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ition (Criminal) No. 941 of 1984. (Under article 32 of the Constitution of India) S.L. Chibber for the Petitioner. Ashwani Kumar and R.N. Poddar for the Respondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. The short question which arises for decision in this petition under Article 32 of the Constitution is whether it is open to a person who is undergoing imprisonment on being convicted of an offence committed by him to claim that the period occupied by the investigation or inquiry carried on and the trial held while he was undergoing imprisonment in respect of another offence alleged to have been committed by him should be set off against the term of imprisonment imposed on him on being convicted of the latter offence, under section 428 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code '). 726 The facts relevant for the purpose of this case are these: The petitioner was convicted of an offence punishable under section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 100/ in a Sessions Case on February 1, 1980 by the Addl. Sessions Judge, Karnal. In the same case, he was also convicted of an offence punishable under section 459 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 100/ . Both the sentences of imprisonment were directed to run concurrently. The petitioner was in judicial custody with effect from January 11, 1980 in another case F.I.R. No. 315/78 under sections 457/380/411 of the Indian Penal Code before a Metropolitan Magistrate at Delhi. That case ended in his conviction on February 16, 1981 for an offence punishable under section 457 of the Indian Penal Code and he was sentenced to undergo imprisonment for one year and to pay a fine of Rs. 200/ . In the same case he was convicted of an offence punishable under section 380 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four months and to pay fine. The two sentences of imprisonment imposed in this case were directed to run concurrently. In this case it was further ordered that the petitioner was entitled to the set off as provided by section 428 of the Code. It is not necessary to refer to the other case or cases in which he has also been convicted in order to decide the issue involved in this case. The petitioner is undergoing rigorous imprisonment for seven years as directed by the Addl. Sessions Judge, Karnal in the Sessions case from February 1, 1980 at the District Jail at Rohtak. The sentences of imprisonment imposed by the Metropolitan Magistrate, Delhi will commence to run at the expiration of the imprisonment imposed by the Addl. Sessions Judge, Karnal as prescribed by section 427 of the Code since the court has not directed that the subsequent sentence shall run concurrently with the previous sentence. The petitioner, however, contends that since he was in judicial custody from January 11, 1980 in connection with the investigation and trial of the case which ended in his conviction by the Metropolitan Magistrate on February 16, 1981, the whole of the period between January 11, 1980 and February 16, 1981 should be set off against the sentence of imprisonment imposed by the Metropolitan Magistrate, Delhi. This claim of the petitioner is contested by the State Government of Haryana. It is urged on behalf of the State Government that while the petitioner is entitled 727 to set off under section 428 of the Code, the period between January 11, 1980 and February 1, 1980 on which date he was sentenced to imprisonment for seven years by the Addl. Sessions Judge, Karnal against the sentence of imprisonment imposed by the Metropolitan Magistrate, Delhi, the period between February 1, 1980 and February 16, 1981 on which date the petitioner was convicted by the Metropolitan Magistrate, Delhi cannot be set off since during that period the petitioner was actually undergoing imprisonment imposed on him in the Sessions case. The State Government has relied in support of its contention on the instruction issued by the High Court of Punjab and Haryana in No. 29442 Rules VI.V.38 dated November 29, 1975, the relevant part of which reads thus: "The period of detention undergone by a convict in execution of sentence of imprisonment imposed on him by a court of law while facing inquiry or trial in some other case(s) should not be set off against the term of imprisonment imposed on him on conviction in such other case(s). " We are concerned in the present case with the correctness of the above instruction. Section 428 of the Code reads thus: "428. Period of detention undergone by the accused to be set off against the sentence of imprisonment. Where an accused person has: on conviction, been sentenced to imprisonment for a term not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him. " There was no provision corresponding to section 428 of the Code in the Code of Criminal Procedure, 1898 which was repealed and replaced by the present Code. It was introduced with the object of remedying the unsatisfactory state of affairs that was prevailing when the former Code was in force. It was then found that many persons were being detained in prison at the pre conviction stage for unduly long periods, many times for periods longer than the actual sentence 728 of imprisonment that could be imposed on them on conviction. In order to remedy the above situation, section 428 of the Code was enacted. It provides for the setting off of the period of detention as an under trial prisoner against the sentence of imprisonment imposed on him. Hence in order to secure the benefit of section 428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced. It follows that if a person is undergoing the sentence of imprisonment imposed by a court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in the latter case even though he was under detention during such period. In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence. It is not the period of detention undergone by him during the investigation, inquiry or trial of the same case in which he is later on convicted and sentenced to undergo imprisonment. He cannot claim a double benefit under section 428 of the Code i.e. the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well. The instruction issued by the High Court in this regard is unexceptionable. The stand of the State Government has, therefore, to be upheld. The petitioner is not, therefore, entitled to claim that the period between February 1, 1980 on which date he was convicted in the Sessions case and February 16, 1981 on which date he was convicted by the Metropolitan Magistrate, Delhi when he was undergoing imprisonment imposed on him in the Sessions case should be set off against the term of imprisonment imposed by the Metropolitan Magistrate, Delhi. That period should be counted as part of the imprisonment undergone by the petitioner as directed in the Sessions case. No other contention is urged. In the result the petition is dismissed. S.R. Petition dismissed.

The petitioner was convicted for an offence under Section 307 and Section 459 of the Indian Penal Code and sentenced on February 1, 1980 to a term of rigorous imprisonment. During the pendency of the trial the petitioner was in judicial custody with effect from January 11, 1980 in another case F.I.R. 315/78 under Sections 457/380/411 of the Indian Penal Code which also ended in his conviction on February 16, 1981 and was sentenced for a term of rigorous imprisonment. In the latter case it was ordered that the petitioner was entitled to the set off as provided by Section 428 of the Code. The petitioner claimed that in spite of his conviction in the earlier case from February 1, 1980 he was entitled for set off from 11.1.1980 to 16.2.81. The question in the present Writ Petition is whether such a claim is in order. Dismissing the Writ Petition, the Court ^ HELD: 1. The petitioner is not entitled to claim that the period between February 1, 1980 on which date he was convicted in the Sessions Case and February 16, 1981 on which date he was convicted by the Metropolitan Magistrate, Delhi in another case when he was undergoing imprisonment imposed on him in the Sessions Case should be set off against the term of imprisonment imposed by the Metropolitan Magistrate, Delhi. That period should be counted as part of the imprisonment undergone by the petitioner as directed in the Sessions Case. [728G H] 2: 1. Section 428 of the Code of Criminal Procedure 1973 was introduced with the object of remedying the unsatisfactory state of affairs that was prevail 725 ing when the former Code of 1898 was in force. It was then found that many persons were being detained in prison at the pre conviction stage for unduly long periods, many times for periods longer than the actual sentence of imprisonment that could be imposed on them on conviction. [727F G] 2: 2. In order to secure the benefit of Section 428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation inquiry or trial of the case in which he is later on convicted and sentenced. It follows that if a person is undergoing the sentence of imprisonment imposed by a court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in the latter case even though he had been detained during such period. In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence. It is not the period of detention undergone by him during the investigation, inquiry or trial of the same case in which he is later on convicted and sentenced to undergo imprisonment. He cannot claim a double benefit under Section 428 of the Code that is the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well. The instruction issued by the High Court of Punjab & Haryana No. 29442 Rules VI. V. 38 dated 29th November, 1975 is unexceptionable. [727G H]

Civil Miscellaneous Petitions Nos. 34114 15 of 1987 in S.L.P. Nos. 5678 79 of 1987. From the Judgment and Order dated 18.8.1987 of this Hon 'ble Court in S.L.P. Nos. 5678 79 of 1987. Shanti Bhushan, G.L. Sanghi and S.R. Srivastava for the Petitioners. PG NO 1019 Somnath Chatterjee, Tapas Ray, A.K. Mitra, B.P. Singh, Mrs. Pratibha Jain, S.K. Jain, J.R. Dass and D.K. Sinha for the Respondents. The following Order of the Court was delivered by SEN, J. By these applications the applicants Calcutta Youth Front and its President Hridayanand Gupta pray for committing for contempt respondents Nos. 3 9 under the , namely: 1. Kamal Basu, Mayor & Administrator, Calcutta Municipal Corporation; 2. R.K. Prasannan, Municipal Commissioner; 3. B.C. Mitra, Municipal Engineer in Chief; 4. B.K. Roy, Deputy Municipal Commissioner (Sr. ); 5. Sarkar, Chief Municipal Architect & Town Planner; 6. A.K. Goswami, District Engineer; 7. Dr. S.K. Chowdhury, Chief Municipal Health Officer, as well as the lessees respondents Nos. 13 and 14 Jugal Kishore Kajaria in his individual capacity as well as as Director, Messrs Happy Homes & Hotels Private Limited. The applicants alleged that these respondents were guilty of contempt in that they had in breach of the terms and conditions laid down by this Court in its order dated August 18, 1987 in SLPs 5678 79/87 See JT permitted the lessees Messrs Happy Homes & Hotels Pvt. Ltd. to construct an underground airconditioned market at Satyanarayan Park, and that they had connived and acquiesced in permitting the lessees to construct four pucca structures 15 feet in height above the road level partly covering the surface of the Park and covering a major portion of the surface of the Park. It is alleged that the said constructions constitute gross and deliberate violation of the undertaking of the respondent No. 13 in his supplementary affidavit dated July 25, 1987 and the terms of the Court 's order dated October 18, ]987. Applicant No. 2 Hridayanand Gupta in his affidavit dated July 14, 1988 placed reliance on the following observations made by this Court in its order: "Under the scheme there would be no construction on the park; the underground market would be under the park and not over the park. The only difference is that the park would be re located at a height of 6 feet above the road level easily accessible by three separate staircases. Under the scheme, Satyanarayan Park would become a real park with a lush green garden with tall trees. shrubs etc. and a centre for relaxation of the thickly congested Burrabazar locality and in particular for the children as a playground. " PG NO 1020 It was alleged that the assertion of the contemnors before this Court, as was before the High Court, was that tali trees and/or shrubs would be planted apart from the lush green lawn on the eastern garden under the direct supervision of the Agri Horticultural Society of India, Alipore as per its letter dated July 25, 1987. This, according to the applicants, was nothing but a hoax. The applicants allege that the aforesaid respondents have committed deliberate violation of the terms and conditions of this Court 's order by permitting the lessees to construct the aforesaid pucca structures of lofty heights which, apart from the four storeyed building, cover a substantial portion of the surface of the park which would make it literally impossible to have a terrace garden with a lush green lawn with tall trees, shrubs etc. as a place of relaxation, and therefore liable to be committed for contempt. They in the meanwhile pray that respondents Nos. 13 and 14, the lessees, be restrained from subletting the underground air conditioned park to anyone in the greater public interest. These allegations were controverted by the counter affidavit of Jagdish Kanjilal, Deputy Chief Engineer (Design), Planning & Development Department of the Municipal Corporation dated February 10, 1988 and that by the lessees Jugal Kishore Kajaria impleaded as respondents Nos. 13 and 14. The applicants filed rejoinders to these counter affidavits. Having carefully gone through the applications for contempt, the counter affidavit of respondents Nos. 13 and 14 and that filed on behalf of the Municipal Corporation, and having regard to the fact that the allegations made in the applications involve controverted facts, we thought it expedient to request Shri Justice Umesh Chandra Banerjee by our order dated April 21, 1988 to hold an enquiry as to whether there was a violation of the judgment and order passed by him, as affirmed in letters patent appeal by the Division Bench and also by this Court and directed him to forward his findings by the second week of July 1988 that direction of ours was not to be construed as meaning that there was a breach of the terms and conditions laid down in the judgment. It was further directed that the High Court shall not, during the pendency of the enquiry, pass any interim order which would tend to obstruct or delay the completion of the construction work of the underground airconditioned market. In compliance therewith, Shri Justice Umesh Chandra Banerjee has submitted his report holding that there was no violation of his judgment. The learned Single Judge not only heard the parties but also took the trouble of personally visiting the park and note his observations on personal inspection. In the report the learned Judge records his visual impression in the following words: PG NO 1021 "Two open staircases have been provided for an entry onto the park apart from the three other covered entrances which would facilitate entry onto both the Air Conditioned Market as well as to the park. The covered entrances are more or less at a height of about 15 ' ft. There are three other units for Air Handling Plants which are also more or less at a height of about 15 ' ft. On the eastern side there is a storied building and on the top, a built in water reservoir has been erected and atop the built in water reservoir there are existing two huge water cooling tanks. The 4 storied building admittedly has been constructed in place and stead of a one storied building which was existing prior to the licensing agreement and popularly known as Service Block". On visual examination it appears that certain plant and machinery along with a switch room are located and housed in the service block." The learned Judge then goes on to add: "On a close look at the entire nature of construction it cannot be said that the area looks totally green with some trees on one side. shrubs and other small trees all around. In my judgment dated 17th July 1986 l observed: "Lovely lush green park soothing to the eyes would be visualised since the same would be at a raised level. Tall trees have already been re planted. The entire area in question would have a different look. The sceptics might say that this is too much to expect but optimism prompts judicial conscience to allow such a project so that prospect of having such an area in the heart of a commercial centre in the city of Calcutta is not ruled out". " The learned Judge expresses satisfaction that his expectations for beautification of the Metropolitan City of Calcutta were not belied, in these words: "It seems that the judicial optimism has paid a rich dividend in this particular case and the entire area in fact is having a decent and sophisticated look. There was not a blade of grass on the park prior to the licensing agreement. PG NO 1022 But now a lush green lawn is visible and the place in fact has turned out to be a place for recreation of tax payers place for recreation for the children of the locality and a place to wither away the time for the old and aged people. " Along with the report he has annexed a photograph which depicts the existing state of Satyanarayan Park which was once a dark, dangerous place frequented by persons with criminal record, has now turned out to be a beauty spot in a thickly congested area like Burrabazar. It shows that all the work of construction including the covered staircases together with the open staircase, including the four storeyed service block ' is complete. The photograph depicts the state of affairs as to the shape, size and dimensions of these structures and gives an overall view of the proposed park atop the underground air conditioned market at Satyanarayan Park. The learned Single Judge accordingly records a finding that by the raising of these constructions, question of committing any contempt of his judgment does not and cannot arise. We find no justification to come to any different conclusion. At the hearing Shri Shanti Bhushan. learned counsel appearing for the applicants was gracious enough to accept that the re location of the park at a height of 8 feet above the road level instead of 6 feet is not a matter of moment because a few inches more or less here or there is hardly of any significance. He however confined his submissions to two aspects. namely (i) the raising of the lofty structures over the staircase leading to the underground airconditioned market constitutes a breach of the conditions laid down. and (ii) the construction of a four storeyed building covering an area of the park is a flagrant violation of the Court s order. We are afraid. the contention cannot be accepted. The so called lofty structures which we may call bunkers are nothing but the covered space over the staircases from three directions leading to the underground market. The learned counsel perhaps is not right in assuming that the staircases go upwards. Actually. the staircases provide an approach to the public to the undergroud airconditioned market and they go downwards. The staircases would not possibly be kept open and exposed to the sky having regard to the fact that the underground market is centrally airconditioned. We can take judicial notice of the tact that the central air conditioning plant would not be functional unless there were these bunkers constructed over the staircases. That is how the staircases are covered at the Palika Bazar in New Delhi. Furthermore, the bunkers have been constructed according to the architect 's plan duly sanctioned by the Municipal corporation. PG NO 1023 Shri Somnath Chatterjee, learned counsel for respondents Nos. 13 and 14 rightly draws our attention to the finding of the learned Single Judge indicating that the four storeyed building has been constructed to locate the staff quarters. Since the underground market is fully air conditioned, it is essential that the maintenance staff should be located in the park itself. Originally, there was a single storeyed building covering an area of 150 square metres. The newly constructed four storeyed building now covers only 72 square metres i.e. practically half the area earlier occupied. The learned Single Judge has also pointed out that in cl. (3) of the agreement it has been mentioned that the existing fittings and accessories and structures will have to be dismantled and the dismantled materials will be the property of the Municipal Corporation. (4) provides that prior to the aforesaid demolition of the existing staff quarters and other infra structures like pump room etc. which are in use, alternative arrangement shall have to be made by the licensee 'for re location of staff quarters and other infra structures elsewhere which are necessary for maintaining the existing service during the construction period and then finally to rehabilitate them in the premises by the licensee. The agreement further provides that the cost of temporary re location and final rehabilitation shall be borne by the licensee. The learned counsel pointed out that Shri Justice Umesh Chandra Banerjee in his judgment has also made a mention of overhead water tanks. It has been recorded therein as follows: "In any event. the scheme has been approved by the West Bengal Fire Service since adequate provisions have been made for supply of water in case of necessity. 55000 gallons of water will be available at the park, once the scheme is implemented. Apart therefrom, a further 38000 gallons of water will be available at the Lily Pool and 17000 gallons of water at the overhead water tanks In the premises my judgment records therefore: (a) that there be some structures atop the underground market, and (b) that there would also be overhead tanks with the storage facility of about 17000 gallons of water. Question of there being an overhead tank would not arise unless there are constructions atop the underground market. PG NO 1024 The other aspect of the matter which ought also to be noticed is that the licensing agreement itself provides for approval of the drawing and design by the licensor and in fact drawings and designs as appears from the records were approved and constructions were effected as per the plan sanctioned by the Calcutta Municipal Corporation in accordance with the Building Rules. There is no dispute as to the factum of such a construction being made in accordance with the sanctioned plan." Shri Chatterjee further drew our attention to paragraph of the judgment delivered by the Division Bench wherein it has been stated: "After demolishing the old structures the trust had laid a public park commonly known as Satyanarayan Park having approximately an area of 20,000 sq. The Calcutta Improvement Trust had made over the said park to the Calcutta Corporation now known as Calcutta . Municipal Corporation (The Corporation for short) for the purpose of maintenance at its own cost. This fact also finds mention in the order delivered by this court. It would appear that the area of the said park initially was about 28 cottahs corresponding to 20,000 square feet. In the licence it appears that the area mentioned in 2500 square metres equivalent to 26,900 square feet. As such. by no stretch of imagination can it he asserted that a substantial portion of the park has been covered by encroachment and the statement that there cannot be a park or a terrace garden as visualised by this Court 's order runs counter to the existing stale of affairs. To sum up. the learned Single .judge very rightly and properly addressed himself to the question whether there was a breach of the terms and conditions laid down in his Judgment. leaving the question open for this Court to determine whether there was any deviation from the conditions set forth by the Division Bench or by this Court in appeal. We fully concur with the finding and reasoning of the learned Single Judge as also his approach There can be no doubt whatever that there is no breach either of the conditions laid down by this Court or the Division Bench of the High Court. The construction of the hunkers over the there staircases leading to the underground airconditioned market as well as of the four storeyed building were in the architect 's plan and were expressly permitted in the licence and formed part of the sanctioned plan. It was therefore present in the mind of all concerned including the Chief Municipal Architect & Town PG NO 1025 Planner as also of the Administrator of the Municipal Corporation while planning th construction of the underground airconditioned market that these structures would be built up. As already stated, the construction of the bunkers over the three staircases was a matter of absolute necessity to make the central airconditioning plant fully functional. That is how a fully underground airconditioned market can be conceived, as has been done in the Palika Bazar in Connaught Place, New Delhi. As regards the four storeyed structure, the construction thereof does not constitute breach of the conditions laid down. It has already been stated that the four storeyed structure is built to provide residential quarters to the staff and actually now it occupies much lesser space than before. In the premises, the allegation made by the applicant that the aforesaid structures cover a substantial portion of the surface of the park which cannot now be turned into a terrace garden with a lush green lawn,is wholly unfounded. We have already mentioned that the area of land covered by structures acquired by the Calcutta Improvement trust for laying of a park in the Burrabazar area was 20,000 square feet whereas the area of the park in question as mentioned in the licence is 26,900 square feet. These peripheral structures now built are therefore well outside the area of the Satyanarayan Park proper. The applications for contempt must therefore fail and are dismissed with costs. We cannot but deprecate the attempts made by the applicants to move the High Court as well as this Court time and again on one pretext or another in a frantic effort to prevent the construction of the underground airconditioned market at Satyanarayan Park which is a part of the beautification scheme of the great metropolitan city of Calcutta by the State Government of West Bengal where a party in opposition is in power, to provide civic amenities to the citizens. It is fortunate that these attempts by the making of false and vexatious applications to hold up the construction of the underground airconditioned market, the estimated cost of which is about Rs. 4.50 crores, have been frustrated and what was conceived of a development scheme has come to reality. The work of construction is nearing completion, as is evident from the photograph annexed to the report of the learned Single Judge, and we hope and trust that the underground airconditioned market would be commissioned in the near future, and the terrace garden over the market will provide to the amenities to the people living in the locality as a place for recreation besides playground for the children. H.S.K. Petitions Dismissed.

The applicants filed a contempt petition under Contempt of Courts Act against the respondents (some high officers of the Calcutta Municipal Corporation) and the lessees, respondent Nos. 13 and 14, who were given contract for construction alleging that they were guilty of contempt in that they had constructed the underground market in breach of the terms and conditions laid down by this Court in its order dated 18th August, 19X7. The applicants submitted that the officers had permitted the lessees, to construct an underground air conditioned market at Satyanarayan Park and that they had connived and acquiesced in permitting the lessees to construct four pucca structures of 15 feet in height above the road level partly convering the surface of the park and covering a major portion of the surface of the Park. They also alleged that the construction of the four storeyed quarters (service block) were also in violation of the conditions. The respondents controverted these facts. The matter was referred to the Single Judge of the High Court who had earlier heard the matter and whose decision had been confirmed by a Division Bench of the High Court and by this Court, to hold an enquiry as to whether there was a violation of the judgment and order passed by him The Learned Single Judge personally visited the site and heard the parties. He submitted his report containing his visual impressions and holding that there was no violation of any directions given by him in his judgment and the question of committing any contempt of the judgment does not and cannot arise, He left the question open for this Court to determine whether there was any derivation from the conditions set forth by the Division Bench order and by this Court, PG NO 1017 PG NO 1018 Rejecting the contentions of the applicants, aggreeing with the findings and reasoning of the Single Judge and dismissing the contempt application, this Court, HELD: There can be no doubt whatever that there is no breach either of the conditions laid down by this Court or the Division Bench of the High Court. The construction of the so called lofty structures over the staircase leading to the underground market, which we may call bunkers, as well as of the four storeyed building were in the architect 's plan and were expressly permitted in the licence and formed part of the sanctioned plan. It was therefore present In the mind of all concerned including the Chief Municipal Architect and Town Planner as also of the Administrator of the Municipal Corporation while planning the costruction of the underground air conditioned market that these structures would be built up. As already stated, the construction of the bunkers over the three staircases was a matter of absolute necessity to make the central air conditioning plant fully functional. As regards the four storeyed structure, the construction thereof does not constitute a breach of the conditions laid down. It has already been stated that the four storeyed structure is built to provide residential quarters to the staff and actually now it occupies much lesser space than before. In the premises, the allegation made by the applicants that the aforesaid structures cover a substantial portion of the surface of the park which cannot now be turned into a terrace garden with a lush green lawn, is fully unfounded. [1024G H; 1025A C] The Court cannot but deprecate the attempts made by the applicants to move the High Court as well as this Court time and again on one pretext or another in a frantic effort to prevent the construction of the underground air conditioned market at Satyanarayan Park which is a part of the beautification scheme of the great Metropolitan City of Calcutta by the State Government of West Bengal where a party in opposition is in power, to provide civic amenities to the citizens It is fortunate that these attempts have been frustrated and what was conceived of a development scheme has come to a reality. [1025E G]

ION: Criminal Appeal No. 60 of 1955. Appeal from the judgment and order dated the 2nd February, 1955, of the Calcutta High Court in Criminal Revision No. 1113 of 1954, against the judgment and order dated the 14th November, 1953, of the Court of the Sessions Judge, Howrah in Criminal Appeal No. 185 of 1953, arising out of the judgment and order dated the 8th September, 1953, of the Municipal Magistrate, Second Class, Howrah, in Case No. 1407C/1952. Sukumar Ghose, for the appellant. B. Sen and P. K. Ghosh (for P. K. Bose), for the respondent 1957. October 29. The following Judgment of the Court was delivered by SINHA J. This appeal on a certificate of fitness granted by the Calcutta High Court under article 134 (1) (c) of the Constitution, is directed against the judgment and order of a Single Judge of that Court in its criminal revisional jurisdiction, convicting the appellant under section 488/300 of the Calcutta Municipal Act, 1923 (which will hereinafter be referred to as the Act), and sentencing him to a fine of Rs. 50, in substitution of the order of conviction under section 488/299 of the Act, of a fine of Rs. 75, passed by the lower courts. The facts found by the courts below which are necessary to be stated for the purpose of this appeal, are as follows: The appellant who is the owner of the premises No. 10/3, Swarnamoyee Road, Howrah, encroached upon an area of 57 ' x 3 ' of the road side land of the Howrah Municipality to which the 776 provisions of the Act have been extended. A notice, the terms of which we shall set out hereinafter, was served on the appellant to remove the encroachment aforesaid, and as he failed to carry out the terms of the notice within the specified time, the prosecution leading up to this appeal, was instituted before the magistrate who, under section 531, is called 'Municipal Magistrate '. The Municipal Magistrate who tried the appellant in the first instance, convicted him, but on appeal, the learned Sessions Judge acquitted him on the ground that the prosecution had been launched beyond three months which was the prescribed period of limitation under section 534 of the Act. The Municipality moved the High Court of Calcutta in its revisional jurisdiction and a Division Bench of that Court (J. P. Mitter and section K. Sen JJ.), set aside the order of acquittal and directed the appeal to be re heard, after giving the Municipality an opportunity of formally bringing on record certain official documents showing the date of the institution of the complaint. The relevant documents were proved and exhibited on behalf of the prosecution in the Sessions Court and the learned Additional Sessions Judge confirmed the conviction and the sentence, and dismissed the appeal. Thereupon, the appellant moved the High Court in its revisional jurisdiction. His application in revision was heard and disposed of by P.N. Mukherjee J. by his order dated February 2, 1955, which is the subject matter of this appeal. Before him, the appellant as petitioner, urged at the forefront of the arguments, the question of limitation, and the learned Judge took the view that the matter was now concluded in view of what had taken place in the High Court and in the court of Session in pursuance of the order of remand passed by the High Court. The learned Judge agreed with the appellate court that the complaint was not barred. The High Court also agreed with the lower courts on their findings on the merits, that is to say, it affirmed the finding that the appellant had encroached upon the road side land of the Municipality. The High Court accepted the argument raised on behalf of the appellant that on the facts found, namely, that the 777 offending structure was a compound wall and not something which was a part and parcel of the main building, the offence if any, would come under section 300, and not section 299, read with section 488 of the Act. The High Court further took the view that as the accused was fully aware of the nature of the accusation against him, it would not cause any prejudice to him if the conviction and the sentence were altered into those under section 300, read with section 488 of the Act, the sentence being reduced to the statutory limit of 50 rupees. The appellant moved the High Court and obtained the necessary certificate from the Bench presided over by the learned Chief Justice who observed, while granting the certificate: "It seems to me to be arguable and arguable with some force that such alteration of the conviction could not possibly be correct in law. . It would therefore be arguable that a notice under section 299 to remove a compound wall unattached to any building could not be a notice 'lawfully given ' or a requisition 'lawfully made ' within the meaning of section 488(1)(c) of the Calcutta Municipal Act, 1923. It appears to me that the alteration of the conviction by this Court does raise a question of law which makes the case a fit case for further appeal to the Supreme Court. " In this Court, the learned counsel for the appellant has placed at the forefront of his arugments the points suggested in the portion of the learned Chief Justice 's order quoted above, but in our opinion, there is absolutely no substance in those contentions. The alteration of the conviction from section 299 to section 300, read with section 488 of the Act, was no alteration in the substance of the accusation but only in the section more properly applicable to the facts found. A similar question was raised before their Lordships of the Judicial Committee of the Privy Council in the case of Begu vs The King Emperor (1). It was argued before their Lordships that the conviction of the appellants before the Judicial Committee under section 201, Indian Penal Code, without a charge under that section, was a serious departure from the procedure laid down in the Code of Criminal Procedure. In that 778 case the initial conviction was for murder under section 302 of the Indian Penal Code, but the High Court had set aside that conviction and substituted a conviction under the lesser section 201. After discussing the provisions of sections 236 and 237 of the Code of Criminal Procedure, their Lordships made the following observations which fully cover the present controversy " A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. " It will be noticed that in the case before the Privy Council, the alteration was not only in respect of the section but also of the substance of the accusation, but as the lesser offence under section 201, had been made out by the evidence led on behalf of the prosecution which was primarily for an offence of murder, their Lordships ruled that sections 236 and 237 of the Code of Criminal Procedure authorize the Court to alter the conviction and the sentence to be passed in respect of the offence made out in the evidence. In the case in hand, it is manifest that the facts sought to be proved and found by the courts below remained the same even after the alteration of the conviction from section 299 to section 300, read with section 488 of the Act. There was, therefore, no illegality in the alteration of the conviction under one section to the other. It was next argued that the notice served upon the appellant was not lawful within the meaning of section 488(1)(c) of the Act, which runs as follows: 488(1) Whoever commits any offence by (a). . . . . . . . . . (b). . . . . . . . . . (c) failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, sub sections, clauses, provisos or rules, shall be punished. . . . . . ." The substantive portion of the notice is in these terms: "Take notice that you are hereby required by the Municipal Commissioners of Howrah, within 779 thirty days from the date of service of this notice to remove the encroachment caused by a compound wall measuring 57 ' 0" x 3 ' 0" upon Swarnamoyee Road attached to premises No. 10/3 and that in default, the provisions of the above Act will be enforced. " This notice is headed as under section 299 of the Act. It is no more in controversy, as found by the courts below, that the offending part of the structure comes under section 300 which refers to a wall, etc., not being a portion of a building or fixture, as contemplated in section 299. The contention now has narrowed down to this that the notice having been headed as under section 299 of the Act, the conviction under section 300 is illegal, because, it is further argued, the requisition had not been 'lawfully made '. According to this argument, the requisition would have been 'lawfully made ', if the notice had been headed as under section 300. Hence, the label given to the notice makes all the difference between a requisition 'lawfully made ' and a requisition not so made. In our opinion, this argument has only to be stated to be rejected. It is the substance and not the form of the notice that has to be regarded. The effective part of the notice quoted above, leaves no doubt in the mind of the parties concerned that the requisition is to remove the encroachment caused by the compound wall. As it has not been contended that the appellant had not received the notice, and it is common ground that the appellant had not carried out the terms of the notice, there cannot be the least doubt that the appellant has incurred the penalty under section 488(1)(c), read with section 300. It must, therefore, be held that notwithstanding the label given to the notice, the requisition bad been lawfully made in the sense that the appellant had made the encroachment complained of, and that the Municipality was entitled to call upon him to remove the encroachment. The appellant was bound to carry out the terms of the requisition, and as he admittedly failed therein, he had incurred the penalty of the law. It was next sought to be contended that there was substantial prejudice to the appellant inasmuch as if 99 780 the conviction were under section 299 and not section 300, read with section 488, he may have been entitled to claim compensation. There are several answers to this contention. In the first instance, he himself invited the High Court to interfere with the order of conviction passed by the lower courts. If the High Court has set right the technical defect, as it was bound to do when the matter had been brought to its notice, the appellant has no just grievance, keeping in view the fact that the amount of fine has been reduced as a result of the alteration in the section. Secondly, if he has any rights to claim compensation in a civil court the judgment and order of the criminal court is wholly irrelevant; and thirdly, the prejudice must have reference to any irregularity in the trial of the case. It has not been shown that the appellant had, in any way, been prejudiced in the trial of the case as a result of the alteration in the section, that is to say, that he was deprived of some opportunity to make a proper defence to the prosecution if the right section had been named in the notice or in the charge, if any. Nor has he been able to show that he was misled as a result of any such technical error. Lastly, it was sought to be made out that the prosecution itself was beyond time. This contention was attempted to be made good with reference to the additional evidence adduced at the appellate stage as a result of the direction of the High Court when the case came before it on the first occasion, as mentioned above. In our opinion, there is no substance in this contention because as pointed out by the learned Additional Sessions Judge, the additional evidence placed before the Court puts the matter beyond all reasonable doubt that the complaint had been lodged in time before the relevant authority. In view of these considerations, it must be held that there is no merit in this appeal. It is, accordingly, dismissed. Appeal dismissed.

