerged as a result of the river action in Bihar district was upon the plaintiff appellants. The appellants have failed as held by the High Court, to discharge this onus. Mr. Sarjoo Prasad took us through the evidence of Ram Pachise Lall (DW 3) and Nanku Lall Singh (DW 5), but the evidence of these witnesses is far from proving that the land in dispute is the same as was purchased by Maina Kuer. The evidence of Raghunath Prasad (PW 6), to which also passing reference was made, is not sufficient to connect the land in dispute with sale certificate dated February 26, 1935. Prayer has also been made by Mr. Sarjoo Prasad for the remand of the case to the trial court as the plaintiff appellants were laboring under the impression that the defendant respondents had not disputed that the land in dispute was the same as had been purchased by Maina Kuer. It is urged that because of that impression, material which could have clearly proved that the land in dispute was the same as had been purchased by Maina Kuer could not be brought on the record. We find it difficult to accede to this prayer. As already pointed out above, the contesting defendants clearly stated in their written state meets that Maina Kuer was not the auction purchaser of the land in dispute. In view of that unequivocal averment, there was no vaIid 559 basis for the assumption or the impression under which plaintiff appeliants are stated to have labored. Apart from that, we find that the suit out of which the present appeal has arisen was filed as long ago as January 1950. From the title of the appeal we find that many of the original plaintiffs and defendants have during this period of more than a quarter of century departed and are no more in the land of the living, having bowed as it were to the inexorable law of nature. They are now represented by their legal representatives. To remand the suit to the trial court would necessarily have the effect of keeping alive the strife between the parties and prolonging this long drawn litigation by another round of legal battle in the trial court and thereafter in appeal. It is time, in our opinion, that we draw the final curtain and put an end to this long meandering course of litigation between the parties. If the passage of time and the laws of nature bring to an end the lives of men and women, it would perhaps be the demand of reason and dictate of prudence not to keep alive after so many years the strife and conflict started by the dead. To do so would in effect be defying the laws of nature and offering a futile resistance to the ravage of time. If human life has a short span, it would be irrational to entertain a taller claim for disputes and conflicts which are a manifestation of human frailty. The courts should be loth to entertain a plea in a case like the present which would have the effect of con damning succeeding generation of families to spend major part of their lives in protracted litigation. It may be appropriate in the above context to reproduce what was said in the case of Sant Narain Mafhur Ors. vs Rama Krishna Mission & ors.(1): It is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its embers to shoulder for a further length of time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature. one is tempted in this context to refer to the observations of Chief Justice Crete in a case concerning peerage claim made after the death without issue of the Earl of oxford. Said the learned Chief Justice: Time hath its revolutions; there must be a period and an end to all temporal things an end of names, and dignities and whatsoever is terrne, and why not of De Vere? For where is Bohun? Where is Mortimer ? Where is Mortimer ? Why, which is more and most of all, where is Plantagenet ? They are all entombed in the urns and sepulchers of mortality. " What was said about the inevitable end of all mortal beings, however eminent they may be, is equally true of the affairs of mortal beings, their disputes and conflicts, their ventures in the field of love and sport, their achievements and failures for essentially they all have a stamp of mortality on them." (1) A.T.R.1974 S.C.2241. 560 one feels tempted to add that if life like a dome of many colored glass stains the white radiance of eternity, so do the doings and conflicts of mortal beings till death tramples them down. The appeal fails and is dismissed but in the circumstances without costs. P.H.P Appeal dismissed.

The plaintiff appellants filed a suit against defendants for a declaration of their title to the land in question admeasuring 142 bighas. The trial Court dismissed the suit in respect of land admeasuring 28 acres and decreed the suit in respect of the remaining land. The plaintiffs ' suit was held to be barred in respect of that land on account of the doctrine of waiver and acquiescence. The plaintiffs were also held entitled to recover mesne profits. On an appeal filed by some of the respondents, the High Court accepted the appeal and dismissed the suit in its entirety. The High Court held that it was not shown that the disputed land was the same as had been purchased by Mina Kuer in auction sale. The High Court also held that the plaintiffs ' suit for possession was barred by limitation. The appellants contended. (1) The respondent did not dispute that the suit land was the same which was purchased by Mina Kuer as per sale certificate dated 26 2 1935. (2) In any case the matter may be remanded for determining the above issdue. Dismissing the appeal, ^ HELD: (1) The appellants have failed to establish that the land in dispute is the same as has been purchased in auction by Mina Kuer as per sale certificate dated 26 2 1935. The contention of the appellant that the respondents did not dispute that the suit land is the same as the one purchased by Mina Kuer is not correct. The respondents did deny this fact in their written statement. The land which is the subject matter of the present litigation is situate in the State of Bihar on the right bank of the Ganges. Although the land is subject to river action, the onus to prove that the land in dispute in Bihar State represents the land in U.P. which got submerged as a result of river action was upon the appellants. The appellants have failed to discharge this onus. [557F, H, 558A, E] (2) The prayer of the appellants for remand of the case is rejected because there was no valid basis for the assumption of the appellants that the appellants did not dispute the identity of the land. The suit was filed as long ago as in January, 1950. During the pendency of this litigation many of the original plaintiffs and defendants have died and are now represented by their legal representatives. It is time that we draw the final curtain and put an end to this long course of litigation between the parties. If the passage of time and laws of nature bring to an end the lives of men and women it would perhaps be the demand of reason and dictate of prudence not to keep alive after so many years the strife and conflict started by the dead. To do so would in effect be defying the laws of nature and offering a futile resistance to the ravage of time. If human life has short span, it would be irrational to entertain a taller claim for disputes and conflicts which are a manifestation of human frailty. 'the Courts should be loth to entertain a plea in a case like the present which would have the effect of condemning succeeding generation of families to spend major part of their lives in protracted litigation. [558G H, 559A D] Sant Narain Mathur vs Rama Rrishna Mission ; reiterated.

minal Appeal Nos. 402 to 419 of 1993. From the Judgment and Order dated 3.3.1992 of the Karnataka High Court in Crl. Petitions Nos. 1574 to 1584 of 1991 and 1588 to 1594 of 1991. M.S. Nesargi, R.C. Mishra and Dr. (Mrs.) Meera Aggarwal (For Aggarwal & Mishra & Co.,) for the Appellant. V.Gauri Shankar, Anil Srivastava and Mrs. Anil Katiyar (NP) for the Respondent. The Judgments of the Court were delivered by K. RAMASWAMY.J. Special Leave granted. Since common question of law arises in these 18 appeals for decision, they are disposed of by a common judgment. The appellant is one of the Directors of M/s Ideal Jawa (India) Ltd. Yadavagiri, Mysore, a Private Ltd. Company estab lished under the Companies Act. It was also registered under the . Its object is to manufacture Motor Cycles and its accessories. It has its Managing Director, Joint Managing Director and Directors including the appellant to manage the establishment. The respondent laid 18 complaints against six accused including the appellant(A 6) and the Company,employer,for their failure to deposit the contribution for the periods of October to December, 1990 to the Provident Fund Account No. NK 2260 under the Employees 'Provident Funds and Miscellaneous Provisions Act, 1952, for short 'the Act ', Employees ' Provident Funds Scheme, 1952,Employees ' Family Pension Scheme, 1971 and Employees ' Deposit Linked Insurance Scheme, 1976, for short 'the Schemes ' punishable under section 14A of the Act read with para 76 of 1952 scheme. On the Magistrate 's taking cognizance thereof, the appellant laid Crl. in the High Court to quash the complaints as they do not contain the relevant averments constituting the offences against the appellant. It is his case that he is a mere Director of the 514 Company. He was neither Incharge of the Company, nor is responsible to comply with the provisions of the Act and the Scheme,. In support thereof he placed reliance on the definition 'employer ' and the liability has been fastened on the Managing Director or the Manager or occupier of the establishment to abide by the Act and the Schemes. The High Court by its order dated March 3,1992, dismissed the applications. Thus these appeals. Sri Nesargi, learned Sr. counsel for the appellant contended that a reading of the definition 'employer ' in s.2(e) read with sections 30, 14 (1 A) and paras 30 and 38 of the Schemes demonstrates that the employer in relation to an establishment means the owner or occupier of the factory which includes the Agent or the Manager of the Factory under the . One Sri N.K. Khudamurad was recorded as occupier and one Sri D.K. Darashawas recorded as the Manager. They are Incharge of and were responsible to comply with the Act and the Schemes. No specific averments were made in the complaint making the appellant responsible for the management of the factory or the liability to comply with the Act and the Schemes. The complaint, therefore, laid against him is illegal and the cognizance taken by the Magistrate is vitiated by manifest error of law. In support thereof he placed reliance on the decisions of this court in Municipal. Corpn. of Delhi vs Ram Kishan Rohtagi & Ors. ; and Employees 'State Insurance Corpn.v. Gurdial Singh & Ors. [1991] Supp. 1 SCC 204. The Act and the Schemes are self contained code for deduction from the salary of the employees and the responsibility to contribute in equi proportion the employer 's share and deposit thereof in the account within the specific time under Act and the Schemes into the account. It is a welfare legislation to provide benefits to the employees as per the schemes. They need mandatory compliance and violation thereof visits with penal action. Section 2(e) of the Act defines 1 employer ' which means in relation to an establishment which is a factory, the owner or occupier of the factory, including the Agent of such owner or occupier, the legal representative of deceased owner or occupier and, where a person has been named as a Manager of the factory under clause (f) of sub section (1) of s.7 of the , the person so named. . . The definition is an inclusive definition bringing within its ambit the owner or occupier as well:" its Manager. Section 2(k) defines 'occupier ' which means the person who has ultimate control over the affairs of the factory, and, where the said affairs are entrusted to a Managing Agent such Agent shall be deemed to be the occupier of the factory. Therefore, by its extended definition its sweep is enlarged bringing within its scope the person who is incharge or responsible for in management or ultimate control over the affairs of the factory or establishment. 515 In the event of entrustment to a Managing Agent, such Managing Agent shall also be deemed 'to be the occupier of the factory '. Section 6 fastens the obligation on the employer in this behalf. It postulates that the contribution shall be made by the employer to the Fund and shall be 8 1/3% of the basic wages, dearness allowances and retaining allowances, if any, for the payment being payable to each of the employees, whether employed by him directly or through a Contractor. The employee 's contribution shall be equal to the contribution payable by the employer in respect of him, etc. in its application to any establishment or class of establishments. Other provisions are not relevant, hence they are omitted. Under para 30 of the Employees ' Provident Fund Scheme, 1952 and the other Schemes, the employer shall deposit the contribution to the Fund. Under para 36A of the Scheme the employer is enjoined to furnish particulars of the ownership of the factory which provides thus: "36 A Employer to furnish particulars of ownership: Every employer in relation to a factory or other establishment to which the Act applies on the date of coming into force of the Employees ' Provident Funds Scheme, 1961, or is applied after that date, shall furnish in duplicate to the Regional Commissioner in Form No. 5A annexed hereto particulars of all the branches and departments, owners, occupiers, directors, partners, manager or any other person or persons who have the ultimate control over the affairs of such factory or establishment and also sent intimation of any change in such particulars, within fifteen days of such change, to the Regional Commissioner by registered post and in such other manner as may be specified by the Regional Commissioner. Provided that in the case of any employer of a factory or other establishment to which the Act and the Family Pension Scheme, 197 1, shall apply the aforesaid Form may be deemed to satisfy the requirements of the Employees ' Family Pension Scheme, 197 1, for the purpose specified above. " The employer shall, in the first instance, pay both the contributions payable by himself (in the Scheme referred to as employer 's contribution) and also on behalf of the members employed by him directly or through a Contractor, the contribution payable by such member (in the Scheme referred to as member 's contribution). Para 38 provides that the employer shall send to the Commissioner within 15 days of the close of every month, pay the same to the Fund by separate Bank Drafts or cheques and the administrative charges. Within 25 days of close 516 of the month, the employer shall submit a monthly consolidated statement as per form 5 with particulars mentioned therein. Form 5 A envisages to give particulars in Columns 1 to 7 thereof, i.e. particulars of owner, etc. The appellant 's establishment stated the name of the establishment as Ideal Jawa (India) Ltd., Code No. of the establishment, its address, nature of business, period of its commencement and manufacturing status, have been given. In Column 8 the establishment is to furnish the names of the owner company, Directors. It was mentioned therein as Mr. N.K. Irani as Managing Director; the appellant as one of the Directors and others. In column 10 the names of occupier and Manager as registered under the were given. In Column 11 which specifies particulars thus: 'particulars of the persons mentioned above, who are Incharge of, and responsible for the conduct of the business of the establishment '. Therein it was stated that "as per the details mentioned in item 8". As stated earlier in column 8 the names of the Managing Director, the Joint Managing Director and two Directors including the appellant have been mentioned. Section 14A which is penal states thus: "14A. Offences by Companies: (1)If the person committing an Offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme in a company, every person who at the time the offence was committed was Incharge of and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offences and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2)Notwithstanding anything contained in sub section (1), where an offence under this Act, the scheme or the Family Pension Scheme or the Insurance Scheme has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any 517 director or manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation:For the purposes of this Section (a) "Company" means any body corporate and includes a firm and other association of individuals; and (b) "director" in relation to a firm means a partner in the firm. " Para 76 also fastens criminal offence for non compliance of the provisions of the schemes on the persons incharge of and responsible for the management or control of the establishment. It could thus be seen that every person, who at the time of the offence was committed, was Incharge of and was responsible to the establishment for conduct of its business as well as the company shall be liable to be proceeded against and punished accordingly. It is seen that Form 5 A read with para 36A give an option to the employer to furnish particulars of ownership and the branches of the department, owners, occupiers, directors, partners, manager or other person or persons who have ultimate control over the affairs of such factory or establishment incharge of and responsible for the conduct of the business of the company and compliance of the statutory obligation fastened under the Act and the relevant schemes. Particulars in column 8 as regards owners and column 10 relates to Manager or occupier and their names, addresses etc. and column 11 refers to the persons Incharge of, and are responsible to the management of the establishment or factory are specified. In form 5 A, as seen earlier in columns 8 and 1 1, it was specifically stated that the Managing Director, Joint Managing Director and Directors including the appellant as not only owners of the factory, but are Incharge of and responsible for the management of the factory and the establishment. In paragraph 3 of the complaint, It was specifically stated, "that accused 2 to 6 (appellant) are the persons Incharge of the said establishment and are responsible for conduct of its business. They are thus required to comply with all the provisions of the Act and the Schemes in respect of the said establishment". It is made mandatory to the employer to abide by the same and non compliance thereof is liable for prosecution under section 14A of the Act. Section 14(1 A) relied on by Sri Nesargi relates to only liability for punishment for contravention or making default to comply with section 6 or section 17 (3 A) in so far as it relates to the payment of inspection charges and para 38 of the Scheme in so far as it relates to payment of administrative charges. That has no application as regards the offence covered under section 14A by the companies are concerned. Accordingly, we hold that the 518 appellant having been declared himself as one of the person Incharge of and responsible for conduct of the business of the establishment or the factory, the complaint and non compliance thereof having been enumerated in subsequent paras of the complaint, it was validly made against the appellant along with other accused for the alleged contravention. Necessary allegations bringing out the ingredient of offence have been made out in the complaint. Therefore, the learned Magistrate has rightly been taken cognizance of the offence alleged against the appellant. Employees ' State Insurance Corporation vs Gurdial Singh & Ors. [1991] Supp. 1 SCC 204 is the case relating to an admission made by the prosecution that the Directors were not Incharge nor are responsible for compliance of the provisions of the , "Admittedly the company had a factory and it is not in dispute that the occupier of the factory had been duly named. It is also not in dispute that it has a Manager too". In view of this admission the Directors were held not responsible for non compliance with the provisions of the . The ratio therein, therefore, does not assist the appellant. Equally in Municipal Corporation of Delhi vs Ram Kishan Rohtagi & Ors. ; for an offence under Prevention of Food Adulteration Act specific provision of Food Adulteration Rules provide to nominate occupier or Manager responsible for the production or manufacture of articles of food, etc. by the company and were nominated. Under those circum stances, this court upheld the quashing of the proceedings against the Directors as the complaint did not contain necessary allegations constituting the offence against the Directors. The appeals are thus dismissed. R.M. SAHAI, J. Can a director of a private company, who is neither an occupier nor a manager be prosecuted under Section 14(A) of the Employees ' Provident Fund and Miscellaneous Provisions Act, 1952 (in brief 'the Act ') for violation of the Provident Fund Scheme. That depends, obviously, on the scheme of the Act the liability it fastens on the director of the Company and applicability of the penal provisions to the statutory violation or breach of the scheme framed under it. But before doing so it may not be out of place to mention that the Act is a welfare legislation enacted for the benefit of the employees engaged in the factories and establishments. The entire Act is directed towards achieving this objective by enacting provisions requiring the employer to contribute towards Provident Fund, Family Pension and Insurance and keep the Commissioner informed of it by filing regular returns and submitting details in forms prescribed for that purpose. Paragraph 36A of the 519 Provident Fund Scheme framed by Central Government under Section 5 of the Act requires the employer in relation to a factory or other establishment to furnish Form 5A mentioning details of its branches and departments, owners, occupiers, directors, partners, managers or any other person or persons who have ultimate control over the affairs of the factory or establishment. The purpose of giving details of the owners, occupiers and directors etc. is not ail empty formality but a deliberate intent to widen the net of responsibility on any and every one for any act or omission. It is necessary as well as in absence of such responsibility the entire benevolent scheme may stand frustrated. The anxiety of the Legislature to ensure that the employees are not put to any hardship in respect of Provident Fund is manifest from Sections 10 and 11 of the Act. The former grants immunity to provident fund from being attached for any debt outstanding against the employee. And the latter provides for priority of provident fund contribution over other debts if the employer is adjudged insolvent or the company is winded up. Such being the nature of provident fund any violation or breach in this regard as to be construed strictly and against the employer. Reverting to the statutory provision Sections 14 and 14A provide for penalities. The one applies to whosoever is guilty of avoiding payment of Provident fund and to employer if he commits breach of provisions mentioned in its various clauses where as Section 14A fastens liability on certain persons if the person committing the offence is a company. The scope of the two sections is same. Latter is wider in its sweep and reach. The former applies to anyone who is an employer or owner or is himself responsible for making payment whereas latter fastens the liability on all those who are responsible or are in charge of the company for the offence committed by it. Section 14A reads as under: "14 A. Offences by companies (1) If the person committing an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme is a company, every person, who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. 520 (2) Notwithstanding anything contained in sub section (1), where an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation For the purposes of this section, (i) "company" means any body corporate and includes a firm and other association of individuals; and (ii) "director", in relation to a firm means a partner in the firm. " Sub sections (1) and (2) extend the liability for any offence by any person including a partner by virtue of explanation if he was incharge or was responsible to the company at the time of committing the offence. The expression, 'was in charge of and was responsible to the company for the conduct of the business ' are very wide in their import. It could not, therefore, be confined to employer only. The employer is defined by Section 2(e) to mean, "2 (e). 'employer ' means (i)in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manager of the factory under clause (f) of sub section (1) of Section 7 of the , the person so named; and (ii)in relation to any other establishment, the person who, or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent;" Both clauses (i) and (ii) again are wide in their sweep. In clause (i) are 521 included not only owner or occupier but even the agent or manager. When it comes to establishments other than factory it is not confined to owner or occupier but to all those who have control or are responsible for the affairs of the company. It includes even director. Therefore, every such person who has the ultimate control over the affairs of company becomes employer. To say therefore that since paragraph 36 A requires an employer to do certain acts the responsibility for any violation of the provision should be confined to such employer or owner would be ignoring the purpose and objective of the Act and the extended meaning of employer in relation to establishments other than the factory. The declaration therefore in Form 5A including appellant as one of the persons in charge and responsible for affairs of the company was in accordance with law therefore his prosecution for violation of the scheme does not suffer from any error of jurisdiction or law. ORDER For reasons given by us in our concurring but separate orders the appeals fail and are dismissed. Appeals dismissed.

The appellant was one of the Directors of a Company registered under the Companies Act This company was also registered under the Factories Act and its object was to manufacture Motorcycles and its accessories. It had a Managing Director, Joint Managing Director and Directors including the appellant for managing the establishment. The respondent an Enforcement Officer, Regional Provident Fund Commissioner 's Office laid 18 complaints against six accused including the appellant (A 6) and the Company employer, for the failure to deposit the contribution for the period October to December 1990 to the Provident Fund Account under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, Employees Provident Fund Scheme 1952, Employees Family Pension Scheme, 1971 and Employees Deposit Linked Insurance Scheme 1976, offences punishable under Section 14A of the 1952 Act read with para 76 of the 1952 Scheme. On the Magistrate taking cognizance of the complaint, the appellant filed Criminal Miscellaneous Petitions in the High Court for quashing the complaint as they did not contain the relevant averments constituting offences against the appellant. It was contended that the appellant was a mere Director of the Company, that he was neither incharge of the company nor was 509 responsible to comply with the provisions of the aforesaid Act and the Schemes thereunder. Reliance was placed on the definition of 'employer ' in Section 2 (e) of the Act and the liability that had been fastened on the Managing Director or the Manager or occupier of the establishment to abide by the Act and the Schemes. The High Court dismissed the applications. The appellant appealed to this Court and contended that the reading the definition of 'employer ' in section 2(e) of the Act with Sections 30,14(1a) and para 31 of the Scheme, demonstrate that the employer in relation to the establishment means the owner or occupier of the factory which includes the Agent or the Manager of the factory under the Factories Act, that there was an occupier and Manager recorded for the instant company, and that they were Incharge of and were solely responsible to comply with the Act and the Schemes thereunder and that no specific averments have been made in the complaint making the appellant responsible for the management of the factory or the liability to comply with the Act and the Schemes. The complaint laid against the appellant was therefore illegal and the cognizance taken by the Magistrate was vitiated by manifest error of law. On the question: whether a Director of a Private Company, who is neither an occupier nor a manager can be prosecuted under Section 14(A) of the Employees ' Provident Fund and Miscellaneous Provisions Act, 1952 for violation of the Provident Fund Scheme. Dismissing the appeals, this Court, HELD: (By the Court K. Ramaswamy & R.M. Sahai, JJ.) 1. The Employees ' Provident Fund and Miscellaneous Provisions Act 1952 by Section 2(e) defines 'employer '. It is an inclusive definition and consists of two clauses which are vide in their sweep. In Clause (i) are included not only owner or occupier but even the agent or manager. When it comes to establishments other than factory it is not confined to owner or occupier but to all these who have central or are responsible for the affairs of the company. It includes even director. Therefore, every such person who has the ultimate control of the affairs of the company becomes employer Section 2(k) defines `occupier ' which means the person who has the ultimate control of the factory, and where the said affairs are entrusted to a Managing Agent, such agent shall be deemed to be the occupier of the factory. Therefore, by its extended definition its sweep is enlarged bringing within its scope the person who is incharge of or responsible for,the management or 1 510 ultimate control over the affairs of the factory or establishment. In the event of entrustment to a Managing Agent, such Managing Agent shall also be deemed 'to be the occupier of the factory '. (514 GH,) 2. In the instant case, the appellant having been declared himself as one of the person Incharge of and was responsible for conduct of the business of the establishment or the factory in Form 5A the complaint and non compliance thereof having been enumerated in para 3 of the complaint, it was validly made against the appellant along with other accused for the alleged Contravention. Necessary allegations bringing out the ingredient of offence have been made out in the complaint. Therefore, the Magistrate has rightly taken cognizance of the offence alleged against the appellant. (518 A B) (Per K. Ramaswamy, J.) 1. The Act and the Schemes are self contained code for deduction from the salary of the employees and the responsibility to contribute in equiproportion of the employer 's share and deposit thereof in the account within the specified time under the Act and the Schemes into the account It is a welfare legislation to provide benefits to the employees as per the schemes. They need mandatory compliance and violation thereof visits with penal action. (514 E) 2. Section 6 fastens the obligation on the employer. It postulates that the contribution to the fund shall be made by the employer. (515 A) 3. Under para 30 of the Employees ' Provident Fund Scheme, 1952 and the other Schemes, the employer shall deposit the contribution to the Fund. (515 B) 4. The employer shall, in the first instance, pay both the contributions payable by himself(in the Scheme referred to as employer 's contribution) and also on behalf of the members employed by him directly or through a Contractor, the contribution payable by such member (in the Scheme re ferred to as member 's contribution). (515 G) 5. Para 38 provides that the employer shall send to the Commissioner within 15 days of the close of every month, pay the same to the Fund by separate Bank Drafts or cheques and the administrative charges within 25 days of close of the month, the employer shall submit a monthly consolidated 511 statement as per form 5 with particulars mentioned therein. (515 H, 516 A) 6. Para 76 also fastens criminal offence for non compliance of the provisions of the schemes on the persons incharge of and responsible for the management or control of the establishment. Every person, who at the time the offence was committed, was Incharge of and was responsible to the establishment for conduct of its business as well as the company shall be liable to be proceeded against and punished accordingly. (517 C) 8. Form 5 A read with para 36A give an option to the employer to furnish particulars of ownership and the branches of the department, owners, occupiers, directors, partners, manager or other person or persons who have ultimate control over the affairs of such factory or establishment incharge of and responsible for the conduct of the business of the company and compliance of the statutory obligation fastened under the Act and the relevant schemes. It is made mandatory to the employer to abide by the same and noncompliance thereof is liable for prosecution under Section 14A of the Act (517 D) Municipal Corpn. of Delhi vs Ram Kishan Rohtagi & Ors. ; ; and Employees 'State Insurance Corpn. vs Gurdial Singh & Ors. [1991] Supp. 1 SCC 204, referred to. Employees ' State Insurance Corporation vs Gurdial Singh & Ors. (1991 Supp. 1 SCC 204, and Municipal Corporation of Delhi vs Ram Kishan Rohtagi & Ors. , ; , distinguished. (Per R.M. Sahai, J.) 1. The Act is a welfare legislation enacted for the benefit of he employees engaged in the factories and establishments and is directed towards achieving this objective by enacting provisions requiring the employer to contribute towards Provident Fund, Family Pension and Insurance and keep the Commissioner informed of it by riling regular returns and submitting details in forms prescribed for that purpose. (518 G) 512 2. Paragraph 36A of the Provident Fund Scheme framed by Central Government under Section 5 of the Act requires the employer in relation to a factory or other establishment to furnish Form 5A mentioning details of its branches and departments, owners, occupiers, directors, partners, managers or any other person or persons who have ultimate control over the affairs of the factory or establishment. The purpose of giving details of the owners, occupiers and directors etc, is not an empty formality but a deliberate intent to widen the net of responsibility on any and every one for any act or omission. It is necessary as well as in absence of such responsibility the entire benevolent scheme may stand frustrated. (519 A B) 3. The anxiety of the Legislature to ensure that the employees are not put to any hardship in respect of Provident Fund is manifest from sections 10 and 11 of the Act. The farmer grants immunity to provident fund from being attached for any debt outstanding against the employee. And the latter provides for priority of provident fund contribution over other debts if the employer is adjudged insolvent or the company is winded up. Such being the nature of provident fund any violation or breach in this regard has to be construed strictly and against the employer. (519 C) 4. Sections 14 and 14A provides for penalties. The one applies to whosoever is guilty of avoiding payment of provident fund and to employer if he commits breach of provisions mentioned in its various clauses where as Section 14A fastens liability on certain person if the persons committing the offence is company. The scope of the two sections is same. Latter is wider in its sweep and reach. The former applies to anyone who is an employer or owner or is himself responsible for making payment whereas latter fastens the liability on all those who are responsible or are in charge of the company for the offence committed by it. (519 D E) 5. Sub sections (1) and (2) of Section 14A extend the liability for any offence by any person including a partner by virtue of explanation if he was incharge or was responsible to the company at the time of committing the offence. The expression, 'was in charge of and was responsible to the company for the conduct of the business ' are very wide in their import. It could not, therefore, be confined to employer only. (520 D) 6. To say therefore that since paragraph 36A requires an employer to do certain acts the responsibility for any violation of the provision should be confined to such employer or owner would be ignoring the purpose and 513 objective of the Act and the extended meaning of 'employer ' in relation to establishments other than the factory. The declaration therefore in Form 5A in the instant case including appellant as one of the persons in charge and responsible for affairs of the company was in accordance with law, therefore, his prosecution for violation of the scheme does not suffer from any error of jurisdiction or law. (521 B C)

Appeals Nos. 494 and 495 of 1958. Appeals from the judgment and order dated April 18, 1955, of the Madras High Court in Case referred Nos. 53 of 1952 and 44 of 1953. Hardayal Hardy and D. Gupta, for the appellant. A. V. Viswanatha Sastri, R. Ganapathy Iyer, section Padmanabhan and G. Gopalakrishnan, for the respondent. December 8. The Judgment of the Court was delivered by SHAH, J. These are two appeals filed with certificates of fitness granted by the High Court of Judicature at Madras. Appeal No. 494 of 1958 arises out of orders passed in certain Excess Profits Tax Appeals and Appeal No. 495 of 1958 arises out of orders passed in certain Income tax References, Excess Profits Tax Appeals and Business Profits Tax Appeals. M/s. N. M. Rayaloo Iyer & Sons hereinafter referred to as the assessees are a firm carrying on business principally in dyes and chemicals. They are the chief representatives in "South India" of the products of the Imperial Chemical Industries Company (India) Ltd. hereinafter referred to as the "I.C.I.". The business in dyes and chemicals was in the years material to these appeals, conducted in the name and style of "Colours Trading Company", with its Head Office at Madura and in thirteen branch offices in different 63 towns in "South India". The busines was carried on originally in partnership by three brothers, N. M. R. Venkatakrishna Iyer, N. M. R. Subbaraman and N. M. ' R. Krishnamurti. On April 13, 1946, N. M. R. Subbaraman retired from the firm and the share of N. M. R. Venkatakrishna Iyer was taken over by a private limited company N. M. R. Venkatakrishna Iyer & Sons Ltd., but the business was, notwithstanding the changes in the personnel, continued in the original name and style. One N. M. R. Mahadevan (son of N. M. R. Venkatakrishna Iyer) hereinafter referred to as Mahadevan was employed by the assessees as the General Manager of the Colours Trading Co. By letter dated April 17, 1940, the assessees wrote to Mahadevan agreeing to pay him remuneration at the rate of Rs. 1,800 per annum and 5% of the net profits of the concern (Colours Trading Company) calculated by deducting from the gross profits of the business, salaries, wages and other outgoings but without making any deduction for capital. By letter dated March 30, 1943, the salary of Mahadevan was fixed at Rs. 3,000 per annum and the commission was enhanced to 12 1/2% of the net profits of the Colours Trading Company. The branch offices were managed by local managers and assistant managers who were paid in addition to monthly salary, annual and special bonus and dearness allowance. The assessees received from the I. C. I. commission at rates varying between 7 1/2% and 12% on different products sold to them. With effect from April 1, 1944, the I. C. I. allowed a special emergency commission of 5% on all dyes and dye stuffs sold to the assessees. This special emergency commission was increased to 15 % on all sales on or after March 1, 1945, but was subsequently reduced to 10% on sales on and after September 1, 1946. These appeals relate to the liability of the assessees to Excess Profits Tax for the chargeable accounting periods ending April 13, 1943, April 12, 1944, April 12, 1945, and, March 31, 1946, and for Business Profits Tax for the chargeable accounting periods ending April 12, 1946, March 31, 1947, April 13, 1947, March 31, 1948, and April 12, 1948. 64 The assessees claimed that they had paid to their employees in the years of account 1942 43 to 1947 48 under agreements executed from time to time a share in the special emergency commission received from the I. C. I., in addition to monthly salary, dearness allowance and general and special bonus. The I. C. I. in allowing the emergency commission by its letter dated January 24, 1944, recommended that 1% out of the 5% commission allowed may be "passed on" by the assessees to their "sub distributors". The assessees claimed that pursuant to this recommendation, they paid to their employees commission at rates varying between 1 1/2% to 4%, and when the emergency commission was increased to 15% and the I. C. I. by letter dated February 23, 1945, recommended that 6% out of this commission may be passed on to the sub distributors, the assessees claimed to have distributed commission at rates varying from 2% to 7 1/2% and in some cases at a rate as high as 12%. Under the service agreements, commission was payable to the employees only if the turnover in dyes exceeded Rs. 1,00,000 net in any year, but to employees in several branches the assessees claimed to have paid commission at generous rates even when the turnover fell far short of that amount. In the year of account ending April 12, 1945, there was a revision of the scales of salaries of the employees, and the assessees commenced giving to their employees dearness allowance and special bonus which in the aggregate exceeded 50% of the basic annual salary and also annual bonus equal to the annual salary. The result of this revision of emoluments was that each employee received an amount equal to at least 21 times his enhanced basic salary. In addition to this remuneration, the assessees claimed that they had paid a share in the commission which in some cases exceeded 12 times the basic salary. In computing the total income of the assessees for the years 1943 44 and 1944 45 for purposes of income tax, the Income tax Officer disallowed the payment of 12 1/2% of the net profits of the Colours Trading Co. to Mahadevan and in computing the income for the 65 assessment years 1945 46, 1946 47, 1947 48 and 194849 the Income tax Officer disallowed the commission. paid to the branch managers and other employees. In appeal the Appellate Assistant Commissioner set aside the order which disallowed the amount of commission paid to Mahadevan and following the order of the Income tax Appellate Tribunal in certain Excess Profits Tax appeals, allowed 5% of the net profits without deduction of Excess Profits Tax or Business Profits Tax, or 121% after deduction of Excess Profits Tax or ' Business Profits Tax whichever was higher. That order was confirmed in appeal by the Income tax Appellate Tribunal. The Tribunal also confirmed the order disallowing the emergency commission paid to the branch managers and other employees, and in the computation of taxable income for purposes of Income tax, Excess Profits Tax and Business Profits Tax, added back all those payments. At the instance of the assessees, the Tribunal referred two sets of questions to the High Court under section 66(1) of the Income tax Act read with section 21 of the Excess Profits Tax Act. Questions 1 to 3 in Referred Case No. 44 of 1953 were: (1) Whether in allowing a deduction under section 10(2) (xv) of the Income tax Act, the Income tax Officer is precluded from going into the question whether the amount was paid wholly and exclusively for the purpose of the assessee 's business? (2) Whether there was any material before the Tribunal to hold that the commission payment to N. M. R. Mahadevan at 121 % before deduction of Excess Profits Tax or Business Profits Tax was not wholly and exclusively laid out for the purpose of the assessee 's business? (3) Whether the commission payment to the branch managers, assistant managers and other employees is an expenditure laid out wholly and exclusively for the purpose of the business? Questions referred in Referred Case No. 53 of 1952 were: 66 (1) Whether the Appellate Tribunal erred in law in holding that in accordance with the terms of letters dated 17th April, 1940, and 30th March, 1943, and the conduct of the parties the Excess Profits Tax payable by the assessee should be deducted from the profits before the commission of 12 1/2% payable to M. N. R. Mahadevan is calculated? (2) Whether there is any material on evidence sufficient in law for the Appellate Tribunal to hold that the commission of 12 1/2% on profits paid to Mahadevan was unreasonable within the meaning of Rule 12 of Schedule 1 of the Excess Profits Tax Act? (3) Whether on the facts and circumstances of the case the disallowance by the Excess Profits Tax authorities of the commission paid to branch managers is justified under Rule 12 of Schedule 1 of the Excess Profits Tax Act? The material provisions relating to allowances under the Excess Profits Tax Act and the Business Profits Tax Act (which Act superseded the Excess Profits Tax Act as from March 30, 1946) were on the questions arising in this case substantially the same and hereafter reference to the Excess Profits Tax Act will in respect of the period after March 30, 1946, be deemed to be a reference to the Business Profits Tax Act. In the opinion of the High Court, in computing the taxable income, the deductions claimed by the assessees fell to be considered not under section 10(2)(xv) of Income tax Act but properly under section 10(2)(x) of the Income tax Act, the latter being a specific provision in the Act relating to deduction of commission or bonus paid to an employee. The High Court observed that in assessing liability to Excess Profits Tax the bonus or commission paid to the employees of the tax payer may be permitted as a deduction in the light of section 10(2)(x) of the Income tax Act and r. 12 of Sch. 1 to the Excess Profits Tax Act. The case of Mahadevan, according to the High Court, did not present much difficulty, the only question which fell to be determined in this case being whether in allowing deduction of commission at the rate of 12 1/2% on the net profits, the 67 Excess Profits Tax paid by the assessees was to be taken into account. Following a judgment of the Punjab High Court in Commissioner of Income tax, Delhi vs Delhi Flour Mills Ltd. (1), the High Court observed that in computing net profits Excess Profits Tax could not be deducted, but on the materials on the record, the question whether the commission paid to the branch managers and other employees was properly deductible could not be decided, and accordingly the High Court called for and obtained from the Tribunal a supplementary statement of facts. The High Court after considering the supplementary statement observed that the assessees had undoubtedly distributed substantial sums out of the emergency commission to its managers and assistant managers in the branches at rates well above the minima recommended by the I. C. I., but the distribution was at rates within the percentages allowed by the I. C. I., as additional commission and the balance retained by the appellants out of the emergency Commission was also substantial. In the view of the High Court, the Tribunal had to consider three factors, (1) the reasonableness of the commission in the light of the conditions laid down in section 10(2)(x), (2) the reasonableness of the percentages above the minima suggested by the I. C. I., and (3) the need for maintaining the reputation of the I. C. I., and the distributor in conditions that prevailed during that period when "black marketing was rampant", but observed the High Court "the Tribunal had made no real attempt to analyse the evidence before it to justify its conclusion that only the minima recommended by the I.C.I. and nothing in excess satisfied the test of reasonableness under r. 12, Sch. 1, of the Excess Profits Tax Act". They then observed that, whether the test of reasonableness is that prescribed by section 10(2)(x) of the Income tax Act or whether reasonableness has to be judged in the light of commercial expediency under r. 12, Sch. 1, of the Excess Profits Tax Act, the expenditure was to be judged from the point of view of a businessman and not by the application of any subjective standard of a taxing (1) 68 officer and that on an analysis of the materials furnished, they were unable to see anything per se unreasonable in the amounts of commission actually paid by the assessees to the branch managers and assistant managers in the branches. The High Court also observed that the minima recommended by the I. C. I. did not provide the only or an absolute standard for judging the reasonableness of the payments made, and stated: "No doubt, the employees of the assessee were in receipt of regular salaries and bonuses. But then, a sub distributor if he had not been paid a salary, would have had to be paid a share of the basic commission itself. What the assessee got in the years in question was in the nature of a windfall. It shared it with its employees. It had been instructed to share it. The emergency commission was allowed by the Imperial Chemical Industries so that the distributors could maintain the reputation of the Imperial Chemical Industries in the market even under the disturbed conditions that prevailed in those years. If, to maintain that reputation and to maintain its own, the assessee paid to its employee s even on a liberal basis, a share of that emergency commission, it is a little difficult to hold that, while receipt of the emergency commission was reasonable, sharing it beyond a particular point would per se be unreasonable, in the sense that no prudent businessman in that line of business, in those years, and in the market condition that prevailed then, with ample scope for black marketting, would have paid out commission on such a basis". They then concluded: "Though, of course, it was for the assessee to show that it was entitled to the deduction claimed under section 10(2)(x) of the Income tax Act and r. 12 of Sch. 1 of the Excess Profits Tax Act, there was really no basis on record to show that judged from the point of view of a businessman, payments in excess of the minima recommended by the Imperial Chemical Industries were not reasonable. We are of 69 opinion that the entire claim should have been allowed both under section 10(2)(x) of the Income tax Act and under r. 12 of Sch. 1 of the Excess Profits Tax Act on the ground that the statutory requirements were satisfied by the assessee. " The High Court accordingly answered the questions about the disallowance of commission paid to the employees of the assessees being justified under r. 12, Sch. 1, of the Excess Profits, Tax Act in the negative. Against those orders, these two appeals have been preferred with certificates of fitness from the High Court. The first question which falls to be considered is whether in the computation of taxable income for purposes of Income tax and Excess Profits Tax, commission allowed to Mahadevan at 12 1/2% should be allowed after deducting the Excess Profits Tax paid. By the agreement dated April 17, 1940, as modified by the agreement dated March 30, 1943, Mahadevan was to be paid remuneration at the rate of Rs. 3,000 per annum and 121 % of the net profits of the Colours Trading Company. In the view of the High Court in determining the "net profits" under the agreement "in accordance with the principles of commercial accountancy and the principles laid down under the Excess Profits Tax Act" the Excess Profits Tax which is a tax on profits could not be deducted. In our judgment the question is one of the true interpretation of the agreement. Mahadevan was under the agreement to receive 121% commission on the net profits of the Colours Trading Co. calculated by deducting from the gross. profits of the business the salaries, wages and other outgoings. The expression "outgoings" is not restricted to business or commercial outgoings. The agreement specifically disentitles the employers to make deductions of capital expenditure, but there is no indication that the outgoings are to be business outgoings only. There is nothing in the agreement or in the context justifying the view that in the expression 'outgoings ' is not included the Excess Profits Tax paid by the assessees. In Commissioner of Income Tax, Delhi vs Delhi 70 Flour Mills Co. Ltd. (1), it was observed by this Court in construing a similar agreement that the Excess Profits Tax was a part of the profits itself, but it was no part of the net profits contemplated by the parties; if it was a part which had to be deducted in arriving at the net profits, that is to say, the divisible profits which alone the parties had in mind, as a matter of construction the net profits meant divisible profits and were to be ascertained after deduction of Excess Profits Tax. Counsel for the Revenue has not challenged the decision of the High Court that in computing taxable income for the purpose of income tax commission paid to the various employees is a permissible deduction under section 10(2)(x) of the Income tax Act. The only question which survives on this branch for consideration is, therefore, whether those deductions are permissible in the assessment of Excess Profits Tax. By section 21 of the Excess Profits Tax Act, amongst other provisions, section 10 of the Income tax Act is made applicable with modifications if any as may be prescribed as if it were a provision of the Excess Profits Tax Act and refers to the Excess Profits Tax instead of Income tax. By section 2(19), the expression "profits" means profits determined in accordance with Sch. 1 of the Act which lays down the rules for computation of profits for the purpose of Excess Profits Tax Act. Rule 12 of Sch. 1 (which was added by section 4 of the Excess Profits Tax Ordinance, 1943 provided as follows: "(1) In computing the profits of any chargeable accounting period no deduction shall be allowed in respect of expenses in excess of the amount which the Excess Profits Tax Officer considers reasonable and necessary having regard to the requirements of the business and in the case of directors ' fees or other payments for services, to the actual services rendered by the person concerned: Provided that no disallowance under this rule shall be made by the Excess Profits Tax Officer unless he has obtained the prior authority of the Commissioner of Excess Profits Tax. (2) [1959] Supp. 1 S.C.R. 28. 71 (2) Any person who is dissatisfied with the decision of the Excess Profits Tax Officer under this rule may. appeal in the prescribed time and manner to the Appellate Tribunal. (3) In relation to chargeable accounting periods ending after the 31st day of December, 1942, the Central Government may make rules for determining the extent to which deductions shall be allowed in respect of bonuses or commissions paid. We were informed at the bar that though authorised, the Central Government did not make rules for determining the extent to which deductions shall be allowed in respect of bonuses or commissions paid. The Excess Profits Tax Act was substituted as from the year 1946 by the Business Profits Tax Act, 1947. That Act also defined by ' section 2, cl. (16), the expression "profits" as meaning profits determined in accordance with Sch. 1 and by section 19, the provisions of the sections of the Indian Income tax Act as applied to the Excess Profits Tax Act by virtue of sections 21 and 21A in so far they were not repugnant to the provisions of the Business Profits Tax Act applied to that Act as they applied to Excess Profits Tax Act and by cl. (3) of Sch. 1, a provision substantially similar to cls. (1) & (2) of cl. 12, Sch. 1, of the Excess Profits Tax Act was incorporated. Profits of a business for purposes of Excess Profits Tax Act have to be ascertained by reference to section 10 of the Income tax Act modified to the extent directed by Sch. 1 of the Excess Profits Tax Act. By cl. (12) of Sch. 1 of the Excess Profits Tax Act, a deduction in respect of expenses in excess of the amounts which the Excess Profits Tax Officer considers reasonable and necessary having regard to the requirements of the business and in the case of payments for services to the actual services rendered by the persons concerned, is not to be allowed. The deduction to be allowed, it is true, does not depend upon any subjective satisfaction of the Excess Profits Tax Officer, but on objective standards as to what is reasonable and necessary having regard to the requirements of the business and in the case of payments for services 72 to the actual services rendered by the persons concerned. The order passed by the Excess Profits Tax , 'Officer is open to review by the Tribunal to which appeal against the order of the Excess Profits Tax Officer lies. But in considering whether the deduction is properly claimed, the primary duty is vested by the Legislature in the Excess Profits Tax Officer. It is for him subject to review by the Tribunal to decide whether the deduction is reasonable and necessary, having regard to the requirements of the business and in case of payments for services to the actual services rendered. The jurisdiction which the High Court exercises on questions referred to it under the Excess Profits Tax Act is merely advisory; the High Court is not sitting in appeal over the judgment of the taxing authorities. If the taxing authorities having regard to the circumstances come to a conclusion that expenditure claimed as a deduction is not reasonable and necessary, it is not open to the High Court to substitute its own view as to what may be regarded as reasonable and necessary. Even if the High Court holds that the taxing authorities have committed an error in law by misconceiving the evidence, or by applying erroneous tests, or otherwise by acting perversely, the High Court may in answering the questions submitted, lay down the true principles applicable to the ascertainment of the permissible deductions and leave it to the taxing authorities to adjudicate upon the reasonableness and necessity of the expenses in the light of the requirements of the business. In the case in hand, the Excess Profits Tax Officer held, (a) that the employees of the assessees were being amply remunerated for services rendered by adequate salary, generous dearness allowance and annual bonus equal to the basic salary, (b) that the emoluments of the employees had been increased year after year and there was no material to show that the employees had made a persistent demand for increased emoluments, (c) that the commission was credited to the employees ' account at the end of the year and was carried forward but no payments were made to 73 them ' (d) that the agreements which had been produced by the assessees were fabricated with a view to, reduce tax liability, and (e) that the expenditure ' claimed was not proved to have been laid out wholly and exclusively for the purpose of the business. Taking into account these circumstances, the Excess Profits Tax Officer held that the remuneration paid to the employees was adequate and any additional commission paid was in excess of what was reasonable and necessary. The only criticism urged by counsel for the assessees against the grounds given is that the Excess Profits Tax Officer observed that while the net profit according to the Profit & Loss Account of the firm was Rs. 20,487 leaving a share of Rs. 6,800 only to each of the partners, some of the managers got more than this amount. It appears that the Excess Profits Tax Officer committed an error in so observing. The profits of the Colours Trading Co. as disclosed by the order of assessment for the year 1945 46 were Rs. 99,435 and not Rs. 20,487; but that error did not affect the ultimate conclusion recorded by the Excess Profits Tax Officer. According to the books of account of the assessees for the year 1943 44 of the business in dyes, the profits were Rs. 99,435 and they claimed to have distributed a commission of Rs. 1,00,715 to their employees out of the emergency commission, which was prima facie wholly disproportionate to the amount received by them. The order passed by the Excess Profits Tax Officer was confirmed in appeal by the Appellate Tribunal. In the view of the Appellate Tribunal, no additional incentive was required to sell dyes and chemicals in the years in question because dyes and chemicals were in short supply and there was a rise in demand. The Tribunal also referred to the table setting out the distribution among the employees of dearness allowance, bonus and salary in the relevant years, and observed: "In addition to the generous allowances, the payment of this sum appears to us a payment made in order to dissipate the profits. It would be sufficient to say that including the commission alleged 10 74 to have been paid, the total emoluments would be something like 1200% and in some cases even more than the basic annual salary. There is no doubt in our mind, that this was wholly unnecessary for business purposes. " Observing that the assessees having no sub distributors, the direction given by the I.C.I. did not require the assessees to "pass on" the commission to their employees, they concluded that the expenditure alleged to have been incurred was not reasonable and necessary within the meaning of r. 12, Sch. 1, of the Excess Profits Tax Act. The following table which is incorporated in the statement of case of the Tribunal sets out for the four years in question the emergency commission received by the assessees and the aggregate amount paid by them to their employees. Extra commis Amount of commis Assessment sion received sion paid by the year. by the assessee. assessee. Rs. Rs. 1945 46 1,28,533 1,00,715 1946 47 3,20,391 2,44,698 1947 48 3,15,934 1,28,506 1948 49 3,70,964 1,75,079 This distribution out of the emergency commission to the employees has to be viewed in the context of the following circumstances set out by the Tribunal: (1)that even though the I.C.I. recommended payment to sub distributors and the assessees had no sub distributors, they claimed to have paid commission to their employees at rates in excess of the minimum rates recommended by I.C.I. (2) that this commission was paid to the employees in branches in which the annual turnover did not exceed Rs. 1,00,000 even though the agreements which the assessees had executed expressly provided that the commission was to be paid only if the annual turnover in a branch exceeded Rs. I lakh and (3)that the basic salaries of the employees had been substantially increased from time to time and generous dearness allowance and Deepavali bonus 75 were given besides the annual bonus to the employees. An analysis of annexure 'IL" to the supplemental statement of case made by the Tribunal discloses some striking instances of Payments to employees. One Themaswamy was paid annually commission varying from Rs. 15,000 to Rs. 23,000 when his basic salary was Rs. 2,100 per annum; one K. N. Rajagopalachari was paid commission varying from Rs. 16,000 to Rs. 12,000 when his basic salary was Rs. 1,260 per annum; one section L. Radhakrishnan was paid commission varying from Rs. 5,700 to Rs. 13,000 when his salary varied between Rs. 516 and Rs. 636 per annum and one K. R. Rama Rao was paid commission varying from Rs. 4,600 to Rs. 10,520 his salary being Rs. 492 and later increased to Rs. 612 per annum. There was thus ample evidence in support of the conclusion of the Excess Profits Tax Officer which was confirmed by the Tribunal. As we have already observed, it is the province of the Excess Profits Tax Officer and the Tribunal to assess the permissible deductions in the context of reasonableness and necessity having regard to the requirements of the business and interference with the conclusion is permissible if the view of the taxing authorities is vitiated by an error of law or is not based on any materials, or the conclusion is such that no man instructed in law could have arrived at. It is true that in considering whether the deduction claimed by the assessees for payments made as bonus or commission paid to an employee is to be allowed, the taxing officer must have regard to the provisions of section 10(2)(x) of the Income tax Act and cl. (12) of Sch. 1 of the Excess Profits Tax Act; and in assessing the reasonableness, consideration of commercial expediency must undoubtedly be taken into account. But commercial expediency must be viewed in the light of the requirements of the business and the actual services rendered by the persons concerned. Any abstract consideration of commercial expediency is out of place. In our view, the High Court was not justified in seeking to reappreciate the evidence on which the 76 conclusion of the Excess Profits Tax Officer which was confirmed by the Tribunal was based. Their jurisdiction being advisory, the High Court had to answer the questions submitted for opinion on the facts found; if the High Court held the view that the taxing authorities had misdirected themselves in law or had made a wrong inference in law or had failed to apply the correct tests or had misconceived the evidence, it was. open to them to invite the attention of taxing authorities to the error committed by them; but the High Court could not set aside the decision of the taxing authorities on a reappreciation of the evidence. We may also point out that even if the High Court concluded that the total disallowance of the deduction claimed was not justified, the High Court could not substitute its own view as to what was reasonable and necessary. The High Court bad, if it disagreed with the taxing authorities, still to answer the questions submitted and leave to the consideration of the Excess Profits Tax Officer what in the circumstances was reasonable and necessary. Counsel for the assessees submitted that in any event, the Tribunal having in its supplementary statement of case stated that payment in excess of what was recommended by the I.C.I. was unjustified, this court may so modify the order of the High Court that deductions of the amounts which were recommended by the I.C.I. may be regarded as permissible deductions. The I.C.I. recommended distribution of a certain percentage out of the emergency commission to the sub distributors; but in the administrative set up of the assessees, the sub distributors did not find a place. The assessees carried on their business through paid employees. In terms therefore the recommendation by the I.C.I. had no application to the assessees. It is true that even if the assessees did not carry on the business through sub distributors, payment made to its employees if reasonable and necessary having regard to the requirements of the business, may still be deductible, but that in our judgment is a matter to be decided by the taxing authorities and not by us. 77 The Tribunal had come to the conclusion that no payment in addition to the salary, annual bonus and, special bonus was justified and any expression of opinion to the contrary in the supplementary statement pursuant to the order for statement of case could not in our judgment affect the conclusion originally recorded. In our view the answer to the question whether the disallowance by the Excess Profits Tax authorities of the commission paid to branch managers was justified under r. 12, Sch. 1, of the Excess Profits Tax Act should have been answered in the affirmative. On the view taken by us, Appeal No. 494/1958 will be allowed, but there will be no order as to costs. Appeal No. 495 of 1958 will be allowed with *costs. Appeals allowed.

The respondents, a firm carrying on business in dyes and chemicals under the name and style of Colours Trading Com pany, with their head office at Madurai and thirteen branch offices in different towns, were the chief representatives in South India of the products of the I. C. I., a manufacturing concern. M was employed as the General Manager of the respondents and by virtue of an agreement, he was to be paid remuneration at the rate of Rs. 3,000 per annum and 12 1/2% of the net profits of the company calculated by deducting from the gross profits of the business the salaries, wages and other outgoings. The branch offices were managed by local managers and assistant managers who were paid in addition to monthly salary, annual and special bonus and dearness allowance. The respondents received from the I. C. I. commission at varying rates on the different products sold to them and with effect from April 1, 1944, the I.C.I. allowed a special emergency commission of 5% recommending that 1% out of the commission allowed may be passed on by the respondents to their sub distributors. The respondents claimed to have distributed to their employees commission pursuant to the recommendation of the I.C.I. at rates varying between 2% and 7 1/2% and in some cases at a rate as high as 12%. Though under the service agreement, commission was payable to the employees only if the turnover exceeded Rs. 1,00,000 net in any year, the respondents claimed to have paid them commission at generous rates even when the turnover fell far short of that amount. In the year of account ending April 12, 1945, there was a revision of the scales of salaries of the employees, as a result of which the employees received an amount equal to 2 1/2 times the enhanced basic salary and also commission sometimes exceeding 12 times the basic salary. In computing the total income of the respondents for the years 1943 44 and 1944 45 for purposes of income tax, the income tax Officer disallowed the payment Of 12 1/2% of the net 61 profits to M, and for the years 1945 49 he disallowed the commission paid to the branch managers and other employees on the ground that taking into account all the circumstances the remuneration paid to the employees was adequate and that any additional commission paid was in excess of what was reasonable or necessary. The Appellate Tribunal confirmed the order of the Income tax Officer except in the case of M to whom payment of 5% of the net profits without deduction of Excess Profits Tax or Business Profits Tax, or 12% after deduction of Excess Profits Tax or Business Profits Tax, whichever was higher, was regarded as permissible deduction. The High Court, on reference, took the view, inter alia, that in determining the net profits under the agreement with M, the excess profits tax could not be deducted, that in considering the question whether the bonus or commission paid to the employees in the present case might be permitted as a justifiable deduction, in the light of section 10(2)(X) Of the Income tax Act and r. 12 of Sch. 1 of the Excess Profits Tax Act, the test of reasonableness of the expenditure was to be judged from the point of view of a business man and not by the application of any subjective standard of a taxing officer, and that on an analysis of the materials furnished, there was nothing per se unreasonable in the amounts of commission actually paid by the respondents to the branch managers and assistant managers. Held: (i) that the question whether in the computation of the taxbale income, the commission payable to M under the agreement entered into with him by the respondents should be allowed before deducting the excess profits tax, depended on the true interpretation of the agreement; the expression "outgoing" in the agreement was not restricted to business or commercial outgoings but included the excess profits tax paid by the assessees, and that, consequently, the net profits of which M was to be given a percentage by way of commission should be computed after deducting the excess profits tax paid. Commissioner of Income tax, Delhi vs Delhi Flour Mills Co., Ltd., [1959] SUPP. 1 S.C.R. 28, relied on. (2) that under cl. (12) Of Sch. 1 of the Excess Profits Tax Act, 1940, it was for the Excess Profits Tax Officer, subject to review by the Tribunal, to decide whether the deduction was reasonable and necessary, having regard to the requirements of the business and in case of payments for services, to the actual services rendered by the persons concerned; it was not open to the High Court exercising its jurisdiction on questions referred to it under the Excess Profits Tax Act, to substitute its own view as to what may be regarded as reasonable and necessary and to set aside the decision of the taxing authorities on a re appreciation of the evidence. If the High Court considered that the taxing authorities had committed an error in law by misconceiving the evidence or by applying erroneous tests or 62 otherwise by acting perversely, the proper course for it was in answering the questions submitted, to lay down the true principles applicable to the ascertainment of the permissible deductions and to leave it to the taxing authorities to adjudicate upon the reasonableness and necessity of the expenses in the light of the requirements of the business. (3) that there was ample evidence in support of the conclu sion of the Excess Profits Tax Officer which was confirmed by the Tribunal, and that the question, whether the disallowance by the excess profits tax authorities of the commission paid to branch managers was justified under r. 12 of Sch. 1 of the Excess Profits Tax Act, should have been answered in the affirmative.

ivil Appeal No. 2717 of 1985. From the Judgment and Order dated 2.12. 1980 of the Madras High Court in T.C. No. 573 of 1976. Harish N. Salve, A.S. Chandrashekaran, K.J. John and Sanjay Grover for the Appellants. Dr. V. Gauri Shankar, Ms. A. Subhashini and M.K. Sha shidharan for the Respondent. The Judgment of the Court was delivered by KULDIP SINGH, J. The question in this appeal is whether the grant of a mining lease for a period of ten years by the assessee can give rise to a capital gain taxable under section 45 of Income tax Act, 1961. 599 The assessee, a body of individuals, purchased two pieces of land in the year 1966 measuring 14.55 acres at a price of Rs.27,260. By an instrument of lease cum licence dated 10th September, 1970 they granted a mining lease in favour of M/s. Sri Krishna Tiles and Potteries (Madras) Private Limited (hereinafter called the 'Company '), an allied concern of the assessee. The lease was for a period of 10 years and the lessee had to pay a premium or salami of Rs.5 lakhs in addition to the payment of royalty of Rs. 12 per hundred cubic ft. of clay extracted subject to a minimum of Rs.60,000 per year. The Income tax Officer construed the lease deed as transferring a lease hold interest in the land in favour of the company and came to the conclusion that the transfer was assessable to capital gains tax. For the purpose of comput ing the extent of tax the Income tax Officer assessed the market value of the entire land at Rs.8 lakhs. Since the lease hold interest was transferred for a sum of Rs.5 lakhs, he valued the lease hold interest at 5/8th of the sale price of the entire land. On that basis the Income tax Officer computed the cost of acquisition of the lease hold interest at Rs. 17,040, being 5/8th of Rs.271,260. Thereafter deduct ing Rs. 17,040 from the sale consideration of Rs.5 lakhs, he treated the sum of Rs.4,82,960 as long term capital gains. The assessee preferred an appeal to the Appellate As sistant Commissioner. The Appellate Commissioner held that the value of the right to excavate the land in terms of money is included in the purchase price paid by the assessee for the land. He rejected the argument of the assessee that the cost of acquisition of the said assets could not be determined. He then proceeded to consider the cost of acqui sition of such right and differing with the Income Tax Officer held that on the facts of the case the cost for the purpose of ascertaining the capital gains would be the total price of the land paid by the assessee, that is, Rs.27,260. On all other points he upheld the order of the Income tax Officer. The assessee preferred an appeal to the Tribunal. The Tribunal observed that the entire ownership of the property means the ownership of a bundle of rights and a limited interest which can be severed and disposed off for a speci fied period in the form of lease or mortgage or the like is part of that bundle. According to the Tribunal the purchase price paid by the assessee for the land includes therein a component of purchase price attributable to various kinds of interests embedded in the said land. The Tribunal confirmed the order of the Appellate Commissioner and dismissed the appeal. 600 Arising from the said decision of the Tribunal. the following two. questions were referred to the High Court for determination: (i) Whether, on the facts and in the cir cumstances of this case, the instrument of lease dated September 10, 1970 effected the transfer of a capital asset within the meaning of section 45 of the Income tax Act, 1961 and, accordingly, liable to capital gains tax? (ii) Whether, on the facts and in the circumstances of the case the Tribunal is right in law in holding that the cost of lease hold right is capable of valuation and, as such, capital gains can be computed? The High Court opined that the right conferred on the lessee under the lease deed was also a capital asset in the hands of the assessee lessor. By giving a liberal meaning to the word "transfer" in section 2(47) of the Act the High Court held that there was a transfer of capital asset for a consideration of Rs. 5 lakhs under the instrument dated 10th September, 1970. It was further held that the rights of owner of a land include a fight to grant the lease to ex ploit the land. The High Court answered the two questions in the affirmative and against the assessee. The High Court granted a certificate under section 261 of the Act to appeal to this Court. The relevant provisions of sub section 14 of section 2 which defines "capital asset" and section 45(1) of the said Act which provides for the levy of tax on capital gains is as under: "2(14) "capital asset" means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include . 45(1) Any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provid ed in section be chargeable to income tax under the head "Capital gains", and shall be deemed to be the income of the previous year in which the transfer took place. " Mr. Harish Salve, learned counsel appearing for the appellant, without disputing that the grant of a lease would constitute a transfer of an ,asset, has raised the following two contentions: 601 (i) That conceptually there is no "cost of acquisition" which is attributable to the right of limited enjoyment transferred by the grant of the lease. There is no nexus between the "cost of acquisition" of the free hold land and the right granted under the lease. For the same reason it is contended that there is no question of apportionment of such "cost of acquisition". (ii) That since the cost of acquisition of the right granted under the lease cannot be determined the computation provisions under the Act cannot apply at all and as such sec tion 45 of the Act is not attracted. Reliance for this contention is placed on the judgment of this Court in C.I.T.v. B.C. Srinivas Shetty; , As regards the first contention, section 2(14) of the Act defines "capital asset" as "property of any kind held by an assessee". What is parted with under the terms of the lease deed is the right to exploit the land by extracting clay which fight directly flows from the ownership of the land. The said right evaluated in terms of money forms part of the cost of acquiring the land. In Traders and Mining Ltd. vs C.I.T., , a Division Bench of the Patna High Court, interpreting the expression "transfer of a capital asset" held as under: "We think that the expression "transfer" in the section includes not only a permanent transfer but also a temporary transfer of title to the property in question and lease of mines for any period would fall within the ambit of section 12B of the Act. It was also contended by Mr. Dutt that a transaction of a lease was not tantamount to a transfer of a title but that a mere contractual right was created. We do not think that this argument is correct. A lease of land is transfer of inter est in the land and creates a right in rem: and there is a transfer of title in favour of the lessee though the lessor has right of reversion after the period of the lease termi nates. " This decision has been referred to with approval by this Court in R.K. Palshikar (HUF) vs Commissioner of Income. Tax, M.P. Nagpur, If transfer of capital asset in section 45 of the Act includes grant of Mining Lease for any period .then obviously the "cost of acquisi tion" of the land would include the "cost of acquisition" Of the Mining right under the lease. Undisputedly the grant of alease being a transfer of an asset there is no escape from the conclusion that 602 there is a live nexus between the "cost of acquisition" of the land and the rights granted under the lease. The amount of Rs.27,260 paid by the Assessee was not only the cost of acquiring the land but also of acquiring bundle of fights in the said land including the right to grant lease. There is, thus no force in the contention of the learned counsel that conceptually there is no "cost of acquisition" which is attributable to the fight of limited enjoyment transferred by the grant of the lease. So far as the apportionment of the cost of acquisition is concerned it is a question of fact to be determined by the Income Tax Officer in each case on the basis of evidence. The determination of the cost of the right to excavate clay in the land in terms of money may be difficult but is none the less of a money value and the best valuation possible must be made. Viscount Simon in Gold Coast Selection Trust Ltd. vs Inspector of Taxes, (supp) observed "valuation is not an exact science. Mathe matical certainty is not demanded, nor indeed is it possi ble. " The Income tax Officer in this case worked out the cost of lease hold interest by adopting the 5/8th ratio, though the Appellate Commissioner gave the benefit to the Assessee of the Full Price of the land paid by him. In Traders and Mines Ltd. vs Commissioner of Income tax, (supra) the Income tax Officer had also determined the cost of the lease hold fights on proportionate basis. Once the cost of the lease hold fights is determined then there is no difficulty in making apportionment. We, therefore, do not find any force in the first contention of Mr. Salve and reject the same. In view of our finding on the first contention the second contention does not survive. The value of lease hold fights in the cost of acquisition of land being determinable the computation provisions under the Act are applicable and section 45 would be attracted. In Shetty 's case the question was whether the transfer of the goodwill of a newly com menced business can give rise to a capital gain taxable under section 45 of the Act. This Court answered the ques tion in the negative. Referring to the charging section and the computation provisions under the Act this Court held that none of those provisions suggest the inclusion of an asset under the Head "Capital Gain," in the acquisition of which no cost at all can be conceived. Good will generated in an individual 's business was held to be an asset in which no cost element can be identified or envisaged. It was also held that the date of acquisition of the asset is a material factor in applying the computation provisions pertaining to capital gains and in the case of self generated good will it is not possible to determine the same. The third reason for holding that the good will generated in a newly commenced business cannot be described as an 'asset ' within the terms of section 45 of the 603 Act was that it is impossible to determine its cost of acquisition. None of the three reasons given by this Court in Shetty 's case are applicable in the present case. We have held that the cost of acquisition of lease hold rights can be determined. The date of acquisition of the right to grant lease has to be the same as the date of acquiring the free hold rights. The ratio of Shetty 's case is thus not attract ed to the question involved in the present case. We, there fore, do not find any force in the second contention also. Accordingly the appeal is dismissed with costs. N.V.K. Appeal dis missed.

The appellant assessee, a body of individuals, purchased two pieces of land in the year 1966. In 1970 it granted a mining lease to a private company (an allied concern) to extract clay for a period of ten years at a premium of Rs. 5 lakhs in addition to payment of royalty. The Income tax Officer construed the lease deed as transferring a lease hold interest in the land in favour of the company and came to the conclusion that the transfer was assessable to capital gains tax. For the purpose of comput ing the extent of tax, the Income tax Officer valued the lease hold interest at 5/8th of the sale price of the entire land, computed the cost at acquisition of the lease hold interest say Rs. 17,040, and after deducting this sum from the sale consideration of Rs.5 lakhs, determined a sum of Rs.4,82,960 as long term capital gains. Being aggrieved by the aforesaid order of the Income tax Officer the assessee preferred an appeal to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner confirmed the assessment but allowed deduction on the entire price of the land on the ground that the cost for the pur pose of ascertaining the capital gains would be the total price of the land paid by assessee. Not being satisfied, the assessee preferred an appeal to the Income tax Appellate Tribunal which confirmed the order of the Appellate Commissioner and dismissed the appeal. The High Court on a reference held that the right conferred on 597 the lessee under the lease deed was also a capital asset in the hands of the assessee lessor, and that there was a transfer of capital asset for a consideration of Rs.5 lakhs. The High Court accordingly answered the reference against the assessee, .but granted a certificate under section 261 of the Act to appeal to this Court. On behalf of the assessee appellant it was contended: (1) that conceptually there is no 'cost of acquisition ' which is attributable to the right of limited enjoyment transferred by the grant of the lease, and (2) relying on the decision of this Court in C.I. T. vs B.C. Srinivas Sherry, ; SC it was submitted that since the cost of acquisition of the right granted under the lease cannot be determined the computation provisions under the Act cannot apply at all, and as such section 45 of the Act is not attracted. On the question: whether the grant of a mining lease for a period of ten years by the assessee can give rise to a capital gain taxable under section 45 of the Income tax Act, 1961. Dismissing the appeal, the Court, HELD: 1(a) Section 2(14) of the Income Tax Act defines "capital asset" as "property of any kind held by an asses see. " What is parted with in the instant case, under the terms of the deed is the right to exploit the land by ex tracting clay which right directly flows from the ownership of the land. The said right evaluated in terms of money forms part of the cost of acquiring the land. [601C D] 1(b). If a transfer of a capital asset in section 45 of the Act includes grant of a mining lease for any period, then obviously, the "cost of acquisition" of the land would include the "cost of acquisition" of the mining right under the lease. The grant of a lease being a transfer of an asset, there is no escape from the conclusion that there is a live nexus between the "cost of acquisition" of the land and the right granted under the lease. [601G H; 602A] In the instant case, the amount of Rs.27,260 paid by the assessee was not only the cost of acquiring the land but also acquiring a bundle of rights in the said land including the right to grant lease. [602A] 1(c) The apportionment of the cost of acquisition is a question of fact to be determined by the Income tax Officer in each case on the basis of evidence. The determination of the cost of the right to excavate 598 clay in the land in terms of money may be difficult but is nonetheless of a money value and the best valuation possible must be made. In the instant came, the Income tax Officer worked out the cost of the lease held interest by adopting the 5/8th ratio, though the Appellate Assistant Commissioner gave the benefit to the assessee of the full price of the land paid by him. [602B D] 1(d) Once the cost of lease hold right is determined than there is no difficulty in making apportionment. [602E] Gold Coast Selection Trust. Ltd. vs Inspector of Taxes, (supp); Traders and Mining Ltd. vs C.I.T., ; R.K. Palshikar (HUF) vs Commissioner of Income Tax, M.P. Nagpur, ; , referred to. 2(a) The value of lease hold rights in the cost of acquisition of land being determinable the computation provision under the Act are applicable, and section 45 would he attracted. [602E F] 2(b) The date of acquisition of the right to grant lease has to be the same as the date of acquiring the free hold rights. [603B] C.I.T. vs B.C. Srinivas Shetty, ; distinguished.

he notification dated February 8 , 1984 issued by the State Government under section 52 ( 1) of the Act became effective the moment it was published in the Official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer , Town Planning Department , Jaipur under section 52 (2) for the grant of an appropriate writ , direction or order under article 226 of the Constitution for quashing the notification issued under section 52 (1). If the respondents felt aggrieved by the acquisition of their lands at Jaipur and wanted to challenge the validity of the impugned notification issued by the State Government of Rajasthan under section 52 (1) , by a petition under article 226 , the remedy of the respondents to file such a petition lay before the Rajasthan High Court Jaipur Bench , where the cause of action wholly or in part arose. [605F H; 606A] & CIVIL APPELLATE JURISDICTION: Civil Appeal NO. 2085 Of 1985. From the Judgment and Order dated 13.3.1984 of the Calcutta High Court in C. P. NO. 5972 (W) of 1984. K Parasaran , Attn. and Badridas Sharma for the Appellants. G.L. Sanghi , Praveen Kumar and Ashok Mathur for the Respondents. The Judgment of the Court was delivered by SEN. , J. The issue involved in this appeal by special leave is: Whether the service of notice under sub section (2) of section 52 of the Rajasthan Urban Improvement Act , 1959 ( 'Act ' for short) served on the respondents at their registered office at 18 B , Brabourne Road , Calcutta by the Special Officer , Town Planning Department , Jaipur was an integral part of the cause of action and was sufficient to invest the Calcutta High Court with jurisdiction to entertain a petition under article 226 of the Constitution challenging the validity of a notification dated February 8 , 1984 issued by the State Government of Rajasthan under S 5 (21) of the Act for the acquisi 601 tion of certain lands belonging to them required by the Urban Improvement Trust , Jaipur for a public purpose, namely, for implementation of a development scheme viz. Civil Lines Extension Scheme. It is somewhat strange that a learned Single Judge of the Calcutta High Court (R.N.Pyne, J.) should have by his order dated March 13, 1984 entertained a petition under article 226 of the Constitution filed by the respondents , issued a rule nisi thereon requiring the reasons as to why a writ in the nature of mandamus should not be issued directing the appellants herein, the State of Rajasthan, the Jaipur Development Authority, Jaipur and the Land Acquisition Officer, Jaipur to forbear from giving effect to the impugned notification dated February 8, 1984 and passed an ad interim exparte prohibitory order restraining them from taking any steps requiring the respondents under sub section (5) of 52 of the Act to surrender or deliver possession of the lands acquired forthwith or upon their failure to do so to take immediate steps under sub section (6) thereof to secure such possession. We are distressed to find that the learned Single Judge despite a long line of decisions of this Court starting from Siliguri Municipality vs Amalendu Das (1) deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking , should have passed the impugned orders in the manner that he did. It seems that the pronouncements of this Court have had little exact on the learned Single Judge. The learned Attorney General appearing for the State of Rajasthan takes serious exception to the authority and jurisdictionof the learned Single Judge to have entertained the writ petition filed by the respondents and issued the rule nisi and to have made the ad interim exparteprohibitory order which virtually has brought the entire acquisition proceedings pending at Jaipur in the State of Rajasthan to a standstill. He contends that the petition filed by the respondents purporting to be under article 226 of the Constitution in the Calcutta High Court and the rule nisi thereon and the ad interim exparte prohibitory order secured by them on the basis of such petition from the learned Single Judge on March 13, 1984 when there was total lack of inherent jurisdiction on the part of (1) ; , 602 the Calcutta High Court to entertain such petition , constitutes a flagrant abuse of the process of the Court. There is , in our opinion considerable force in this submission. The facts of the case are as follows: Messrs Swaika Properties Pvt. Limited, Calcutta owned Khasra No. 383 area 14 bighas 16 biswas situate in village Madrampura on the outskirts of Jaipur city. On June 25, 1975 the Special Officer , Town Planning Department, Jaipur issued a notice under section 52 (2) of the Act at the instance of the Improvement Trust, Jaipur stating that it was proposed by the State Government to acquire the said land admeasuring more or less 44,770 square yards under section 52 (1) of the Act for a public purpose, namely, for the implementation of a development scheme at public expense viz. the Civil Lines Extension Scheme, The said notice was duly served on the respondents and they in compliance therewith appeared before the Special Officer, Town Planning Department, Jaipur and filed their reply dated September 8, 1975. In the reply, the respondents while denying the existence of a public purpose for acquisition of the lands under section 52(1) of the Act asserted that they needed the said land to start new businesses in the State of Rajasthan and for that purpose to utilize the notified land for establishment of a branch office and for construction of residential houses for their Director and other Senior Executives. The Special Officer adjourned the case from time to time and issued several notices to the respondents for personal hearing under section 52 (3) of the Act. The respondents through their representative appeared at each of these hearings and sought adjournment on one pretext or another. Significantly although the respondents participated in the proceedings before the Special Officer, they did not raise any objection as to the power and authority of the State Government of Rajasthan to acquire the notified land under section 52 (1) of the Act or the legality and propriety of the notice issued by the Special Officer under s , 52 (2) or his jurisdiction to proceed with the inquiry under section 52 (3). Nor did the respondents place any material before the Special Officer to show that they really needed the notified land for the purpose of expansion of their business activities to the State of Rajasthan. It is pertinent to observe that the respondents had been shifting their stand before the Special Officer. As already stated , they had in their reply dated September 8, 1975 alleged that they genuinely required the land for starting new businesses in the State , to open a branch office at Jaipur and 603 to construct residential quarters for their Director and other Senior Executives , but at a later stage they alleged that they wanted to construct a Three Star Hotel on the said land. Eventually , the Special Officer by his order April 9 , 1976 held that the alleged need of the respondents was just a pretence and he was satisfied on the material on record that the land was really not needed by them bona fide and their real object was just to get the land released from acquisition on one ground or the other. with these observations he rejected the prayer of the respondents for release of the land and recommended that the entire land be acquired by the State Government under section 52(1) of the Act for the Urban Improvement Trust , Jaipur , and forwarded the papers to the Secretary to the State Government , Town Planning Department , Rajasthan for issue of the requisite notification under section 52 (l) of the Act. It appears from the material on record that the respondents having failed in their effort to get the land released from acquisition then took up the matter with the State Government. They made an application to the State Government on February 10 , 1977 seeking exemption of the notified land under section 20 of the Urban Land (Ceiling & Regulation) Act , 1976 stating that they required the land for construction of a Three Star Hotel. The State Government in the Urban Development & Housing Department by letter dated April 4 , 1977 informed the respondents that there was no possibility of an exemption being granted under section 20 of the Act in their favour allowing them to retain vacant land in excess of 6,000 square yards for the construction of a Three Star Hotel. The State Government stated that the remaining land was required by the Urban Improvement Trust , Jaipur for development of house sites and for construction of two 'Ministers ' bungalows in Civil lines and therefore the proceedings for acquisition of the notified land would not be withdrawn. The State Government required the respondents to submit detailed proposals in respect of 6,000 square yards of land for their proposed Three Star Hotel showing commitments made, financial resources etc. through the Director of Tourism, Rajasthan, Jaipur and were intimated that they would be entitled to retain the said land on payment of the prescribed fee for converting the land use from agriculture to hotel business. Apparently, the respondents were not serious in undertaking the 604 new venture of starting a Three Star Hotel on an area of 6,000 square yards as their real object was to get the notified land released from acquisition. The February 21, 1979, there was a meeting at the Secretariat in the Urban Development & Housing Department between officers of that Department and those of the Urban Improvement Trust, Jaipur. It was clarified on behalf of the Improvement Trust that the notified land in its entirety was needed for implementation of the development scheme of the Trust. The Improvement Trust accordingly by its letter dated March 5, 1979 requested the State Government that necessary orders be passed for acquisition of Khasra No. 383 in village Madrampura admeasuring 14 bighas 16 biswas and a notification to that effect issued under section 52(1) of the Act. It was pointed out that a public notice under section 55(2) of the Act as regards the notified land had already been issued by the Special Officer , Town Planning Department , Jaipur dated June 25 , 1975 , and the necessary procedure as laid down in sub S.(3) thereof followed. As a result of this , the State Government issued the impugned notification dated February 8 , 1984 under section 52(1) Or the Act and the notified land vested in the State Government free from all encumbrances. The State Government in their special leave petition have explained that the notification under section 52(1) of the Act could not be issued till February 8 , 1984 because the Government were primarily thinking of making the land available for construction of residential houses before making provisions for construction of a Three Star or Five Star Hotel but nothing came out of the said proposal as there was no response from the respondents. Upon these facts , we are satisfied that the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court and therefore the learned Single Judge had no jurisdiction to issue a rule nisi on the petition filed by the respondents under article 226 of the Constitution or to make the ad interim exparte prohibitory order restraining the appellants from taking any steps to take possession of the land acquired. Under sub section (5) of section 52 of the Act the appellants were entitled to require the respondent to surrender or deliver possession of the lands acquired forthwith and upon their failure to do so , take 605 immediate steps to secure such possession under sub section (6) thereof. The expression 'cause of action ' is tersely defined in Mulla 's Code of Civil Procedure: "The 'cause of action ' means every fact which , if traversed , it would be necessary for the plaintiff t y prove in order to support his right to a judgment of the Court. " In other words , it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The mere service of notice under section 52(2) of the Act on the respondents at their registered of ice at 18 B , Brabourne Road , Calcutta i.e. within the territorial limits of the State of West Bengal , could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. The notification dated February 8 , 1984 issued by the State Government under section 52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer , Town Planning Department , Jaipur under section 52(2) for the grant of an appropriate writ , direction or order under article 226 of the Constitution for quashing the notification issued by the State Government under section 52(1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under section 52(1) of the Act by a petition under article 226 of the Constitution , the remedy of the respondents of the grant of such relief had to 606 be sought by filing such a petition before the Rajasthan High Court , Jaipur Bench , where the cause of action wholly or in part arose. It is to be deeply regretted that despite a series of decisions of this Court deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking , the learned Single Judge should have passed the impugned ad interim exparte prohibitory order the effect of which , as the learned Attoreny General rightly complains , was virtually to bring to a standstill a development scheme of the Urban Improvement Trust , Jaipur viz. Civil Lines Extension Scheme , irrespective of the fact whether or not the High Court had any territorial jurisdiction to entertain a petition under article 226 of the Constitution. Such arbitrary exercise of power by the High Court at the public expense reacts against the development and prosperity of the country and is clearly detrimental to the national interest. Quite recently , Chinnappa Reddy , J. speaking for the Court in Assistant Collector of Central Excise , West Bengal vs Dunlop India Limited and Ors.(1) administered strong admonition deprecating the practice of the High Court of granting ad interim exparte orders which practically have the effect of the grant of the main relief in the petition under article 226 of the Constitution irrespective of the fact whether the High Court had any territorial jurisdiction to entertain such a petition or whether the petition under article 226 was intended and meant to circumvent the alternative remedy provided by law or filed solely for the purpose of obtaining interim orders and thereafter delaying and protracting the proceedings by one device or the other particularly in matters relating to public revenue or implementation of various measures and schemes undertaken by the Government or the local authorities for general public benefit. Although the powers of the High Courts under article 226 of the Constitution are far and wide and the Judges must ever be vigilant to protect the citizen against arbitrary executive action , nonetheless , the Judges have a constructive role and therefore there is always the need to use such extensive powers with due circumspection. There has to be in the larger public interest an clement of self ordained restraint. We hope (1) [19851 1 S.C.C. 260. 607 and trust that the High Court will determine the extent of its territorial jurisdiction before making such interlocutory orders. In the result , the appeal succeeds and is allowed with costs. The impugned orders passed by the learned Single Judge of the Calcutta High Court dated March 13 , 1984 issuing a rule nisi on the petition filed by the respondents under article 226 of the Constitution and the ad interim exparte prohibitory order made by him are set aside and the proceedings before the Calcutta High Court are quashed. We quantify the costs at Rs. 5,000. N.V.K. Appeal allowed.

The Special Officer , Town Planning Department , Jaipur issued a notice under section 52 (2) of the Rajasthan Urban Improvement Act , 1959 at the instance Or the Improvement Trust to the respondent company which owned extensive land on the outskirts of Jaipur City stating that it was proposed by the State Government to acquire the said land under 9. 52 (1) for a public purpose , the implementation of a developing scheme at public expense viz. the Civil Lines Extension Scheme , and the said notice was duly served on the respondents at their registered office at 18B , Brabourne Road , Calcutta. In compliance therewith , the respondents appeared before the Special Officer and while denying the existence of a public purpose for acquisition of the said land under section 52 (1) of the Act , asserted that they needed the land to start new business in the State of Rajasthan viz. for establishment of a branch office , construction of residential houses for their Director and Senior Executives etc. The Special Officer on being satisfied from the material on record that the alleged need of the respondents was not bona fide and that the land was required by the Improvement Trust for a public purpose viz. the Civil Lines Extension Scheme , recom 599 mended that the entire land be acquired under section 52 (1) of the Act. Having failed in their effort to get the land released from acquisition , the respondents made an application to the State Government under section 20 of the Urban Land (Ceiling purview of that Act alleging that the land was needed for constructing a three star hotel , but it appears that they were not serious in undertaking any such venture. While the matter was under the consideration of the State Government , the Improvement Trust represented that the notified land in entirety was needed for the aforesaid development scheme and accordingly the State Government issued the impugned notification. The respondent company approached the Calcutta High Court by a writ petition. A Single Judge entertained the petition under article 226 , issued a rule nisi to the appellants to show cause why a writ of mandamus should not be issued , and also passed an ex parte ad interim prohibitory order restraining them from taking any step to require the respondents to surrender or deliver possession of the lands acquired. Allowing the Appeal , ^ HELD: 1. 1. Normally , the High Court should not , as a rule , in proceedings under article 226 of the Constitution grant any ad interim prohibitory order staying the implementation of any development scheme framed by the Government or by the local authorities , save under very exceptional circumstances and particularly without notice to the Government or such authority. The Court deprecated the tendency on the part of the High Court in spite of a long line of decisions of this Court starting from Siliguri Municipality vs Amalendu Das , ; to grant interlocutory orders for the mere asking. [60IB E] 1. 2 Although the powers of the High Courts under Art 226 are far and wide and the Judges must ever be vigilant to protect the citizen against arbitrary Executive action , nevertheless , the Judges have a constructive role to play and therefore there is always the need to use such extensive powers with due circumspection There has to be in the larger public interest an element of self ordained restraint. The effect of the impugned ad interim prohibitory order made by the learned Single judge virtually brought to 3 standstill a development scheme framed by the Improvement Trust in another State. Such arbitrary exercise of power by the High Court , at the public expense , reacts against the development and prosperity of the country and is clearly detrimental to the national interest. [606G H]; C D] G 2. 1. The question whether service of notice is or is not an integral part of the cause of action within Art 226 (2) of the Constitution must depend upon the nature of the impugned order giving rise to a 'cause of action '. 'Cause of action ' is a bundle of facts which taken with the law applicable to them gives the petitioner a right to relief against the respondent. [60SE , B C] 600 2 .2 There was complete lack of jurisdiction on the part of the Calcutta High Court to have entertained the writ petition. The service of notice under section 52 (2) of the Act was not an integral part of the cause of action within the meaning of article 226 (2) of the Constitution and therefore the High Court had no jurisdiction to entertain the writ petition or issue an ad interim prohibitory order. [601H 602A , 605D]

Civil Appeal No. 571 of 1975 Appeal by Special leave from the judgment and Order dated the 14th March, 1973 of the Allahabad High Court in Special Appeal No. 1 of 1973. R.K. Garg and D.K. Garg for the Appellant. section Rangaran and N.N. Sharma for Respondent. section Markandeya for Respondent. Gopal Subramaniam and Mrs. Shobha Dikshit for Respondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. The appellant was appointed on probation as the Principal of the Model Inter College, Thora, District Bulandshahr (hereinafter referred to as 'the College ') on August 28, 1967 in accordance with the procedure prescribed by the Intermediate Education ACT, 1921 (U.P. Act No. II of 1921) (hereinafter referred to as 'the Act ') and the Regulations made thereunder. The period of probation prescribed was one year. Shortly before the expiry of the period of probation on August 25, 1968, the Managing Committee of the Collage passed a resolution extending the period of probation of the appellant by one year. Thereafter on April 27, 754 1969, the Managing Committee met to consider the question of confirmation of the appellant in the post of the principal. As the Managing Committee was not satisfied with the services of the appellant, it resolved to terminate his services and after obtaining the approval of the District Inspector of Schools wrote a letter dated June 30, 1969 to the appellant communicating its decision to terminate the services of the appellant enclosing therewith a copy of its resolution dated April 27, 1969. The letter dated June 30, 1969 reads thus: "From To The Manager Shri I.P. Gupta Model Inter College Chilkana House, Thora (Bulandshahr) Kumaran, Bridge, Saharanpur. No. Dated the 30th June, 1969 Sub: Termination of your service as Principal. Dear Sir, With reference to the above, I have to mention that in view of the resolution No. 2 of the Managing Committee dated 27.4.1969 (copy enclosed) and subsequent approval by the D.I.O.S. Bulandshahr you are hereby informed that your service as Principal of this Institution is terminated with immediate effect. You will however be entitled to your dues In lieu of notice. Please hand over complete charge to Sri D.D. Gupta, who is being instructed accordingly, without delay. Please note that you cease to function as Principal of this Institution forthwith. You are neither authorised to operate any account nor will you perform any other act in the capacity of the Principal of this Institution henceforth. Of course the civil suit filed by Shri S.P. Jain of Meerut for the recovery of his dues is your sole responsibility, Please see that the matter is reasonably settled failing which you shall be liable to any loss caused to the institution in that respect. While handing over charge please do not forget to return all papers or documents relating to the college, 755 or any other college property in your possession. All accounts also may kindly be cleared. Since despite several assurances you have failed to return during the complete summer vacation, this intimation is being conveyed to you at your Saharanpur address, in this state of uncertainty under registered cover to ensure safe delivery. Recently you are reported to have been to Bulandshahr for a few days. Please come immediately and do the needful in the matter. Sri D.D. Gupta is to assume office of the Principal of this institution with immediate effect in officiating capacity till further instruction. He may take over charge from Sri I.P. Gupta when he returns. Yours faithfully, sd/ Manager Model Inter College, Tohra (Bulandshahr)" The copy of the resolution of the Managing Committee sent alongwith the above letter reads thus: "Resolution passed by the Managing Committee in its meeting held on 27.4.69 terminating the probationary period of the Petitioner. The report of the Manager was read. Sri I.P. Gupta, who was present in the meeting also heard it. He was asked by the Committee to have his say in respect of the report. At first he refused to say anything but when the Committee requested him to consider it seriously. and let the Committee have the benefit of his views, he said that he had nothing to say in that respect since he wanted to quit himself due to circumstances. on this the Committee again requested him to put some such suggestion in consultation with the manager as may be helpful for the Committee to arrive at some conclusion. In the absence of any satisfactory sugges 756 tion the Committee took the decision. At this stage the Principal retired out of courtesy. On the basis of the Service Book of the Principal, the manager told that last year his confirmation was due on 28.8. 1968 but in the meeting of the Committee held on 25.8 68 in which the Principal was also present, the report of the Manager, dated 4.7.68 was put as desired by the President. Resolution 3 dated 25.8.68 under the head "Consideration on confirmation of Shri I.P. Gupta, Principal" incorporates the decision of the Committee as "According to the Manager 's report the period of probation of the Principal extended by one year. " The proceedings book contains signatures of Sri I.P. Gupta for receiving a copy of the said resolution At the end of the proceedings the minute book contains signatures of Sri I.P. Gupta alongwith other members of the Committee present. The facts contained in the report of the Manager being serious and not in the interests of the institution, this Committee unanimously resolves that the period of probation of Sri I.P. Gupta, Principal, be terminated without waiting for the period to end and the manager is empowered to take necessary steps in this respect. Any thing done by him in this respect shall be considered to have been done by this Committee. The manager is also authorised to hand over charge to Sri D.D. Gupta when necessary. Sri I.P. Gupta also came in 'With a Vote of thanks to the Chair the meeting ended. " The English translation of the relevant part of the report of the Manager on the basis of which the above resolution was passed which is incorporated in the counter affidavit filed on behalf of the Managing committee reads thus: "It will be evident from the above that the Principal 's stay will not be in the interest of the institution. It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution should take all 757 this botheration. As such my suggestion is that our purpose will be served by termination of his services. Why, then, we should enter into any botheration. For this, i.e. for termination of his period of probation, too, the approval of the D.I.O.S. will be necessary. Accordingly any delay in this matter may also be harmful to our interests. Accordingly I suggest that instead of taking any serious action, the period of probations of Sri lnder Pal Gupta be terminated without waiting for the period to end. " Aggrieved by the order of termination of his services referred to above, the appellant filed a petition under article 226 of the Constitution in Writ Petition No. 4823 of 1970 on the file of the High Court of Allahabad challenging its correctness and praying for appropriate reliefs. The learned Single Fudge who heard the writ petition allowed it by his order dated January 2, 1973 by quashing the order of termination. The Managing Committee of the College preferred an appeal against that decision to the Division Bench of High Court in Special Appeal No. 31 of 1973. The Division Bench allowed the appeal and dismissed the Writ Petition filed by the appellant by its order dated March 14, 1973. This appeal is filed by the appellant against the Judgment of the Division Bench after obtaining the special leave of this Court under Article 136 of the Constitution. The College is an institution recognised under the Act and is governed by the provisions of the Act. Section 16 G of the Act provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and that the Regulations inter alia may be made in respect of the period of probation, the conditions of confirmation and the procedure for the imposition of punishment. The Board of High School and Intermediate Education is authorised to make Regulations in respect of all matters which by the Act are to be provided for by Regulations with the previous sanction of the State Government. Under the Regulations so made under the Act, the period of probation prescribed is one year whether a person is a direct recruit or has been promoted from a lower grade in service of the institution to a higher grade. The period of probation of a Principal or Head Master may be extended by a maximum period of twelve months. At least six weeks before the date of which the 758 confirmation of a Principal or a Head Master is due, the Manager of the institution is required to prepare his confirmation papers and place them before the Committee of Management and the decision of the Committee of Management in each case is required to be recorded in the form of a resolution. Regulation 10 provides that a person placed on probation shall be confirmed if he fulfils the requirements of regulation 9, has worked with diligence and other wise proved himself fit for the post for which he was recruited and his integrity is certified. Whenever the punishment of dismissal, removal or discharge, reduction in rank or diminution in emoluments is imposed, prior approval of the Inspector should have to be obtained. Regulations 35 to 38 of the Regulations made under the Act which prescribe the procedure for termination of the services of an employee by way of punishment read thus: "35. On receipt of a complaint or an adverse report of facts of a serious nature of the Committee may in the cases of teachers appoint the Headmaster or Principal or Manager as the Inquiry officer (or the Manager may himself set up the enquiry if such power has been delegated to him by the Committee under rules) and in the case of the Head master or Principal, a small sub committee, with instructions to submit the report as expeditiously as possible. (1) The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the employee charged and which shall be so clear and precise as to give sufficient indication to the charged employee of the facts and circumstances against him. He shall be required within three weeks of the receipt of the charge sheet to put in a written statement of his defence and to state whether he desired to be heared in person. If he or the inquiring authority so desires, an oral enquiry shall be held in respect of such of the allegations as are not admitted. At that enquiry such oral evidence will be heared as the inquiring authority considers necessary. This person charged shall be entitled to cross examine the witness, to give evidence in person, and to have such witnesses called as he may wish, provided that the inquiring authority conducting the enquiry may, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient 759 record of the evidence and statement of the findings and the grounds thereof. The inquiring authority conducting the enquiry may also, separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the employee. (2) Clause (1) shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. (3) All or any of the provisions of clause (1) may for sufficient reasons to be recorded in writing be waived where there is difficulty in observing exactly the requirements thereof and those requirements can in the opinion of the inquiring authority be waived without injustice to the person charged. Soon after the report of the proceedings and recommendation from the inquiring authority arc received, the Committee of Management shall meet to consider the report of the proceedings and recommendation made and take decision on the case. The employee shall, however, be allowed, if he so desires, to appear before the Committee in person to state his case and answer any question that may be put to him by any member present at the meeting. The Committee shall then send a complete report together with all connected papers to the Inspector or Regional Inspectress as the case may be, for approval of action proposed by it. If it is felt at any stage that the matter can be more properly dealt with by action to terminate service with notice, this may be done with the approval of the Inspector or Regional Inspectress, as the case may be. " It is seen from the foregoing that the above provisions relating to the procedure to be followed before imposing the punishment of dismissal or removal from service are virtually the same as provided by Article 311 (2) of the Constitution and the principles which should govern this case should, therefore, be the same as those underlying Article 311 (2). The decisions in Parshotam Lal Dhingra vs Union of India, Shamsher Singh & Anr. vs State of 760 Punjab and Anoop Jaiswal vs Government of India & Anr explain the true legal position governing the termination of the services of a probationer. In Parshotam Lal Dhingra 's case (supra), this Court observed at page 862 thus: "In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so article 311 is not attracted But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of article 311 must be complied with. " The above rule applies to probationers too. Admittedly no enquiry was held in this case as provided in Regulations 35 and 36 of the Regulations made under the Act. Apparently in the light of the principles enunciated in Parshotam Lal Dhingra 's case (supra) the learned Single Judge who decided the Writ Petition at the first instance in the High Court observed in the course of his order thus: "In this petition under Article 226 of the Constitution the petitioner questions the validity of the so called termination of his service by the resolution passed by the Managing Committee on 27.4.1969. His case is that the termination in the circumstances in which it has been made by the Managing Committee amounts to punishment of removal or dismissal from service and the punishment having been imposed upon him without following the procedure prescribed under sec. 16 G of the Intermediate Education Act and the regulations framed thereunder becomes vitiated. Indeed it has not been denied or controverted in the counter affidavit that the action against the petitioner was taken by 761 the Managing Committee on serious charges of mismanagement brought against the Principal by the Manager. But it has submitted by the learned counsel for the opposite parties that a reasonable opportunity was afforded to the petitioner by the Managing Committee when he was faced with the charges and asked to explain on 27.4.69, at the meeting of the Managing Committee. But the learned counsel for opposite parties when faced with the relevant regulations and Sec. 16 G of the Intermediate Education Act found it difficult to justify that what was done at the meeting of the Managing Committee on 27.4.1969 complies with those provisions. The attack made by the petitioner based on non compliance of the relevant regulations and the provisions of Sec. 16 G of the Act on the validity of the action taken, appear to be sound and sustainable. No matter the petitioner was not a permanent Principal yet he was entitled to a regular show cause notice against the charges brought and an opportunity to be heard as required by the regulations. The impugned order of termination thus was a mere camouflage and cannot be regarded in the. circumstances as having been passed by the Managing Committee in the normal course. The District Inspector of Schools was in error in approving the termination in those circumstances. " But the Division Bench of the High Court took a contrary view. The first error in the judgment of the Division Bench lies in its observation: 'Firstly the order of termination is innocuous. It does not refer to any allegations or even to the report of the Manager. ' It is seen from the letter dated June 30, 1969 by which the services of the appellant were terminated that the resolution of the Managing Committee dated April 27, 1969 is made a part of it by treating it as an enclosure to that letter. The resolution actually begins with a reference to the report of the Manager, and slates that the facts contained in the report were 'serious ' and 'not in the interests of the institution '. It further refers to the fact that the appellant was asked to give his explanation to the allegations made in the said report. That report stated: 762 "It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution should take that botheration. " The above report was the real foundation on which the decision of the Managing Committee was based. This is a case where the order of termination issued is merely a camouflage for an order imposing the penalty of termination of service on the ground of misconduct. Secondly, the Division Bench has tried to justify the action of the Management by observing that since the management had to secure the approval of the District Inspector to its action, it was necessary for it to give its assessment of the work of the appellant as Principal and, therefore. in the. context of the statutory requirements, it cannot be said that merely because the Manager 's report or the resolution of the Managing Committee refers to the various aspects of the assessment of the performance of the Principal in terms unfavourable to him, it would in law, amount to casting a stigma upon the Principal '. It is difficult to engraft an exception of the above type to the well settled rule that if the order of termination carries a stigma, it has to fall to the ground unless it is proceeded by an enquiry as contemplated by law. A reading of the letter of termination of the service and the resolution which forms part of that letter clearly shows that they bear a mark of disgrace or infamy and that the appellant is visited with evil consequences as explained in Parshotam Lal Dhingra 's case (supra). The Division Bench, therefore, erred in holding that on the facts and in the circumstances of the case, the order of termination was an innocuous one and did not carry any stigma. The order of the Division Bench is, our opinion, an unsustainable one and is liable to the set aside. In the result, we allow this appeal, set aside the judgment of the Division Bench of the High Court and restore the judgment of the learned Single Judge. We hereby declare that the appellant continues to be in the service of the College. He is entitled to all the benefits flowing from this declaration including the salary and allowances as if there was no break in his service. The respondent College shall also pay the costs of this appeal to the appellant. S.R. Appeal allowed.

The appellant was appointed on probation as the Principal of the Model Inter College, Thora on August, 28, 1967. His period of probation was extended by one year and thereafter by a letter dated June 30, 1969 addressed to him with a copy of a resolution dated 27th April, 1969 passed by the Managing Committee wherein various allegations were made regarding his conduct, his services were terminated by the respondent. Aggrieved by the said orders of termination of his services, the appellant filed a writ petition No. 4823 of 1970 on the file of the High Court of Allahabad. The said writ petition was allowed on January 23, 1973 and the order of termination was quashed. However, the special Appeal No. 31 of 1973 filed by Respondent was accepted and allowed by the Division Bench. Hence the appeal by special leave of the Court. Allowing the appeal, the Court, ^ HELD: 1. Section 16 of the Uttar Pradesh Intermediate Education Act, (Act II of 1921) provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and that the Regulations inter alia may be made in respect of the period of probation, the conditions of confirmation and the procedure for the imposition of punishment Regulations 35 to 38 relate to the procedure to be followed before imposing the punishment of dismissal or removal from service and they being virtually the same as provided by Article 311(2) of the Constitution, the principles which should govern this instant case should therefore be the same as those underlying Article 311(2). Admittedly here no enquiry was held as provided for in Regulation 35 and 36. Therefore the non compliance with the 753 provisions of Section 16 of the Act and Regulations 35 to 38 vitiates the termination order. [747F G; 759G; 760E] Parshotam Lal Dhingra vs Union of India [1958] S.C.R. 828; Shamsher Singh and Anr vs State of Punjab. ; ; Anoop Jaiswal vs Government of India and Anr. ; ; referred to. If the order of termination carried a stigma it has to fall to the ground unless it is preceded by an enquiry as contemplated by law. A reading of the letter of termination of the service and the resolution which forms part of that letter clearly shows that they bear a mark of disgrace and infamy and the appellant is visited with evil consequences. The order of the Division Bench is therefore unsustainable. [762D E]. [The Court declared that the appellant continues to be in the service of the College with entitlement to all consequential benefits including the salary and allowances as if there was no break in his service.] [762G]

Civil Appeal No. 132 of 1951. Appeal by Special Leave from the Judgment and Decree dated 17th May, 1950, of the High Court of Judicature at Calcutta (Harries C.J. and Sinha J.) in Appeal No. 41 of 1950 arising out of the Order of 766 Banerjee J. dated 19th December, 1949, in Suit No. 132 of 1948. M.C. Setalvad, Attorney General for India (B. Sen, with him) for the appellant. Naziruddin Ahmad (Nuruddin Ahmad, with him) or respond ent No. 1. S.N. Mukherjee for respondent No.2 1952. May 21. The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J. This Court granted special leave to appeal in this case on the Government agreeing to pay the costs of the respondents in respect of the appeal in any event. The decree holder was a lady named Hira Devi. The judg ment debtor was one Ram Grahit Singh, who retired on 31st January, "1 '947, as a Head Clerk in the Dead Letter Office, Calcutta. A money decree was obtained against him on 30th July, 1948. On 1st February, 1949, a receiver was appointed for collecting the moneys standing to the credit of the judgment debtor in a Provident Fund with the Postal authori ties. The Union of India intervened with an application dated 20th September, 1949, for setting aside the order appointing the receiver. Mr. Justice Banerjee dismissed the application of the Union of India, holding that a receiver could be appointed for collecting the Fund. On appeal, Trevor Harries C.J. and Sinha J. upheld his view. From the facts stated in the petition filed by the Union of India before the High Court, it appears that a sum of Rs. 1,394 13 1 represents arrears of pay and allowances .due to the judgment debtor and a sum Of Rs. 1,563, is the compulso ry deposit in his Provident Fund account. Different consid erations will apply to the two sums, though in the lower court the parties seem to have proceeded on the footing that the entire sum was a "compulsory deposit" within the meaning of the provident Funds Act, 1925. The main question to be decided. is whether a receiver can be appointed in execution in respect of provident Fund money due to the judgment debtor. 767 Compulsory deposit and other sums in or derived from any fund to which the Provident Funds Act XIX of 1925 applies are exempt from attachment and sale under section 60 (k), Civil Procedure Code. "Compulsory deposit" is thus defined in section 2 (a) of the Provident Funds Act XIX of 1925: Compulsory deposit means a subscription to, or deposit in a Provident Fund which under the rules of the Fund, is not, until the happening of some specified contingency repayable on demand otherwise than for the purpose of the payment of premia in respect of a policy of life insurance (or the Payment Of subscriptions or premia in respect of a family pension fund), and includes any contribution and any interest or increment which has accrued under the rules of the fund on any such subscription, deposit, contribution, and also any such subscription, deposit, contribution, interest or increment remaining to the credit of the sub scriber or depositor after the happening of any such contin gency. " Such a deposit cannot be assigned or charged and is not liable to any attachment. Section 3 (1)of the said Act provides : 3. (1)" A compulsory deposit in any Government or Rail way Provident Fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any Civil, Revenue or Criminal Court in respect of any debt or liability incurred by the subscriber or depositor, and neither the Official Assignee nor any receiver appointed under the shall be entitled to, or have any claim on any such compulsory deposit. " It is obvious that the prohibition against the assign ment or the attachment of such compulsory deposits is based on grounds of public policy. Where the interdiction is absolute, to allow a judgment creditor to get at the fund indirectly by means of the appointment of a receiver would be to circumvent the statute. That such a frustration of the very object of 768 the legislation should not be permitted was laid down by the Court of Appeal as early as 1886 in the case of Lucas vs Harris (1), where the question arose with reference to a pension payable to two officers of Her Majesty 's Indian Army. Section 141 of the Army Act, 1881 provided: "Every assignment of, and every charge on, and every agreement to assign or charge any . . pension pay able to any officer or soldier of Her Majesty 's forces, or any pension payable to any such officer . . or to any person in respect of any military service, shall except so far as the same is made in pursuance of a royal warrant for the benefit of the family of the person entitled thereto, or as may be authorised by any Act lot the time being in force, be void. In that case, the appointment of a receiver to collect the pension was in question. Lindley, L.J., observed: In considering whether a receiver of a retired officer 's pension ought to be appointed, not only the language but the object of section 141 of the Army Act. 1881 must be looked to; and the object of the section would, in my opinion, be defeated, and not advanced, if a receiver were appointed." Lord Justice Lopes reiterated the same thing in these words : "It is beyond dispute that the object of the legislature was to secure for officers who had served their country, a provision which would keep them from want and would enable them to retain a respectable social position. i do not see how this object could be effected unless those pensions were made absolutely inalienable. preventing not only the person himself assigning his interest in the pension. but also preventing the pension being seized or attached under a garnishee order, or by an execution or other process of law. Unless protection is given to this extent the object which the legislature had in view is frustrated, and a strange anomaly would exist. A person with a (1) 18 (Q.B D. 127. 769 pension would not be able to utilise his pension to pay a debt beforehand, but immediately his creditor had obtained judgment might be deprived of his pension by attachment, equitable execution, or some other legal process. It is impossible to suppose that the legislature could have in tended such an anomaly. " Section 51 of the Civil Procedure Code no doubt recognises five modes of execution of a decree and one of them is the appointment of a receiver. Instead of executing the decree by attachment and sale, the Court may appoint a receiver but this can only be in a case where a receiver can be appointed. The Provident Fund money is exempt from at tachment and is inalienable. Normally, no execution can lie against such a sum. The learned Judges in the Court below rested their view on the authority of the decision of the Privy Council in Rajindra Narain Singh vs Sundara Bibi(1). This decision has caused all the difficulty and has created a current of thought that even though the property may not itself be liable to attachment, a receiver can be appointed to take possession of the same and to apply the income or proceeds in a particular manner including the payment of the debts of the judgment debtor. It is necessary. therefore, to examine the facts of the case carefully and find out whether the proposition sought to be deduced from it can be justified as a principle of general application apart from the particular circumstances. The original decision of the Allahabad High Court from which the appeal was taken before the Judicial Committee is reported in Sundar Bibi vs Raj Indranarain Singh(2). In a suit between two brothers, there was a com promise to the effect that the Judgment debtor shall possess and enjoy the immoveable properties mentioned in the list and estimated to yield a net profit of Rs. 8,000 a year without power of transfer during the lifetime of his broth er, Lal Bahadur Singh, he undertaking to pay certain public exactions and other dues (1)1925) 52 I.A. 262. (2) (1921)43 All. 617 770 to his brother, Lal Bahadur Singh, amounting in all to Rs. 7,870 11 6, in four equal instalments per annum, each to be paid a month before the Government revenue falls due. The arrangement was stated to be "in lieu of his mainte nance". When the judgment debtor 's interest in the proper ties was sought to be attached and sold, he raised the objection that they were exempt from attachment and sale by reason of clause (n) of Section 60 of the Code which speaks of "a right to future maintenance". The High Court held that the words employed in sub clause (n) contemplated R bare right of maintenance and nothing more a right enforce able by law and payable in the future and that inasmuch as in the case before them the properties had been assigned to the judgment debtor in lieu of his maintenance, it was not such a right, which alone was exempt from attachment and sate. They thought that it was a fit case for the appoint ment of a receiver and remitted the execution petition to the subordinate judge for the appointment of a receiver after determining the allowance payable to the judgment debtor for his maintenance. With this conclusion of the High Court the Judicial Committee concurred. But they also expressed the view that they did not agree with the High Court on the subject of the actual legal position of the right of maintenance conferred upon the judgment debtor. Taking the prayer of the judgment creditor to be that the right of maintenance be proceeded against, their Lordships observed that the right was in point of law not attachable and not saleable. If it was an assignment of properties for maintenance, the amount of which was not fixed, it was open to the judgment creditor to get a receiver appointed subject to the condition that whatever may remain after making provision for the maintenance of the judgment debtor should be made available for the satisfaction of the decree debt. The right to main tenance could not be attached or sold. In so far as the decree holder sought to attach this right and deprive the judgment debtor of, his maintenance, he was not entitled to do 771 so, but where his application for the appointment of a receiver was more comprehensive and sought to get at any remaining income after satisfying the maintenance claim, the appointment of a receiver for the purpose was justified. The decision of the Privy Council does not appear to lay down anything beyond this. In our opinion, it is not an authority for the general proposition that even though there is a statutory prohibition against attachment and alienation of a particular species of property, it can be reached by another mode of execution, viz., the appointment of a re ceiver. On the other hand, it was pointed out in the case of Nawab Bahadur of Murshidabad vs Karnani Industrial Bank Limited(1) that as the Nawab had a disposing power over the rents and profits assigned to him for the maintenance of his title and dignity without any power of alienation of the properties, no question of public policy arose and that a receiver of the rents and profits was rightly appointed. This line of reasoning indicates clearly that in cases where there is no disposing power and the statute imposes an absolute bar on alienation or attachment on grounds of public policy, execution should not be levied. Understood as mentioned above, Rajindra Narain Singh 's case creates no difficulty. We shall now refer to the decisions that followed or distinguished the same. In The Secretary of State for India in Council vs Bai Somi and Another(2), the maintenance of Rs. 96 per annum was made under a compromise decree a charge on the house which was to belong to the defendant. 'the court fee due to Government was sought to be recovered by attachment of the house. The right to attach was negatived; the house could not be at tached as it belonged to the defendant; and the plaintiff 's right to maintenance could not be attached under section 60, clause (1). In dealing with a prayer made by the Govern ment for the first time in the High Court for an order appointing a receiver of the plaintiff 's maintenance, Beaumont C.J. and (1) (1931) 58 I.A. 215. (2) 100 772 another learned Judge held that even this could not be done. The Chief Justice said , 'If these exempted payments can be reached in execution by the appointment of a receiver by way of equitable execution, the protection afforded by the section is to a great extent lost." They steered clear of Rajindra Narain Singh 's case by stating that there was in the judgment of the Board no clear expression of opinion and there was doubt whether the allowance then in question was maintenance or not. The Madras High Court in The Secre tary of State for India in Council vs Sarvepalli Venkata Lakshmamma(1) has dealt with a question similar to the one in The Secretary of State for India in Council vs Bai Somi and Another(2) but it merely referred to the ruling in Rajindra Narain Singh 's case without dealing with the facts or the reasoning. It throws no light. The case in Janaki nath vs Pramatha Nath (3) was a decision by a single Judge and stands on the same footing as the Madras case. There is nothing else on this subject in the judgment than the short observation, "the Provident Funds Act does not in my opinion prohibit the appointment of a receiver of the sum lying to the credit of the deceased in the Provident Fund. " Possibly the view was taken that on the death of the employee and in the absence of any dependent or nominee becoming entitled to the fund under the rules, it became money payable to the heirs of the deceased and lost its original nature of being a compulsory deposit. The case of Dominion of India, repre senting E. 1. Administration and Another vs Ashutosh Das and Others(4) refers no doubt to Rajindra Narain Singh 's case but does not discuss it in any detail. Roxburgh J. merely states "surely it is an improper use of that equita ble remedy to employ it to avoid a very definite bar created by statute law to achieving the very object for which the receiver is appointed. " The decision in Ramprasad vs Moti ram(5) related to the attachment and sale in execution of a (1) (4) (2) (5) (1946) 25 Pat. 705. (3) 773 money decree of the interest of a khoposhdar in a khorposh grant which was heritable and transferable. It affords us no assistance. The learned counsel for the respondents relied on three decisions of the Privy Council as lending him support. One is Nawab Bahadur of Murshidabad 's case(1) already referred to. Vibhudapriya Thirtha Swamiar vs Lakshmindra Thirtha Swamiar(2) and Niladri Sahu vs Mahant Chaturbhuj Das and Others(3) are the other two eases and they relate to maths and alienations by way of mortgage of endowed properties by the respective mahants for alleged necessity of the institu tions. They bear no analogy to the present ease. The mahants had a beneficial interest in the properties after being provided with maintenance. A receiver could be ap pointed in respect of such beneficial interest so that the decrees obtained may be satisfied. With great respect to the learned Judges of the Court below, we are of the opinion that execution cannot be sought against the Provident Fund money by way of appointment of a receiver. This conclusion does not, however, apply to the arrears of salary and allowance due to the judgment debtor as they stand upon a different legal footing. Salary is not attach able to the extent provided in Section 60, clause (1), Civil Procedure Code, but there is no such exemption as regards arrears of salary. The learned Attorney General conceded that this portion of the amount can be proceeded against in execution. The Provident Fund amount was not paid to the subscriber after the date of his retirement in January 1947. This, however, does not make it any the less a compulsory deposit within the meaning of the Act. Whatever doubt may have existed under the earlier Act of 1897 the decisions cited for the respondent, Miller vs B.B. & C.I. Railway(4) and Raj (1) (1931) 58 I.A. 215. (3) (1926) 53 I.A. 253. (2) (1927) 54 I.A. 228. (4) 774 Kumar Mukharjee vs W.G. Godfrey(1) are under that Act, the meaning has now been made clear by the definition in section 2 of the present Act; any deposit "remaining to the credit of the subscriber or depositor after the happening of any such contingency" is also a compulsory deposit; and the contingency may be retirement from service. In the result, the appeal is allowed and the order of the lower court dated 1st February, 1949, appointing a receiver is set aside as regards the Provident Fund amount of Rs. 1,563 lying to the credit of the judgment debtor. Under the condition granting special leave, the Government will pay the 1st respondent 's costs of this appeal. Appeal allowed. Agent for the respondent No. 1: Naunit Lal. Agent for the respondent No. 2: P.K. Chatterjee.