The appellant was convicted by the Municipal Magistrate under section 488, read with section 299, of the Calcutta Municipal Act, 1923, and sentenced to pay a fine of Rs. 75, for failure to carry out within the specified time the terms of a notice served on him under section 299 of the Act to remove the encroachment caused by a compound wall upon the road side land of the Municipality. Since the offending structure was a compound wall and not something which was part and parcel of the main building, the offence comes under section 300 and not section 299, read with section 488 Of the Act. The High Court, in revision, found that the accused was fully aware of the nature of the accusation against him and that there was no prejudice caused to him by the wrong mention of section 299 in the notice in place Of section 300. It accordingly altered the conviction into one under section 488, read with section 300, and reduced the amount of fine to Rs. 5o as required by the section. On appeal to the Supreme Court it was contended for the appellant that the conviction was bad because (1) the notice having been headed as under section 299 of the Act, the conviction under section 300 was illegal, (2) the requisition had not been lawfully made within the meaning Of section 488(1)(c), and (3) there was substantial prejudice to the appellant inasmuch as if the conviction were under section 299 and 775 not section 300, read with section 488, he might have been entitled to claim compensation : Held, that the effective part of the notice made it clear that the requisition, which was to remove the encroachment caused by the compound wall, was lawfully made, that the alteration of the conviction under section 299 to one under section 300 would not make it illegal and that, on the facts, there was no prejudice. Begu vs The King Emperor, L.R. 52 I.A. 191, relied on.

ivil Appeals Nos. 579 to 594 of 1975. Appeals by special leave from the judgment and order dated the 11 October 1974 of the High Court at Gauhati in Civil Rule Nos. 252, 293, 305, 640 and 730 of 1976, and 24, 405, 507 & 510/71, 515 to 517 of 1972 and 165 166 of 1975. N. M. Lahiri with D. N. Mukherjee, for the appellants. (in all the appeals) N. M. Lahiri with D. N. Mukherjee, for respondents in CAs 579 & 583 586/75. section Chaudhuri for respondents in CAs 588 to 590/75 D. N. Mukherjee & R. P. Agarwala, for respondents in CAs 587 590 N. M. Lahiri with D. N. Mukherjee & R. P. Agarwala for the respondents in CAs 591 592/75 N. M. Lahiri with D. N. Mukherjee for respondents in CAs 593 594 of 1975 Ex parte, for respondents in CAs 580 582, 593 594 of 1975 The Judgment of the Court was delivered by SARKARIA, J. These appeals directed against a judgment of the High Court of Judicature at Gauhati raise a common question in regard 415 to the interpretation and constitutional validity of sub clause (a) of A clause (26) of section 10 of the Income tax Act, 1961 (for short, called the 1961 Act). The appeals will be disposed by a common judgment. R. Takin Roy Rymbai (respondent in Civil Appeal 579 of ,1975) belongs to Jaintia Scheduled Tribe and is a permanent resident of United Khasi Jaintia Hills Autonomous District under the Sixth Schedule of the Constitution within the State of Meghalaya. He joined service under the Government of Assam in 1941. In the previous year relevant to the assessment year 1970 71, he was posted at Shillong as Secretary to the Government of Assam. The Assam Secretariat building and office, which constitute his place of work was within that quarter of the town which is included in Shillong Municipality and is not a part of the area described in para 20 of the Sixth Schedule. C The Income tax officer took the view that the assessee 's income from salary in the relevant year arose in the non scheduled area and as such, is not covered by the exemption provided under section 10(26) (a) of the Act. The assessee claimed that his income from salary had accrued or arisen within the specified area and, as such, he was entitled to the exemption. In the alternative, he contended that this was not a valid condition for denying him the benefit of the exemption under section 10 (26). The Income tax officer over ruled these contentions and completed the assessment subjecting the assessee 's salary to tax. The assessee thereupon filed a petition under Article 226 of The Constitution in the High Court for impugning the assessment orders and the notices of demand for the assessment year 1970 1971, on the ground that sub clause (a) of section 10(26) of the Act is invalid and ultra vires Article 14 of the Constitution. The writ petition was heard by a Bench of three learned Judges of the High Court, which held that this exemption clause has been enacted for the benefit of the Scheduled Tribes residing in specified areas. The object of this exemption clause, according to the High Court, will be frustrated and made nugatory if the income of a member of the Scheduled Tribe residing in the specified areas, is made subject to tax merely because the source of such an income is outside that area. In its view, the classification between members of the Scheduled Tribes having income which accrues or arises to them from any source from the Tribal area or the specified territories on the one hand, and the members of Scheduled Tribe having income which accrues or arises to them from any source outside the Tribal areas or specified territories on the other, is not based on any intelligible differentia; the classification is artificial and is not based on any substantial distinction having a rational nexus to the purpose of the law. On the contrary, the condition contained in sub clause (a) would defeat the very object of the exemption clause in section 10 (26). For this enunciation, the High Court has sought support from this Court 's observations in section K. Dutta, Income tax officer and ors. vs Lawrence Singh Ingty ( 1 ) . (1) [1968] 2 S.C.R.165. 416 On the above reasoning, the High Court has struck down the aforesaid sub clause (a) as violative of Article 14 of the Constitution, allowed the writ petition and quashed the impugned notices and the orders of assessment. The Department has now come in appeal before us after obtaining special leave under Article 136 of the Constitution. The provisions of section 10 of the 1961 Act are in the nature of exemptions. The various clauses of this section indicate the incomes which are to be excluded from computation of the total Income of a person under this Act. For a proper perspective, it will be useful to have a look at the historical background of this provision. The Indian Income tax Act, 1922 did not contain any provision specifically exempting members of the Scheduled Tribes from the levy of income tax. It was the Finance Act 1955 that first incorporated in the Income tax Act, 1922 provisions for exemption of the Tribal people of the eastern region from payment of the tax. These provisions relating to such exemptions were further amended and recast by section 3 of the Finance Act 1958 as follows: "section 4(3) XXI. Any income of a member of a Scheduled Tribe defined in clause (25) of Article 366 of the Constitution, residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule , to the Constitution or in the Union Territories of Manipur and Tripura, provided that such member is not in service of Government. " J The 1961 Act then re enacted this clause as under: "10 (26) In the case of a member of a Scheduled Tribe as deemed in clause (25) of Article 366 of the Constitution, residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or in the Union Territories of Manipur and Tripura, who is not in the service of Government. any income which accrues or arises to him. (a) from any source in the area or Union Territories aforesaid, or (b) by wag of dividend or interest on securities. " The State of Nagaland (Adaptation of Laws on Union Subjects) order 1965 added with effect from the 1st December 1963, the State of Nagaland also, to the areas, the Tribal people of which could claim this exemption. The validity of the exclusion of the Government servants from the exemption given under section 10(26), as it stood before the amendment of 1970, came up for consideration before this Court in section K. Datta, Income tax officer and ors. vs Lawrence Singh Ingty (supra). It was held that the classification of Tribals into Government servants 417 and others for purposes of this exemption was violative of Article 14 of the Constitution and, as such, invalid. Thereafter, Parliament passed the Taxation Laws (Amendment) Act 42 of 1970 whereby the words "who is not in the service of the Government" appearing in section 10(26), were deleted. The North Eastern Areas (Reorganization) (Adaptation of Laws on Union Subjects), order 1974 amended this provision further with effect from January 25, 1972 so that it now reads as follows: "(26) in the case of a member of a Scheduled Tribe as defined in clause (25) of Article 366 of the Constitution, residing in any area supecified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution (or in the State of Nagaland) Manipur and Tripura or in the Union Territories of Arunachal Pradesh and Mizoram or in the areas covered by Notification No. TAD/R/35/50/109, dated the 23rd February 1951, issued by the Governor of Assam under the provisions to sub paragraph (3) of the said paragraph 20 (as it stood immediately before the commencement of the North Eastern Areas (Reorganization) Act 1971 (81 of 1971) any ' income which accrues or arises to him, (a) from any source in the (area, State or Union territories) aforesaid, or (b) by way of dividend or interest, on securities". An analysis of this provision shows that in order to entitle a person to the exemption, three conditions must co exist: (i) He should be as member of a Scheduled Tribe as defined in Clause (25) of Article 366 of the Constitution; (ii) He should be residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution; or the State or Union Territories mentioned in this provision; (iii) The income in respect of which exemption is claimed must be an income which accrues or arises to him (a) from any source in the (area, State or Union territories) aforesaid, or. (b) by way of dividend or interest, on securities". An analysis of this provision shows that in order to entitle a person to the exemption, there conditions must co exist: (i) He should be a member of a Scheduled Tribe as defined in Clause (25) of Article 366 of the Constitution; (ii) He should be residing in any area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution; or the State or Union Territories mentioned in this provision; (iii)The income in respect of which exemption is claimed must be an income which accrues or arises to him (a) from any source in the area, State or Union territories mentioned in the provision or (b) by way of dividend or interest, on securities". Article 366(25) of the Constitution provides: "Scheduled Tribes" means 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 this Constitution. " H Article 342 empowers the President with respect to any State or Union Territory, and where it is a State, after consultation with the 418 Governor thereof, by public notification, to specify Tribes or Tribal communities or parts of or groups within tribes of tribal communities which shall for the purpose of this Constitution be deemed to be Scheduled Tribes, as the case may be. Clause (2) of this Article empowers the Parliament to exercise the some power by enacting a law The respondent belongs to Jaintia Scheduled Tribe which is one of the Scheduled Tribes notified under article 342(1). The first condition for applicability of section 10(26) was thus indubitably satisfied. Part II of the Table appended to paragraph 20 of the Sixth Schedule of the Constitution inter alia specifies the United Khasi Jaintia Hills District as one of the Tribal Areas. According to the averments in the writ petition, the respondent is a permanent resident of the United Khasi Jaintia Hills autonomous District. This allegation has not been denied by the other side. Indeed, in the petition for special leave to appeal filed by the appellant the fact that he is a resident of a Tribal area specified in Paragraph 20 of the Sixth Schedule to the Constitution, is admitted. The first two conditions necessary for claiming exemption under section 10(26) existed in the present case. Whether on the facts of the case, the third condition embodied in sub clause (a) was satisfied or not, is a question which still remains to be determined. The High Court has advisedly left it open. The controversy has thus narrowed down into the legal issue: whether the classification made by sub clause (a) for the purpose of the exemption under section 10(26) between the income of a member of a Scheduled Tribe accruing or arising from any source in the area, State or Union Territories specified in the aforesaid Clause (26), and the income from a source outside such area, State or Union Territories is constitutionally valid? In answering this question in the negative, the High Court has propounded the proposition that the object of clause (26) of section 10 r is to grant a blanket exemption to members of Scheduled Tribes as a class residing in the specified areas, and that the condition contained in sub clause (a) is destructive of that object. In propounding this proposition, the learned Judges seem to have relied on certain observations of this Court in Lawrence Singh Ingty 's case (supra) Mr. Lahiri appearing for the respondent, also, reiterates the reasoning of the High Court that the exemption was given to the Tribal people as a class, and not on the basis of their economic resources or sources of income. In this connection Counsel has cited a few sentences from this Court 's judgment in Lawrence Singh Ingty 's case ,, (supra) . With due respect to the learned Judges of the High Court, we are unable to accept this reasoning. The matter now in controversy was, not even obliquely in issue before this Court in Lawrence Singh Ingty 's case. Therein, the only question for decision was, whether the exclusion of the Government servants from the exemptions given in section 4(3) (XXI) of the Indian Income tax Act, 1922 and later on in section 10 (26) of the Income tax Act 1961. was violative of Article 14 of the Constitution 419 Although sub clause (a) was very much there, its validity was not, even indirectly questioned. The contention of the Revenue, therein, was that the exemption from income tax was given to members of certain Scheduled Tribes, due to their economic and social backwardness; that it was not possible to consider Government servants as socially and economically backward and hence the exemption was justly denied to the assessee, who was a Government servant having income from salary. It was further urged by the Revenue that once a Tribal becomes a Government servant, he is lifted out of his social environment and assimmilated into forward sections of society and therefore he needs no more any crutch to lean on. These arguments were found to be irrelevant and unsustainable. In that context, the Court observed: "The exemption in question was not given to individuals either on the basis of their social status or economic resources. It was given to a class. Hence individuals as individuals do not come into the picture. We fail to see in what manner the social status and economic resources of a government servant can be different from that of another holding a similar position in a corporation or that of a successful medical practitioner, lawyer architect, etc. To over paint the picture of a government servant as the embodiment of all power and prestige would sound ironical. Today his position in the society to put at the highest is no higher than that of others who in other walks of life have the same income. For the purpose of valid classification what is required is not some imaginary difference but a reasonable and substantial distinction having regard to the purpose of the law. " The sentences which have been underlined are the sheet anchor of the arguments advanced by Mr. Lahiri. In our opinion, they cannot be torn out of the context and used for spelling out a proposition different from what was actually decided in that case. The ratio of that decision is that within the members of the Scheduled Tribes residing in specified areas selected by the State for the purpose of exemption, the mini classification between individuals who were government servants deriving income from salary and those who were not such government servants, was not based on intelligible differentia. Since there was no rational whatever for this differentiation, it was held that within the range of the selection, the government servants had been unfairly discriminated against lawyers, medical practitioners, private servants, businessmen, etc. whose income was derived from non government sources, and that the exclusion of government servants from the exemption under section 10(26) was bad and unconstitutional. This vice of discrimination from which section 10(26) was then suffering, was removed when the Amending Act 42 of 1970 exercised the obnoxious limb of the provision. The decision in Lawrence Singh Ingty is thus no authority for the proposition that the exemption granted under section 10 (26) to the members of the Scheduled Tribes residing in the specified areas, as a class, 420 could not be validly subjected to the condition contained in subclause (a) of the provision. While it is true that a taxation law, cannot claim immunity from the equality clause in Article 14 of the Constitution, and has to pass like any other law, the equality test of that Article, it must be remembered that the State has in view of the intrinsic complexity of fiscal adjustments of diverse elements, a considerably wide discretion in the matter of classification for taxation purposes. Given legislative competence, the legislature has ample freedom to select and classify persons, districts, goods, properties, incomes and objects which it would tax, and which it would not tax. So long as the classification made within this wide and flexible range by a taxing statute does not transgress the fundamental principles underlying the doctrine of equality, it is not vulnerable on the ground of discrimination merely because it taxes or exempts from tax some incomes or objects and not others Nor the mere fact that tax falls more heavily on some in the same category, is by itself a ground to render the law invalid. It is only when within the range of its selection, the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of Article 14. (See East India Tobacco Co. v State of Andhra Pradesh(l) Vivian joseph Ferriera vs Municipal Council of Greater Bombay;(2) Jaipur Hosiery Mills vs State of Rajasthan.(3) The validity or otherwise of the classification of income envisaged by sub clause (a), with reference to the source of income, for the purpose of the exemption under section 10(26) is to be judged in the light of the above principles. Classification for purposes of taxation or for exempting from tax with reference to the source of the income is integral to the fundamental scheme of the Income tax Act. Indeed, the entire warp and woof of the 1961 Act has been woven on this pattern. Section 2(45) defines total income to mean "the total amount of income referred to in section 5 computed in the manner laid down in this Act". Section 5 makes the chargeability of income dependent upon the locality of accrual or receipt of the income. It defines the extent total income with reference to the residence of the assessee, and thus makes the incidence of taxation dependent upon whether the assessee is a resident in India. It is the residence in India which entails liability to tax. A non resident is not liable in India to get his income assessed, but if any part of his income accrues or arises whether directly or indirectly through any business connection in India or from any property in India, the same would be assessable. An ordinary resident as defined in section 6, does not attract additional chargeability but being "not ordinarily resident" entitles a person to partial exemption from (1)[1963] I S.C.R. 404. (2) [1972] I S.C.C. 70. (3) 421 chargeability as a resident, to which exemption a person who is "ordinarily resident" is not entitled (see Kanga and Palkhivala Vol. I Income tax 6th Edn. p. 162). The 1961 Act abounds in instances whereby certain sources of income have been exempted from tax, while others are assessable. Section 10 of the 1961 Act, itself contains no less than 30 instances of such classification for the purpose of granting exemptions from tax. This is so, in spite of the fact that another source of the same person 's income may be assessable. A person may have agricultural income apart from salary or business income. The income from the former source is not to be included in the total income of the assessee (vide section 10(1) ); while income from the latter source is not so exempted. Again, interest realised from Scheduled banks on deposits upto a certain limit is exempt, while interest realised from non banking concerns is assessable. Sections 80A to 80U further provide exemptions from tax to incomes derived from certain sources. A business man 's income is assessable, but if it is from a newly established industrial undertaking or priority industry, to that extent, the same is exempted. Section 80H provides for deductions in cases of new industrial undertakings employing displaced persons etc. It is not necessary to multiply such instances. Suffice it to say that classification of sources of income is integral to the basic scheme of the 1961 Act. It is nobody 's case that the entire scheme of the Act is irrational and violative of Article 14 of the Constitution. Such an extravagant contention has not been canvassed before us. Thus the classification made by the aforesaid sub clause (a) for purposes of exemption is not unreal or unknown. It conforms to a well recognised pattern. It is based on intelligible differentia. The object of this differentiation between income accruing or received from a source in the specified areas and the income accruing or received from a source outside such areas is to benefit not only the members of the Scheduled Tribes residing in the specified areas but also to benefit economically such areas. If the contention advanced by Mr. Lahiri is accepted and a member of the Scheduled Tribe residing in a specified area is held entitled to the exemption irrespective of whether the source of his income lies within or outside such areas, it will lead to potentially mischievous results and evasion of tax by assessees who do not belong to the Scheduled Tribes. All that a non tribal assessee in India need do would be to enter into a sham partnership with a member of the Scheduled Tribe residing in the specified area and ostensibly give him under the partnership a substantial share of the profits of the business while, in reality, pay the tribal only a nominal amount. Moreover, but for the condition provided in sub clause (a), the exemption granted under section 10(26) is likely to operate unequally and cause inequality of treatment between individuals similarly situated. A Tribal residing in the Scheduled areas earning large income from business located outside the specified areas, would be totally exempt while the non tribal whose source of income is a share in the same business would be taxed although with reference to the source of the income, both were similarly situated. 422 We are not persuaded to accept Mr. Lahiri 's argument that the making of the exemption conditional upon the classification envisaged by sub clause (a) would deter the members of the Scheduled Tribes from joining the mainstream of national life, or, would be inconsistent with the Directive Principle embodied in Article 46. This Article contains a Directive Principle of State Policy for promotion of educational and economic interests of the weaker sections of the people, particularly the Scheduled Castes and Scheduled Tribes. Its primary objective is to provide protection to the "weaker sections" of society. Members of the Scheduled Tribes who are enterprising and resourceful enough to move out of the seclusion of the tribal areas and successfully compete with their Indian brethern outside those areas and rise to remunerative positions in service or business, cease to be "weaker sections". In any case, the State is the best judge to formulate its policies and to decide how far and for what period and in what situations, the members of a particular Scheduled Tribe residing in a particular Tribal area should be afforded the protection and benefit in the matter of promotion of their educational and economic interests. In view of what has been said above, we are of opinion that the learned Judges of the High Court were in error in holding that the classification contemplated by sub clause (a) of cl. (26) of section 10 of the 1961 Act is artificial and is not based on any intelligible differentia. We would therefore, reverse the judgment of the High Court and hold that the aforesaid sub cause (a) is constitutionally valid Before we part with this judgment, we may note that Mr. Lahiri made a detailed survey of the history of the Tribal areas of Assam and Scheduled Tribes residing in those 'autonomous ' areas. Counsel also argued that virtually the source of the salary received by the assessee lay in the Tribal areas forming the State of Meghalaya, notwithstanding the fact that on account of the exigencies of service, the office of the assessee was located in those Wards of Shillong which are not a part of the tribal areas. In our opinion, it is not necessary to go into this question which, as already noticed, still remains open and undetermined. In the result we allow these appeals, but in the circumstances ofthe case, leave the parties to pay and bear their own costs. P.B.R. Appeals allowed.

Section 10(26)(a), Income tax Act, 1961 provides that a person is entitled to exemption from income tax if (1) he is a member of a Scheduled Tribe as defined in article 366(25) of the Constitution, (2) he is residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution, or the State or Union Territories mentioned in section 10(26)(a). and (3) the income in respect of which exemption is claimed is income which accrues or arises to him from any source in the area, State or Union Territories mentioned in the section. The assessee belonged to the Jaintia Scheduled Tribe and was a permanent resident of the United Khasi Jaintia Hills Autonomous District referred to in para 20 of the Sixth Schedule to the Constitution. He was employed in the Secretariat of the Assam Government, and his place of work was within the Shillong Municipality, and was not a part of the area described in para 20 of the Sixth Schedule to the Constitution. The Income tax officer held that . the income of the assessee from his salary arose in the non scheduled area and was not covered by the tax exemption provided under section 10(26) (a). In a writ petition under article 226 the assessee challenged the validity of 8. 10(26) (a) on the ground that the classification of members of Scheduled Tribes into those having income from a source within the specified areas and those having income from the source outside the areas was arbitrary. The High Court struck it down as violative of article 14 on the ground that the exemption clause which was enacted for the benefit of the Scheduled Tribes would be frustrated if the income of such person was made subject to tax merely because the source of that income was outside that area. Allowing the appeals of the Department, ^ HELD: The High Court was in error in holding that the classification contemplated by section 10(26)(a), Income Tax Act, 1961, was artificial and was not based on any intelligible differentia. [422D] 1 (a) . A taxation law, like any other law. has to pass the equality test of article 14, but given the legislative competence, the legislature has ample freedom to select and classify persons, incomes and objects which it would or would not tax. The mere fact that a tax falls more heavily on some in the same category, is not by itself a ground to render the law invalid. It is only when, within the range of its selection. the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of article 14. [420B D] " East India Tobacco Co. vs State of Andhra Pradesh, [1963] I S.C.R. 404; Vivan Joseph Ferriera vs Municipal Council of Greater Bombay, ; and Jaipur Hosiery Mills vs State of Rajasthan, , followed. (b) Classification for the purpose of taxation or for exempting from tax with reference to the source of the income is integral to the fundamental scheme of the Income Tax Act. The classification made by sub cl. (a) for the purpose of exemption is not unreal or unknown but conforms to a well recognised pattern and is based on intelligible differentia. The object of this differentiation between income accruing or received from a source in the specified areas and 12 522SCI/76 414 the income accruing or received from a source outside such areas IS to benefit not only the members of the Scheduled Tribes residing in the specified areas but also to benefit such areas economically. [420F; 421E F] (c) If it is held that a member of the Scheduled Tribe residing in a specified area was entitled to the exemption irrespective of whether the source of his income lay within or outside such area, it may lead to mischievous results. A non Tribal assessee in India may enter into a sham partnership with a member of the Scheduled Tribe residing in the specified area and ostensibly give him a substantial share of the profits of the business but really give him only a nominal amount and thus evade tax. Also a tribal residing in the scheduled areas. earning large profits from business located outside the specified areas would be totally exempt while a non tribal whose source of income is a share in the same business would be taxed and thus the exemption is likely to operate unequally between individuals similarly situated. [421G H] (2) The decision in section K. Datta. Income Tax officer and or$. vs Lawrence Singh Ingty; , , on which the High Court had relied is no authority for the proposition that the exemption granted under section 10(26) to the members of the Scheduled Tribes residing in the specified area, as a class, could not be validly subjected to the condition contained in sub cl. (a) of that provision. The sentence that "the exemption in question was not given to individuals either on the basis of their social status or economic resources. it was given to a class" occurring in that case could not be torn out of the contest and used for spelling out a proposition different from what was actually decided in that case. [419H; F] (3) The State is the best judge to formulate its policies and to decide how far and for what period and in what situations, the members of a particular Scheduled Tribe residing in a particular Tribal area should be afforded ` the protection and benefit in the matter of promotion of their educational and economic interests embodied in article 46 of the Constitution. [422C]

13 of 1959. Petition under Article 32 of the Constitution of India for enforcement of Fundamental Rights. Harnam Singh and Sadhu Singh, for the petitioners. section M. Sikri, Advocate Gencral for the State of Punjab, Gopal Singh and D. Gupta, for respondent No. 1. 1959, April 1. The judgment of the Court was delivered by section K. DAS, J. This is a petition under article 32 of the Constitution in which the petitioners challenge the constitutional validity of section 148 B of the Sikh Gurdwaras Act, 1925 (Punjab VIII of 1925), hereinafter called the principal Act, the said section having been added to the principal Act by the Sikh Gurdwaras (Amendment) Act, 1959, hereinafter called the amending Act of 1959. The petitioners profess and practice the Sikh faith and they allege that they are interested in the maintenance and management of Sikh Gurdwaras, scheduled and notified under the principal Act. Their main contention is that section 148 B violates the fundamental right granted under article 26(b) of the Constitution to every religious denomination or any section thereof including the Sikh denomination, " to 502 manage its own affairs in matters of religion ". The respondents to the petition are, firstly, the State of Punjab and, secondly,, President and twelve members of the Interim Gurdwara Board, Patiala, who under cl. (a) of sub section (1) of section 148 B shall be deemed to be members of the Board constituted under section 43 of the principal Act. That Board is now known by the name of the Sikh Gurdwara Prabandhak Committee. The application has been contested before us by respondent No. 1 only, namely, the State of Punjab, on the ground that section 148 B does not, in any way, violate the fundamental right granted to the petitioners or other members of the Sikh denomination under article 26(b) of the Constitution. Therefore, the only question for consideration before us is if section 148 B of the principal Act does or does not contravene the fundamental right granted to the Sikhs under article 26(b) of the Constitution. We shall presently set out the provisions of section 148 B and also of some other relevant sections of the principal Act. But before we do that, it is necessary to state a few facts with regard to the passing of the amending Act of 1959. It has been stated before us that in or about the year 1919 there was considerable unrest amongst the Sikhs in the Punjab in respect of the management of their gurdwaras and shrines, and in 1922 an Act called the Sikh Gurdwaras and Shrines Act was passed; this did not satisfy the Sikhs and in 1925 the principal Act was passed, as its preamble states, " for the better administration of certain Sikh gurdwaras and for enquiries into matters and settlement of disputes connected therewith ". The principal Act was amended from time to time. On November 1, 1956, there was merger of the erstwhile State of Patiala and the East Punjab States Union (hereafter called Pepsu in brief) with the State of Punjab. Sometime in February 1957 the Government of the State of Punjab appointed an advisory committee to report as to whether the principal Act should be extended to the area which was formerly within Pepsu. In September 1957 the committee recommended in favour of such extension. On April 8, 1958, a bill called the Sikh 503 Gurdwaras (Amendment) Bill, 1958, was introduced in the Punjab Vidhan Sabha and the Bill was sent to the regional committees constituted by an order of the President called the Punjab Regional Committees Order, 1957, made under el. (1) of article 371 of the Constitution. The regional committees dealt with the Bill and made certain recommendations. For the purposes of the application before us, it is unnecessary to go into details of the proceedings before the regional committees. Sometime in November 1958 there was a meeting of the Sikh Gurdwara Prabandbak Com mittee for the purpose of the annual election. Learned counsel for the petitioners has stated before us that at this meeting there was a majority by a very small margin (three votes only) in favour of a particular group of Sikhs and against another group known as the " Shiromoni Akali Dal". Within one week, however, a notice was given for calling a meeting to consider the provisions of the amending Bill; this meeting could not, however, be held as an order of stay was obtained from the Judicial Commission constituted under the principal Act. In December 1958 a special session of the Vidhan Sabha was summoned to consider the amending Bill. It has been stated that originally the amending Bill did not contain provisions like those later embodied in section 148 B. The Bill was accordingly sent back to the regional committees and on December 27, 1958, the regional committees submitted a final report and recommended the addition of provisions which subsequently became the provisions of section 148 B of the principal Act. It may be here stated that even in the regional committees there was some opposition to the provisions in question. On December 31, 1958, the Bill was passed by the Vidhan Sabha, and on January 3, 1959, it was passed by the Legislative Council. On January 8, 1959, it received the assent of the Governor and became Punjab Act No. 1 of 1959, which is the Amending Act of 1959. It came into force at once and some rules under the Act were made a few days after. On February 2, 1959, the present petition was filed and on February 14, 1959, the election of 35 Sikhs contemplated under el. (b) of sub section (1) of section 148 B was completed. 504 It is necessary at this stage to refer to some of the old provisions of the principal Act as also the new provisions added by the amending Act of 1959. The Board which is known as the Sikh Gurdwara Prabandhak Committee acts as the committee of management in respect of some of the principal Sikh gurdwaras; in addition, it also has the duty of ensuring that every committee of management deals with the property and income of the gurdwara or gurdwaras managed by it in accordance with the provisions of the Act and for the fulfilment of this duty it exercises control, direction and general superintendence over all committees appointed under the provisions of the principal Act (see section 125). The Board is constituted under section 43 of the principal Act. Previous to the passing of Punjab Act No. 44 of 1953, section 43 said that the Board shall consist of (i) 84 elected members, (ii) the bead ministers of certain well known Sikh gurdwaras, (iii) 12 members nominated by the Rajpramukh of Pepsu and (iv) 17 members resident in India of whom not more than four shall be residents in Punjab, co opted by the members of the Board as described in (i), (ii) and (iii) above. In 1953 was passed Punjab Act No. 44 of 1953 and section 43 of the principal Act was amended. The amended section was in these terms: " section 43. (1) The Board shall consist of (i) one hundred and thirty two elected members; (ii) the head ministers of the Darbar Sahib, Amritsar, and the following four Takhts, namely,the Sri Akali Takht Sahib, Amritsar, the Sri Takht Kesgarh Sahib, Anandpur, the Sri Takht Patna Sahib, Patna, and the Sri Takht Nazur Sahib, Hyderabad Deccan ; and (iii)twenty five members resident in India of whom at least twelve shall be residents of Pepsu, at least nine of other parts of India than Punjab and Pepsu and not more than four of Punjab, co opted by the members of the Board as described in clauses (1) and (ii). (2). . . " It would thus appear that after the passing of Punjab 505 Act No. 44 of 1953 the Board consisted of only three categories of members, namely, (1) elected members, (2) certain designated members and (3) 25 co opted members. Now, we come to section 148 B which was added by the amending Act of 1959. That section in so far as it is material for our purpose is in these terms : " section 148 B. (1) As from the commencement of the Amending Act, in addition to the members of the Board constituted under section 43 and till the next election of the new Board under section 43 A (a)every person in the extended territories who, immediately before the commencement of the Amending Act, is a member of the Interim Gurdwara Board, Patiala, constituted by Punjab Government, Home Department, Notification No. 18 Gurdwaras, dated the 10th January, 1958, shall be deemed to be a member of the Board, constituted under section 43; and (b)thirty five Sikhs including six Sikhs belonging to the Scheduled Castes residents in the extended territories, to be divided among different districts thereof in proportion to the Sikh population of each district in the prescribed manner, who shall, within forty days of the commencement of the Amending Act, be elected by the persons specified in subsection (2) in accordance with the rules made in this behalf by the State Government, shall become the members of the Board from the date specified in subsection (3). (2) The thirty five persons referred to in clause (b) of sub section (1) shall be elected by (i) the persons who are deemed to be the members of the Board under clause (a) of sub section (1) ; (ii) the twelve members of the Board being residents of Pepsu as are referred to in clause (iii) of sub section (1) of section 43; (iii) the sitting Sikh members of Parliament and the two Houses of State Legislature returned from any constituency or part thereof from the extended territories; (iv) the Sikh members of Municipal Committees in the extended territories; 64 506 (v)the Presidents or Chairmen of such Singh Sabhas and the Managers or Secretaries of such Sikh educational institutions or Sikh religious organisations as are registered on or before the 1st December, 1958, in the extended territories; and (vi) the Sikh Sarpanches and Sikh Nayay Pardhans of Nagar Panchayats and Panchayati Adalats, respectively: Provided that the electors under clauses (iii), (iv), (v) and (vi) are not disqualified under the proviso to section 49 of the Act. (3) . . . . (4) . . . . (5) . . . . " It is worthy of note here that section 148 B occurs in chapter XII A and the heading of the chapter is " Temporary and Transitional Provisions " which indicates clearly enough that the provisions in sections 148 B to 148 F ate temporary and transitional provisions. It has been stated at the Bar that in about a year, a fresh election of the Board is due under section 43 A, and the temporary and transitional provisions in chapter XII A are to be in force only for the intervening period. Section 43 A which was also added by the amending Act of 1959 says "section 43 A. (1) Whenever a new Board within the meaning of section 51 is constituted, it shall consist of (i) one hundred and forty elected members; (ii) the Head Ministers of the Darbar Sahib, Amritsar, and the following four Takhats, namely : the Sri Takhat Sahib, Amritsar, the Sri Takhat Keshgarh Sahib, Anandpur, the Sri Takhat Patna Sahib, Patna, and the Sri Takhat Hazur Sahib, Nanded; and (iii) fifteen members resident in India, of whom not more than five shall be residents of Punjab, coopted by the members of the Board as described in clauses (i) and (ii). (2) The State Government shall, as soon as may be, call a meeting of the members of the Board described in clauses (i) and (ii) of sub section (1) for the 507 purpose of co opting the members described in clause (iii) of that sub section, and after the members have been co opted, the State Government shall notify the fact of the Board having been duly constituted and the date of the publication of the notification shall be deemed to be the date of the constitution of the Board. " Thus, the new or permanent Board which will be constituted under section 43 A will consist of (1) one hundred and forty elected members, (2) five designated members, and (3) fifteen co opted members, and there will be no room for any nominated members therein. The petitioners have raised no objections to the constitution of the Board under section 43 A; all their objections are confined to the constitution of the Board under section 148 B, even though it is a transient provision for the transitional period only. What then are these objections, in so far as they bear on the alleged violation of the petitioners ' fundamental right under article 26 (b) of the Constitution ? Learned counsel for the petitioners has first commented on what he has characterised as undue haste in passing the amending Act of 1959. He has submitted that the Pepsu area came within the State of Punjab in November, 1956, and for about two years, the Punjab Government evinced no serious anxiety to extend the principal Act to that area; but from November 16, 1958, when the annual election of the Sikh Gurdwara Prabandhak Committee was held, up to January, 1959, when the amending Act of 1959 was passed, hurried proceedings were taken to enact the amending law in question and so constitute the Board that a particular group of Sikhs might not regain the majority it had lost on November 16, 1958. In our opinion these submissions (we do not say whether they are right or wrong) have no hearing on the question at issue before us. The petitioners have not specifically alleged in their petition that the State Government has acted in any mala fide manner; and whatever justification some people may feel in their criticisms of the political wisdom of a particular legislative or executive action, this Court cannot be called 508 upon to embark on an enquiry into public policy or investigate into questions of political wisdom or even to pronounce upon motives of the legislature in enacting a law which it is otherwise competent to make. We do not say that in pronouncing on the rights of the parties before it, this Court must always stand aloof on the chill and distant heights of abstract logic and pay no heed to the great tides and currents which move society and men. If and when the occasion demands, for example, when there is violation of a fundamental right guaranteed by the Constitution, it will never hesitate to act. But it is well to remember that a fundamental right, such as freedom of religion, is of an enduring character and must stand beyond the sweep of changing and deflecting forces of current opinion. Our limited function in this case, therefore, is to examine the constitutionality of section 148 B, and to that task we must now confine our attention. The main argument of learned counsel for the petitioners is that article 26(b) gives to every religious denomination, or any section thereof, the right " to manage its own affairs in matters of religion " and the right is subject only to public order, morality and health. In this case, according to him, the right is given to all members of the Sikh denomination and not to any particular members thereof, to manage Sikh gurdwaras ; therefore, the right must be exercised by all Sikhs, and they alone must elect their representatives to manage Sikh gurdwaras; and to the extent that section 148 B departs from the aforesaid principle, it con stitutes an infringement of the right guaranteed to the petitioners under article 26(b) of the Constitution. We are unable to accept this argument as correct. Article 26 of the Constitution, so far as it is relevant for our purpose, says " article 26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right (a). . . . . (b) to manage its own affairs in matters of religion 509 (d) to administer such property in accordance with law. The distinction between cls. (b) and (d) strikes one at once. So far as administration of its property is con cerned, the right of a religious denomination is to be exercised in " accordance with law ", but there is no such qualification in el. In The COmmissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1), this distinction was pointed out by this Court and it was there observed: " The administration of its property by a religious denomination has thus been placed OD a different footing from the right to manage its own affairs in matter of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose ". Secondly, the expression used in cl. (b) is 'in matters of religion '. In what sense has the word 'religion ' been used ? This was considered in two decisions of this Court: The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shiru Mutt (1) and Sri Venkataramana Devaru vs The State of Mysore (2), and it was hold that freedom of religion in our Constitution is not confined to religious beliefs only, but extends to essential religious practices as well subject to the restrictions which the Constitution has laid down. In The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1) it was observed at p. 1026 that under article 26(b), a religious denomination or Organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold (we emphasise here the word 'essential '). The same emphasis was laid in the later decision of Sri Venkataramana Devaru vs The State of Mysore (2), where it was said that matters of religion in article 26(b) include practices which are regarded by the community as part of its religion. Two questions, therefore, (1) ; ,1023, 1026. (2) ; 510 arise in connection with the argument of learned counsel for the petitioners: (1) does section 148 B added to the principal Act by the amending Act of 1959 have reference only to administration of property of Sikh gurdwaras and, therefore, must be judged by cl. (d) of article 26 or (2) does it affect ' matters of religion ' within the meaning of cl. (b) of the said Article ? The argument on behalf of the petitioners is that the principal Act to which section 148_B has been added relates not merely to administration of properties of Sikh gurdwaras but also to matters of religion and in so far as section 148 B brings in new members into the Board, it affects Sikhs in their religious affairs. The argument on behalf of the respondent State is that matters of religion in the sense of essential beliefs and practices of the Sikh faith are left untouched by section 148 B, and even other relevant sections of the principal Act do not interfere with Sikh religion. In this connection, our attention has been drawn to the provisions in Ch. X which deal with the powers and duties of the Board and to those in Ch. XI which deal with powers and duties of Committees. Section 125, to which we have already referred, states that the duty of the Board is to ensure that every Committee deals with the property and income of the gurdwara or gurdwaras it manages in accordance with the provisions of the Act and in fulfilment of that duty, the Board has vested in it control, direction and general superintendence over all committees appointed under the provisions of the Act. Section 129 states " section 129. The Board in any meeting may consider and discuss any matter with which it has power under this Act to deal and any matter directly connected with the Sikh religion, but shall not consider or discuss, or pass any resolution or order upon, any other matter. " If section 129 is read subject to section 125 as the learned Advocate General for the State contends it should be read, then the powers and duties of the Board, in substance and effect, relate to administration of gurdwara properties and matters ancillary thereto. They have 511 hardly any reference to ' matters of religion '. Section 133 states generally the powers of Committees, and one of the powers is I enforcing the proper observance of all ceremonies and religious observances in connexion with such gurdwara or gurdwaras and of taking all such measures as may be necessary to ensure the proper management of the gurdwara or gurdwaras and the efficient administration of the property, income and endowments thereof. ' Learned counsel for the petitioners has emphasised that part of the section which relates to I proper observance of all ceremonies and religious observances ' and has contended that as the Board is the committee in respect of some of the principal gurdwaras, it has a duty to ensure proper observance of all essential religious ceremonies of the Sikh faith, which according to him is a I matter of religion '. Under section 134, the Committee has power inter alia to dismiss an office holder or minister, if he fails in the performance of 'any rituals and ceremonies in accordance with the teachings Of Sri Guru Granth Sahib ' or has ceased to be a Sikh ; it is contended that this power also relates to a 'matter of religion ' within the meaning of article 26(b). Without a fuller and more detailed examination of the provisions of the principal Act we hesitate to pronounce finally on the larger question if any of the other provisions of the principal Act affect matters of religion ; nor do we think it necessary to decide that larger question in the present case. We are of the view that the present petition can be decided on a shorter ground, even if we proceed on the assumption that some of the provisions of the principal Act relate to matters of religion and the Board, either acting in exercise of its power of control, direction and superintendence over other committees or in its capacity as the committee for certain gurdwaras, can pass orders about matters of religion. We may point out, however, that the preamble of the principal Act indicates that it is mainly a law to provide for the better administration of certain Sikh gurdwaras and it is admitted that in so far as the powers of the Board relate to mere administration of gurdwara properties in either 512 of its two capacities, such administration must be in accordance with law, and the appropriate legislature can lay down what the law should be. The question which is decisive of the present petition is does section 148 B interfere in matters of religion ? Sections 133 and 134 of the principal Act are not impugned before us; what is impugned is section 148 B. That section has not in any way affected whatever powers the Board or Committee has under sections 133 and 134 of the principal Act. The gravamen of the objections urged on behalf of the petitioners is that section 148 B introduces even though as a temporary measure, some more designated Sikh Members into the Board by cl. (a) of sub.s. (1) thereof and further introduces the election of thirty five Sikhs (from the Pepsu area) into the Board by means of an indirect method, that is, by a limited Sikh electorate, the members of which electorate are in their turn elected by Sikhs as well as non Sikhs. In order to establish their case, the petitioners must prove not merely that some provisions Of the principal Act refer to matters of religion, but that the introduction of new members into the Board in respect of the extended territories of the Pepsu area, in the manner envisaged by section 148 B, violates by itself the right of the Sikhs in a matter of religion. Learned counsel for the petitioners is thus forced to take up the stand that a direct election of the members of the Board by the entire Sikh community is itself a matter of the Sikh religion and, therefore, part of the content of the right Guaranteed under article 26(b). We do not think that such a stand is correct or justified by article 26 of the Constitution: nor has any authoritative text been placed before us to show that a direct election by the entire Sikh community in the management of gurdwaras is part of the Sikh religion. The principal Act, as it stood before the amending, Act of 1959, does not support any such contention. However great our respect may be for the democratic principle of direct elections we do not think that having regard to the provisions of ' the principal Act and the circumstances in which section 148 B came to be added thereto, the principle of direct 513 election on universal denominational suffrage can be raised to the pedestal of religion within the meaning of article 26(b) of the Constitution. If it were so raised, then the co option of some members which has not been challenged by the petitioners would also be violative of their fundamental right; so also any restrictions which the principal Act or the rules made thereunder may impose in the matter of election or the exercise of the vote, such as, restrictions with regard to the age of the voter, etc. Obviously, these are not matters of religion and we say without meaning any offence to anybody that to treat these as matters of religion is tantamount to confusing religion with current politics. It is to be remembered that the principal Act constituted a Board representative of the Sikhs both inside Punjab and outside it; that is why in the constitution of the Board there was provision for election, nomination, designation of the head ministers of certain principal Sikh gurdwaras, and also co option. The purpose obviously was to make the Board as representative as possible, and because an Act passed by the Punjab legislature could not contain provisions for the election of members from constituencies outside the Punjab, there arose the necessity for nomination, designation and co option. The designation of the head ministers of the five principal Sikh shrines may be also attributed to the reason that they were important functionaries who should be on the Board. In 1953, nomination was done away with and the number of co opted members was increased to twentyfive, of whom at least twelve were to be residents of Pepsu. This was even before the principal Act was extended to the Pepsu area. When the amending Act of 1959 extended the principal Act to the Pepsu area, the problem at once arose as to how to give some representation to the Sikhs in the extended areas, for the intervening period before the next election of the Board, and also as a permanent measure: section 148 B gives representation to those areas as an interim measure and section 43 A as a permanent measure. Considering section 148 B in the light of these circumstances, we 65 514 are unable to hold that it violates the fundamental right of the Sikhs under article 26(b) of the Constitution. The method of representation for the extended areas during the interim period appears to us to be an arrangement dictated merely by considerations of convenience and expediency, and does not involve any principle of religion. The question before us is not whether a more satisfactory arrangement could have been made even for the interim period ; perhaps, it could have been. Learned counsel for the petitioners has pointed out that many Sikhs of influence and standing in the Pepsu area will have no vote for the interim period. That may be unfortunate, but is not a relevant consideration for determining the question before us, namely, whether there has been interference with freedom of religion. We now proceed to consider the specific grievances which the petitioners have made in respect of the persons who come into the Board under section 148 B. As to the members of the Interim Board, Patiala, who under cl. (a) of sub section (1) of section 148 B are deemed to be members of the Board constituted under section 43, it is argued that they were appointed under a Punjab Government notification dated January 10, 1958, and though they are Sikhs, they do not represent the Sikh community and are mere nominees of Government; furthermore, they are not subject to the disqualifications mentioned in sections 45 and 46 of the Act in respect of elected and co opted members respectively. We have pointed out earlier that the principal Act contained a provision before 1953 for nomination of 12 members by the Rajpramukh of Pepsu; and after 1953, the co opted members included twelve residents of Pepsu. By an order of the Maharaja of Patiala, the Interim Gurdwara Board, Patiala, was constituted to look after certain gurdwaras of the Pepsu area, and after merger the appointment was made by the Governor of the Punjab. Under section 148 A which was also added to the principal Act by the amending Act of 1959, the Interim Gurdwara Board, Patiala, has ceased to function, and under section 148 B(1)(a) the members of the Interim Board, Patiala, have become members 515 of the Board constituted under section 43. We are unable to hold that the designation of such members, as an interim measure, to represent those gurdwaras in the Pepsu area which they were actually managing is violative of any fundamental right; nor do we think that the non application of the disqualifications stated in sections 45 and 46 of the Act to these members advances the case of the petitioners any further. The principal Act did not contain any provisions as to disqualification of designated members; it contained provisions for disqualification of elected, nominated or co opted members and after nomination had ceased in 1953, of elected or co opted members only. It is permissible to presume that the legislature knows that the members it is designating do not suffer from any disqualifications furthermore, the petitioners have not even suggested in their petition that the members of the Interim Board, Patiala, suffer from any Of the disqualifications stated in section 45 or section 46. With regard to the thirty five Sikhs to be elected under cl. (b) of sub section (1) of section 148 B, there is a threefold contention. It has been submitted that (1) the electorate detailed in sub section (2) of section 148 B is not representative of all the Sikhs ; (2) some of the members of the electorate like Sikh members of Parliament and Municipal Committees are in their turn elected by joint constituencies of Sikhs and non Sikhs; and (3) some of the members of the electorate like Sikh Sarpanches and Sikh Naya Pradhans are in the service, and under the influence of Government. We do not agree that these considerations are determinative of the problem before us. We have already said that the method of representation to the Board for the extended areas as an interim measure is not a matter of religion. The circumstance that some members of the electorate are in their turn elected by constituencies consisting of Sikhs and non Sikhs is far too remote and indirect to constitute an infringement of freedom of religion. The members of the electorate itself are all Sikhs and they have to elect thirty five Sikhs. Unless one proceeds mechanically on mere abstract considerations, there is no real basis for the 516 contention that non Sikhs can in any way influence the Board. We do not agree that Sikh Sarpanches and Naya Pradhans are in the service of Government or that their inclusion as members of the electorate violates the right of the Sikhs under article 26 (b) of the Constitution. It may not be quite irrelevant to point out here that the twelve members of the Interim Gurdwara Board, Patiala, plus thirty five elected Sikhs from the Pepsu area will be a minority as against 132 elected members and twenty five co opted members of the Board. For the reasons given above, we hold that the petitioners have failed to make out a case of violation of their fundamental right. Accordingly, the petition fails and is dismissed with costs. Petition dismissed.