A receiver cannot be appointed in execution of a decree in respect of a compulsory deposit in a Provident Fund due to the judgment debtor. Whatever doubts may have existed under the earlier Act of 1897, the definition of "compulsory deposit" in section 2 (a) of the Provident Funds Act (XlX of 1925) clearly includes deposits remaining to the credit of the subscriber or depositor after he has retired from serv ice. Arrears of salary and allowances stand upon a different footing and are not exempt from being proceeded against in execution.

Appeal No. 1166 of 1971. Appeal by special leave from the Award dated December 19, 1970 of the Central Government Industrial Tribunal, Jaipur in Case No. CIT 10 of 1968. M. C. Setalvad, K. K. Jain, C. N. Sharma, C. section Patel and Bishamber Lal, for the appellant. M. K. Ramamurthi and J. Ramamurthi, for the respondent. The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from an award of the Central Government Industrial Tribunal, Rajasthan directing the reinstatement of one Bhisham Verma in the service of the appellant with full back wages. The facts are as follows. The appellant is a public limited company with its registered office at Sawaimadhopur in the State of Rajasthan. It has a cement factory at the said place besides a limestone quarry at Phallodi situate at a distance of 24 kms. from the cement factory. It has two separate sets of Standing Orders for the workmen employed in the factory and in the quarries. Both sets of Standing Orders were certified in accordance with the provisions of the Industrial Employment (Standing Orders) Act,1946. The Standing Orders applicable to the workmen employed in the factory were certified in the year 1954 while those applicable to the workmen of the quarries were certified in the year 1961.Up to April 1967 both sets of Standing Orders provided for superannuation of the workmen at the age of 55 with a stipulation for extension up to 60 years if a workman was found fit to work. On a dispute having been raised for the raising of the age of superannuation of the workmen at the cement factory, a settlement was arrived at between the appellant and the respondent (a registered trade union of the employees) on 16th December 1966 whereby it was agreed that Standing Order No. 21 applicable to the cement factory be amended by raising the age of superannua(ion from 55 to 58 years without making any provision for further 298 extension. A joint application following upon the agreement was moved by the appellant and the respondent for modifying the, Standing Order No. 21 with respect to the age of superannuation which was accordingly done. Nothing was however done with regard to the age of superannuation of the, employees at the quarry, the relevant clause in the Standing Order remaining unaltered. On April 3, 1968 the appellant intimated the said Bhisham Varma, incline driver at the quarry, that he "had exceeded the age of retirement on 3 4 1968" and as such he was given "notice of retirement in accordance with clause 21 of the Standing Orders of the quarries with effect from the close of work on 2 5 1968". On April 30, 1968 the said workman wrote to the appellant that although according to the service file he had completed the age of 55 years as indicated, his proper age according to his horoscope was about 50 years and his service record should be amended accordingly. The appellants ' reply to the above dated July 9, 1968 was to the effect that his case had been reexamined and that his retirement, as already intimated on 3 4 1968 would stand. The Union took up the cause of the worker and addressed a letter on July 18, 1968 to the Regional Labour Commissioner requesting that arrangements may be made to put the worker back to work and take proper legal proceedings. On behalf of the workman it was represented that he had been working in the company since October 11, 1957, that the Personnel Manager of the, quarry had, given orders dismissing him from service on April 3, 1968 and that in spite of objections made by the workman that there was a mistake in the papers of the company with regard to his age which was 50 as supported by his horoscope and doctor 's certificates the action of the quarry manager was illegal and contrary to service contract. The record does not show what if any other steps were taken by the parties when the Central Government made an order of reference under section 10(1) (d) of the Industrial Disputes Act ,reading : "Whether the action of the management of the Jaipur Udyog Limited, P.O. Phallodi Ouarry, Sawaimadhopur in terminating the services of Bhisham Varma, incline driver, with effect from 9th July 1968, on grou nds of superannuation was legal and justified ? If not to what relief is he entitled ? Before the Tribunal, the respondent Union filed a statement of claim wherein after reciting the action taken by the appellant and the representation made by the workman it was stated that the quarry and the cement factory were under one and the same management and there was complete financial integrality between the activities of the company at both the places. It was also said 299 that workmen could be transferred from one place to another and that a,. a result of the settlement mentioned, the company could not retire any workman before he attained the age of 58 years. The settlement was said to apply to the workmen employed. at both the places. The Union further submitted that the company could not insist on two sets of conditions of service covering different sections of the same workmen in the same establishment, that the age of retirement was not a subject mentioned in the Schedule to the Industrial Employment (Standing Orders) Act and as such. no Standing Order could be certified on this topic. In its reply to the above, the company took the stand that the settlement arrived at in respect of the cement works Karmachari Sangh, Sawai Madhopur was not ipso facto applicable to the quarry inasmuch as the proper authority under the in respect of the cement works was the Government of Rajasthan whereas the appropriate Government in respect of the quarries was the Government of India. It was said further that in pursuance of the settlement arrived at in 1966 the Standing Orders were amended by the Certifying Officer of the Government of Rajasthan as a result whereof the age of superannuation in the works at Sawai Madhopur was raised to 58. This however did not alter or modify the position prevailing in the quarries which were governed by a separate set of orders certified by the Certifying Officer of the Government of India. The Tribunal took the view that the cement factory and the quarries were two units of the same establishment and that consequently there should be a uniform set of rules for the workmen of the company as a whole and it was immaterial that in the case of one unit the Standing Orders had to be certified by the Certifying Officer of the Government of India and in the other by the Officer appointed by the Government of Rajasthan. The Tribunal was further of the view that the clause as to superannuation could not be provided in the Standing Orders under the relevant Act and certification could not attach enforceability to them even on the ground that the workers did not challenge such provision before the Certifying Officer. In the result the Tribunal held that there could not be a lower age limit of superannuation for workmen at the Phallodi Quarry specially in view of the fact that workmen were admittedly transferable from one place to the other. As a consequence of the above finding, the Tribunal quashed the order and directed the reinstatement of the workman with full back wages. On behalf of the company the first contention raised by Mr. Setalvad was that the Tribunal had gone wrong in construing the order of reference to include a dispute as to whether it was open to the company to have two sets of Standing Orders providing for 300 different ages of superannuation. Mr. Setalvad argued that in view of the correspondence terminating with the representation by the Union to the Conciliation Officer, it was abundantly clear that the dispute between the parties was whether or not the company was justified in coming to the conclusion +hat the workman concerned had reached the age of 55 on April 3, 1968 and as such was to be superannuated in terms of the Standing Orders. The letter of the 9th July 1968 by the Company to the workman reads as follows Please refer to your application dated 30 4 1968 received by us on 8 5 1968 along with a copy of your horoscope in Hindi. The Management has reexamined your case and come to a final conclusion that your retirement from the service of the company as intimated to you vide our memo No. Pq/B/186 dated 3 4 68 should stand. You are, therefore, directed to collect your dues, if any, from our Accounts Department on any working day after producing necessary clearance certificate. " Of necessity, reference had to be made by the Tribunal to ,the application of the workman dated April 30, 1968 with a copy of his horoscope. The said latter expressly complained of the alleged inaccuracy in the service record pertaining to him according to which the writer had not completed the age of 55 years on the 3rd April. The workman 's representation was that his age had been inaccurately recorded, , ',hat his proper age was 50 and that the records should be corrected accordingly. In our view, if the Tribunal had taken care to examine what was the dispute between the parties when the Government made ,the order of reference it would have had no difficulty in realising that no dispute was raised either by the workman or the Union that the age of superannuation governing the workman was not 55 years. It was certainly open to the workman to contend that his age of superannuation should be fixed at 58 and not 55 years and it would have been equally open to the Union to raise the point in their representation to the Conciliation Officer. If that had been done, the Government of Rajasthan could have property made a reference of a dispute between the parties regarding the correct age of superannuation and the adjudication of the dispute regarding the superannuation of the workman concerned on that basis. Nothing was however shown to us, apart from the documents already referred to, to enable us to find that any question had been raised before the Government of Rajasthan relating to the age of superannuation of the workmen at the quarries or that there was any basis for apprehension of such a dispute and it was therefore not open to the Tribunal to enlarge the ambit of the dispute between the parties by reference to the difference in the 301 age of superannuation under the two sets of Standing Orders. Mr. Setalvad drew our attention to the judgment of this Court in Tile Sindhu Resettlement Corporation Ltd. V. The Industrial Tribunal of Gujarat & Ors.(1) for the proposition that unless a dispute was raised by the workman with their employer it could not become an industrial dispute. Respondent No. 3 before this Court in that case was employed by the appellant as an accounts Clerk at Gandhidham in the year 1950. Some years thereafter his services were placed at the disposal of the subsidiary. company of the appellant. The respondent was appointed in the said subsidiary company on a different set of conditions of service. He worked with that company up to February 1958 when his services were terminated after payment of retrenchment compensation and other dues by the said subsidiary company. The respondent then went to the appellant and requested that he might be given posting orders. The appellant declined to do so on the ground that the post which he was occupying in 1953 had been permanently filled up. Thereupon the respondent demanded retrenchment compensation from the appellant also. As the representations of the respondent were not fruitful, conciliation proceedings were started and ultimately, on the report of the Conciliation Officer, the State of Gujarat referred the dispute to, the Industrial Tribunal. The matter referred for adjudication was, "whether the said respondent should be reinstated in the service of the appellant and be paid back wages from 21st February, 1958. " The Tribunal directed reinstatement and payment of back wages. In allowing the appeal, this Court observed that the respondent workman had only asked for payment of retrenchment compensation and did not raise any dispute for reinstatement. According to this Court (see p. 522): ". the evidence produced clearly showed that no such dispute (i.e. relating to reinstatement) had ever been raised by the respondent with the management of the appellant. If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their employer. Relying on the above decision Mr. Setalvad argued that in order that a reference can be construed to embrace a particular dispute it must be shown that a demand had been made by the workman and not accepted by the employers so as to give rise to a dispute which in the view of the Government required adjudication. Mr. Ramamurty on behalf of the respondents drew our attention to the provisions of section 10(1) of the and in particular to clauses (c) and (d) thereof. He argued that it was open to the appropriate Government in an appropriate case to (1) ; 302 refer a dispute along with any matter appearing to be connected with or relevant to the dispute and no objection could be taken to the award of a Tribunal where the Tribunal had not transgressed the limits of cls. (c) and (d) of section 10(1) of the Act. It was further contended that the proper age of superannuation applicable to the company as a whole was so intimately connected with or relevant to the dispute which actually arose between the parties prior to the order of reference as to lead us to hold that the Tribunal had not gone beyond its jurisdiction in construing the order of reference to embrace an adjudication as to proper age of superannuation of a workman like Bhisham Verma. In our view, the finding of the Tribunal that the Company could not fix a lower age limit of superannuation for workmen at the quarries went beyond the scope of reference which had to be gathered from the circumstances preceding the Government Order. The Tribunal never addressed itself to the point of view of the workman that his proper age was only 50 and not 55; nor did it come to a finding that the true age of the workman being 50 years in 1968 there was no question of his superannuation in that year. Mr. Setalvad raised a further point that so, long as the quarried, had a different set of Standing Orders prescribing a different age of superannuation from that fixed under,the Standing Orders relating to the cement works, the tribunal could not have disregarded the Standing Orders as it had purported to do and lay down that the age of superannuation of all workmen should be 58 as found" by it. Our attention was drawn to section 2 (g) of the Industrial Employment (Standing Orders) Act and to section 3(2) of the said Act under which provision had to be made in Standing Orders for all matters set out in the Schedule to the Act. According to Mr. Setalvad, item 8 of the Schedule reading: "Termination of employment, and the notice thereof to be given by employer and workmen." allowed the framing of Standing Orders with regard to age of superannuation. Mr. Ramamurty on the other hand contended that this item could not possibly embrace such a matter as the age of superannuation but was limited to voluntary acts of the employer or the workmen to put an end to the employment without any question of superannuation. Arguments were advanced at some length by counsel on either side on this point, but in the view which we have taken on the first point as to the jurisdiction of the Tribunal, we find it unnecessary to decide this point. in the result we hold that the award of the Tribunal was in competent as the dispute which it sought to adjudicate upon was not the one referred. The award will therefore be set aside, but in the circumstances of the case, we make no order as to costs. S.C. Award set aside.

The appellant, a public Limited Company, had a Cement Factory and at a distance, a limestone quarry. it had two standing orders for the workman employed in the factory and in the quarries. Upto April, 1967, both sets of standing orders provided for superannuation of the workmen at the age of 55 with a stipulation for extension upto 60 years if a workman was found fit to work. After a dispute at the Cement Factory, a settlement was arrived at by which it was agreed that the standing order applicable to the Cement Factory be amended by raising the age of superannuation from 55 to 58 without making any provision for further extension and accordingly, the amendment was made. Nothing was, however, done with regard to the superannuation age of the employees at the quarry. On April 3, 1968, the appellant intimated the incline driver at the quarry that he had reached the age of retirement on 3 4 68 and accordingly he was given notice of retirement in terms of the standing order. On April 30, 1968, the said workman wrote to the appellant that although service records showed him to be 55 years of age, his proper age according to his horoscope, was about 50 years and so his service records should he amended accordingly, but the appellant refused. The Union took up the cause of the worker and requested the Regional Labour Commissioner to put the worker back to work. On a reference under section 10(1) (d) of the Industrial Disputes Act, the Tribunal took the view that the Cement Factory and the quarries were two units of the same establishment and so, there should be a uniform set of rules for the workmen of the Company as a whole. In the result, the Tribunal held that there could not be a lower age limit of superannuation for workmen at the quarry specially in view of the fact that workmen were admittedly transferred from one unit to the other. As a consequence, the Tribunal quashed the order of dismissal and directed the reinstatement of the workman with full back wages. It was contended by the Company before this Court that the Tribunal was wrong in construing the order of reference to include a dispute as to whether it was open to the Company to have two sets of standing orders providing for different ages of superannuation. According to the appellant, the dispute between the parties was whether or not the Company was justified in coming to the conclusion that the workman concerned had reached the age of 55 on April 3, 1968, and as such, was to be superannuated in terms of the standing orders, Setting aside the award, HELD : The Tribunal had not taken care to examine what was the dispute between the parties when the government made the order of reference. No dispute was ever raised either by the workman or the Union that the age of superannuation governing the workman was not 297 55 years. The finding of the Tribunal that the Company could not fix a lower age limit of superannuation for the workman at the quarries went beyond the scope of reference. The Tribunal never addressed itself to the point of view of the workman that his proper age was only 50 and not 55; nor did it come to a finding that the true age of the workman being 50 years in 1968, there was no question of his superannuation in that year. [302 C] The Sindhu Resettlement Corporation Ltd. vs The Industrial Tribunal, Gujarat & Ors. ; referred to.

ION: Criminal Appeal No. 49 of 1955. Appeal by special leave from the order dated the 9th July, 1954 of the Punjab High Court at Simla in Criminal Revision No. 778 of 1954 arising out of the judgment and order dated the 30th June 1954 of the Court of Additional Sessions Judge, ' Amritsar in Criminal Appeal No. 409 of 1954. 477 Ram Das and Raghu Nath Pandit, for the appellants. Jindralal and P. G. Gokhale, for the respondent. April 26. The Judgment of the Court was delivered by BHAGWATI J. This appeal with special leave involves the interpretation of section 9 of the Punjab Security of the State Act, 1953 (Punjab Act XII of 1953), hereinafter called "the Act". The appellants were members of the Amritsar District Motor Union which took out a procession on 23rd March, 1954 to protest against the policy of the Punjab Government to nationalise motor transport. The procession started from Gul Park and was taken on lorries and jeeps. It stopped near Chitra Talkies and then started on foot. When it reached near Prabhat Studio, the appellants raised slogans "Jaggu mama hai hai (Jaggu, maternal uncle be dead)" and "Khachar Khota hai hai (mule cum donkey be dead)". The first slogan was alleged to have been directed against the Hon 'ble Shri Jagat Narain, Transport Minister, Punjab State and the second slogan against the Hon 'ble Shri Bhim Sen Sachar, Chief Minister, Punjab State. The uttering of these slogans was considered objectionable and the appellants were charged in the Court of the Magistrate, First Class, Amritsar: "that you, on or about the 23rd day of March 1954 at Amritsar, while being members of a procession, raised slogans "Jaggu mama hai hai" "Khachar Khota hai hai" which besides being indecent amounted to defamation and was pre judicial to the security of the State and the maintenance of public order and thereby committed an offence punishable under section 9 of the Security of the State Act". The appellants pleaded not guilty and claimed to be tried. They also led evidence in defence. The learned Magistrate, however, disbelieved the defence and, accepting the prosecution evidence, found that the appellants did raise these slogans. In the opinion 478 of the learned Magistrate, the slogans were in fact abuses hurled at the Transport Minister and the Chief Minister of the Punjab Government which besides being indecent amounted to defamation and were prejudicial to the maintenance of public order. The appeal taken by the appellants before the Court of Additional Sessions Judge, Amritsar, was unsuccessful. The learned Additional Sessions Judge also found against the appellants and observed that the slogans were highly objectionable and they fell within the ambit of section 9 of the said Act, that by raising those slogans the appellants undermined the public order as well as decency and they also amounted to defamation. He, therefore, maintained the conviction of the appellants and the sentences of 3 months ' rigorous imprisonment which had been imposed by the learned Magistrate upon them. The appellants filed a Revision Application before the High Court of Judicature for the State of Punjab at Simla but the same was summarily dismissed by the learned Chief Justice. The appellants thereafter applied for and obtained from this Court Special Leave to appeal and the appeal has accordingly come on for hearing and final disposal before us. On the evidence on record, there is no doubt that the appellants were members of the procession and did utter those slogans against the Transport Minister and the Chief Minister of the Punjab Government,. The question, however, remains whether, in uttering these slogans, they committed an offence under section 9 of the Act. Section 9 of the Act reads as follows "9. Whoever (a) makes any speech, or (b) by words, whether spoken or written, or by signs or by visible or audible representations or otherwise publishes any statement, rumour or report, shall, if such speech, statement, rumour or report undermines the security of the State, friendly relations with foreign States, public order, decency or morality, or amounts to contempt of Court, defama 479 tion or incitement to an offence prejudicial to the security of the State or the maintenance of public order, or tends to overthrow the State, be punishable with imprisonment which may extend to three years or with fine or with both". It cannot be denied that the appellants by words spoken published statements in relation to the Transport Minister and the Chief Minister of the Punjab Government. A futile argument was advanced before us by the advocate of the appellants that this condition was not satisfied but we need not pause to consider the same. The sole question for our determination is whether such statements (1) undermined the security of the State, friendly relations with foreign States, public order, decency or morality or (2) amounted to contempt of Court, defamation or incitement to an offence prejudicial to the security of the State or maintenance of public order, or (3) tended to overthrow the State. The appellants were no doubt affected by the policy of the Punjab Government to nationalise motor transport and the Transport Minister and the Chief Minister were really responsible for sponsoring that policy. Their tirade, therefore, was against both these individuals and, in the demonstration which the appellants held against that policy, they gave vent to violent expressions of opinion against them and, in the slogans which they uttered, used expres sions which were certainly objectionable. The slogan "Jaggu mama hai hai" could be translated as "Jaggu, whose sister is my father 's wife is dead, woe betide him" and was in that sense a vulgar abuse burled against the Transport Minister. The slogan "Khachar khota hai hai" could be translated as "mulecum donkey is dead, woe betide him" and it was directed against the Hon 'ble Shri Bhim Sen Sachar, Chief Minister, Punjab Government, whose name Sachar was caricatured into khachar being mule and was also combined with khota, a donkey. This was again a vulgar abuse burled against the Chief Minister, Punjab Government. The appellants ' conduct in this behalf could not at 480 all be justified. Whatever their grievances against the Transport Minister and the Chief Minister of the Punjab Government were, they were entitled to ventilate them in a decent and dignified manner and they were certainly not justified in hurling such vulgar abuses against these individuals howsoever prejudicial to the interest of the appellants the policy of nationalised motor transport sponsored by them might have been. No decent citizen should have uttered such slogans and the State authorities were well within their rights in proceeding against the appellants. The difficulty, however, in the way of the State authorities is that they misconceived their remedy. Howsoever provocative and indecent or unbefitting a responsible citizen of the State the conduct of the appellants was, the charge which was levelled against the appellants was one under section 9 of the Act and before the prosecution could succeed they bad not only to prove that what the appellants did was against decency and was defamatory of these indi viduals but also was such that it undermined public order, decency or morality or was tantamount to an incitement to an offence prejudicial to the maintenance of public order. The learned counsel for the State very rightly conceded that the statements could not be said to undermine the security of the State or friendly relations with foreign States nor did they amount to contempt of Court or defamation prejudicial to the security of the State nor did they tend to overthrow the State. Howsoever reprehensible these slogans were, they certainly would not have that effect. The only way in which he sought to bring these slogans uttered by the appellants within the mischief of section 9 of the Act was by urging before us that the statements undermined public order, decency or morality and that they were tantamount to an incitement to an offence prejudicial to the maintenance of public order. In support of this contention be referred us to the evidence of Ram Rakha, P.W. 2, Sub Inspector, C.I.D., who had accompanied the procession: "There was a sufficient, number of public men 481 there and they felt annoyed over these slogans. The police had sufficient arrangements and had there been no arrangement there might have been a dispute". There was also the evidence of Gurdit Singh, P. W. 3: "There were many other persons of the public with the procession. People took these slogans ill" and Sunder Singh, P.W. 4: "There were many other persons of the public. The slogans had a bad effect on the public". It is significant to observe that, in the initial report made by the Sub Inspector Ram Rakha as also the Diary Report prepared by him, no mention had been made by him of the members of the public having felt annoyed over these slogans. The two other witnesses Gurdit Singh, P.W. 3 and Sunder Singh, P.W. 4, were shown in their cross examination to have been the associates of the police in the investiga tions which they used to carry on and were not at all worthy of credence. These statements, therefore, in regard to the members of the public having felt annoyed over these slogans uttered by the appellants, were liable to be discredited. Even assuming that some members of the public who had congregated near the Prabhat Studio felt annoyed at these slogans and took them ill it is a far cry from that annoyance to undermining of the public order, decency or morality or incitement to an offence prejudicial to the maintenance of public order. The only offence prejudicial to the maintenance of public order which could be thought of in this context was that of rioting and there is not the slightest evidence on record to justify an inference that the effect of the utterance of these slogans by the appellants against the Transport Minister and the Chief Minister would, but for the police arrangements, have led to the undermining of the public order or would have led to rioting which would be certainly prejudicial to the mainten ance of public order. Indecent and vulgar though these slogans were as directed against the Transport Minister and the Chief Minister of the Punjab Government, the utterance thereof by the appellants who were the members of the procession protesting against 482 the scheme of nationalised motor transport was hardly calculated to undermine decency or morality the strata of society from which the appellants came being habituated to indulge freely in such vulgar abuses without any the slightest effect on the persons hearing the same. These slogans were certainly defamatory of the Transport Minister and the Chief Minister of the Punjab Government but the redress of that grievance was personal to these individuals and the State authorities could not take the cudgels on their behalf by having recourse to section 9 of the Act unless and until the defamation of these individuals was prejudicial to the security of the State or the mainten ance of public order. So far as these individuals were concerned, they did not take any notice of these vulgar abuses and appeared to have considered the whole thing as beneath their notice. Their conduct in this behalf was consistent with the best traditions of democracy. "Those who fill a public position must not be too thin skinned in reference to comments made upon them. It would often happen that observations would be made upon public 'men which they know from the bottom of their hearts were undeserved and unjust; yet they must bear with them and submit to be misunderstood for a time" (Per Cockburn, C.J. in Seymour vs Butterworth(1) and gee the dicta of the Judges in R. vs Sir R. Carden(2). "Whoever fills a public position renders himself open thereto. He must accept an attack as a necessary, though unpleasant, appendage to his office" (Per Bramwell, B., in Kelley vs Sherlock(3)). Public men in such positions may as well think it worth their while to ignore such vulgar criticisms and abuses hurled against them rather than give importance to the same by prosecuting the persons responsible for the same. While commending thus the conduct of the Transport Minister and the Chief Minister of the Punjab Government, we cannot help observing that the step (1) [ ; , 376, 377; ; , 168, 169. (2) (3) , 689. 483 which the State authorities took against the appellants in prosecuting them under section 9 of the Act was unjustified as the slogans uttered by the appellants did not under the circumstances set out Above fall within the mischief of that section. Deprecating as we do the conduct of the appellants in uttering these slogans, we cannot help feeling that the prosecution has failed to establish that the appellants were guilty of the offence with which they had been charged with the result that the appeal of the appellants will be allowed, their convictions and sentences passed upon them will be set aside and they will be set at liberty forthwith. We only hope that the observations made by us here will be an eyeopener to the appellants and they will behave them selves better in the future.

The appellants were members of a procession taken out to protest against the policy of the Punjab Government to nationalise motor transport and raised the slogans "Jaggu mama hai hai (Jaggu, maternal uncle be dead)" and "Khachar Khota hai hai (mule cumdonkey be dead)". The words were directed against the Transport Minister and the Chief Minister respectively and were defamatory. The appellants were prosecuted and convicted under section 9 of the Punjab Security of the State Act, 1953. Held that the statements could not be said to undermine the security of the State or friendly relations with foreign States nor did they amount to contempt of Court or defamation prejudicial to the security of the State nor did they tend to overthrow the State and that the prosecution had failed to establish that the act of the appellants undermined public order, decency or morality or was tant amount to an incitement to an offence prejudicial to the maintenance of public order and consequently the prosecution under section 9 was not justified. Public men may as well think it worth their while to ignore such vulgar criticisms and abuses hurled against them, rather than give importance to the same by prosecuting the person responsible for the same. Seymour vs Butterworth ([1862] ; , 376, 377), B. vs Sir B. Carden ([1879] , Kelly vs Sherlock ([1866] L.R. 1 Q.B. 686, 689; referred to.

Civil Appeal No. 1553 of 977, Appeal by Special Leave from the Judgment and order dated 5 4 1977 of the Gujarat High. Court in Civil Revision Application No. 847 of 1975. Soli J. Sorabjee, Addl. General and P. H. Parekh for the Appellant. D. V. Patel, Badri Das Sharma and M. N. Shroff for Respondent No. 5. The Judgment of the Court was delivered by DESAI, J. This appeal by special leave raises a narrow but interesting question on the nature of proceedings under section 31 and 2 of the ( 'Act ' for short) which has a direct impact on the question of court fees tc be paid on an application that may be made under section 31 of the . The question arose in the context of the following facts: The state of Gujarat set up the Gujarat state Financial corporation ( 'Corporation ' for short), the appellant herein, under section 3 of the . The Corporation was set up inter alia for granting or guaranteeing tile loans to be raised by industrial concerns either from scheduled banks or state co operative banks or those floated in the public market. The Corporation guaranteed numerous such loans, advanced to the industrial concerns in the state of Gujarat on certain terms and conditions agreed between the parties. When the industrial concern defaults in repayment of loan or fails to comply with the terms of the agreement the Corporation is entitled to make an application to the District Judge within the limits of whose jurisdiction the industrial concern carries on the whole or substantial part of its business for one or more of the reliefs set out in section 31(1) of the . The Corporation appears to have, made applications purporting to be under section 31(1) of the in various District Courts in the State of Gujarat against different industrial concerns. A question was raised in the District Courts about the proper court fee payable on such applications. The Corporation contended that the application would be governed by Article 1 (of Schedule II o the Bombay Court) Fee Act, 1959, and a fixed court fee in the amount of 65 paise would be payable in respect of the application. On the other hand, the State contended that application would be governed either by 375 Article I Schedule I or at any rate by Article 7 of Schedule I and the court fee payable would be ad valorem on the amount of value of the subject matter in dispute or on the amount of the monetary gain or loss to be prevented according to the scale prescribed under Article I of Schedule I. It appears that except for the Distt. Judge, Broach, all other District Judges accepted the contention on behalf of the State. The Distt. Judge, Broach was of the opinion that the application under section 31(1) was in the nature of an execution application and it would be governed by Article l(c) of Schedule II. The Corporation preferred revision applications to the High Court questioning the correctness of the decisions directing levy of ad valorem court fee. The State of Gujarat also preferred a revision application against the decision of the Distt. Judge, Broach holding that the application under section 31 (1) of the Act was in the nature of an execution application. The High Court by a common judgment held that the application under section 31 (1) should bear ad valorem court fee. In reaching this conclusion the High Court treated the application under section 31(1) of the Act on par with a suit by a mortgagee to enforce the mortgage debtor sale of the mortgaged property which is being treated as a money suit falling within the purview or Article I of Schedule I. Alternatively, it was held that even if the application under section 31 (1) is not a plaint within the meaning of Article 1 of Schedule I, it would fall within the purview of Article 7 of Schedule I which provides an ad valorem court fee on an application made for obtaining substantive relief which is capable of being valued in terms of monetary gain or prevention of monetary loss because to all intents and purposes the application is one for recovery of the outstanding claim of the Corporation. In accordance with these findings the revision applications preferred by the Corporation were dismissed and the one preferred by the State was allowed. Mr. Sorabji, learned counsel who appeared for the appellant Corporation contended that the view taken by the learned Judge of the High Court that on an analogy the application under section 31(1) by the Corporation is akin to a suit by a mortgagee to enforce his mortgage debt by sale of mortgaged property and, therefore, money suit, falling within the purview of Article 1 of Schedule I of the Bombay Court Fee Act, 1959, or the observation that the substantive relief claimed in the application is one which is capable of being value in terms of monetary gain or prevention of monetary loss and would attract Article 7 of Schedule I, is not correct. The , was enacted by the Parliament with a view to enabling the State Governments to establish a Financial Corporation for enhancing the pace of industrialisa 376 tion by providing credit on easy terms for setting up industrial concerns and/or for expanding the activities of the existing industrial concerns. Section 25 enables the Financial Corporation to carry on and transact any of the business set out therein which includes guaranteeing on such terms and conditions as may be agreed upon (i) loans raised by industrial concerns which are repayable within a period not exceeding 20 years and are floated in the public market or (ii) loans raised by industrial concerns from scheduled banks or State Co operative Banks. It can also underwrite the issue of stock, shares, bonds or debentures by an industrial concern. The Corporation can either guarantee the loan raised by the industrial concern or may even grant itself a loan on such terms and conditions as may be agreed upon between the Corporation and the industrial concern. Section 29 confers upon Financial Corporation, in case of default by industrial concern, the right to take over the management of possession or both of the industrial concern as well as the right to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation, and any transfer of property made by the Corporation in exercise of the power conferred by section 29 shall vest in it all rights in or to the property transferred as if the transfer had been made by the owner of the property. The relevant two sections with which we are concerned In this appeal are sections 31 and 32. Section 31 provides as under: "31. (1) Where an industrial concern, in breach of any agreement, makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation or where the Financial Corporation requires an industrial concern to make immediate repayment of any loan or advance under section 30 and the industrial concern fails to make such repayment, then, without prejudice to the provisions of section 29 of this Act and of section 69 of the , any officer of the Financial Corporation, generally or specially authorised by the Board in this behalf may apply to the district judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of it business for one or more of the following reliefs, namely: (a) for an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the 377 Financial Corporation as security for the loan or advance; or (b) for transferring the management of the industrial concern to the Financial Corporation; or (c) for an ad interim injunction restraining the industrial concern from transferring or removing its machinery or plant or equipment from the premises of the industrial concern without the permission of the Board, where such removal is apprehended. (2) An application under sub section (1) shall state the nature and extent of the liability of the industrial concern to the Financial Corporation, the ground on which it is made and such other particulars as may be prescribed." Section 32(1) provides that when an application is made seeking reliefs mentioned in clauses (a) and (c) of sub section (1) of section 31, it is obligatory upon the District Judge to pass an ad interim order attaching the security or so much of the property of the industrial concern as would on being sold realise an amount equivalent in value to the outstanding liability of the industrial concern to the Financial Corporation together with the costs of the proceedings with or without an ad interim injunction restraining the industrial concern from transferring or removing its machinery, plant or equipment. If the applicant seeks relief mentioned in clause (b) of sub section (1) of section 31, the District Judge shall pass an order of ad interim injunction restraining the industrial concern from transferring or removing its machinery, plant or equipment. A notice accompanied by copies of the interim order and the application is required to be served upon the industrial concern calling upon it to show cause why ad interim order of attachment should not be made absolute or the injunction confirmed or the management transferred to the Corporation. If no cause is shown on or before the specified date, the order is to be made absolute. Sub section (6) of section 32 provides that if the industrial concern shows cause, the Distt. Judge is required to investigate the claim of the Financial Corporation in accordance with the provisions contained in the Code of Civil Procedure, 1908, in so far as such provisions may be applied thereto. On completing the investigation the District Judge may either confirm the order or vary the order or release the property from attachment. An order of attachment or sale of property has to be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908, for the attachment or sale of property in execution of a decree as if the Financial Corporation were the decree holder. 378 Article 1 of Schedule I of the Court fees Act provides for ad valorem court fee on plaint or memorandum of appeal (not otherwise provided for in the Act) or of cross objections presented to any civil or revenue court, to be levied according to the scale set out in the Schedule on the value of the subject matter in dispute. Article 7 provides for court fees on a plaint or application or petition other than those provided in the earlier Articles to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss including cases where an application or petition is treated either as a plaint or a described as the mode of obtaining the relief as aforesaid, the fee to be calculated on the amount of the monetary gain or monetary loss to be prevented according to the scale prescribed under Article 1. Section 31(1) prescribes a special procedure for enforcement of claims by the Financial Corporation The Corporation is to make an application for the reliefs set out in section 31 (1) . The reliefs that a Court can grant under section 31(1) are the sale of the property mortgaged, etc. to a Financial Corporation as security for the loan or advance; transfer of the management of the industrial concern to the Financial Corporation or restraining the industrial concern from transferring or removing its machinery or plant or equipment from the premises of the industrial concern without the permission of the Board of the Financial Corporation. An application for such a relief is certainly not a plaint in a suit for recovery of mortgage money by sale of mortgaged property. On a breach of an agreement by an industrial concern the Corporation can seek one or more of the three reliefs set out in section 31(1). If the Corporation seeks the relief of transferring the management of the industrial concern to the Financial Corporation it could hardly be said that the application purports to be a plaint for recovering the mortgage money by sale of mortgaged properly. It would be inappropriate to say that on an analogy an application under section 31(1) is something akin to a suit by a mortgagee to recover mortgage money by sale of mortgaged property. At any rate, in an application under section 31 (1) the Corporation does not and cannot pray for a decree for its outstanding dues. It can make an application for one of the three reliefs, none of which, if granted, results in a money decree, or decree for recovery of outstanding loan or advance. Section 31(1) of the Act, in the circumstances therein set out, permits the Corporation to seek one or more of the three reliefs therein stated. It is difficult to comprehend that merely the form of relief would attract one or the other Article of Court fees Act. If relief of sale of mortgaged property is sought which permits an argument that the application is nothing but a suit for realising mortgage money by sale of mortgaged property and, therefore, 379 ad valorem court fees is payable, then what would be the nature of the application when instead of sale of mortgaged property the relief asked for is transfer of the management of the industrial concern or an interim injunction restraining the industrial concern from transferring or removing its machinery, plant or equipment from the premises cf the industrial concern without the permission of the Board? In the last mentioned two cases the relief is incapable of any monetary evaluation. The High Court got over this difficult question by merely observing that this need not be answered in the petitions before the High Court. Frankly speaking, they shed some light on the nature of the proceedings contemplated by section 31, and section 32 of the Act clearly points to, the conclusion that the proceedings are not in the nature of a money recovery proceedings. Article 1 of Schedule I would, therefore, not be attracted and we must say in fairness to Mr. D.V. Patel, learned counsel for the respondent State of Gujarat who specifically stated that the application would not fall under Article I of Schedule I but it would be governed by Article of Schedule. I. Developing the contention, Mr. Patel urged that the substance of the matter is that even if the Corporation applies for an order of sale of mortgaged property, the substantive relief is one of sale of mortgaged property so that the Corporation may reimburse itself of the loan advanced to the industrial concern thereby acquiring monetary gain or at any rate preventing monetary loss. The outward form, it was said may be different but the substance of the matter is that the Corporation seeks to recover its loan by sale of mortgaged property. It was said that at any rate either the Corporation by the substantive relief seeks to make a monetary gain of reimbursing itself in respect of the loan advanced by it or prevents the loss that it may suffer if the loan is not repaid, by bringing the mortgaged property to court auction and appropriate the sale price towards its loan. Section 31(1) enables the Corporation in the event of breach of agreement or default in payment of loan or advance or an Instalment thereof to make an application not merely for sale of mortgaged property but even for transferring the management of the industrial concern to the Financial Corporation or merely injunct the industrial concern from transferring or removing its machinery or plant or equivalent from the premises of the concern without the permission of the Board. An application for transfer of management of the industrial concern could by no stretch of imagination, be said to be an application for repayment of the loan though Mr. Patel did say that the management can only be retained till such time as the Corporation reimburses itself. Further, if an application under section 31(1) is merely for an injunction restraining the industrial concern from transferring or removing its machinery or plant or equipment with 380 out the permission of the Board, it could hardly, or even remotely. be said that such a relief substantively provides for repayment of the loan or it is a relief to prevent an anticipatory loss. Let it he recalled at this stage that if the Court fees Act is a taxing statute its provisions have to be construed strictly in favour of the subject litigant (vide State of Maharashtra vs Mishrilal Tarachand Lodha & ors.,) In a taxing statute the strict legal position as disclosed by the form and not the substance of the transaction is determinative of its taxability (vide Joint Commercial Tax Officer, Harbour Div. II, Madras vs Young Men 's Indian Association (Regd.), Madras & ors. If it is a fee, the enormity of the exaction will be more difficult to sustain. While we do not pronounce, we indicate the implication of the High Court 's untenable view. What then is the nature of proceedings contemplated by section 31(1) if it is not a suit by the mortgagee for recovery of mortgage money by sale of mortgaged property. Section 31 would to some extent provide a clue to this question. On an application under section 31(1) being made it is obligatory upon the Court to make an interim order attaching the security with or without interim injunction restraining the industrial concern from transferring or removing its plant. machinery or equipment without the permission of the Board of the Corporation. If the relief claimed in the application is transfer of the management of the industrial concern to the Corporation it is obligatory upon the Distt. Judge to grant an ad interim injunction restraining the industrial concern from transferring or removing its machinery, plant or equipment. In either event a notice notifying the industrial concern to show cause why the order should not be made absolute is required to be served upon the industrial concern. It was said that if cause is shown by the industrial concern it is obligatory upon the Distt. Judge to investigate the claim of the Financial Corporation in accordance with the provision contained in the Code of Civil Procedure, 1908, in so far as such provisions may be applied thereto. The contention is that once an industrial concern shows cause and contests the application of the Corporation there arises a lis between the parties which would include the investigation of the monetary claim of the Corporation and per se it would be a suit between the mortgagee and the mortgagor in which the ultimate relief is sale of mortgaged property for repayment of the mortgage money. Sub section (6) of section 32 of the Act has to be read in the context in which it is placed. The claim of the Corporation is not the monetary claim to be investigated though it may become necessary to 381 specify the figure for the purpose of determining how much of the security should be sold. But the investigation of the claim does not involve all the contentions that can be raised in a suit. The claim of the Corporation is that there is a breach of agreement or default in making repayment of loan or advance or instalment thereof and, therefore, the mortgaged property should be sold. It is not a money claim. The contest can be that the jurisdictional fact which enables the Corporation to seek the relief of sale of property is not available to it or no case is made out for transfer of management of the industrial concern. Sub section (7) of section 32 prescribes what reliefs can be given after investigation under sub section (6) is made, and it clearly gives a clue to the nature of contest under Sub section Sub section (8) of section 32 only prescribes the mode and method for executing the order of attachment or sale of property as provided in the Code of Civil Procedure. Sub sections (6), (7) and (8) of section 32 read together would give an opportunity to the industrial concern to appear and satisfy the District Judge what the situation envisaged by section 31(13 has not arisen and the relief should not be granted. In the absence of a provision giving such an opportunity to the industrial concern to whose detriment the order is required to be made, a serious question may arise about the constitutional validity of the procedure prescribed under section 31(1) inasmuch as it would be violative of principles of natural justice and that too in a proceeding in a Court of Law. The provision contained in sub section (6) does not expand the contest in the application made under section 31(1) as to render the application to be a suit between a mortgagee, and the mortgagor for sale of mortgaged property. If that were so, the Corporation would not be limited to specified reliefs only and if the contract permits it may seek to enforce personal liability of mortgage which it cannot enforce in an application under Sec. 31 ( 1). It may be, as contended by Mr. Patel, that in the ultimate analysis the result would be that the property will be sold for repayment of the loan or advance taken by the, industrial concern from the Corporation but it could not be said that it is a substantive relief claimed by the Corporation which can be valued in terms of monetary gain or prevention of monetary loss as envisaged by Article 7 of Schedule I of Court fees Act. The substantive relief in an application under section 31(1) is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree. We are unable to appreciate the view taken by the High Court that the proceeding is not in the nature of execution of a decree because the question of enforcement of the order of attachment or sale would only arise after the same is made absolute under Sub section One has to look at the whole conspectus of provisions in section 32 coupled with the nature of relief sought under section 31(1) 382 and it becomes clear that special provision is made for certain types of reliefs that can be obtained by a Corporation by an application under section 31(1) which could not be styled as substantive relief for repayment of mortgage money by sale of mortgaged property. Nor can it be said to be a proceeding to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss. The form of the application, the nature of the relief, the compulsion to make interim order, the limited enquiry contemplated by Sub section 6 of section 32 and the nature of relief that can be granted and the manner of execution clearly show that the application under section 31(1) is neither a plaint as contemplated by Article 1 of Schedule I nor an application in a nature of a plaint as contemplated by Article 7 of Schedule I of Court fees Act. Once Article 7 of Schedule I of the Court fees Act is excluded there was (and could be) no dispute that an application under section 31(1) of the Act would be covered by the residuary Article l(c) of Schedule II of the Court fees Act and it should bear a fixed court fee in the sum of 65 paise. Therefore, the High Court was clearly in error in holding that the application should bear ad valorem court fee. When dealing with a question of court fee, the perspective should be informed by the spirit of the magna carta and of equal access to justice which suggests that a heavy price tag on relief in Court should be regarded as unpalatable. In this view of the matter this appeal is allowed and the order made by the High Court as well as the orders made by the various District Judges except the District Judge, Broach, are set aside. On the question of costs, we looked at the specimen applications filed by the Corporation disclosing a clear lack of wisdom on the part of the Corporation in asking for a decree for certain amount which could not be granted under section 31 (1). Therefore, there was a misconception on either side and the proper order should be that the parties shall bear their own costs. S.R. Appeal allowed.

The appellant Corporation, which grants or guarantees the loan to be raised By industrial concerns either from the scheduled banks or state Cooperative Banks or those floated in public market, is entitled to make, for one or more of the reliefs set out in Section 31 ( 1 ) of the state Financial Cooperation Act, an application to the District Judge within the limits of whose jurisdiction the industrial concern carries on the whole or substantial part of its business, when any such concern defaults in repayment of loan or fails to comply with the terms of the agreement. The Corporation made several applications purporting to be under Section 31(1) of the Act in various district courts in the State of Gujarat. question was raised in the District Courts about the proper court fee payable on sch applications. ' The Corporation contended that the application would be governed k Article 1 (c) of Schedule II of the Bombay Court Fees Act, 1959 and a fixed court fee in the amount of 65 paise would be payable in respect of the application. But the state contended that the application could be governed either by Article I of Schedule I or at any rate Article 7 of Schedule I and the court fee payable would be ad valorem on the amount of value o the subject matter in dispute or on the amount of the monetary gain or loss to be prevented according to the scales prescribed under Article 1 of Schedule I. All the district courts except Broach accepted the contention of the state; but the Broach district court opined that the application under Section 31(1) was in the nature of an execution application and it would be governed by Article I (c) of Schedule II. Both the Corporation and state of Gujarat went in revision before the High Court. The High Court by a common judgment held that an appellation under Section 31(1) should bear an ad valorem court fee. In reaching this conclusion, the High Court treated the application under Section 31(1) of the Act on par with a suit by a mortgagee to enforce the mortgage debt by sale of the mortgaged property which is being treated as a money suit falling within the purview of Article I of Schedule I. Alternatively, it was held the even if the application under Section 31(1) is not plaint within the meaning of Article I of Schedule I it would fall within the purview o Article 7 of Schedule I. Allowing the appeal, by special leave the Court ^ HELD: 1. The form of the application, the nature of the relief, the compulsion to make interim order, the limited enquiry contemplated by sub section (6) of Section 32 and the nature of relief that can be granted and the manner of execution clearly show that the application under Section 31 (1) is neither a plaint as contemplated by Article 1 of Schedule I nor an application in the nature of a plaint as contemplated by Article 7 of the Court Fees Act. 182 B C] 373 Once Article 7 of the Schedule I of the Court Fees Act is excluded there A was (and could be) no dispute that an application under Section 31(1) of trill Act would be covered by the residuary Article 1 (c) of Schedule II of the Court Fees Act and it should bear a fixed court fee in the sum of 65 paise. [382 D] 2. Section 31(1) of the Act prescribes a special procedure for enrichment of the claims of the Financial Corporation. The Corporation is to make an application for the reliefs set out Indecision 31(1). The reliefs that a Court can gram are the sale of the property mortgaged etc. to a Financial Corporation as security for the loan or advance; transfer of the management of the industrial concern to the Financial Corporation; or restraining the industrial concern from transferring or removing its machinery or plant or equipment from the industrial concern without the permission of the Board of the Financial Corporation. An application for such a relief is certainly not a plaint in a suit for recovery of mortgage loan. It is not even something akin to a suit by a mortgage to recover mortgage money by sale of mortgaged property. The distinguishing features noticeable between a suit for recovery of mortgage money by sale of mortgaged property and an application under section 31 for one or more of the relief specified therein lares that even if the Corporation as applicant so chooses, it cannot in the application, pray for a preliminary decree for accounts or a final decree for payment of money nor can it seek to enforce any personal liability even if such one is incurred under the contract of mortgage. At any rate in an application under Section 31 ( 1 ) the Corporation does not and cannot pray for a decree for its outstanding dues. It can make an application for one of the three reliefs, none of which, if granted, results in a money decree or decree for recovery of outstanding loans or advance. The foreign of the relief by itself would not attract one or the other Article of Court Fees Act. Section 32 of the Act clearly points to the conclusion that the proceedings under Section 31(1) of the Act are not in the nature of a money recovery proceedings. Article 1 of Schedule I would, therefore not be attracted. attracted 3. The whole conspectus of provisions in Section 32 coupled with the nature relief sought under section 31(1) makes it clear that special provision is made for certain types of reliefs that can be obtained by a Corporation by an application under Section 31 ( I ) which could not be styled as substantive relief for repayment of mortgage money by sale of mortgaged property. Nor can it be said to be a proceeding to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss. The substantive myself in an application under Section 31(1) is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree. It may be that in the ultimate analysis the result would be that the property will be sold for repayment of the loan or advance taken by the industrial concern from the Corporation but it could not be said that it is substantive relief claimed by the Corporation which can be valued in terms of monetary gain or prevention of monetary loss as envisaged by Article 7 of Schedule I of Court Fees Act. [382 A C & 381G H] Sub section (6) of Section 32 of the Act has to be read in the context in which it is placed. It does not expand the contest in the application as if it is suit between a mortgagee and the mortgagor for sale of mortgaged property. [38 I E] 374 Observation: [When dealing With a question o court fee, the perspective should be informed by the spirit of the magna carta and of equal access to justice which suggests that a heavy price tag on relief in Court should be regarded as unplayable.] [382E]

Appeal No. 1943 of 1966. Appeal from the judgment and decree dated March 7, 1962 of the Calcutta High Court in Appeal from Original Decree No. 173 of 1956. section V. Gupte and D. N. Mukherjee, for the appellants. Purushottam Chatterjee, P. K. Chatterjee and Rathin Das, for respondent No. 2. The Judgment of the Court was delivered by Shah, J. One Sashi Bhusan was possessed of a piece of land at Mouza Behala District 24 Parganas admeasuring 98 acres. The land devolved on the death of Sashi Bhusan in 1920 upon his daughter Sarala. Under the Dayabhaga system of law; Sarala inherited the property of her father as a limited owner. Sarala married Kunja Behari. The latter died in 1937 leaving him surviving Sarala, two sons Tulsi and Gobinda, and four daughters were married during the life time of Kunja Behari. Kunja Behari left no estate except a residential house constructed on the land at Mauza Behala. Kunja Behari was ailing for about one year before his death in 1937. He was in an humble walk of life, and was apparently not profitably employed during his life time. At the time of his death the two sons Tulsi and Gobinda were minors. On October 22, 1941, Sarala executed a deed, Ext. E, agree ing to sell a part of the land (.90 acres) for Rs. 1,100/ to Chapalabala wife of Sakha Nath Ghosh. It was recited in the agreement of sale that Sarala had agreed to sell 90 acres of land possessed by her 'on account of financial need and to pay off certain debts". Sarala acknowledged receipt of Rs. 101/ as earnest money. It appears that Sarala was for some time thereafter disinclined to carry out the bargain. However on March 13, 1942 she executed a deed, Ext. C, conveying the land agreed to be sold for a consideration of Rs. 1,500/ to Chapalabala and Banikana. It was recited in the deed : "Now on account of financial needs and to meet certain debts and out of other legal necessity, I announced to sell 90 acre land at rent of Rs. 23/ per annum free from defects and encumbrances leaving a 605 portion of homestead land measuring. 08 acre. " It was also recited in the deed that Rs. 101/ were paid on the date of the agreement of sale, that Sarala had received Rs. 899/ before the date of sale, and Rs. 500/ were paid to her in the presence of the Sub Registrar. An endorsement of payment of Rs. 500/ before the Sub Registrar was made by that Officer. The thumb mark of Sarala was attested by Abinash Chandra Chakravarty and the deed was attested by four persons including her son Gobinda. On the date of the sale the rent in respect of the land was in arrears. It also appears that before the date of sale Mangala had been given in marriage and the youngest daughter Radha remained to be married. Sarala had also to provide for food and clothing for at least five persons. Sarala had only a residential house and the land in dispute and she had no source of income. Sarala died on April 12, 1950. On January 24, 1953 Tulsi and Gobinda sons of Sarala filed a suit in the Court of the Subordinate Judge, 24 Parganas, for a decree declaring that the sale deed dated March 13, 1942, executed by Sarala was not binding upon the plaintiffs, because it was executed without legal necessity. The suit was resisted by Chapalabala and Banikana (defendants 1 & 2) and by alianees of the land from them. The Trial Court held that the sale deed was supported by legal necessity. The learned Judge observed that Sarala was in " strained financial circumstances", and she executed the sale deed to meet expenses for maintaining herself and her family, and for payment of debts. She had, to meet municipal taxes, rent for the land, and expenses for the marriage of her daughter Radha. The learned Judge observed that the plea that execution of the sale deed was obtained by fraud, misrepresentation and undue influence was not seriously pressed "inasmuch as there was no evidence worth the name adduced" to support that case. Against the decree dismissing the suit the plaintiffs appealed to the High Court. the view of the High Court there was "no such serious and sufficient pressure on the estate" of Sarala as to compel her to sell her property, and the case of the plaintiffs that she was induced to do so "by persuasion and undue influence" of Sakha Nath Ghosh husband of defendant I must be accepted. The High Court also observed that it was doubtful whether even full consideration for the sale was paid. The High Court held that the defendants ' case of legal necessity was not proved and on that account the sale deed executed by Sarala was not binding upon the plaintiffs. But because one Dhiren Chandra an intermediate transferee was not made party to the suit and Dhiren Chandra had obtained a fresh settlement the High Court was of the opinion that the decree of the Trial Court in respect of 10 cotta has out of the land sold by Sarala could not be reversed. The High Court accordingly modified the decree passed by the Trial Court and allowed the appeal in part, and dismissed the plaintiffs ' suit against defendants 4, 5, 6 and 16 in respect of 10 cottahas of land in the northern part of the land. The plaintiffs were given by the decree opportunity to amend the plaint by making a claim for actual possession which was, not till then claimed in the plaint. Accordingly the suit was decreed in respect of the remaining defendants in respect of the portion of the land not covered by 10 cottahs in posses sion of defendants 4, 5, 6 and 16. With certificate granted by the High Court, the heirs of original defendants 2 and 3 have appealed to this Court. In the plaint it was averred in paragraphs that Sarala was "illiterate and unpractical in worldly matters", that "she was a simple and pardanashin lady", that Sakha Nath Ghosh husband of Chapalabala was an "officer" of one of the partner of the famous Roy family and was "shrewd and cunning", that Sarala called him "Dharamapita", and ustd to "depend upon him in many affairs" and used to be guided by his instructions, and on that account the said Sakha Nath and the husband of Banikana in collusion with the scribe made fraudulent representation and exercised undue influence over Sarala and got the sale deed executed in their favour. This plea was denied by the contesting defendants. At the trial no issue was raised and no evidence was led in support of that plea. It was conceded that the plea of fraud and undue influence could not be supported. The Trial Court observed : "Though it was also tried to be said that there was fraud, misrepresentation and undue influence exercised for the execution and registration of the Kobala (sale deed) yet that branch of argument was not seriously pressed inasmuch as there was no evidence worth the name adduced to show that there was really any fraud practised for the execution and registration of the kobala in favour of defendants 1 and 2 (Chapalabala and Banikana) by Sarala Bala Dasi." The High Court without adverting to this state of the record observed that the case of the plaintiffs that Sarala was induced to sell the land because of persuasion and undue influence of Sakha Nath Ghosh must be accepted. The High Court also observed that it was doubtful whether full consideration for the sale was paid, and that since Sakha Nath Ghosh was "a rent collector under one of Roy Babus of Behala, in order to grab the 607 valuable property belonging to Sarala he had induced Sarala to enter into a transaction of sale". These observations of the High Court are not supported by any evidence, and they seriously vitiate the appreciation of the evidence on record. In the sale deed it was expressly recited that Rs. 101/ were paid at the time of the agreement of sale. That recital was supported by the recital in Ext. E in the agreement of sale. It was also recited in the sale deed, Ext. C, that Rs. 899/ were received before the date of the sale, and Rs. 500/ were received before the Sub Registrar. Payment of Rs. 500/ is supported by the endorsement on the sale deed itself. It is true that apart from the recital about the payment of Rs. 899/ there is no other documentary evidence to prove that payment. The burden of proving that the consideration was not received by the vendor, however, lay upon the plaintiffs and no serious attempt was made to discharge that burden. The plaintiffs set up the case that Rs. 500/were taken back from Sarala after she left the Sub Registrar 's office. The High Court disbelieved this part of the case about repayment of the amount of Rs. 500/ by Sarala received by her before the Sub Registrar. The High Court observed that about the payment of the balance of the consideration, namely Rs. 899/ , "there was no evidence at all on the side of the defendants that the same was paid". In our judgment, the High Court misconceived the nature of the onus which lay upon the plaintiffs to prove that the consideration which it was recited in the deed was received by Sarala was not in fact received by her and a false recital was made. The recitals in the deed are supported by the testimony of Sailendra Nath Nandi who said that the entire consideration was received by Sarala. We are unable to accept the view of the High Court that the sale deed was not supported by full consideration. The agreement of sale and the sale deed were attested by Gobinda son of Sarala. Before us it was contended that Gobinda was at the date of the agreement of sale, and at the date of the sale deed, a minor and his attestation was of no value. But on this part of the case there is no reliable evidence. Jogindra Nath Mondal who wrote the two deeds was examined on behalf of the defendants. He deposed that Ext. E the agreement of sale was read over and the contents were explained to Sarala after it was written, and she understood the implications of the deed and also received Rs. 101/ . In his cross examination he stated that he had written down the deed according to what was said to him by Sarala, Gobinda and by Sakha Nath Ghosh and thereafter Sarala executed the deed. There is no reason to disbelieve the testimony of this witness. Abinash Chandra 608 Chakravarty who attested the sale deed Ext. C and the agreement of sale Ext. E could not be examined for he had died before the date of the trial. Attestation by him of the two deeds has significance. Gobinda Chandra Debnath a witness examined on behalf of the plaintiffs stated that the family of the plaintiffs had confidence in Abinash Chandra Chakravarty as he was "the friend and well wisher of the family". There is no ground for believing that Abinash Chandra Chakravarty who was present at the time of the execution and had attested the two deeds misused the confidence reposed in him and was guilty of being a party to the bringing into existence a deed containing false recitals to defraud Sarala and her sons. Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited ,owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjusting whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular insistance must be consi dered. Legal necessity does not mean actual compulsion : it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of providing legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquires about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in ;evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The, weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force, and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially when he withholds evidence in his possession. Kunja Behari husband of Sarala had died in 1937 after a protracted illness : there is no reliable evidence that he left any property except the residential house, built on a part of the land which Sarala had inherited from her father. Sarala had two sons 609 who were then minors and two daughters who were yet to be married. There were five members in the ' family to be fed and clothed, and the marriage expenses of two daughters had to be met. The case that Tulsi the eldest son obtained gainful employment shortly after his father 's death and before the sale deed was executed was rightly disbelieved by the Trial Court. The story that Gobinda had taken to hawking vegetables has also been rightly disbelieved by the Trial Court. Sarala had to meet several obligations : she had to pay the annual rent accruing due. in respect of the land in dispute and also to pay municipal taxes :she had to feed and clothe herself and her children and to perform the marriage of her daughter Radha. She had no other property and she had no income. The recitals in the deed about the existence of pressure upon the estate are therefore amply corroborated by the circumstances. Mr. Purshottam Chatterjee appearing on behalf of the plain tiff 's contended that there was evidence only of the debts amounting to 75/ , Rs. 25/ as rent for the land payable to the head lessor and Rs. 50/ expenditure incurred for the marriage of the daughter Mangala. Counsel relied upon the recitals made in a. plaint filed in a suit for recovery of rent by the landlord against Sarala after the sale deed in which the rent for the years 1941, 1942 and 1943 was claimed. Counsel also relied upon the evidence that in the community to which Sarala belonged, the marriage of a daughter only costs Rs. 50/ . That evidence, in our judgment, is wholly unreliable. In any event apart from the obligation to pay rent and to meet the expenses of marriage of her daughter Mangala various other obligations had to be met. The argument that Sarala belonged to a community in which the male members used to be employed as "household servants" and that Tulsi and Gobinda were so employed is also not supported by any reliable evidence. In our judgment, the High Court ignored the strong inference which arose out of these Circumstances and especially out of the participation by Gobinda in the execution of the agreement of sale and the sale deed. In our view the case of the defendants 1 and 2 that the sale, deed was supported by legal necessity of Sarala was amply made out and the Trial Court was right in holding that the sale deed was executed for legal necessity. From the attestation by Gobinda one of the sons of the agreement of sale and the sale deed and the recitals in those deeds, viewed in the light of the other evidence, we are of the opinion that the level necessity set up by the defendants 1 and 2 is amply proved. It was urged before us that because the 10th defendant died before the certificate was given by the High Court for appeal to, 610 this Court, and the heirs of the 10th defendant were not brought on the record, the appeal abates in its entirety. There is, however, no clear evidence whether the 10th defendant died before or after the judgment of the High Court. Again, the plaintiffs had in the suit only claimed a relief for declaration that the alienation in favour of defendants 1 and 2, i.e. Chapalabala and Banikana made on March 13, 1942, was without legal necessity and was not binding upon them, and for a declaration of their title to the disputed land. The alienees from defendants 1 and 2 were, it is true, impleaded as parties, but no relief was claimed against them. Nor was any averment made in the plaint about the reasons for and the circumstances in which they were so impleaded. Since the plaintiffs only claimed relief against defendants 1 and 2, and that relief cannot be granted to the plaintiffs, we think, the circumstance that the heirs of the 10th defendant are not impleaded in this appeal does not affect the right of the defendants to claim that the appeal must be dismissed. The appeal is therefore allowed and the suit filed by the plaintiffs is dismissed with costs throughout. Y.P. Appeal allowed.

section a Hindu female governed by Dayabhaga system of law, executed a sale deed. It was recited in the agreement that she agreed to sell "on account of financial need and to pay off certain debts". After her death her sons filed a suit for a declaration that the sale deed was not binding on them as it was executed without legal necessity. The Trial Court held that the sale deed was supported by legal necessity. The Court also observed that the contention that there was fraud, misrepresentation and undue influence was not seriously pressed as there was no evidence adduced to prove the same. The High Court, in appeal, reversed the decree holding that the defendants ' case of legal necessity was not proved and on that account the sale deed was not binding upon the plaintiffs. , The High Court, without adverting to the record, observed that the case of the plaintiffs that s was induced to execute the sale deed because of persuation and undue influence had to be accepted. In appeal by cer tificate, this Court. HELD : (i) The Appellants defendants had amply made out that the sale deed was supported by legal necessity. The observations of the High 'Court were not supported by any evidence and they seriously vitiated the appreciation of the evidence on record. (ii) Legal necessity does not mean actual compulsion : it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and confide enquiries about the existence of the necessities and that he did all that was reasonable to satisfy himself as to the existence of the necessity. [608 D] Recitals in a deed, of legal necessity, do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value. varying according to the circumstances in which the transaction was entered into. Where the evidence which could be brought before the Court and is within the special knowledge of the per son who seeks to set aside the sale is withheld, such evidence being normally not available to the alience, the, recitals go to his aid with greater force, and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially when he withholds evidence, in his possession. In the present case the recitals in the deed about the existence of pressure upon the estate are amply corroborated by the circumstances. [608 F] (iii) Since the plaintiffs only claimed relief against defendants 1 & 2 for declaration that the alienation in their favour was not binding on the plaintiffs and that relief cannot be granted to the plaintiffs, the circum 604 stance that the heirs of the 10th defendant are not impleaded in their appeal does not affect the right of the defendants to claim the appeal must be dismissed. [610 C]

Civil Appeal No.1293 of 1969. Appeal from the Judgment and Order dated the 25th April, 1968 of the Madhya Pradesh High Court in Misc. Petition No. 404/64. S.T. Desai, J.B. Dadachanji K.J.John, Mrs. A.K. Varma for the Appellant. S.K. Gambhir for Respondents 1, 2 and 4. E.C.Agarwala and R.N. Sachthey for Respondent No. 3. 607 The Judgment of the Court was delivered by SHINGHAL J. This appeal by a certificate issued by the Madhya Pradesh High Court is directed against its judgment dated April 25, 1968. The appellant is a company which cultivates sugarcane and manufactures sugar in its factory in Sehore, Madhya Pradesh, by crushing the sugarcane cultivated by it and purchased from other cultivators. The State Legislature enacted the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1958, hereinafter referred to as the State Act, which came into force on July 1, 1959. The State Government issued a notification on November 28, 1959, which appeared in the State Gazette dated December 4, 1959, under section 23 of the State Act imposing a cess of 12 paise per maund on the entry of sugarcane during a crushing season in the area comprised within "such of the factories in which the total quantity of cane entering for consumption, use or sale to the factory during such season exceeded 10 lakh maunds". The appellants challenged the validity of the imposition, and the High Court, on August 31, 1961, held that the notification was illegal as the imposition of the levy was with reference to particular premises. A similar view was taken in regard to the Acts in some other States and Parliament thereupon enacted the , hereinafter referred to as the Validation Act, which came into force on December 26, 1961. Section 3 of the Validation Act was taken to validate the imposition and collection of the cess under the State Act. The Manager of the appellant company received an intimation from the Additional Collector of Sehore dated April 13/15, 1964, stating that a sum of Rs. 5,49,262.92 was due from it on account of cess for the period "1959 60 to December 25, 1961" and asking for a bank guarantee for payment of the balance. The appellant wrote back saying that the amount of the cane cess worked out to Rs. 5,44,835.69 and not Rs. 5,49,262.92, and that as the collector had not assessed the amount of the cess in accordance with the rules, it was not payable by the appellant. As the Collector ignored the objection of the appellant, a demand notice was served upon it under section 146 of the Madhya Pradesh Land Revenue Code 1959, asking it to deposit Rs. 5,49,262.92 by August 1, 1964. Once again the appellant denied its liability, but as that was not acceptable to the Collector, the appellant filed a writ petition in the High Court stating that the Collector 's demand on account of the cess was illegal as the Validation Act was ultra vires the Constitution. The State of Madhya Pradesh traversed the claim in the writ petition. The High Court upheld the imposition of the cess but reduced 608 it to Rs. 5,44,835.69, by its impugned judgment dated May 25, 1968, and that is why the Company has come up in appeal to this Court. It has been argued by Mr. Desai on behalf of the appellant that section 23 of the State Act was not ultra vires the Constitution and there could be no question of validating a valid Act. According to him, the State Act fell within the scope of Entry 52 of List II of the Seventh Schedule of the Constitution and was valid, and Parliament could not legislate in respect of that occupied field and pass the Validation Act. These arguments have been based on the main contention that the expression "an area" in Sub section (1) of section 23 of the State Act really means "a local area" within the meaning of the aforesaid Entry 52 and no other area. Sub section (1) of section 23 of the State Act reads as follows, "23. Levy of cess on cane. (1) The State Government may, by notification, impose a cess not exceeding 25 paise a maund, on the entry of cane into an area, specified in such notification, for consumption, use or sale therein", There are two provisos to the sub section, but they are not relevant for the purpose of the controversy before us. It would appear from sub section that it permits the State Government to impose the cess on the entry of sugarcane into any area that may be specified in its notification, and there is nothing in it to confine the imposition to a "local area". As has been held by this Court in Diamond Sugar Mills Ltd and Another vs State of Uttar Pradesh and Another when a similar point arose for consideration with the U.P. Sugarcane Cess Act, 1956, the proper meaning to be attached to the words "local area" in Entry 52 List II of the Seventh Schedule of the Constitution, (when the area is a part of the State imposing the law) is an area administered by a local body like a municipality, a district board, a local board, a union board, a panchayat or the like". It has been clearly laid down that the premises of a factory are therefore not a "local area". This court accordingly struck down section 3 of the U.P. Act empowering the Governor to impose a cess on the entry of sugarcane into the premises of the factory on the ground that it did not fall within Entry 52 of the State List and there was no other Entry in the State List or the Concurrent List in which the Act could fall. It is therefore futile for the appellant to contend that section 23 of the State Act was not ultra vires the Constitution or that it can be upheld on such a construction of the words "an area" in section 23 as to restrict it to mean a "local area". 609 The decision in Diamond Sugar Mills case came up for consideration in this Court in Jaora Sugar Mills (P) Ltd. vs State of Madhya Pradesh and others with a specific reference to the provisions of the State Act, and it was once again held, following that decision, that the imposition of the cess was outside the legislative competence of the State. While examining that aspect of the controversy, this Court made it clear that what Parliament had done by enacting section 3 of the Validation Act was not to validate the invalid State Statutes, but to make a law concerning the cess covered by the said Statutes and to provide that the said law shall come into operation retrospectively. This Court clarified that by virtue of section 3 of the Validation Act, the command under which the cess would be deemed to have been recovered would be the command of the Parliament, because the relevant sections, notification, orders, and rules had been adopted by the Parliamentary Statute itself. It will thus appear that the argument of Mr. Desai to the contrary is of no consequence. The other argument of Mr. Desai that the writ of mandamus issued by the High Court on August 31, 1961, quashing the notification dated November 28, 1959, could not be made, and was not in fact made, ineffective by the Validation Act, is also of no consequence. Section 3 of the Validation Act makes this quite clear for it provides as follows. "3. Validation of imposition and collection of cesses under State Acts. Notwithstanding any judgment, decree or order of any Court, all cesses imposed, assessed or collected or purporting to have been imposed, assessed or collected under any State Act before the commencement of this Act shall be deemed to have been validly imposed, assessed or collected in accordance with law, as if the provisions of the State Acts and of all notifications, orders and rules issued or made thereunder, in so far as such provisions relate to the imposition, assessment, collection of such cess had been included in and formed part of this section and this section had been in force at all material times when such cess was imposed, assessed or collected; and accordingly 610 (a) no suit or other proceedings shall be maintained or continued in any Court for the refund of any cess paid under any State Act; (b) no Court shall enforce a decree or order directing the refund of any cess paid under any State Act; and (c) any cess imposed or assessed under any State Act before the commencement of this Act but not collected before such commencement may be recovered (after assessment of the cess where necessary) in the manner provided under that Act. (2) For the removal of doubts it is hereby declared that nothing in sub section (1) shall be construed as preventing any person (a) from questioning in accordance with the provisions of any State Act and rules made thereunder the assessment of any cess for any period; or (b) from claiming refund of any cess paid by him in excess of the amount due from him under any State Act and the rules made thereunder. " The section thus specifically validates the notification in question in regard, inter alia, to the imposition of the cess. The mandamus which was issued by the High Court on August 31, 1961, could not therefore avail the appellant thereafter. It has lastly been argued by Mr. Desai that when a law provides for the assessment of a cess or tax, it is necessary that it should be done by a specific order to that effect, and that an order of assessment cannot be presumed when it has not really been made. It has therefore been argued that as an order of assessment was not made in the present case, it could not be presumed or deemed to have been made simply because a demand was raised for the purpose of affecting the recovery of the cess from the apellant. The charging provision for the levy of the cess is to be found in section 23 of the State Act, to which we shall continue to refer for the sake of convenience even after the passing of the Validation Act. Sub section (2) of that section provides that the State Government shall make rules specifying the authority empowered to assess and collect the cess and the manner in which it shall be collected. The Madhya Pradesh Government accordingly made the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Rules, 1959, hereinafter referred to as the Rules which were also "validated" by Section 3 of the Validation Act. Rules 60 of the Rules provides that the col 611 lector shall be the authority empowered to "assess and collect" the cess. Rule 61 makes it obligatory for the occupier of a factory to maintain a correct account, day to day, in the prescribed form, of the cane entering the area specified in the notification under section 23. Rule 62 provides further that the occupier of the factory shall submit to the Collector, before the close of each month, a return in the prescribed form, showing the quantity of cane that has entered the specified area during the immediately preceding month. It further provides that within 15 days of the close of the crushing season, the occupier shall deposit the cess leviable on the total quantity of cane which has entered the specified area during the crushing season and shall send the treasury receipt showing the amount of cess deposited to the Collector. Then comes rule 63, which places the following responsibility on the Collector, "63. The Collector shall check the amount of cess deposited by the, occupier of the factory from the returns submitted under rule 62 and see if the full amount of cess due from the occupier has been credited into the Treasury. If the Collector finds that the full amount of cess due from the occupier of the factory has not been deposited he shall by a written notice call upon the occupier to deposit the amount due from him within the period specified in such a notice and the occupier shall deposit the amount within the period specified. " The responsibility of the Collector for purposes of assessing and collecting the tax under rule 60 of the Rules is therefore to check the amount of the cess deposited by the occupier of the factory. The check has to be made with the returns submitted by the occupier, and the Collector has to see that the full amount of the cess has been credited to the treasury. If he finds that this is not so, it is his duty to call upon the occupier, by a written notice, to deposit the amount due from him within the period specified in the notice. The State Act and the Rules do not therefore require that the Collector shall make a formal order of assessment, and then collect the cess. It has to be appreciated that the purpose of an assessment is to compute the amount of the cess payable by the person concerned. "Assess" is a comprehensive word, and in a taxing statute it often means the computation of the income of the assessee, the determination of the tax payable by him, and the procedure for collecting or recovering the tax. In a case where there is a dispute about the identity of the assessee, the order of assessment serves the purpose of estab 612 lishing that identity and naming the person from whom the tax has to be recovered. In the present case there is no controversy regarding the identity of the assessee, and the provision regarding the assessment of the cess in sub section (2) of section 23 of the State Act and rule 60 of the Rules related to the checking of the quantity of cane which had entered the specified area, and the amount of cess deposited in respect of it. It is for that purpose that form 4 provides the details to be submitted by the occupier of the factory, and a duty is cast on him to deposit the cess leviable on the total quantity of the cane, within 15 days of the close of the crushing season, and to send the receipt evidencing the deposit to the Collector. As has been pointed out by the High Court, the Appellant 's letter (Ext. R I) dated May 25, 1964, shows that it admitted that the amount of the cess payable by it worked out to a total of Rs. 5,44,835.69 That was therefore the admitted amount of the cess which had to be recovered. The Collector recorded an order (exhibit R 2) dated July 21, 1964, in which he clearly stated that he had gone through the case and that the Tehsildar should immediately recover the entire amount of the cess due from the appellant forthwith. He further directed that the "entire amount of the cane cess due from the B.S.I." should be recovered and monthly progress report sent to him. This shows that the Collector did apply his mind to the matter, and made an express order for the recovery of the total amount of the cess admitted by the appellant. It seems that the Naib Tehsildar increased the amount beyond what had been admitted by the appellant and directed by the Collector, but the High Court rightly confined the recovery to Rs. 5,44,835.69 which was admitted by the appellant to be due from it on account of cess for the two seasons. There is thus no force in the argument of Mr. Desai to the contrary. The appeal fails and is dismissed with costs. M.R. Appeal dismissed.

The appellant company cultivates sugarcane and manufactures sugar in its factory, by crushing the sugar cultivated by it and purchased from other cultivators. The State Government enacted the M.P. Sugarcane (R.S.P.) Act, 1958 which came into force on July 1, 1959. The State Government issued a notification under section 23 of the Act imposing a cess of 12 paise per maund on the entry of sugarcane during a crushing season in the area comprised within "such of the factories in which the total quantity of cane entering for consumption, use or sale to the factory during such season exceeded 10 lakh maunds. " The High Court, on a writ application by the appellants, declared the notification illegal as the imposition of the levy was with reference to particular premises. The Parliament thereupon enacted the . Section 3 of the Validation Act was taken to validate the imposition and collection of the cess under the State Act. In April, 1964, the appellant received an intimation from the Additional Collector stating that a sum of Rs. 5,49,262.92 was due from it as cess for the period 1959 60 to December 25, 1961, and asking for a bank guarantee for payment of the balance. The appellant replied that the amount of cess worked out only to Rs. 5,44,835.69 and the Collector had not assessed the cess in accordance with the rules. Its objection was ignored and a demand notice was served on it under s.146 of the M.P. Land Revenue Code, 1959, for Rs. 5,49,262.92. The appellant filed a writ petition challenging the constitutionality of the Validation Act under which the Collector had demanded the cess. The High Court upheld the imposition of cess but reduced it to Rs. 5,44,835.69. It was contended that section 23 of the State Act was not ultra vires the Constitution, as the expression "an area" in section 23(1) means "a local area" within the meaning of Entry 52 of List II, 7th Schedule of the Constitution, and the Parliament could not, therefore, enact an Act validating a valid Act. It was further contended that when a law provides for the assessment of a cess or tax, it is required to be done by a specific order to that effect, but it was not made in this case. Dismissing the appeal, the Court, 606 ^ HELD: 1. Section 23 of the State Act was ultra vires the Constitution, and cannot be upheld on such a construction of the words "an area" in section (1) as to restrict it to mean a "local area". The proper meaning to be attached to the words "local area" in Entry 52, List II of the Seventh Schedule of the Constitution; (when the area is a part of the State imposing the law) is an area administered by a local body like a Municipality, a district board, a local board, a union board, a panchayat or the like. The premises of a factory are therefore not a "local area" falling within Entry 52 of the State List, and there is no other Entry in the State List or the Concurrent List in which the Act could fall, [608 E H] Diamond Sugar Mills Ltd. and Anr. vs State of U.P. & Anr. ; and Jaora Sugar Mills (P) Ltd. vs State of M.P. and Ors. , ; followed. What the Parliament had done by enacting section 3 of the Validation Act, was not to validate the invalid State statute, but to make a law concerning the cess covered by the said statute and to provide that the said law shall come into operation retrospectively. By virtue of section 3, the command under which the cess would be deemed to have been recovered, would be the command of the Parliament, because the relevant sections, notifications, orders and rules had been adopted by the Parliamentary Statute itself.[609 B C] 3. The State Act and the Rules do not require that the Collector shall make a formal order of assessment, and then collect the cess. The purpose of an assessment is to compute the amount of the cess payable by the person concerned. "Assess" is a comprehensive word and in a taxing statute it often means the computation of the income of the assessee, the determination of tax payable by him, and the procedure for collecting or recovering the tax. In a case where there is a dispute about the identity of the assessee, the order of assessment serves the purpose of establishing that identity and naming the person from whom the tax is to be recovered. The responsibility of the Collector for purposes of assessing and collecting the tax under section 60 of the Rules, is to see that the full amount of the cess has been credited to the treasury by the occupier of the factory. If he finds that this is not so, it is his duty to call upon the occupier by a written notice to deposit the amount due from him within the period specified in the notice. [611E H,612A]

IGINAL JURISDICTION: Criminal Appeal No. 319 of 1988 From the Judgment and Order dated 21.11.1987 of the Gujarat High Court in Special Criminal Application No. 732 of 1987. AND Writ Petition (Criminal) No. 906 of 1987. M.C. Kapadia, S.S. Khanduja and Y.P. Dhingra for the Appellant/Petitioner. G.A. Shah and M.N. Shroff for the Respondents. The Judgment of the Court was delivered by SEN, J. This appeal by special leave brought from the judgment and order of the Gujarat High Court dated 21st November, 1987 and the connected petition under article 32 of the Constitution are directed against an order passed by the District Magistrate, Panchmahals, Godhra dated 28th May, 1987 for the detention of the appellant under sub section (2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 on being satisfied that it was necessary to do so, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. It is not an undisputed fact that the appellant is engaged as a commission agent or broker in the rather lucrative but illicit business of liquor traffic at Godhra in the State of Gujarat where there is total prohibition by importing different varieties of Indian made foreign liquor in sealed bottles like scotch whisky, beer etc. from wine merchants of Vanswada in the State of Rajasthan. But then by engaging himself in such activities he falls within the description of a 'bootlegger ' as defined in section 2(b) and therefore comes within the ambit of sub section (1) of section 3 of the Act by reason of the legal fiction contained in sub section (4) thereof. Put very briefly, the essential facts are these. On prior information that the appellant was about to import Indian made foreign liquor in bulk in truck bearing registration No. GRY 3832, on the night between 29/30th December, 1986, the Gujarat police put up a road block on the bridge near Machan River where on a sign given it failed to stop. After a long chase, the police jeep was able to intercept the 292 truck at Limdi. Both the driver Ahmed Saiyad Abdul Majid Kalander and cleaner Sadique Ahmed Yusuf Durvesh Shaikh got down and said that the truck was empty. However, on a search it was found to be laden with 77 sealed cases containing 2040 bottles of different brands of scotch whisky, beer etc. and it was evident from the statements of the driver and the cleaner who were arrested, that the appellant was the person who had purchased the liquor from wine merchants of Vanswada. On 4th January, 1987 the statements of the witnesses were recorded. Apparently, the appellant absconded and he could not be traced till 2nd February, 1987 when he was arrested but later released on bail. In the meanwhile, he moved the Sessions Judge, Panchmahals for anticipatory bail on 21st January, 1987 but no orders were passed inasmuch as the police made a statement that there was no proposal at that stage to place him under arrest. The appellant is being prosecuted for various offences under the Bombay Prohibition Act, 1949 as applicable to the State of Gujarat, in Criminal Case No. 154/86. On 28th May, 1987 i.e. after a lapse of five months the District Magistrate, Panchmahals, Godhra passed the order of detention along with the grounds therefore which was served on the appellant on the 30th when he was taken into custody. The immediate and proximate cause for the detention was that on 20/30th December, 1986 he transported in bulk foreign liquor from liquor merchants of Vanswada in the State of Rajasthan intended and meant for delivery to persons indulged in anti social activities by doing illict business of foreign liquor in the State of Gujarat. Incidentally, the grounds furnish particulars of two other criminal cases, namely, (i) Criminal Case No. 303/82 on account of recovery of 142 bottles of foreign liquor recovered and seized from his residential house on 21st July, 1982, but the case ended in an acquittal as the prosecution case witnesses turned hostile, and (ii) Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles of foreign liquor from his house on 30th May, 1986 which case was still pending. It was said that persons like the appellant bringing foreign liquor from other States illegally without a permit on a brokerage and storing the same in their permises are not easily detected and there was no other method of preventing such persons from engaging in such anti social activities except by detention under section 3(2) of the Act. In the writ petition before the High Court the appellant assailed the impugned order of detention mainly on two grounds, namely: (i) The failure of the detaining authority to record his subjective satisfaction as required under sub section (2) of section 3 that the importation of foreign liquor by the appellant from Vansawada across the border was likely to affect public health of the citizens of Gujarat and therefore it was 293 necessary to detain him with a view to preventing him from acting in any manner prejudicial to public order, renders the order of detention bad and invalid. (ii) There was no sufficient material on record on which such subjective satisfaction of the detaining authority could be reached. Neither of the two contentions prevailed with the High Court and it accordingly declined to interfere. At the time when the judgment was to be delivered by the High Court, learned counsel appearing for the appellant sought permission to raise an additional point and he was permitted to do so. It was as to whether the detention of the detenu at Sabarmati Central Prison, which was a place other than Godhra where he ordinarily resides, was tantamount to a breach of the mandate of article 21 of the Constitution as his detention at a far off place was not consistent with human dignity and civilized normes of behaviour. The additional point so raised also did not find favour with the High Court. The appeal by special leave is directed against this judgment. Learned counsel for the appellant has however not preferred to rais these questions over again. In the connected petition under article 32 learned counsel for the appellant has, in substance, put forth the following contentions, namely: (1) There is no explanation forthcoming for the admitted delay of five months in making the impugned order of detention and such inordinate unexplained delay by itself was sufficient to vitiate the order. (2) The impugned order of detention was bad in law inasmuch as there was non application of mind on the part of the detaining authority. There was nothing to show that there was awareness of the fact that the appellant had applied for grant of anticipatory bail nor was there anything to show that the detaining authority was satisfied about the compelling necessity to make an order for detention which, it is said, was punitive in character. It is said that there was no occasion to commit the appellant to prison while he was on bail in a criminal case facing charges under the Bombay Prohibition Act, 1949 merely on the suspicion of being a bootlegger. (3) The impugned order of detention was ultra vires the District Magistrate and void ab initio as it displayed lack of certainty and precision on the part of the detaining authority as to the purpose of detention. There was clubbing of purposes as it mentioned that such detention was necessary (i) in the interests of the nation with a view to stop the anti national activities, (ii) for ensuring of public peace, (iii) for maintenance of public health, and (iv) in the interest of the State, all rolled up into one. (4) There was delay in the disposal of the representation made by the appellant 294 to the State Government which renders his continued detention invalid and constitutionally impermissible. We shall deal with the contentions in seriatim. Point No. (1): It has always been the view of this Court that detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law. The Court has therefore in a series of decisions forged certain procedural safeguards in the case of preventive detention of citizens. When the life and liberty of citizen was involved, it is expected that the Government will ensure that the constitutional safeguards embodied in article 22(5) are strictly observed. When any person is detained in pursuance of an order made under any law of preventive detention, the authority making the order shall, as soon as may be, 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. These procedural safeguards are ingrained in our system of judicial interpretation. The power of preventive detention by the Government under any law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by article 22(5) as construed by this Court. Thus, this Court in Khudiram Das vs State of West Bengal, ; speaking through Bhagwati, J. observed: "The constitutional imperatives enacted in this article are two fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security." As observed by this Court in Narendra Purshotam Umrao vs B.B. Gujral; , when the liberty of the subject is involved, whether it is under the Preventive Detention Act or the Maintenance 295 of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention. ". it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law. " Nevertheless, the community has a vital interest in the proper enforcement of its laws particularly in an area such as conservation of foreign exchange and prevention of smuggling activities in dealing effectively with persons engaged in such smuggling and foreign exchange racketeering or with persons engaged in anti national activities which threaten the very existence of the unity and integrity of the Union or with persons engaged in anti social activities seeking to create public disorder in the worsening law and order situation, as unfortunately is the case in some of the States today, by ordering their preventive detention and at the same time, in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty. The Court must therefore be circumspect in striking down the impugned order of detention where it meets with the requirements of article 22(5) of the Constitution. There is an inexorable connection between the obligation on the part of the detaining authority to furnish the 'grounds ' and the right given to the detenu to have an 'earliest opportunity ' to make the representation. Since preventive detention is a serious inroad on individual liberty and its justification is the prevention of inherent danger of activity prejudicial to the community, the detaining authority must be satisfied as to the sufficiency of the grounds which justify the taking of the drastic measure of preventive detention. The requirements of article 22(5) are satisfied once 'basic facts and materials ' which weighed with the detaining authority in reaching his subjective satisfaction are communicated to the detenu. The test to be applied in respect of the contents of the grounds for the two purposes are quite different. For the first, the test is whether it is sufficient to satisfy the authority, for the second, the test is whether it is sufficient to enable the detenu to make his representation at the earlier opportunity which must, of course, be a real and effective opportunity. The Court may examine the 'grounds ' specified in the order of detention to see whether they are relevant to the circumstances under which preventive detention could be supported e.g. security of India or of a State, conservation 296 and augmentation of foreign exchange and prevention of smuggling activities, maintenance of public order, etc. and set the detenu at liberty if there is no rational connection between the alleged activity of the detenu and the grounds relied upon, say public order. In the enforcement of a law relating to preventive detention like the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 there is apt to be some delay between the prejudicial activity complained of under section 3(1) of the Act and the making of an order of detention. When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy. Quite often these activities are carried on by persons forming a syndicate or having a wide network and therefore this includes recording of statements of persons involved, examination of their books of accounts and other related documents. Effective administration and realisation of the purpose of the Act is often rendered difficult by reason of the clandestine manner in which the persons engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards, insisted upon by the Courts. Sometimes such investigation has to be carried on for months together due to the magnitude of the operations. Apart from taking various other measures i.e. launching of prosecution of the persons involved for contravention of the various provisions of the Acts in question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to direct the detention of such person or persons under section 3(1) of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc. The proposal has to be cleared at the highest quarter and is then placed before a Screening Committee. For ought we know, the Screening Committee may meet once or twice a month. If the Screening Committee approves of the proposal, it would place the same before the detaining authority. Being conscious that the requirements of article 22(5) would not be satisfied unless the 'basic facts and materials ' which weighed with him in reaching his subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they were relevant to the circumstances under which the impugned order was passed, the detaining authority would neces 297 sarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person. Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of article 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warrented unless the Court finds that the grounds are 'stale ' or illusory or that there is no real nexus between the grounds and the impugned order of detention. The decisions to the contrary by the Delhi High Court in Anil Kumar Bhasin vs Union of India & Ors., Crl. W. No. 410/86 dated 2.2.1987, Bhupinder Singh vs Union of India & Ors., , Anwar Esmail Aibani vs Union of India & Ors., Crl. W. No. 375/86 dated 11.12.1986, Surinder pal Singh vs M.L. Wadhawan & Ors., Crl. W. No. 444/86 dated 9.3.1987 and Ramesh Lal vs Delhi Administration, Crl. W. No. 43/84 dated 16.4.1984 and other cases taking the same view do not lay down good law and are accordingly overruled. In the present case, the direct and proximate cause for the impugned order of detention was the importation in bulk of Indian made foreign liquor by the appellant acting as a broker from across the border on the night between 29/30th December, 1986. The District Magistrate in the counter affidavit has averred that it was revealed from the statements of the witnesses recorded on 4th January, 1987 that the appellant was the person actually involved. Apprehending his arrest the appellant applied for anticipatory bail on 21st January, 1987. 298 It appears that on the same day the appellant apears to have made a statement that there was no proposal at that stage to arrest the appellant. However, later it was discovered that there was no trace of the appellant. He was arrested on 2nd February, 1987 and on the same day he made a statement admitting these facts. Meanwhile, the proposal to detain the appellant was placed before the District magistrate. It is averred by the District Magistrate that on a careful consideration of the material on record he was satisfied that it was necessary to make an order of detention of the appellant under section 3(2) of the Act and that accordingly on 28th May, 1987 he passed the order of detention. The appellant was taken into custody on 30th May, 1987. He had forwarded the report to the State Government on the 28th and the Government accorded its approval on the 31st. Even though there was no explanation for the delay between 2nd February and 28th May, 1987 it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. There is a plethora of decisions of this Court as to the effect of unexplained delay in taking action. These are admirably dealt with in Durga Das Basu 's Shorter Constitution of India, 8th edn. at p. 154. We will only notice to a few salient decisions. In Olia Mallick vs State of West Bengal, it was held that mere delay in making the order was not sufficient to hold that the District Magistrate must not have been satisfied about the necessity of the detention order. Since the activities of the detenu marked him out as a member of a gang indulging systematically in the cutting of aluminium electric wire, the District Magistrate could have been well satisfied, even after the lapse of five months that it was necessary to pass the detention order to prevent him from acting in a manner prejudicial to the maintenance of the supply of electricity. In Golam Hussain @ Gama vs The Commissioner of Police, Calcutta & Ors., ; , it was held that the credible chain between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, is snapped if there is too long and unexplained an interval between the offending acts and the order of detention. But no 'mechanical test by counting the months of the interval ' was sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. The Court has to investigate whether the casual connection has 299 been broken in the circumstances of each case. In Odut Ali Miah vs State of West Bengal, where the decision of the detaining authority was reached after about five months, Krishna Iyer, J. repelled the contention based on the ground of delay as a mere 'weed of straw ' and it was held that the 'time lag ' between the dates of the alleged incidents and the making of the order of detention was not so large that it could be said that no reasonable person could possibly have arrived at the satisfaction which the District Magistrate did on the basis of the alleged incidents. It follows 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. In Vijay Narain Singh vs State of Bihar, [1964] 3 SCC 14, one of us, Sen, J. observed: "On merits the impugned order cannot be said to be vitiated because of some of the grounds of detention being non existent or irrelevant or too remote in point of time to furnish a rational nexus for the subjective satisfaction of the detaining authority. It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order. " See also: Gora vs State of West Bengal, ; ; Raj Kumar Singh vs State of Bihar & Ors., ; and Hemlata kantilal Shah vs State of Maharashtra, ; Point No. (2): Quite recently, we had occasion to deal with this aspect in Bal Chand Bansal vs Union of India & Ors., JT In repelling a contention raised on the dictum in Ramesh Yadav vs District Magistrate, Etah, , one of us (Sharma, J.) drew attention to the observations of Mukharji, J. in Suraj Pal Sahu vs State of Maharashtra, ; that the prejudicial activities of the person detained were 'so interlinked and continuous in character and are of such nature ' that they fully justified the detention order. Here the grounds of detention clearly advert to two earlier incidents, one of 21st July, 1982 for which the detenu was being prosecuted in Criminal Case No. 303/82 relating to the recovery and seizure of 142 bottles of foreign liquor from his residential house which ended in an acquittal because the prosecution witnesses turned hostile, and the other of 30th May, 1986 for which Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles of foreign liquor from his house was 300 then still pending, and go on to recite that the launching of the prosecution had no effect inasmuch as he had not stopped his activities and was continuing the importation of foreign liquor from across the border. The earlier two incidents are not really the grounds for detention but they along with the transaction in question of importation of foreign liquor in bulk show that his activities in this transaction afforded sufficient ground for the prognosis that he would indulge in such anti social activities again, if not detained. The District Magistrate in his counter affidavit has stated that he was aware of the fact that the detenu had on 21st January, 1987 applied for anticipatory bail but no orders were passed inasmuch as the police made a statement that there was no proposal at that stage to place him under arrest. It however appears that he was arrested on 2nd February, 1987 and on his own made a statement admitting the facts. Thereafter, he seems to have disappeared from Godhra. In the circumstances, it cannot be said that there was lack of awareness on the part of the District Magistrate on 28th May, 1987 in passing the order of detention as he did. There is a mention in the grounds of the two criminal cases pending against the detenu and also a recital of the fact that he was continuing his business surreptitiously and he could not be caught easily and therefore there was compelling necessity to detain him. Point No. (3): The contention regarding lack of certainty and precision on the part of the detaining authority as to the real purpose of detention and that they were 'all rolled up into one ' at first blush appears to be attractive but on deeper reflection seems to be of little or no consequence. The purpose of the detention is with a view to preventing the appellant from acting in any manner prejudicial to the maintenance of public order. It was not seriously disputed before us that the prejudicial activities carried on by the appellant answer the description of a 'bootlegger ' as defined in section 2(b) and therefore he comes within the purview of sub section (1) of section 3 of the Act, by reason of sub section (4) thereof. Sub section (4) of section 3 with the Explanation appended thereto gives an enlarged meaning to the words 'acting in any manner prejudicial to the maintenance of public order ' and reads: "(4) For the purpose of this section, a person shall be deemed to be 'acting in any manner prejudicial to the maintenance of public order ' when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order. 301 Explanation: For the purpose of this sub section, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any person referred to in this sub section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public of any section thereof or a grave or widespread danger to life, property or public health." The District Magistrate in passing the impugned order has recorded his subjective satisfaction with respect to the appellant that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order that he be detained. In the accompanying grounds for detention this is the basis for the formation of his subjective satisfaction. They go on to state that unless the order of detention was made he would not stop his illicit liquor traffic on brokerage and therefore it was necessary to detain him under section 3(2) of the Act, and recite: "In order to safeguard the health of the people of Gujarat, for public peace and in the interest of the nation, with a view to stop such anti national activities . . for the purpose of public order and public peace and in the interest of the State . ." In our opinion, these words added by way of superscription were wholly unnecessary. They were set out by the District Magistrate Presumably because of total prohibition in the State. In future, it would be better for the detaining authority acting under sections 3(1) and 3(2) of the Act, to avoid such unnecessary verbiage which are of little or no consequence and give rise to unnecessary debate at the Bar. Point No. (4): The contention that there was unexplained delay in disposal of the representation made by the appellant to the State Government appears to be wholly misconceived. Admittedly, the appellant made his representations to the State Government as well as to the Advisory Board on 8th June, 1987. The State Government acted with promptitude and after due consideration rejected the same on 12th June, 1987. There was no delay much less inordinate delay in consideration of the representation. The result therefore is that the appeal as well as the writ petition fail and are dismissed. S.L. Appeal & Petition dismissed.

This appeal by special leave against the judgment of the High Court in writ petition, and the writ petition filed in this Court were directed against an order of detention passed by the District Magistrate against the appellant under sub section (2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The appellant was a comission agent or broker engaged in illicit business of liquor traffic at Godhara in the State of Gujarat where there is total prohibition by importing liquor from Vanswada in Rajasthan. On prior information that the appellant was about to import liquor in a truck on the night between 29th/30th December, 1986, the Gujarat police intercepted the truck and found it laden with cases containing bottles of whisky and beer, etc. It was evident from the statements of the driver and the cleaner that the appellant had purchased the liquor from Vanswada. The appellant could not be traced till 2nd February, 1987, when he was arrested but later released on bail. On 28th May, 1987, the District Magistrate, Godhara, passed an order of detention and served it alongwith the grounds of detention on the appellant on the 30th when he was taken into custody. The immediate and proximate cause for the detention was that on 29th/30th December, 1986, he had transported in bulk foreign liquor from Vanswada in Rajasthan for delivery in the State of Gujarat and indulged in anti social activities by doing illicit business of foreign liquor. The grounds furnished particulars of two other criminal cases, namely (i) Criminal Case No. 303/82 on account of recovery of 142 bottles of foreign liquor seized from his residence on 21st July, 1982, which had ended in acquittal as the prosecution witnesses turned hostile, and (ii) Criminal Case No. 150/86 relating to seizure of 24 bottles of foreign liquor from his house on 30th May, 1986, which was still pending. 288 The appellant filed the writ petition in the High Court assailing the order of detention. The High Court declined to interfere. The appellant then filed in this Court the appeal by special leave against the decision of the High Court and the writ petition, against the order of detention. Dismissing the appeal and the writ petition, the Court ^ HELD: When any person is detained in pursuance of an order made under any law of preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds of detention and afford him the earliest opportunity of making a representation against the order. The power of preventive detention underany law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by article 22(5) as construed by this Court. The Court must be circumspect in striking down an order of detention where it meets with the requirements of article 22(5) of the Constitution. [294C E; 295D E] Since preventive detention is a serious inroad on individual liberty and its justification is the prevention of inherent danger of activity prejudicial to the community, the detaining authority must be satisfied as to the sufficiency of the grounds which justify the taking of the drastic measure of preventive detention. The requirements of article 22(5) are satisfied once 'basic facts and materials ' which weighed with the detaining authority in reaching his subjective satisfaction are communicated to the detenu. There is apt to be some delay between the prejudicial activity complained of in section 3(1) of the Act and the making of an order of detention. When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determining the identity of the persons engaged in these operations. Their statements have to be recorded; their books of accounts and other related documents have to be examined. Sometimes such investigation has to be carried on for months together. The Directorate has to consider whether there is necessity in the public interest to direct the detention of a person under section 3(1) of the Act with a view to preventing him from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or from engaging in smuggling of goods, etc. The proposal has to be cleared at the highest quarter and then placed before a Screening Committee. If the Screening Committee approves, the proposal is placed before the detaining authority. The detaining authority would necessarily insist upon sufficiency of grounds which 289 would justify the preventively detaining of the person. Viewed from this prospective, the Court emphasised for the guidance of the High Courts that a distinction must be drawn between delay in making an order of detention under a law relating to preventive detention and the delay in complying with the procedural safeguards of article 22(5) of the Constitution. The rule as to unexplained delay in taking action is not inflexible. The Courts should not merely on account of delay in making an order of detention assume that the delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are 'stale ' or illusory or that there is no real nexus between the grounds and the order of detention. The decisions to the contrary by the Delhi High Court in Anil Kumar Bhasin vs Union of India & Ors., Crl. W. No. 410/86 dated 2.2.1987; Bhupinder Singh vs Union of India & Ors., ; Anwar Esmail Aibani vs Union of India & Ors., Crl. W. No. 375/86 dated 11.12.1986; Surinder Pal Singh vs M.L. Wadhawan Delhi Administration, Crl. W. No. 43/84 dated 16.4.1984 and Cases taking the same view did not lay down good law and were overruled. In this case, the appellant was arrested on 2nd February, 1987. The order of detention of the appellant was passed on 28th May, 1987. Though there was no explanation for the delay between 2nd February and 28th May, 1987, it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. [295F G; 296B H; 297A G; 298C D] It could not be said that there was lack of awareness on the part of the District Magistrate on 28th May, 1987 in passing the order of detention as he did. There was a mention in the grounds of the two criminal cases against the detenu Criminal Case No. 303/82 and Criminal Case No. 150/86 and also a recital of the fact that he was continuing his business surreptitiously and he could not be caught easily and, therefore, there was compelling necessity to detain him. [300D] The contention regarding lack of certainty and precision on the part of the detaining authority as to the real purpose of detention and that they were 'all rolled up into one ' was of little or no consequence. The purpose of detention is to prevent the appellant from acting in any manner prejudicial to the maintenance of public order. It was disputed 290 that the prejudicial activities of the appellant answered the description of a 'bootlegger ' as defined in section 2(b) and, therefore, he came within the purview of sub section (1) of section 3 of the Act by reason of sub section (4) thereof. Sub section (4) of section 3 with the explanation thereto gives an enlarged meaning to the words 'acting in any manner prejudicial to the maintenance of public order '. The district magistrate in passing the impugned order recorded his subjective satisfaction that with a view to preventing the appellant from acting in any manner prejudicial to the maintenance of public order, it was necessary to make an order that he be detained. In the accompanying grounds of detention this was the basis for the formation of his subjective satisfaction, and it was stated therein that unless the order of detention was made he would not stop his illicit liquor traffic on brokerage and, therefore, it was necessary to detain him under section 3(2) of the Act. [300E G; 301C D] The contention that there was unexpected delay in the disposal of the representation made by the appellant to the State Government was wholly misconceived. The representations were made by the appellant on 8th June, 1987. The State Government acted with promptitude and rejected them on 12th June, 1987. There was no delay. [301F G] The appeal and the writ petition failed. Khudiram Das vs State of West Bengal, ; ; Narendra Purshottam Umrao vs B.B. Gujral, ; ; Olia Mallick vs State of West Bengal, ; Golam Hussain @ Gama vs Commissioner of Police, Calcutta & Ors., ; ; Odut Ali Miah vs State of West Bengal, ; Vijay Narain Singh vs State of Bihar, [1954] 3 SCC 14; Gora vs State of West Bengal, ; ; Raj Kumar Singh vs State of Bihar & Ors., ; ; Hemlata Kantilal Shah vs State of Maharashtra, ; ; Bal Chand Bansal vs Union of India & Ors., J.T. ; Ramesh Yadav vs District magistrate, Etah, and Suraj Pal Sahu vs State of Maharashtra, ; , referred to. Anil Kumar Bhasin vs Union of India & Ors., Crl. W. No. 410/86 dated 2.2.1987; Bhupinder Singh vs Union of India & Ors., ; Anwar Esmail Alibani vs Union of India & Ors., Crl. W. No. 375/86 dated 11.12.1986; Surinder Pal Singh vs M.L. Wadhawan & Ors., Crl. W. No. 444/86 dated 9.3.1987 and Ramesh Lal vs Delhi Administration, Crl. W. No. 43/84 dated 16.4.1984, overruled.