In 1925 the Sikh Gurdwaras Act, 1925, was passed, inter alia, for the better administration of certain Sikh Gurdwaras, and after the merger of the erstwhile State of Patiala and the East Punjab States Union, called Pepsu, with the State of Punjab, the Act was amended by the Sikh Gurdwaras (Amendment) Act, 1959, in order to extend the Act to the area which was formerly within Pepsu. Under section 43 of the Act, before it was amended in 959, a Board had been constituted, called the Sikh (1) Lah. 500 Gurdwara Prabandhak Committee, to act as the committee of management in respect of some of the principal Sikh Gurd waras and in addition to exercise control, direction and general superintendence over all committees appointed under the provisions of the Act ; the Board consisted of three categories of members, namely (1) elected members, (2) certain designated members, and (3) co opted members, which included persons residing in Pepsu and other parts of India. By the Amending Act of 1959, S 148B was added to the main Act, which provided: " (1) As from the commencement of the Amending Act, in addition to the members of the Board constituted under section 43 (a) every person in the extended territories who immediately before the commencement of the Amending Act, is a member of the Interim Gurdwara Board, Patiala, constituted by Punjab Government shall be deemed to be a member of the Board, constituted under section 43 ; and (b) thirty five Sikhs including six Sikhs belonging to the Scheduled Castes residents in the extended territories who shall be elected by the persons specified in sub section (2) in accordance with the rules made in this behalf by the State Government, shall become the members of the Board. .". The petitioners who profess and practice the Sikh faith filed a petition under article 32 Of the Constitution challenging the constitutional validity of section 148B on the ground that the section violated the fundamental right granted under article 26(b) of the Constitution to every religious denomination or any section thereof including the Sikh denomination " to manage its own affairs in matters of religion". They contended, inter alia, (1) that the amending Act of 1959 was passed with a view that a particular group of Sikhs might not regain the majority it had lost on November 16, 1958, when the annual election of the Sikh Gurdwara Prabandhak Committee was held; (2) that the members of the Interim Board, Patiala, who under section 148B(1)(a) are deemed to be members of the Board constituted under section 43, were appointed under a Punjab Government notification, and being merely nominees of Government did not represent the Sikh Community; that under section 148B thirty five Sikhs from the extended area were introduced into the Board by means of an indirect method, that is, by a limited Sikh electorate, the members of which electorate were in their turn elected by Sikhs as well as non Sikhs ; that the right guaranteed under article 26(b) was given to all members of the Sikh denomination to manage Sikh Gurdwaras, that the right must be exercised by all Sikhs who alone must elect their representatives and that the introduction of new members into the Board in respect of the extended territories in the manner envisaged by section 148B, violated by itself the right of the Sikhs in a matter of religion and constituted an infringement of their fundamental right under article 26(b). Held : (1) that in considering the question as to whether a 501 provision of law is constitutionally valid, the court cannot be called upon to embark on an enquiry into public policy or investigate into questions of political wisdom or even to pronounce upon motives of the legislature in enacting a law which it is otherwise competent to make ; (2) that a direct election by the entire Sikh Community in the management of Gurdwaras is not part of the Sikh religion; and, (3) that the method of representation for the extended areas under section 148B of the Act was an arrangement dictated merely by considerations of convenience and expediency, and did not involve any principle of religion. Accordingly, section I48B of the Act ( lid not affect " matters of religion " within the meaning of article 26(b) of the Constitution and consequently did not contravene the fundamental right under that Article. The Commissioner, Hindu, Religious Endowments, Madyas v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, ; and Sri Venkataramana Devaru vs The State of Mysore; ; , referred to.

ivil Appeal No. 3551 of 1979. the Judgment and Order dated 20/21.8.1979 of the Gujarat High Court in C.R. Appln. No. 1218 of 1977. 293 Dr. Shankar Ghosh, P.H. Parekh and Ayesh Misra for the Appellant. T.U. Mehta, R.C. Bhatia and P.C. Kapur for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Whether the appellant herein and his father had sublet the premises in question in or about 1960 in terms of section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called the 'Rent Act ') is ' the question involved in this appeal by special leave from the judgment and order of the High Court of Gujarat dated 21st of August, 1979. In order to decide this question, it is necessary to decide the scope and ambit of section 29(2) of the Rent Act. To decide this, facts must be referred to. The appellant claimed to be the tenant in respect of the two premises which are quite adjacent to each other, one of which is involved in this appeal. The respondent is the landlord of the two premises and these were situated at Raikhad Ward, Ahmedabad. The respondent had alleged in the two suits that the appellant was his tenant in the suit premises which were leased out to him and before him his father, for conducting the business in the name of Ahmedabad Fine & Weaving Works and according to the terms of tenancy suit premises were leased for manufacturing cloth in the name of Ahmedabad Fine & Weaving Works. The respondent had further alleged that the appellant No. 1 had closed the business and he was not using the said premises for the purpose for which it was let to him. It was the case of the appellant that in respect of the suit premises he was carry ing on his business with respondents Nos. 2, 4 and 5 in the name of respondent No. 2, M/s. Bharat Neon Signs (hereinaf ter referred to as respondent No. 2). We are concerned in this appeal with only one of the premises which was involved in Suit No. 553 of 1969. It is not in dispute and it never was that the premises was being used by Bharat Neon Signs firm being the defendant No. 2 in the original suit. At the time of the institution of the suit the defendants Nos. 2 to 5 were admittedly the part ners. The present appellant who was the original defendant No. 1 claimed to be a partner. The main controversy was whether the appellant had sublet the premises to defendant No. 2, Bharat Neon Signs or 294 whether he being a partner of the said firm had permitted the said firm to use the premises in question. It is clear from the evidence on record that the partnership firm had undergone metamorphosis from time to time and again ever since the year 1960. The firm Bharat Neon Signs first origi nated on 4th of October, 1960. As many as six persons were named in the partnership firm, on or about 4th of October, 1960 and they had executed a deed of partnership on 13th of October, 1960 which is Exhibit 114 on the record. The said partnership deed records six persons who were to run the business in manufacturing and selling Bharat Neon Signs tubes. However, the document is silent as to where the business was started. On or about 24th of October, 1960 another partnership deed being Exhibit 69 came to be execut ed among the six persons and the father of the appellant Girdharlal. The document is Exhibit 69 and is signed by the father of the appellant and the appellant himself also. It may be mentioned that the partnership deed Exhibit 114 was executed by six persons and at that stage the appellant or his father were not partners in the firm. But thereafter when the partnership deed Exhibit 69 was executed the appel lant and his father joined the firm with an agreement to share profits only and their share was fixed at 0.03 paise in a rupee. There is a third partnership deed Exhibit 70 which showed that the deceased tenant Girdharlal had died on 1st of February, 1961 and so by the remaining seven partners with same terms and conditions, a new partnership deed being Exhibit 70 was executed on 22nd September, 1961. At this time the share of the appellant was fixed at 0.03 paise in a rupee to share the profits only. In 1965 some partners retired and the remaining four partners executed a fresh partnership deed Exhibit 117 on 1st April, 1965. This last partnership deed was executed by the appellant and original defendants Nos. 3, 4 and 5. The main question in issue in this appeal as well as before the High Court in revision was whether there was a genuine partnership at the appellant was a partner. It is true that since after 4th of October, 1960 the partnership firm was carrying on business in the premises in question. It is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to the forfeiture of the tenan cy. For this proposition see the decision of the Gujarat High Court in the case of Mehta Jagjivan Vanechand vs Doshi Vanechand Harakhchand and others, A.I.R. 1972 Gujarat 6. Thakkar, J. of the Gujarat High Court, as the learned Judge then was, held that the mere fact that a tenant entered into a partnership and allowed the premises being used for the benefit of partnership does not constitute assign 295 ment or subletting in favour of the partnership firm enti tling a landlord to recover possession. This view is now concluded by the decision of this Court in Madras Bangalore Transport Co. (West) vs Inder Singh and others, The trial court in the instant appeal held that there was subletting. It accordingly decreed the suit for posses sion instituted by the landlord. The suit, inter alia, was filed by the landlord on the ground of subletting. There was an appeal before the Court of Small Causes, Bombay and by judgment and order delivered by the Court of Small Causes, Bombay on 18th of August, 1977, it was held that the learned Trial Judge had erred in passing a decree for possession on the ground of subletting, change of user and breach of terms of tenancy. In the premises, the appeal was allowed. It may be mentioned that the respondent No. 1 is the landlord of two premises which were quite adjacent as mentioned before. The respondent plaintiff had alleged in both the suits that the appellant was his tenant in the suit premises which were leased to him for conducting his business in the name of Ahmedabad Fine & Weaving Works, and according to the terms of tenancy suit, the suit premises were leased for manufac turing cloth in the name of Ahmedabad Fine & Weaving Works. The landlord had alleged that the appellant had closed that business and he was not using the premises in question for the purpose for which it was let to him. It was further alleged by the landlord that the appellant had unlawfully sublet the major part of the premises in question of both the suits to defendant Nos. 2 to 5 in the original suit and these defendants were running business in partnership for manufacturing of neon signs in the name of Bharat Neon Signs. It was further alleged that the appellant had also unlawfully sublet one room of the suit premises to defendant No. 6 in Suit No. 553 of 1969 who was residing in that room. For the purpose of the Suit No. 553 of 1969 with which the appeal is concerned, it is relevant to state that the appel lant had raised the contention that Ahmedabad Fine & Weaving Works was not the tenant of the suit premies but the suit premises was tenanted by the father of the appellant Gird harlal Chimalal in 1938 and he was the original tenant of the premises and appellant subsequently joined the business of his father as a partner and the name of the partnership firm was Ahmedabad Fine Weaving Works. He has stated further that the suit premises were to be used for business and he could use it for any business and he joined in partnership with Defendants Nos. 2 to 5 somewhere in 1961 to prepare neon signs and the defendants Nos. 2 to 5 were his partners and doing business in the suit premises. He contended fur ther that the suit premises was with him and the 296 defendants Nos. 2 to 5 had not acquired any tenancy rights in the suit premises. It is further stated that he had filed a civil suit to dissolve the partnership and to take account and his suit was pending in City Civil Court. It may be mentioned that by the time the revision petition came to be decided by the High Court the suit had been decreed in his favour directing a dissolution of the said partnership and directing taking of the accounts. There was an appeal filed from that decree and that appeal was also dismissed and disposed of affirming the decree for the dissolution of the partnership, inter se between the parties being the partners of the said firm. These facts were accepted that there was a partnership. As mentioned hereinbefore the learned trial Judge consolidated both the suits and in the instant suit being No. 553 of 1969 with which this appeal is concerned, it was held by the learned trial Judge that there was unlaw ful subletting. There was a decree for possession. This was set aside in appeal. The Appellate Court so far as the material for the present appeal is concerned held that there was no subletting and there was only carrying on of the business in partnership with defendants Nos. 2 to 5 in the name of Bharat Neon Signs. Therefore, the first question that had to be decided by the Appellate Court being the Court of Small Causes, Bombay and if a revision lay before the High court was whether there was any genuine partnership. The partnership deeds were there, the appellant was not to share in the losses. The Court of Small Causes came to the conclusion on an analysis of the evidence before it and the terms of the three partnership deeds referred to hereinbefore that there was a genuine partnership in law which was acted upon. The High Court in revision reversed that finding. The first question therefore, is, whether the High Court could do so in the facts of this case and second ly whether the High Court was right in so doing. Whether there was a partnership or not may in certain cases be a mixed question of law and fact, in the sense that whether the ingredients of partnership as embodied in the law of partnership were there in.a particular case or not must be judged in the light of the principles applicable to partnership. The first question, therefore, is what is a partnership? That has to be found in section 4 of the , it says "Partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all" (Emphasis supplied). Section 6 of the said Act reiterates that in determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, 297 regard shall be had to the real relation between the par ties, as shown by all relevant facts taken together. The following important elements must be there in order to establish partnership, (1) there must be an agreement en tered into by all parties concerned, (2) the agreement must be to share profits of business; and (3) the business must be carried on by all or any of the persons concerned acting for all. The partnership deeds were there entitling the petitioner to share in the partnership. It is true that in the partnership deeds the bank accounts were not to be operated by the appellant, and further that irrespective of the profit the clause of the partnership deed provided that there should be a fixed percentage of profit to be given to the partner appellant No. 1. The appellant was not to share the losses. But there is nothing illegal about it. The appellant was to bring his asset being the tenancy of the premises in question for the user of the partnership. All these tests were borne in mind by the Court of Small Causes, Bombay in the appeal from the decision of the learned trial Judge. The Appellate Court had considered the partnership deeds. One point was emphasised by Mr. Mehta, learned coun sel appearing for the respondents, that the original first partnership deed did not mention the appellant or his father as a partner. It was in the second partnership deed that the appellant and his father joined the firm. The firm started as emphasised by Mr. Mehta on 4th of October, 1960 and it was only on the 24th of October, 1960 the second partnership deed was executed. Therefore, it was emphasised that there was a gap of time when there was user by the partnership firm of the premises in question when the appellant was not a member of the firm. It was emphasised that this aspect was not considered by the Court of Small Causes and the High Court, therefore, was justified in interfering with the findings of the Court of Small Causes. We are unable to agree. These deeds were there, the partners were cross examined, there was no specific evidence as to from what date the firm started functioning from the particular prem ises in question. Secondly, it was emphasised by Mr. Mehta that the partnership deed was a camouflage. It is evident from the sales tax registration and other registration certificates and licences under the Shops and Establishments Act that the partnership was registered in the name of the appellant and the appellant was also indicated as a partner. It was so in the Income Tax returns and assessments. There fore, it was submitted that the Court of Small Causes com mitted an error of law resulting in miscarriage of justice. It was submitted by Mr. Mehta that once it was accepted that the partnership deed was a mere camouflage the other subse quent acts and conducts were merely ancillary and were put in a formal way. But the question is from the three deeds itself which were examined in detail by the Court 298 of Small Causes and which were re examined by the High Court could it be said unequivocally that there was no partner ship. The deeds gave the appellant the right to share the profits and made him agent for certain limited purposes of the firm and there was evidence that the partnership deeds were acted upon. There was evidence of suit of dissolution of the partnership where none of the partners took the plea that it was a false or a fictitious document. Though the decree in the dissolution suit was not binding in these proceedings, inter se between the parties as partners it is a piece of evidence which cannot be wholly ignored. All these factors were present before the Court of Small Causes. These were reappraised by the High Court. One point was emphasised by Mr. Mehta that in the partnership deed which is not necessary to recite the terms, the petitioner was completely excluded in operating the bank accounts etc. There is nothing inherently illegal or improbable making a provision of such a type. In the eye of law, such a clause is really non sequitur or neutral proving neither the exist ence nor non existence of a genuine firm. The first partnership deed which is Exhibit 114 is dated 13th October, 1960. It recited that the partnership firm should be presently started at Ahmedabad and the same should later be started in another city. In this the appellant was not a partner. Exhibit 69 at page 136 of Volume II of the paper book is a partnership deed wherein Girdharlal the father of the Appellant No. 1 and the appellant No. 1 joined as partners. It recited that the partnership started from 4th of October, 1960 at Ahmedabad. It was registered in the name of 7th and 8th partners, Girdharlal who was the appel lant and his father. It was recited that the work of the partnership would be done by the parties of the fourth, fifth, sixth, seventh and eighth as per advice and instruc tions of the first, second and third. All the work had been done by some of the partners of which appellants were not parties and that they had to do the said work as per in structions of the other partners. Clauses 6 and 7 of the said partnership deed recited inter alia as follows: "6. The year of accounts of our partnership shall be Aso Vadi 30th day i.e. Diwali and the first account year is decided to be the Aso Vadi 30th day of Samvat Year 2017. While settling accounts at the close of the year, 33% amount from the sum which may remain as net profit after deducting all expenditures, viz interest, discount, rent of the shop, rent of the godown, insurance, brokerage, travelling, tele grams, postage, salaries of employees, etc. shall 299 be carried to Reserve Fund and thereafter, in the sum that remains as net profit, the shares of us the partners have been fixed as under: Rs. Np. Ratanlal Jivabhai. 0 16 2. Manubhai Lalbhai. 0 16 3. Keshavlal Mulchand. 0 05 4. Kantilal Bhogilal. 0 10 5. Virchand Keshavji. 0 23 6. Satyapal Jeshal. 0 24 7. Girdharlal Chimanlal. 0 03 8. Helper Girdharlal. 0 03 0 100 i.e. Re. 1/ 7. While settling accounts at the close of the year, if the sum less than Rs. 1500 falls to the 0 03 shares of the partners of the seventh and eighth parts, the amount falling short has to be debited towards the head of expenditure and Rs. 1500 (fifteen hundred only) have to be paid in full to each of them two, and in those circumstances or if there be loss, the parties of the seventh or eighth parts have not been held liable therefore; and in the year or ' losses, it has been decided to pay Rs. 1500 (fifteen hundred only) to each of them, after debiting the same towards the head of expenditure and in the year of losses nothing has to be carried to the 'Reserve Fund ' and the loss has to be borne by us to parties first to sixth parts in the following proportion: 1. Ratanlal Jivabhai 0 17 2. Manubhai Lalbhai 0 17 3. Keshavlal Mulchand 0 05 4. Kantilal Bhogilal 0 11 5. Virchand Keshavji 0 25 6. Satyapal Jeshal 0 25 0 100 i.e. Re. 1/ 300 Clause 8 empowered the operating of the bank accounts by partners other than the appellant and his father. We find intrinsically nothing improbable. It is embodied in the deeds the functioning of the partnership. The third partner ship which is dated 22nd of September, 1961 also indicates as parties of sixth part the name of the appellant. The relevant portion of the partnership deed reads as follows: "To wit, the parties of the first to sixth parts out of us, deceased Khristi Girdharbhai Chimanlal and Shah Virchand Keshavji had jointly started the business of manufacturing and selling Neon Signs Tubes, in partnership in Ahmedabad from 4.10.1960, in the name and style of Bharat Neon Signs. However, on account of the death of Khristi Girdharbhai Chimanlal on 1.2.61 and other reasons, the said partnership was dissolved from 8.9.61. Thereafter, we the parties from the first to seventh part have, after purchasing at its cost price, all the debts and dues, goods, stock etc., together with goodwill of the dissolved partnership, started manufac turing and selling of Neon Signs Tubes in partnership from 9.9.61. We, the parties of all the seven parts execute the deed of the said partnership to day i.e. 22.9.61. The terms and conditions thereof are as under: (1) The entire work of our partnership has to be carried out in the name of "Bharat Neon Signs. " (2) The work to be carried out by our partnership is of manufacturing and selling Neon Signs Tubes and of obtaining orders therefore. (3) Whatever moneys that may be required to be invested in our partnership, are to be invested by the parties of the first, second, third, fourth and seventh parts out of us and the interest at the rate of 71/2 per cent per annum has to be paid for the moneys that may be invested in this partnership. " We are of the opinion that these were evidence that these terms were acted upon. There was nothing intrinsically wrong in law in constituting a partnership in the manner it was done. It was contended by Mr. Mehta that there was no agency; reading the partnership deeds as we have read that conclusion does not emanate from position 301 appearing debiting the fixed amount payable to the appellant in the expenses account which also is not inconsistent with partnership. This is also not inconsistent with treating the rent of the firm in the context of the total expenditure of the firm. In any event all these factors were considered by the Court of Small Causes bearing in mind the correct legal principles. The High Court on a reappraisal of these very evidence came to the conclusion that the partnerships were camouflages and were not acted upon and in fact and in reality the partnership firm was a sub tenant of the appel lant herein. The question is, can the High Court do so in law. The power of the High Court to revise the order is contained in section 29(2) of the Bombay Rent Act as applicable at the relevant time to Gujarat, The said provision reads as fol lows: "29(2) no further appeal shall lie against any decision in appeal under sub section (1) but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit. " The ambit and power of revision generally and in particular with respect to the provisions with which we are concerned have from time to time come up for consideration by this Court. This Court in Hari Shankar vs Rao Girdhari Lal Chowd hury; , had to consider section 35(1) of the Delhi & Ajmer Rent Corntrol Act, 1952. The said section reads as follows: "35(1) The High Court may, at any time, call for the record of any case under this Act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation thereto as it thinks fit. " It was held in the majority judgment by HidayatuIIah, J. as the learned Chief Justice then was, that though section 35 of the Delhi and Ajmer Rent Control Act was worded in general terms but it did not create a right to have the case re heard. This Court emphasised that the distinction between an appeal and revision is a real one. A right to appeal carries with it right of re heating on law as well as fact, unless the statute conferring the right to appeal limits the re hearing in some 302 way. The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particu lar case is decided according to law. The expression "ac cording to law" in section 35 of the said Act referred to the decision as a whole, and was not to be equated to errors of law or of fact simpliciter. This Court was of the view that what the High Court could see is that there has been no miscarriage of justice and that the decision was according to law in the sense mentioned. Kapur, J. who delivered a separate judgment, however, observed that the power under section 35(1) of the said Act of interference by the High Court is not restricted to a proper trial according to law or error in regard to onus of proof or proper opportunity of being heard. It is very much wider than that, when in the opinion of the High Court the decision is erroneous on the question of law which affects the merits of the case or decision was manifestly unjust the High Court is entitled to interfere. The revisional authority could ensure that there was no miscarriage of justice and the principles of law have been correctly borne in mind, the facts had been properly comprehended in that light. If that was done in a particular case then the fact that the revisional authority or the High Court might have arrived to a different conclusion is irrel evant. This view had also been expressed in the decision of this Court in Puranchand vs Motilal, [1963] Supp. 2 S.C.R. 906. This principle was reiterated in Krishnawati vs Hans Raj, ; which was dealing with section 39(2) of the Delhi Rent Control Act, 1958 in second appeal. It was observed that under section 39(2) of the said Act, the High Court could interfere in second appeal only if there was a substantial question of law. In that case, the question whether the appellant was legally married no find ing was necessary in the eviction suit. It was sufficient for the rent court to proceed on the finding that the appel lant and S were living together as husband and wife, whether they were legally married or not. It was further held that whether there was subletting was not a mixed question of law and fact. In Phiroze Bamanji Desai vs Chandrakant M. Patel & Ors., ; the question involved was whether there was reasonable and bona fide requirement of premises for personal use and occupation as also the question of greater hardship under the Bombay Rent Act and the ambit and scope of the power of Section 29(3) of the said Act with which we are concerned came up for consideration. Bhagwati, J. as the learned Chief Justice then was, referred with approval the observations of Hidayatullah, J. referred to hereinbefore in Hari Shankar 's case (supra). Bhagwati, J. observed that the ambit of section 35(1) of the Delhi & Ajmer Rent Control Act which fell for consideration in Hari Shanker 's case (supra) was the same as section 29(3) of the Bombay Rent Act and therefore, he expressed the opinion that the 303 High Court could interfere only if there was miscarriage of justice due to mistake of law. We must take note of a decision in the case of M/s Kasturbhai Ramchand Panchal & Brothers and Others vs Firm of Mohanlal Nathubhai and Others, , upon which the High Court had placed great reliance in the judg ment under appeal. There the learned judge relying on sec tion 29(2) of the said Act held that the revisional power with which the High Court was vested under section 29(2) was not merely in the nature of jurisdictional control. It extended to corrections of all errors which would make the decision contrary to law. The legislature, the learned Judge, felt, further empowered High Court in its revisional jurisdiction to pass such order with respect thereto as it thought fit. The power according to the learned Judge was of the widest amplitude to pass such orders as the Court thought fit in order to do complete justice. He dealt with the human problem under section 13(2) of Bombay Rent Act considering the relative hardships of the landlord and the tenant and to arrive at a just solution he was of the opin ion that the court should have such wide field. The juris diction of High Court is to correct all errors of law going to the root of the decision which would, in such cases, include even perverse findings of facts, perverse in the sense that no reasonable person, acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. In this view in our opinion the ambit of the power was expressed in rather wide amplitude. As we read the power, the High Court must ensure that the principles of law have been correctly borne in mind. Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. It must be such a decision which no reasonable man could have arrived at. Lastly, such a decision does not lead to a miscarriage of justice. We must, however, guard our selves against permitting in the guise of revision substitu tion of one view where two views are possible and the Court of Small Causes has taken a particular view. If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute its own view with that the courts below because it considers it to be a better view. The fact that the High Court would have taken a different view is wholly irrelevant. Judged by that standard, we are of the opinion that the High Court in this case had exceeded its jurisdiction. In the case of Punamchandra Revashankar Joshi vs Ramjib hai Maganlal, Gujarat Law Reporter (1966) at page 807, the Gujarat High Court after dealing with the Gujarat Amendment Act (XVIII) of 1965 304 observed that the Legislature has not intended to equate the ambit of the power with the one exercised in an appeal. The authority vested in the High Court under the amendment still remained only in the domain of the jurisdiction and power of revision and no further. The amending provision, therefore, only related to procedure and not to any rights of the parties. This Court in the case of Bhai Chand Ratanshi vs Laxmis hanker Tribhavan, [1982] 1 Rent Control Journal 242 observed that where lower courts applied their minds properly in deciding a matter under section 13(2) of the Bombay Rent Act, the High Court could not substitute its own finding for the one reached by the courts below, on a reappraisal of evidence under section 29(2) of the Act as substituted by the Gujarat Act 18 of 1965. This Court reiterated that although the High Court had wider power than that which could be exercised under section 115 of C.P.C., yet its revisional power could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law. The High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of evidence. In the instant case the basic question is whether keep ing in background the partnership deeds referred to herein before and the facts that came to light, was there partner ship or not. Sharing of profits and contributing to losses were not the only elements in a partnership, existence of agency was essential and whether there was a partnership or not is a mixed question of law and fact, depending upon the varying circumstances in different cases. This view was reiterated by Chief Justice Beaumont, in Chimanram Motilal and another vs Jayantilal Chhaganlal and another, A.I.R. 1939 Bombay 410. Ramaswami, J. in Mohammed Musa Sahib (dead) and others vs N.K. Mohammed Ghouse Sahib and another, A.I.R. 1959 Madras 379 observed that whether the relation of part nership between two or more persons does or does not exit must depend on the real intention and contract of the par ties and not merely on their expressed intention. He also referred to section 4 of the Partnership Act about the principles of partnership namely, (1) there must be agree ment entered into by all the persons concerned; (2) the agreement must be to share the profits of a business; and (3) the business must be carried on by all or any of the persons concerned acting for all. In the instant case judged by the aforesaid principles, it is possible to hold that there was a partnership of which the appellant was a part ner. The Court of Small Causes considered these principles, evaluated the evidence and held that there was in fact and in law a partnership. Such a view was not an impossible one or a perverse one. 305 If that was so, there was nothing that could be clone about such a view, within the ambit and scope of the power of section 29(2) of the Rent Act. We may mention that in Gunda lapalli Rangamannar Chetty vs Desu Rangiah and others, A.I.R. 1954 Madras 182, Subba Rao, J. as the learned Chief Justice then was, held that there cannot be a subletting, unless the lessee parted with legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub lease. In the light of the aforesaid principles and the facts that have emerged, we are of the opinion that the High Court exceeded its jurisdiction under section 29(2) of the Rent Act. We are further of the opinion that the Court of Small Causes was right in the view it took and it was a possible view to take. In the result the appeal is allowed and the judgment and order of the Gujarat High Court dated 21st of August, 1979 are set aside. The order and judgment of the Court of Small Causes Ahmedabad dated 18th of August, 1977 are restored. The suit for possession is accordingly dis missed. The appellant herein is entitled to the costs throughout. P.S.S. Appeal allowed.

Sub section (2) of section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as it stood at the relevant time, barred further appeal against any decision in appeal under sub section (1), and instead conferred revisionary powers on the High Court in such a case. The appellant tenant was a partner in firm 'A ' which was carrying on business of manufacturing cloth in the suit premises. That business was closed on October 4, 1960 and a new firm 'B ' came into being to run the business in manufac turing and selling neon sign tubes. On October 13, 1960 a partnership deed was executed by six persons as partners of the new firm. The document was silent as to where the busi ness was started. On or about October 24, 1960 another partnership deed was executed by these six persons and the appellant and his father with an agreement to share only profits to the extent of 3 paise in a rupee. After the death of the appellant on February 1, 1961 a new partnership deed was executed by the remaining seven partners with the same terms and conditions. The respondent landlord filed eviction suits against the appellant defendant alleging that the premises which were leased to the appellant for manufacturing cloth in the name of firm 'A ' had been unlawfully sublet in major part to defendants 2 to 5 who were running business in partnership for manufacturing neon signs. The appellant contended that firm 'A ' was not the tenant of the suit premises, that his father was the original tenant with whom he had joined in business as a partner in firm 'A ', that the suit premises were to be used for business and he 290 could use it for any business, that he had joined firm 'B ' in partnership, that the suit premises was with him and defendants 2105 had not acquired any tenancy rights in the suit premises, and that lie had filed a civil suit to dis solve the partnership, and to take account which was later decreed in his favour and affirmed in appeal. The trial court held that there was unlawful subletting, and decreed the suit for possession. The appellate court, Court of Small Causes, found that the appellant was only carrying on the business in partnership with defendants 2 to 5 in the name of firm 'B ' in the suit premises, and held that there was no subletting, change of user, and breach of terms of tenancy. The High Court in revision on a reapprais al of evidence took the view that the partnership was a camouflage and was never acted upon, and in fact and in reality the partnership firm was a sub tenant of the appel lant. In the appeal by special leave it was contended for the appellant that there was a genuine partnership which was acted upon and this finding of the appellate court could not have been reversed by the High Court in revision under section 29(2) of the Act. For the respondents it was contended that the original first partnership deed did not mention that the appellant or his father was a partner, that it was in the second partnership deed that the appellant and his father joined the firm, that there was a gap of time when there was user by the partnership firm of the premises in question when the appellant was not a member of the firm, which fact was not considered by the appellate court, and that the partnership deed was a camouflage. Allowing the appeal, HELD: 1. The High Court exceeded its jurisdiction under section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 in reversing the view of the appellate court. [305BC] 2.1 The distinction between an appeal and revision is a real one. A right to appeal carries with it a right of re hearing on law as well as fact, unless the statute confer ring the right to appeal limits the re hearing in some way. The power to hear a revision is generally given to a superi or court to ensure that the principles of law have been correctly borne in mind, that the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind, that the decision is such which a reasonable man could have arrived at and which does not lead to a miscarriage of justice. [301H 302A; 303EF] 291 2.2 The Court must guard itself against permitting in the guise of revision substitution of one view where two views are possible and the appellate court has taken a particular view. If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute its own view with that of the courts below because it considers it to be a better law. The fact that the High Court would have taken a different view is wholly irrelevant. Whether there was a partnership or not is a mixed question of law and fact, depending upon the varying circumstances in dif ferent cases. [303FG; 304E] Hari Shankar vs Rao Girdhari Lal Chowdhiry, ; ; Puranchand vs Motilal, [1963] Suppl. 2 SCR 906; Krishnawati vs Hans Rai, ; ; Phiroze Bamanji Desai vs Chandrakant M. Patel & Ors., ; ; Bhai Chand Ratanshi vs Laxmishankar Tribhavan, [1982] 1 Rent Control Journal 242; M/s Kasturbhai Ramchand Panchal & Brothers and Others vs Firm of Mohanlal Nathubhai and Oth ers, and Punamchandra Revashankar Joshi vs Ramjibhai Maganlal. 7 Gujarat Law Reporter (1966) at page 807, referred to. In the instant case, the 'Court of Small Causes consid ered the principles of law, evaluated the evidence and held that there was in fact and in law a partnership. Such a view was not an impossible one or a perverse one. Therefore, there was nothing that could be done about such a view within the ambit and scope of the revisional powers under section 29(2) of the Act and the High Court could not have substi tuted its own finding for the one reached by the appellate court. [404H 305A; 304D] 3. Whether the ingredients of partnership as embodied in the law of partnership were there or not in a particular case must be judged in the fight of principles applicable to partnership, that is (1) there must be an agreement entered into by all the persons concerned, (2) the agreement must be to share the profits of a business, and (3) the business must be carried ou by all or any of the persons concerned acting for all. Sharing of profits and contributing to losses are not the only elements in a partnership, existence of agency is essential. [296FG; 304G; 304E] Chimanram Motilal and Another vs Jayantilal Chhaganlal and another, AIR 1939 Bombay 410 and Mohammed Musa Sahib (dead) and Others vs N.K. Mohammed Ghouse Sahib and Another, , referred to. In the instant case, judged by these principles it could not be said 292 unequivocally that there was no partnership. The partnership deeds gave the appellant the right to share the profits ' and made him an agent for certain limited purposes of the firm and there was evidence that the partnership deeds were acted upon. It is true that the bank accounts were not to be operated by the appellant, that he was to be given a fixed percentage of profit irrespective of profit and that he was not to share the losses. There is nothing inherently illegal or improper in making provision of such a type. In the eyes of law such a claim is really non sequitur or neutral prov ing neither the existence nor non existence of a genuine firm. The appellant was to bring in his asset being the tenancy of the premises in question for the user of the partnership. Debiting the fixed amount payable to the appel lant in the expenses account is also not inconsistent with partnership. This is also not inconsistent with treating the rent of the firm in the context of the total expenditure of the firm. There was evidence of a suit of dissolution of the partnership where none of the partners took the plea that it was a false or a fictitious document. Though the decree in the dissolution suit was not binding in these proceedings inter se between the parties as partners, it is a piece of evidence which cannot be wholly ignored. All these factors were present before the appellate court. These were reap praised by the High Court. [304G; 298A; 297B; 298C; 297C; 301A; 298B] 4. The partnership firm was carrying on business in the premises in question since October 4, 1961. If there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to forfeiture of the tenancy, for there cannot be a sublet ting, unless the lessee parted with the legal possession. The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sublease. [294FG; 305B] Madras Bangalore Transport Co. (West) vs Inder Singh and others, ; Mehta Jagjivan Vanechand vs Doshi Vanechand Harakhchand and others, (AIR 1972 Gujarat 6) and Gundalapalii Rangamannar Chetty vs Desu Rangiah and others, (AIR 1954 Madras 182), referred to.

ON: Civil Appeal No. 786 of 1976. From the Judgment and Order dated 12.1. 1976 of the Gujarat High Court in Special Civil Application No. 873 of 1970. 516 P.H. Parekh for the Appellant. Krishan Kumar for the Respondents. The Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of the High Court of Gujarat dismissing the appel lant 's writ petition made under Article 227 of the Constitu tion of India challenging the validity of the order of the Revenue Courts in dismissing the appellant 's suit for evic tion of respondents. Briefly, the facts giving rise to this appeal are: the respondents are tenants of agricultural land which had been let out to them by the appellant 's predecessors in title. The appellant made applications on behalf of minor Ashok Kumar for the eviction of the respondents on the ground that the agricultural land in dispute was bona fide required by the landlord for his personal cultivation. The appellant pleaded that the land in dispute had been bequeathed to him by his maternal grandmother under a Will and as such he was the landlord of the disputed land entitled to maintain the applications for eviction of the respondents under Section 29 read with Section 3 IA of the Bombay Tenancy and Agricul tural Lands Act 1948 (hereinafter referred to as the Act) as applicable to the State of Gujarat. The tenants raised a preliminary objection to the maintainability of the suit on the ground that the appellant being a transferee of the land from his maternal grandmother was not entitled to maintain the suit as a landlord under Section 31A of the Act, inas much as he had not inherited the property from his ances tors. The Mamlatdar upheld the preliminary objection and dismissed the eviction ' suit. On appeal the District Deputy Collector upheld the order of the Mamlatdar. The appellant preferred revision application before the Gujarat Revenue Tribunal at Ahmedabad but the same too was dismissed uphold ing the tenants ' objection. The appellant thereafter filed a writ petition under Article 227 of the Constitution before the High Court challenging the correctness of the view taken by the Revenue Courts. The High Court by its order dated 12.1. 1976 dismissed the writ petition on the finding that the view taken by the Revenue Courts in upholding the ten ants ' objection to the maintainability of the eviction suit was correct. The appellant has preferred this appeal against the aforesaid order of the High Court. There is no dispute that under Section 31A of the Act a landlord has a right to determine tenancy of agricultural land and to evict the 517 tenant on fulfilling the conditions prescribed therein. The conditions prescribed are that if the landlord has no other land of his own and if he has not. been cultivating person ally any other land, he is entitled to take possession of the land let out to a tenant to the extent of permissible ceiling area. If the land cultivated by the landlord person ally is less than the ceiling area he is entitled to take possession of so much area of land as would be sufficient to make up the area in his possession to the extent of ceiling area. further the income by the cultivation of the land of which he is entitled to take possession should be the prin cipal source of income for his maintenance. These conditions as laid down in clauses (a), (b) and (c) of Section 31A of the Act must be satisfied for making an application for the eviction of a tenant from agricultural land. In addition to these conditions, clause (d) further prescribes additional conditions which must also be fulfilled by the landlord. Section 31A(d) as amended by the Gujarat Act No. XVI of 196(1 reads as under: "31.A The right of a landlord to terminate a tenancy for cultivating the land personally under Section 31 shall be subject to the following conditions. (a) . . . . . . . . (b) . . . . . . . . (c) . . . . . . . . (d) The land leased stands in the record of rights or in any public record or similar revenue record on the 1st day of January, 1952 and thereafter during the period between the said ,date and the appointed day in the name of the landlord himself. or of any of his ancestors (but not of any person from whom title is derived, whether by assignment or Court sale or otherwise) or if the landlord is a member of a joint family, in the name of a member of such family. " The above provision primarily requires that the name of the person applying for the eviction of the tenant or of his ancestors should be recorded as landlord in the record of rights on 1.1. 1952 and he should further be recorded as landlord on the appointed day, namely, 15.6. 1955. Both these conditions are required to be fulfilled before a suit or an application is maintainable by a landlord for the eviction of the tenant. If either of the two conditions are not satisfied, the application for eviction of the tenant will not be maintainable. The provision 518 of clause (d) further provides that even if the landlord 's name is not recorded. but if the name of his ancestor is recorded similarly if the landlord is a member of joint family, the name of any member is recorded the application would be maintainable. This provision indicates the legisla tive intent that a person succeeding to the property from his ancestor is entitled to maintain the application for eviction of a tenant provided he fulfils other conditions. But a person who may have obtained right to the agricultural land by assignment, transfer, or by auction sale or in any similar mode, is not included within the expression of 'landlord ' entitling him to evict the tenant. Clause (d) of Section 31A of the Act as it stood before its amendment by the Gujarat Act XVI of 1960 reads as follows: "The land leased stands in the record of rights or in any public record or similar revenue record on the 1st day of January 1952 and thereafter during the period between the said date and the appointed day in the name of the landlord himself, or of any of his ancestors, or if the landlord is a member of a joint family in the name of a member of such family. " The above provision before its amendment was interpreted by the Bombay High Court in Waman Ganesh Joshi vs Ganu Guna Khapre, 61 Bombay L.R. 1267. The High Court placing reliance on Khalliulla Hasmiya vs Yesu, 50 Bombay L.R. 201 held that the term 'landlord ' according to clause (d) of Section 31A of the Act included any person from or through whom he may have derived his title to the land, and therefore for proper compliance of the conditions mentioned in clause (d) of Section 3 IA it is sufficient that either the name of the claimant or his predecessors in title stands in the record of fights during the required period. A Full Bench of the Gujarat High Court in Bhanushanker Ambalal vs Laxman Kala & Ors., [1960] 1 Gujarat Law Reporter 169 disagreed with the view taken by the Bombay High Court in Warnan Ganesh Joshi 's case (supra). The Full Bench held that the expression "in the name of landlord himself" occurring in clause (d) of Section 3 IA must be read as the landlord individually and not any one claiming through him as a successor in interest, therefore a transferee from a landlord in whose name the land is shown to stand cannot fit into the structure of the clause. The Full Bench judgment was rendered on 28.7. 1960 prior to the amendment of the Section by the Gujarat Act XVI of 1960. After the amendment of Section by Gujarat Act XVI of 1960, the Legislature made it clear that transferees and assignees from persons whose name may be appearing in the record of 519 right during the relevant period were not to be treated as landlords for the purposes of the Section. The expression 'or otherwise ' occurring in clause (d) indicates that a person claiming title by transfer, assignment. court sale or in any other mode like gift, or will even from ancestor will not be a landlord for the purposes of the Section. The Legislature has clearly laid down that a person inheriting property from his ancestor would be landlord provided his ancestor 's name appears in the record of right during the required period. But a person claiming title on the basis of transfer, assignment, auction sale or otherwise including gift or will from the predecessors in title even though he may be his ancestor, and his name may be recorded in the record of rights during the required period, will not be entitled to maintain a suit for eviction of a tenant. The Legislature placed this restriction in order to protect the interest of the tenants and to prevent avoidance of the restrictions placed by the ceiling laws. In the absence of any such provision a landlord could transfer land to his descendants by gift or will to evade the ceiling law and to evict tenants. Under Section 31A(d) such a beneficiary is not entitled to maintain a suit for the eviction of a tenant from the agricultural holding as he would not be a landlord within the meaning of the Section. In Umraomiya Akbarmiya Malek vs Bhulabhai Mathurbhai Patel & Anr., [1965] 6 Gujarat Law Reporter 788 the peti tioner therein made application for eviction of tenant claiming to be landlord on the basis of a gift made in his favour by his maternal grand father who was recorded in the record of rights during the required period. The question arose whether the once who had acquired the property under a gift made by his maternal grand father was a landlord within the meaning of clause (d) of Section 31A. The High Court on an elaborate discussion held that the petitioner therein was not a landlord within the meaning of the Section. A Division Bench of the High Court of Gujarat in Special Civil Appeal No. 112/63 decided on March 3, 1972 considered the question whether a person who obtained the property under a Will from his grand mother was a landlord under clause (d) of Section 31A of the Act, the Division Bench held that having regard to the context, the object and scheme of the enactment such a person was not a landlord within the meaning of clause (d) of Section 31A. The Bench further held that the Legislature intended to restrict the right of landlord to obtain possession for bona fide cultivation purposes, and it did not intend to include the case of a landlord who derived title under a Will. We arc in agreement with the view taken by the Division" Bench. The learned single Judge of the High Court while rendering the, impugned judgment followed the view taken by the aforesaid Division 520 Bench. In this view, we find no legal infirmity in the impugned judgment of the High Court. Learned counsel for the appellant referred to certain decisions of the Bombay High Court where contrary view had been taken. Since the interpretation of Section 31A(d) of the Act as made by the Gujarat High Court in the aforesaid decision has been the law for the last 25 years. and as that interpretation is justified having regard to the legislative history of the Section, we do not consider it necessary to deal with those decisions. The appeal fails and is accord ingly dismissed. but there will be no order as to costs. V.P.R. Appeal dismissed.

Appellant on behalf of minor landlord, who got title by will, initiated eviction proceeding against the respondent tenants under Section 29 read with section 31 A(d) of the Bombay Tenancy and Agricultural Lands Act. 1948 before the Mamlatdar on the ground of bona fide requirement of the land for his personal cultivation. Respondent tenants raised preliminary objection on the question of maintainability of the suit on the ground that as the appellant, being a trans feree of the land and having not inherited the same was not the 'landlord ' under Section 31 A. Upholding the objection of the Respondents the Mamlatdar dismissed the application. Appellant 's appeal before District Deputy Collector and his revision before the Revenue Tribunal were dismissed. Chal lenging the orders of the Revenue Courts, writ application was filed in the High Court, which was also dismissed and against which the present appeal was filed. Dismissing the appeal, this Court, HELD: 1. Section 31(d) requires that the name of the person applying for the eviction of the tenant or of his ancestors should be recorded as landlord in the record of rights on 1.1.1952 and he should further be recorded as landlord on the appointed day, namely. 15.6.1955. Both these conditions are required to be fulfilled before a suit or an application is maintainable by a landlord for the eviction of the tenant. If either of the two conditions are not satisfied, the application for eviction the tenant is not maintainable. The provisions of clause (d) further provides that even if the landlord 's name is not recorded, but if the name of his ancestor is recorded similarly if the landlord is a member of joint family, the name of any member is recorded the application would be maintainable. This provi sion indicates the legislative intent that a person succeed ing to the property from his ancestor is 515 entitled to maintain the application for eviction of a tenant provided he fulfils other conditions. But a person who may have obtained right to the agricultural land by assignment, transfer, or by auction sale or in any similar mode, is not included within the expression of 'landlord ' entitling him to evict the tenant. After the amendment of Section 31A(d) the Legislature made it clear that transferees and assignees from persons whose name may be appearing in the record of rights during the relevant period are not to be treated as landlords for the purposes of the Section. The expression 'or otherwise ' occurring in clause (d) indicates that a person claiming title by transfer, assignment, court sale or in any other mode like gift, or will even from ancestor will not be a landlord for the purposes of the Section. A person inherit ing property from his ancestor would be landlord provided his ancestor 's name appears in the record of rights during the required period. But a person claiming title on the basis of transfer, assignment. auction sale or otherwise including gift or will from the predecessors in title even though he may be his ancestor, and his name may be recorded in the record of rights during the required period, will not be entitled to maintain a suit for eviction of a tenant. The Legislature placed this restriction in order to protect the interest of the tenants and to prevent avoidance of the restrictions placed by the ceiling laws. In the absence of any such provision a landlord could transfer land to his descendents by gift or will to evade the ceiling law and to evict tenants. Under Section 31 A(d) such a beneficiary is not entitled to maintain a suit for the eviction of a tenant from the agricultural holding as he would not be a landlord within the meaning of the Section. Waman Ganesh Joshi vs Ganu Guna Khapre, 61 Bombay L.R. 1267; Khalliulla Hasmiya vs Yesu, 50 Bombay L.R. 201;over ruled. Bhanushanker Ambalal vs Laxman Kala & Ors., [1960], Gujarat Law Reporter 169, approved. Umraomiya Akbartniya Malek vs Bhulabhai Mathurbhai Patel Appeal No. 112/63 decided on 3.3. 1972 (High Court of Guja rat) referred.

l Appeal Nos. 1349 1350/76. Appeals by Special Leave from the Judgment and Decree dated the 12th October 1976 of the Madras High Court in Writ Petition Nos. 5881 and 5884 of 1975. V.P. Raman, Addl. Sol, General of lndia, (Mrs.) N. G, Krishna Iyengar, Shri Narain, K.J. ' John, D.N. Mishra for the Appellant. F.S. Nariman, M. N. Rangachari, A.R. Ramanathan, Jayaraman,M.M.L. Srivastava and A.T.M. Sarapath for Respond ent No. 1. The Judgment of the Court was delivered by KRISHNA IYER, J. The short ,question, involving a point of construction of section 68 F(1D), has been raised by the Additional Solicitor General in these appeals by Special Leave. The respondent was a stage carriage operator whose two permits ,were to expire in January and. March 1976. In the usual course and in compliance with section 58. of the (for short, 'The Act ') he applied for renewal more than 120 days ahead but at the time of the actual date of expiry of the permits a draft scheme under part IV A had been published. This fulfilled the require ments of the proviso to section 68 F(1D) and entitled the appel lant to renewal for the limited period stated in the said proviso. But the State withdrew the draft scheme for some technical reasons and republished it in July 1975, after the appellant 's permit had expired. Applying the prohibition contained in section 68 F(1D) the Regional Transport Authority (for short the 'R.T.A. ') rejected the prayer for renewal. However, the High Court set aside that order and directed the grant of renewal, on a certain view of the section which the Additional Solicitor General contends goes beyond the limits of the plain words used. The aggrieved State ap peals. While we are satisfied that on the peculiar facts. of this case the respondent can sustain the permits the legal position canvassed by the appellant appears to be correct. At the time the respondent 's permit expired a draft scheme had already been published but the approved scheme had not been published. Any permit holder whose permit expires during this spell is eligible for a renewal as specified in the proviso. The fact that the draft scheme was later withdrawn cannot affect the right to a renewal. We, therefore, hold that the renewal of permit shall remain to the extent contemplated in the proviso to section 68 F(1D). Before we consider the legal question we may read section 68 F(1D). "(1D) Save as otherwise provided in sub sectiOn (1A) or sub section (1G), no permit shall be granted or renewed during the period intervening between the date of publication, under Section 68 (2 of any scheme and the date of publication of the approved or modified scheme, in favour of 391 any person for any class or road transport service in relation to an area or route or portion thereof covered by such scheme. Provided that where the period of opera tion of a permit in relation to any area, route, or portion thereof specified in a scheme published under Section 68 C expires after such publication, such permit may be renewed for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub section (3) of Seetion 68 D." Three propositions plainly emerge. No permit or renewal, except to the extent expressly saved by section 68 F(ID), can be granted by the R.T.A. during the period between the date of publication of any scheme and the date of publication of the approved scheme. (2) If a permit expires after the publication of any draft scheme such permit is eligible for renewal for a limited period as set out in the proviso. This special provision cannot be stretched, on the ground of possible anomalies or unjust consequences, to cover permits expiring even before the publication of the draft scheme. Where the language is plain, interpretation cannot take the shape of addition or interstitial legislation. (3) A rider to proposition No. 2 has to be added. If a permit holder whose permit is about to expire, diligently does, in the normal course, all that he need and all that he can, that is to say, apply for renewal before 120 days, in the manner laid down in section 58 of the Act, he sets in motion the legal machinery for the grant of renewal which must ordinarily culminate. in renewal within 120 days. The fact that a scheme is published before the actual grant of renewal will not intercept or extinguish the process of law set in motion by the applica tion for renewal. In such cases the R.T.A. has to act promptly and if the application for renewal is in conformity with the law it has to consider it and grant or reject according to merit. If, for reasons beyond the control of the applicant, the renewal process gets delayed or pro longed he cannot be penalised. Renewal is a legal process, not the final act. Save in this category of cases, all other permits which have expired before the draft scheme is published, suffer the ban of section 68 F(1D). However, no permit can ensure beyond the time of the publication of the approved scheme. This saves cases of bona fide applications for renewal of permits, not calculated to thwart a scheme, and helps the travelling public during the interregnum when the scheme is under scrutiny. The wider proposition accept ed by the High Court that all permits which have expired before the draft scheme is published can be renewal does not appear to be correct and does not have our approval. With this declaration of the law we dismiss the appeals. No order as to costs. P.H.P. Appeals dismissed.

The respondent was Stage Carriage Operator whose two permits were to expire in January and March 1976. In the usual course and in compliance with section 58 of the , he applied for renewal more than 120 days ahead but at the time of the actual date of expiry of the permits a draft scheme under A had been pub lished. The State withdrew the draft scheme under A for some technical reasons and republished in July 1975, after the appellants ' permits had expired. Section 68F(1D) provides that no permit shall be granted or renewal during the period intervening between the date of publication under section 68C of any scheme and the date of publication of the approved or modified scheme. The proviso to the said sec tion provides that if a permit expires after the publication of the scheme such permit may be renewed for a limited period but the renewed permit shall cease to be effective on the publication of the scheme under section 68D(3). Applying the prohibition contained in section 68F(1D) the Regional Transport Authority rejected the prayer for renewal. The High Court set aside that order directed the grant of the renewal. Dismissing the appeals, HELD: 1. At the time the respondents ' permit expired a draft scheme had already been published but the approved scheme had not been, published. Any permit holder whose permit expires during this spell is eligible for a renewal as specified in the proviso. The fact that the draft scheme was later withdrawn ca.not affect the rights to a renewal. Renewal of the permit however would be to the extent contem plated by section 68F(1D). [390G H] 2. (a) No permit or renewal except to the extent ex pressly saved by section 68F(1D) can be granted by the Regional Transport Authority during the period between the date of publication of any scheme and the date of publi cation of the approved scheme. [391C] (b) If a permit expires after the publication of any draft scheme such permit is eligible for renewal for a limited period as set out in the proviso. The special provi sion contained in that proviso cannot be stretched on the ground of possible anomalies or unjust consequences to cover permits expiring even before the publication of the draft scheme. Where language is plain the interpretation cannot take the shape of addition or interstitial legislation. [391C D] 3. If a permit holder whose permit is about to expire diligently does in the normal course, all that he needs and all that he can, that is to say, if he sets in motion the legal machinery for the grant of renewal as laid down in section 58, the fact that a scheme is published before the actual grant of renewal will not intercept or extinguish the process of law set in motion by the application for renewal. If for reasons beyond the control of the applicant the renewal process gets delayed or prolonged he. cannot be penalised. Renewal is a legal process and not the final act. Save in this category of cases all other permits which have expired before the draft scheme is published, suffer the ban of section 68F(1D). However, no permit can ensure beyond the time of the publication of the approved scheme. [391D F] 390