Civil Appeal No. 463 of 1982 From the Judgment and Order dated the 21st January, 1982 of the Punjab and Haryana High Court in Election Petition No. 4 of 1980. H.L. Sibbal, D.N. Mishra and K.K. Lahiri for the Appellant. Shanti Bhushan, Jitendra Sharma, Manjit Singh Khaira and Ms. Deepa Bhushan for the Respondent. The Judgment of the Court was delivered by 1064 RANGANATH MISRA, J. This appeal under section 116 A of the Representation of the People Act, 1951 ( 'Act ' for short), is directed against the judgment of the Punjab & Haryana High Court setting aside the election of the appellant to the Punjab Legislative Assembly from Constituency No. 25 known as Naushehra Pannuan Assembly Constituency. Election was held on May 31, 1980, and the result was declared the following day. Appellant was declared elected with 26980 votes while respondent 3 Ranjit Singh lost with 26739 votes. The election petition was filed by two voters of the constituency (respondents 1 and 2). Respondent 1 (PW. 5) was admittedly the counting agent of respondent 3. The election of the appellant was challenged on two allegations of corrupt practice in the main, namely, disturbing a meeting of the Akali Party at a place called Hadur Shah in Village Gandiwind on May 20, 1980, where the appellant 's supporters allegedly used fire arms and fatally injured one and otherwise inflicted injuries on many others. The relevant allegations in support of this plea are to be found in paragraph 5 of the election petition. The other was an allegation of corrupt practice of bribery with reference to Bagicha Singh Chakiwala. Appellant with his supporters in the course of canvassing is said to have contacted Bagicha Singh on May 28, 1980, at his village Chola Sahib and asked for votes of his and members of his family. Bagicha Singh was alleged to have told the appellant that uncovered electric wires were dangerously passing over his house and despite his best of efforts he has not been able to get them removed and the sum being demanded for their removal was beyond his means. Bagicha Singh is alleged to have told the appellant that if he got the same removed he would get the votes of himself, members of the family as also of his brotherhood. Appellant promised to get the needful done and approached the Punjab State Electricity Board employees and on putting pressure, got the same done on May 30, 1980, one day before the poll. The relevant particulars of the allegation are contained in paragraphs 8 and 9 of the election petition. Several other allegations were made in paragraphs 6, 7 and 10 of the election petition relating to threats to electors of Gandiwind on May 20, 1980, after the meeting was disturbed, improper reception of votes, reception of void votes, terrorisation of the voters at the booth on the day of polling, etc. but the same do not seem to be 1065 relevant as the High Court has not relied on the same nor in the course of hearing of this appeal have those allegations been pressed into service. It is relevant to indicate here that neither the defeated candidate nor the election petitioners had any personal knowledge of the two incidents referred to above. Verification of the election petition indicated that the allegation in paragraph 5 was true to the information received from Gurmukh Singh, PW. 10 and Milkha Singh, PW, 11 while information relating to the Bagicha Singh episode was obtained from Darshan Singh, PW. 12. At the trial, Hardial Singh, election petitioner I was examined as PW.5. Respondent 3 was, however, not examined as a witness. The evidence in regard to both the incidents Gandiwind meeting and Bagicha Singh episode mainly consisted of oral statements of witnesses. Some documents, such as the FIR, injury reports, etc. and the deposit receipt in regard to Bagicha Singh episode do not throw any conclusive light inasmuch as they lack the material aspect of correlating the appellant with the events. The appellant had in his written statement denied the allegations in so far as they implicated him with the incidents. He examined himself and led other evidence to support his stand. The learned single Judge before whom the election petition came up for trial accepted the evidence of the election petitioners and held that both the corrupt practices had been committed by the appellant himself or through others with his consent and were covered by sections 123 (1) (a), (b) and (2) of the Act. The election was declared void. Mr. H.L. Sibal appeared in support of the appeal and Mr. Shanti Bhushan represented the election petitioners. The appeal has been heard at great length and detailed submissions have been advanced by both sides. Mr. Shanti Bhushan emphatically contended that it was the practice of this Court in election appeals not to enter into re appreciation of evidence and disturb findings of fact reached by the High Court. Therefore, we should not attempt a re appreciation of the evidence while dealing with the appeal. He next contended that election disputes were essentially civil in nature. To require the allegations of corrupt practice to be proved as in a criminal charge was not the proper approach. With a view to preserving the purity of the electoral process and sanctity of the democratic system to which our country is wedded, it is meet and 1066 proper that charges of corrupt practice should be allowed to be established on the basis of preponderance of probabilities as in civil litigation and not by asking for proof of the allegation beyond reasonable doubt as in a criminal case. We are of the view that these two contentions should be first dealt with in order that a proper approach to the matter can be indicated and once that is done the materials available on record can be assessed for the Purpose of disposal of the appeal. Section 116 C of the Act lays down the procedure in appeal. It provides: "(1). Subject to the provisions of this Act and of the rules, if any, made thereunder, every appeal shall be heard and determined by the Supreme Court as nearly as may be in accordance with the procedure applicable to the hearing and determination of an appeal from any final order passed by a High Court in the exercise of its original civil jurisdiction: and all the provisions of the Code of Civil Procedure, 1908 and the Rules of the Court (including provisions as to the furnishing of security and the execution of any order of the Court), shall, so far as may be, apply in relation to such appeal. " This provision makes it abundantly clear that an appeal to this Court under the Act is to be treated as a civil appeal and the jurisdiction to be exercised is as extensive as in the case of an appeal from a matter disposed of in exercise of original civil jurisdiction of the High Court. Mr. Shanti Bhushan placed a series of decisions before us in support of his proposition regarding the extent of interference available in an appeal. The first of these cases is Sarju Prasad vs Raja Jwaleshwari Pratap Narain Singh and Ors. This was a regular civil appeal and not under the Act. This Court quoted with approval the observations of Viscount Simon in Watt vs Thomas. Viscount Simon had stated, inter alia: "But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on 1067 conflicting testimony by tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great wight." Viscount Simon proceeded further to indicate: "This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. " There cannot be much dispute that ordinarily this rule is applicable to all appellate forums. Mr. Shanti Bhushan then referred to the cases of Narmada Prasad vs Chagan Lal Prabodh Chand vs Mohinder Singh; Sumitra Devi vs Sheo Shankar Prasad Yadav Chand Singh vs Shiv Ram; Vital Nagaraj vs R. Dayanand Sagar; and Laxmi Narain vs Chander Singh. In each of these cases, depending on the facts thereof, the Court has made an observation that the trial judge 's assessment was entitled to great weight and respect and was, therefore not to be ordinarily interfered with. None of these cases, however, indicated that this Court would not go into the matter if the facts and circumstances warranted a detailed examination or a fresh assessment. We shall presently refer to some of the decisions of the Court where this aspect has also been examined. To start with is the case of Ramabhai Ashabhai Patel vs Dabhi Ajitkumar Fulsinji and Ors. 1068 disposed of by a five Bench. That was a case prior to amendment of the Act. Under the scheme then prevalent, election disputes were tried by a tribunal and an appeal lay to the High Court and the matter was before this Court by way of appeal by special leave. Dealing with this aspect of the matter, the Court held: "For, as soon as special leave is granted there is an appeal before this Court and while dealing with such an appeal this Court exercises its civil jurisdiction. It is true that the rules framed by this Court in exercise of its rule making powers do not contain any provision analogous to O. XLI, r. 22 of the Code of Civil Procedure which permits a party to support the judgment appealed against upon a ground which has been found against him in that judgment. The provision nearest to it is the one contained in O. XVIII, r. 3 of the Rules of this Court which requires parties to file statement of cases. Sub rule (1) of that rule provides that Part I of the statement of the case shall also set out the contentions of the parties and the points of law and fact arising in the appeal. It further provides that in Part II a party shall set out the propositions of law to be urged in support of the contentions of the party lodging the case and the authorities in support thereof. There is no reason to limit the provision of this rule only to those contentions which deal with the points found in favour of that party in the judgment appealed from. Apart from that we think that while dealing with the appeal before it this Court has the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like O. XLI, r. 22 of the Code of Civil Procedure it can devise the appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency then by drawing upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions as are suitable. We cannot lose sight of the fact that normally a party in whose favour the judgment appealed from has been given will not be granted special leave to appeal from it. Considerations of justice, therefore, require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even 1069 upon grounds which were negatived in that judgment". The ratio of this decision makes the position clear that an appeal laid before this Court whether under a statute conferring a right of appeal or as a result of grant of leave under Article 136 of the Constitution opens up the normal civil appellate jurisdiction of the Court to be exercised. In Bhanu Kumar Shastri vs Mohan Lal Sukhadia and Ors., Ray, J. (as he then was), indicated: "If the High Court has overlooked important and crucial documents or oral evidence, such evidence will justify this Court to support the contentions of the respondent that the findings of fact arrived at by the High Court are against clear and cogent proof of facts. This Court will, therefore, be justified in recording the correct findings on ample and abundant materials which have been overlooked and ignored by the High Court. In the present case, we have had occasion to deal with these aspects on the rival contentions and recorded our findings. " In Sumitra Devi 's case (supra), a decision of a three Judge Bench on which Mr. Shanti Bhushan also relied, the Court observed: "It has been the consistent practice of this Court not to interfere with findings on questions of fact unless there is some grave or palpable error in the appreciation of the evidence on the basis of which the findings were arrived at." In Mohd. Yasin Shah vs Ali Akbar Khan, a three Judge Bench referred with approval to the ratio in Laxminarayan vs Returning Officer and said: "The propositions enunciated by this Court are well established and there can be no dispute with the propositions mentioned above. In the instant case, however, we find that the approach of the learned Judge was not 1070 correct. We have already pointed out a number of salient features appearing in the evidence which have rendered the case of the petitioner inherently improbable. The learned Judge appears to have overlooked these essential features. Further, the learned Judge himself had observed that issue No.1 which he had framed was wide enough to include the plea of the appellant, and even if the order of the Returning Officer in rejecting the nomination paper on the ground of the absence of the candidate or his proposer was wrong, it could still be supported on the ground that the signature of the proposer was not genuine. The learned Judge has not determined this aspect of the matter. In these circumstances, therefore, we feel that the judgment of the High Court is erroneous both on fact and in law and although the appellate Court is extremely slow in disturbing the findings of fact, in the instant case, we are satisfied that the judgment of the High Court is against the weight of the evidence on record and preponderance of probabilities. " In section Raghbir Singh Gill vs section Gurcharan Singh Tohra and Ors., it was again pointed out that if something is radically wrong with the approach of the learned Judge trying the election petition it would be for this Court to rectify the error. The jurisdiction to exercise in an appeal under the Act, therefore, appears to be as wide as in any other civil appeal. Section 116 A (1) of the Act clearly indicates that the appeal to this Court has to be disposed of by exercising the same jurisdiction as is exercised in an appeal against the original judgment of the High Court. In this view of the matter there can really be no rule, whether statutory or evolved by this Court by long usage as alleged, that the Court would not interfere with the findings of fact reached at the trial stage. Ordinarily a finding reached on assessment of the evidence particularly when it is oral would not be interfered with but where the Court is satisfied that on account of a wrong approach to a matter, injustice has been done to one of the parties before it, it would not only be within the powers of the Court but it would be its obligation to rectify the mistake and do justice to the party. 1071 We shall now turn to the other submission of Mr. Shanti Bhushan. By a catena of decisions of this Court it has by now been very well settled that allegations of corrupt practice are quasi criminal charges and the proof that would be required in support of such allegations would be as in a criminal charge. Mr. Shanti Bhushan has canvassed that the standard of proof required in such a case would be dependent upon the gravity of the charge and there is no justification to adopt the rule that in every case of allegation of corrupt practice the standard applicable to a criminal trial involving a grave charge like murder should be adopted. He has drawn support from the observation of this Court in Dr. M. Chenna Reddy vs V. Ramchandra Rao & Ors. It may be pointed out here that the ratio in Chhenna Reddy 's case runs counter to the current of judicial thought on the point. In fact, quite close in point of time after Chenna Reddy 's case came the case of Magraj Patodia vs R.K. Birla & Ors. Hegde, J. indicated: "It is true that as observed in Dr. M. Chenna Reddy vs V. Ramachadra Rao & Anr., that a charge of corrupt practice cannot be equated to a criminal charge in all respects. While the accused in a criminal case can refuse to plead and decline to adduce evidence on his behalf and yet ask the prosecution to prove its case beyond reasonable doubt such is not the position in an election petition. But the fact remains that burden of proving the commission of the corrupt practice pleaded is on the petitioner and he has to discharge that burden satisfactorily. In doing so he cannot depend on preponderance of probabilities. Courts do not set at naught the verdict of the electorate except on good grounds. " Charges of corrupt practice have been dealt with by this Court for over 20 years now in election appeals under the Act. The first important case which came before this Court was disposed of by a five judge bench in the case of Mohan Singh vs Bhanwar Lal & Ors. Shah, J. (as he then was), spoke for the Court thus: "The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not 1072 discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous. " Hegde, J. in Guruji Shrihar Baliram Jivatode vs Vithalrao & Ors., reiterated the proposition by saying: "It is trite to say that the burden of proving everyone of the ingredients of the corrupt practice alleged is on him who alleges it. If he fails to establish any one of them to the satisfaction of the Court he must fail. " In Mahant Shreo Nath vs Choudhry Ranbir Singh, it was again observed: "A plea in an election petition that a candidate or his election agent or any person with his consent has committed a corrupt practice raises a grave charge, proof of which results in disqualification from taking part in elections for six years. The charge in its very nature must be established by clear and cogent evidence by those who seek to prove it. The Court does not hold such a charge proved merely on preponderance of probability: the Court requires that the conduct attributed to the offender is proved by evidence which establishes it beyond reasonable doubt. " In Abdul Hussain Mir vs Shamsul Huda & Anr., Krishna Iyer, J. indicated: "Charges, such as have been imputed here, are viewed as quasi criminal carrying other penalties than losing a seat, and strong testimony is needed to subvert a Returning Officer 's declaration. When elections are challenged on grounds with a criminal taint, the benefit of doubt in testimonial matters belongs to the returned candidate Oral evidence ordinarily is inadequate especially if it is of indifferent quality or orally procurable. 1073 In Ch. Razik Ram vs Ch. Jaswant Singh Chouhan & Ors. Sarkaria, J. spoke for this Court in the following terms: "Before considering as to whether the charges of corrupt practice were established, it is important to remember the standard of proof required in such cases. It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt. It is true that there is no difference between the general rules of evidence in civil and criminal cases, and the definition of "proved" in section 3 of the Evidence Act does not draw a distinction between civil and criminal cases. Nor does this definition insist on perfect proof because absolute certainty amounting to demonstration is rarely to be had in the affairs of life, Nevertheless. the standard of measuring proof prescribed by the definition, is that of a person of prudence and practical good sense. 'Proof ' means the effect of the evidence adduced in the case. Judged by the standard of prudent man, in the light of the nature of onus cast by law, the probative effective of evidence in civil and criminal proceedings is markedly different. The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former a mere preponderance of probability may constitute an adequate basis of decision, in the latter 1074 a far higher degreed of assurance and judicial certitude is requisite for a conviction. The same is largely true about proof of a charge of corrupt practice, which cannot be established by mere balance of probabilities, and, if after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt not being the doubt of a timid, fickle or vacillating mind as to the veracity of the charge, it must hold the same as not proved. " To the same effect are the following decisions of this Court in Surya Kant Roy vs Imamul Hak Khan Nizamuddin Ahmed vs Narbada Prasad & Ors; Venkata Reddy vs R. Sultan & Ors; Bir Chandra Borman vs Anil Sarkar & Ors. Romji Prasad Singh vs Ram Bilas Jha & Ors; Lakshmi Raman Acharya vs Chandan Singh & Ors Amolak Chand Chhazed vs Bhagwandas Arya & Ors. Ramanbhai Nagjibhai Patel vs Jashvant Singh Udesingh & Ors. Haji C.H. Mohammad Koya vs I.K.S.M.A. Muthukoya. We may now refer to two decisions of this Court rendered this year where the same question had arisen for consideration. In A. Younus Kunju vs R.S. Unni & Ors. one of us observed: "There is total consensus of judicial opinion that a charge of corrupt practice under the Act has to be proved beyond reasonable doubt and the standard of proof is the same as in a criminal case. In Manmohan Kalia vs Yash & Ors. a three Judge Bench reiterated; 1075 "It is now well settled by several authorities of this Court that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process. " It is thus clear beyond any doubt that for over 20 years the position has been uniformly accepted that charges of corrupt practice are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials. We are bound by the decision of the larger Bench in Mohan Singh 's case (supra) as also by decisions of coordinate benches and do not feel inclined to take a different view. We also find no warrant for the contention of Mr. Shanti Bhushan that a fresh look is necessary in the matter. On the other hand we feel advised to follow the dictum of Lord Devlin when he observed: "Precedents keep the law predictable and so more or less ascertainable." Lord Chancellor Hailsham very appropriately summed up the English practice when he said in Broom vs Cassell & Co. "Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides a least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. " A judge made change in the law rarely comes out of a blue sky. Rumblings from Olympus in the form of obiter dicta will give warning of unsettled weather. Unsettled weather is itself, of course, bound to cause uncertainty, but inevitably it precedes the acceptance of a change. Such a situation has not arisen yet and, therefore, a 1076 rethinking as suggested by Mr. Shanti Bhushan is not warranted. One more aspect should be referred to here before we proceed to examine the facts of the case. A five judge Bench of this Court in Jagannath vs Jaswant Singh & Ors. indicated that election disputes are not cases at common law or equity but are strict statutory proceedings and result of an election is not available to be interfered with lightly. It was said: "It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. This view has been reiterated by this Court in Venkata Reddy 's case (supra). We have already taken note of the position that the election has been set aside in the present case on a finding of commission of two corrupt practices, one relating to the election meeting in Village Gandiwind on May 20, 1980, and the other relating to the allegation of bribery in the matter of Bagicha Singh. We shall now proceed to deal with these two aspects separately. The corrupt practices as alleged in the election petition have been found by the High Court to come within the ambit of sub sections (1) and (2) of section 123 of the Act. The legal position is well settled, and it has not been disputed before us, that the Act is a complete Code by itself on the subject of elections to Parliament as also to the State Legislatures and an election can be declared void only if one or the other of the stated grounds in section 100 of the Act is attracted. Section 100 (1) (b) provides that if corrupt practice is committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent, the election of the returned candidate shall be declared void. The relevant provisions in section 123 may now be extracted: "123. Corrupt practices The following shall be deemed to be corrupt practices for the purposes of this Act: 1077 (1) 'Bribery ', that is to say, (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly, of inducing (a) x x x x x (b) an elector to vote or refrain from voting at an election, or as a reward to (i) x x x x x (ii) by any person whomsoever for himself or any other person for voting. or inducing or attempting to induce any elector to vote. . Explanation For the purposes of this clause the term 'gratification ' is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78. (2) Undue influence, that is to say any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right: Provided that (a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who (i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or 1078 (ii) . . shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause. " We shall first deal with the Gandiwind incident of may 20, 1980. The election petition in paragraph 5 makes allegations with reference to this incident. For convenience the contents of the entire paragraph are extracted: "5. That the respondent No. 1 along with Gurdial Singh, Hardial Singh, Rachhpal Singh sons of Tara Singh, Kulwant Singh son of Sewa Singh, Gurnam Singh son of Jinda Singh hatched a conspiracy not to allow the akali candidate respondent No. 2 and his supporters to hold any meeting or do any canvassing at Village Gandiwind on 20.5.1980. They had collected at the house of Gurdial Singh at about 1. 30 P.M. where the above mentioned decision was taken. At about the same time the villagers were collecting for a meeting at the place known as Hadur Shah and that meeting was to be addressed by section Lehna Singh Tur, M.P. and respondent No. 2. At about 2 P.M. the aforesaid persons armed with fire arms except respondent No. 1 came out of the house of Gurdial Singh. Then the respondent No. 1 told them not to allow the meeting to proceed at any cost and himself stayed behind. On reaching the meeting place, they stood by at one side of the Jalsa. At about 2. 30 P.M. when section Lehna Singh Tur reached at the meeting, these persons started shouting slogans against respondent No. 2 and section Lehna Singh and in favour of Respondent No. 1 and caused obstruction in the proceedings of the Jalsa and did not allow section Lehna Singh Tur to speak. When Piara Singh son of Inder Singh, Daya Singh son of Ishar Singh requested them not to do it and tried to stop them, they got into a rage and started hurling abuses at respondent No. 2, section Lehna Singh Tur and others and suddenly started firing. On this the people started running for shelter and a shot fired by Gurdial Singh hit Daya Singh son of Isher Singh on his forehead who fell down and the shots fired by the others hit Piara Singh son of Inder Singh, Kehar Sing son 1079 of Gujjar Singh and Kewal Singh son of Surain Singh. All the aforesaid persons kept on firing shots which were returned by some people." The Akali Party had organised a meeting in the village to make election propaganda for respondent No. 3 and PW. 4 was the organiser. section Lehna Singh, PW. 7 who was a sitting Member of the Lok Sabha was to address that meeting. It is the admitted position that the Akali candidate section Ranjit Singh was not to, and did not, come to the meeting. It is also the common case of both the parties that the appellant who was another contesting candidate also did not come to the place of the meeting. There is evidence, and Mr. Sibal for the appellant did not dispute the position, that the meeting so convened was disturbed. The disturbance to the meeting is said to have been caused by a group of people consisting of Gurdial Singh, Hardial Singh, Rachhpal Singh, Kulwant Singh and Gurnam Singh. There is no specific plea that these five persons were agents of the appellant. Chapter II of the Act deals with agents and refers to appointment of election agent, polling agent and counting agent. Admittedly, by may 20, 1980, none of these persons was an agent of any of these classes of the returned candidate. The only other aspect by which the appellant would be liable for the action of these five people would be if their act of disturbing the meeting was with his consent. There is evidence which the High Court has accepted that when PW. 7 arrived at the meeting place and slogans in favour of the candidate and PW. 7 were raised, Gurdial Singh and his group raised counter slogans. Soon disorder spread. When PW. 4 and Daya Singh wanted to pacify the situation with a view to making the holding of the meeting possible, Gurdial Singh opened fire from his rifle which hit Daya Singh on the forehead. Others who were armed with 12 bore guns also fired their arms and with pellets coming from their firearms many were injured. Though Mr. Sibal made a serious attempt to combat the finding of the High Court regarding the disturbance to the meeting, we are inclined to agree with the High Court that the meeting convened by the Akali Party in Village Gandiwind on may 20, 1980, where PW. 7 was to address the electors was disturbed by Gurdial Singh and others. The fact that firearms were freely used first by Gurdial Singh and his party and then by way of retaliation by Akali workers and gun shots resulted the death of Daya Singh 1080 and thus a grave situation arose is really not very material unless that would amount to a corrupt practice within the meaning of section 123 (2) of the Act. According to Mr. Sibal, disturbing an election meeting is not undue influence and for the matter of that a corrupt practice, but has been separately provided for in section 127 of the Act and is an electoral offence. Section 127 provides: "127. Disturbances at the election meeting (1) Any person who at a public meeting to which this section applies acts, or incits others to act, in a disorderly manner for the purpose of preventing the transaction of the business for which the meeting was called together, shall be punishable with fine which may extend to two hundred and fifty rupees. (2) This section applies to any public meeting of a political character held in any constituency between the date of the issue of a notification under this Act calling upon the constituency to elect a member or members and the date on which such election is held. " Undoubtedly the meeting in question is squarely covered by sub section (2) of section 127 and the role assigned to Gurdial Singh and his group would certainly bring it within sub section (1) of that section. It is not open to doubt that Gurdial Singh and his supporters in the event of the allegations being accepted had committed an electoral offence within the meaning of section 127 of the Act. The question that has next to be considered is whether disturbing such a meeting would also amount to undue influence under section 123 (2) of the Act. Direct or indirect interference or attempt to interfere with free exercise of the electoral right by a candidate, his agent or any person with his consent or the candidate 's election agent has been made a corrupt practice. "Electoral Right" has been defined in section 79 (d) of the Act to mean the right of a person to stand or not to stand as or to withdraw or not to withdraw from being a candidate or to vote or refrain from voting at any election. ' In paragraph 5 of the election petition there is no allegation of any threat. It is proper at this stage to refer to the pleadings in paragraph 6 of the election petition where it has been pleaded: 1081 "That later on the same day aforesaid assailants threatened that any body who will support or vote for respondent No. 2 shall meet the same fate as Daya Singh. Gurdial Singh son of Tara Singh along with others created such a terror in the Village that subsequently it became very difficult and risky for anyone to canvass for respondent No. 2 in this village". Disturbing the meeting as alleged in paragraph 5 of the election petition in our view is not covered under sub section (2) of section 123 of the Act and is clearly an electoral offence dealt with by section 127 of the Act. The allegations contained in paragraph 6 of the election petition would perhaps come within section 123 (2) (a) (i) of the Act. In paragraph 5 of the election petition the following fact had been pleaded: "Then the respondent No. 1 told them not to allow the meeting to proceed at any cost and himself stayed behind". If this statement of fact is accepted consent of the appellant for disturbing the meeting can be found but in the absence of any specific plea that it was appellant 's instruction that the electors should be threatened, the facts alleged in paragraph 6 of the election petition cannot be accepted to have been with the consent of the appellant. Mr. Shanti Bhushan, learned counsel for respondents 1 and 2 has not disputed, and in our opinion rightly, that allegations of corrupt practice have to be strictly pleaded with material particulars and evidence beyond the ambit of plea would not be permitted to be led. Though there is some oral evidence to implicate the appellant, even for what followed the disturbance to the meeting, we do not think in the absence of the requisite plea such evidence can be entertained for any effective purpose. Though in paragraph 5 of the election petition the link between the appellant and Gurdial Singh and his group was pleaded in the manner extracted above, oral evidence was led particularly by PWs. 10 and 11 about the details of instructions given by the appellant to create disturbance at the meeting. The learned trial judge applied his mind to the evidence and came to held: "Whether that omission from the election petition was due to the fact that they had not given these facts to the 1082 petitioner, whom, as per their testimony they had met a few days after the announcement of the election result; or had given the version, and the petitioner did not retain in his memory the version that was given to him when instructing the counsel, who drafted the petition. Be that as it may, the fact remains that the version remains omitted from the petition. I am, therefore, out of abundant caution, not prepared to go to the extent of accepting the version of these two witnesses that they had heard respondent No. 1 telling Gurdial Singh and his co accused to disturb the meeting and the latter having assured him that they would do the needful". We agree with the said conclusion of the learned trial Judge in the facts and circumstances of the case. Mr. Shanti Bhushan next contended that even if the conversation between the appellant and Gurdial Singh and his group is discarded, the fact that the appellant had come to the house of Gurdial Singh in Village Gandiwind cannot be disbelieved. Learned counsel for both sides have placed the entire evidence of the witnesses twice over before us. Mr. Sibal has asked us to discard the evidence of PW, 10 and 11 in support of the visit of the appellant to the house of Gurdial Singh while Mr. Shanti Bhushan has contended that the defects highlighted by Mr. Sibal do not make the evidence liable to rejection. In our opinion, it is totally unnecessary to go into this aspect of the matter as we have already found that even if the appellant had consented to disturbing the meeting it did not amount to "undue influence" so as to be a corrupt practice within the meaning of the Act. Evidence was led again without any material pleading that the appellant had used his influence to protect Gurdial Singh from police harassment as also to ensure that he was not arrested. It is not disputed that Gurdial Singh was an Akali supporter at previous elections and continued his allegiance to the Akali Party until a few months before the election of 1980. On account of personal disputes with some of the Akali members he switched over his support to the opposite faction. It is not in dispute, however, that Gurdial Singh was a supporter of the appellant and had even worked as his polling agent in the Gandiwind booth. To extend protection to a supporter, particularly, a fresh but powerful supporter, is normal 1083 human conduct. The fact that protection had been extended by the appellant to Gurdial Singh and members of his family even by raising quarrel with the local police inspector would not lead to a backward presumption of consent for the acts of Gurdial Singh. Consent is the life line to link up the candidate with the action of the other person which may amount to corrupt practice and unless it is specifically pleaded and clearly proved in view of the fact that all ingredients have to be proved beyond reasonable doubt the appellant cannot be charged for the action of Gurdial Singh and his group. In paragraph 7 of the election petition allegation was made of exercise of undue influence on the date of polling by appointing Gurdial Singh as appellant 's polling agent in the Gandiwind polling booth. Some oral evidence has been led in support of that plea. The field of operation of the polling agent is within the polling booth itself where the polling agents of the contesting candidates would be present, the Presiding Officer of the polling booth and other public functionaries would also be present. No complaint in writing had been given against the illegal activity of Gurdial Singh within the polling booth. Contemporaneous attention of the Presiding Officer could have been drawn to such nefarious act, if any. There is no evidence that the Presiding Officer or the polling officers had been notified of any such complaint. There is clear evidence also that voting was free and quite a large percentage of the voters had exercised their electoral right. These are circumstances which clearly militate against the allegation of the election petitioners that voters had been threatened and their free exercise of electoral right had been affected. It is difficult for us to accept the submission of Mr. Shanti Bhushan that by appointing a person charged for murder as polling agent the appellant had exercised undue influence. It is not his contention that Gurdial Singh has not the requisite qualification for being appointed as a polling agent and his appointment was bad in law. Mr. Sibal has indicated that until then there was only a charge of murder and he made a statement from the Bar that Gurdial Singh has been acquitted of the charge in due course, with that we are of course not concerned. In the absence of requisite pleading, want of any contemporaneous compliant in writing or otherwise to the public officers within the polling booth and the nebulous nature of the oral evidence placed from the side of the election petitioners, we are not inclined to agree with Mr. Shanti Bhushan that any objection could really be taken to the election on 1084 account of Gurdial Singh having acted as polling agent in the particular electoral booth. The High Court clearly overlooked the fact that disturbing the election meeting by itself did not constitute undue influence. For establishing the link between the disturbance of the meeting and the returned candidate the evidence is wholly oral in character and has to be scrutinised with greater rigour. Merely on the statement of some of the witnesses who were essentially Akali Party workers or supporters a charge of corrupt practice could not have been taken as proved. The approach of the learned trial judge to the matter is contrary to law as settled by decisions of this Court relating to corrupt practice and proof thereof. Even if the charge of this corrupt practice fails, if the other is accepted the decision of the High Court cannot be interfered with because one corrupt practice would be sufficient to have the election declared as void. We shall, therefore, now proceed to examine the material with reference to the Bagicha Singh episode. The requisite pleading for this part of the allegation is available in paragraphs 8 and 9 of the election petition. It is appropriate that we extract the same for convenience: "8. That on 28. 5. 1980 the respondent No. 1 visited villaged Chola Sahib and there while requesting for votes, he went to the house of Mistri Bagicha Singh Chakiwala and asked him for his vote and votes of other family members and friends. During this some others belonging to the village had also collected around him. Shari Bagicha Singh told him that the uncovered electric wires were dangerously passing above his house and despite his best efforts he has not been able to get them removed and the sum being demanded for their removal was beyond his means. He further told him that whosoever gets this job done will get his family 's votes and he would help him get the votes of his brotherhood also. On this the respondent No. 1 said that he would get the needful done and they should not bother about the expenses involved in case they promised him the votes of his brotherhood. On this Bagicha Singh said that respondent No 2 had also come to him and we had put our problem to him also but he had said 1085 that he would help them get the wires shifted after the election. On this the respondent No. 1 said that he would get the needful done before the election and pay the expenses also. On this Bagicha Singh agreed to poll all the votes of his family and also assured that he would help respondent No. 1 in getting the votes of his brotherhood as well". That the respondent No. 1 approached the Punjab State Electricity Board Employees concerned and put pressure on them and also get the amount deposited and the wires were removed on 30. 5. 1980. The respondent No. 1 is guilty of having committed the corrupt practice of bribery as defined under section 123, sub sections A & B of the Act and his election is liable to be declared void under section 100 of the Act on the ground of this commission of this corrupt practice of bribery. The respondent No. 1 has received more than 200 votes by committing this corrupt practice and the election of respondent No. 1 has been materially affected and but for the votes obtained by respondent No. 1 by the commission of this corrupt practice, the respondent No. 2 would have obtained a majority of valid votes and he has a right to be declared as elected". Commission of corrupt practice per se makes the result of election void when the corrupt practice is committed by the returned candidate. The allegation here is that the appellant, the returned candidate, had personally committed the corrupt practice. The evidence shows that Bagicha Singh is a resident of Chola Sahib. On September 13, 1978, notice was given to him by the Electricity Board that he should demolish his construction on the first floor as it was too close to the over hanging electric wire. A second notice was given to the same effect on July 13, 1979. Within a week, i.e. on July 20, 1979, Bagicha Singh made the initial deposit of Rs. 100 with a view to shifting of the over hanging electric wires as such shifting would save the construction from being required to be demolished. The estimate had not been prepared notwithstanding the deposit of Rs. 100. When the matter stood at such stage, on May 28, 1980, appellant is alleged to have approached Bagicha Singh at his house in the course of election propaganda. The requisite pleadings in paragraphs 8 and 9 of the election petition were on the basis of disclosure made by PW. 12. That witness stated in his evidence: 1086 'section Surinder Singh Kairon and others including myself while canvassing for votes, reached the house of Bagicha Singh. Makian Singh was present in the house of Bagicha Singh. When section Surinder Singh Kairon asked for his votes and for getting the votes of his Biradri, he replied that he had a bit of problem of getting the over hanging electric wire removed from his house. He went on to say that although he had deposited Rs. 100 about two years back yet the department had not taken any action and they were asking for a further deposit of Rs. 1000 which amount he did not have and that when section Ranjit Singh visited him, he had told him also the same thing. section Ranjit Singh is said to have told him that he would get it done after the election was over. Bagicha Singh made it clear that anybody who would solve his problem would get his own and family votes. Thereupon section Surinder Singh said that he would get the needful done before the polling date and that he should not worry. They canvassed two more house and thereafter I left them". The evidence of PW. 12 does not mention anything about the financial aspect involved in the deal though the election petition refers to that part of it. From the documentary evidence it appears that on May 29, 1980, the estimate was prepared and Rs. 944 was required to be deposited. The S.D.O. of the State Electricity Board at Sarhalli sent his estimate to the Executive Engineer whose office was located at Patti, some distance from Sarhalli. The estimate was drawn in the name of Bagicha Singh. The deposit appears to have been made on May 30, 1980, in the name of Bagicha Singh also and the removal was done on the same day. P.W.6 is the S.D.O. who has produced some of the papers and has spoken about events with reference to the record. He was not there at the relevant time and has candidly admitted that he was not personally aware of anything. That an old pending matter where no action was being taken has been done too quickly is not open to doubt. We are prepared to assume on the basis of submissions made by Mr. Shanti Bhushan that in the facts of the case, Sardar Surinder Singh was likely to have taken some interest in ameliorating the difficulties of Bagicha Singh; otherwise where there was no movement for about a year since the deposit of Rs. 100 everything could not have been done overnight. 1087 The demand of Rs.944 as per the estimate had been raised, P.W.6 has said that the demand was against Bagicha Singh and the deposit has been made and the receipt in the name of Bagicha Singh has been prepared. It was bound to be so. The material aspect for consideration is as to who deposited the amount. Was it Bagicha Singh or was the source the unseen hands of the appellant ? On this material particular there is practically no evidence. We cannot accept the submission of Mr. Shanti Bhushan that in the facts of the case learned trial judge was right in accepting the case of the election petitioners that Surinder Singh deposited the money. We have already taken note of the fact that there was no clear plea in the election petition that the money had been deposited by Surinder Singh though in paragraph 8 it was stated that on 28.5.1980 appellant had told Bagicha Singh that he (Bagicha Singh) should not bother about the expenses involved. There is no oral evidence even to suggest that Surinder Singh caused the amount to be deposited. There is a presumption that the person is whose name the receipt been drawn up was the payer of the amount and burden lay on him who wanted to contend that the facts were otherwise. We cannot therefore, in these circumstances, accept the conclusion of the learned trial judge which is vehemently supported by Mr. Shanti Bhushan that Surinder Singh had got the estimated demand deposited with the authorities of the Board. A candidate is entitled to canvass for votes. One who is in the filed to be an electoral representative is also entitlen to nourish his constituency. As pointed out by this Court in Bhanu Kumar Shastri 's case, amelioration of grievances of the Public is innocuous and cannot be construed against a candidate. We agree that while nourishing is a legitimate activity, it is of paramount importances that nourishing should not transgress the limit so as to corrupt the electoral process. The appellant was already in the field as a candidate for the legislature and was entitled to help the people in his constituency in a legitimate way. Once the allegation that he had deposited the amount of Rs. 944 is discarded, his taking up of the cause of Bagicha Singh for early shifting of the electric wires overhanging the first floor of his house would not amount to 'bribe '. At any rate, the evidence on record is only of PW. 12. We do not think that evidence even if accepted as a whole would be sufficient to establish the charge of corrupt practice on this score. This Court has rightly indicated that oral evidence, particularly, coming from a tainted source cannot form the sole basis of proof 1088 of corrupt practice. In Younus Kunju 's case,(supra) it has been stated: "Admittedly all these witnesses were the workers of the appellant. There is overwhelming material on the record, and even counsel fairly admitted, that the election was fought on party basis and there was sharp division of the electorate on the basis of political parties. That being the position workers at the election with party alignment would necessarily be political supporters of the respective candidates and when called as witnesses they would support their stand. Instances are not uncommon where such witnesses support their respective candidates and their cases though the same be far from truth. In such circumstances we do not think on the oral testimony of these four witnesses the charge of publication of objectionable materials can be said to have been established. " PW.12 was a supporter of the Akali Party as stated by him though he also indicated that he had accompanied the appellant in the course of canvassing for votes to Bagicha Singh 's house. A sum total view of the evidence, in our opinion, falls short of the legal requirement for finding corrupt practice. Here again, we are of the view that the High Court went wrong in accepting the case of the election petitioners that the appellant had committed corrupt practice for procuring the votes of Bagicha Singh, members of his family and his friends by getting the over hanging electric wires removed. After all, if there be any scope for doubt, it must resolve in favour of the appellant who was facing a quasi criminal charge. The appeal has to succeed. We accordingly reverse the decision of the High Court and uphold the election of the appellant. The finding of the High Court that he was guilty of corrupt practice under sections 123(1) and (2) stands vacated. Parties are directed to bear their own costs throughout. M.L.A. Appeals allowed.

i Section 123 Allegation of Corrupt Practice made in an election petition How should be established Whether on basis of preponderance of probabilities as in civil litigation or "proof beyond reasonable doubt" as in Criminal trials. ii Section 116A(1) Election appeal Nature of findings of facts If could be interfered with by Supreme Court. iii See. 123 (2) Corrupt Practice of "Undue influence" Nature and proof of Whether disturbing election meeting a corrupt practice section 123 (2) Whether appointment by the returned candidate of a person charged for murder as his polling agent amounts to exercise of "undue influence". iv Sec. 123 (1) (A) Corrupt Practice of "Bribe" Whether ameliorating grievances of the public while canvassing for votes amounts to corrupt practice. The appellant was declared elected on May 31, 1980 to the Punjab Legislative Assembly from a constituency known as Non shehra Pamuan Assembly Constituency. Respondent Nos. 1 and 2, two voters of the Constituency challenged his election before the High Court on two grounds, namely, (1) that the appellant 's supporters disturbed a meeting of the Akali Party by using fire arms and fatally injuring one and otherwise inflicting injuries on many others and thus he committed a corrupt practice of "undue influence" section 123 (2) of the Representation of the Peoples Act 1951; and (2) that the appellant in order to get the votes of one Bagicha Singh Chakiwala and his family members as also of his brotherhood, promised to Bagicha Singh to get the uncovered electric wires, which were dangerously passing over his house, removed after paying its expenses etc. and so he approached the Punjab State 1060 Electricity Board employees, put pressure on them and got the amount of expenses deposited and the wires removed on 30th May 1980 i.e. One day before the poll. Thus, the appellant had committed a corrupt practice of 'Bribery ' section 123 (1) (A) of the Act. The High Court declared the election of the appellant void holding that both the corrupt practices had been committed by the appellant himself or through others with his consent and were covered by ss 123 (1) (A), (B) and (2) of the Act. Hence this appeal, The respondent petitioners in addition to the above mentioned two grounds of challenge contended (i) that the charges of corrupt practice should be allowed to be established on the basis of preponderance of probabilities as in civil litigation and not by asking for proof of the allegation beyond reason able doubt as in a criminal case; (ii) that it was the practice of the Supreme Court in election appeals not to enter into re appreciation of evidence and disturb findings of fact reached by the High Court and therefore the Supreme Court should not attempt a re appreciation of the evidence while dealing with this appeal; and (iii) that the appointment of Gurdial Singh who had disturbed the Akali Meeting and had also been charged for murder, by the appellant as his polling agent in the Gandiwind Polling Booth amounted to exercise of "undue influence" within the meaning of the Act. Allowing the appeal, ^ HELD: (1) Section 116 C makes it clear that an appeal to the Supreme Court under the Act is to be treated as a Civil appeal and the jurisdiction to be exercised is as extensive as in the case of an appeal from a matter disposed of in exercise of original civil jurisdiction of the High Court Section 116 A (I) of the Act clearly indicates that the appeal to this Court has to be disposed of by exercising the same jurisdiction as is exercised in an appeal against the original judgment of the High Court In this view of the matter there can really be no rule, whether statutory or evolved by this Court by long usage as alleged, that the Court would not interfere with the findings of fact reached at the trial stage. Ordinarily a finding reached on assessment of the evidence particularly when it is oral would not be interfered with but where the Court is satisfied that on account of a wrong approach to a matter, injustice has been done to one of the parties before it, it would not only be within the powers of the Court but it would be its obligation to rectify the mistake and do justice to the party.[1066E G,1070G H ] Ramabhai Ashabhai Patel vs Dabhi Ajitkumar Fulsinji & Ors. [1965] I S.C.R. 712, Bhanu Kumar Shastri vs Mohan Lal Sukhadia & Ors. ; Mohd. Yasin Shah vs Ali Akbar Khan [1977] 2 S.C.C. 23. Laxminarayan vs Returning Officer [1974] I S.C.R. 822 & Sh. Raghbir Singh Gill V. section Gurcharan Singh Tohra & Ors. , relied upon. Sarju Prasad vs Raja Jwaleshwari Pratap Narain Singh & Ors. ; Wart vs Thomas 1947 A. 484. Narmada Prasad vs Chagan Lal [1966] 1 S R. 499. Prabodh Chand vs Mohinder Singh AIR 1971 SC 257. Sumitra Devi v; Sheo Shankar Prasad Yadav ; , Chand Singh vs Shiv Ram 1061 AIR 1975 SC 403, Vital Nagaraj vs R. Dayanand Sagar, ; and Laxmi Narain vs Chander Singh [1977] 2 S.C.R. 412 referred to. By a catena of decisions of this Court it has by now been very well settled that allegations of corrupt practice are quasi criminal charges and the proof that would be required in support of such allegations would be as in a criminal charge. Therefore, charges of corrupt practice are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials. [1071A B; 1075D C] Dr. M. Chenna Reddy vs V. Ramchandra Rao & Onr. Magraj Patodia vs R.K. Birla & Ors. ; , Mohan Singh vs Bhanwar Lal & Ors. ; Guruji Shrihar Baliram Jivatode vs Vithalrao & Ors. ; Mehant Shreo Nath vs Choudhry Ranbir Singh , Abdul Hussain Mir vs Shamsul Huda & Onr. ; , Ch. Razik Ram vs Ch. Jaswant Singh Chouhan & Ors. , Surya Kant Roy vs Imamul Hak Khan , Nizamuddin Ahmed vs Narbada Prasad & Ors. , D. Venkata Reddy vs R. Sultan & Ors. ; Bir Chandra Barman vs Anil Sarkar & Ors. , Ramji Prasad Singh vs Ram Bilas Jha & Ors. ; , Lakshmi Raman Acharya vs Chandan Singh & Ors. [1977] 2 S.C.R. 412, Amolak Chand Chhazed vs Bhagwandas Arya & Ors. , Ramanbhai Nagjibhai Patel vs Jasvant Singh Udesingh & Ors. , Haji C.H Mohammad Koya vs I. K .S. M. A. Muthukoya ; , A. Younus Kunju vs R.S. Unni & Ors. [1984] 3 SCC 346 & Manmohan Kalia vs Yash & Ors. ; ; followed. Election disputes are not cases at common law or equity but are strict statutory proceedings and result of an election is not available to be interfered with lightly, [1076B] Jagannath vs Jaswant Singh & Ors. D. Venkata Reddy vs R. Sultan & Ors. ; ; followed. Section 123 (2) of the Act defines 'undue influence '. Any direct or Indirect interference or attempt to interfere with free exercise of the electoral right by a candidate, his agent or any person with his consent or the candidate 's election agent has been made a corrupt practice u/s 123 (2) of the Act. Chapter II of the Act deals with agents and refers to appointments of election agent, polling agent and counting agent. Section 79 (d) defines "Electoral Right" to mean ' the right of a person to stand or not to stand or to withdraw or not to withdraw from being a candidate or to vote or refrain from voting at any election. [1080G H; 1079D] (5) The fact that firearms were freely used first by Gurdial Singh and his party and then by way of retaliation by Akali workers and gun shots resulted in the death of Daya Singh and thus a grave situation arose is really not very material unless that would amount to a corrupt practice within the meaning of 1062 section 123 (2) of the Act. Undoubtedly, disturbing the meeting as alleged is ont covered under sub section (2) of section 123 of the Act and is clearly an electoral offence dealt with by section 127 of the Act. [1079H; 1080A] (6) The High Court clearly overlooked the fact that disturbing the election meeting by itself did not constitute undue influence. For establishing the link between the disturbance of the meeting and the returned candidate the evidence is wholly oral in character and has to be scrutinised with greater rigour. Merely on the statements of some of the witnesses who were essentially Akali Party workers or supporters a charge of corrupt practice could not have been taken as proved. The approach of the learned trial judge to the matter is contrary to law as settled by decisions of this Court relating to corrupt practice and proof thereof. [1084B C] (7) It is the admitted position that neither the Akali candidate section Ranjit Singh nor the appellant who was another contesting candidate came to the place of the meeting so held on 20.5.80. There is evidence that the meeting so convened was disturbed. The disturbance to the meeting is said to have been caused by a group of people consisting of Gurdial Singh, Hardial Singh, Rachhpal Singh, Kulwant Singh and Gurnam Singh. There is no specific plea that these five persons were agents of the appellant. Admittedly, by May 20, 1980, none of these persons was an agent of any of these classes of the returned candidate. The only other aspects by which the appellant would be liable for the action of these five people would be if their act of disturbing the meeting was with his consent. Consent is the life line to link up the candidate with the action of the other person which may amount to corrupt practice and unless it is specifically pleaded and clearly proved in view of the fact that all ingredients have to be proved beyond reasonable doubt the appellant cannot be charged for the action of Gurdial Singh and his group. [1078B D; 1083B] (8) In the instant case, though there is some oral evidence to implicate the appellant, even for what followed the disturbance to the meeting, this Court does not think in the absence of the plea such evidence can be entertained for any effective purpose. The fact that protection had been extended by the appellant to his supporter Gurdial Singh and members of his family even by raising quarrel with the local police inspector would not lead to a backward presumption of consent for the acts of Gurdial Singh. [1081F; 1083A B] (9) It is difficult to accept the submission of the respondent that by appointing a person charged for murder as polling agent the appellant had exercised undue influence. There is clear evidence also that voting was free and quite a large percentage of the voters had exercised their electoral right. These are circumstances which clearly militate against the allegation of the election petitioners that voters had been threatened and their free exercise of electoral right had been affected. Moreover, in the absence of requisite pleading, want of any contemporaneous complaint in writing or otherwise to the public officers within the polling booth and the nebulous nature of the oral evidence placed from the side of the election petitioners, it cannot be said that any objection could really be taken to the election on account of Gurdial Singh having acted 1063 as polling agent in the particular electoral booth. [1083E G; (10) A candidate is entitled to canvass for votes. One who is in the field to be an electoral representative is also entitled to nourish his constituency. Amelioration of grievances of the public is innocuous and cannot be construed against a candidate. We agree that while nourishing is a legitimate activity, it is of paramount importance that nourishing should not transgress the limit so as to corrupt the electoral process. The appellant was already in the field as a candidate for the legislature and was entitled to help the people in his constituency in a legitimate way. [1087E G] (11) There was no clear plea in the election petition that the money had been deposited by the appellant though in paragraph 8 it was stated that on 28.5.1980 appellant had told Bagicha Singh that he (Bagicha Singh) should not bother about the expenses involved. There is no oral evidence even to suggest that the appellant caused the amount to be deposited. There is a presumption that the person in whose name the receipt has been drawn up was the payer of the amount and burden lay on him who wanted to contend that the facts were otherwise. In these circumstances, it cannot be accepted that the appellant had got the estimated demand deposited with the authorities of the Board. Once the allegation that the appellant had deposited the amount of Rs. 944 is discarded, his taking up of the cause of Bagicha Singh for early shifting of the electric wires over hanging the first floor of his house would not amount to 'bribe '. At any rate, the evidence on record is only of PW.12. That evidence even if accepted as a whole would not be sufficient to establish the charge of corrupt practice on this score. Oral evidence, particularly, coming from a tainted source cannot form the sole basis of proof of corrupt practice. Therefore, the High Court was wrong in accepting the case of the election petitioners that the appellant had committed corrupt practice for procuring the votes of Bagicha Singh, members of his family and his friends by getting the over hanging electric wires removed. After all, if there be any scope for doubt, it must resolve in favour of the appellant who was facing a quasi criminal charge. [1087B D; G H; 1088E F]