Appeal No. 1359 of 1993. From the Judgment and Order dated 16.1.192 of the Patna High Court in C.W.J.C. No. 446 of 1992. K.N. Chaubey, K. Pandeya and Mohan Pandey for the Appellant. 523 Gobinda Mukhoty, N.N. Goswami, S.K. Bhattacharya, C.V.S. Rao Ms. K.K. Manglam, L. R. Singh, Vikas Singh, Yunus Malik, B.B. Singh Ms. Vimal Sinha and Ms Kumud L. Das for the Respondents. The Judgment of the Court was delivered by SAWANT, J. Leave granted. The appellant is a member of the Bar. He had field a petition in the nature of a public interest litigation under Article 226 of the Constitution of India before the High Court of Patna praying for a writ of quo warranto challenging the appointment of respondent No. 6, Dr. Shiva Jatan Thakur as a Member of the Bihar, State Public Service Commission. The High Court dismissed the writ petition. Hence the present appeal. The attack against the appointment of respondent No. 6 is based on, two grounds: [a] on the date of his appointment i.e., 4th March, 1991 respond No. 6 was the seventh non service member. The total strength of the Public Service Commission being eleven [uncluding the Chairman] the appointment of the seventh member from the ' non service category, was violative of the proviso to article 316[1] of the Constitution which requires that as nearly as may be one half of the members shall be persons who have held office for at least ten years either under the Government of India or under a Government of the State. [b] respondent no.6 was totally blind even from a date prior to his appointment and was unfit to be appointed by reason of the said physical infirmity. We are, accordingly, required to consider whether these two grounds were sufficient to disqualify respondent No. 6 from being appointed as a member of the, commission. In his counter affidavit, respondent No. 6 has stated among other or things, that he happens to be the son of a peon retired form the Railway We are informed by Shri Mukhoty, the learned counsel appearing for him 524 that he belongs to the backward community of barbers. He has been blind since the age of eight years. In spite of his blindness, he was able to pursue his educational career successfully, and he earned degrees and diplomas. He is a Ph.D. in English of the Patna University. He has been a University college teacher in English and he was promoted to the post of Reader in English on the completion of bare eight years of service. He was the first teacher of the Patna University who was unanimously recommended for the award of D. Litt. on account of the excellence of his thesis written for Ph.D. As a scholar in English, he has submitted papers to national and international conferences. He is a life member of the organisations who sponsor these conferences. The Government of Bihar vide its D.O. letter No. 2740 dated 22nd October, 1991 sent to the Union Ministry of Home Affairs, had recommended him for the prestigious national award of 'Padmashree ' for his services as a Member of the Public Service Commission. The President of India on 15th March, 1992 conferred on him National Award which reads: "this national award is given to Dr. Shiva Jatan Thakur in public recognition of his outstanding performance as the most efficient employee". He has also referred to the circumstances under which his present appointment came to be challenged nearly 9 1/2 months after it was made. While he was appointed on 4th March, 1991, the writ petition was filed in the High Court on 14th January, 1992. According to him, he had made a representation to the President of India, the Governor of Bihar and others, against the serious misconduct, gross malpractice and wilful violation of the constitutional mandate by the Chairman of the Commission. The present writ petition was filed in the High Court 18 days after a copy of the representation was received by the Chairman, among others. It is his dispute with the Chairman who according to him is backed by the Chief Minister of the State which has led to the present writ petition. He has also stated that the Chief Minister in his press interview given to the local Urdu daily, viz., Qaumi Tanzeem and published on 27th March, 1992, had made his intentions public to move this Court against his ap pointment. Those averments are not controverted. According to him further, it was on account of his academic distinctions, and with the full knowledge that he was totally blind from childhood, that he was appointed as a Member of the Public Service Commission. He has also stated that his blindness never came in his way either in the pursuit of his studies or in his service as a teacher. His experience in the public Commission also showed that the said defect did not come in his way of 525 discharging his duties effectively. In this connection, he points out that the only thing he cannot do is to assess the individual 's external personality on the basis of the candidates external appearance which is not a material requirement for the candidates for many posts. He has further added that the Commission sits in Committees or interview boards and every Committee usually consists of four or five persons including members of the Commission and experts from the respective departments. The marks awarded to the candidates are agreed upon after due discussions and deliberations in the interview board. The advice of the experts is a determinative factor in such decisions. When the members of the interview board with non technical and non professional qualifications interview candidates for technical and professional posts, they do so with the aid and advice of the experts from the concerned departments. Hence, if he is required to depend upon the opinion of the other members of the interview board for the external appearance of the candidates, that is not a dependence of a kind which vitiates the assessment of the interview board as a whole. In any case, the dependence is not worse than the dependence of the members of the board on the opinion of the experts when they are not qualified to adjudge the candidates for posts requiring the relevant expertise. The State Government has lent a tragicomic touch to the controversy by filing its affidavit, the relevant contents of which deserve reproduction here for reasons more than one. The pathos is made poignant by the fact that the affiant Shri R.C. Vaish, Resident Commissioner of the State at New Delhi in his letter, which is placed on record, has stated that the draft affidavit was approved by Hon 'ble the Chief Minister of the State. He has also stated that he has been authorised by the Secretary of the concerned department to swear the affidavit. The relevant portion of the affidavit reads as follows: "That the respondent State upon reconsideration of the entire matter under controversy feels that the words of the Constitution have to be interpreted in letter and spirit and any departure from the express words of the Constitution wherever such departure seems to be permissible under the Constitution should be done only for sound and good reasons. In the instant case, the departure with regard to appointment of members of the Bihar Public 526 Service Commission was made only because the proviso to Article 316 (1) of the Constitution is not mandatory. Accordingly, while appointment the respondent No. 6 as the seventh non government member of the B.P.S.C. the mandate of proviso to Article '316 (1) was not followed. it is felt that the fact that proviso to Article 316(1) not being mandatory is by itself not a good ground for departing from the suggestion of the Constitution and accordingly, the appointment of respondent No. 6 as member of the State Public Service Commission cannot be justified. , At the time of appointment of respondent No. 6 as 'a member of the Bihar Public Service Commission he was the seventh nongovernment member when ' at that time there were only four government members in a 'total strength of eleven members in the B.P.S.C. That with ragard to the infirmity of the respondent No. 6, it is submitted that at the time of appointment of respondent No. 6,the aspect about his blindness was not specifically considered the same was stated in the Bio data of the respondent No. 6 in a very casual way and in such a manner that in had escaped the attention of the Constitutional authorities at the time of recommending the respondent No.6 for appointment to the post of member the B.P.S.C. In this regard, it is submitted that the respondent No. 6 in his Bio data while praising his achievements had only stated that he is the first blind person to have been awarded Ph.D. ' There was no mention whether such blindness was subsequent to birth or whether such blindness was congenial There was also no details in the Bio data stating whether such blindness was complete or the some was partial, temporary, curable or not curable. In these,facts, the aspect about the blindness of. the respondent No. 6 was not specifically considered by any of the Constitutional Authorities who are involved in the appointment of a member to the State Public Service Commission. That in this regard it is further submitted that the nature of duty of a member of a Public Service Commis 527 sion is primarily to make selections for appointments the various Govt. jobs of the State and accordinly while making such recommendations the member of the State Public Service Commission has to interview the eligible candidates. While conducting such interview, the member of the State Public Commission is to visually interview each candidate to determine his suitable. After the appointment of the respondent of the respondent No. 6 it has come to the notice of the respondent No. 6, it has come to the respondent No. 6 is clearly hampering the effective discharge of official duties by the respondent No. 6". [Emphasis supplied] To appreciate the first attack against the appointment it is necessary to reproduce the provisions of Article 316[1] and [2] of the Constitution which relate to the appointment and the term of office of the members of the Public Service Commissions, "316. Appointment and term of office of members. [1] The Chairman 'and other members. of a Public Service Commission shall be appointed in the case of the Union Commission or a Joint Commission, by the President and in the case of a State Commission by the Government of the State: Provided that as nearly as may be one half of the members of every Public Service Commission shall be persons who at the dates, of their respective appointments have held, office for at least ten years, either under the igovernnient of India or under the Government of a State, and in, computing the said period of ten years any period before the commencement of this Constitution during which a person has held office under the Crown in India or under the Government of an Indian State shall be included. [1 A] x x x x x [2] A member of a Public Service Commission shall hold 528 office for a term of six years from the date on which he enters upon his office or until he attains, in the case of the Union Commission, the age of sixty five years, and in the case of State Commission or a Joint Commission, the age of sixty two years, whichever is earlier: Provided that [a] a member of a Public Service Commission may, by writing under his hand addressed, in 'he case of the Union Commission or a Joint Commission, to the President, and in the case of a State Commission, to the Governor of the State, resign his office; [b] a member of a Public Service Commission may, be removed from his office in the manner provided in clause (1) or clause (3) of Article 317. [3] x x x x XI It is apparent from these provisions that the Chairman and other members of the State Public Service Commission are appointed by the Governor of the State. The appointments are obviously made on the advice of the Council of Ministers of the State. The proviso to Clause 11 of the Article requires that "as nearly as may be", one half of the members of the Commission shall be persons who on the dates of their respective appointments have held office for at least ten years either under the Government of India or under the Government of a State. For brevity 's sake we may refer to this category of members as service members. The expression "as nearly as may be" itself suggest that the proportion of 50% of the service members is not exact but approximate and is meant not to be mandatory but directory. The said proviso does not, in terms, say that in no case and at no point of time, the said proportion should either go above, or fall below 50%. In the very nature of things, a strict adherence to the said direction is not practicable at any particular point of time. In the first instance, the superannauation age of the member of the Commission is 62 years and his total tenure as a member cannot exceed six years. He has to vacate his office either when his tenure comes to an end or when he attains the age of 62 years whichever is earlier. When the members are appointed, they are bound to differ in age, whether they belong to the service category 529 or the non service category. In the normal course, they would retire at different points of time. If it is insisted, as is done on behalf of the appellant, that the said requirement must be followed strictly at all times, it would be well nigh impossible to do so. Every time a member, whether belonging to the service or the non service category, retires, there should be available a suitable person from the same category to be appointed in his place. It is not always possible to make an advance list of persons of either category who are suitable for such appointments. Hence, the total strength of the Commission as well as the number from each of the categories, are bound to vary from time to time. At any given point of time, therefore, it may not be possible to maintain the proportion between the two categories strictly in accordance with the direction given in the Constitution. It appears that it is for this reason that the words "at least half ' used in the proviso to Section 265 [1] of the Government of India Act, 1935, corresponding to the present proviso to Article 316 [11, have been substituted by the words "as nearly as may be one half '. The learned counsel appearing for the appellant, however, submitted that the expression "as nearly as may be one half ' has been used to convey that a fraction may be ignored if the total number of members cannot be exactly halved between service and non service categories. We are afraid that this argument is too simplistic. The fraction is and ran be taken care of without the aid of such expression and a document like the Constitution does not have to incorporate the normal rules of interpretation. It is clear that the framers of the Constitution realised that to make the provision rigid was both inadvisable and unnecessary. We have already demonstrated its impracticability. It can further hardly be suggested that the need to have 50% from the service category is of such paramount importance to the composition of the Commission that the breach of it at any particular point of time would defeat the very object of constituting the Commission. The purpose for which the said provision is made is obvious. It was realised by the framers of the Constitution that the democratic system can be maintain only if civil servants are appointed solely on the basis of their merit adjudged by open competition, and only if they can carry of the administration according to law independently, instead of under pressure of their political superiors. Hence they provided for Public Service Commissions as both the Union and the State level as autonomous bodies to enable then to carry on their functions independently, fairly and impartially. Since the Commission 's main task was to recruit administrative personnel it was 530 necessary to have on the Commission members with sufficient administrative experience. To induct persons of experience, it was imperative to provide that a certain proportion of the members of the Commission should have had an actual experience of running the administration so that the Commission is better able to adjudge the fairness of firness of persons to be recruited in the administration. However the very fact that the Service Commission was not proposed to be constituted of the members from the service category exclusively also shows that the framers of the Constitution did not desire that the outlook of the service members alone should prevail while recruiting the personnel. The view of the persons from outside the administration was also considered to be equally imperative in selecting the personnel. A balance was therefore sought to be struck by providing the e, in Detecting the proportion between the two categories of members. It would, however, be naive to suggest on that account that the framers of the Constitution presumed to ensure that on all occasions there shall be an exact balance of views. It is unrealistic to believe that individuals with different backgrounds always insist on the acceptance of the outlook dictated by their background alone and refuse to share the view point of others. It is certainly not expected of the members of such high ranking Constitutional body as the Public Service Commission. We cannot also lose sight of the fact that the Service Commissions mostly sit in Committees and are aided and assisted by the experts from the concerned faculties, disciplines and departments. The Committees take their decision collectively after due deliberations and discussions. It is, therefore, the composition of these Committees and not so much the composition of the Commission at any particular point of time that matters. Hence, we are unable to subscribe to the view that the proviso to Article 316 [1] requiring that as nearly as may be one half of the members of the Public Service Commission shall be from service category leaves no option to the Appointing Authority under any circumstance whatever, to allow reduction of representation from that category and a breach of the said requirement by reason of appointment of a member from non service category vitiates such appointment or the duties performed by such appointee as a member of the Public Service Commission. The learned counsel for the appellant went so far as to contend that the said requirement constituted a qualification of the member to be appointed every time a vacancy is to be filled. According to him depending 531 upon the shortfall in the representation of the respective category the member to be appointed has to be either form the service or non service category as the case may be and that is an essential qualification for his appointment. The argument was that is an essential as in the present case, the representation of the service members of the Commission fell short of 50% then all persons to the appointed on the Commission till the said proposition was made up had to be from the service ctegory that being their necessary qualification. It is not possible to accept this contention for the simple reason that as pointed out earlier, it may be possible to get a suitable person either from service or non service category over a period of time and for want of suitable candidates from the concerned category, the vacancies on the Commission may remain unfilled during that period. The persons from the other category are available during that period. The reasonable interpretation of the said proviso therefore is to treat it not as a strict rule to be enforced but as a binding gudeline to be followed in practice in spirit as far as possible and without deliberately flouting it, Hence it is not possible to hold that merely because at the time of appointment of respondent No. 6 there were four service members and six non service members he was disqualified for being appointed as the 7th member from the non service category. The, second attack which is based upon the blindness of respondent No.6 is equally myopic. As has been pointed out earlier respondent no.6 been blind from his childhood. In spite of his blindness he acquired high educational qualifications and in fact at the time of his appointment he was an Associate Professor in the Patna University. He is an acknowledged scholar of English Although the Government has now come forward to disown any knowledge about his complete blindness from the childhood, with which we will deal instantly they must be presumed to have known the said infirmity and should be deemed to have formed the opinion that in spite of his blindness, he was fit to be a member of thel Commission. We see no reason to hold otherwise in the circimstances pointed out by respondent No. 6 in his affidavit to which we have already referred. Nothing concrete has also been brought on record to show that he has failed ot perform his duties as a member of the Commission efficiently because of his blindness. On the other hand as has been pointed out earlier the State Government itself had recommended him for 'Padmashree ' for his efficient discharge of the work as a member of the Commission and that too over a short span of few months. We are also in agreement with the contentin advanced on his behalf that 532 except the external appearance of the candidates appearing before him, he is able to ascertain the required merits or demerits of the Candidates, as do the other members of the Commission. The Commission, as it normally should, operates through Committees, and as regards the external appearance, the other members of the Committees give him the required information on the basis of which he is able to assess the overall merit of the candidates. The external appearance of the candidates is also not of importance in all ap pointments. What is futher necessary to note is that for selecting the candidates for almost all disciplines and departments, the experts from the concerned departments do sit in the Committees and the opinion of the experts ordinarily prevails in such appointments since the members of the Committees, who are the members of the Commission, do not have the expertise. in the relevant fields. This shows that all members of the Commission sitting on the interview Committees have also to be guided in their opinion by the experts. If respondent No. 6 has to take guidance only in the matter of external appearance of the candidates, all members of the Commission have to be guided by the experts with regard to the most vital equipment of the candidates, viz., the intellectual calibre and the proficiency of the candidates in the relevant subjects. There is, therefore, nothing wrong if only for external appearance, for which only a small percentage of the total marks is reserved, respondent No. 6 has to depend on the advice, opinion or guidance of the other members of the Committees and the Commission. The decision of the interview board is always a collective one and is taken after deliberation on the merits and demerits of the candidates which are evaluated on the basis of various factors. We are, therefore, unable to see as to how, in the circumstances, respondent No. 6 is unfit to carry on his duties as a member of the Commission because of his blindness. The attack, however, was sought to be strengthened by relying on the provisions of sub clause [c] of Clause [3] of Article 317 of the Constitution which provides for removal of a member of the Public Service Commission on the ground that he is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body. The argument was that the blindness was infirmity of body and if it is a ground for removal from office, it is much more a disqualification for appointment and hence respondent No. 6 should be prevented from continuing in his office. We are afraid that the first premise on which this limb of the argument is based misses the obvious fact, viz., that by "infirmity of body" 533 what is spoken of in the sub clause in question, is an infirmity which disables the Member from discharging his functions as such member effectively. It is not every infirmity of body or every loss of use of any limb of the body. The defect or deficiency must be such as would disable the Member from carrying out his duties satisfactorily and consistent with the trust reposed in him. We have already pointed out that not only the blandness of respondent No. 6 does not prevent him from discharging his duties expected of him, but in fact the services rendered by him as such member have been eulogised and commended for a National Award by no other than the State Government itself and the Chairman of the Commission who had the first hand knowledge of his functioning. This is apart from the fact that the Governor who appointed him on the advice of the Council of Ministers is presumed to have done so after satisfying himself that the loss of eye sight was not an infirmity which would impede him in the discharge of his duties. The infirmity of body or mind which is referred to in the sub clause, further must necessarily be such as has arisen after the appointment and not the one which existed at the time of the appointment unless of course, the Government was unaware of the same at the time of the appointment. We may now turn to the affidavit filed on behalf of the State Government. A reading of the said affidavit leaves no doubt in our mind that it has been filed only to prejudice the case of respondent No. 6 before us because, for some reasons, he has fallen foul some persons in power. As is evident from the portions of the affidavit reproduced above, firstly, a case is sought to be made out there that respondent No.6 was appointed as the 'non Government member ' of the Commission only because the proviso of Article 316 11 is not mandatory. That may be so. But the affidavit then proceeds to state almost in relenting terms that although the said proviso is not mandatory, that by itself is not a good ground for departing from the "suggestion of the Constitution" and hence the appointment of respondent No. 6 "as the 7th non Government member" was not justified. It is not clear as to when this wisdom dawned on the Government for the first time. The record further does not show as to who had suggested his name to the Governor and whether the decision was taken by the Council of Ministers as a whole or by the Chief Minister or any of his colleagues alone and what advice was received or obtained by them, if at all, while making the appointment. We are however, happy to know that 534 the State Government "upon reconsideration of the entire matter under controversy feels that the words of the Constitution have to be interpreted in letter and spirit and any departure from the express words of Constitu tion. . should be done only for sound and good reasons". We only hope that the State Government keeps that solemn declaration in mind for all purpose and for all times to come and does not forget it the moment the ink in the present proceedings dries. But more breast beating of the Government is on the second issue viz, the blindness of respondent no.6 The affidavit states that at the time of the appointment "the aspect about his blindness was not specifically considered as the same was stated in the Bio data of the respondent No. 6 in a very casual way and in such a manner that it had escaped the attention of the Constitutional authorities at the time of recommending the respondent no.6 for appointment . . ". not to be outdone by this ludicrous averment, the affidavit proceeds to state "that respondent No. 6 in his bio data while praising his achievements, had only stated that he is the first blind person to have been awarded Ph.D. There was no mention whether such blindness was subsequent to birth or whether such blindness was congenital. . There was [sic] also no details in the Bio data stating whether such blindness was complete, or the same was partial, temporary, curable or not curable. It is then the case of the State Government that in the view of these facts the aspect above the blindness of the respondent No. 6 was not specifically considered by any of the Constituitonal authorities who are involved in the appointment of a member to state Public Service Commission". Since the affiant himself has brought into picture the "Constitutional Authorities who are involved in the appointment the aspect of the blindness of respondent no.6 was not specifically of a member to the State Public Service Commission and has Stated that considered by them, we cannot help observing that the affiant by making such statement as made the Constitution authorities look ridiculous and their functioning a mockery in the eyes of the public. We are anguished more on account of the that state Government should have considered it compulsive to allow such blatantly rabid statement s to be made on the oath with impunity. No responsible public authority could have aware the that respondent No.6 was totally blindly from his childhood, when that made the client that none of the constitutional functionaries concerned was fact must have been widely known in the State and in all probability the extra ordinary abilities exhibited by him despite his blindness must have 535 been the main reason for his appointment as a member of the Public Service Commission. Any statement seems to be good enough, whether true or untrue, so long as it is considered serviceable for thee immediate purpose in hand. We refrain from making more comments which certainly such affidavits deserve, in ample measure, and let the affidavit speak for itself. The affidavit further states that while conducting the interviews, members of the Commission have to visually interview each of the candidates to determine his suitability and after the appointment of respondent No. 6 "it has come to the notice of the respondent State that the blindness of the respondent No. 6 is clearly hampering the effective discharge of official duties by him. It is necessary to remember in this ' connection that this affidavit has been filled on 23rd January 1993. Respondent No.6 had filed his affidavit on 7th October, 1992.In that affidavit, respondent No. 6 has, among other things referred to,the certificate given by respondent No.5, Dr. Ram Ashray, Yadav, Chairma of the Public Service Commission on 11th September 1991 where he has stated that respondent No. 6 "has been performing his duties with exceptional excel lence without letting his blindness hinder his work. I strongly recommend that Dr. Thakur be awarded National Award in recognition of his excellence despite his blindness." He has also referred in his affidavit to the letter of 22nd October, 1991 of the State Government to the Union Home Ministry recommending him for,the award of "Padmashree" for his services as a Member of the Public Service Commission. Neither the certificate nor the letter has been controverted by the Chairman and. the Government. In the face of the certificate and the Said recommendatory letter, it is difficult to understand the basis on which it is now stated in the affidavit that the blindness of respondent No.6 is hampering his work. There is, therefore, no doubt in our mind that the affidavit has been filed for the only purpose of seeking somehow the removal of respondent no.6 .Respondent No. 6 in his affidavit has alleged that he has since fallen 'but the respondent No. 5, the Chairman of the Commission and the Chairman is bent upon ousting him from the Commission. To shows the animosity of the Chairman towards him he has given a list of events alongwith his affidavit. These events have not been in controverted. The High Court has referred to some of these events in paragraph 6 of its judgment. Since they have a bearing On the Governments comments on his performance, we may reproduce the events catalogued by the High Court. 536 "1. His P.A. has been replaced; 2. His chamber, which contains two almirahs containing documents, has been locked up; 3. The service of the reader, who is to read to him documents and journals and other papers is not being provided to him and his services have been terminated; 4. The use of staff car by him has been stopped; 5. His orderly has been transferred; 6. The Chairman of the Commission has issued instructions not to receive any document from him or to obey his orders; 7. His telephone bill for the month of Oct. 1991, for Rs. 598 only has not been paid though a sum of Rs. 18,154 on account of telephone bill of the Chairman 's residence has been paid. The newspaper allowance payable to him is not being paid; 9. He has not been allowed to attend the meetings of the Commission held on 11th December. 20th December and 31st December, 1991 and he is not aware when any other meeting has been held thereafter or not in as much as he has not been provided with any notice in respect of the same; 10. He has been physically prevented from going to inside [sic.] the campus of the Commission since 28th of November, 1991. " In the list of events accompanying his counter affidavit he has also referred to other incidents such as the attempted physical assault on him by the Chairman during a meeting of the Commission, the threats of physical liquidation administered from the telephonic line of the Chairman, the complaints made by him to the police, to the Chief Minister and to the 537 Governor etc. We do not desire to burden this judgement, with the said details. it is also not necessary to make any comment upon the aforesaid events since they speak for themselves. They only reinforce the conclusion that the belated claim of the State Government that the appointment of respondent No.6 is invalid and that his blindness hampers the discharge of his duties has its obvious roots in the strained relations between him on the one hand and the Chairman and the State Government on the other. While, therefore, dismissing appeal in the special facts of the case,, we also direct both the appellant and the respondent State of pay the costs of this appeal to respondent No.6, in the amounts of Rs. 5,000 and Rs., 10,000 respectively. P.S.S. Anneal dismissed.

The proviso to clause (1) of Article 316 of the Constitution requires that 'as nearly as may be ', one half of the members of the Public Service Commission shall be from service category. Clause (2) of the Article entities a member of a Public Service Commission to hold office for a term of six years from the date on which he enters upon his office or he attains the age of superannuation provided therein whichever is earlier. Subclause (c) of clause (3) of Article 317 provides for removal of a member of the Public Service Commission by reason of infirmity of mind or body. Respondent No. 6, a blind, acknowledged scholar of English and Associate Professor in the Patna University, was appointed the seventh non service member of the Bihar State Public Service Commission on 4th March 1991. The total strength of the Public Service Commission was eleven. The other four members belonged to the services category. On 11th September 1991, respondent No.5, the Chairman of the said Commission, gave a certificate stating that the respondent has been performing his duties with exceptional excellence without letting his blindness hinder his work and strongly recommended conferment of a national award in recognition of his excellence despite his blindness. On 22nd October 1991 the State Government addressed a letter to the Union Ministry of Home Affairs recommending him for the prestigious national award of 518 'Padamshree ' for his services as a member of the Public Service Commission. On 15th March 1992 the President of India conferred on him the National Award. On 14th January 1992 the appellant, in a public interest ligigation, challenged the appointment of respondent No. 6 as a member of the Bihar Public Service Commission. The High Court dismissed the writ petition. In the appeal by special leave it was contended that the appointment of the seventh member from the non service category was violative of the proviso to Article 316(1) of the Constitution. It was submitted that the expression 'as nearly as may be one half ' occurring in the said proviso has been used to convey that a fraction may be ignored if the total number of members cannot be exactly halved between service and non service categories. The argument was that if the representation of the service members of the Commission fell short of 50% then all persons to be appointed on the Commission till the said proportion was made up, had to be from the service category, that being their necessary qualification. It was further contended that respondent No. 6 was totally blind even from a date prior to his appointment and was unfit to be appointed by reason of the said physical infirmity. The argument was that the blindness was an infirmity of body and if it was a ground for removal from office under Article 317(3) (c), it was much more a disqualification for appointment and hence respondent No. 6 should be prevented from continuing in his office. In the affidavit riled on behalf of the State Government on 23rd January 1993 it was stated that although the proviso to Article 316(1) was not mandatory, that by itself was not a good ground for departing from the suggestion of the Constitution and hence the appointment of respondent No. 6 as the 7th non Government member was not justified. It was further stated that at the time of the appointment, the aspect about his blindness was not specifically considered as the same was stated in the bio data of respondent No. 6 in very causal way and in such a manner that it had escaped the attention of the constitutional authorities at the time of recommending respondent No. 6 for appointment. The affidavit further stated that while conducting the interviews, members of the Commission had to visually interview each of the candidates to determine his suitability and after the appointment of respondent No. 6 it had come to 519 the notice of the respondent State that the blindness of respondent No. 6 was clearly hampering the effective discharge of official duties by him. It was contended for respondent No. 6 that it was on account of his academic distinctions, and with the full knowledge that he was totally blind from childhood that he was appointed as a member of the Public Service Commission; that his blindness did not come in his way of discharging his duties effectively , that the only thing he could not do was to assess the individuals external personality on the basis of the candidate 's external appearance, which was not a material requirement for the candidates for many posts; that his dependence upon the opinion of the other members of the interview board for this aspect was not of a kind which vitiated the assessment of the interview board as a whole; that he had made a representation to the President of India, the Governor of Bihar and others, against the serious misconduct, gross malpractices and wilful violation of the constitutional mandate by the Chairman of the Commission, and that it was this dispute with the Chairman, who was backed by the Chief Minister of the State, which had led to the writ petition. Dismissing the appeal, the Court, HELD: 1.1. Merely because at the time of appointment of respondent No. 6, there were four service members and six non service members, it cannot be said that he was disqualified for being appointed as the 7th member from the non service category. [531D] 1.2. The reasonable interpretation of the proviso to Article 316(1) of the Constitution requiring that as nearly as may be one half of the members of the Public Service Commission shall be from service category, is to treat it not as a strict rule to be enforced but as a binding guideline to be followed in practice in spirit as far as possible and without deliberately flouting it. [531D] 1.3. The expression "as nearly as may be" used in the proviso itself suggests that the proportion of 50% of the service members is not exact but approximate and is meant not to, be mandatory but directory. The said proviso does not, in terms, say that In no case and at no point of time, the said proportion should either go above or fall below 50%. The fraction is and can be taken care of without the aid of the expression "as nearly as may bell, and a document like Constitution does not have to Incorporate 520 normal rules of interpretation. The need to have 50% members from the service category also cannot be said to be of such paramount importance to the composition of the Commission that the breach of it at any particular point of time would defeat the very object of constituting the Commission. [528F G, 529F] 1.4. Furthermore, when the members are appointed, they are bound to differ in age, whether they belong to the service category, or the non service category. In the normal course, they would retire at different points of time. At that time, a suitable person from the same category may not be available to be appointed in their place. It is not always possible to make an advance list of persons of either category who are suitable for such appointment. Hence the total strength of the Commission as well as the number from each of the categories, are bound to vary from time to time. At any given point of time, therefore, it may not be possible to maintain the proportion between the two categories strictly in accordance with the direction given in the Constitution. [529B C] 1.5. By providing the proportion between the service and non service members of the Commission, the framers of the Constitution sought to strike a balance amongst the two categories. However, on that account, the framers of the Constitution cannot be presumed to ensure that on all occasions there shall be an exact balance of views between these two categories of members. It is unrealistic to believe that individuals with different backgrounds always insist on the acceptance of the outlook dictated by their background alone and refuse to share the viewpoint of others. It is certainly not expected of the members of such high ranking constitutional body as the Public Service Commission. Furthermore, the Service Commissions mostly sit in Committees and are aided and assisted by experts from the concerned faculties, disciplines and departments. The Committees take their decision collectively after due deliberations and discussion. It is, therefore, the composition of these Committees and not so much the composition of the Commission at any particular point of time that matters. [530C E] 1.6. The appointing authority, therefore, cannot be said to have no option, under any circumstance whatever, to allow reduction of representation from the service category and a breach of the requirement contained in the proviso to Article 316(1) by reasons of appointment of a 521 member from non service category would vitiate such appointment or the duties performed by such appointee as a member of the Public Service Commission. [530G] 2. Respondent No. 6 cannot be said to be unfit to carry on his duties as a member of the Commission because of his blindness. Nothing concrete has been brought on record to show that he had failed to perform his duties as a member of the Commission efficiently. Except the external appearance of the candidates appearing before him, he is able to ascertain the required merits or demerits of the candidates, as to the other members of the Commission. The Commission operates through Committees. For selecting the candidates for almost all disciplines and departments, the experts from the concerned departments sit in these Committees and the opinion of the experts ordinarily prevails in such appointments since the members of the Committees, who are the members of the Commission do not have the expertise in the relevant fields. This shows that all members of the Commission sitting on the interview Committees have also to be guided in their opinion by the experts. If respondent No. 6 has to take guidance only in the matter of external appearance of the candidates, all members of the Commission have to be guided by the experts with regard to the most vital equipment of the candidates, viz., the intellectual caliber and the proficiency of the candidates in the relevant subjects. There is,, therefore, nothing wrong if only for external appearance, for which only a small percentage of the total marks is reserved, respondent No. 6 has to depend on the advice, opinion or guidance of other members of the Committees and the Commission. [532B E] 3.1. By 'infirmity of body ' what is spoken of in sub clause (c) of clause (3) of Article 317 of the Constitution is an infirmity which disables the member from discharging his functions as such member effectively. It is not every infirmity of body or every loss of use of every limb of the body. The defect or deficiency must be such as would disable the member from carrying out his duties satisfactorily and consistent with the trust reposed in him. The said infirmity further must necessarily be such as has arisen after the appointment and not the one which existed at the time of the appointment, unless of course, the Government was unaware of the same at the time of appointment. [533A B, D] 3.2. In the instant case, not only the blindness of respondent No. 6 522 does not prevent him from discharging his duties expected of him, but in fact the services rendered by him as such member have been eulogised and commended for a national award by no other than the State Government itself and the Chairman of the Commission, who had first hand knowledge of his functioning. This is apart from the fact that the Governor who appointed him on the advice of the Council of Ministers is presumed to have done so after satisfying himself that the loss of eyesight was not an infirmity which would impede him in the discharge of his duties. [533C] 4.1. No responsible public authority could have made the claim that none of the constitutional functionaries concerned was aware that respondent No. 6 was totally blind from his childhood, when that fact must have been widely known in the State and in all probability the extra ordinary Abilities exhibited by him despite his blindness must have been the main reason for his appointment as a member of the Public Service Commission. The State Government should not have considered it compulsive to allow such blatantly rabid statements to be made on oath with impunity. The affiant by making such statement has made the constitutional authorities look ridiculous and their functioning a mockery. [534H G] 4.2. Neither the certificate given by respondent No. 5, the Chairman of the Public Service Commission, on 11th September, 1991 nor the letter of the State Government to the Union Home Ministry dated 22nd October 1991, has been controverted by the Chairman and the State Government. The averment in the affidavit that the blindness of respondent No. 6 is hampering his work, therefore, has no basis. The belated claim of the State Government against respondent No. 6 has its obvious roots in the strained relations between him on the one hand and the Chairman and the State Government on the other. [535E F] 5. The appellant and the respondent State is directed to pay the costs of the appeal to respondent No. 6. [537C]

ivil Appeals Nos. 29 and 30 of 1951. Appeals from the judgment and decree dated 26th October, 1943, of the High Court of Judicature at Allahabad (Verma and Yorke JJ.) in First Appeal No. 48 of 1938 arising out of the judgment and decree dated 6th August, 1937, of the Court of the Additional Civil Judge at Agra in Suit No. 30 of 1936. M.C. Setalvad and Kirpa Ram (K. B. Asthana, with them) for the appellant in Civil Appeal No. 29 of 1951. K.N. Agarwal for the appellant in Civil Appeal No. 30 of 1951. C.K. Daphtary (G. C. Mathur, with him) for the respond ents in both the appeals. April 24. The Judgment of the Court was deliv ered by MAHAJAN J. 796 Mst. Khem Kuer, the young widow of Shah Chiranji Lal, was murdered on the 28th August, 1919, and Mst. Mohan Kuer, the mother, died on the 5th December, 1932. Prem Kuer, the respondent in the appeal, claiming herself to be the heir to Shah Chiranji Lal as his sister, brought the suit giving rise to this appeal in the court of the civil judge, Agra, against, amongst others, Mst. Phool Kuer, the present appellant, for recovery of possession of the properties of Shah Chiranji Lal and mesne profits. Prem Kuer joined her half sister Mst. Ram Kuer and their sons as plaintiffs along with herself. In the array of defendants were impleaded Mst. Phool Kuer and Mst. Khem Kuer, widows of Shah Jwala Prasad and Shah Madho Lal and his sons and a host of others as transferees of the properties. The main defence to the suit was that Shah Jwala Prasad and Shah Madho Lal were recognized to be the owners and heirs to the entire estate of Shah Chiranji Lal by Khem Kuer and Mohan Kuer in a family settlement arrived at between the parties in suit No. 120 of 1915, that by virtue of this family settlement the estate of the deceased was vested in them subject to the life estates of the two women and that the plaintiffs who came to be recognized as reversioners by the Hindu Law of Inheritance (Amendment) Act, 11 of 1929, were not entitled to claim it. It was further pleaded that on the death of Khem Kuer in 1919, Mohan Kuer surrendered the estate in favour of Jwala Prasad and Madho Lal and they took possession of it as owners and the plaintiffs who subsequently became statutory heirs in 1919 could not be allowed to question the surrender and reopen the succession which could not remain in abeyance. The learned additional civil judge who tried the suit, dismissed it holding that the compromise of 1915 was a bona fide settlement of a bona fide dispute and was binding as a family settlement being for the benefit of the estate, that Mohan Kuer surrendered the estate validly in favour of Jwala Prasad and Madho 795 MAHAJAN J. The dispute in this appeal concerns the zemindari and house properties last owned by Shah Chiranji Lal who died at a young age on the 14th May, 1913, leaving him surviving a widow, Mst. Khem Kuer, and his mother Mst. Mohan Kuer, besides a number of collaterals, indicated in the pedigree table below : Shah Pirthi Raj : : : : : : : : Mst. Tulsa Kuer=Shah Lal Chand=Mst. Mohan Kuer : : : : : : : : : : : : Hira Lal : : : : : : : : Shah Jai : : : Kisen : : : Mst. Ram Kuer : =Kherpal : : : : : : : : :Shah Jwala Shah Sri :Prasad Kisen : : : :(1)Khem : : : : : Kuer Shah Madho Ram Chand Lachman Kishen Lal :(2)Phool Lal Prasad =Mst. Umri : Kuer : : : : : : : : : Sudar Mad : Dwarka shan sudan : Prasad Lal Lal : : : : : : : : : : : : Ganga Prasad Jamna Mst. Prem Kuer Shah Chiranji Lal Prasad =Lekh Raj =Mst. Khem Kuer : : : : : : Manohar Lal Lachmi Narain 797 Lal and they entered into possession of it after the death of Khem Kuer. Some of the transferees who had been implead ed as defendants compromised the suit with the plaintiffs and that part of the suit was decided according to the terms thereof between those parties. Prem Kuer preferred an appeal to the High Court of Judicature at Allahabad against the decree dismissing her suit. The High Court by its judgment dated the 26th Octo ber, 1943, allowed the appeal, reversed the findings of the learned additional civil judge on the above issues and decreed the plaintiffs ' suit with costs. Some of the trans feree defendants compromised with the plaintiff appellant in the High Court and the appeal was decided in terms thereof in their favour. Two main points which are in controversy in this appeal and require consideration, are: 1. Whether the compromise in suit No. 120 of 1915 amounts to a family settlement and binds the plaintiff respondent, and, 2. Whether the surrender by Mst. Mohan Kuer was a valid surrender under Hindu law. In order to appreciate the respective contentions of the parties, it is necessary to set out shortly in chronological order the history of the events which has resulted in this controversy. As already stated, Shah Chiranji Lal died on the 14th May, 1913, leaving considerable movable and immovable property. At the time of his death, his widow Khem Kuer was about eleven years old and his mother Mohan Kuer was about 53 years old. The two reversioners, Shah Jwala Prasad and Shah Madho Lal, made an application for mutation of names of the estate in their favour claiming it on the basis of a will alleged to have been made by Shah Chiranji Lal on the 13th May, 1913, a day before his death. On the 10th of September, 1913, an application was made by Mohan Kuer for herself and as guardian of Khem Kuer Challenging the genu ineness of the will and claiming 798 that the estate of the late Shah Chiranji Lal should be mutated in their names. Notice of this application was given to the two reversioners but they thought it prudent not to appear and to contest the contentions raised by the two ladies. with the result that the inheritance of the late Chiranji Lal was mutated in the name of the widow as sole heir under the guardianship of Mohan Kuer by an order dated the 28th October, 1913. The reversioners had also made applications in pending suits for getting themselves im pleaded as legal representatives. Mohan Kuer applied for the removal of their names and for substitution of the name of the widow and of herself in those cases. Pending decision of these matters, on the 11th May, 1915, suit No. 120 of 1915 was filed by Jwala Prasad and Madho Lal on the basis of the alleged will of the 13th May, 1913. On the same day an application was made for the appointment of a receiver and an interim order appointing a receiver was passed by the court. On the 18th May, 1915, Mohan Kuer for herself and as guardian of the minor widow made an application praying for the discharge of the receiver. By an order dated the 23rd September, 1915, the receiver was discharged and it was held by the civil judge that the plaintiffs had no prima facie case and that the will propounded by them was a suspicious document. On the 18th December, 1915, suit No. 120 of 1915 was compromised between the parties. This compromise is in the following terms : "1. The plaintiffs relinquish their claim for possession over the estate of Shah Chiranji Lal. The defendants shall have all those rights to the estate of Shah Chiranji Lal, which she had as a Hindu widow according to law. After the death of the two Musammats, the plaintiffs in equal shares and, after them, their heirs, who might have the right of survivorship one after the other, shall be the owners of the estate of Shah Chiranji Lal. The name of Mst. Mohan Kunwar defendant against one half of the property in lieu of maintenance, shall continue. 799 4. Mohan Kunwar and Mst. Khem Kunwar shall have power to do anything they might choose with the entire income from the movable and immovable property, cash, orna ments, amount of decrees and documents, household goods and other movables, which they might have in their possession. The plaintiffs or anyone else shall have no power to inter fere or to ask for rendition of accounts. In case Mohan Kunwar defendant dies first, Mst. Khem Kunwar shall, as a Hindu widow, become the owner in posses sion of the entire property, of which Mst, Mohan Kuer might have been in possession in any way, subject to the provi sions of condition No. 4. In ,case Mst. Khem Kuer defendant dies first, Mst, Mohan Kuer shall as a Hindu widow, become the owner in possession of the entire property of which. Mst, Khem Kuer might have been in possession in any way, subject to the provisions of condition No. 4." In accordance with the terms of this compromise suit No. 120 of 1915 was dismissed. In the proceedings that were pending for substitution of names the court on the 22nd December, 1915, ordered that Khem Kuer and Mohan Kuer be impleaded as legal representatives of the late Shah Chiranji Lal. On the 2nd September, 1918, Khem Kuer brought a suit against her mother in law Mohan Kuer for a declaration to the effect that she alone was the lawful heir of Chiranji Lal and was the owner of the property, mentioned in schedule A and that the defendant had no concern with it. This suit was compromised between the parties on the 22nd April, 1919. Mohan Kuer agreed that Khem Kuer 's suit be decreed. Khem Kuer undertook to look after Mohan Kuer in every way and if she desired to live separately from her, she agreed to pay her a sum of Rs. 3000 per annum by way of maintenance. Khem Kuer did not live long after her having become owner of the entire estate of her husband under the terms of this compromise. As stated already, she was murdered on the 28th August, 1919. The estate 104 800 thus became vested in Mohan Kuer both according to Hindu law as well as in accordance with the terms of the compromise of the 18th December, 1915. It is alleged that either on the fourth or the thirteenth day after the death of Khem Kuer, Mohan Kuer when asked about the mutation of the estate, said that she had no concern with it and had relinquished it and had devoted herself to worship. On the 15th September, 1919, an application bearing the signature of Mohan Kuer in Hindi was presented by her mukhtar Chaturbhuj in the court of the subordinate judge at Agra, praying that the sale certificate in suit No. 1919 (Shah Jwala Prasad vs Rai Bahadur Shah Durga Prasad), be prepared in the names of Shah Jwala Prasad and Shah Madho Lal, for they were the heirs in possession of the properties of Shah Chiranji Lal. This application (Exhibit N 31) contains the following recital: "Mst. Khem Kuer died on the 28th of August, 1919. I do not want to take any proceedings in my own name. Shah Jwala Prasad and Shah Madho Lal are the subsequent heirs and it is in their names that all the mutation proceedings etc. are being taken in the revenue court. They have been made the heirs in possession of the entire property and an applica tion has been filed in their names in this court for prepara tion of the sale certificate. This petitioner has got no objection to the preparation of the sale certificate in their names, for they are the heirs and are in possession of the property. " The sale certificate was prepared accordingly. On the 16th September, 1919, Jwala Prasad and Madho Lal applied for mutation in respect of the lands relating to mauza Somra in the court of the tahsildar of Etmadpur. In column 5 of this application (Exhibit A 14) it was alleged that they were entitled to mutation by right of inheritance. Similar appli cations were made in respect of other villages also. (Vide Exhibit 128 etc.) Mutations were entered in all the villages on the basis that both of them were heirs in equal shares to the property of the deceased, though according to Hindu law, Shah Jwala Prasad alone was the 801 next heir. During the course of the mutation proceedings one Chintaman, general attorney of Shah Jwala Prasad was exam ined on the 11th October, 1919 and he stated that Mst. Khem Kuer died on the 28th August, 1919, that Shah Jwala Prasad and Shah Madho Lal were her heirs in equal shares, that Mohan Kuer was the mother in law of the deceased and she did not want her name to be recorded and had made relinquishment in favour of Shah Madho Lal and Shah Jwala Prasad in the civil court on the 15th September, 1919. Chaturbhuj, gener al attorney of Mohan Kuer was examined in the same proceed ings on the 27th October, 1919, and he stated that Mohan Kuer did not want her name to be recorded in place of the name of the deceased, that she had no objection to the entry of the names of Shah Jwala Prasad and Shah Madho Lal, that she had sent him for making that statement. He admitted the relinquishment filed by Mohan Kuer in the civil court with respect to the property of Mst. Khem Kuer but he was not able to state when that relinquishment had taken place. The tahsildar after recording these statements ordered the mutation of names in favour of the two reversioners (Exhibit M 2). On the 22nd November, 1919, the two reversioners Shah Jwala Prasad and Shah Madho Lal, having entered into possession of the estate after the death of Khem Kuer made a gift of property of the value of about Rs. 50,000 in favour of the sisters of Shah Chiranji Lal by means of two deeds of gift. (Vide Exhibit M 16). These gift deeds contain the following recitals : "Shah Chiranji Lal deceased was the owner of Katariha estate in which besides other villages the villages speci fied below were also included, and as he had no issue after his death Mst. Khem Kuer became his heir as a Hindu widow of a joint family subject to Mitakshara school of law. On her death we the executants who were entitled to become the absolute owners of the estate of Shah Chiranji Lal according to Shastras became the absolute owner of the entire property 802 of Shah Chiranji Lal by inheriting the estate from him. We obtained possession over everything and mutation of names also were effected in our favour from the revenue court in respect of all villages. Shah Chiranji Lal deceased had two sisters Mst. Ram Kuer and Mst. Prem Kuer and he had a desire during his lifetime to give them some property but owing to sudden death he could not himself fulfil his intention during his lifetime. We the executants accept this fact as desired by him. Besides this the mother of Shah Chiranji Lal also desires the same thing and it is our duty to fulfil the same, and to give property to the Musammats aforesaid is considered to be a pious and good act from the religious point of view. It is our duty also to respect their wishes and fulfil the same, so that the people of our caste and family might not think that after the death of Shah Chiranji Lal his wishes remained unfulfilled. Hence for the reasons set forth above and keeping in view the honour of the family and pious nature of the act we the executants while in a sound state of body and mind . . . make a gift of the following villages in favour of the donees. " The donees subsequently made a number of transfers of the property gifted to them and in every respect the gift deeds were acted upon. Jwala Prasad, the presumptive rever sioner, died in the year 1980. In suit No. 49 of 1928 (same as No. 89 of 1929) one Pandit Rikh Ram had obtained a decree against Shah Madho Lal and his sons and they appealed against it to the High Court and also applied for postponement of the preparation of the final decree. Stay was ordered on the applicants furnishing security in the sum of Rs. 20,000 for future interest, costs, etc. On the 26th May, 1930, in compliance with the order of the High Court a security bond was executed by Shah Madho Lal and his sons as first party and by Mst. Mohan Kuer as second party, containing the following recitals : "After the death of Mst. Khem Kuer Mst. Mohan Kuer was to become the owner of the property with 803 limited interests as a Hindu mother, but she relinquished her inheritance and did not agree to accept any property. By means of a private arrangement, i.e., a family arrange ment, it was decided as between Shah Jwala Prasad and Shah Madho Lal that they should be the owners of the property aforesaid in equal shares. Documents in that connection were registered. Thus Shah Madho Lal executant No.1 is the exclusive owner of the property given below which is being pledged and hypothecated under this security bond. Execu tant No. 4, the second party, has, after hearing and under standing the contents of this security bond, joined in token of the veracity of the facts noted above so that in future she might not be able to take objection to it and so that she might have no objection of any sort to the security bond." (Executant No. 4 was Mst. Mohan Kuer). On the 30th June, 1930, an affidavit bearing the thumb impression of Mst. Mohan Kuer was filed in the same pro ceedings containing the following statements : "I solemnly affirm and say that after the death of Mst. Khem Kuer I did not agree to accept property nor was I the heir and that I relinquished the entire property in favour of Shah Jwala Prasad who became the owner of the entire property which was in possession of Khem Kuer. " The Subordinate Judge expressed the view that the bond could not be held to have been executed by Mohan Kuer, she being a pardanashin lady. He declined to accept the deed as sufficient and valid security. On the 9th July, 1930, the High Court of Judicature at Allahabad dismissed the applica tion for stay of proceedings. On the 15th July, 1931, Mohan Kuer instituted suit No. 24 of 1931 in the court of the subordinate judge of Mathura against the widows of Shah Jwala Prasad, Shah Madho Lal and his sons and a number of transferees who had taken the property from these two reversioners. In para 8 of the plaint it was alleged 804 that the plaintiff was an old pardanashin woman, was simple and of week intellect and illiterate, that on account of the murder of Mst. Khem Kuer, she was very terror stricken and was full of sorrow and had no knowledge about her rights, that the third defendant and Jwala Prasad who wanted to get the property took undue advantage of the plaintiff 's afore said condition and unlawfully entered into possession of the property left by Chiranji Lal deceased and caused the muta tion of names in their favour. In para. 12 it was said that the defendants had got the thumb impressions of the plain tiff on certain documents without telling her the contents of those papers, simply by saying that a decree for a con siderable amount had been passed against the property and it was going to be sold in auction and that a security bond must be furnished for saving the property. She prayed for a decree for possession of the property in dispute in her favour against the defendants. During the pendency of this suit Mohan Kuer died on the 5th December, and on her death an attempt was made by the present plaintiffs to get them selves impleaded as her legal representatives but on the 9th October 1934 it was held that the claim of Mst. Mohan Kuer was of a personal character and the suit therefore could not proceed owing to abatement. It was, however, noted that the legal representatives could file a separate suit, if so advised. It is in consequence of this order that the suit out of which this appeal arises was filed on the 30th April 1936. It was contended by the learned Attorney General that the High Court on mere suspicions and unwarranted assump tions had found the main issues in the case against the appellant and had erroneously held that the compromise in suit No. 120 of 1915 was not binding on the 'plaintiffs and that the surrender by Mohan Kuer was not valid surrender under Hindu law. After hearing the learned counsel at considerable length, we did not think it necessary to hear the respondent in reply, as in our opinion, the decision of the High Court on both the points was right. 805 On the point of surrender, the learned Attorney General contended that the widow effaced herself and put both the reversioners in possession of the property half and half, and agreed to take Rs. 3,000 from them for her maintenance and that the fact of surrender was satisfactorily proved from the conduct of Mohan Kuer in allowing the estate to be mutated in the names of the reversioners and in allowing them to take possession of it, also by the different state ments made by her and from the other documentary and oral evidence led in the case. Emphasis was laid on the state ments contained in the application (Exhibit M 31), on the statement of her mukhtar Chaturbhuj, and on the recitals of the security bond and the affidavit, Exhibit P 30. Whether Mohan Kuer effaced herself and surrendered the property, or whether she merely abandoned it, or whether she entered into an arrangement for the division of the estate between herself, the two reversioners and the daughters and their sons it is not possible to predicate with any amount of certainty. No definite opinion can be offered on the question whether whatever she did, she did voluntarily after fully realizing the consequences of her act and wheth er as a pardanashin lady she had.been properly advised on the matter or whether she merely acted on sentiment. Considerable doubt is cast on the story of surrender set up by the defendants by the recitals in the two deeds of gift, dated 22nd November, 1919, extracted above. The donors did not base their title to the property either on the compromise of 1915 or on the surrender of Mohan Kuer of the year 1919 or on the will; on the other hand, they said that they had become owners of the property of Chiranji Lal by inheritance under Hindu law after the death of his widow. Both of them could not possibly inherit the property half and half under Hindu law. Moreover, there is no clear or definite evidence of either the time when the arrangement was made or of the terms thereof. The evidence on these points is vague and 806 unsatisfactory. It is completely wanting as to the arrange ment under which Mohan Kuer became entitled to receive Rs. 3,000 from them. The conduct of Mohan Kuer and the various statements by her no doubt do indicate that she cut off her connection with the bulk of the estate of Chiranji Lal after the death of the widow and received a sum of Rs. 3,000 from the rever sioners and it is also clear that at her instance the rever sioners gave property of the value of Rs. 50,000 to her daughters, but in the absence of any satisfactory evidence as to the precise nature of this arrangement it is not possible to conclude that the widow after fully realizing as to what she was doing and after proper advice effaced her self. In this connection the allegations made by her in the suit of 1931 cannot be altogether ruled out from considera tion. Assuming however for the sake of argument that Mobart Kuer purported to relinquish her estate in favour of Jwala Prasad and Madho Lal, in our opinion, the relinquishment connot in law operate as an extinction of her title in the estate. The principle underlying the doctrine of surrender is that it cannot possibly be made in favour of anybody except the next heir of the husband. Vesting of the estate in the next reversioner takes place under operation of law and it is not possible for the widow to say that she is withdrawing herself from the husband 's estate in order that it may vest in somebody other than the next heir of the husband. It was held by this court in Mummareddi Nagi Reddi vs Pitti Durairaja Naidu(1) that so far as the next heir is concerned, there cannot be a surrender of the total ity of the interest which the widow had, if she actually directs that a portion of it should be held or enjoyed by somebody else other than the husband 's heirs and that the position is not materially altered if the surrender is made in favour of the next heir with whom a stranger is associat ed and the widow purports to. relinquish the estate in order that it may vest in (1) [1951] s.c. R. 655. 807 both of them. Though in the written statements of the two sets of defendants different versions of the character of the arrangement were pleaded, the learned Attorney General before us stated that the surrender by the widow was made both in favour of Jwala Prasad and Madho Lal in equal moie ties. Madho Lal admittedly was not the next reversioner entitled to succeed to the estate. Thus the surrender of the totality of the interest of the widow was not made in favour of the next heir. That being so, it cannot operate as a valid surrender. If the surrender could be held a valid one, then obviously succession that had opened out in 1919 and vested in the next heirs could not be divested at the instance of the plaintiffs in the year 1932 on the death of Mohan Kuer, but in view of the invalidity of the surren der it has to be held that succession to Shah Chiranji Lal 's estate opened in 1932 and the plaintiffs as next heirs were entitled to take it. The next question for consideration is whether the compromise of 1915 entered into between Mohan Kuer as guardian of Khem Kuer, and the two reversioners who had claimed the estate on the basis of a will, was a bona fide family arrangement and thus binding on the ultimate rever sioners, the plaintiffs. It is well settled that when the estate of a deceased Hindu vests in a female heir, a decree fairly and properly obtained against her in regard to the estate is in the absence of fraud or collusion binding on the reversionary heir, but the decree against the female holder must have involved the decision of a question of title and not merely a question of the widow 's possession during her life (vide Venayeck Anundrow vs Luxumeebaee (1). This principle of res judicata is not limited to decrees in suits contested and it is competent to a widow to enter into a compromise in the course of a suit bona fide in the inter est of the estate, and not for ' her personal advantage, and a decree passed on such compromise is binding upon the reversioner. The question whether the transaction (1) 808 is a bona fide settlement of a disputed right between the parties depends on the substance of the transaction and in order that it may bind the estate it should be a prudent and reasonable act in the circumstances of the case. As observed by their Lordships of the Privy Council in Ram sumran Prasad vs Shyam Kumari (1), the true doctrine is laid down in Mohendra Nath Biswas vs Shamsunnessa Khatun(2), decided in 1914, and it is that a compromise made bona fide for the benefit of the estate and not for the personal advantage of a limited owner will bind the reversioner quite as much as a decree against her after contest. That being so,we proceed to inquire whether the compromise in the present case is one that can be supported on these principles. In agreement with the High Court we are of the opinion that it cannot be so supported. Mohan Kuer in entering into the compromise on behalf of the minor widow never applied her mind to the interests of the ultimate reversioners. She entered into it for her own personal benefit and for the personal benefit of the minor widow in complete indifference as to what was to happen to the estate after their respective deaths. Under this compromise these two ladies got all the rights they had under Hindu law without sacrificing an iota of their property and then they agreed that after their death the plaintiffs in equal shares and after them their heirs shall be the owners of the estate of Chiranji Lal. It did not matter in the least to the two ladies what was to happen to the estate after their deaths and they were quite willing to let this estate go to the plaintiffs in the suit, though one of them was a remote reversioner. The compromise therefore was made in the interest of the actual parties to the suit in complete disregard of the interests of the ultimate reversioners. The widows undoubtedly acted with reasonableness and pru dence so far as their personal interest was concerned but further than that they did not see. The claim, of the two plaintiffs in Suit No. 120 of 1916 was adverse to the inter est of the (1) (1922) 49 I,A. 342. (2) 809 reversion as they were claiming as legatees under the will. The widows while entering into the compromise safeguarded their personal rights only and thus in entering into it they only represented themselves and not the estate or the rever sioners and surrendered nothing out of their rights, and it cannot be said that in the true sense of the term it was a bona fide settlement of disputed rights where each party gave up something of its own rights to the other. The plain tiffs got an admission from the widows in regard to the future succession of the estate that after their deaths they would succeed though they were not heirs in accordance with Hindu law. By this admission the widows lost nothing what soever. Those who lost were the ultimate reversioners and their interest was not in the least either considered or safeguarded. In these circumstances it seems to us that the compromise cannot be held to be a bona fide settlement or family arrangement of disputed rights and was entered into by Mohan Kuer for her personal advantage and of the advan tage of Khem Kuer. The present case is analogous to the decision of the Privy Council in Imrit Konwur vs Roop Narain Singh (1). There in a dispute between a person claiming to be an adopted son of the previous owner and the widow and her daughters who would have title after her, the widow gave up her daughters ' rights in consideration of her receiving practically unimpaired what she could. Their Lordships held that such a compromise could not stand, as indeed it was not a compromise at all. The learned Attorney General laid considerable emphasis on the decision of their Lordships of the Privy Council in Mata Prasad vs Nageshar Sahai (2). In that case the widow admitted the right of the reversioner under Act I of 1869 and agreed that succession will be governed by that Act. The reversioner agreed to let her remain in possession and undertook that he would not alienate the property during that period. The widow in that case was not constituted a full owner under Hindu law and she did not get her full rights (1) (2) (1925) 52 I.A.393 810 under the compromise but as a matter of concession was allowed to remain in possession by the reversioner and as a matter of fact she sacrificed her rights to a considerable extent and did not act for her personal benefit at all except to the limited extent mentioned above. In the cir cumstances of that case it was held "that the compromise was a bona fide family settlement of disputed claims and was binding on the reversioners. In the present case the devolu tion of the property after the death of Chiranji Lal was agreed to be in accordance with Hindu law and that being so, the further devolution of the property after their death was no concern of the widows. That was a matter of law. The ultimate reversioners were stabbed in the back by the widow and such a compromise cannot be held to be binding on them. A large number of cases were cited before us in which com promises under different circumstances had been held to be binding on the reversioners. We consider that it is wholly unnecessary to examine those cases because the circum stances in which those compromises were made were quite different from the circumstances of the present case. Considering all the materials which were placed before us, we hold in agreement with the High Court that the compromise in the present case was neither prudent nor reasonable so far as it affected the interests of the estate and that of the ultimate reversioners and that being so, is not binding on the plaintiffs. For the reasons given above this appeal fails and is dismissed with costs. Civil Appeal No. 30 of 1951. This is an appeal by one of the transferees and arises out of the same suit out of which arises appeal No. 29 of 1951. On the 13th June, 1928, Shah Madho Lal and his son Shah Madhusudan Lal executed a sale deed (Exhibit M 13) in favour of the appellant for the sum of Rs. 21,000. The transferee while adopting the defence taken by Madho Lal and by the heirs of Jwala Prasad, pleaded that he was protected by the provisions of section 41 of the Transfer of Property Act. 811 The High Court held that in cases where a person who has allowed another to occupy the position of an ostensible owner has a limited estate, the rule of section 41 applies only during the lifetime of the limited owner and is not available to protect transferees against the claim of the reversioners. A number of authorities were cited in support of this proposition. The learned counsel for the appellant was unable to displace this proposition. It is quite clear that the plea of section 41 of the Transfer of Property Act could only be raised against Mohan Kuer or her legal repre sentatives but is not available against the plaintiff, Mohan Kuer having acquired a limited life estate. This contention is therefore rejected. The learned counsel then contended that the plaintiff Prem Kuer had relinquished her rights in favour of her sons in 1933 and she had no locus standi to maintain the suit or to appeal against the decision of the trial judge as the title to the estate had vested in her sons. The plaintiffs had alleged in para. 13 of the plaint that the relinquish ment was inoperative and void. The defendants did not dis pute that allegation and it is not open to them at this stage to take up the plea which they could have taken in the trial court or in the appellate court. Even in the grounds of appeal to this court the point was not taken. If the point was taken at the proper stage the plaintiffs might well have proved that the relinquishment was no longer operative or they might have amended the plaint and put it in proper form. The learned counsel adopted the arguments of the learned Attorney General in the other appeal and for the reasons given therein these points are decided against him. This appeal therefore also fails and is dismissed with costs. Appeals dismissed. Agent for the appellant in Civil Appeal No. 29 of 1951: section section Shukla. Agent for the appellant in Civil Appeal No. 80 of 195 I:P. C. Agarwal. Agent for the respondents in both: Rajinder Narain.

A relinquishment by a Hindu widow of her estate in favour of the next reversioner and a stranger in equal moieties is not a valid surrender under Hindu law. A valid surrender cannot be made in favour of anybody except the next heir of the husband. Mummareddi Nagireddi vs Pitti Durairaja Naidu [1951] (S.C.R. 655) followed. It is competent to a Hindu widow to enter into a compro mise in the course of the suit bona fide in the interest of the estate and not for her personal advantage and a decree passed on such a compromise will be binding on the rever sioner. The question whether a compromise is a bona fide settlement of a disputed right between the parties depends on the substance of the transaction and in order that it may bind the estate it should be a prudent and reasonable act. [On the facts their Lordships held, agreeing with the High Court, that, the compromise in the present case was neither prudent nor reasonable so far as it affected the interests of the estate and of the ultimate reversioners and that it was not, therefore, binding on the reversioners.] Ramsumaran Prasad vs Shyam Kumari (49 I.A. 342), Mohendra Nath Biswas vs Shamsunnessa Khatun (21 C.L.J. 157) and Imrit Kunwar vs Roop Narain Singh fol lowed. Mata Prasad vs Nageshar Sahai (52 I.A. 393) distin guished.

Civil Appeal No. 1633 of 1968. Appeal by special leave from the judgment and order dated the 2nd December, 1967 of the Government of India, Ministry of Steel, Mines and Metals (Department of Mines and Metals) at New Delhi in No. M.V. 1 (141)/67. section K. Mehta and K. R. Nagaraia, for the appellant. section P. Nayar and Girish Chandra, for respondent No. 1. U. P. Singh and Shambhu Nath Jha, for respondent No. 2. The judgment of the Court was delivered by BHAGWATI, J. This appeal can be disposed of on a very narrow point and we will, therefore, set out only so much of the facts giving rise t(s the appeal as bear on this point and omit what is unnecessary. Since 23rd December, 1959 the appellants had a sub lease from the Receiver in Suit No. 203 of 1905 for extracting phosphate from 1043 an area of 400 hectares situate in Singhbhum District in the State of Bihar. This sub lease, according to the State of Bihar, came to an end from 1st September, 1964 and the appellants, therefore, made an application to the State of Bihar on 22nd/24th March, 1965 for a grant of fresh mining lease for extraction of apatite and phosphate from the same area under Rule 22 of the Mineral Concession Rules, 1960 made by the Central Government under section 13 of the Mines Minerals (Regulation Development) Act, 1957. The State Government failed to dispose of the application within a period of nine months from the date of its receipt and hence under Rule 24(3) of the Mineral Concession Rules, 1960 the application was deemed to have been refused by the State Government. The appellants preferred a revision application to the Central Government on 16th February, 1966 against the deemed refusal of their application under Rule 54 of the Mineral Concession Rules, 1960. The Central Government disposed of the revision application by an order dated 31st December, 1966 directing the State Government to consider the application of the appellants and to decide it on merits. The State Government thereafter by an order dated 9th February, 1967 rejected the application of the appellants on the ground that the State Government had already taken a decision not to grant lease for phosphate ore to any individual or private party as it had decided "to work this mineral in the public sector". The appellants again filed a revision application to the Central Government against the order of the State Government rejecting their application. The Central Government invited comments of the State Government on the revision application and on the comments submitted by the State Government, the appellants were given an opportunity to submit their cross comments which they did on 8th August, 1967. Whilst the revision application was pending, the appellants read an advertisement in the issue of Statesman dated 13th September, 1967 to the following effect: "Government of Bihar Department of Mines & Geology, Patna. Mining and beatification of low grade apatite of Singhbhum. A reserve of a little over 1 million tonnes of low grade Apatite Mineral with average 16% P.O. has been proved in a belt consisting of several mouzas in the Singhbhum District of Bihar. The representative bulk samples of the minerals have laboratory Jamshedpur, and it has been found that the mineral can be suitably upgraded by benefication, to yield Apatite concentrate with 36% to 40% P.O., suitable for use as raw material for the manufacture of Phosphetic fertiliser. Report of economic feasibility studies available. The State Government may consider giving tax holidays for a filed period and also may guarantee the safety of the investment invested parties capable of making investment to the tuner of 40 to 50 lakhs in undertaking to above project may obtain further particulars from the 1044 Mines Commissioner, Department of Mines and Geology, Government of Bihar. Patna. Sd/ K. ABRAHAM, Commissioner of Mines & Geology. " The appellant immediately addressed a communication dated 26th September, 1967 to the Central Government enclosing a copy of the advertisement and pointing out that it was clear from the advertisement that the State Government had abandoned the idea of working apatite and phosphate in the public sector and that the ground for rejecting the application of the appellants for mining lease no longer existed. The Central Government, however by an order dated 2nd December, 1967 rejected the revision application stating that: ". the Central Government have come to conclusion that as the State`Government are anxious to do phosphate mining for their own fertilizer factory in public sector, there is no valid ground for interfering with the decision of the State Government rejecting your application for grant of mining lease for apatite and phosphate in Singhbhum district. " The appellants thereupon preferred the present appeal against the order of the Central Government with special leave obtained from this Court. It is apparent from the order of the Central Government dated 2nd December, 1967 that the Central Government rejected the revision application of the appellants on the ground that the State Government was anxious to do phosphate mining for its own fertilizer factory in the public sector. This was undoubtedly the original ground put forward by the State Government for rejecting the application of the appellants for mining lease. But it does appear prime facie from the advertisement in the issue of the Statesman dated 13th September, 1967 that the proposal of the State Government to mine apatite and phosphate for its own fertilizer factory in the public sector was abandoned and the State Government was prepared to give mining lease to a party which was prepared to undertake a project of setting up a plant for beatification of this mineral so as to make it suitable for use as raw material for the manufacture of phosphatic fertilizer. The appellants brought this advertisement to the notice of the Central Government by their representation dated 26th September, 1967 and this was done before the revision application was disposed of by the Central Government. Even so, the Central Government failed to take into consideration this advertisement which appeared to indicate a change in the stand of the State Government and made its order dated 2nd December, 1967 in complete disregard of it. The order of the Central Government dated 2nd December, 1967 clearly shows that the Central Government failed to apply its mind to this advertisement though it was brought to its notice in time and proceeded to dispose of the revision application as if no such advertisement had been issued by the State Government. The Central Government did not even care to invite the comments of the State 1045 Government in regard to the advertisement and ignored it altogether A in making its order rejecting the revision application. This was clear non application of mind on the part of the Central Government to a very material circumstance which was brought to its notice before it disposed of the revision application. The order of the Central Government, therefore, suffers from a patent error and it must be quashed and set aside and the matter must go back to the Central Government for fresh determination. We accordingly set aside the order dated 2nd December, 1967 passed by the Central Government and remand the case to the Central Government with a direction to dispose of the revision application, after taking into account the entire material before it, including the advertisement given by the State Government in the issue of Statesman dated 13th September, 1967 and giving an opportunity to the State Government to offer its comments in regard to this advertisement and a further opportunity to the appellants to make their submissions on the comments, if any, offered by the State Government. The State of Bihar will pay the costs of the appeal to the appellants. M.R. Appeal allowed.

On the expiry of his sub lease for extracting phosphate form an area of 400 hectares situate in Singbhum district, Bihar, the appellant applied to the State Government for a grant of fresh lease. For nine months the State Government failed to dispose of his application, and under section 24(3) of the Mineral Concession Rules, 1960, it was deemed to have been refused. Under Rule 54 of the Mineral Concession Rules, 1960, the appellant applied for revision and the Central Government directed the State Government to consider his application on merits. The State Government rejected the application on the ground that it had decided not to grant lease for phosphate to individuals or private parties, but to work this mineral in the public sector. The appellant again applied for revision during the pendency of which an advertisement of the State Government appeared in the 'Statesman ' indicating the abandonment of its proposal to mine phosphate and apatite in the public sector. The appellant brought the advertisement to the notice of the Central Government, but it rejected his revision application, completely disregarding the advertisement. The appellant preferred an appeal to this Court by special leave. Allowing the appeal and remanding the case to the Central Government, the Court, ^ HELD: The Central Government failed to take into consideration this advertisement which appeared to indicate a change in the stand of the State Government, and made its order in complete disregard of it. This was clear non application of mind on the part of the Central Government to a very material circumstance which was brought to its notice before its disposal of the under revision application. The order of the Central Government, therefore. suffers from a patent error. [1044G H, 1045A]

No. 77 of 1972. Under Article 32 of the Constitution of India for a writ in the nature of habeas corpus. section K. Dhingra, for the petitioner. Dilip Sinha and G. section Chatterjee, for the respondent. The Judgment of the Court was delivered by Shelat, J. The District Magistrate, Howrah passed on June 12, 1971 the impugned order of detention under sub section (1) read with sub section (3) of section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 directing the petitioner 's detention thereunder. The order stated that the District Magistrate was satisfied that it was necessary to do so in order to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order. On June 13, 1971, the petitioner was accordingly arrested and detained in Dum Dum Central Jail. 676 The grounds of detention served on the petitioner at the time of his arrest read as follows : (1) On 17 8 70 at about 02.00 hours, you and your associates Bhaja alias Tarapada Ghosh, Bablu, Kartic and others attacked the members of R.G. Party who were on duty near Jatadhari Park by hurling bombs towards them. When chased by them, you and your associates again hurled bombs towards them and managed to escape and thereby disturbed public order. (2) On 10 4 71 at about 16.00 hours, you and your associates being 'armed with sword assaulted one Basudeb Laha of 56/18, Banarjee Bagan Lane. at Sambhu Halder Lane near Jatadhari Park causing injuries on his person. When objected by the members of the public, you also terrorised them by brandishing the sword. (3) On 1 5 71 at 15.00 hours, you and your associates Tapan, Kartic and others being armed with bombs and other deadly weapons demanded money from one Banshi Show of 28, Haraganj Road, P.S. Malipanchghora. When refused, you and your associates assaulted him. The local people and the neighbouring shop keepers objected. At this you and your associates became more violent and terrorised them by throwing bombs towards them. Con sequently they became panicky and fled away. Sub section (1) read with sub s, (3) of section of the Act authorises inter alia a District Magistate to direct detention of any person in respect of whom be is satisfied that such detention should be ordered with a view to prevent him from acting prejudicially to the security of the State of West Bengal, or the maintenance of public order. Sub section (2) of section 3 contains a special definition of the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order" to mean the acts enumerated in cls. (a) to (e) thereof. (d), which is the only relevant clause for purposes of this petition provides as follows: "(d) 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 commission of such offence disturbed, or is likely to disturb, public order. " 677 It is not disputed that the petitioner 's alleged activities set out in grounds ( 1 ) and (3) of the said grounds of detention fell under cl. (d) being offences under the , and also being such that they did or were likely to disturb public order. The only contention raised for our determination was that activities set out in ground No. (2), namely, causing injuries with a sword. would constitute an offence under section 324 of the Penal Code, an offence neither punishable with death, nor life imprisonment, nor imprisonment for a term of seven years. Therefore, ground No. (2) would be, it was urged, a ground which would not fall under the said definition, and would, therefore, be an extraneous ground rendering the impugned order invalid. The contention in our view has no substance as the offence alleged in ground No. (2) would fall under cl. (d) of section 1 (2) of the Act inasmuch as it will be one, punishable under the , LIV of 1959. Under section 2(1) (c) of the , the word 'arms ' inter alia means articles of any description designed or adapted as weapons for offence or defence, and includes firearms, sharpedged and other deadly weapons. A sword is thus arms I within the meaning of this definition. 3 of the Act then prohibits, among other things, possession of firearms or ammunition except under a licence issued under the Act or the rules made thereunder. So far as arms, other than firearms, are concerned, section 4 empowers the Central Government, if it is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest, that acquisition,. possession or carrying of arms, other than firearms, should also be regulated, it may by notification direct that this section shall apply to the area specified in such notification, and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification, except under a licence issued under the provisions of the Act or the rules made thereunder. Once, therefore, such a notification is issued under the Act or the rules made thereunder, and that notification specifies any arms, e.g. a sword, possession of or carrying such a sword without licence in the specified area would be an offence under the . 25 (1) (b) provides that whoever acquires, has in his possession or carries in any place specified by notification under section 4 'any arms of such class or description as have been specified in that notification in contravention of that section shall be punishable with imprisonment for a term which may extend to three 1 years, or with fine or with both. It, however, appears that no such notification as contemplated by section 4 of the 1959 Act has been issued. But, in 1923 such a 678 notification bearing reference No. Political (Police) Department Notification No. 787 PL, dated March 9, 1923 was issued under section 15 of the earlier Indian , XI of 1878, which was in terms similar to section 4 of the present Act. The question is, whether Act XI of 1878 having been repealed, the said notification issued under section 15 thereof can still be said to be operative ? Sec. 46(1) of the repealed the preceding Act of 1878. Its sub section (2) provides that notwithstanding such repeal and without prejudice to sections 6 and 24 of the General Clauses Act, X of 1897 a licence granted under the repealed Act and in force immediately before the commencement of the new Act shall continue, unless sooner revoked, for the unexpired period for which it had been granted or renewed. 46(2) thus saves only licences issued under the . Sec. 6(b) of the General Clauses Act, however, provides that where any Central Act or regulation made after the commence ment of the Act repeals any earlier enactment, then, unless a different intention appears, such repeal shall not "affect the previous operation of any enactment so repealed or anything duly done or suffered hereunder". 24 next provides that where any Central Act is repealed and re enacted with or without modification, then, unless it is otherwise expressly provided, any notification issued under such repealed Act shall, so far as it is inconsistent with the provisions re enacted, continue in force and be deemed to have been made under the provisions so re enacted unless it is superseded by any notification or order issued under the provisions so re enacted. The new Act nowhere contains an intention to the contrary signifying that the operation of the repealed Act or of an notification issued thereunder was not to continue. Further, the new Act re enacts the provisions of the earlier Act, and section 4 in particular, as already stated, has provisions practically identical to those of section 15 of the earlier Act. The combined effect of sections 6 and 24 of the General Clauses Act is that the said notification of 1923 issued under section 15 of the Act of 1878 not only continued to operate but has. to be deemed to have been enacted under the new Act. Possession of arms, such as a sword without a licence or contrary to the terms and conditions of such a licence would thus be an offence punishable with imprisonment under the . Though the possession of and carrying a sword were alleged to have been committed in 1970, that is, after the repeal of the Arms Act, 1878, the said notification of 1923 issued under the repealed Act would, despite its repeal, continue to be in force and its provisions would be deemed to have been enacted under the new Act by virtue of section 24 of the General Clauses Act. 679 This was the construction placed upon these two sections by this Court in the Chief Inspector of Mines vs Lala Karam Chand Thapar,(1) where the question as to the meaning of section 24 of the General Clauses Act arose. In that case, the directors of a colliery company and its managing agents were prosecuted under the for violation of Coal Mines Regulations of_ 1926 made under Mines Act, 1923, which was repealed by 1952 Act. Repelling the contention that the prosecution in respect of the violation of those Regulations made under the repealed Act was unauthorised and invalid, the Court construed section 24 of the General ' Clauses Act to mean that when an earlier Act is repealed by a later Act, which re enacted the provisions of the earlier Act, Regulations framed under the repealed Act continue in force and are deemed to have been made under the provisions so re enacted, and must be so construed as to have continuity of force, and are to be regarded as laws in force at the date of the offence within the meaning of article 20(3) of the Constitution. In that case, the breach of those Regulations took place before the commencement of the new Act. Even then the prosecution under the new Act was held to be valid on the ground that the Regulations were deemed to have, been made under the new Act. In the present case, the offence of being in possession of and carrying a sword without licence took place after the commencement of the new Act of 1959. The said notification, by virtue of section 24 of the General Clauses Act having to be deemed to have been made under section 4 of the , the notification was in force on the date of the alleged offence. The offence thus fell under the , and that be ing so, acts set out in ground No. (2) were covered by cl. (d) of section 3(2) of the Act. Consequently, that ground cannot be said to be extraneous to the Act. This being the only contention arising for our consideration and it having failed, the petition fails and is dismissed. K.B.N. Petition dismissed.