Civil Appeals Nos. 1270, 1315 1316 of 1975. Appeals by Special Leave from the Judgment and Order dated the 26 8 75 of the Joint Judge at Thana in Election Petitions Nos. 3 and 4 of 1974. R. P. Bhat (In CAs. 1315 1316/75, K. R. Chaudhury, K. Rajendra Chaudhury and Mrs. Veena Khanna for the Appellants in CAs. 1315 1316/75 and in C.A. 1270/75. D.V. Patel (In CAs. 1315 16/75, V. N. Ganpule for respondent No. 1 in all the appeals. D. V. Patel, P. H. Parekh and (Miss) Manju Jetley for respondent No. 2 in CAs. 1315 1316/75. M. N. Shroff for respondents 4 and 5 in CAs. 1315 1316/75. The Judgment of the Court was delivered by KRISHNA IYER, J. The first two civil appeals based on admitted, abbreviated facts, revolving round the election of the President of the Basscin Council (and the third raises virtually the same point but refers to the bhibendi Municipal Council) under the Maharashtra Municipalities Act, 1965 (the Municipal Act, for short) has led to long and intricate argument, thanks partly to the haziness and incongruity of the statutory provisions, and the hard job of harmonizing and harmonizing and illumining which, by interpretative effort, has drained us of our faith in the blessings of simplicity, certainty and consistency in Indian codified law. We may pardonably, but hopefully, permit ourselves by way of constructive criticism of perfunctory codification a proliferating source of litigation that it was once thought, "With a Code, all our troubles and cares would magically vanish. The law, codified, would become stable, predictable and certain. The rules of law, purified, would be accessible to, and understood by, not only the legal establishment of bench and bar but the people as well. " 835 Professor Grent E. Gilmore comments: "The law, codified, has proved to be quite as unstable, unpredictable, and uncertain quite as mulishly unruly as the common law, uncodified, had ever been. The rules of law, purified, have remained the exclusive preserve of the lawyers; the people are still very much in our toils and clutches as they ever were if not more so." (Quoted by H. R. Hahlo in Codifying the Common Law: Protracted Gestation Mod. Law. Rev. January 1975, p. 23, 29 30). Election law has necessarily to be Statutory, but a code can be clear in its scheme and must be such that litigation proof elections should become the rule. Legislative nemesis, in the shape of ambiguity induced litigation is a serious political misfortune in the area of elections where lay men go to the polls and people 's verdicts get bogged down in court disputes, attended with desperate delays. Some intelligent care at the drafting stage, some vision of the whole scheme in the framers, will reduce resort to legal quarrels and appellate spirals so that the time consumed in this Court in resolving conflicts of construction in comparatively less important legislations can be spared for more substantial issues of general public importance. Civil Appeals Nos. 1315 and 1316 of 1975 One Shri Rajani, a candidate for Presidentship of the Bassein Municipal Council and Shri Samant, a voter in that municipal area, made common cause and filed two election petitions challenging the declaration in favour of the appellant, Dr. Parulekar, who was the successful candidate, winning by a large plurality of votes. The resume of relevant facts sufficient to appreciate the contentions may straightway be set out. We are confining, as suggested by counsel, to the twin appeals relating to Bassein since the fate of Bhibandi must follow suit. Three candidates, including the two already mentioned, had filed nomination papers on October 21, 1974 for the presidential election of the Municipal Council. At the time of the scrutiny which took place two days later, no objection was raised to the nomination of Dr. Parulekar by anyone and, on the withdrawal of the third candidate within time, there was a straight fight between the appellant and the first respondent. The poll battle which took place on 17 11 74 found the appellant victor and he was so declared. The frustrated first respondent and his supporter, 2nd respondent, challenged the return of the appellant by separate election petitions under section 21 of the Municipal Act. The sole ground on which the petitioners were founded was that Dr. Parulekar, the returned candidate, was disqualified under section 16(1) (g) of the Municipal Act, the lethal vice alleged against him being that on the date of nomination he was holding an office of profit under the Government, as he was then, admittedly, working as a panel doctor appointed under the Employees ' State Insurance Scheme (acronomically, the ESI scheme), a beneficial project contemplated by 836 the ESI Act, 1948. Of course, the appellant doctor submitted his resignation on November 5, 1974 and this was accepted on November 11, 1974. Thus, before the actual polling took place, but after the nomination, he had ceased to be on the ESI panel. Another circumstance which may have some significance in the overall assessment of the justice of the case, although of marginal consequence on the law bearing upon the issues debated at the bar, is that the appellant has been a councillor of the aforesaid municipality since 1962 and he has also been a doctor on the ESI panel throughout the same span of years and no one has chosen to raise the question of disqualification on this score up till the 1st respondent fell to his rival and had no other tenable ground of attack. Necessity is the mother of invention and the respondents, aided by the cute legal ingenuity, may be, dug up the disqualification of 'office of profit ' and, indeed, wholly succeeded before the Election Tribunal, the Joint Judge of Thana. The Trial Judge not merely voided the appellant 's election but declared the 1st respondent President since he was the sole surviving candidate. This order of the Joint Judge has been assailed before us in the two appeals, after securing leave under article 136. Three main contentions have been urged before us by Shri Bhatt, counsel for the appellant, which we will formulate and deal with one by one, although on the merits the most formidable issue is as to whether figuring in the medical list under the ESI scheme amounts to holding an office of profit under Government. With a view to get a hang of the major plea, it is necessary to study the scheme of the ESI Act, even as to get a satisfactory solution of the other two points we have to gather the ensemble of provisions dealing with disqualification of candidates and the triple remedies provided in that behalf by the Municipal Act. The discussion, to be put in proper focus, requires formulation of the submissions of counsel, the foremost in importance and intricacy being whether a doctor on the Medical List made by the Surgeon General of the State holds an 'office of profit ' within the meaning of section 16(1) (g) of the Municipal Act. Next in the order of priority is the question whether a petition for setting aside an election of President on the ground of disqualification for being a councillor is permissible under section 21 of the Municipal Act in view of the special provision in section 44 of the said Act and the rules regarding objections to nominations and appeal therefrom framed under that Act. The last question which, in a sense, is interlinked with the earlier one is as to whether, assuming the appellant to be disqualified, the first respondent can be declared the returned candidate or President, by passing the necessity for a fresh poll getting elected, as it were, through the judicial constituency of discretionary power. It is plain democratic sense that the electoral process should ordinarily receive no judicial jolt except where pollution of purity or contravention of legal mandates invite the court 's jurisdiction to review the result and restore legality, legitimacy and respect for norms. The frequency of forensic overturing of poll verdicts injects instability into the electoral system, kindles hopes in worsted candidates and induces postmortem discoveries of 'disqualifications ' as a desperate gamble in 837 the system of fluctuating litigative fortunes. This is a caveat against overuse of the court as an antidote for a poll defeat. Of course, where a clear breach is made out, the guns of law shall go into action, and not retreat from the Rule of Law. We will proceed to take a close up of the three lines of attack outlined above, and if interference with the election must follow, it will; otherwise not. The appellant is a doctor in Maharashtra where the municipalities are organised, based on popular franchise, in terms of the Municipal Act. It is a heartening omen that this local body, Bessein, has electorally attracted professional men, not mere politicians, into its administrative circle; for the appellant is a 'medic ' while respondent 1 is an 'advocate '. By a margin of over a thousand votes the former won but the lawyer rival has invoked the law to undo the election on the ground of disqualification based on section 16(1)(g) of the Municipal Act. The ban is on one who holds an office of profit under government and the public policy behind the provision is obvious and wholesome. We may read the relevant part of the section: "16(1)(g): No person shall be qualified to become a Councillor whether by election, co option or nomination, who is a subordinate officer or servant of Government or any local authority or holds an office of profit under Government or any local authority;" The short question then is whether the appellant is qualified to be a Councillor (which expression is rightly deemed to include President, vide section 2(7). The disqualifying stain is stated to be that he held an office of profit under the State Government. He did resign before the date of poll but after the date of filing nomination. The nomination was vitiated and subsequent resignation did not confer moksha and the election thus became void. Assuming that if a candidature is stigmatised by a fatal blot at the time of nomination the election also suffers invalidity, despite intervening removal of the disqualification, did the doctor incur the penalty by being on the medical panel of the ESI scheme ? The critical question, apparently simple and limpid, has, when saturated with precedential erudition and lexicographic inundation, become so learnedly obscure and conflictively turbid that were we governed by a radically streamlined methodology of legislation and liberality of interpretation, as obtains in other systems of jurisprudence, much of the forensic work could have been obviated. This is a problem of disturbing social import outside the orbit of these appeals with which alone we are currently engaged. The magnificent concept of judicial review is at its best when kept within the beautiful trellis of broad principles of public policy and tested by the intentionability of the statute. With this predisposition calculated to make judge power functionally meaningful, we proceed to fix the contextual semantics of 'office of profit ' as a disqualificationary factor for running for municipal president. To begin with the 838 very beginning; what is an office ? too simplistic to answer with case that it is derived from 'officium ' and bears the same sense. Indeed, in Latin and English, this word has protean connotations and judicial choice reaches the high point of frustration when the highest courts here and abroad have differed, dependent on varying situations, or statutory schemes, the mischief sought to be suppressed and the surrounding social realities. Then we come to the second question: what is an 'office of profit '? And, thirdly, to the question: when is an 'office of profit ' under Government ? The context purpose signification of expressions of varying imports leaves room for judicial selection. Illustratively, we may refer to two decisions which throw some light but turn on the statutory setting of those cases. For instance, in Ramachandran (AIR 1961 Madras 450, 458) it has been observed: ". We find, in Bacon 's Abridgment at Vol. 6, p. 2, the article headed 'of the nature of an officer, and the several kinds of officers ', commencing thus: 'It is said that the word 'officium ' principally implies a duty, and, in the next place, the charge of such duty; and that it is a rule that where one man hath to do with another 's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer '. And the next paragraph goes on to say: 'There is a difference between an office and an employment, every office being an employment; but there are employments which do not come under the denomination of offices; such as an agreement to make hay, herd a flock, etc; which differ widely from that of steward of a manor, etc. The first of these paragraphs implies that an officer is one to whom is delegated, by the supreme authority, some portion of its regulating and coercive powers, or who is appointed to represent the State in its relations to individual subjects. This is the central idea; and applying it to the clause which we have to construe, we think that the word 'officer ' there means some person employed to exercise, to some extent, and in certain circumstances, a delegated function of Government. He is either himself armed with some authority or representative character, or his duties are immediately auxiliary to those of someone who is so armed." In Statesman vs Deb it is said: "An office means no more than a position to which certain duties are attached. According to Earl Jowitt 's Dictionary a public office is one which entitles a man to act in the affairs of others without their appointment or permission. " Both these decisions may perhaps be generally relevant but not precisely to the point. We were taken through the panorama of case law and statute law relating to corporations, companies, autonomous bodies and other creatures of statute, to bring out the content of 'office of profit under 839 government ' as distinguished from offices under the control of government. Indeed, even the Constitution of India disqualifies a person for being chosen as Member, if he holds any office of profit under the Government. The question may well arise whether the ESI Corporation is under the control of government and can be equated with State so that holding any office thereunder may attract the proscription of section 16(1)(g). We are relieved from this industrious adventure by the stand taken by counsel for the respondents, Shri Patel, that he stakes this part of his case on the sole ground that the appellant doctor is holding an office of profit under the Maharashtra government, as such. He has no case therefore that the doctor is under the control of the ESI Corporation, an institution controlled by the Union government and hence is disqualified. The short issue, therefore, is whether, under the scheme of the ESI Act and the rules framed thereunder, the appellant squarely falls within the description of holder of office of profit under the State Government. This branch of enquiry takes us to an analysis of the provisions bearing on the scheme of the medical project under the ESI Act and the role of the State government therein. We have some assistance from rulings of this Court in resolving the dispute and we may mention even in advance that a seeming disharmony between two decisions of this Court also has to be dissolved. Apparent judicial dissonance may give place to real consonance, if a dissection of the facts and discernment of the reasoning, in the light of which the decisions of this Court are rendered, is undertaken. The ESI Act provides medical facilities for the working class, the primary responsibility for executing the project being shouldered by a statutory corporation created by section 3 of the Act and the infra struture for implementation is organised by the other provisions of Chapter II. A Standing Committee administers the affairs of the Corporation. A Medical Benefit Council is constituted by the Central Government to help in the discharge of the duties of the Corporation which involve expertise. The financial resources come from contributions and other moneys specified in the Act itself and an Employees ' State Insurance Fund has been brought into existence in this behalf. The Corporation, although has a separate legal personality, is under the control of the Central Government. But that is not the pertinent issue before us. The fatal sin is not that the appellant is a doctor under the ESI Corporation but that he is holding an 'office of profit ' under the State Government. We may ignore provisions relating to the powers of the Corporation and turn to the role of Government vis a vis private medical practitioners like the appellant. He is not a full time employee of Government. On the other hand, he runs his own clinic. Even so, it is argued with force that section 58 and a fasciculus of rules framed by the State Government under section 96, viewed as a mini scheme, creates offices of profit which are filled by private doctors like the appellant. The legal spring board is section 58 of the ESI Act and it is best to start off with reading that section: "58. Provision of medical treatment by State Government. (1) The State Government shall provide for in sured persons and (where such benefit is extended to their 840 families) their families in the State, reasonable medical, surgical and obstetric treatment: Provided that the State Government may, with the approval of the Corporation, arrange for medical treatment at clinics of medical practitioners on such scale and subject to such terms and conditions as may be agreed upon. (2) Where the incidence. " Two things are self evident. An obligation to provide medical treatment for insured persons has been saddled on the State Government. Secondly, that Government may discharge this responsibility through arrangement with medical practitioners who run clinics. The bare bones of section 58 have to be clothed with flesh before a viable project comes to life. This is achieved by rules framed unders. 96 especially section 96(1) (d) & (e). We may make it clear that the Corporation 's entry into the field is not inhibited by section 58 as section 59A underscores. But what is posed before us is the appellant 's status as a holder of an office of profit under the Government since he is admittedly a medical insurance officer within the mechanism set up by the rules. Here we seek light from the several rules governing medical insurance officers, their empanelment, control, removal and allied matters. Some empathy with the plan of benefit by the State Government is a pre requisite to an insight into the true nature of a medical insur ance officer in the context of an office of profit. A broad idea can be gained from the key rules and so we sketch the outlines by reference to them, skipping the rest. The Chief officer entrusted with the working of the scheme is the Director Rule 2(3A) defines 'Director ' as the Director, ESI scheme, Government of Maharashtra. This officer, the kingpin of the whole programme, is an appointee of the State Government. The content of medical benefits is covered by r. 4 which extends the medical services to insured persons and runs thus: "4. Provision of general medical services to insured persons by Insurance Medical Practitioners. (1) The State Government shall arrange to provide general medical services to insured persons at clinics of Insurance Medical Practitioners, who have undertaken to provide general medical services under these rules and in accordance with their terms of service. (2) An Insurance Medical Practitioner shall be deemed to be appointed as an Insurance Medical officer for the purposes of the Regulations. " The agency for rendering medical treatment is called Insurance Medical Practitioner. Rule 2(6) defines the Insurance Medical Practitioner as one appointed as such to provide medical benefits under the Act and to perform such other functions as may be assigned to him. Rule 2(2) authorizes the appointment of one or more officers by the State Government to control the administration of medical benefits and they are called 'administrative medical 841 officers '. These officers shall, under r. 5, prepare a list of the practitioners whose applications have been approved by the Allocation Committee (defined in r. 2(13). This list is called the Medical List of Insurance Medical Practitioners. Before a doctor can be included in the medical list, he has to apply to the administrative medical officer in the form specified by the State Government for the purpose. The Insurance Medical Practitioners have to be responsible for rendering medical treatment and must conform to the conditions specified. A Medical Service Committee shall be set up for such areas as may be considered appropriate by the State Government. This Committee investigates into questions between an Insurance Medical Practitioner and a person who is entitled to obtain treatment from that practitioner, etc. On the report of the Medical Services Committee relating to the conduct of an Insurance Medical Practitioner, the Director may take action in one or more of the ways specified in r. 22(2). He may even remove the Insurance Medical Practitioner 's name from the medical list. There is an appeal by the aggrieved doctor to the State Government. Rule 24 relates to investigation into cases of disputed prescriptions, record keeping and certification relating to Insurance Medical Practitioners. The total impact of a detailed study of the various rules framed by the State Government bearing on Insurance Medical Practitioners is that a doctor applies for getting into the Medical List, agrees to abide by the duties and conditions prescribed, is under the control of the Medical Services Committee and may even be removed or resign from the panel. It is clear that he cannot extricate himself from government control by the plea that he is a private doctor because his entry into the Medical List is preceded by an application for inclusion where he undertakes certain responsibilities. Such application is considered by an Application Committee which recommends his name to the Director, Employees State Insurance Scheme. The Surgeon General ultimately grants the prayer for inclusion in the Medical List on the recommendations of the Allocation Committee. It is true that an insurance medical practitioner has the right to resign and also to have the name of any insured person removed from his list. He has duties which are prescribed by the rules vis a vis the patients. He is required to furnish various pieces of clinical information and to do other medical duties as are set out in r. 10. The State Government has the power to remove the name of any individual Insurance Medical Practitioner from the Medical List even as the latter is entitled to give notice to the Director, ESI Scheme that he desires to cease to be an Insurance Medical Practitioner and that his name may be removed from the Medical List. It follows that although he is a private doctor, running a private clinic, he is also an Insurance Medical Practitioner subject to the discipline, directions, obligations and control of the relevant officers appointed by the State Government in implementing the medical benefit scheme. An insurance medical practitioner the appellant is one being a medical practitioner 'appointed as such to provide medical benefit under the Act and to perform such other functions as may be assigned to him, ' the question arises whether this is tantamount to holding an office. 842 The legal provisions under the Act and the rules certainly make of an insurance medical practitioner a category different from one who runs a private clinic and enters into contractual terms for treatment of patients sent by Government, nor is he a full fledged government servant. He is a tertium quid, as it were, but the finer question is whether this category falls squarely within the description of 'office of profit under government '. This very question fell for decision before the Bombay and Calcutta High Courts but the learned Judges, on a study of the identical provisions, arrived at antipodean conclusions. After all, minds differ as rivers differ and, assisted by the flow of logic in these and other rulings cited before us, we will hopefully reach the shore of correct interpretation. The process of mentation, the office of words like office of profit ' which convey many meanings and the inputs into the complex matrix of statutory construction make what looks simple to the lay, sophisticated for the legal, as the case on hand amply illustrates. Back to the issue of 'office of profit '. If the position of an Insurance Medical Officer is an 'office ', it actually yields profit or at least probably may. In this very case the appellant was making sizeable income by way of capitation fee from the medical senice, rendered to insured employees. The crucial question then is whether this species of medical officers are holding 'office ' and that 'under Government '. There is a haphazard heap of case law about these expressions but they strike different notes and our job is to orchestrate them in the setting of the statute. After all, all law is a means to an end. What is the legislative end here in disqualifying holders of 'offices of profit under government '? Obviously, to avoid a confict between duty and interest, to cut out, the misuse of official position to advance private benefit and to avert the likelihood of influencing government to promote personal advantage. So this is the mischief to be suppressed. At the same time we have to bear in mind that our Constitution mandates the State to undertake multiform public welfare and socio economic activities involving technical persons, welfare workers, and lay people on a massive scale so that participatory government may prove a progressive reality. In such an expanding situation, can we keep out from elective posts at various levels many doctors, lawyers, engineers and scientists, not to speak of an army of other non officials who are wanted in various fields, not as fulltime government senants but as part time participants in people 's projects sponsored by government? For instance, if a National Legal Services Authority funded largely by the State comes into being, a large segment of the legal profession may be employed part time in the ennobling occupation of legal aid to the poor. Doctors, lawyers, engineers, scientists and other experts may have to be invited into local bodies, legislatures and like political and administrative organs based on election if these vital limbs of representative government are not to be the monopoly of populist politicians or lay members but sprinkled with technicians in an age which belongs to technology. So, an interpretation of 'office of profit ' to cast the net so wide that 843 all our citizens with specialities and know how are inhibited from entering elected organs of public administration and offering semivoluntary services in para official, statutory or like projects run or directed by Government or Corporation controlled by the State may be detrimental to democracy itself. Even athletes may hesitate to come into Sports Councils if some fee for services is paid and that proves their funeral if elected to a panchayat ! A balanced view, even if it involves 'judicious irreverence ' to vintage precedents, is the wiser desideratum. The general interpretative approach hallowed by Heydon 's case is expressed by the Bench in the Bombay ruling AIR 1958 Bom 314 Deorao vs Keshav thus: "The object of this provision is to secure independence of the members of the Legislature and to ensure that the Legislature does not contain persons, who have received favours or benefits from the executive and who, conse quently, being under an obligation to the executive, might be amenable to its influence. Putting it differently, the provision appears to have been made in order to eliminate or reduce the risk of conflict between duty and self interest amongst the members of the Legislature. This object must always be borne in mind in interpreting article 191. " While we agree that this consideration is important for purity of elective offices, the need for caution against exaggerating its importance to scare away men of skill in various fields coming into socially beneficial projects on part time posting or small fee cannot be ignored. Informed by these dual warnings, we proceed to assess the worth of the rival contentions. Section 58 charges the State Government with the duty to provide medical facilities to insured employees. This obligation may be discharged by arrangements with private clinics. An Insurance Medical Officer is not a government servant, but he is more than a mere private doctor with a contractual obligation, for he undertakes certain functions which are regulated by law viz., rules framed under section 96. The question is not what he is but whether he is 'holding an office of profit '. We have already referred to the principal sections and rules, the broad scheme and infra structure and the rights, duties and degree of control over Insurance Medical Practitioners exercised by the State directly or through its officers. A further elaboration is possible, but is supererogatory. A full study of the Bench decisions of Bombay and Calcutta led to diametrically opposite conclusions thus proving the wide judicial choice available depending on the perspective, the import and the objections one accepts from the two enactments viz. the Municipal Act and the Insurance Act. It is a context purpose quandary. 844 Chainani J., speaking for the Court set out the true approach thus: P. 318, para 12. "In our opinion, the principal tests for deciding whether an office is under the Government, are (1) what authority has the power to make an appointment to the office concerned, (2) what authority can take disciplinary action and remove or dismiss the holder of the office and (3) by whom and from what source is his remuneration paid ? Of these, the first two are, in our opinion, more important than the third one. " Shri A. N. Ray, J. (as he then was) stated his touchstone to be fourfold: "The four tests which have been applied to these cases were stated by Lord Thankerton in the case of Short vs J. and W. Henderson, Limited, reported in These four tests are : (a) the master 's power of selection of his servant, (b) the payment of wages or other remuneration, (c) the master 's right to control the method of doing the work, and (d) the master 's right of suspension or dismissal. Lord Thankerton referred to the observation of Lord Justice Clerk in the judgment under appeal in that case that a contract of service may still exist if some of these elements are absent altogether, or present only in an unusual form, and that the principal requirement of contract of service is the right of the master in some reasonable sense to control the method of doing the work, and that this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of the relationship. "(1) A few searching questions and implied answers may help a solution. Is the appellant (or those of his ilk under the Scheme) an employee of government? Not more than any other expert consulted by Government for fee paid? But he has obligations of a statutory savour He is 'appointed ' on his application which is processed by the appropriate body, removed if found wanting, obliged to discharge duties, make some reports and subject himself to certain discipline while on the panel. In the words of the Bombay decision : Para 30, p. 323. "In the form of application, a medical practitioner, who desires his name to be included in the medical list, has also to state that he agrees to abide by the terms of service. In other words, he agrees to join a service, see also Rule 22(d), which uses the words 'prejudicial to the efficiency of the Service '. He is also subject to disciplinary action and control. He cannot also resign or give up his post except by giving three months ' notice under Service Rule 845 14. He is also required to maintain records and to submit returns. His employment has, therefore, all the attributes of a service. He must, therefore, be held to be a holder of an office. The fact that he is allowed private practice will not alter the character of his appointment. " The other features pointing in a different direction are not to be overlooked either. Ray J. (as he then was) drew the lines, boldly, when he observed: Para 29, p. 7. "These medical practitioners apply themselves for inclusion in the medical list. Their payment is not out of the government revenue but out of a special fund consisting of contribution made by the employers. Therefore such a fund over which the government has no legal title and which is vested in the corporation under the combined effect of sections 3 and 26 of the Act to which I have already referred indicates beyond any doubt that the remuneration of medical practitioners is paid not out of the public exchequer. The contention of Mr. Advocate General is correct that medical practitioner in the present case gave nothing more than a voluntary undertaking to offer services in lieu of fees for professional service rendered and the inclusion of names in the list and the preparation of the list did not have the effect of making the medical practitioner an employee of the State. " x x x x Para 23, p. 6. "Mr. Advocate General, in my opinion, rightly contended that the medical practitioners were really undertaking and offering services and if the undertaking was treated as a contract between the medical practitioner and the persons in charge of preparation of medical list, namely, the State or the Corporation it was a mere contract for services and not a contract of services. This proposition was extracted from the decision in Gould vs Minister of National Insurance, reported in and also in (1951) I All. E.R. 368. That case was on the construction of the provisions of the National Insurance Act, 1946 and the question was whether the appellant in that case who was a music hall artist and who had entered into a written contract with the second respondent acting on behalf of several companies, under which he undertook to appear in a variety 'act ' at a theatre for one week from September 6, 1948 was an employed person within the meaning of the Act. The first respondent, the Minister of National Insurance, had decided that during that week the appellant was not an 'employed person ' within the meaning of the Act. It was held that the question would turn on the particular facts of each case and the authority of cases based on different statutes would not always be of assistance. It was said 846 that it would be easy in some cases to say that the contract was a contract of service and in others that it was a contract for services, but between these two extremes there was a large number of cases where the line was much more difficult to draw. " Does the destiny of this case depend on murky semantics as to what is an 'office ' filling columns of Law Lexicons and English Dictionaries or the nub of the dispute turn on contract of service versus contract for services? Alas ! Could not the law be made plainer in this area of mass participatory process called elections ? Dickens is still valid about our modern Legislations unresponsive to the common man 's need of comprehensible law and unmindful of the court 's consequential wrestling with etherie differences ! 'The law is a ass a idiot ' (Mr. Bumble in Oliver Twist). The commensense way, rather than the lexicographic street, is the better route to the destination. And that means we have to crystallise our notion of 'office of profit ' and then test the fate of Insurance Medical Practitioners. Profit he does derive, but does he hold an office under Government ? Mere incumbancy in office is no disqualification even if some sitting fee or piffling honorarium is paid (vide: If a lawyer (or doctor in a system of National Health Insurance) is on a panel of Government for looking after cases or other legal work and paid for services rendered but, otherwise, a freelance, does he hold an office under Government ? Shivamurthy Swami(1) clears the ground for the discussion by going to the basics which determine what is an office of profit under Government. These tests are: "(1) Whether the Government makes the appointment; (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays the remuneration; (4) What are the functions of the holder ? Does he perform them for the Government; and (5) Does the Government exercise any control over the performance of those functions ?" We are not faced with the plea of office under the Corporation and thus under the Central Government but only with the disqualification of holding an office directly under the State Government via section 58 read with the rules framed under section 96 of the Insurance Act. In this connection, a closer link with the present situation is established by Kanta(2) where an Advocate, acting for Government under the directions of the Government pleader could be said to hold an office of profit. Sikri J., (as he then was) adopted the classic definition 847 of 'office ' given by Justice Rowlatt in Great Eastern Rly Co.(1) as appropriate even in an electoral context and proceeded to apply the ratio to the facts of the case. Observed the learned Judge: "We cannot visualise an office coming into existence, every time a pleader is asked by the Government to appear in a case on its behalf. The notification of his name under rule 8B, does not amount to the creation of an 'office '. Some reliance was also placed on rule 4 of Order 27 C.P.C. which provides that: "The Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court. " This rule would not apply to the facts of this case because the appellant was appointed only to assist the Government Advocate in a particular case. Assuming it applies, it only means that the processes could be served on the appellant, but processes can be served on an Advocate under Rule 2 of Order XLV of the Supreme Court Rules, 1966. This does not mean that an Advocate on Record would hold an office under the client. The learned Counsel for the respondent, Mr. Chagla, urges that we should keep in view the fact that the object underlying article 191 of the Constitution is to preserve purity of public life and to prevent conflict of duty with interest and give an interpretation which will carry out this object. It is not necessary to give a wide meaning to the word 'office ' because if Parliament thinks that a legal practitioner who is being paid fees in a case by the Government should not be qualified to stand for an election as a Member of Legislative Assembly, it can make that provision under article 191(1)(e) of the Constitution. The case of Sakhawat Ali. vs The State of Orissa(2) provides an instance where the Legislature provided that a paid legal practitioner should not stand in the municipal elections. " This takes us to Sakhawat Ali(2) and to Mahadeo(3) which too afford some luciferous parallels. In Sakhawat Ali (supra) the question arose about a legal practitioner employed on behalf of a Municipality standing as candidate for election to the Municipal Council. Stress was laid on the purity of public life, an object which would be thwarted if there arose a situation of conflict between interest and duty. A lawyer paid by the municipality becoming a councillor is a situation fraught with perils to purity in public life. This factor was emphasized by an express provision in the Municipal Act in that case disqualifying such paid legal practitioners from becoming candidates. Had such a step been taken in our case, the law would have been at least clear, whether it was wise or No. 848 In Mahadeo 's Case(1) a fine distinction from Kanta (supra) arose. There also the disqualification of a lawyer on account of holding an office of profit under the government arose. After quoting Lord Wright in Mcmillan vs Guest(2), trying to define 'office ', the Court proceeded to consider whether a lawyer who accepted a position on the panel of Railway pleaders for conducting suits filed against the Union of India on the terms and conditions therein mentioned, was holding an office of profit. Holding that such an appointment on the panel of lawyers for the Union of India was an office of profit, the Court observed: "If by 'office ' is meant the right and duty to exercise an employment or a position to which certain duties are attached as obsered by this Court, it is difficult to see why the engagement of the appellant in this case under the letter of February 6, 1962 would not amount to the appellant 's holding an office. By the said letter he accepted certain obligations and was required to discharge certain duties. He was not free to take a brief against the Railway Administration. Whether or not the Railway Administration thought it proper to entrust any particular case or litigation pending in the court to him, it was his duty to watch all cases coming up for hearing against the Railway Administration and to give timely intimation of the same to the office of the Chief Commercial Superintendent. Even if no instructions regarding any particular case were given to him, he was expected to appear in court and obtain an adjournment. In effect this cast a duty on him to appear in court and obtain an adjournment so as to protect the interests of the Railway. The duty or obligation was a continuing one so long as the railway did not think it proper to remove his name from the panel of Railway lawyers or so long as he did not intimate to the Railway Administration that he desired to be free from his obligation to render service to the Railway. In the absence of the above he was bound by the terms of the engagement to watch the interests of the Railway Administration, give them timely intimation of cases in which they were involved and on his own initiative apply for an adjournment in proceedings in which the Railway had made no arrangement for representation. It is true that he would get a sum of money only if he appeared but the possibility that the Railway might not engage him is a matter of no moment. An office of profit really means an office in respect of which a profit may accrue. It is not necessary that it should be possible to predicate of a holder of an office of profit that he was bound to get a certain amount of profit irrespective of the duties discharged by him." The next case of considerable importance is Gurugobinda(3) which related to a chartered accountant, a partner of a firm of auditors of two companies which were owned by the Union Government 849 and the State Government. Disqualification for holding an office of profit, again, in this circumstance, was pressed before the Court and section K. Das, Acg. C. J., speaking for the Court observed: "We think that this contention is correct. We agree with the High Court that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them." (P. 319) "In Maulana Abdul Shakur vs Rikhab Chand and another (1958 SCR 387) the appellant was the manager of a school run by a committee of management formed under the provisions of the Durgah Khwaja Saheb Act, 1955. He was appointed by the administrator of the Durgah and was paid Rs. 100 per month. The question arose whether he was disqualified to be chosen as a member of Parliament in view of article 102(1) (a) of the Constitution. It was contended for the respondent in that case that under sections 5 and 9 of the Durgah Khwaja Saheb Act, 1955 the Government of India had the power of appointment and removal of members of the committee of management as also the power to appoint the administrator in consultation with the committee; therefore the appellant was under the control and supervision of the Government and that therefore he was holding an office of profit under the Government of India. This contention was repelled and this court pointed out the distinction between the holder of an office of profit under some other authority subject to the control of Government." (p. 319 320) "It has to be noted that in Maulana Abdul Shakur 's case the appointment of the appellant in that case was not made by the Government nor was he liable to be dismissed by the Government. The appointment was made by the administrator of a committee and he was liable to be dismissed by the same body." (p. 320) "It is clear from the aforesaid observations that in Maulana Abdul Shakur 's case the factors which were held to be decisive were (a) the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always decisive factor. In the case before us the appointment of the appellant as also his continuance in office rests solely with the Government of India in respect of the two companies. His remuneration is also fixed by Government. We assume for the purpose of this appeal that they are Government companies within the meaning of 850 the Indian and 100% of the shares are held by the Government. We must also remember that in the performance of his functions the appellant is controlled by the Comptroller and Auditor General who is himself undoubtedly holder of an office of profit under the Government, though there are safeguards in the Constitution as to his tenure of office and removability therefrom." (p. 321) "Therefore if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant as the holder of an office of profit in the two Government Companies, the Durgapur Projects Ltd., and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India, he is removable from office by the Government of India, he perfoms functions for two Government companies under the control of the Comptroller and Auditor General who himself is appointed by the President and whose administrative powers may be controlled by rules made by the President." (p. 322) "In Ramappa vs Sangappa the question arose as to whether the holder of a village office who has a hereditary right to it is disqualified under article 191 of the Constitution, which is the counterpart of article 102, in the matter of membership of the State Legislature. It was observed therein. "The Government makes the appointment to the office though it may be that it has under the statute no option but to appoint the heir to the office if he has fulfilled the statutory requirements. The office is, therefore, held by reason of the appointment by the Government and not simply because of a hereditary right to it. The fact that the Government cannot refuse to make the appointment does not alter the situation. " There again, the decisive test was held to be the test of appointment. In view of these decisions we cannot accede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf must all co exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is absent, the test of a person holding an office under the Government. Centre or State, is not satisfied. The cases we have referred to specifically point out that the circumstance that the source 851 from which the remuneration is paid is not from public revenue is a neutral factor not decisive of the question. As we have said earlier whether the stress will be laid on one factor or the other will depend on the facts of each case. However, we have no hesitation in saying that where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered." (p. 322 323) The core question that comes to the fore from the survey of the panorama of case law is as to when we can designate a person gainfully engaged in some work having a nexus with Government as the holder of an 'office of profit ' under Government in the setting of disqualification for candidature for municipal or like elections. The holding of an office denotes an office and connotes its holder and this duality implies the existence of the office as an independent continuity and an incumbent thereof for the nonce. Certain aspects appear to be elementary. For holding an office of profit under Government one need not be in the service of Government and there need be no relationship of master and servant (Gurugobinda supra). Similarly, we have to look at the substance, not the form. Thirdly, all the several factors stressed by this Court, as determinative of the holding of an 'office ' under Government, need not be conjointly present. The critical circumstances, not the total factors, prove decisive. A practical view not pedantic basket of tests, should guide in arriving at a sensible conclusion. In the present case, can we say that the post (forgetting the finer issue of office, as distinguished from post) is under the State Government ? The capitation fee is the remuneration the doctor is paid and this comes not from Government direct but from a complex of sources. But Gurugobinda and Gurushantappa(1) took the view that payment of remuneration not from public revenue is a neutral factor. Is the degree of control by Government decisive ? The power to appoint, direct and remove, to regulate and discipline, may be good indicia but not decisive, as pointed out in Gurushantappa. In our case, Government does have, partly direct and partly indirect, control but the conclusion is not inevitable because the doctor is put in the List not by Government directly but through a prescribed process where the Surgeon General has a presiding place. How proximate or remote is the subjection of the doctor to the control of Government to bring him under Government is the true issue. Gurushantappa has highlighted this facet of the question. Indirect control, though real, is insufficient, flows from the ratio of Abdul Shakur(2). The appellant, as elaborated by Ray J (as he then was) in the Calcutta case, was not a servant of government but a private practitioner, was not appointed directly by Government, but by an officer of government on the recommendation of a Committee, was paid not necessarily 852 out of Government revenue and the control over him in the scheme was vested not in Government but in an Administrative Medical Officer and Director whose position is not qua Government servant but creatures of statutory rules. The ultimate power to remove him did lie in Government even as he enjoyed the power to withdraw from the panel. The mode of medical treatment was beyond Government 's control and the clinic was a private one. In sum, it is fair to hold that the Insurance Medical Practitioner is not a free lancer but subject to duties, obligations, control and rates of remuneration under the overall supervision and powers of Government. While the verdict on being under the Government is a perilous exercise in Judicial brinkmanship, especially where the pros and cons are evenly balanced, the ruling in Kanta Kathuria which binds us and the recondite possibility of conflict of duty and interest for a Municipal President who is an Insurance Medical Practitioner under an arrangement with Government induce us to hold that though the line is fine, the appellant is not functioning under the Government in the plenary sense implied in electoral disqualification. After all, the means, i.e., the ban on candidature, must have a substantial link with the end viz., the possible misuse of position as Insurance Medical Practitioner in doing his duties as Municipal President. This question is interlaced, in the present context, with the concept of 'office of profit '. And the twin problems baffle easy solution since an apparent not real conflict of reasoning exists between Mahadeo (decided by a Bench of two Judges) and Kanta (by a Bench of five Judges). Of course Sikri, J. (as he then was) thought that Mahadeo 'in no way militates against the view ' which appealed to the majority in Kanta. Judicial technology sometimes distinguishes, sometimes demolishes earlier decisions; the art is fine and its use skilful. Both the cases dealt with advocates and we have referred to them in the earlier resume of precedents. Even so, a closer look will disclose why we follow the larger Bench (as we are bound to, even if there is a plain conflict between the two cases). Justice Rowlatt 's locus classicus in Great Western Ry. Co. (followed by this Court in many cases) helps us steer clear of logomachy about 'officio ' especially since the New English Dictionary fills four columns ! Rowlatt J. riveted attention on 'a subsisting, permanent, substantive position, which had an existence independent from the person who filled it ' which went on and was filled in succession by successive holders '. So, the first step is to enquire whether 'a permanent, substantive position, which had an existence independent from the person who filled it ' can be postulated in the case of an Insurance Medical Practitioner. By contrast is the post an ephemeral, ad hoc, provisional incumbency created, not independently but as a List or Panel clastic and expiring or expanding, distinguished from a thing that survives even when no person had been appointed for the time being. 'Thin partitions do their bounds divide ' we agree, but the distinction, though delicate, is real. An office of Insurance Medical Practitioner can be conjured up if it exists even where no doctor sits in the saddle and has duties attached to it qua office. We cannot equate it with the post of a peon or security gunmen who too has duties 853 to perform or a workshop where Government vehicles are repaired, or a milk vendor from an approved list who supplies milk to government hospitals. A panel of lawyers for Legal Aid to the Poor or a body of doctors enlisted for emergency service in an epidemic outbreak charged with responsibilities and paid by Government cannot be a pile of offices of profit. If this perspective be correct, Kanta and Mahadeo fit into a legal scheme. In the former, an ad hoc Assistant Government Pleader with duties and remuneration was held to fall outside 'office of profit '. It was a casual engagement, not exalted to a permanent position, occupied pro tempore by A or B. In Mahadeo, a permanent panel of lawyers 'maintained by the Railway Administration ' with special duties of a lasting nature constituted the offices of profit more like standing counsel. If, in our case, had there been a fixed panel of doctors with special duties and discipline, regardless of doctors being there to fill the positions or no, a different complexion could be discerned as in the case of specified number of Government pleaders, public prosecutors and the like, the offices surviving even if they remain unfilled. On the other hand, no rigid number of Insurance Medical Practitioners is required by the rules or otherwise. If an Insurance Medical Practitioner withdraws, there is no office sticking out even thereafter called office of Insurance Medical Practitioner. The critical test of independent existence of the position irrespective of the occupant is just not satisfied. Likewise, it is not possible to conclude that these doctors, though subject to responsibilities, eligible to remuneration and liable to removal all with a governmental savour cannot squarely fall under the expression 'Holding under Government '. Enveloped, though the Insurance Medical Officer is, by governmental influence, and working, though he is, within an official orbit, we are unable to hold that there is an 'office of profit ' held by him and that he is 'under government '. This conclusion avoids the evil of public duty conflicting with private interest and accommodation of more technical persons in semi voluntary social projects in an era of expanding cosmos of State activity. We hold, not without hesitation, that the appellant suffered no disqualification on the score of holding office of profit under government. Is it not a sad reflection on legislative heedlessness that, notwithstanding forensic controversy for a long period not a little legislative finger had been moved to clarify the law and preempt litigation. Judicial pessimism persuades us not to be hopeful even after this judgment. The Court and the Legislature have no medium of inter communication under our system. Its desirability was emphasised by Justice Cardozo, way back in 1921 (when he addressed the Association of the Bar of the City of New York and proposed an agency to mediate between the courts and the legislature). In characteristically beautiful prose he said: "The Courts are not helped as they could and ought to be in the adaptation of law to justice. The reason they are not helped in because there is no one whose business it is to give warning that help is needed. We must have a courier who will carry the tidings of distress. Today 854 courts and legislature work in separation and aloofness. The penalty is paid both in the wasted effort of production and in the lowered quality of the product. On the one side, the judges, left to fight against anachronism and injustice by the methods of judge made law, are distracted by the conflicting promptings of justice and logic, of consistency and mercy, and the output of their labors bears the tokens of the strain. On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the working of one rule or another, patches the fabric here and there, and mars often when it would mend. Legislature and courts move on in proud and silent isolation. Some agency must be found to mediate between them." In the light of the conclusion we have reached, the other two grounds raised may not strictly arise for consideration. However, since arguments have been addressed, we had better briefly express our view. It was argued by Shri Bhatt that when the ground for invalidation of the election is a disqualification for membership, the proper procedure is to invoke section 44 and not to resort to an election petition under section 21. On a close study of the two provisions in the light of the ruling of this Court in , we are satisfied that an election petition under section 21 is all inclusive and not under inclusive. What we mean is that even if the invalidation of the election is on the score of the disqualification under section 16 it is appropriate to raise that point under section 21 which is comprehensive. All grounds on the strength of which an election can be demolished can be raised in a proceeding under section 21. The language of the provision is wide enough. Maybe that supervening disqualifications after a person is elected may attract section 44, but we are unable to agree that the latter provision cuts back on the width of the specific section devoted to calling in question an election of a councillor (including the President). We agree in this regard with the Full Bench decision in Dattatraya(1). Likewise is the fate of the feeble argument that because there is a provision for challenging the nomination of a candidate and for appealing against the decision of the returning officer regarding that objection, it is not permissible to urge a ground then available later before the Election Tribunal. In the present case there was no decision by the Returning Officer about the nomination paper, and so we are not confronted by the appellate adjudication by the District Judge about the validity or otherwise of the nomination and its resuscitation before the Election Tribunal. In this view we do not accede to the contention of the appellant based on section 44 or rule 15. The third plea, not aimed at salvaging the poll success of the appellant but in unseating the respondent who has been declared elected by the Tribunal also has no merit from a legal angle although it is unfortunate that in a situation where there are only two candidates 855 and the election of one is set aside by the Tribunal, the other automatically gets returned, without resort to polls. Anyway, in the present case, if the appellant 's election were invalid, there is only a single survivor left in the field, i.e., the first respondent. Naturally, in any constituency where there is only one valid nomination, that nominee gets elected for want of contest. To conclude, since the appellant is not disqualified, the appeals are bound to be allowed and we do so, but in the circumstances, without costs. In the connected appeal C.A. No. 1270 of 1975 the consequence is to conform to what we have held above. Therefore, that appeal is also allowed. The parties will bear their respective costs through out. P.B.R. Appeals allowed.

To provide medical facilities to the workers in factories a statutory body called the Employees State Insurance Corporation has been established by an Act of Parliament. Under the Act financial resources of the Corporation come from contributions and other monies specified in the Act and an Employees State Insurance Fund had been created. The State Government, to which an obligation to provide medical treatment for insured persons had been entrusted, may employ private medical practitioners who run clinics as doctors under the scheme. For inclusion of a name in the medical list of insurance medical practitioners a doctor has to apply to the Administrative Medical Officer. His application is considered by an allocation committee which recommends his name to the Director, Employees State Insurance Scheme and ultimately on approval by the Surgeon General, his name is included in the medical list. The doctor whose name is included in the medical list has to abide by the duties and conditions prescribed, is under the control of the Medical Services Committee and may even be removed or resign from the panel. The appellant, who was a private medical practitioner and whose name was included in the panel of doctors maintained by the Corporation and the respondent, were contestants in an election for the presidentship of a municipal council. At the time of scrutiny of the nomination papers no objection was raised to the appellant 's nomination and in the election that ensued the appellant was declared elected. The respondent challenged the election on the ground that the appellant was disqualified under section 16(1) (g) of the Maharashtra Municipalities Act, 1965 which debars a person who holds an office of profit under Government from becoming a councillor, because on the date of nomination he was holding an office of profit under the Government by reason of his being a panel doctor under the Employees State Insurance Scheme. Between the date of nomination and the date of election, however, the appellant had resigned from the scheme. The election tribunal allowed the respondent 's petition and declared the appellants ' election void. At the same time the respondent was declared as the President. On appeal it was contended that a doctor on the medical list prepared by the Surgeon General of the State does not hold an office of profit within the meaning of section 16(1)(g) of the Act. Allowing the appeal ^ HELD: (1) The legislative end for disqualifying holders of office of profit under Government from seeking elective offices is to avoid the conflict between duty and interest, to cut out the misuse of official position, to advance private benefit and to avert the likelihood of influencing Government to promote personal advantage. At the same time the Constitution mandates the State to undertake multiform public welfare and socio economic activities involving technical persons, welfare workers and lay people on a massive scale so that participatory government may prove a progressive reality. Therefore experts may have to be invited into local bodies, legislatures and the like political and administrative organs based on elections. [842 E G] (2),a) The appellant suffered no disqualification on the score of holding an office of profit under Government. The legal provisions under the Act and the rules make of an insurance medical practitioner a category different from one who runs a private clinic and enters into contractual terms for treatment of patients sent by Government, nor is he a full fledged government servant. 833 He is a tertium quid. [842 A] (b) The doctor under the scheme has obligations of a statutory savour. He is appointed on his application which is processed by the appropriate body, removed if found wanting obliged to discharge duties, make some reports and subject himself to certain discipline while on the panel. [844 F G] (3) (a) For holding an office of profit under Government one need not be in the service of Government and there need be no relationship of master and servant. One has to look at the substance, not the form. [851 D E] Gurugobinda ; referred to. (b) In the present case the capitation fee is the remuneration the doctor is paid and this came not from Government direct but from a complex of sources. The power to appoint, direct and remove, to regulate and discipline, may be good indicia but not decisive. Government had partly direct and partly indirect control but the conclusion is not inevitable because the doctor is put in the list not by Government directly but through a prescribed process where the Surgeon General has a presiding place. How proximate or remote is the subjection of the doctor to the control of the Government to bring him under Government is the true issue. The appellant was not a servant of Government, but a private practitioner, was not appointed directly by Government but by an officer of Government on the recommendation of a Committee, was paid not necessarily out of Government revenue and the control over him in the scheme was vested not in Government but in an administrative medical officer and director whose position is not qua Government servant but creatures of statutory rules. The ultimate power to remove him did lie in Government even as he enjoyed the power to withdraw from the panel. The mode of medical treatment was beyond Government 's control and the clinic was a private one. The insurance medical practitioner is not a free lancer but subject to duties obligations, control and rates of remuneration under the overall supervision and powers of Government. [851 F G; 852 A C] Deorao vs Keshav, AIR 1958 Bom. 314 p. 318, para 12 and Manipopal vs State AIR 1970 Cal. 1, 5 para 20 referred to. (c) The appellant is not functioning under the Government in the plenary sense implied in electoral disqualification. The ban on candidature must have a substantial link with the end viz: the possible misuse of position as Insurance Medical Practitioner in doing his duties as Municipal President. [852 D] (4) (a) The first step is to enquire whether a permanent, substantive position which had an existence independent from the person who filled it can be postulated in the case of insurance medical practitioner or is the post an ephemeral, ad hoc, provisional incumbency created, not independently but as a List or Panel distinguished from a thing that survives. The distinction, though delicate, is real. An office of insurance medical practitioner can be conjured up if it exists even where no doctor sits in the saddle and has duties attached to it qua office. The post of insurance medical practitioner cannot be equated with the post of a peon or a security gunman who too has duties to perform. Viewed from this point Kanta and Mahadeo are reconcilable in the former an ad hoc Assistant Government Pleader with duties and remuneration was held to fall outside office of profit in the latter a permanent panel of lawyers maintained by the Railway Administration with special duties of a lasting nature constituted an office of profit. [852 G H; 853 A] (b) Had there been a fixed panel of doctors with special duties and discipline, a different complexion could be discerned. No rigid number of insurance medical practitioners is required by the rules or otherwise. If an insurance medical practitioner withdraws there was no office sticking out even thereafter called office of Insurance Medical Practitioner. The critical test of independent existence of the position irrespective of the occupant is just not satisfied. Likewise it is not possible to conclude that these doctors though subject to responsibilities, eligible to remuneration and liable to removal cannot squarely fall under the expression holding under Government. Enveloped though the 834 insurance medical officer is by governmental influence and working within the official orbit it is not possible to hold that there is an office of profit held by him and that he is under Government. [853 C E] [Obiter: On a close study of sections 21 and 44 and in the light of the ruling of this court in the election petition under section 21 is all inclusive and not under inclusive, even if the invalidation of the election is on the score of the disqualification under section 16 it is appropriate to raise that point under section 21 which is comprehensive. All grounds on the strength of which an election can be demolished can be raised in a proceeding under section 21. The language of the provision is wide enough. It is not correct to say that section 44 cuts back on the width of the specific section devoted to calling in question an election of a councillor (including the President). [854 D F] If the appellant 's election were invalid there was only a single survivor left in the field. Naturally in any constituency where there was only one valid nomination that nominee gets elected for want of a contest.]

Appeal No.449 of 1958. Appeal by special leave from the judgment and decree dated August 7, 1956, of the Patna High Court in Misc. Judicial Case No. 604 of 1953. 406 D. P. Singh, for the appellant. section P. Varma, for the respondent. January 11. The Judgment of the Court was delivered by SHAH, J. The High Court of Judicature at Patna answered in the affirmative the following question which was submitted by the Board of Agricultural Income tax, Bihar, under section 28(3) of the Bihar Agricultural Income tax Act, XXXII of 1948 hereinafter referred to as the Act: " Whether, in the facts and circumstances of the case, the petitioner could be legally assessed for the income of the Estate in 1355 Fasli when the Estate was in the hand of the Receiver ? " With special leave under article 136 of the Constitution, this appeal is preferred against the order of the High Court. The appellant is the Mahant of the Asthal Estate, Salauna, in the District of Bhagalpur in Bihar. In a suit concerning that estate, a Court Receiver was appointed by the First Class Subordinate Judge, Monghyr, to manage the estate. The Receiver functioned till sometime in December, 1949, and under the order of the Subordinate Judge he handed over charge of the estate to the appellant on January 8, 1950. On January 15, 1950, the appellant submitted a return of income of the estate to the Agricultural Income tax Officer, Monghyr, for the Fasli year 1355 corresponding to September 16, 1948, to September 15, 1949. The Agricultural Income tax Officer assessed on August 7, 1950, the agricultural income of the estate at Rs. 90,507 2 6 and ordered the appellant to pay Rs. 20,290 13 0 as agricultural income tax. Appeals against the order of assessment preferred to the Commissioner of Agricultural Income tax and the Board of Agricultural Income tax, Bihar, were unsuccessful. The Board however referred the question set out hereinbefore to the High Court under section 28(3) of the Act as arising out of its order. The only question which falls to be determined in this appeal is whether the appellant was liable to be assessed to pay agricultural income tax for the year 407 in which the estate was in the management of the Court Receiver. Section 3 of the Act which is the charging section provides: " Agricultural income tax shall be charged for each financial year in accordance with and subject to the provisions of this Act on the total agricultural income of the previous year of every person. " By section 4,it is provided: Save as hereinafter provided, this Act shall apply to all agricultural income derived from land situated in the State of Bihar. " The income of the estate of the appellant was not exempt from payment of tax and by virtue of section 3, agricultural income tax was charged upon the income for the assessment year in question, and the appellant was prima facie liable as owner of the estate to pay tax on that income. The appellant however relied upon section 13 of the Act which provides: " Where any person holds land, from which agricultural income is derived, as a common manager appointed under any law for the time being in force, or under any agreement or as receiver, administrator or the like on behalf of persons jointly interested in such land or in the agricultural income derived therefrom, the aggregate of the sums payable as agricultural income tax by each person on the agricultural income derived from such land and received by him shall be assessed on such common manager, receiver, administrator or the like, and he shall be deemed to be the assessee in respect of the agricultural income tax so payable by each such person and shall be liable to pay the same. " The appellant urged that if the land from which agricultural income is derived is held by a Receiver and the income is received by the Receiver, the Receiver alone can, by virtue of section 13, be deemed to be the assessee and the Receiver alone is liable to pay the tax in respect of that income. In support of his contention, the appellant relies upon the definition of the word. , " person " in s, 2, cl. (m) which estates; 408 Person ' mean,% any individual or association of individuals, owning or holding property for himself or for any other, or partly for his own benefit and partly for another, either as owner, trustee, receiver, common manager, administrator or executor or in any capacity recognised by law, and includes an undivided Hindu family, firm or company. " In our view, there is no substance in the contention raised by the appellant. The liability to pay tax is charged on the agricultural income of every person. The income though collected by the Receiver was the income of the appellant. By section 13, in addition to the owner, the Receiver is to be deemed to be an assessee. But the fact that the Receiver may, because he held the property from which income was derived in the year of account, be deemed to be an assessee and liable to pay tax, does not absolve the appellant on whose behalf the income was received from the obligation to pay agricultural income tax. Section 13 merely provides a machinery for recovery of tax, and is not a charging section. When property is in the possession of the Receiver, common manager or administrator, the taxing authorities may, but are not bound to, treat such persons as assessees and recover tax. The taxing authorities may always proceed against the owner of the income and assess the tax against him. The definition in the connotation of" person " undoubtedly included a receiver, trustee, common manager, administrator or executor, and by such inclusion, it is open to the taxing authorities to assess tax against any such persons; but on that account, the income in the hand of the owner is not exempt from liability to assessment of tax. Counsel for the appellant urged that the income received by the appellant from the Receiver did not retain its character of agricultural income and therefore also the appellant was not liable to pay agricultural income tax. But this contention was never raised before the taxing authorities and no such question has been referred to this court. The character of the income was accepted to be agricultural 409 income in the hands of the appellant and the only question which was sought to be referred and raised before the Board of Agricultural Income tax was one as to the liability of the appellant to be assessed to agricultural income tax for the year in question. In that view of the case, the appeal fails and is dismissed with costs. Appeal dismissed.

The appellant was the Mahant of the Asthal Estate in Bihar which was in the management of a Receiver appointed by the Civil Court in a suit relating to the estate. On appeal the question that arose for decision in this Court was whether the appellant Mahant was liable to be assessed under the Bihar Agricultural Income tax Act, 1948, to pay agricultural income tax for the year in which the estate was in the management of the Court Receiver. Held, that the income though collected by the Receiver was the income of the appellant. By virtue of the provisions of sections 2, cl. (m) and 13 of the Bihar Agricultural Income tax Act it was open to the taxing authorities to treat the Receiver as the assessee because he held the property from which income was derived, but on that account the income in the hand of the owner was not exempt from liability to assessment of tax. Section 3 of the Act provides for charging agricultural income of every person " as defined in section 2, cl. (m) which includes a receiver and section E3 merely provides a machinery for recovery of tax from "Persons" including receivers and is not by itself a charging section.

vil Appeal Nos. 2833 35 of 1987. From the Judgment and Order dated 19.9.1986 of the Calcutta High Court in A.F.O. No. 102 of 1984 in M.A. Nos. 3036 and 3062 of 1983. Soli J. Sorabjee, Attorney General and N.S. Hegde, Additional Solicitor General, Gopal Subramanium, Ms. A. Subhashini and P. Parmeshwaran for the Appellants. S.S. Khanduja, Y.P. Dhingra and B.K. Satija for the Respondents. 30 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ. This appeal by special leave arises from the judgment and order of the Division Bench of the High Court of Calcutta dated 19th September, 1986. The Indian Independence Act, 1947 (hereinafter referred to as 'the Act ') was passed by the British Parliament. This Act came into force on and from 15th August, 1947, which was the appointed day and under the Act, as from the appointed day, two independent dominions were to be set up in place of the existing India known, respectively as 'India ' and 'Pakistan '. Two independent dominions were set up in place of the existing Indian Union. Section 3(1) of the Act pro vided, inter alia, that as from the appointed day the Prov ince of Bengal as constituted under the Government of India Act, 1935 shall cease to exist and in lieu thereof two new provinces known respectively as 'East Bengal ' and 'West Bengal ' shall be constituted under section 3(3) of the Act. Under section 3(3) of the Act, it was provided that the boundaries of the new provinces as aforesaid shall be such as may be determined whether before or after the appointed day by the award of a Boundary Commission appointed or to be appointed by the Governor General in that behalf. On 30th June, 1947, the Governor General made an announcement that it had been decided that the Province of Bengal and Punjab shall be partitioned. Accordingly, a Boundary Commission was appointed, inter alia, for Bengal consisting of Sir Cyril Radcliffe as the Chairman. So far as Bengal was concerned, the material terms of reference provided that the Boundary Commission should demarcate the boundaries of the two parts of Bengal on the basis of, inter alia, the contiguous areas of Muslims and non Muslims. The Commission held its enquiry and made an award on August 12, 1947, i.e., three days before the appointed day. The Chairman gave his decision regarding the demarcation of boundary line in respect of District of Darjeeling and Jalpaiguri in para 1 of Annexure 'A ' which provided that a line was to be drawn in a particu lar manner. The Award directed that the District of Darjeel ing and so much of the District of Jalpaiguri as lies north of the said line shall belong to West Bengal but the Thana of Phatgram and any other portion of Jalpaiguri District, which lies to the East or South, shall belong to East Ben gal. Problem arose subsequently regarding the Berubari Union No. 12 Which was situated in the Police Station Jalpaiguri in the District of Jalpaiguri, which was at the relevant time a part of Raisahi Division of Bengal. After the parti tion, Berubari Union formed part of the State of West Bengal and had been governed as such. The Constitution of 31 India was declared to be passed on 26th November, 1949. As provided by Article 394 of the Constitution, only certain Articles came into force as from that date and the remaining provisions came to be in force from January 26, 1950. Arti cle 1 of the Constitution provided that India, that is, Bharat shall be a Union of States and that the States and the territories thereof shall be the States and their terri tories specified in Parts A, B and C of the First Schedule. West Bengal was shown as one of the States in Part A. It was further provided that territories of the State of West Bengal shall comprise the territory which immediately before the commencement of the Constitution was comprised in the Province of West Bengal. As already pointed out in view of the said award, Berubari Union No. 12 was treated as part of the Province of West Bengal and as such has been treated and governed on that basis. Subsequently, certain boundary disputes arose between India and Pakistan and a Tribunal was set up for the adjudication and final decision of the said disputes. However, the same had nothing to do with the present case and the question of Berubari Union or the Cooch Behar enclaves or Pakistani enclaves in the east was not the subject matter of the same. But the said question was raised by the Government of Pakistan in the year 1952. Admitted position is that during the whole of this period, the Beru bari Union continued to be in the possession of the Indian Union and was governed as part of West Bengal. Near about 1952, Pakistan alleged that under the Award, the Berubari Union should really have formed part of East Bengal. In September, 1949, Cooch Behar had become part of the territo ry of India and was accordingly included in the list of Part C States at Serial No. 4 in the First Schedule to the Con stitution. On the 31st December, 1949, the States Merger (West Bengal) Order, 1949, was passed. It was provided in the said order, inter alia, that Indian state of Cooch Behar would be administered in all respects as if it was a part of the Province of West Bengal, on and from the 1st January, 1950, thereby the erstwhile State of Cooch Behar was merged with West Bengal and began to be governed as if it was a part of West Bengal. The State of Cooch Behar was thereafter taken out of the list of Part C States, in the First Sched ule to the Constitution and added West Bengal in the same Schedule. Certain areas which formed part of the territories of the former Indian State of Cooch Behar and which had subsequently become part of the territories of India and then of West Bengal became after the partition enclaves in Pakistan. Similarly, certain Pakistan enclaves were found in India. Dahagram and Angarpota (now Bangladesh), were the Pakistani enclaves in India. The Prime Ministers of two countries entered into an agreement settling certain dis putes including the Bernbari Union and the enclaves in 32 the East Pakistan in 1958. Two items in Para 2 of the said Agreement were items 3 and 10. These were as follows: "Item No. 3: Berubari Union No. 12 "This will be so divided as to give half the area to Paki stan, the other half adjacent to India being retained by India. The Division of Berubari Union No. 12 will be hori zontal, starting from the north east corner of Debiganj Thana. The division should be made in such a manner that the Cooch Behar enclaves between Pachagar Thana of West Bengal will remain connected as at present with Indian territory and will remain with India. The Cooch Behar Enclaves lying between Boda Thana of East Pakistan and Berubari Union No. 12 will be exchanged along with the general exchange of enclaves and will go to Pakistan. " Item No./O: "Exchange of old Cooch Behar Enclaves in Paki stan and Pakistan Enclaves in India without claim to compen sation for extra area going to Pakistan, is agreed to. " Subsequently, there was doubt as to whether the imple mentation of the 1958 Agreement relating to Berubari Union and the exchange of Enclaves requires any legislative action either by way of a suitable law of the Parliament relatable to Article 3 of the Constitution or in accordance with the provisions of Article 368 of the Constitution or both. Accordingly, in exercise of the powers conferred upon him by clause (1) of Article 143 of the Constitution, the President of India referred the following three questions, to this Court for consideration: (1) Is any legislative action necessary for the imple mentation of the agreement relating to Berubari Union? (2) If so, is a law of Parliament relatable to Article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary in addition or in the alterna tive? (3) Is a law of Parliament relatable to Article 3 of the Constitution sufficient for implementation of the agree ment relating to the exchange of Enclaves or is an amendment of the Constitution in accordance with article 368 of the Constitution 33 necessary for the purpose in addition or in the alternative? This Court answered the questions as follows. So far as question No. 1 Was concerned, it was answered in affirma tive. So far as second question was concerned, this Court answered it by saying that a law of Parliament relatable to article 3 of the Constitution would be incompetent and a law of Parliament relatable to article 368 of the Constitution is competent and necessary and also by saying that a law of Parliament relatable to both Article 368 and article 3 would be necessary only if Parliament chooses first to pass a law amending article 3 as indicated above; in that case Parliament may have to pass a law on those lines under Art 368 and then follow it up with a law relatable to the amended article 3 to implement the agreement. Question NO. 3 was also answered as aforesaid. The said decision is reported in Re. The Berubari Union and Exchange of Enclaves 250. Ninth Amendment to the Constitution was made thereafter. The Objects and Reasons of the Constitution (Ninth Amendment) Act, 1960 stated that the Indo Pakistan agreements dated September 10, 1958, October 23, 1959, and January 11, 1960, which settled certain boundary disputes relating to the borders of the State of Assam, Punjab and West Bengal, and the Union Territory of Tripura involved transfer of certain territories to Pakistan after demarcation. The Act amended the Constitution to give effect to the transfer of those territories. After setting out the title of the Act, which was called the Constitution (Ninth Amendment) Act, 1960, it provided the definitions and amendments to the First Sched ule to the Constitution. In 1966, writ petitions were filed challenging the validity of the proposed demarcation as also raised the question as to whether the proposed transfer of Berubari Union would result in deprivation of citizenship and property without compensation. The writ petitions were dismissed eventually by this Court. The said decision is reported in Ram Kishore Sen & Ors. vs Union of India & Ors. , [1966] 1 SCR430. In 1971, a sovereign independent State known as 'Bangla desh ' came into existence which comprised of the territory previously known as East Pakistan or East Bengal. On or about the 16th May, 1974, an agreement was entered into by and between the Prime Ministers of India and Bangladesh regarding the land boundary and related matters including transfer of enclaves. Article 1 para 12 of the said Agree ment provided that Indian enclaves in Bangladesh and Bangla desh enclaves in India should be exchanged expeditiously excepting the enclaves mentioned in para 14 without claim to compensation for the additional area, going to Bangladesh. Thereafter, an understanding was reached 34 in October, 1982, between the two Governments in connection with the "lease in perpetuity" in terms of item 14 of Arti cle 1 of the 1974 Agreement. In 1983, writ petitions were filed in the Calcutta High Court. In September, 1983, the learned Single Judge of the Calcutta High Court dismissed the writ petitions holding, inter alia, that the implementa tion of the 1974 and 1982 agreements did not involve cession of Indian territory to Bangladesh. The said judgment in Sugandha Roy vs Union of India & Ors., is reported in AIR 1983 Cal. at p. 483. It was held therein that there being no Gazette Notification fixing any "appointed day" within the meaning of Ninth Constitution Amendment in respect of the Eastern India, particularly the Berubari Union and the Pakistani enclaves, and no Gazette Notification having yet been issued, it was clear that 9th amendment so far as it related to exchange of the enclaves in Eastern India has not come into effect by virtue of the said Ninth Amendment in view of the fact that it was expressly provided in the said 9th Amendment that only from the "appointed day" the Sched ule to the Constitution shall be amended and there being no "appointed day" in respect of the territories in the Eastern India, the First Schedule to the Constitution remained unamended in so far as eastern India is concerned particu larly the Berubari Union and the enclaves of the Dahagram and Angarpota and, as such, neither in fact nor in law there was any accession to India in respect of the two enclaves and they remained part of Pakistan (now Bangladesh) as they were before in spite of 1958 Nehru Noon Agreement and Ninth Amendment. Therefore, the implementation of the 1974 and 1982 Agreements which provided, inter alia, that the two enclaves would not be exchanged would not amount to cession of any Indian territory which would require any Constitu tional amendment. Even if one proceeded on the basis of the 1958 agreement entered into by India and Pakistan so far as it related to the territories of eastern India remained effective and valid after the emergence of Bangladesh. 1t was open to India and Bangladesh to enter into a fresh treaty modifying the 1958 agreement and that was actually what had happened in the present case. India and Bangladesh had, by the said 1974 and 1982 agreements and to the extent indicated therein terminated and/or modified the earlier Treaty of 1958 in respect of inter alia, southern portion of Bernbari Union and the two enclaves in question. In such a case, even if it could be said that it was the obligation of the Government of India to make endeavour to foster respect for the 1958 treaty as contemplated by Article 5 i(c) that did not prevent the Government of India from entering into the 1974 and 1982 agreements and modifying the earlier treaty particularly having regard to the fact that the 1958 agreement so far as it related to transfer of 35 southern portion of Berubarl Union and the exchange of enclaves in question was not given effect to any time and the Ninth Amendment to that effect was never brought into force. The Court, further, held that when by 1974 agreement read with 1982 agreement Bangladesh Government had been given the facility of using the Indian area known as "Teen Bigha" in the manner contemplated by those agreements to be discussed in detail later, the implementation of those two agreements would not involve cession of any territory to Bangladesh in respect of Teen Bigha. Not merely that no exclusive possession of that area was sought to be trans ferred to Bangladesh and no legal possession at all was being transferred. There was no question of transfer of sovereignty, wholly or partially, in respect of the said area. What had merely been done was to enable the Government of Bangladesh and its nationals to exercise certain rights in respect of the said area, i.e., Teen Bigha, which other wise they would not have been entitled to do. That was being so allowed because instead of exchange of these enclaves along with others as contemplated by 1958 Agreement, it was agreed that these two enclaves would remain as part of Bangladesh. The Court, further, held that it was clear that the reason was that in spite of the 1958 agreement and in spite of the Ninth Amendment, which had not been given effect to, the southern portion of Berubari Union had to be retained by India. As these two enclaves were to remain as part of Bangladesh territory, these two agreements had made some provisions to enable Bangladesh to exercise its sover eignty in full over these two enclaves. This is also clear by 1982 agreement, the Court held. Thus, the implementation of these two agreements, so far as Teen Bigha was concerned, did not amount to cession of the said territory or transfer of sovereignty in respect of the same and did not require any constitutional amendment. There was an appeal before the Division Bench of the High Court. The Division Bench referred to the relevant authorities and the interpretation of 1974 and 1982 agree ments made by the learned Single Judge which were not dis puted before the Division Bench. The Division Bench in judgment under appeal affirmed the decision of the learned Single Judge. The findings and interpretation of the agree ments of 1974 and 1982 were also not disputed before us. We are also of the opinion that that is the correct position in law and on facts. As mentioned hereinbefore, on or about 16th May, 1974, an agreement was entered into by and between Government of India and the Government of the People 's Republic of Bangla desh. The said agreement was signed by late Smt. Indira Gandhi, as the then Prime 36 Minister of India for and on behalf of the Government of India and Sheikh Mujibar Rehaman, the then Prime Minister of Bangladesh, signed the said agreement for and on behalf of the Government of People 's Republic of Bangladesh. It was recorded in the preamble of the agreement that the same concerned the demarcation of the land boundary between India and Pakistan and related matters, and that the two Govern ments were aware that friendly relations were existing between the two countries and that it was desired to define the boundary more accurately at certain points and to com plete the demarcation thereof. Items 12 and 14 of Article 1 of the Agreement relevant to the proceedings before us, as mentioned before, were as follows: "Item No. 12: The Indian enclaves in Bangladesh and the Bangladesh en claves in India should be exchanged expeditiously, excepting the enclaves mentioned in paragraph 14 without claim to compensation for the additional, area going to Bangladesh. " Item No. 14: "India will retain the southern half of south Berubari Union No. 12 and the adjacent enclaves, measuring an area 2.64 square miles approximately, and in exchange Bangladesh will retain the Dahagram and Angarpota enclave, India will lease in perpetuity to Bangladesh and area of approximately 178 metres x 65 metres near 'Tin Bigha ' to connect Dhagram with Panbari Mouza (section Patram) of Bangladesh. " Article 5 provided that the agreement shall be subject to notification by the Government of India and Bangladesh and Instruments of rectification shall be exchanged as early as possible. It may, however, be stated as was noted by the Division Bench of the Calcutta High Court that the agreement dated 11th May, 1974 was also not implemented. Subsequently, letters passed between the Ministry of Foreign Affairs, Government of Bangladesh and the Ministry of External Af fairs, Government of India, both dated the 7th October, 1982 in which it was recorded that with reference to the earlier agreement between Government of Bangladesh and the Govern ment of India concerning the demarcation of land boundary between the two countries, signed on the 16th May, 1974, the following understanding 37 had been reached between the two Governments in respect of lease in perpetuity by India of the said area of 178 metres x 85 metres near 'Teen Bigha ' to connect Dahagram with Mouza Panbari in Bangladesh. The understanding recorded was as follows: "Clause 1: "The lease in perpetuity of the aforementioned area shall be for the purpose of connecting Dahagram and Angarpota with Panbari Mouza (P.S. Patgram) of Bangladesh to enable the Bangladesh Government to exercise her sovereignty over Dahagram and Angarpota. " Clause 2: "Sovereignty over the leased area shall continue to vest in India. The rent for the lease area shall be Bangladesh Re. 1 (Bangladesh Taka one) only per annum. Bangladesh shah not however be required to pay the said rent and Government of India hereby waives its right to charge such rent in respect of the leased area." Clause 3: "For the purposes stated in para 1, Bangladesh shall have undisturbed possession and use of the area leased to her in perpetuity." Clause 4: "Bangladesh Citizens including Police, Para Military and Military personnel along with their arms, ammunition equip ment and supplies shall have the right of free and unfet tered movement in the leased area and shall not be required to carry passports or travel documents of any kind. Movement of Bangladesh goods through the leased area shall also be free. There shall be no requirement of payment of customs duty tax or levy of any kind whatsoever or any transit charges. Clause 5: "Indian citizens including police, par Military and 38 Military personnel along with arms ammunition equipment and supplies shall continue to have right of free and unfettered movement in the leased area in either direction. Movement of Indian goods across the leased area shall also be free. For purpose of such passage the existing road running across it shall continue to be used. India may also build a road above and or below the surface of the leased area in an elevated or subway form for her exclusive use in a manner which will not prejudice free and unfettered movement of Bangladesh citizens and goods as defined in para 1 and 4 above. Clause 6: "The two Governments shall co operate in placing permanent market along the parameters of the leased area and put up fences where necessary. " Clause 7: "Both India and Bangladesh shall have the fight to lay cables, electric lines, water and sewerage pipes etc. over or under the leased area without obstructing free movement of citizens or goods of either country as defined in parts 4 and 5 above. Clause 8: "The Modalities for implementing the terms of the lease will be entrusted to the respective Deputy Commissioners of Rangpur (Bangladesh) and Cooch Behar (India). In case of Differences, they refer the matter to their respective Governments for resolution. Clause 9: "In the event of any Bangladesh/Indian national being involved in an incident in the leased area, constitut ing an offence in law, he shall be dealt with by the respec tive law enforcing agency of his own country, in accordance with its national laws. In the event of an incident in the leased area involving nationals of both countries the law enforcing agency on the scene of the incident will take necessary steps to restore law and order. At the same time immediate steps will be taken to get in track with the law enforcing agency of the other country. In such cases, any Indian national apprehended by a Bangladesh law enforc 39 ing agency shall be handed over forthwith to the Indian side and Bangladesh national apprehended by an Indian law enforc ing agency shall be handed over forthwith to the Bangladesh side. India will retain residual jurisdiction in the leased area. " It was further confirmed by the letters that the same would continue as an agreement between the two Governments and would be an integral part of the earlier agreement of 1974 concerning the demarcation of land boundary between India and Bangladesh and other related matters. Construing clauses 2 and 3 of the agreement of 1982, the learned Single Judge in the Calcutta High Court in the judgment under appeal had held that there was no question of lease or exclusive possession of Bangladesh of the said area. The undisturbed possession and use of the said area granted to Bangladesh under the said agreement of 1982 had to be read in the background of the purpose of the agree ment, namely, connecting Dahagram and Angarpota with Panbari Mouza of Bangladesh to enable the Bangladesh Government to exercise sovereignty over Dahagram and Angarpota. The learned Single Judge had further held that such undisturbed possession and use did not mean exclusive possession but merely meant that there would be no interference with the exercise of rights conferred by the agreement on Bangladesh Government and its nationals. The learned Single Judge had held that no transfer of possession of the area was contem plated under the agreement. Construing clause 9 of the agreement, the learned Single Judge had held that under the said clause where persons were involved in any criminal offence in the said area, if they were all Indian nationals, the matter would be taken up by the Indian law enforcing agency. If the same involved only Bangladesh nationals the same would be dealt with by the Bangladesh law enforcing agency only. But where both Bangla desh and Indian nationals were involved in any incident, the law enforcing agency of each State would take up the matter to the exclusion of the other. The learned Single Judge had held that the said clause conferred certain important rights to Bangladesh and took away some important rights of the Government of India, its law enforcing agencies, the courts in India and Indian citizens. At present, the law enforcing agencies of India and the Indian Courts alone had exclusive jurisdiction in respect of such matters. The learned Single Judge had held that if the agreement was implemented the existing Indian law 40 and the machinery for enforcing such law would not be avail able in the area so far as Bangladesh nationals were con cerned. India would have no jurisdiction over Bangladesh nationals in respect of any offence committed in the area. The learned Single Judge, however, held that conferment of this power under the agreement to Bangladesh and abdication of any such power by India, by itself did not amount to transfer of sovereignty in respect of the area. But the learned Judge noted that merely by virtue of the agreement and without any amendment of existing Indian law it might not be legally possible to take away existing jurisdiction of the law enforcing agencies of India or the Indian courts. The Division Bench of Calcutta High Court correctly noted that the learned Single Judge came to the following conclusions: (a) Implementation of the agreements of 1974 and 1982 did not involve cession of any Indian territory to Bangla desh. (b) No exclusive or legal possession of Tin Bigha was being transferred to Bangladesh. (c) There was no question of transfer of sovereignty of India wholly or partially in respect of the said area. (d) Certain privileges only had been conferred on Ban gladesh and its nationals under the said agreements which otherwise they would not have. (e) As Dahagram and Angarpota would remain as pans of Bangladesh territory, the agreements were necessary to enable Bangladesh to exercise its sovereignty in full over the said enclaves. (f) In spite of the said agreements India would retain its sovereignty, ownership and control over Tin Bigha. It was contended before the Division Bench that the agreement between India and Bangladesh of 1974 provided specifically that the same would be suitably ratified. But it had not been ratified. It was urged that in the absence of any ratification of the agreement of 1974, India and Bangladesh could not enter into the said subsequent agree ment in 1982 on the basis of the agreement of 1974. It was submitted that the said agreement of 1982 could not stand by itself. Learned Advocate had submitted before the Division Bench that under clause 41 14 of the agreement of 1974, it was clearly recorded that India would lease in perpetuity to Bangladesh the said area of Teen Bigha to connect Dahagram with the Panban mouza in the main land of Bangladesh. The subsequent agreement of 1982 was entered into between the two countries for imple menting the earlier agreement of 1974 and had to be con strued in the background of the latter. Several other con tentions were urged on behalf of the Union of India and the appellants before the Division Bench. All the contentions were noted by Mr. Justice D.K. Sen, as the learned Chief Justice then was, who delivered the main judgment of the Division Bench in the judgment under appeal. He also noted the decision of this Court in Associated Hotels of India Ltd. vs R.N. Kapoor, ; on the question of lease and licence and also the decision of this Court in the Presidential Reference noted above. The decision of this Court in Maganbhai Ishwarbhai Patel vs Union of India & Anr., ; , which dealt with the cession of Rann of Kutch to Pakistan, was also noted. This Court had reiter ated there that a treaty really concerned the political rather than the judicial wing of the State. When a treaty or an award after arbitration comes into existence, it had to be implemented and this can only be if all the three branch es of Government to wit the Legislature, the Executive and the Judiciary, or any of them, possess the power to imple ment it. On the question of 'sovereignty ', reliance was placed before us on 'A Concise Law Dictionary ' by P.G. Osborn, 5th Edition, p. 297, where 'sovereignty ' has been defined as "the supreme authority" in an independent political society. It is, essential, indivisible and illimitable. However, it is now considered and accepted as both divisible and limita ble, and we must recognise that it should be so. Sovereignty is limited externally by the possibility of a general re sistance. Internal sovereignty is paramount power over all action within, and is limited by the nature of the power itself. At p. 94, J.G. Starke in 'Introduction to International Law ', 9th Edition, explains the position as under: "Normally a State is deemed to possess independence and 'sovereignty ' over its subjects and its affairs, and within its territorial limits 'Sovereignty ' has a much more re stricted meaning today than in the eighteenth and nineteenth centuries when, with the emergence of powerful highly natio nalised States, few limits on State autonomy were acknowl edged. At the present time there is hardly a State 42 which, in the interests of the international community, has not accepted restrictions on its liberty of action. Thus most States are members of the United Nations and the Inter national Labour Organisation 'ILO ', in relation to which they have undertaken obligations limiting their unfettered discretion in matters of international policy. Therefore, it is probably more accurate today to say that the sovereignty of a State means the residuum of power which it possesses within the confines laid down by international law. " In a practical sense, it has been noted, sovereignty would be largely a matter of degree. Reference, in this connection, has been made to the following authorities on the following aspects of international law: International Law, D.P.O. Connell, 2nd Edn. I page 552. Customary Restraints on Sovereignty: "A survey of actual servitudes is instructive when approach ing the more general question or customary restraints on sovereignty in the interests of neighbourly relations, because they disclose the categories of situations suscepti ble of customary law treatment. With the exception of fish eries, those treaties instanced as servitudes all give effect to the notion of freedom of access or of transit. The subject matter may be broken down into a consideration of the general principles of access and transit, and then specific investigations of rivers and canals as media of transit. ' ' Freedom of access and transit: "The classical writers from Vittoria on were unanimous in their view that a State must permit others to trade with it, and hence must grant them access and right of transit, and the opinion was maintained in spite of a mercantilis theory of trade. " Access to enclaves: "There is cogency in the argument that a State has a right of access across alien territory to its enclaves area and in 43 fact enclaves have only survived because of the grant of necessary facilities, so that all enclaves are servitudes. Whether, in the absence of actual agreement there is a right of access was undecided by the International Court of Jus tice in the rights of passage case because it found that existing practice in the instant situation was the appropri ate guide and it was unnecessary to resort to general inter national law. The lesson on the face is that free access means in fact limited access, but the fact remains that even though the territorial State has a discretion to regulate and authorise the exercise of rights these none the less remain rights. " In the actual case the Court allowed a latitude of discre tion to India which narrowed down, in some respects almost to vanishing point, the admitted right of access. In partic ular there was a dissent on the question whether armed forces were entitled to access. "The Development of International law, by International Court Sir Herson Lauterpacht, 1958". "A number of cases decided by the Court are instructive not so much as pointing to a restrictive interpretation of rights of sovereignty as, in affirming its divisibility and capacity for modification, in denying to it and rigid quali ty of absoluteness. The result in accordance with what is the essence of the system of mandates and trusteeship is to stress the func tional divisibility of sovereignty and, then, the absence from it, notwithstanding doctrinal logic, of any rigid element of absoluteness. However, it is believed that the recognition by the Court of such situations, involving as they do the separation of some functions and attributes of sovereignty from others, is bound, apart from affirming the relative nature of sover eignty, to be beneficial for the development of internation al law and the peaceful adjustment of territorial and polit ical problems. Unless autonomy and delegated exercise of sovereignty are made distinguishable both in fact and in law from outright cession of territory, it may be 44 difficult to secure for them the place to which they are entitled as an international institution rendering possible territorial arrangements and adjustments short of cession. The convenience of a rigid dichotomy of full sovereignty and the entire absence thereof is probably deceptive." In the fight of authorities on International Law as noted above, and the factual findings noted above, we are of the opinion that the Division Bench came to the correct conclusion that the decision to allow Bangladesh to retain Dahagram and Angarpota under the agreements of 1974 and 1982 would not amount to cession of any part of the territory of India in favour of a foreign State. The Division Bench after examining the record came to the conclusion that both defac to and dejure Dahagram and Angarpota remained part of the East Pakistan and subsequently Bangladesh. If that is the position, then undiputedly there was no question of cession of any part or any territory by the agreements of 1974 and 1982. This is a finding which is factually concluded. We are of the opinion, that it is factually correct, and not dis puted before us by the respondents. The Division Bench next considered whether by reason of the agreement of 1958 between India and Pakistan, which was sanctioned by the Ninth amendment to the Constitution, there was automatic exchange of the Pakistan enclaves in the eastern part of India with the Indian enclaves in eastern Pakistan. The Division Bench did not accept this position. The Division Bench noted that so far as the western border of India and Pakistan is concerned, the agreement of 1958 between India and Pakistan has been given effect to. By an official notification, 17th January, 1961 was appointed as the day for the transfer of the territories of India by way of exchange with the territories of Pakistan in the western region. No further appointed day was notified so far as the eastern border of India was concerned and the provisions of the 1958 agreement so far as the eastern region of India was concerned remained unimplemented. The Division Bench held that there was no automatic transfer of Dahagram and Angar pota to India under the 1958 agreement between India and Pakistan in the absence of a notified appointed day. We are of the opinion that the Division Bench was pre eminently right in the conclusion it arrived. It is not also disputed before us that legally that was the position. Ninth amend ment had not become part of the Constitution as no appointed date was notified. In this connection, reliance may be placed on the decision of this Court in A.K. Roy, etc. vs Union of India & Anr. , ; Consequently, Dahagram and Angarpota remained 45 and still remain part of the territory of East Pakistan and subsequently Bangladesh. This position has been recognised by both the Governments of India and Bangladesh in the two subsequent agreements of 1974 and 1982. In the aforesaid view of the matter, the decision to allow Bangladesh to retain Dahagram and Angarpota does not amount to cession of Indian territory in favour of Bangladesh. This is well settled. The Division Bench has so held in the judgment under appeal. No argument was advanced before us challenging the aforesaid finding. Having regard to the facts found and the position of law, we are of the opinion that the High Court was right in this aspect of the conclusion. The next question that falls for consideration is wheth er the agreement of 1958 between India and Pakistan which was sanctioned by the Ninth Amendment to the Constitution in 1960 became a final treaty binding on India and Bangladesh. It was also accepted that neither India nor Bangladesh has formally terminated the said treaty of 1958 and as such it was contended before the Division Bench that in so far as the provisions of the said agreement of 1958 concern Beru bari Union No. 12 and the Cooch Behar enclaves including Dahagram and Angarpota were concerned, they could not be given a go by in the manner purported to have been done. It appears, as the Division Bench found, that the said agree ment between India and Pakistan in 1958 was never implement ed so far as the border between West Bengal and East Bengal was concerned. The Division Bench held that it was always open to States to enter into new treaties or to vary or modify existing treaties by fresh agreements. To the extent the 1958 agreement between India and Pakistan remained unimplemented, the Division Bench held that it was open to India and Bangladesh to enter into a new treaty and to modify such unimplemented provisions of the earlier treaty and this had been done by the subsequent agreements entered into between India and Bangladesh in 1974 and 1982. Under the said two later agreements, the provision of the earlier agreement of 1958 stood partially modified and superseded. This view was supported by the statement of law by D.P.O 'Connell in 'International Law ', 2nd Edition, Vol. I, pages 272,278 and 279. The Division Bench has so held. We are in agreement with this view. No contrary view was can vassed before us. As mentioned hereinbefore, it is clear from the said agreements of 1974 and 1982 that the transfer of territories which were sanctioned under the Ninth Amendment of the Constitution will not be given effect to. Bernbari No. 12 which was intended to be given to East 46 Pakistan would not be given to Bangladesh and Dahagram and Angarpota which were intended to be transferred to India would be retained by Bangladesh. The question, is, whether to the extent as aforesaid, a further amendment to the Constitution was necessary. The Division Bench was of the view that the subsequent agreements of 1974 and 1982 provid ing for exchange of territories would have to be noted in the relevant Schedules to the Constitution before any ap pointed day could be notified in respect of the territories to be transferred to Bangladesh. This was necessary in order to retain Berubari in India, according to the Division Bench. Learned Attorney General has contended before us that this was not necessary and it was not conceded before the Division Bench that such amendment of the Constitution was called for. We are of the opinion that learned Attorney General is right in his submission. After having perused the entire judgment it appears to us that what the learned Attorney General had conceded before the Division Bench was that if the agreements of 1974 and 1982 amounted to cession of territory that would have required constitutional sanc tion or amendment. In view of the position in International law for the reasons mentioned hereinbefore, the Division Bench has held that there was no cession of territory. If that is the position and we are of the opinion that it is so, and further in view of the fact that no appointed day was notified and the Ninth Amendment to the Constitution has remained a dead letter and had not become effective, no constitutional amendment was required for the arrangements entered into either by the agreements of 1974 and 1982. The Division Bench, in our opinion, was in error in expressing a contrary view. A question had been raised before the Division Bench that as the agreement between India and Bangladesh of 1974 specifically and categorically required ratification, wheth er India and Bangladesh could have entered into the subse quent agreement of 1982 recording their understanding on the earlier agreements regarding Teen Bigha. This point, accord ing to the Division Bench was of little substance. The later agreement of 1982 between India and Bangladesh by itself includes therein certain clarifications. The agreement between two countries might be ratified not only by a subse quent formal agreement but by actual implementation or by conduct and read properly, in our opinion, these two subse quent agreements did ratify the previous agreement. The submission that the agreement between India and Bangladesh of 1974 was a personal treaty between late Smt. Indira Gandhi and Late Sheikh Mujiber Rahaman and by reason of their 47 deaths, the said treaty came to an end, was of no substance was rejected by the Division Bench and was not pressed before us. The agreement of 1974 was a treaty between two sovereign countries, India and Bangladesh and real treaty as understood in International law. The expression 'lease in perpetuity ' used in the two agreements of 1974 and 1982 occurring in the recital is binding on the parties to the said document. Odgers Con struction of Deeds and Statutes had been cited as an author ity in support of this contention. But it has to be borne in mind that the expression 'lease in perpetuity ' has to be understood in the context of and with reference to the objects of the agreements concerned. The meaning attributed to the expression 'lease in perpetuity ' in private law can not be properly imported for the purpose of construing a document recording an agreement between two sovereign States acting as high contracting parties, where neither of them is bound by the private law of the other. For the same reason, it is not necessary to decide whether the said agreements of 1974 and 1982 amounted to or resulted in the grant of a licence by India in favour of Bangladesh under Indian law or within the meaning of the Indian Easement Act. This question has to be examined on the terms and conditions recorded in the said agreements and in the context of International Law to determine what rights are being conferred on the respec tive States thereunder. In that view of the matter, the nomenclature used and the expressions recorded would not by themselves be of much significance. This view is supported by the observations of Ian Brownlie in 'Principles of Public International Law ', 2nd Edition. The use of the expression 'lease in perpetuity ' in the recital of the agreement of 1982 and whether such recital operates as an estoppel against the parties is not of par ticular significance. In any event, the Division Bench held that the recital in a deed could not operate as an estoppel against the specific terms and conditions thereof. On a construction of the agreement, the Division Bench came to the conclusion that the agreements of 1974 and 1982 together in their entirety keeping in view the background must be judged. An important and significant fact in the background of which the said agreements had been entered into between India and Bangladesh was that the two areas Dahagram and Angarpota, now intended to be retained by Bangladesh, were enclaves wholly encircled and enclosed by the territories of India. If Bangladesh had to retain and exercise its sover eignty over these areas, her access to the said areas was imperative and necessary. It is with that object, namely, to allow access to Bangladesh to Dahagram and Angarpota for the purpose of exercise of her sovereignty over and in 48 the said areas, the said agreements had been entered into. It must be understood in that light and appreciated in the background of desire to maintain friendly and neighbourly relationships between two sovereign States. In the agreement of 1974, it was only recorded that India would lease in perpetuity to Bangladesh the said area at Teen Bigha to connect Dahagram and Panbari Mouza of Bangladesh. Terms and conditions of the intended lease were not set out in the agreement of 1974. In the subsequent agreement of 1982, it was clarified by the two Governments as to what would be the said 'lease in perpetuity '. The object of the said lease had again been specifically set out in clause 1 of the agreement of 1982. The other clauses of the said agreement which recorded also the terms and conditions of the transaction have to be understood in the background and context of the said object. In clause 3 of the agreement of 1982, no doubt it was recorded that Bangladesh shall have undisturbed possession and use of the area leased but the said clause also categorically recorded that such possession and use would be for the purposes stated in clause 1. In clause 2 of the agreement of 1982, it was specifical ly recorded that sovereignty over the leased area would continue to vest in India. This meant that Bangladesh would not exercise sovereignty over the said area. This is a specific declaration by the two States and there was no reason why this particular clause should be ignored or overlooked and the effects and implications thereof mini mised. Clause 2 further indicated that under the said agree ment only limited rights were being granted to Bangladesh and not all or all absolute rights over the territory in volved, which would result in the surrender of sovereignty over the area by India. No right to administer the said territory had been given to Bangladesh. The specific rights which had been given to Bangladesh under the said agreements were, inter alia, the right of free and unfettered movement over and across for passage through the leased area. This right would be available to Bangladesh citizens including police, para military, and military personnel who would be entitled to move to the leased area with supply and equip ment including arms without passport or travel documents. A further right of movement of goods over and through the area without payment of customs duties or other similar tax or levy has been conferred by the agreement. Having examined the rights in the agreements, we are of the opinion that this did not amount to lease or surrender of sovereignty as understood in the international law. In the Panama Canal 's case (See Hudson, Cases. Cases & Other Materials on Interna tional Law, 3rd Edition, 1951, pp. 222 3. See also lan Brownlie 's Principles of Public International Law, 3rd Edn., p. 116) a lease was 49 granted to the United States in perpetuity. The United States was given the occupation and control of the area concerned over and below the surface for the construction and protection of the canal. Moveover, the United States was allowed under the lease to exercise over the canal zone all rights, power and authority which it would possess if it were the sovereign of the territory. These are not the terms of the agreement before us. In the instant case, the major right which had been conferred on Bangladesh was the right of free movement over the area. The right of undisturbed possession and use of the area under the agreement of 1982 has to be understood in the context of the right of free movement. It appears to us that it is not possible to hold that Bangladesh would have a right to occupy permanently the area or to construct buildings and fortification therein or to lay railway lines through the area. If such rights are sought to be exercised by Bangladesh in the area, the same would interfere with rights of free movement in the area of Indian citizens and of Indian goods. As the right to free movement over the area by both the countries are being retained or granted, therefore, neither country and in particular, Bangladesh can generally occupy or block any part of the area. The Division Bench held that under the said agreements, specific and limited rights were being granted to Bangladesh. Such rights were not exclusive and the aggregation thereof would not amount to a lease, as is commonly understood in favour of Bangladesh. We are of the opinion that the Division Bench was right in the view it took. A fortiorari, the said transaction did not amount to cession of the said area of Teen Bigha in favour of Bangla desh. Cession as understood in international law would result in an actual and physical transfer of the said area to Bangladesh following which Bangladesh would have the exclusive right to treat the said transferred territory as part of its own territory and exercise full control, domin ion and right over the same. This is not the position or the situation which is contemplated under the agreements. The rights intended to be conferred on Bangladesh under the said agreements, would amount to what is known as "servitude" in International law. Certain restrictions had been imposed on India over its absolute sovereignty in the area to serve purpose in favour of and in the interest of Bangladesh. These are, however, serf imposed restraints. On a proper construction of the agreements of 1974 and 1982 and the individual clauses, it cannot be said that as a result of the said agreements, India had surrendered its sovereignty over the said area of Teen Bigha in favour of Bangladesh or that Bangladesh has become the sovereign over the said territory to 50 the exclusion of India. Sovereignty is a quality of right. It is a bundle of rights. It depends on the facts and the circumstances of each case. Apart from anything else, the specific clause in the agreement of 1982 that sovereignty over the area shall continue to vest in India stands in the way of a contrary construction. This clause distinguishes the concessions in the instant case from the grant in favour of the United States in Panama case (supra), where the United States received all right, powers and authority within the zone of lease which it could possess and exercise if it were the sovereign of the territory leased. The state ments on the relevant aspect of International law in the authoritative text books noted earlier indicated that in the present and modern context sovereignty has and must have a more restrictive meaning that it had in the earlier cen turies when on the emergence of individual national States, no limits on the power of states were acknowledged. See 'Introduction to International Law ' by Strake (supra). Any State in the modern times has to acknowledge and accept customary restraints on its sovereignty inasmuch as no State can exist independently and without reference to other States. Under the general international law the concept of inter dependence of States has come to be accepted. Even without the said agreements of 1974 and 1982, so long as Dahagram and Angarpota remain part of Bangladesh, the latter under the general International law and customs would have a right to access to the said enclave through the territory of India. It is this international practice and customs which has been recognised in the said agreements except that the military, paramilitary and police of Bangladesh with arms, ammunitions and equipments have also been given a right of passage through the area. The concessions given to Bangla desh over the said area might amount to servitudes suffered by India in its territory, as known in international law. See the observations of Oppenheim, 8th Edition, p. 537 538 and also Max Sorensen in Manual of Public International Law, 1968 Edition, which states that the acceptance of servitudes does not represent any negation of sovereignty. The term "servitude" means nothing more than accepted restrictions and grant of servitude does not amount to cession of terri tory. The Division Bench was unable to accept the contention that the use of the expression 'residual jurisdiction ' in clause 9 of the agreement of 1982 indicates that India only retained residual sovereignty over the area and the defacto and real sovereignty in the said area has been surrendered to Bangladesh. The said expression in clause 9 refers to nothing more than the jurisdiction to be exercised by India in respect of incident occurring in the said territory involving law and order, which may or may not amount to. 51 commission of a criminal offence. The fact that certain old disputes between India and Pakistan regarding the said 12 thanas in the Sylhet District of Assam have not been settled with Bangladesh by the said agreements of 1974 and 1982 and that might remain pending is of no relevance to the legality and validity of the said agreements. The Division Bench expressed the view that perhaps the letters of the two countries will take remedial measures. On clause 9, it was submitted that the Bangladesh national committing an offence in the said area of Teen Bigha involving another Bangladesh national would be dealt with by the law enforcing agency of Bangladesh in accordance with the laws of Bangladesh. If the said territory remains a part of the territory of India, then in such cases, the law enforcing agency and the courts in India would not exercise their normal jurisdiction in respect of an offence committed by a Bangladesh national in the territory of India. This may necessitate suitable changes in the laws of India. The Division Bench for the reasons indicated above, made the following order: "The respondents before implementation of the said agree ments of 1974 and 1982 are directed: (a) To amend the Constitution of India suitably so that the Berubari Union is not transferred to Bangladesh along with the other territories as contemplated by the 9th Amendment of the Constitution. The agreements of 1974 and 1982 are directed to be suitably noted or recorded in the relevant Schedules to the Constitution authorising the transfer of the territories to Bangladesh and not Pakistan. (b) To take steps for acquisition and acquire the land owned by Indian Citizens in the said area in accordance with law; (c) To consider and effect suitable amendment of Indian Law and in particular, the Indian Penal Code and the Criminal Procedure Code as presently applicable in the said area of Tin Bigha. The appeals are disposed of as above. There will be no order as to costs. " 52 We are of the opinion that so ' far as clause (a) of the ordering portion of the judgment is concerned, this was not warranted. There was no need to amend the Constitution of India so that the Berubari Union No. 12 is not transferred to Bangladesh along with other territories as contemplated by the Ninth Amendment to the Constitution. Ninth Amendment to the Constitution has not come into effect. Therefore, the agreements of 1974 and 1982 did not require to be suitably notified or included in that official gazette. The Division Bench has held that there was no cession of territory. There was no abandonment of sovereignty and, therefore, no consti tutional amendment was necessary in view of the facts men tioned hereinbefore. Justice Monjula Bose delivered a separate but concurring judgment. She held that sovereignty over the area, in fact, continued to be vested in India. She further held that there was no intention on the part of India to give Bangladesh either occupation or possession of Indian territory as such, but merely "undisturbed possession" and for the express purpose of "connecting Dahagram with Panbari Mouza of Ban gladesh to enable Bangladesh to exercise sovereignty over Dahagram and Angarpota and for no other purpose. We reiter ate the views of the said learned Judge that the complex ities of modern developed societies need peaceful co exist ence, if the world is to survive. Amicable and peaceful settlement of boundary disputes are in the interests of the international community. The older and absolute ideas of sovereignty and independence has thus necessarily to be modified in the dawn of the 21st century. A perpetual right of passage and other incidental rights given to Bangladesh for the limited purpose for exercising the sovereignty over her own two enclaves within the territory of India and/or if imposed restrictions on itself by India does not tantamount to transfer of interest in land. No constitutional amendment was necessary in view of the fact that 9th amendment had not come into effect as there was no appointed day fixed by the Parliament and the principles enunciated by the decision of this Court in A.K. Roy 's case (supra). Learned Attorney General submitted that the Division Bench was in error in directing changes and constitutional amendment as it has purported to do. In A.K. Roy 's case (supra), this Court indicated the contention at p. 272 of the report that the Government would be compelled to exercise its power to issue notification as to at what date the law has to come into effect. There under section 1(2) of the 44th Amendment Act, it shall come into force on such date as the Central Govern ment may, by notification in the Official Gazette appoint and different dates may be appointed for different provi 53 sions of the Act and thus leaving, to the Government to fix date in this case cannot be interfered and since the ap pointed day had not been fixed, the Ninth Amendment has not come into force. In that view of the matter, the directions by the Court to amend the law cannot and should not be given. See in this connection the observations of this Court in State of Hima chal Pradesh & Anr. vs Umed Ram Sharma & Ors., [1986] 2 SCC 68. In State of Himachal Pradesh vs A parent of a Student of Medical College, Simla & Ors., [1985] 3 SCR 676, this Court at p. 684 of the report reiterated that the Court cannot group the function assigned to the executive and the legis lature under the Constitution and cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervi sory role over the law making activities of the executive and the legislature. The Court having held that 9th Amend ment to the Constitution has not come into effect and there being no cession of any part or territory or abandonment of sovereignty, there was no cause to direct the legislature to amend or pass suitable laws. The Division Bench transgressed its limits to that extent. See in this connection the obser vations of this Court in State of Himachal Pradesh vs Umed Ram Sharma, (supra) at pp. 78 and 79 of the report. We are of the opinion that the directions of the Divi sion Bench of the Calcutta High Court to that extent may be deleted in clause (a) of the ordering portion. So far as to take steps for acquisition and to acquire the land owned by Indian citizens in the said area in accordance with laws is concerned, it was wholly unnecessary because there was no land owned by the Indian citizens which was required to be acquired. So far as clause (c) of the ordering portion is concerned, the Government has already taken steps and has agreed to take steps to amend the law. But the implementa tion of the agreements is not dependent on such steps being taken. While we modify the judgment and order of the Division Bench, we must observe that this was really a fight over non issue. The Division Bench categorically held that there was no cession of territory and no lease in perpetuity. If that is so, without the change in the law or change in the Constitution, the agreement should have been implemented fully and we hope that will be done for the restoration of the friendly relations between India and Bangladesh. 54 Before we conclude, we must observe that Mr. Khanduja, counsel for respondent submitted that if the will of the people expressed that such agreement should be implemented then his client has no objection to such implementation. That is the good attitude to adopt. The appeal is disposed of in the aforesaid light and deleting the aforesaid directions of the Division Bench and the appeal is allowed to the extent. There will be no orders as to costs. R.S.S. Appeals disposed of.

The Indian Independence Act, 1947 had set up two inde pendent dominions known as 'India ' and 'Pakistan '. A Bound ary Commission was appointed to determine the boundaries of the two dominions, As a result of its Award, certain areas of India became, after the partition, enclaves in East Pakistan. Similarly, certain East Pakistan enclaves were found in India. Dehagram and Angarpota were two such Pakis tani enclaves in India. In view of the Award, Berubari Union No. 12 was treated as part of the Province of West Bengal. Near about 1952, Pakistan alleged that under the Award the Berubari Union should really have formed part of East Bengal. Eventually, in 1958 the Prime Ministers of India and Pakistan entered into an agreement settling certain boundary disputes. The agreement inter alia provided for the division of Berubari Union No. 12 between India and Pakistan and exchange of Indian enclaves in Pakistan and Pakistan enclaves in India. Doubts arose regarding the implementation of the 1958 agreement. Therefore, in exercise of the powers conferred upon him by clause (1) of Article 143 of the Constitution, the President of India referred the matter to the Supreme Court. In the light of the opinion rendered by the Supreme Court in Re: The Berubari Union and Exchange of Enclaves, 250, the Constitution (Ninth Amendment) Act, 1960 was passed to give effect to the transfer of the terri tories as envisaged in the 1958 agreement. 25 By an official notification, 17th January 1961 had been appointed as the day for the transfer of the territories of India by way of exchange with the territories of Pakistan in the western region. No further appointed day was notified so far as the eastern border of India was concerned. In 1966, writ petitions challenging the validity of the transfer of territories as stipulated in the Ninth Amendment were dismissed by this Court in Ram Kishore Sen & Ors. vs Union of India; , On or about the 16th May, 1974 an agreement was entered into between the Prime Ministers of India and Bangladesh. This agreement inter alia provided that India will retain half of Berubari Union No. 12, which under the 1958 agree ment was to be transferred to Pakistan, and in exchange Bangladesh will retain the Dahagram and Angarpota enclaves. The agreement further provided that India will lease in perpetuity to Bangladesh a small area near 'Tin Bigha ' for the purpose of connecting Dahagram and Angarpota with Pan bari Mouza of Bangladesh. The 1974 agreement, however re mained unimplemented. Thereafter, in October 1982 an understanding was reached between the two governments in respect of 'lease in perpetu ity ' by India of the said area near 'Tin Bigha ' to enable the Bangladesh government to exercise her sovereignty over Dahagram and Angarpota. It was further agreed that the 1982 agreement would be an integral part of the earlier agreement of 1974. It was also agreed that the sovereignty over the leased area shall continue to vest in India. Clause 9 of the 1982 agreement provided that India would have no jurisdiction over Bangladesh nationals in respect of any offence committed in the area, and the same shall be dealt with by the Bangladesh law enforcing agency only. In 1983, Writ Petitions were filed in the Calcutta High Court challenging the validity of the agreement. The learned Single Judge dismissed the writ petitions (Sugandhra Roy vs Union of India, A.I.R. 1983 Cal. The learned Single Judge held that (i) Ninth Amendment in so far as it related to exchange of the enclaves in eastern India had not come into being; (ii) implementation of the agreements of 1974 and 1982 did not involve cession of any Indian territory to Bangladesh; (iii) no exclusive or legal possession of Tin Bigha was being transferred 26 to Bangladesh; (iv) there was no question of transfer of sovereignty of India wholly or partially in respect of the said area; (v) certain privileges only had been conferred on Bangladesh and its nationals under the said agreement which otherwise they would not have; (vi) as Dahagram and Angarpo ta would remain as parts of Bangladesh territory, the agree ments were necessary to enable Bangladesh to exercise its sovereignty in full over the said enclaves; and (vii) in spite of the said agreements India would retain sovereignty, ownership and control over Tin Bigha. Regarding clause 9 of the 1982 agreement, the learned Single Judge held that the conferment of this power under the agreement to Bangladesh and abdication of any such power by India, by itself, did not amount to transfer of sover eignty in respect of the area. The learned Single Judge, however, noted that merely by virtue of the agreement and without any amendment of the existing Indian law it might not be legally possible to take away existing jurisdiction of the law enforcing agencies of India or the Indian courts. An appeal was filed before the Division Bench. It was contended before the Division Bench that (i) the 1974 agree ment specifically provided that the same would be suitably ratified but it had not been ratified; (ii) in the absence of any ratification of the agreement of 1974, India and Bangladesh could not enter into the subsequent agreement in 1982 on the basis of the agreement of 1974; (iii) by reason of the agreement of 1958 between India and Pakistan, which was sanctioned by the Ninth amendment to the constitution, there was automatic exchange of the Pakistani enclaves in the eastern part of India with the Indian enclaves in east ern Pakistan; (iv) neither India nor Bangladesh had formally terminated the treaty of 1958 and as such in so far as the provisions of the said agreement of 1958 concern Berubari union No. 12 and the Cooch Behar enclaves, including Daha gram and Angarpota, they could not be given a go by in the manner purported to have been done, and a further amendment to the Constitution was necessary; and (v) the use of the expression 'residual jurisdiction ' in clause 9 of the agree ment of 1962 indicated that Indian only retained residual sovereignty over the area and the defacto arid real sover eignty in the area had been surrendered to Bangladesh. The Division Bench repelled these contentions. The Bench however was of the view that the agreements of 1974 and 1982 providing for exchange of territories would have to be noted in the relevant schedules to the Constitution before any appointed day could be notified in 27 respect of the territories to be transferred to Bangladesh. According to the Division Bench, this was necessary in order to retain Berubari in India. Disposing of the appeal, this Court. HELD: (1) The Division Bench came to the correct conclu sion that in so far as the eastern border of India was concerned, the Ninth Constitutional amendment had not become part of the Constitution as no appointed day had been noti fied, and in that view of the matter, the decision to allow Bangladesh to retain Dahagram and Angarpota under the 1974 and 1982 agreements did not amount to cession of Indian territory in favour of Bangladesh. [45A B] A.K. Roy, etc. vs Union of India & Anr., [1982] 2 S.C.R. 272: Maganbhai Ishwarbhai Patel vs Union of India & A nr.; , , referred to. (2) The Division Bench was pre eminently right in arriv ing at the conclusion that there was no automatic transfer of Dahagram and Angarpota to India under the 1958 agreement in the absence of a notified appointed day, and consequently both defacto and dejure these enclaves remained part of East Pakistan and subsequently Bangladesh. [44G H] (3) The Division Bench had held that the agreements of 1974 and 1982 did not amount to cession of territory or abandonment of sovereignty. If that is the position, no constitutional amendment was required for the arrangements entered into either by the agreement of 1974 or 1982. The Division Bench was therefore in error in expressing a con trary view. [44B C] (4) In that view of the matter, the agreements of 1974 and 1982 did not require to be suitably notified or included in the official gazette. Therefore, there was no cause to direct the legislature to amend or pass suitable laws. [52B] State of Himachal Pradesh vs Umed Ram Sharma, ; ; State of Himachal Pradesh vs A parent of a Stu dent of Medical College, Simla & Ors., [1985] 3 S.C.R. 676, referred to. (5) The expression 'lease in perpetuity ' has to be understood in the context of and with reference to the objects of the agreement. The object of the lease was to allow access to Bangladesh to Dahagram and 28 Angarpota for the purpose of exercise of her sovereignty over and in the said areas. Having examined the rights in the agreements, these do not amount to lease or surrender of sovereignty as understood in the international law. [47B D] Associated Hotels of India Ltd. vs R.N. Kapoor; , , referred to. (6) The Division Bench rightly held that the recital in a deed could not operate as an estoppel against the specific terms and conditions thereof. On a construction of the agreements, the Division Bench came to the correct conclu sion that the agreements of 1974 and 1982 together in their entirety must be judged. [47F] (7) An agreement between two countries might be ratified not only by a subsequent formal agreement but by actual implementation or by conduct, and read properly, the subse quent agreement did ratify the previous agreement. [46G H] (8) The Division Bench rightly held that under the said agreements, specific and limited rights were being granted to Bangladesh. Such rights were not exclusive and the aggre gation thereof would not amount to a lease, as is commonly understood in favour of Bangladesh. [49D E] (9) Certain restrictions had been imposed on India over its absolute sovereignty in the area to serve the purpose in favour of and in the interest of Bangladesh. These are, however, self imposed restrictions. On a proper construction of the agreements of 1974 and 1982 and the individual clauses, it cannot be said that as a result of the said agreement, India had surrendered its sovereignty over the said area of Teen Bigha in favour of Bangladesh or that Bangladesh has become the sovereign over the said territory to the exclusion of India. [49G H] (10) Sovereignty is a quality of right. It is a bundle of rights. It depends on the facts and the circumstances of each case. Apart from anything else, the specific clause in the agreement of 1982 that sovereignty over the area shall continue to vest in India stands in the way of a contrary construction. [50A B] Panama Canal 's case Hudson Cases & Ors. Materials on international Law, 3rd Edition, 1951 pp 222 3, distin guished. 29 (11) `Sovereignty ' has been defined as "the supreme authority ' in an independent political society. It is essen tial, indivisible and illimitable. However, it is now con sidered and accepted as both divisible and limitable. Sover eignty is limited externally by the possibility of a general resistance Internal sovereignty is paramount power over all action, and is limited by the nature of the power itself. [41E F] (12) In the present and modern context sovereignty has and must have a more restrictive meaning than it had in the earlier centuries when on the emergence of individual na tional States, no limits on the power of States, were ac knowledged. Any State in the modern times has to acknowledge and accept customary restraints on its sovereignty inasmuch as no State can exist independently and without reference to other States. Under the general international law the con cept of interdependence of States has come to be accepted. Even without the said agreements of 1974 and 1982, so long as Dahagram and Angarpota remain part of Bangladesh, the latter under the general international law and customs would have a right to access to the said enclose through the territory of India. [50C E] (13) Amicable and peaceable settlement of boundary disputes are in the interests of the international communi ty. The older and absolute ideas of 'sovereignty and inde pendence has thus necessarily to be modified in the dawn of the 21st century. A perpetual right to passage and other incidental rights given to Bangladesh for the limited pur pose for exercising the sovereignty over her own two en claves within the territory of India and/or if imposed restrictions on itself by India does not tantamount to transfer of interests in India [52E F]