The combined effect of section 6 and 24 of the General Clauses Act is that a notification of 1923 issued under section 15 of the Arms Act, 1878 prohibiting the acquisition, possession or carrying of arms other than fire arms without a licence, not only continued to operate but has to be deemed to have been enacted under the , which repealed and re enacted the provisions of the earlier Act. The 1959 Act nowhere contains an intention to the contrary signifying that the operation of the repealed Act or of a notification issued thereunder was not to continue. [678C F] A sword is arms within the meaning of the definition of arms ' in section 2(1)(c) of the . In the present case though the offence of being in possession and carrying a sword without licence took place after the commencement of the new Act of 1959, the notification issued under the Act of 1878 was in. force, by virtue of section 24 of the General Clauses Act, on the date of the alleged offence. The offence thus fell under the arms Act, 1959, and that being so, the acts set out in the grounds of detention served on the petitioner were covered by clause (d) of section 3(2) of the West Bengal (Prevention of Violent Activities) Act, 1970. [677D H; 678G H; 679F]

No. 95 of 1965. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. R. K. Garg, M. K. Ramamurthi, section C. Agarwal and D. P. Singh, for the petitioner. G. section Kasliwal, Advocate General, Rajasthan and R. N. Sachthey, for respondent No. 2. 574 The Judgment of the Court was delivered by Ramaswami, J. In this case the petitioner Durgadas Shirali has obtained a rule calling upon the respondents to show cause why a writ of habeas corpus should not be issued under article 32 of the Constitution directing his release from detention under an order passed by the District Magistrate of Bhilwara, Rajasthan under Rule 30(1) (b) of the Defence of India Rules. Cause has be= shown by the Advocate General of Rajasthan on behalf of the respondents to whom notice of the rule was ordered to be given. The petitioner was arrested on January 2, 1965 at Jaipur in Pursuance of an order dated December 29, 1964 made by res Pondent No. 3, Shri Narayan Das Mehta, District Magistrate of Bhilwara which states as follows : "It is reliably brought to my notice that the Leftist wing of the Communist Party has been carrying on antinational and pro Chinese propaganda and are preparing to act as Pekings member. The party having been formed at Peking 's behest are preparing for widespread agitation with the object of establishing communist regime by subversion and violence. 1, therefore, come to the irresistible conclusion that the Leftist Communist Party constitutes a real danger to external and internal security of the country and that it has become necessary to take immediate action. I am also satisfied from the report that Shri Durgadas Shirali of Bhilwara is the Secretary of the Leftist Wing of the Communist Party and he is likely to act in manner which is prejudicial to the Defence of India and Civil Defence, India 's relations with Foreign powers, public safety and the maintenance of the public order. I, Narayan Das Mehta, District Magistrate, Bhilwara in exercise of the powers delegated to me under rule 30(1) clause (b) of the Defence of India Rules 1962 vide Government of Rajasthan Notification No.1 F. 7/1(16)Home(A.Cr. 1)63 dated the 4th November, 1963 and all other powers enabling in that behalf direct the Superintendent of Police, Bhilwara that Shri Durga Das Shirali be arrested and detained in the Bhilwara Jail until further orders. " On January 13, 1965 the orders of the District Magistrate was reviewed by the Reviewing Authority who recommended that 575 the detention order dated December 29, 1964 should be confirmed. The State Government confirmed the detention order by its order No. F7/1(19)Home(A Cr. (I)/65 dated January 22, 1965. On behalf of the petitioner it was contended by Mr. Garg that the District Magistrate had not applied his mind to the specific activities of the petitioner and there was complete absence of material before the District Magistrate to suggest that the conduct of the petitioner would be "prejudicial to the Defence of India and Civil Defence, India 's relations with foreign powers, public safety and the maintenance of the public order". It was, therefore, submitted on behalf of the appellant that the order of detention made by the District Magistrate was mala fide and illegal. Mr. Garg submitted, in the second place, that one of the grounds mentioned in the order of detention was that the petitioner was a member of the Leftist Wing of the Communist Party of India and Secretary of the local branch of that party at Bhilwara. The Leftist Communist Party has been carrying on antinational and pro Chinese propaganda and the District Magistrate was of the opinion that the Leftist Communist Party, therefore, constituted a real danger to external and internal security of the country. It was submitted by Mr. Garg that the Leftist wing of the Communist Party had not been declared illegal or banned by the Government of India and the membership of the petitioner of the Leftist Communist Party of India was, therefore, not a relevant ground for the order of detention. Before proceeding to deal with these points raised on behalf of the petitioner it is necessary to state that in Makhan Singh Tarsikka vs The State of Punjab(1) this Court had occasion to consider the legal effect of the proclamation of Emergency issued by the President on October 26, 1962 and two orders of the President one dated November 3, 1962 and the other dated November 11, 1962 issued in exercise of the powers conferred by cl. (1) of article 359 of the Constitution. It was held by this Court that the sweep of article 359(1) and the Presidential Order issued under it is wide enough to include all claims made by citizens in any Court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce fundamental rights under articles 14, 19, 21 and 22. It was pointed out that during the pendency of the Presiden tial Order the validity of the Ordinance or any rule or order made thereunder cannot be questioned on the ground that it contravenes (1)[1964] 4S.C.R. 797 576 articles 14, 21 and 22. But this limitation cannot preclude a citizen from challenging the validity of,the, Ordinance or any rule or order made thereunder on any other ground. If the petitioner seeks to challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of articles 14, 21 and 22, the Presidential Order cannot come into operation. It is not also open to challenge the Ordinance rule or order made thereunder on the ground of contravention of article 19, because as soon as a Proclamation of Emergency is issued by the President under article 358 the provisions of article 119 are automatically suspended. But a petitioner can challenge the validity of the Ordinance, rule or order made thereunder on a ground other than those covered by article 358, or the Presidential Order issued under article 359(1). Such a challenge is outside the purview of the Presidential Order. For instance, a citizen will not be deprived of his right to move an appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. Similarly, it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view. It is contended, in the first place, on behalf of the petitioner, that the order of detention is bad because the District Magistrate had not applied his mind to the specific activities of the petitioner. It was pointed out that in the order of detention the District Magistrate has mainly dealt with the activities of the Leftist Wing of the Communist Party of India which was carrying on antinational and pro Chinese propaganda. The District Magistrate proceeds to say that the party was formed at Peking 's behest and was preparing for widespread agitation with the object of establishing communist regime by subversion and violence. The District Magistrate, therefore, reached the conclusion that the Leftist Wing of the Communist Party constituted a real danger to external and internal security of the country. So far as the petitioner is concerned, the District Magistrate has described him as Secretary of the Leftist Wing of the Communist Party and has proceeded to state that he was satisfied that the petitioner was likely to act in a manner which was prejudicial to the Defence of India and Civil Defence, India 's relations with foreign powers, public safety and the maintenance of the public order. In reply to the petition of the detenu the District Magistrate`, Bhilwara has filed an affidavit in this Court. In paragraph 3 of the a davit the District Magistrate has stated that he was satisfied from the 577 reports that the petitioner was carrying on anti national and pro Chinese propaganda as a member of the Leftist Wing of the Communist Party. In paragraph 5 the District Magistrate has stated that he passed the order of detention after satisfying himself on the reports that the petitioner was the Secretary of the Leftist Wing of the Communist Party of India, Bhilwara branch and that he was likely to act in a manner prejudicial to Defence of India and Civil Defence, India 's relations with foreign powers, public safety and the maintenance of public order. In view of the affidavit of the District Magistrate it is not possible for us to accept the argument of Mr. Garg that the District Magistrate did not apply his mind to the specific activities of the petitioner and that he made the order of detention solely on the ground that the Leftist wing of the Communist Party of India was carrying on anti national and pro Chinese propaganda. It was next argued on behalf of the petitioner that the Leftist wing of the Communist Party of India has not been declared illegal by the Government of India and the party has not been banned. It was submitted, therefore, that membership of that party was not per se illegal and the order of detention of the petitioner cannot be legally based upon this ground. In other words, it was submitted by Mr. Garg that the ground. that the petitioner was the Secretary of the Leftist Wing of the Communist Party of India was irrelevant for the purpose of Rule 30 of the Defence of India Rules. The argument was put forward that if this ground was irrelevant for the purpose of the Rule or was wholly illusory, the order of detention as a whole was vitiated and must be quashed by grant of a writ of habeas corpus. In support of his argument Mr. Garg referred to the decision of this. Court in Shibban Lal Saksena vs The State of Uttar Pradesh(, ). We are unable to accept the argument of Mr. Garg as correct. It is not correct to state that the activities of the Leftist wing of the Communist Party cannot in any circumstances be illegal and would necessarily be irrelevant merely because the Government of India has not declared the party illegal or imposed a ban. In considering the question whether the petitioner was acting in a manner prejudicial to the defence of India within the meaning of Rule 30 of the Defence of India Rules it is open to the District Magistrate to take into account the reports which he had received as to the political association of the petitioner, his political friends and his political loyalties. In considering the circumstance that the petitioner was a member of the Leftist wing of the Communist (1) ; 578 Party of India which, according to the said reports, was preparing for a widespread agitation with the object of establishing communist regime by subversion and violence the District Magistrate was not applying his mind to any irrelevant circumstance with regard to the need for detention of the petitioner under the Defence, of India Rules. In our opinion, in the light of the reports received by the District Magistrate the political association of the petitioner and his membership of a particular political group is a relevant consideration in the matter of detention of the petitioner. This ground has close and proximate connection with the security of State and maintenance of public order as contemplated by Rule 30 of the Defence of India Rules. In our opinion,Mr. Garg is unable to make good his submission on this aspect of the case. For these reasons we hold that the petitioner has not made .out a case for the grant of a writ under article 32 of the Constitution. The Writ Petition fails and is accordingly dismissed. Petition dismissed.

The petitioner was detained under rule 30 of the Defence of India Rules 1962, by an order of the District Magistrate and the necessary formalities were gone through. He filed a petition under article 32 and contended : (1) The order of the District Magistrate was mala fide as he had not applied his mind to tile specific activities of the petitioner and there was complete absence of material before him to suggest that the conduct of the petitioner would be prejudicial to the defence of India etc. (2) One of the grounds of detention mentioned in the order was that the petitioner was a member of the Leftist Communist Party of India and Secretary of one of its branches. This consideration was not relevant as the said party had not been declared illegal or banned by the Government. HELD : (i) It was open to the petitioner to challenge his detention on the ground of mala fide or on the ground that all or any of the grounds mentioned in the order of detention were irrelevant. Such pleas were not covered by article 358 and were outside the purview of the Presidential Orders under article 359(1). [576 D] Makhan Singh Tarsikka vs State of Punjab, referred to. (ii) Taking into account the affidavit filed by the District Magistrate it could not be said that he did not apply his mind to the specific activities of the petitioner or that there was no material before him to justify the order. [577 C] (iii) It was not correct to State that the activities of the Leftist wing of the Communist Party cannot in any circumstances be illegal and would necessarily be irrelevant merely because the Government of India has not declared the Party illegal or imposed a ban. In the light of the reports received by the District Magistrate the political association of the petitioner and his membership of a particular political group was a relevant consideration in the matter of detention of the petitioner. This ground had close and proximate connection with the security of State and maintenance of public order as contemplated by rule 30 of the Defence of India Rules. [578 A C]