ivil Appeal Nos. 88 to 93 to 1974. From the Judgment and Order dated 10.1. 1973 of t he Bombay High Court in Appeal Nos. 102 to 107 of 1966. Dr. V. Gauri Shankar and Ms. A. Subhashini for the Appe l lants. Nemo for the Respondents. The Judgment of the Court was delivered by 133 PATHAK, CJ. These appeals by special leave raise t he question whether the High Court is right in holding that t he proviso to sub section (1) of section 25 of the Wealth Tax Act cann ot be invoked by the Revenue on the facts of this case. The respondent is assessed in the status of an individ u al under the Wealth Tax Act, 1957, and these appeals rela te to the assessment years 1958 59, 1959 60, and 1960 61 f or which the corresponding valuation dates are 31 March, 195 8, 31 March, 1959 and 31 March, 1960 respectively. The respondent is a share holder in Walchand and Compa ny Private Limited. On each of the three valuation dates s he held 140 shares in the Company. For the purpose of asses s ment under the Wealth Tax Act, the respondent adopted t he valuation of the shares at their break up values with pa id up capital and reserves as there was no market quotation f or those shares. When making the assessment Orders for each of the three assessment years, the Wealth Tax Officer reject ed the valuation of the shares as claimed by the responden t, and estimated their value on the basis of capitalisation of profits at six per cent for the assessment year 1960 61 a nd on the basis of the break up value with certain modific a tions for the assessment years 1958 59 and 1959 60. T he respondent appealed to the Appellate Assistant Commission er of Wealth Tax, and the Appellate Assistant Commission er determined the value of the shares on the basis of capital i sation of the investment income at six per cent and oth er income at twelve and half per cent. He allowed the appea ls of the respondent in part by separate orders dated 10 Nove m ber, 1961. The Commissioner of Wealth Tax preferred appea ls to the Appellate Tribunal on the question relating to valu a tion of the shares. The Appellate Tribunal passed a consolidated order on 23 July, 1963, dismissing the appeals for the three asses s ment years. It observed that the valuation of the shares of the company on the relevant valuation dates determined by two valuers on arbitration in the case of another assess ee should be taken as the valuation in the case of the assess ee also. The value of the shares, the Appellate Tribunal sai d, worked out to an amount much less than the valuation dete r mined by the Appellate Assistant Commissioner, and ther e fore, the question of enhancing the value determined by t he Appellate Assistant Commissioner did not arise. The Appe l late Tribunal did not reduce the values determined by t he Appellate Assistant Commissioner as no appeals had be en filed by the respondent. Meanwhile, however, during the 134 pendency of the appeals before the Appellate Tribunal, t he respondent preferred revision applications on 29 June, 19 62 under subsection (1) of section 25 to the Commissioner of Wealth Tax in respect of the aforesaid assessment years a nd contended that the valuation of the shares adopted by t he Appellate Assistant Commissioner was unreasonable and exce s sive and should be duly modified. The Commissioner made an order dated 12 August, 1964 rejecting the revision applic a tions on the ground that they were incompetent in view of cl. (b) of the proviso to sub section (1) of section 25 of the Ac t. Against that order the respondent filed a writ petition in the High Court of Bombay and contended that the Commission er had erred in dismissing the revision applications as inco m petent. On 10 11 October, 1966 a learned Single Judge of t he High Court allowed the writ petition holding the revisi on applications to be competent, and accordingly directed t he Commissioner to entertain and dispose of the revision appl i cations in accordance with law. The Commissioner appealed to a Division Bench of the High Court and the appeal was di s missed on 10 January, 1973. The relevant provisions of section 25 of the Wealth Tax A ct read as follows: "Powers of Commissioner to revise orders of subordina te authorities. The Commissioner may either of his own moti on or on application made by an assessee in this behalf, ca ll for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to hi m, and may make such inquiry, or cause such inquiry to be mad e, and, subject to the provisions of this Act, pass such ord er thereon, not being an order prejudicial to the assessee, as the Commissioner thinks fit; Provided that the Commissioner shall not revise a ny order under this sub section in any case (a) where an appeal against the order lies to t he Appellate Assistant Commissioner or to the Appellate Trib u nal, the time within which such appeal can be made has n ot expired or in the case of an appeal to the Appellate Trib u nal the assessee has not waived his right of appeal; (b) where the order is the subject of an appe al before the Appellate Assistant Commissioner or the Appella te Tribunal. 135 The High Court has taken the view that cl, (b) of the prov i so to sub section (1) of section 25 of the Act operates as a bar to a revision application by an assessee before the Commission er only where the assessee has also filed an appeal before t he Appellate Tribuanl. According to the High Court, the b ar does not come into operation against an assessee where t he appeal before the Appellate Tribunal has been filed by t he Revenue. It seems to us that the view taken by the Hi gh Court cannot be sustained. Where an appeal is filed befo re the Appellate Tribunal against an order of the Appella te Assistant Commissioner, the impugned order merges in t he order of the Appellate Tribunal when the appeal is dispos ed of on merits. If meanwhile a revision application has be en filed before the Commisioner against the same order of t he Appellate Assistant Commissioner, it will not be open 10 t he Commissioner to pass any order in revision against the ord er of the Appellate Assistant Commissioner as the latter wi ll have merged with the order of the Appellate Tribunal. It is immaterial that the appeal and the revision application ha ve not been filed by the same party. This would be plainly so as in the present case, the subject matter of the appe al before the Appellate Tribunal is the same as that of t he revision application before the Commissioner. Here, t he subject matter of the appeal before the Appellate Tribun al was the valuation of the shares held by the respondent. So it was also in the revision application before the Commi s sioner. In the circumstances, we are unable to agree with t he reasoning adopted by. the High Court. The High Court h as proceeded on the view that it was open to the Commission er to dispose of the revision applications filed by the r e spondents. The High Court, it seems to us, omitted to co n sider that the appeals filed before the Tribunal had be en disposed of, and the impugned order of the Appellate Assis t ant Commissioner must be taken to have merged in the ord er of the Appellate Tribunal. The revision applications, in short, had become infructuous. What the respondent should have done, on coming to kn ow of the filing of the appeal by the Revenue before the Appe l late Tribunal, was to have withdrawn the revision petitio ns filed before the Commissioner and filed her own appea ls before the Appellate Tribunal with an application for cond o nation of delay under sub section (3) of section 24, in case t he period of limitation had expired, and accordingly both t he sets of appeals would have been disposed of by the Appella te Tribunal. In case the respondent came to know of the fili ng of the appeals by the Revenue before the Appellate Tribun al and had not yet applied in revision to the Commissioner s he should not have filed the revision 136 applications but should have preferred her own appea ls before the Appellate Tribunal. It must be noted that t he Appellate Tribunal is a superior body to the Commissione r, as will be clear from sub section (1) of section 26 which provid es that an appeal will lie to the Appellate Tribunal from an order under sub section (2) of section 25 of the Commissioner. The re would have been no difficulty in the Appellate Tribun al considering the appeals of both parties and passing suitab le orders in regard to the valuation of the shares. There is no difficulty now in dealing with such a situation in view of sub section (2A) of section 24. In the case of the other respondents, there is a simil ar history of proceedings with similar orders passed therei n, and this judgment will be considered as disposing of t he appeals filed here in those cases also. In the result, the appeals are allowed and the impugn ed orders of the Division Bench and the Single Judge on t he writ petitions are set aside and the writ petitions a re dismissed. In the circumstances of the case there is no order as to costs. H.L.C. Appeals allowed.

Sub section (1) of section 25 of the Wealth Tax Act, 1957 inves t ing the Commissioner with the power to revise an ord er passed by any authority subordinate to him stipulates in c l. (b) of the proviso thereto that the power of revision sha ll not extend to an order which is the subject of an appe al before the Appellate Assistant Commissioner or the Appella te Tribunal. The respondent, a share holder in a company, adopte d, for the purpose of assessment under the Act, valuation of shares at their breakup values with paid up capital a nd reserves which was rejected by the Wealth Tax Officer w ho estimated their value on the basis of capitalisation of profits for the assessment year 1960 61 and on the basis of the break up value with certain modifications for the a s sessment years 1958 59 and 1959 60. The respondent 's appea ls were partly allowed by the Appellate Assistant Commission er against which the Commissioner of Wealth Tax preferr ed appeals to the Appellate Tribunal. The Appellate Tribun al dismissed the appeals. During the pendency of the appea ls before the Tribunal, the respondent preferred revisi on applications to the Commissioner of Wealth Tax and contend ed that the valuation of the shares adopted by the Appella te Assistant Commissioner was unreasonable and excessive a nd should be duly modified. The Commissioner rejected t he applications on the ground that they were incompetent in view of cl. (b) of the proviso to sub section (1) of section 2 5. Against that order the respondent filed a writ petiti on which was allowed by a Single Judge of the High court hol d ing that the revision applications were competent since t he aforesaid provision would not operate as a bar against an assessee in a case where the appeal before the Appella te Tribunal is filed by the Revenue. An appeal filed again st his order was 132 dismissed by a Division Bench of the High Court. Allowing the appeal, HELD: Where an appeal is filed before the Appella te Tribunal against an order of the Appellate Assistant Commi s sioner, the impugned order merges in the order of the Appe l late Tribunal when the appeal is disposed of on merits. If meanwhile a revision application has been filed before t he Commissioner against the same order of the Appellate Assis t ant Commissioner, it will not be open to the Commissioner to pass any order in revision against the order of the Appe l late Assistant Commissioner as the latter will have merg ed with the order of the Appellate Tribunal. It is immateri al that the appeal and the revision application have not be en filed by the same party. This would be plainly so as in t he present case, the subject matter of the appeal before t he Appellate Tribunal is the same as that of the revisi on application before the Commissioner. [135B D] In this case the High Court omitted to consider that t he appeals filed before the Tribunal had been disposed of, a nd the impugned order of the Appellate Assistant Commission er had merged in the order of the Appellate Tribunal renderi ng the revision applications infructuous. What the responde nt should have done was to file her own appeals before t he Appellate Tribunal. It must be noted that the Appella te Tribunal is a superior body to the Commissioner, as is cle ar from sub section (1) of section 26 which provides that an appeal sha ll lie to the Appellate Tribunal from an order under sub section ( 2) of section 25 of the Commissioner. There would have been no difficulty in the Appellate Tribunal considering the appea ls of both parties and passing suitable orders in regard to t he valuation of the shares. [135F G; 136A B]

Appeal No. 1040 of 1965. Appeal by special leave from the judgment and order dated November 11, 1963 of the Allahabad High Court in First Appeal No. 60 of 1960. C. B. Agarwala and 0. P. Rana, for the appellant. J. P. Goyal and Raghunath Singh, for the respondents. The Judgment of the Court was delivered by Hegde, J. This appeal by the Collector of Varanasi by special leave under article 136 of the Constitution, is directed against the decision dated 11 11 1963 of the High Court of Judicature at Allahabad, in First Appeal No. 60 of 1960 on its file, which in its turn arose from the award made by Shri section B. Malik, District Judge, Varanasi, in certain land acquisition proceedings under cl. (b) of sub section (1) of s . 19 of the Defence of India Act, 1939 (to be hereinafter referred to as the Act). Before considering the contentions urged on behalf of the parties, it is necessary to set out the salient facts. For the purpose of constructing the Babatpur aerodrome near Varanasi, the Government acquired in the year 1946 about 500 acres of land. Compensation in respect of most of the lands acquired was settled by agreement. But in respect of the lands with which we are concerned in this appeal, 48.01 acres in extent, no settlement was arrived at. Therefore, the question of compensation in respect of those lands was referred to the arbitration of Shri section B. Malik under cl. (b) of sub section (1) of section 19 of the Act. In view of section 19(1)(e), the claimants were entitled to get as compensation the market value of those lands as on the date of acquisition. Before the arbitrator as well as the High Court, the parties were agreed that on the material on the record, the market value in question had to be fixed either on the basis of the sale deeds produced by the claimants or by capitalising the annual profits accruing from those lands. The arbitrator rejected the sale deeds produced before him. He adopted the method of capitalising the annual profits. On the question of annual profits also he rejected the evidence adduced on behalf of the claimants. He determined the same on the basis of the revenue 374 records for Fasli 1355 read with the evidence of the Naib Tehsildar, Jawal Prasad. Aggrieved by the decision of the arbitrator, the claimants went up in appeal to the High Court of Allahabad under section 19(1)(f). The High Court differed from the arbitrator as to the value to be attached to the sale deeds produced. It opined that the sale deeds produced were reliable and that they evidenced genuine transactions. The High Court fixed the compensation payable on the basis of Exh. A 42 dated 3 4 1951. The arbitrator had fixed the compensation at Rs. 26,454 12 0. The High Court enhanced the same to Rs. 90,446 3 0. It is against that decision that the Collector of Varanasi has filed this appeal after obtaining special leave from this Court under article 186. Shri Goyal, learned counsel for the respondents has raised the preliminary objection that no special leave could have been granted by this Court under article 136 as the judgment appealed against was neither that of a court nor of a tribunal. According to him, the High Court while acting under section 19(1)(f) was a persona designata and not a court or a tribunal. His argument on this question proceeded thus: Sec. 19(1)(b) of the Act empowers the Central Government to appoint as arbitrator a person qualified to be appointed a judge of the High Court; Shri Malik who possessed the required qualifications was appointed by the Central Government to act as an arbitrator; it is true that Shri Malik was District Judge of Varanasi at the time of his appointment, but in law it was not necessary that the person appointed should have been a District Judge, and much less the District Judge of any particular District; therefore, Shri Malik acted as a designated person and not as a court; hence, the award given by him cannot be considered either as a judgment or as a decree or order; it was merely an award; when the matter was taken up in appeal to the High Court, the proceedings did not cease to be arbitration proceedings; its original character continued even before the High Court; therefore, the decision made by the High Court should also be considered as an award and further the High Court in making that award should be considered as having functioned as an arbitrator. In this case, it is not necessary to go into the question whether the decision of the High Court is a decree, judgment or final order. Even according to Shri Goyal, the decision of the High Court is a 'determination ' as contemplated in article 136. That position he had to concede in. view of the decision of this Court in Engineering Mazdoor Sabha and another vs The Hind Cycles Ltd.(1). In support of his contention that the High Court while acting under section 19 (1)(f) was not functioning as a court, he placed strong reliance on the decision of this Court in Hanskumar Kishanchand vs Union of India(2). That case dealt with two cross appeals arising from a decision of the Nagpur High Court under section 19(1)(f). Those appeals were brought on the strength of the certificates issued (1) [1963] Supp. ; 1 S.C.R. 625(2) 375 by the High Court on 25th August 1949 under sections 109 and 110 of the Civil Procedure Code. In those cases it was con tended that the appeals were not maintainable for two reasons viz. (a) the decision appealed against is neither a decree judgment or final order and (b) the decision in question was not that of a court. This Court upheld both these contentions. On the second ground taken, Venkatarama Aiyar, J., who spoke for the Court, observed thus: "Under the law no appeal would have lain to the High Court against the decision of such an arbitrator. Thus, the provision for appeal to the High Court under section 19 (1)(f) can only be construed as a reference to, it as an authority designated and not as a court. " If the conclusion that the appeal under section 19(1)(f) is only a reference to an authority designated and not an appeal to a court is correct then there is no doubt that this Court could not have granted special leave under article 136. Therefore the real question is whether that decision lays down the law correctly when it stated that a High Court while acting under section 19(1)(f) is not functioning as a court. There was no dispute that the arbitrator appointed under section 19(1)(b) was not a court. The fact that he was the District Judge, Varanasi, was merely a coincidence. There was no need to appoint the District Judge of Varanasi or any other District Judge as an arbitrator under that provision. 19(1)(f) provides for an appeal against the order of the arbitrator. The section reads : "An appeal shall lie to the High Court against an award of an arbitrator excepting in cases where the amount thereof does not exceed an amount prescribed, in this behalf by rule made by the Central Government. " It is not in dispute, that in the instant case, the amount fixed by the arbitrator exceeded the amount prescribed by the rules and therefore the claimants had a right to go up in appeal to the High Court. We were informed that neither the Act nor the rules framed thereunder, prescribe any special procedure for the disposal of appeals under section 19(1)(f). Appeals under that provision have to be disposed of just in the same manner as other appeals to the High Court. Obviously after the appeal had reached the High Court it had to be determined according to the rule of practice and procedure of that Court. The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. This rule was stated by Viscount Haldane L. C. in National Telephone Co., Ltd. vs Postmaster General(1) thus: "When a question is stated to be referred to an established Court without more, it, in my opinion, imports (1) 376 that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches. " This statement of the law was accepted as correct by this Court in National Sewing Thread Co., Ltd., vs James Chadwick and Bros. Ltd.(1). It may be noted that the appeal provided in section 19(1)(f) is an appeal to the High Court and not to any Judge of the High Court. Broadly speaking, Court is a place where justice is judicially administered. In Associated Cement Companies Ltd. vs P. N. Sharma and another(2) Gajendragadkar, C.J., speaking for the majority observed: "The expression 'court ' in the context denotes a tribunal constituted by the State as a part of the ordinary hierarchy of courts which are invested with the State 's inherent judicial powers. A sovereign State discharges legislative, executive and judicial functions and can legitimately claim corresponding powers which are described as legislative, executive and judicial powers. Under our Constitution, the judicial functions and powers of the State are primarily conferred on the ordinary courts which have been constituted under its relevant provisions. The Constitution recognises a hierarchy of courts and to their adjudication are normally entrusted all disputes between citizens and citizens as well as between the citizens and the State. These courts can be described as ordinary courts of civil judicature. They are governed by their prescribed rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process. The powers which these courts exercise. , are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions. " The hierarchy of courts in this country is an organ of the State through which its judicial power is primarily exercised. The fact that the arbitrator appointed under section 19(1)(b) is either a designated person or a tribunal as to whether he is a person designated or a tribunal we express no opinion does not in any way bear on the question whether the 'High Court ' referred to under section 19(1)(f) is a court or not. Our statutes are full of instances where appeals or revisions to courts are provided as against the decisions of designated persons and tribunals. See for example, Advocates Act, Trade Marks Act. Reference in this connection may usefully be made to the decisions in National (1) ; , (2) ; , 377 Sewing Thread Co., Ltd. vs James Chadwick and Bros., Ltd.(1) and the Secretary of State for India in Council vs Chelikani Rama Rao and others(2) Prima facie it appears incongruous to hold that the High Court is not a 'court '. The High Court of a State is at the apex of the State 's judicial system. It is a court of record. It is difficult to think of a High Court as anything other than a 'court '. We are unaware of any judicial power having been entrusted to the High Court except as a 'court '. Whenever it decides or determines any dispute that comes before it, it invariably does so as a 'court '. That apart, when section 19(1)(f) specifically says that an appeal against the order of an arbitrator lies to the High Court, we see no justification to think that the legislature said something which it did not mean. We may now turn our attention to the decision of this Court in Hanskumar Kishanchand vs Union of India(3) on which, as mentioned earlier, Shri Goyal placed a great deal of reliance in support of his preliminary objection. The principal question that arose for decision in that case was whether the decision rendered by the High Court under section 19(1)(f) was a judgment, decree or final order within the meaning of those words found in section 109 of the Code of Civil Procedure. The Court accepted the contention of the Solicitor General appearing for the respondent, the Union of India, that it was not a judgment, decree or final order, and that being so, no certificate under sections 109 and II 0 of the Code of Civil Procedure to appeal to the Federal Court could have been given by the High Court. In that case this Court was not called upon to consider the scope of article 136. Therefore, it did not go into the question whether the decision appealed against could be considered as a determination falling within the scope of article 136. In arriving at the conclusion that the decision in question is not a judgment, decree or final order, this Court relied on the decisions in Rangoon Botatoung Co. vs The Collector, Rangoon(4), Special Officer, Salsette Building Sites vs Dossabhai Bazonji Motiwala(5). Manavikraman Tirumalpad vs Collector of Nilgris(6), and Secretary of State for India in Council vs Hindustan Co operative Insurance Society Limited(7). The effect of those decisions is summed up in that very judgment at pp. 1186 and 1187, and this is how it is put: "The law as laid down in the above authorities may thus be summed up: It is not every decision given by a Court that could be said to be a judgment, decree or order within the provisions of the Code of Civil Procedure or the Letters Patent. Whether it is so or not will depend on whether the proceeding in which it was given came before (1) (2) 43 I.A. 192 (3) ; (4) 39 I.A. 197 (5) (6) I.L.R. (7) 58 IA. 378 the Court in its normal civil jurisdiction, or dehors it as a persona designata. Where the dispute is referred to the Court for determination by way of arbitration as in Rangoon Botatoung Company vs Collector, Rangoon (39 I.A 197), or where it comes by way of appeal against what is statedly an award as in The Special Officer Salsette Building Sites vs Dossabhai Bezonji (ILR , Manavikraman Tirumalpad vs The Collector of the Nilgris (ILR , and the Secretary of State for India in Council vs Hindustan Co operative Insurance Society Limited (58 IA 250), then the decision is not a judgment, decree or order under either the Code of Civil Procedure or the Letters Patent. " The decisions relied on by this Court merely lay down the proposition that the decision given by the High Court in an appeal against an award is neither a decree, judgment or final order. None of the aforementioned decisions lays down the 'proposition that the High Court while exercising its appellate power did not function as a 'court '. The observation in this Court 's judgment that the provision for appeal to the High Court under section 19(1)(f) can only be construed as reference to it as an authority designated and not as a court, does not receive any support from those decisions. Nor do we find any sound basis for that conclusion. With respect to the learned Judges who decided that case, we are unable to agree with that conclusion. In our judgment, while acting under section 19(1)(f), the High Court functions as a 'court ' and not as a designated person. Our conclusion in this regard receives support from the decision of the Judicial Committee in Secretary of State for India in Council vs Chelikani Rama Rao(1) and others referred to earlier. Dealing with the ratio of its decision in Rangoon Botatoung Co. case(2), this is what Lord Shaw of Dunfermline observed (at p. 198 of the report): "It was urged that the case of Rangoon Botatoung Co. vs The Collector, Rangoon(2) enounced a principle which formed a precedent for excluding all appeal from the decision of the District Court in such cases as the pre sent. Their Lordships do not think that that is so. In the Rangoon Case a certain award had been made by the Collector under the Land Acquisition Act. This award was affirmed by the Court, which under the Act meant "a principal civil Court of original jurisdiction. " Two judges sat as 'the Court ' and also as the High Court to which the appeal is given from the award of 'the Court '. The proceedings were however, from beginning to end ostensibly and actually arbitration proceedings. In view of the nature of the question to be tried and the pro (1) 43 I.A. 192. (2) 39 I.A. 197. 379 visions of the particular statute, it was held that there was no right 'to carry an award made in an arbitration as to the value of land ' further than to the Courts specifically set up by the statute for the determination of that value. " We have already come to the conclusion that the decision rendered by the High Court under section 19(1)(f) is a 'determination '. Hence, it was within the competence of this Court to grant special leave under article 136. But then it was urged on behalf of the respondents that in view of r. 2, 0.13 of the Rules of this Court, as it stood at the relevant point 'of time, this Court could not have granted special leave as the appellant had not applied for necessary certificate under article 133 of the Constitution. In support of this contention, reliance was placed on the decision of this Court in Management of the Hindustan Commercial Bank Ltd., Kanpur vs Bhagwan Dass(1). Under article 133, a certificate can be asked for filing an appeal against the judgment, decree or final order of a High Court. As seen earlier, this Court ruled in Hanskumar Kishanchand vs Union of India(2) that the decision rendered by the High Court under section 19(1)(f) is not a decree, judgment or final order. Hence, the provisions of article 133 are not attracted to the present case. Consequently, this case is taken outside the scope of the aforementioned r. 2 of Order 13. As a measure of abundant caution, the appellant has filed CMP 2325 of 1967, praying that this Court may be pleased to excuse him from compliance with the requirements of 0.13, r. 2. In view of the decision of this Court in Hanskumar Kishanchand vs Union of India(2), no useful purpose would have been served ' by the appellant 's applying for a certificate under article 133. Hence, even if we had come to the conclusion that the case falls within the scope of 0. 1 3, r. 2, we would not have had any hesitation in exempting the appellant from compliance with the requirement of that rule. This takes us to the merits of the case. The grievance of the appellant is that the High Court erred in law in awarding compensation on the basis of Exh. The sale evidenced by that deed was effected in the year 1951, nearly five years after the acquisitions with which we are concerned in this case were effected. The sale in question cannot be considered as a contemporaneous transaction. The arbitrator has found that after the close of the second world war, the price of landed property had gone up steeply. This finding does not appear to have been challenged before the High Court. Further, under the deed in question, the land sold was .26 acres in extent. The price fetched by such a tiny bit of land is of no assistance in determining the value of the lands acquired. On behalf of the respondents, we were asked to determine the compensation of the lands acquired on the basis of sale deed Exh. 35 which relates to a sale that took place on 10 6 1947 (1) ; (2) ; 380 which according to the respondents can be considered as a contemporaneous sale. We are unable to accept this contention. 35 relates to the sale of land measuring .28 acres. The vendee under that deed is one of the claimants. There is no evidence as to the nature of the land sold under that deed. Under these circumstances, very little value can be attached to that document. We are also of the opinion that none of the sale deeds produced in this case can afford any assistance in determining the compensation payable to the respondents. They do not evidence sales of lands similar to the acquired lands, at about the time of the acquisition. The High Court did not address itself to the oral evidence adduced in this case for finding out the annual profits for the purpose of capitalisation. It rejected the evidence of the Naib Tehsildar. For reasons not disclosed. the village papers of 1354 fasli were not produced by the appellant. On the other hand, the village papers of 1355 fasli were produced. In the first place, those records do not show the rent payable in the year in which the acquisitions took place. The acquisitions in question were made in fasli 1354. For the reasons mentioned in its judgment, the High Court felt un able to place reliance on the village papers of fasli 1355. We do not think that this Court should scan the evidence afresh for determining the just compensation payable. to the respondents. That question has to be gone into by the fact finding court. All that we need say is that the High Court was not right in determining the compensation payable to the respondents on the basis of Exh. Hence its decision cannot be sustained. For the reasons mentioned above, we allow this appeal and set aside the decision of the High Court and remit the case back to that Court for disposal according to law. Before deciding the case afresh the High Court will permit the parties, to adduce additional evidence on the question of compensation; in particular, they will be allowed to produce and prove contemporaneous sale deeds and the revenue records relating to fasli 1354. Costs of this appeal shall be costs in the cause. R.K.P.S. Appeal allowed.

The Government acquired about 500 acres of land from the respondents under the Defence of India Act, 1939, and a settlement was reached in respect of the compensation to be paid for all except about 48 acres of the land. The question of the compensation payable for the remaining land was referred to arbitration under section 19(1)(b) of the Act to be determined in accordance with section 19(1)(e) which entitled the respondents to compensation at the market value of the land. The arbitrator considered various sale deeds produced before him but rejected these and fixed the compensation by capitalising the annual profits from the lands. In an appeal against his award by the respondents under section 19(1)(f) of the Act, the High Court differed from the Arbitrator and enhanced the compensation payable by fixing it on the basis of a sale deed exhibited before the arbitrator. In appeal to the Supreme Court by special leave given to the appellant Collector, it was contended on behalf of the respondents by way of a preliminary objection that no special leave could have been granted by the Court under article 136 as the judgment appealed against % ,as neither that of a court nor of a tribunal; the High Court while acting under section 19(1)(f) was a persona designata and not a court or a tribunal; proceedings before the arbitrator appointed by the Central Government under section 19(1)(b) were arbitration proceedings leading to an award made by him, when the matter was taken up in appeal to the High Court, the appeal proceedings did not cease to be arbitration proceedings and their original character continued so that the decision made by the High Court should also be considered as an award and the High Court considered as having functioned as an arbitrator. Held: (i) While acting under section 19(1)(f), the High Court functions as a 'court ' and not as a designated person. [378E] Hanskumar Kishanchand vs Union of India, ; , disapproved. The High Court of a State is at the apex of a State 's judicial system. It is a court of record and it is difficult to think of a High Court as anything other than a 'court '. No judicial power was ever entrusted to the High Court except as a 'court ' and whenever it decides or determines any dispute that comes before it, it invariably does so as a 'court '. That apart, when section 19(1)(f) specifically says that an appeal against the order of an arbitrator lies to the High Court, there was no justification. for thinking that the legislature 373 said something which it did not mean. Furthermore, neither the Act, nor the rules framed thereunder prescribe any special procedure for the disposal of appeals under section 19(1)(f) and appeals under that provision have to be disposed of in the same manner as other appeals to the High Court according to its own rules of practice and procedure. [375F G. 377B C] Case law referred to. (ii) On the facts, the High Court was not right in determining the compensation payable on the basis of the one sale deed as this could not be considered a contemporaneous transaction; the decision of the High Court must therefore be set aside and the case remitted to that court for disposal according to law after giving the parties an opportunity to adduce fresh evidence. [380D E]

ition No. 11222 of 1983. (Under article 32 of the Constitution of India) Soli J. Sorabjee, Gopal Subramanyam, L. P. Agarwala, R. P. Singh, N. P. Agrwala and V. Shekher for the Petitioner. F. section Nariman, Rathin Das for Respondent Nos. 1 & 2. section N. Kacker, D. K. Sinha and J. R. Das for Respondent No. 3. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an application under article 32 of the Constitution of India. Notice was issued and the respondents have filed counters and have made submissions on the application. The petitioner is the lessee of the premises No. 7/1 A D Lindsay street, Calcutta which is situated in an important commercial locality of Calcutta. The ground floor and mezzanine floor of premises No. 7/1 D, Lindsay Street, Calcutta were requisitioned by Government of West Bengal by order of requisition No. 21/58 Reqn. dated 25th February, 1958 which was substituted by requisition order No. 123/60 Reqn. dated 10th November, 1960 issued under the West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947, hereinafter called the said Act for establishing main Sales showroom of respondent No. 4 herein which is the West Bengal Handicraft and development Corporation Limited (a West Bengal Government undertaking). The area under requisition is 2521 sq. ft on ground floor and 1677 sq. on mezzanine floor aggregating to 4198 sq. The rent compensation payable under the said Act was fixed by the Land Acquisition Collector, Calcutta on or about 31st March, 1959 at Rs. 1, 450 per month inclusive of taxes and repairs with effect from 10th June, 1958 which was ultimately modified to Rs. 2,500 per month by the High Court of Calcutta. It is alleged on behalf 689 of the petitioner that in fixing the monthly compensation for acquisition by Land Acquisition Collector, the High Court in appeal took into consideration the rate prevailing in the year 1958, being the year in which the requisition took place. A showroom of respondent No. 4 has been set up there. The contention of the petitioner is that from the very beginning the State Government had the intention of keeping the said requisitioned premises permanently. The petitioner contends that the State Government had ample power to acquire the said property under the Land Acquisition Act at the time of issue of order of requisition. In spite of power to acquire the premises in question, the State Government resorted to requisition the same with the intention of permanently acquiring property in an indirect manner thereby the State Government has acted in improper exercise of powers and authority and has not exercised the power bonafide, alleges the petitioner. The petitioner further alleges that the object is clearly to avoid the obligation to pay reasonable compensation for acquisition and instead thereof continue occupying the area by paying nominal monthly rent as compensation. Therefore, according to the petitioner, the order of requisition has been passed for extraneous purpose and is arbitrary and malafide. The petitioner also alleges that according to the present letting value prevailing in the market, the value would be over Rs. 43,668 approximately per month. We are, however, in this application not concerned with that controversy. The petitioner has submitted that requisition can be for temporary period and for a temporary purpose, and the State Government under the garb of requisition has really acquired the property and has avoided the obligation to pay compensation for acquiring the property which will be over Rs. 29 lakhs. According to the petitioner, the West Bengal Act of 1947 which was intended to remain in force for a short temporary period does not contain any provision for revision of rent. The said Act came into force on or about 1st January 1948. The said Act contains no provision for acquisition of any property but deals solely with requisition of property for making temporary provision. The said Act by various Acts has been renewed from time to time, the last of such renewal as per averments has been extended upto 31st March, 1985. It is further the case of the petitioner that the said 690 Act cannot be converted into a permanent Act and there cannot be a permanent requisition. According to the petitioner, by this process the property in question has been kept under requisition for 25 years. This, it was submitted, is a fraud upon the power. According to the petitioner, the State Government had the option of acquisitioning the property. The State Government had also full knowledge that the possession of the said area was required for a permanent purpose or at least for an indefinite period i.e. for setting up a show room and in spite of the same did not choose to acquire the property but arbitrarily issued the order of requisition under the said Act. Petitioner states a that he requires the premises in question to carry on his own business and the said right is being interfered with and therefore infringes upon petitioner 's fundamental right. The petitioner contends that it violates both article 14 and article 19(1)(g) of the Constitution. There are various allegations about damages being done to the premises in question. We are not concerned in this application with the said allegations. The petitioner prays for an order of derequisition of the premises. On behalf of the respondents, the main contention is that the said Act has been renewed from time to time and there is no limitation to the power of requisition except that the same must be for public purpose. According to the respondents, the purpose in this case is indubitably a public purpose and that public purpose remains. The respondents contend that there is no limitation on the exercise of that power. On behalf of the applicant, reliance was placed on the decision of this Court in H. D. Vora vs State of Maharashtra and Ors. (Civil Appeal No. 1212 of 1984) judgment delivered by my learned brother Bhagwati to which I was a party. There the question as was posed by Bhagwati, J. was whether an order of requisition of premises can be continued for an indefinite period of time or it must necessarily be of temporary duration. The case discussed the other contention and repelled the attack on the order of requisition on the ground that the order of requisition did not set out the public purpose for which it was made. It was noted by us in the 691 decision of H. D. Vora that the High Court had held that no material was placed before it to show what was the public purpose for which the order of requisition was made and in fact there was no denial on the part of the state government or the appellant of the averment made on behalf of the third respondent that the appellant in that case was neither a government servant nor a homeless person for whom the order of requisition was purported to have been made. We found that the view taken by the High Court was well founded and it was not possible to hold on the material before us that the order of requisition was made for public purpose. On behalf of the appellant, however it was contended that the order of requisition in that case was challenged after a lapse of over 30 years and as such that challenge was liable to be dismissed but this Court in Vora 's case relied on another ground namely, that an order of requisition was by its very nature temporary in character and could not endure for an indefinite period of time in the facts of that case, and the order of requisition in that case therefore ceased to be valid and effective after the expiration of a reasonable period of time and that it could not, under any circumstance, continue for a period o over 30 years. Brother Bhagwati noted the difference recognised by law between "requisition" and "acquisition" and it was further stressed that where acquisition under Land Acquisition Act, 1894 was possible, the Government under guise of requisition could not continue to use the property under requisition for an indefinite period of time thereby in substance. acquiring the property because that would be misuse by the Government of its powers. It was observed in that case that if the Government wanted to take over the property for an indefinite period of time, the government should acquire the property but it could nor use the power of requisition for achieving that object. In those circumstances it was observed that the power of requisition was exercisable by the government only for a public purpose which was of transitory character, if the public purpose for which the premises were required was a perennial one or of permanent character from the very inception, no order could be passed requisitioning the premises and in such a case the order of requisition if passed would be fraud upon the statute, for the government would be requisitioning the property when really speaking it wanted the property for acquisition, the object of taking the property being not transitory but permanent and in such circumstances it was held that an order of requisition for a period of such a long time as 30 years as it had happened in that case made the order of requisition 692 bad. Relying mainly on the aforesaid basis and the facts alleged in this case, on behalf of the petitioner it was urged before us that the order of requisition was bad and arbitrary. On behalf of the respondents, however, attention was drawn to a decision of this Court in the case of Collector of Akola and Ors. vs Ramachandra & Ors a decision of a Bench of three learned judges, There, the land owned by the respondents was requisitioned under the Bombay Land Requisition Act for a public purpose viz,, for establishing a new village site to resettle victims of flood. The respondents filed a writ petition in the High Court challenging the validity one extended until then upto 1963, the power to requisition thereunder would be with the government only during the time that it subsisted: so an order passed for a permanent purpose could not be in the contemplation of the Act. The High Court accepted the objection and quashed the order. It was held by this Court in appeal that the power of requisition under the Act could be exercised whether the public purpose was temporary or not and the exercise of that power for the purpose of rehabilitation of flood sufferers was neither in abuse of the power nor unjustified under the Act. The words "for any public purpose" in Section 2(1) were wide enough to include any purpose of whatever nature and did not contain any restriction regarding the nature of that purpose. It placed no limitation on the competent authority as to what kind of public purpose should be for the valid exercise of its power nor did it confine the exercise of that power to a purpose which was of temporary nature. The Court observed that there was no antithesis between the power to requisition and the power of compulsory acquisition under Land Acquisition Act. Neither of the two Acts contained any provisions under which it could be said that if one was acted upon, the other could not be. In that case the facts were that the government made an order of requisition under temporary Act for rehabilitating the flood victims and also initiated proceedings under the Land Acquisition Act 1 of 1894 in respect of those very lands and issued a notification under Section 4 thereof. It was contended that the action of the government was bad. The only question which was argued in that case was whether an order of requisition could be made for a permanent purpose. 693 The order of requisition in that case was challenged on the ground that the purpose for which the order of requisition was made, namely rehabilitation of flood affected victims, was a permanent purpose and the order of requisition was therefore bad from its inception, since an order of requisition could be made only for a temporary purpose. The argument of the petitioner who challenged the order of requisition was, inter alia, that the competent authority had no power to invoke the Land Requisition Act inasmuch as the purpose for which it was exercised was of a permanent character. This argument appealed to the High Court and the High Court held that the order of requisition was "unjustified under the Bombay Land Requisition Act". It was only this argument which was considered by this Court and this is how this Court formulated in that case the question for its decision: "The only question arising in this appeal thus is whether the Act authorises an order of requisitioning even if the purpose for which it is made is not a temporary purpose ?" This Court held that the only restriction imposed by the statute on the power of requisition conferred on the State Government was that this power could be exercised " Only for a purpose which is a public purpose" and "on the face of it the sub section does not contain any express limitation to the power to requisition, the only limitation being that an order thereunder can be passed for a public purpose only" and there is no implied limitation that the requisitioning authority has no power thereunder to pass an order where the purpose is not temporary". This Court said that the premises requisitioned "may be used for a temporary purpose or for a purpose which is not temporary in nature", and added that the power of requisition is not" restricted to a temporary purpose only". No question was raised before this Court in that case as to whether an order of requisition can continue for an indefinite duration. The argument before this Court in H.D. Vora 's case was not that the order of requisition was initially bad, when made, on the ground that it was for a purpose which was a permanent purpose. It fact, no one contended that the purpose of housing homeless person was not a temporary purpose but a permanent purpose and therefore the order of requisition was bad. The principal argument advanced was that though the order of requisition was good when made, it ceased to be valid and effective, because it could not legitimately be continued for an indefinite length of time. The order of requisition in that case had been allowed to continue for a period of almost 30 years and that is why this Court said that the order of requisition had ceased to be 694 valid and effective and the premises must therefore be derequisitioned. It is no doubt true that some observations have been made in the judgment in that case with regard to the permanent or temporary character of the purpose for which an order of requisition could be made and to that extent what is said in that judgment may have to be slightly modified, but the principal decision in that case was that an order of requisition is by its very nature temporary in character and cannot be allowed to continue for an indefinite length of time, because then it would tantamount to an order of acquisition and would amount to a fraud on the exercise of the power of requisition, especially where there is no impediment in making the acquisition and no effort was made to acquire, must be regarded as a correct enunciation of the law which does not in any way conflict with what was laid down in the case of Collector of Akola vs Ramachandra (supra). The latter decision merely laid down that an order of requisition can be made for a permanent purpose while the for mer dealt with a totally different question, namely, whether, whatever be the character of the purpose for which an order of requisition was made, the question was, could the order of requisition be continued for an indefinite length of time and it was held that the order of requisition would cease to be valid and effective after the expiration of a reasonable period of time, even if it was valid when made, and what, in the circumstances of a given case would be a reasonable period of time would depend on the facts and circumstances of the case. There is therefore no contradiction between the decision in Collector of Akola vs Ramachandra and the latter decision in H.D. Vora 's case. It may not be inappropriate to note that there are significant differences between 'requisition ' and 'acquisition '. These have different legal consequences and these affect the owners concerned in different manners. But the State has the power both of requisition as well as acquisition, subject to one condition, i.e., the property acquired or requisitioned must be for public purpose. In the "Words and Phrases Judicially Defined" by Roland Burrows K.C. Vol. 4 at p. 562, it was observed that the word 'requisition ' was not a term of art and does not cannot the same state of things in every particular case. In the Fourth Edition of Stroud 's Judicial Dictionary at page 2355, it has been mentioned that 'requisition ' is as follows: 695 "Requisitioning ' is not a term of art and has different meanings. Its usual meaning is nothing more than hiring without taking the property out of the owner although the owner has no alternative whether he will accept the proposition of hiring or not. It may, however, involve the taking over of the actual domination of a chattel (The Steaua Romana (1944) P.43). "Requisitioned house"; "requisitioned land" Stat. Def., Requisitioned Houses and Housing (Amendment) Act 1955 (c.24), section 18 (1). " In the case of Mangilal Karwa vs State of Madhya Pradesh, it was observed as follows: "If the term 'requisition ' has acquired any technical meaning during the two World Wars it has been used in for the sense of taking possession of property for the purpose of the State or for such purposes as may be specified in the statute authorizing a public servant to take possession of private property for a specified purpose for a limited period in contradistinction to acquisition of property by which title to the property gets transferred from the individual to the State or to a public body for whose benefit the property is acquired. In 'requisition ' the property dealt with is not acquired by the State but is taken out of the control of the owner for the time being for certain specified purposes. Even for this limited purpose, however, the owner becomes entitled to compensation, because 'requisition ' of the property amounts at least to a temporary deprivation of the property." Thus, normally the expression 'requisition ' is taking possession of the property for a limited period in contradistinction to 'acquisition '. This popular meaning has to be kept in mind in judging whether in a particular case, there has been in fact any abuse of the power. Orders of requisition and acquisition have different consequences. These have been noted by this Court in the observations of Mukherjea, 696 J. in the decision in the case in Chiranjit Lal Chowdhury vs The Union of India and Others and the distinction between 'requisition ' and 'acquisition ' is also evident from Entry 42 in List III of the Seventh Schedule. Original Article 31 clause (2) of the Constitution recognised the distinction between 'compulsory acquisition ' and 'requisition ' of the property. The two concepts are different: in one title passes to the acquiring authority, in the other title remains with the owner, the possession goes to the requiring authority. One is the taking over of the title and the other is the taking over of the possession. It was further contended on behalf of the respondents that part of the premises i.e. one room as in the instant case before us, cannot be acquired. Therefore the ratio of the decision in the case of H. D. Vora would not be applicable because there was no power to acquire the premises in question. Secondly, it was urged that the petitioner in the instant case was not the owner of the property at all and the question of acquisition of the requisitioned premises does not arise at all. It was, thirdly, contended that it was not possible in the facts and circumstances of the case to get any other alternative accommodation for the showroom of the State Handicraft and Development Corporation which indisputably is a public purpose. It was emphasised that the West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947 does not contain any power to acquire the premises in question. The main thrust of the argument was that section 49 (1) of the Land Acquisition Act, 1894 provides: "The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desire that the whole of such house, manufactory or building shall be so acquired." In other words it was urged that this provision almost prevents the acquisition of a part of a house or building. It may be pointed out that section 49 (1) of the Act has been amended so far as West Bengal is concerned by the West Bengal of 1955 with effect from 20.10.1955 and the amended section 49 (1) so far as Calcutta is concerned runs thus: "Section 49 (1): The provisions of this Act shall not be put in force for the purpose of acquiring the part only of any house, manufactory or other building, if the acquisition of the part will render the full and unimpaired use of the remaining portion of the house, manufactory or building impracticable. Provided that, if any question shall arise as to whether the part proposed to be acquired will render the full and unimpaired use of the remaining portion of the house, manufactory or building impracticable, the Collector shall refer the determination of such question to the court and shall not take possession of such part until after the question has been determined. In deciding on such a reference the Court shall have regard only to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the remaining portion of the house, manufactory or building. " The aforesaid provision suggests that even a part of a building or a house can be acquired provided the conditions mentioned and the procedure specified therein are followed and there is no absolute bar to the acquisition of a part of a house or a building as suggested by the counsel for the respondents. In view of the decision in the case of H. D. Vora in the light of the decision of this court rendered by Bench of three Judges in Collector, Akola and Ors. vs Ramachandra and Ors. (supra) and bearing in mind the distinction between 'requisition ' and 'acquisition ' as also the provisions of West Bengal amended section 49 (1) (quoted above), the correct position in law would be that it will not be correct to say that in no case can an order of requisition for permanent purpose be made but in a situation where the purpose of requisitioning the property is of a permanent character and where the Government has also the power and the opportunity to acquire the property or a part thereof especially upon the fulfil 698 ment of the conditions of section 49 (1) of the Land Acquisition Act (as amended by the West Bengal Act) to the extent applicable, if the Government chooses not to exercise that power nor attempts to exercise that power to achieve its purpose, then that will be bad not because the Government would be acting without power of requisition but the Government might be acting in a bad faith. In other words, if there is power to acquire as also the power to requisition and the purpose is of permanent nature by having the property or a part thereof for the Government then in such case to keep the property under requisition permanently might be an abuse of the power and a colourable exercise of the power not because the a Government lacks the power of requisition but because the Government does not use the other power of acquisition which will protect the rights and interests of the parties better. Where one is repository of two powers that is power of requisition as well as power of acquisition qua the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned unless the repository of both the powers suffers from any insurmountable disability, user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law. It is true that the purpose indisputably in the instant case is a public purpose. It is also true that the only part of the building namely one room has been requisitioned for the show room but the premises in question has remained under requisition for over 25 years and the purpose of having the premises in question is of a permanent and perennial nature. But that by itself without anything more would not enable the court to draw the inference that the exercise of the power was bad initially, nor would the continuance of the requisition become mala fide or colourable by mere lapse of time. In order to draw such an inference some more material ought to have been placed before the court. In the circumstances after having heard counsel on either side fully we feel that the following would be an appropriate order to be made in the instant case: 1. The impugned requisition order is upheld but the continu 699 ance of the requisition of the premises in question is permitted subject to the conditions mentioned hereinafter. The Government is directed to take steps to acquire premises in question by complying with the conditions mentioned and by following the procedure prescribed in section 49 (1) of the Land Acquisition Act, 1894 as substituted for the State of West Bengal by the West Bengal Act 32 of 1955 and if possible issue an appropriate order acquiring the same if Government wants the continued use of the premises. Such steps should be completed within a period of three years from today. If, however, there are insurmountable difficulties in acquiring the premises under section 49 (1), the Government will be at liberty to apply to this court for appropriate directions. We also hope that the Government would take steps to acquire any alternative property or premises under Land Acquisition Act, 1894 in view of the fact that the purpose of the Government is more or less permanent and such steps should also be taken not beyond a period of three years as aforesaid. If the aforesaid conditions or directions are not complied with, the petitioner will also be at liberty to apply to this court for appropriate directions in accordance with law. In the meantime, the parties are at liberty to make any appropriate application for the enhancement of rent or compensation in accordance with law, if they are so entitled to, and this will also not prejudice the parties from proceeding with any suit for damages etc. that may be pending. The parties will pay and bear their own costs. The application is disposed of accordingly. CIVIL ORIGINAL JURISDICTION: Review Petition No. 641 of 1984. Order in Writ Petition No. 11222 of 1983. dated 15th April 1985 Since it has been brought to our notice (which should have been done when the matter was heard) that the West Bengal Act 32 of 1955 is not applicable to the facts of the case, we direct that any reference to that Act wherever it occurs shall be deleted and in particular, in para 2 of the order portion of our Judgment we delete the words "as substituted for the State of West Bengal by the West Bengal Act of 1955". The rest of the order stands. The Review Petition is disposed of accordingly. S.R. Appeal dismissed.

The petitioner is the lessee of the premises No. 7/1A D, Lindsay Street, Calcutta which is situated in an important commercial locality of Calcutta. The ground floor and mezzanine floor of the said premises were requisitioned by Government for establishing main Sales Show room of respondent No. 4, namely west Bengal Handicrafts and Development Corporation Ltd., by an order of requisition No. 21/58 Regn. dated 25.2.1958 under the West Bengal Premises Requisition and Control (Temporary Provision) Act 1947. Though this Act itself is a temporary Act, this has been renewed from time to time, the last one renewing it upto 31st March, 1985. Aggrieved by the piece meal extension of the 1947 Act and the requisitioning of his premises since 1985, the petitioner challenged the same by a petition under Article 32 of the Constitution and contended that (a) the West Bengal premises Requisition Control (Temporary Provision) Act 1947 cannot be converted into permanent Act and therefore requisition of his premises cannot be a permanent requisition ; (b) Requisitioning the property in this manner for more than 25 years amounts to indirect acquisition of the property and is a fraud upon the power; and (c) It violates both Articles 14 and 19 (1) (g) of the Constitution, since the petitioner who himself requires the premises for his own business is prevented from using. Disposing of the petition, the Court ^ HELD: 1. There are significant differences between 'requisition ' and 'acquisition '. Normally the expression requisition is taking possession of the property for a limited period in contradistinction to acquisition. This popular meaning has to be kept in mind in judging whether in a particular case there has been in fact any abuse of the power. The distinction between 'requisition ' and 'acquisition ' is also evident from Entry 42 in List III of the Seventh Schedule, Original Article 31 clause (2) of the Constitution recognised the distinction between compulsory acquisition and requisition of the property. The two 687 concepts are different; in one title passes to the acquiring authority, in the other title remains with the owner, the possession goes to the requiring authority. One is the taking over of the title and the other is the taking over of the possession. Thus the orders of requisition and acquisition have different consequences and affect the owners concerned in different manners. But the State has the power both of requisition as well as acquisition, subject to one condition that is the property acquired or requisitioned must be for public purpose; Mangilal Karwa vs State of Madhya Pradesh, AIR 1955 Nagpur p. 153 at p. 157 approved, Chiranjit Lal Chowdhury vs The Union of India and others [1950] I SCR p. 869 referred to. [695H; G; 696A B] 2. Under Section 49 (1) of the Land Acquisition Act, 1942 as amended by the West Bengal Act 32 of 1955, even a part of the building or a house can be acquired provided the conditions mentioned and the procedure specified therein are followed and there is no absolute bar to the acquisition of a part of a house or a building. [697F] 3:1 It will not be correct to say that in no case can an order of requisition for permanent purpose be made but in a situation where the purpose of requisitioning the property is of a permanent character and where the Government has also the power and the opportunity to acquire the property or a part thereof especially upon the fulfilment of the conditions of section 49 (1) of the Land Acquisition Act (as amended by the West Bengal Act) to the extent applicable, if the Government chooses not to exercise that power nor attempts to exercise that power to achieve its purpose, than that will be bad not because the Government would be acting without power of requisition but the Government might be acting in a bad faith. In other words, if there is power to acquire as also the power of requisition and the purpose is of permanent nature by having the property or a part thereof for the Government then in such case to keep the property under requisition permanently might be an abuse of the power and a colourable exercise of the power not because the Government lacks the power of requisition but because the Government does not use the other power of acquisition which will protect the rights and interests of the parties better. [697H; 698A C] 3:2 Where one is repository of two powers that is power of requisition as well as power of acquisition qua the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned unless the repository of both the powers suffers from any insurmountable disability, user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law. [698D E] 3:3 In the instant case, it is indisputably true that (a) The purpose of requisition is a public purpose; and (b) That the only part of the building namely one room has been requisitioned for the show room but the premises in question has remained under requisition for over 25 years and the purpose of having the premises in question is of a permanent and perennial nature. But that by itself without anything more would not enable the court to draw 688 the inference that the exercise of the power was bad initially nor, would be continuance of the requisition became malafide or colourable by mere lapse of time. In order to draw such an inference some more material ought to have been placed before the Court. In the circumstances the continuance of the requisitioning of the premises in question must be permitted subject to fulfilment of the conditions mentioned. [698H F]