tition Nos. 1041 1044 of 1980. (Under Article 32 of the Constitution) Shanti Bhushan, K. K. Venugopal, A. T. M. Sampath, P. N Ramalingam and R. Satish for the Petitioner. Lal Narain Sinha, Att. General of India, M. K. Banerjee, Addl. and Miss A. Subhashini for Respondents Nos. P. R. Mridul, P. H. Parekh, C. B. Singh, B. L. Verma, Rajan Karanjawal and Miss Vineeta Caprihan for the Intervener. K. B. Rohtagi and Praveen Jain for the Intervener. R. K. Garg and P. K. Jain for the Intervener. section K. Bagga for the Intervener. Altaf Ahmed for the Intervener. section Balakrishnan for the Intervener. P. H. Parekh for Respondent No. 6 in W.P. No. 1042/79. The following judgments were delivered: KRISHNA IYER. The Root Thought The abolition of slavery has gone on for a long time. Rome abolished slavery, America abolished it, and we did, but only the words were abolished not the thing. This agonising gap between hortative hopes and human dupes vis a vis that serf like sector of Indian society, strangely described as Scheduled Castes and Scheduled Tribes (SCs and STs, for short), and the administrative exercises to bridge this big hiatus by processes like reservations and other concessions in the field of public employment is the broad issue that demands constitutional examination in the Indian setting of competitive equality before the law and tearful inequality in life. A fasciculus of directions of the Railway Board has been attacked as ultra vires and the court has to pronounce on it, not philosophically but pragmatically. "The philosophers have only interpreted the world in various ways; the point is to change it" this was the founding fathers ' fighting faith and serves as perspective setter for the judicial censor. 193 The Backdrop The social backdrop to the forensic problem raised in this litigation is best projected by lines of poetry quoted in Nehru 's Autobiography: Bowed by the weight of centuries he leans Upon his hoe and gazes on the ground, The emptiness of ages on his face, And on his back the burden of the world. The Problem The dynamics and dialectics of social justice vis a vis the special provisions of the Constitution calculated to accelerate the prospects of employment of the harijans and the girijans in the civil services with particular emphasis on promotions of these categories in the Indian Railways that, in all these cases, is the cynosure of judicial scrutiny, from the angle of constitutionality in the context of the guarantee of caste free equality to every person. Petitioners ' Challenge The gravamen of the constitutional accusation levelled in this bunch of quasi class actions under article 32 of the Constitution and argued by a battery of counsel led by Shri Shanti Bhushan, with heat and light, passion and reason, is the heartless discrimination shown against vast numbers of members employed by the Railway Administration through its policy directives, by bestowal of unconscionably 'pampering ' concessions, at promotion levels, on these social brackets belonging to the historically suppressed SCs & STs, heedless of over all administrative efficiency in the Indian Railways and frustrating the promotional hopes of the larger human segments of economically downtrodden senior members. The fall out of this 'benign discrimination ' of helping out the weakest sections has been to blow up, out of all proportion to the social realities, the 'backwardness ' syndrome so as embrace many politically powerful castes disguised as Backward Classes. This constitutional amulet, rooted largely in caste, the petitioners lament, has been misused and applied in educational and employment fields on an escalating scale. The perverted result is that a caste riven nation is a spectre that haunts the land, pushing back the patriotic prospect of a homogenised Indian Society of casteless equality and projecting instead the divisive alternative of a heterogeneous caste map of Bharat. The fundamental failure of this sterile scheme of reservation wise circumvention of the fundamental right to equality, ideologically and pragmatically speaking, has deepened the pathological condition of communalism besetting the Indian polity 194 and split the have nots into snarling camps a consummation disastrously contrary to the constitutional design of abolition of socioeconomic inequality through activist stratagem of equalisation geared to actual attainment of integrated equality. Logically, the argument leads to the formulation that each caste and community is bargaining politically for bigger bites of the educational and employment cake so much so merit becomes irrelevant or takes a back seat and 'backward ' birth brings a boon. The constitutional stultification of an integrated India through misuse of 'reservation ' power provided for in articles 15 and 16 meant for the direct 'dalits ' the pollution, by the political Executive, of our founding creed of an egalitarian order by playing casteification politics and the morbid dilution of 'backwardness ' marring the dream of a secular republic by the nightmare of a feudal vivisection of the people if this picture drawn by some counsel be true, even in part, the basic task of transforming the economic order through social justice will be baulked through destructive communal disputes among the masses. Maybe, this may weaken the social revolution, leave an indelible stain and incurable wound on the body politic and justify the censure by history of the engineers of our political power and electoral processes. Hearing the arguments of the petitioners one wonders, "Is caste the largest political party ?" Has protective discrimination, so necessary in an insufferably unequal society, created a Frankenstein 's monster ? Have we no dynamic measures to drown social, economic and educational backwardness of whole masses except the traditional self perpetuating quasi apartheidisation called 'reservation ' ? Surely, our democratic, secular socialist republic is no wane moon but a creative power rooted in equal manhood, an egalitarian reservoir of vast human potential, a demographic distribution of talent benumbed by brahman centuries of social injustice but now seeking human expression under a new dispensation where 'chill penury ' shall no longer 'repress their noble rage '. Caste, undoubtedly, in a deep seated pathology to eradicate which the Constitution took care to forbid discrimination based on caste, especially in the field of education and services under the State. The rulings of this court, interpreting the relevant Articles, have hammered home the point that it is not constitutional to base identification of backward classes on caste alone qua caste. If a large number of castes masquerade as backward classes and perpetuate that division in educational campuses and public offices, the whole process of a caste free society will be reversed. We are not directly concerned with backward classes as such, but with the provisions ameliorative of the 195 Scheduled Castes and the Scheduled Tribes. Nevertheless, we have to consider seriously the social consequences of our interpretation of article 16 in the light of the submission of counsel that a vested interest in the caste system is being created and perpetuated by over indulgent concessions, even at promotional levels, to the Scheduled Castes and the Scheduled Tribes, which are only a species of castes. "Each according to his ability" is being substituted by "each according to his caste", argue the writ petitioners and underscore the unrighteous march of the officials belonging to the SCs & STs over the humiliated heads of their senior and more meritorious brothers in service. The after math of the caste based operation of promotional preferences is stated to be deterioration in the over all efficiency and frustration in the ranks of members not fortunate enough to be born SCs & STs. Indeed, the 'inefficiency ' bogie was so luridly presented that even the railway accidents and other operational calamities and managerial failures were attributed to the only villain of the piece viz., the policy of reservation in promotions. A constitutionally progressive policy of advantage in educational and official career based upon economic rather than social backwardness was commended before us by counsel as more in keeping with the anti caste, pro egalitarian tryst with our constitutional destiny. And, Shri Shanti Bhushan, at one stage, helped the court realise the consequences of its verdict if it upheld the pampering package of promotional preferences by warning us of running battles in the streets, a sort of caste war, against birth based 'privileges ' for the harijan girijan millions. Our Approach Of course, judicial independence has one dimension, not fully realised by some friends of freedom. Threats of mob hysteria shall not deflect the court from its true accountability to the Constitution, its spirit and text belighted by all the sanctioned materials The other invisible sacrifice of judicial independence relevant to this case is the unwitting surrender to "the spirit of the group in which the accidents of birth or education or occupation or fellowship have given us (judges) a place. No effort or revolution of the mind will overthrow utterly and at all times the empire of these subconscious loyalties. " We quote what the great Justice Cardozo has courageously confessed : I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and 196 influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man whether he be litigant or judge. The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by. . . We shall never be able to flatter ourselves, in any system of judicial interpretation, that we have eliminated altogether the personal measures of the interpreter. In the moral sciences, there is no method or procedure which entirely supplants that subjective reason. We may figure the task of the judge, if we please, as the task of a translator, the reading of signs and symbols given from without. None the less, we will not set men to such a task, unless they have absorbed the spirit, and have filled themselves with a love, of the language they must read. The British echo of this judicial weakness is heard in Prof. Griffith 's words: These judges have by their education and training and the pursuit of their profession as barristers, acquired a strikingly homogeneous collection of attitudes, beliefs and principles, which to them represents the public interest. The emphasis on the subtle invasions from within upon functional autonomy and forensic objectivity mentioned by Cardozo will be evident when we turn to the pathetic saga of the depressed classes, even today, painted by the other side. The learned Attorney General, less militant but not less firm in his submissions, called all this a caricature of the poignant facts of life and called upon us to assess the facts with cold objectivity and warm humanity casting aside possible sympathies suggested by Justice Cardozo and Prof. Griffith. We, as judges dealing with a socially charged issue of constitutional law, must never forget that the Indian Constitution is a National Charter pregnant with social revolution, not a Legal Parchment barren of militant values to usher in a democratic, secular, socialist society which belongs equally to the masses including the harijan girijan millions hungering for a humane deal after feudal colonial history 's long night. Granville Austin quotes profusely from the Constituent Assembly proceedings to prove the goal of the Indian Constitution to be 197 social revolution. Radhakrishnan, representing the broad consensus, said that India must have a 'socioeconomic revolution ' designed not only to bring about the real satisfaction of the fundamental needs of the common man, but to go much deeper and bring about 'a fundamental change in the structure of Indian society '. The Cultural Core of the Constitutional Protection: Let us get some glimpses of history to get a hang of the problem. 'In thy book record their groans ' may be the right quote to begin with. We cannot blink at the agony of the depressed classes over the centuries condemned by all social reformers as rank irreligion and social injustice. Swami Vivekananda, for instance, stung by glaring social injustice, argued(2): The same power is in every man, to the one manifesting more, the other less. Where is the claim to privilege. All knowledge is in every soul, even in the most ignorant, he has not manifested it, but, perhaps he has not had the opportunity the environments were not, perhaps, suitable to him. When he gets the opportunity he will manifest it. The idea that one man is born superior to another has no meaning in Vedanta; that between two nations one is superior and the other inferior has no meaning whatsoever. . Men will be born differentiated; some will have more power than others. We cannot stop that. but that on account of this power to acquire wealth they should tyrannies and ride roughshod over those, who cannot acquire so much wealth, is not a part of the law, and the fight has been against that. The enjoyment of advantage over another is privilege, and throughout ages the aim of morality has been its destruction. . . Our aristocratic ancestors went on treading the common masses of our country under foot till they became helpless, till under this torment the poor, poor, people nearly forgot that they were human beings. They have been compelled to be merely hewers of wood and drawers of water for centuries, so much so, that they are made to believe that they are born 198 as slaves, born as hewers of wood and drawers of water. With all our boasted education of modern times, if anybody says a kind word for them, I often find our men shrink at once from the duty of lifting them up, these poor downtrodden people. Not only so, but I also find that all sorts of most demoniacal and brutal arguments, culled from the crude ideas of hereditary transmission, and other such gibberish from the western world are brought forward in order to brutalise and tyrannies over the poor, all the more. Aye, Brahmins, if the Brahmin has more aptitude for learning on the ground of heredity than the Pariah, spend no more money on the Brahmin 's education, but spend all on the Pariah. Give to the weak, for there all the gift is needed. Our poor people, these down trodden masses of India, therefore, require to hear and to know what they really are. Aye, let every man and woman and child, without respect of caste or birth, weakness and strength, hear and learn that behind the strong and the weak, behind the high and the low, behind everyone, there is that Infinite Soul, assuring that infinite possibility and the infinite capacity of all to become great and good. Let us proclaim to every soul 'Arise, awake and stop not till the goal is reached. Arise, awake ! Awake from the hyprotism of weakness. None is really weak; the soul is infinite, omnipotent and omniscient. Stand up, assert yourself, proclaim the God within you, do not deny Him ! Too much of inactivity, too much of weakness, too much of hypnotism has been and is upon our race. . Power will come, glory will come, goodness will come, purity will come, and everything that is excellent will come, when this sleeping soul is roused to self conscious activity. . Our proletariat are doing their duty. . is there no heroism in it ? Many turn out to be heroes, when they have some great task to perform. Even a coward easily gives up his life, and the most selfish man behaves disinterestedly when there is a multitude, to cheer them on but blessed indeed is he who manifests the same unselfishness and devotion to duty in the smallest of acts. unnoticed by all and it is you who are actually doing this, ye ever trampled labouring classes of India ! I bow to you. There was the Everest presence of Mahatma Gandhi, the Father of the Nation, who staked his life for the harijan cause. There was Baba 199 Saheb Ambedkar a mahar by birth and fighter to his last breath against the himalayan injustice to the harijan fellow millions stigmatised by their genetic handicap who was the Chairman of the drafting committee of the Constituent Assembly. There was Nehru, one of the foremost architects of Free India, who stood four square between caste suppression by the upper castes and the socialist egalitarianism implicit in secular democracy. These forces nurtured the roots of our constitutional values among which must be found the fighting faith in a casteless society, not by obliterating the label but by advancement of the backward, particularly that pathetic segment described colourlessly as Scheduled Castes and Scheduled Tribes. To recognise these poignant realities of social history and so to interpret the Constitution as to fulfil itself, not eruditely to undermine its substance through the tyranny of literality, is the task of judicial patriotism so relevant in Third World conditions to make liberation a living fact. The learned Attorney General drew our attention to the yawning gap between the legitimate expectations of the socially depressed SC & ST and their utter under representation in the Public Services except in such mean jobs as of scavengers and sweepers where no other caste was forthcoming. Equality of opportunity would be absent so long as equalisation strategy was not put into action, and the State, stage by stage and with great care and experimental eye, took steps to secure the ends of articles 16(1) and 16(4), read in the light of the Preambular promise of equality, fraternity and dignity, the Part IV directive of promotion of educational and economic interests of the SC & ST and the Special Chapter, especially article 336, devoted to better representation of the SC & ST in the services and posts in connection with the affairs of the Union and States. We could not apprehend the social dimension of the stark squalour of SC&ST by viewing article 16 (4) through a narrow legal aperture but only by an apercu of the broader demands of social democracy, without which the Republic would cease to be a reality to one fifth of Indian humanity. The final address to the Constituent Assembly by Dr. Ambedkar drives home this point, not to interpret but to illumine the scheme of the equality code and the casteless society plea : The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy can 200 not last unless there lies at the base of it social democracy. What does social democracy mean ? It means a way of life which recognises liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian society. One of these is equality. On the social plane, we have in India a society based on the principles of graded inequality which means elevation of some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions ? How long shall be continue to deny equality in our social and economic life ? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure or political democracy which this Assembly has so laboriously built up (emphasis added). Indeed from another angle of vision, article 16(4) serves to correct a gross social distortion and denial of human rights to whole groups ostracised by feudal history. A holistic concept of human rights includes among its components socioeconomic rights for, without basic conditions of social justice, survival with human dignity is an impossibility. Thus, a great socioeconomic plan to uplift the harijan girijan groups is a must for living equality, proclaimed by articles 14 to 16, to become an active reality. It must be stated that the petitioners did not contest the need for State action to raise the lot of these backward most social sectors but objected, its widespread 201 erosion of the right to basic equality which belongs to the have nots in the country. Where do we draw the line ? These are the disturbing issues going to the root of progressive nationalism raised by the writ petitioners and turned against them by the State, but we are not inclined or entitled to venture into the political wisdom of governmental policies vis a vis 'backward ' community, calculus save where constitutionality, falling within the judicial jurisdiction, confronts us. We must therefore confine the forensic focus to the specific issue of profound import projected by the aggrieved petitioners whose chief attack is against being passed over, seniority and superior merit notwithstanding, in favour of alleged neophytes or nitwits merely because, by birth, the latter belong to the SC&ST species, trampling underfoot, in the process, the fundamental rights of equal opportunity entrenched in articles 14 and 16(1) of the Constitution. The dimensions of the problem, the human numbers involved and the agitational potential said to be simmering in the civil services were vividly drawn at the bar by one side. The tragic tale of die hard decades of inequality even after Freedom, the socioeconomic miles to go ' and the constitutional 'promises to keep ' (over which judges will not legally sleep) before the dalit brethren may break their chains and become at least distant neighbours to the less socially handicapped sector, were highlighted pragmatically, statistically, hierarchically, even desperately, by the proponents of the impugned circulars (Annexures F to O covered by Prayers I to X). These submissions serve as poignant background but the decision on the vires of the Railway Board 's directives will depend on constitutional interpretation applied to Indian actualities, not to idealised abstractions or theoretical possibilities. True, the politicisation of casteism its infiltration into unsuspected human territories and the injection of caste consciousness in schools and colleges via backward class reservation are a canker in the rose of secularism. More positive measures of levelling up by constructive strategies may be the developmental needs. But the judicial process while considering constitutional questions, must keep politics and administrative alternatives as out of bounds except to the extent economics, sociology and other disciplines bear scientifically upon the proposition demanding court pronouncement. Here the sole issue, spread out into the validity of the supposed sinful circulars (Annexures F to O covered by Prayers I to X) is whether article 16, in its sweep and savings, does permit State action in favour of socially and economically backward classes, especially the constitutionally favoured category called the SC & ST, to the point of liberal concessions slurring over 202 'age ', 'merit ' and the like, not merely at the initial entrance gate but even at the higher promotional docks. Whether alternative policies should have been chosen by Government or would have served better to remove the handicaps of the SC & STs, whether the advantages conferred on these classes are too generous and overly compassionate and whether the considerable numbers of the economically destitute receive the same sympathy as social have nots categorised as SC & ST these and other speculative maybes, are beyond the courts orbit save where article 16 is hit by these omissions and commissions. Nor is it the court 's province to question the conscionableness or propriety of constitutional provisions which display ultra concern for members of the SC & ST. The court functions under the Constitution, not over it, interprets the Constitution, not amends it, implements its provisions, not dilutes it through personal philosophy projected as constitutional construction. Objective tuned to constitutional wavelengths is our function and if only if constitutional guarantees have clearly been violated will the court declare as non est such governmental projects as go beyond the mandates of Part III read in harmony with Part IV. If, on a reasonable construction, the Administration 's special provisions under article 16(4) exceed constitutional limits, it is the duty of the court to strike dead such project. Even so, while viewing the legal issues we must not forget what is elementary that law cannot go it alone but must function as a member of the sociological ensemble of disciplines. If one out of a few reasonably tenable constructions of the constitutional provisions vis a vis the impugned executive directives may sustain the latter, the court should and would refrain from using the judicial guillotine. There is a comity of coordinate constitutional instrumentalities geared to shared constitutional goals which persuades the judicature to sustain rather than slay, save where the breach is brazen, the transgression is plain or the effective co existence of the fundamental right and the administrative scheme is illusory. This Court has, on former occasions, upheld executive and legislative action hovering "perilously near" but not plunging into unconstitutionality (see In re: Kerala Education Bill (1959 SCR 995 at 1064). It is a constant guideline which we must vigilantly remember, as we have stated earlier, that our Constitution is a dynamic document with destination social revolution. It is not anaemic nor neutral but vigorously purposeful and value laden as they very descriptive adjectives of our Republic proclaim. Where ancient social injustice freezes the 'genial current of the soul ' for whole human segments our Constitution is not non aligned. Activist equalisation, as a realistic strategy of 203 producing human equality, is not legal anathema for articles 14 and 16. To hold otherwise is constitutional obscurantism and legal literalism, allergic to sociologically intelligent interpretation. The Preamble which promises justice, liberty and equality of status and opportunity within the framework of Secular, Socialist Republic projects a holistic perspective. article 16 which guarantees equal opportunity for all citizens in matters of State Service inherently implies equalisation as a process towards equality but also hastens to harmonize the realistic need to jack up 'depressed ' classes to overcome initial handicaps and join the national race towards progress on an equal footing and devotes article 16(4) for this specific purpose. In a given situation of large social categories being submerged for long, the guarantee of equality with the rest is myth, not reality, unless it is combined with affirmative State action for equalisation geared to promotion of eventual equality. Article 16(4) is not a jarring note but auxiliary to fair fulfillment of article 16(1). The prescription of article 16(1) needs, in the living conditions of India, the concrete sanction of article 16(4) so that those wallowing in the social quagmire are enabled to rise to levels of equality with the rest and march together with their brethren whom history had not so harshly hamstrung. To bury this truth is to sloganise article 16(1) and sacrifice the facts of life. This is not mere harmonious statutory construction of article 16(1) and (4) but insightful perception of our constitutional culture, reflecting the current of resurgent India bent on making, out of a sick and stratified society of inequality and poverty, a brave new Bharat. If freedom, justice and equal opportunity to unfold one 's own personality, belong alike to bhangi and brahmin, prince and pauper, if the panchama proletariat is to feel the social transformation article 16(4) promises, the State must apply equalising techniques which will enlarge their opportunities and thereby progressively diminish the need for props. The success of State action under article 16(4) consists in the speed with which result oriented reservation withers away as, no longer a need, not in the everwidening and everlasting operation of an exception [article 16(4)] as if it were a super fundamental right to continue backward all the time. To lend immortality to the reservation policy is to defeat its raison de 'etre; to politicise this provision for communal support and Party ends is to subvert the solemn undertaking of article 16(1), to costeify 'reservation ' even beyond the dismal groups of backward most people, euphemistically described as SC & ST, is to run a grave constitutional risk. Caste, ipso facto, is not class in a secular State. 204 The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the mlecha, the bonded labour, the hungry, hard working half slave, whose liberation was integral to our Independence. To interpret the Constitution rightly we must understand the people for whom it is made the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities. This synthesis of ends and means, of life 's maladies and law 's remedies is a part of the know how of constitutional interpretation if alienation from the people were not to afflict the justicing process. A statute rarely stands alone. Back of Minerva was the brain of Jove, and behind Venus was the spume of the ocean. These broader observations are necessary to set our sights right, to appreciate that our Constitution lays the gravestone on the old unjust order and the cornerstone of the new humane order. This constitutional consciousness is basic to interpretative wisdom. We may now start with the facts of the case and spell out the particular problems demanding our consideration. Constitutional questions cannot be viewed in vacuo but must be answered in the social milieu which gives it living meaning. After all, the world of facts enlivens the world of words. And logomachy is not law but a fatal, though fascinating, futility if alienated from the facts of life. So, before pronouncing on the legality of the impugned ten orders we must sketch the social setting in which they were issued and the socioeconomic facts which clothe article 16(4) with flesh and blood. 'The wisest in council, the ablest in debate and the most agreeable companion in the commerce of human life, is that man who has assimilated to his understanding the greatest number of facts. ' The facts The Indian Railways, with an impressive record of expansion, employs colossal numbers of servants in various typically hierarchical classes and grades. While the Indian Railways Act, 1890, substantially regulates many of the functions of the railway administration in India, the Railway Board is constituted under the , with a view more effectively to control the administration of railways. The Central Government is statutorily empowered 205 to invest the Railway Board with all or any of the powers and functions of the Central Government under the Indian Railways Act, 1890. Power is also given by section 2 to vest in the Railway Board the capacity to make general rules for railways administered by the Government. Of course, the investment of powers upon the Railway Board is, broadly speaking, subject to the condition that the Central Government retains the ultimate authority in all matters connected with the Railway Administration. The Ministry of Home Affairs, in the Government of India, deals usually with all matters of personnel, conditions of service of the Central Government staff and the like. Policy decisions regarding matters covered by article 16(4) apparently originate from the Ministry of Home Affairs and emanate to the various institutions like the Railway Board which responsively implement them. In the present case, ten directives were issued by the Railway Board on different occasions, which disclosed 'benign discrimination ' in favour of Scheduled Castes and Scheduled Tribes and are challenged by the petitioners as 'reverse discrimination ', if we may use that expression popularised in American legalese. These directives were designed to protect and promote the interests of members of the SC & ST in the matter of their employment under the Indian Railway Administration and they specially related to the softer criteria for promotion. The Railway Board acted, as is discernible from the relevant orders, in obedience to the policy decisions of the Ministry of Home Affairs. Some argument was addressed on the validity of the Railway Board 's orders on procedural and other technical grounds. We see no substance in them. The Board was bound to carry out the Central Government 's directives under article 16(4) and did it. The broader issue of 'benign discrimination ' deserves close study. The meat of the matter, to put it that way, is the gross discrimination alleged to be implicit in the several Circulars of the Railway Board and the non applicability of article 16(4) to save these circulars. The focus of this litigation must primarily turn on that issue and the court must navigate towards egalitarian justice at the level of promotion posts in the public services, keeping the land mark rulings of this Court as mariner 's compass. The disturbing perpetuation of socioeconomic suppression of a whole fifth of Indian manhood the dalits and the righteous resistance to prolonged 'reverse casteism ' resulting in deepening demoralization of the economically oppressed the soshits have been projected by counsel on the forensic screen as a conflict between equalisation and equality. Our founding fathers, familiar with social dialectics and socialist enlightenment, surely would have intended to bring both these have not categories together as a 206 broad brotherhood against the die hard Establishment and would never have contemplated a fratricidal strategy which would blind and divide brothers in distress the dalits and the soshits and harm the integration of the nation and its developmental march. Unless by dialectical approach sociologists lay bare this false dilema of dalits versus soshits, the growing distrust in democracy will deepen, the jurisprudence of constitutional revolution and egalitarian justice will fade in the books and the founding hopes of January 26, 1950, will sour into cynical dupes of the masses, decades after! Wider perspectives must, therefore, inform our study of the equality code (articles 14 to 16) to rid it of social contradictions and read into it the need for a dalit soshit partnership in demanding social justice. Felix Frankfurter set the judicial function when he said :(1) A Judge should be compounded of the faculties that are demanded of the historian and the philosopher and the prophet. The last demand upon him to make some forecast of the consequences of his action is perhaps the heaviest. To pierce the curtain of the future, to give shape and visage to mysteries still in the womb of time, is the gift of the imagination. It requires poetic sensibilities with which judges are rarely endowed and which their education does not normally develop. These judges must have something of the creative artist in them; they must have antennae registering feeling and judgment beyond logical, let alone quantitative, proof. Be that as it may, the court must go to the constitutional basics for guidance, decode the articles indifferent to agitational portents and ideological speculations, but responsive to the urgent implementation of article 38 into the reality of Indian life. Article 38 reads: 38(1). The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life. (2) The State shall in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. (emphasis added) 207 The learned Attorney General, while emphasising the egalitarian commitment of the Constitution over the whole range of public services throughout their career, defended the impugned orders by law and logic, pragmatics and statistics, and countered the hypotheticals of the petitioners by the actual furnished by official facts and figures. He also relied on a few precedents, in particular, Rangachari 's case(1) and Thomas 's case(2) both of which bind this Bench. He also sought to explain away the effect of Balaji 's case(3) and Devadason 's case(4) on which the other side had heavily relied to nullify some of the circulars. The Union of India placed before us its case that notwithstanding measures for bringing the gap in the matter of gross under representation in the Administration, no adequate improvement had been registered and, and so, more dynamic State action, to fulfil its constitutional tryst with the frustrated fifth of the people described as SC & ST, became necessitous. The raw reality of meagre harijan and girijan presence in the public services conscientised the Administration into taking a series of cautions steps to catalyse the prospects of these categories entering the many Departments of Government not merely at the initial stage but also at promotional points and in appointments to supervisory posts so as to become members of the higher echelons. The learned Attorney General contended that such affirmative actions, slurring over fanatical and financial insistence on so called merit and seniority, was in conformity with article 16(1) itself and, in any case, was protected by Art.16(4). Maybe, the human numbers outside the SC & ST honestly suffer some meyhem in their career especially at the higher notches of promotion after long stagnation and are bitter that the shudra or panchama steals a march over him now, although the poignant pages of earlier history have been a negation of personhood then for millions of the dregs of society, desperately driving Dr. Ambedkar to vow "I shall not die a Hindu". But the synthesis of article 16, not the antithesis between article 16(1) and article 16(4), gives the clue to creative constitutional construction. The learned Attorney General 's plea was that in a society of chronic inequality and scarcity of employment, actual equality could never be midwifed without birth pangs, and discriminatory unconstitutionality could not vitiate programmes meant to achieve real life 208 equality, unless we took a pragmatic view. This approach is permissible if we follow Chief Justice Warren: Our judges are not monks or scientists, but participants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and of formlessness on the other. Our system faces no theoretical dilemma but a single continuous problem: how to apply to ever changing conditions the never changing principles of freedom. Let us draw the precise battle lines to contain the constitutional conflict within the actual limits. Equality of opportunity in matters of State employment is a constitutional guarantee and no citizen can be discriminated against on the score only of sex, caste, descent, place of birth or residence. So, one point pressed before us is that Scheduled Castes cannot be a favoured class in the public services because they are 'castes ' and cannot claim preference qua castes unless specially saved by article 16(4). And article 16(4) speaks of class, not caste and the two are different, however, politically convenient the confusion may be. Another vital contention put forward by counsel for the petitioners was that article 16(4) could not apply to promotional levels. A third basic plea was that efficiency of administration was a constitutional consideration under article 335 and could not be a sacrificial goat to propitiate the backward class Kali. The impugned circulars offended against efficiency, both by fomenting frustration among the Civil Services indirectly producing inefficiency and by manning higher posts which demand higher skills with men of lower competitive calibre and less experience in service thus posting 'efficiency risks ' in strategic positions violating article 335. The contentious issue is now clear. Are SC & ST mere castes within the sense of article 16(2) ? If so, can article 16(4) help these castes through rule of promotional partiality ? And, in any case, can article 16(4) rescue rules of benign discrimination if the impact thereof is generation of gross inefficiency in administration ? Is not economic 'have notism ' a better yardstick of backwardness in secular India? A brief resume of the structure of the Railway Services may help understand the rival arguments in their precise setting. The pyramid begins, at the base, with Class IV posts and rises to the apex, by stages, through Class III, Class II and Class I. True to our hierarchical culture, pervasive in Indian Services, there are further sub divisions, consisting of many categories in each class and many grades in each category. The agencies for recruitment are the Union Public Service 209 Commission, the Railway Service Commission and the top officers authorised by the Railway Board in this behalf. Ordinarily the first entry into each category is filled by direct recruitment, if we may use language loosely. Thereafter, appointments to higher grades/categories are usually by promotion. The promotional processes are traditionally two fold, viz., (a) by departmental selection based on merit cum seniority, and (b) by escalation, in the order of seniority, from the lower to the higher grade/category, subject, of course to being weeded out if found unfit. Candidates belonging to SC&ST receive certain pronounced advantages both at the stage of initial recruitment and later at the promotion stage. The Indian Railway Establishment Manual a compendious collection of rules and directions bearing on the conditions of employment of railway personnel, sets out all the information. Speaking population wise and in approximate terms, the Scheduled Castes constitute about 15% and the Scheduled Tribes 7 1/2%. Broadly based on the ratio of the strength of SC&ST to the whole population, the Railway Administration provided for reservation for candidates belonging to the SC&ST. This percentage of reservation applied to Class IV, Class III, Class II and, in a limited way, to Class I posts. The reservation is worked out by the method known as 40 point roster. These special provisions notwithstanding the intake of these communities, stagnating at the bottom of the Indian policy, continued to be chronically niggardly. To increase the rate of absorption of SC&ST into the services, further facilities, concessions and relaxations were offered from time to time. Despite these seemingly attractive employment opportunities the dismal backwardness in the matter of representation in administration from among the SC&ST was such that the vacancies reserved for them remained, in many cases, unfilled by SC & ST candidates. Lest the overall representation of the members of the SC&ST should continue deplorably negligible Government adopted a policy of "carry forward", for upto three recruitment years, of reserved vacancies if enough number of candidates from the said groups did not get selected. The "carry forward" rule was calculated to keep open reserved vacancies for at least three years so that the under representation could be made up at least in part. Homogenisation of the dalits into the national mainstream was regarded as vital to our democracy by the State and these positive strategies of special opportunities vis a vis SC&ST had, as its raison d 'etre, only the imperative need to exercise the haunting spectre of the socially and economically suppressed species and to abolish the utter squalour of SC&ST so that the community at large could march ahead without haggard groups dragging their feet. Social conscience considers balanced democratic development as the humane justification for selective discrimination. 210 With this backdrop, we may epitomise the ten 'tainted ' directives and scan them for their unconstitutionality. Special provisions for depressed classes and even other castes have a pre constitution history. After the Constitution was enacted the legality of old rules based on caste became moot and the Central Government revised its policy. The post Constitution re incarnation of the communal G.O. concentrated not on caste orientation but on elimination of socioeconomic suppression and the diverse ways to achieve this objective. We must remember, in this context, not merely the four classes of Service but also the broad division of the staff into selection and non selection posts. The first policy statement of the Union of India on the issue of better representation of SC&ST in Government Service begins with Resolution No. 42/21/49 NG 8 of September 13, 1950. To understand the functional compulsions, purpose, orientation and constitutional parameters relevant to such a policy formulation we have to refer to a few articles of the Constitution. Articles 14 to 16 form a code by themselves and embody the distilled essence of the Constitution 's casteless and classless egalitarianism. Nevertheless, our founding fathers were realists, and so did not declare the proposition of equality in its bald universality but subjected it to certain special provisions, not contradicting the soul of equality, but adapting that never changing principle to the ever changing social milieu. That is how articles 15(4) and 16(4) have to be read together with articles 15(1) and 16(1). The first sub article speaks of equality and the second sub article amplifies its content by expressly interdicting caste as a ground of discrimination. Article 16(4) imparts to the seemingly static equality embedded in article 16(1) a dynamic quality by importing equalisation strategies geared to the eventual achievement of equality as permissible State action, viewed as an amplification of article 16(1) or as an exception to it. The same observation will hold good for the sub articles of article 15. Thus we have a constitutional fundamental guarantee in articles 14 to 16; but it is a notorious fact of our cultural heritage that the Scheduled Castes and the Scheduled Tribes have been in unfree Indian nearly dehumanised, and a facet of the struggle for Freedom has been the restoration of full personhood to them together with the right to share in the social and economic development of the country. Article 46 is a Directive Principle contained in Part IV. Every Directive Principle is fundamental in the governance of the country and it shall be the duty of 211 the State to apply that principle in making law. Article 46, in emphatic terms, obligates the State. "to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Reading article 46 together with article 16(4) the luscent intent of the Constitution framers emerges that the exploited lot of the harijan girijan groups in the past shall be extirpated with special care by the State. The inference is obvious that administrative participation by SC&ST shall be promoted with special care by the State. Of course reservations under article 16(4) and promotional strategies envisaged by article 46 may be important but shall not run berserk and imperil administrative efficiency in the name of concessions to backward classes. Article 335 enters a caveat in this behalf: 335. The claims of the members of the scheduled Castes and the Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. The positive accent of this Article is that the claims of SC&ST to equalisation of representation in services under the State, having regard to their sunken social status and impotence in the power system, shall be taken into consideration. The negative element, which is part of the Article, is that measures taken by the State, pursuant to the mandate of articles 16(4), 46 and 335, shall be consistent with and not subversive of "the maintenance of efficiency of administration". Within this broad constitutional framework the Central Government worked out its policy, way back in 1950, and made subsequent alterations in keeping with the needs of the situation, the poor progress registered, the militant impatience of the affected SC&ST and the improved tactics to hasten abolition of the depressed status of these groups by effective equalisation with the rest. Even here, it may be noticed that the Constitution has given a special position for the Scheduled Castes and the Scheduled Tribes. Article 341 makes it clear that a 'Scheduled Caste ' need not be a 'caste ' in the conventional sense and, therefore, may not be a caste within the meaning of articles 15(2) or 16(2). Scheduled Castes become such only if the President specifies any castes, races or tribes or 212 parts or groups within castes, races or tribes for the purpose of the Constitution. So, a group or a section of a group, which need not be a caste and may even be a hotchpotch of many castes or tribes or even races, may still be a Scheduled Caste under article 341. Likewise, races or tribal communities or parts thereof or part or parts of groups within them may still be Scheduled Tribes (article 342) for the purpose of the Constitution. Under this definition, one group in a caste may be a Scheduled Caste and another from the same caste may not be. It is the socioeconomic backwardness of a social bracket, not mere birth in a caste, that is decisive. Conceptual errors creep in when traditional obsessions obfuscate the vision. This aspect has been referred to in the State of Kerala vs N. M. Thomas by me, and dealt with at more length by Ray, C.J.: Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste. In Bhaiyalal vs Hari kishan Singh and Ors.(2) this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a Scheduled Caste and his declaration that he belonged to the Chamar caste which was a Scheduled Caste could not be permitted because of the provisions contained in Article 341. No Court can come to a finding that any Caste or any tribe is a Scheduled Caste or Scheduled Tribe. Scheduled Caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 361 as a result of an elaborate enquiry. The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer. The President notifies Scheduled Castes not with reference to any caste characteristics but their abysmal backwardness, as is evident from the scheme of Part XVI. He appoints, under article 338, a Special Officer whose duty is to investigate into all matters relating to safeguards for the SC&ST. The Constitution provides not merely for adequate representation of SC&ST to services and posts under the Union and States, but also provides for reservation of seats for SC&ST in the Legislatures. The cursory study of the Articles relating to the status and safeguards of SC&ST puts it beyond doubt that the founding fathers have assigned to them a special place and shown towards them special concern and charged the State with special mandates to redeem 213 these handicapped human sectors from their grossly retarded situation. Indeed, they are not merely backward, but are the backwardmost and cannot be equated with just any other caste in the Hindu fold. It is, therefore, problematic whether article 16(2) when it refers to equality among castes deals with the Scheduled Castes which, as shown above, may even be made of a plurality of castes or groups or races and may vary from State to State. Also, a caste, subjected qua caste, to the most humiliating handicaps may be a backward class although the Court will hesitate to equate caste with class except where the degree of dismalness is dreadful. The relevance of this point will be clear when we deal with the legal submissions of counsel. We will now state, in an abbreviated form, the various measures of the Railway Board (in response to decisions of the Ministry of Home Affairs) for reservation in services of SC&ST. After noting the policy of communal representation in the Services before the Constitution and the constitutional ban on discrimination by way of reservation on the ground of caste save in the case of SC&ST (and in some cases Anglo Indians with whom we are unconcerned here) the Home Ministry proceeded to spell out the new stance: Pending the determination of the figures of population at the Census of 1951 the Government of India have decided to make the following reservations in recruitment to posts and services under them: (a) Scheduled Castes: The existing reservation of 12 1/2 % of vacancies filled by direct recruitment in favour of the Scheduled Castes will continue in the case of recruitment of posts and services made, on an all India basis by open competition, i.e. through the Union Public Service Commission or by means of open competitive test held by any other authority. Where recruitment is made otherwise than by open competition the reservation for Scheduled Castes will be 16 2/3 as at present. (b) Scheduled Tribes: Both in recruitment by open competition and in recruitment made otherwise than by open competition there will be a reservation in favour of members of Scheduled Tribes of 5% of the vacancies filled by direct recruitment. Under the Constitution all citizens of India are eligible for consideration for appointment to posts and services under the Central Government irrespective of their 214 domicile or place of birth and there can be no recruitment to any Central Service which is confined by rule to the inhabitants of any specified area. In practice however recruitment to class I and II services and posts is likely to attract candidates from all over India and will be on a truly all India basis, while for the majority of Class III services & posts which are filled otherwise than through the Union Public Service Commission only those residing in the area or locality in which the Office is located are likely to apply. In the latter class of cases the percentages of reservations for Scheduled Castes and Scheduled Tribes will be fixed by Government taking into account the population of the Scheduled Castes and Scheduled Tribes in that area. Reservations were excluded for promotions and minimum qualifications were a 'must '. But age relaxation by 3 years (from the maximum fixed for others) was allowed. This policy is not challenged as unconstitutional and rightly so. However, this special provision showed only minimal concessions to SC&ST, being the first cautious, conservative, post constitutional measure under article 16(4). But law is what law does. Did this reluctant relaxation only on a few grounds work? Constant monitoring of law in action, with an eye on the end result, is social engineering. The goal here was to awaken the sleeping soul and harness the harijan resource by mainstreaming techniques constitutionally sanctioned. The policy proved non viable and a change of strategy was called for and by Annexure D the Railway Board altered the rules "with a view to securing increased representation of Scheduled Castes and Scheduled Tribes in the Railway Services". At the instance of the Home Ministry the Railway Board decided on 5 10 1955 that more realistic relaxations were needed and authorised recruiting bodies to slur over low places obtained by the SC&ST candidates: . .except where such authority considers that the minimum standard necessary for the maintenance of efficiency of the administration has not been reached. Whenever candidates are selected in this manner, the appointing authorities will make necessary arrangements to give additional training and coaching to the recruits so that they might come up to the standard of other recruits appointed along with them. The anxiety to level up the lowly human layers by special training so as to maintain administrative efficiency is evident in this directive. 215 Likewise, where direct recruitment, otherwise than by examination was provided for, taking of SC&ST candidates '. . fulfilling a lower standard of suitability than from other communities, was permitted so long as the candidates have the prescribed minimum education and technical qualifications and the appointing authorities are satisfied that the lowering of standards will not unduly affect the maintenance of the efficiency of administration. ' Here again, obsession with 'efficiency ' is manifest. Then comes what is called the 'carry forward ' rule: (3)(a) if a sufficient number of candidates considered suitable by the recruiting authorities, are not available for the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course, and to the extent to which approved candidates are not available in that year against this additional quota, a corresponding addition should be made to the number of reserved vacancies in the second following year. * * * * (b) In the event of suitable Scheduled Caste candidate not being available, a Scheduled Tribe candidate can be appointed in the subsequent reserved vacancy and vice versa subject to adjustment in the subsequent points of the roster. The quota for two years, if carried forward, would not materially affect the stream of 'merit worthy ' candidates, nor substantially diminish the prospects of non SC&ST candidates in a given year. So the Railway Board introduced the principle consistently with article 335. Government moved further because real power could be shared by the weakest sections only if the doors of the higher decks were pened to them. The higher echelons are the real controllerates, not the menial levels, hierarchically structured as our society is. Obviously, article 16(4) was not designed to get more harijans into Government as scavengers and sweepers but as 'officers ' and 'bosses ', so that administrative power may become the common property of the high and low, homogenised and integrated into one community. Social stratification, 216 the bane of the caste system, could be undone and vertical mobility won not by hortative exercises but by experience of shared power. Viewed thus, the 'open sesame ' strategy for entry into superior cadres could only be by extending concessions at higher levels of 'promotions '. Annexure D did not make reservations for SC&ST for promotion posts, but merely asked for sympathy on the part of promoting authorities. Lachrymal exercises, even in government directives, are in practice, little more than skin deep; and elitist alibis, when the ancient anguish of the lowliest & the lost besieges the citadels of the status quo, readily checkmate ameliorative moves. The harijan lot, in administrative services at the promotional levels, remained a paper hope, a teasing illusion and a promise of unreality. Article 46, whether we like it or not, ordains that the State shall 'with special care ' promote the interests of the SC&ST. And so long as the harijan girijan remained an alien to the Civil Service and the janitors for the higher chambers of Administration were themselves non harijan girijan gentlemen, he would be a naive sociologist who thought that mere plea for more sympathy made in official orders would work magic. Government, on a performance audit of its policy of 'no reservation ' for promotion posts, discovered that the harijan could hardly reach higher positions. More effective methods were needed. A radical change in policy was effected by the Railway Board through Annexure F of April 27, 1959. 'Merit ', sanctified by tradition, lost the battle. 'Tradition is a great retarding force, the vis inertiae of history; ' and so, heroic measures of progressive thrust, the Railway Board realised, alone could effect the break through and bring the harijan girijan groups into the higher brackets of Administration Annexure was promulgated providing for reservation in promotions. This has been challenged before us. The tepid provision opening up promotion posts for 'reserved ' categories was first confined to Class III and Class II, Class I being too sacrosanct to be soiled by meritless members. Annexure F reads: Sub: Reservation for members of Scheduled Castes and Scheduled Tribes in posts filled by promotion in Railways. Reference is invited to Board 's letter No. E55CMI/3 dated 5 10 55. The Railway Board have, in partial modification of para IV of the above letter, decided as follows: (a) Promotion from Class IV to Class III and from Class III to Class II. 217 The Railway Board have decided that promotions from Class IV to Class III and from Class III to Class II service are of the nature of direct recruitment and the prescribed quota of reservation for Scheduled Castes and Scheduled Tribes should be provided as in direct recruitment. The field of eligibility in the case of Scheduled Castes and Scheduled Tribes candidates should be four times the number of posts reserved without any condition of qualifying period of service in their case, subject to the condition that such consideration should not normally extend to staff beyond two grades immediately below the grade for which the selection is held. This reservation was confined to 'selection posts ' and the circular was explicit that "there will be no quota for Scheduled Castes and Scheduled Tribes candidates in respect of promotion to "non selection" posts. For "general posts" of certain types in Class III, it was laid down: (c) "General Posts" in Class III. There are certain other types of posts on Railways such as Passenger Guides, Welfare Inspectors, Safety Inspectors Platform Inspectors, Publicity Inspectors, Vigilance Inspectors, etc., which are ex cadre posts filled by drawing staff from more than one branch. Filling of these posts is in the nature of direct recruitment and the reservation for Scheduled Castes and Scheduled Tribes as applicable to direct recruitment should be applied. " More chances to pass tests, additional training and coaching to raise the standard of the sub standard were also provided for in the Board 's order. Homage was thus paid to the 'administrative efficiency ' component of article 335. This departure regarding reservation at the promotion tier for selection posts was challenged before this Court but upheld in Rangachari 's case. We will dwell at some length on that ruling later but we may merely mention than an appeal was made to us by counsel for the petitioners that we should reconsider, by reference to a larger bench, the ratio of Rangachari which has been approvingly referred to for nearly two decades by this Court, acted upon by Government throughout and enjoys, if we may say so with great respect, our full concurrence. Constitutional propositions on which a whole nation directs its destiny are not like Olympic records to be 218 periodically challenge and broken by fresh exercises in excellence but solemn sanctions, with judicial seal set thereon, for the country to navigate towards the haven of human development for everyone. To play cross word puzzle with constitutional construction is to profane it, unless, of course, a serious set back to the progress of human rights or surprise reversal of constitutional fundamentals has happened. We find the question discussed, decided and consistently followed since Rangachari and see no reason to open the Pandora 's box. So it was that we rejected the plea for reconsideration. Even so, the alternative method of containing Art, 16(4) within the contours of Rangachari was open to counsel and that has been done in argument as will be evident from the discussion on the vires of the subsequent orders of the Board. All the fire was turned by petitioners ' counsel on promotion 'excesses ' through Railway Board circulars. Annexure H of August 27, 1979 is one such: Annexure H The Railway Board have now revised their policy in regard to reservation and other concessions to Scheduled Castes and Scheduled Tribes in posts filled by promotion. The particular concessions are concretised thus: (B) Promotion by selection method (i) Class II appointments: In promotion by selection from Class III to Class II, as a measure of improving representation of Scheduled Castes/ Scheduled Tribes, it has now been decided that, if they are within the zone of eligibility the Scheduled Caste and Scheduled Tribe employees will be given, by the Selection/Departmental promotion Committee, one grading higher than the grading otherwise assignable to them on the basis of their record of service i.e. if any Scheduled Caste or Scheduled Tribe employee has been categorised by the Committee, on the basis of his record of service as "Good", he should be recategorised by the Committee as "Very Good". Likewise, if any Scheduled Caste or Scheduled Tribe employee is grades as "Very Good" on the basis of his record of service, he will be recategorised by the Committee as "Outstanding". Of course, if any Scheduled Caste or Scheduled Tribe employee has already been categorised by the Committee as "Outstanding" on the basis of his record of service, no recategorisation will be needed in his case. This recategorisation will then 219 form the basis of allotment of marks in respect of 'Record of service '. The above concession would be confined to only 25 per cent of the total number of vacancies in a particular grade or post filled in a year. In the matter of selection to Class III and Class IV posts the concession runs thus: There will be reservation of 12 per cent and 5 per cent of the vacancies for Scheduled Castes and Scheduled Tribes respectively in promotions made by selection in or to Class III and Class IV posts, in grades or services in which the element of direct recruitment, if any, does not exceed 50 per cent. Promotion against reserved vacancies will continue to be subject to the candidates satisfying the prescribed minimum qualifications and standards of fitness. It has also been decided that in respect of promotions to selection posts in Class III where safety aspect is not involved, the qualifying marks under "Professional ability" in respect of Scheduled Caste and Scheduled Tribe candidates should be 25 out of 50 instead of 30 out of 50 as applicable to the candidates belonging to the unreserved groups. Similarly, qualifying marks in aggregate in respect of Scheduled Castes and Scheduled Tribes should be 50 out of 100 instead of 60 out of 100 for others. It must be noticed that while grading has been modified and qualifying marks reduced as indicated above, for SC&ST, care has also been taken to exclude from these concessions, posts which involve "safety aspects" and not to relax prescribed minima of qualifications and standards of fitness. Article 335 has been honoured, making a margin on merit inevitable when choosing the second best. The next Order assailed by counsel is that of 20th April 1970 (Annexure I) and its highlights are revealed by relevant excerpts: ANNEXURE I The policy of the Government of India in regard to reservations for Scheduled Castes and Scheduled Tribes in posts and services under the Government of India was laid down in the Ministry of Home Affairs Resolution No. 42/21/49/NGS dated 13th September, 1950 circulated with Railway Board 's letter No. E47CMI/49/3 dated 23rd December, 1950. The question of revising the percentages 220 of reservation for Scheduled Castes and Scheduled Tribes in post and services under the Government of India in the light of the population of these communities as shown in the 1961 census has been under consideration of the Government for some time. It has now been decided in modification of the decisions contained in paras 2 and 4(1) of the Ministry of Home Affairs ' Resolution dated 13th September 1950, that the following reservations will hereafter be made for the Scheduled Castes and Scheduled Tribes in posts and services which are filled by direct recruitment; What are they? 12% and 5% are raised to 15% and 7% respectively for SCs and STs, consequent on the census picture and population ratio. Likewise, in local or regional recruitments (presumably, they are inferior posts) the population ratio prevalent in the concerned States was to be the basis for reservation quota for SC&ST. By the same order, the "carry forward" rule was carried a little further forward by increasing it, in the absence of suitable candidates from SC&ST, from 2 to 3 years. It was also provided that the reserved vacancies, if candidates were available (and vice versa) could well be filled by them, instead of being thrown open to the general community. The Board 's letter dated April 29, 1970 made a further change by revising the roster. Positions Nos. 1, 4, 8, 14, 17, 22, 28, 36 were to go to SC/ST candidates. The Note takes care to avoid total deprivation of changes for a particular year for general candidates when the vacancies are few: NOTE: If there are only two vacancies to be filled in a particular year, not more than one may be treated as reserved and if there be only one vacancy, it should be treated as unreserved. If on this account, a reserved point is treated as unreserved the reservation may be carried forward to the subsequent three recruitment years. Similar provisions, though somewhat different in detail, were made for posts filled by direct recruitment otherwise than by open competition. A big break with the past was next made by the Board 's proceedings of 11 1 1973 (Annexure K) which hurt the lower classes of employees whose promotion was regulated by seniority cum suitability (i.e., non selection posts, according to official jargon). That directive states: 221 ANNEXURE K After careful consideration the Board have now decided that a quota of 15% and 7 1/2% for Scheduled Castes and Scheduled Tribes respectively may also be provided in promotion to the categories and posts in Class I, II, III and IV filled on the basis of seniority cum suitability provided the element of direct recruitment to those grades, if any, does not exceed 50%. The number of reserved vacancies in a recruitment year (viz., financial year on the Railways) should be determined under Board 's letter No. E(SCT) 70CM15/10 dated 20 4 70. . . In the case of reserved community candidates equal to the number of reserved vacancies are not found suitable for promotion even with relaxed standard, the reserved vacancies may be dereserved after following the procedure prescribed for dereservation as in the case of selection categories. The quota so dereserved will be carried forward to three subsequent recruitment years; the year in which no panel is formed is not to be taken into account for this purpose. This order has been fiercely attached as unconstitutional. The order attached in Rangachari 's case (supra) related to selection posts at the promotion level but Annexure K (11 1 1973) covers promotion to non selection posts. The whole gamut of promotions in Classes II, III and IV areas thus comes under the reservation formula. Annexure I extended the principle of reservation to lower ranks of Class I services (i.e. Junior Class I scale). The 'carry forward ' project, calculated to ensure adequate representation by broadening the time zone to three years, was applicable to all cases of reservations in promotion posts. One of the major broadside attacks made on the validity of the Railway Board 's circulars was the serious peril to administrative efficiency, a non negotiable value under article 335. The hazards to railway travel, it was urged, would so increase because of the harijan component and its sub standard performance that rail road accidents would escalate and threaten human life! We must, by way of antidote to this caricature, notice, however, that provisions for special training and coaching where the recruit was somewhat sub standard, was specially insisted on and this, at least partially, overcame the 222 'awesome ' deficiency. No factual material to blame all the ills of the Indian Railways on the reservation policy was placed before us except a hunch in a Report to be referred to later. If harijans were excluded would railway accidents have a long holiday ? Courts are not credulity in robes ! A comprehensive programme of balancing administrative competency with adequacy of SC&ST representation was attempted by the Railway Board in Annexure M which provided for in service training for candidates who were below standard. This letter of the Board dated 31st August 1974 recalled the earlier letter of 27 4 1959 which provided: While filling the posts on promotion, however, candidates of three communities should be judged in a sympathetic manner and arrangements made where necessary to give to such staff additional training and coaching, to bring them upto the standard of others. In the light of actual experience and the complex of considerations implied in articles 16(4), 46 and 335 the Board directed, with disturbing concern for the continued exclusion of SC&ST candidates, as follows: The matter has been further considered by the Board and it has been decided that if, during the selection proceedings it is found, that the requisite number of Scheduled Caste and Scheduled Tribe candidates are not available for being placed on the panel in spite of the various relaxations, already granted, the best among them i.e. who secure highest marks, should be earmarked for being placed on the panel to the extent vacancies have been reserved in their favour. The panel excluding the names of such persons may also be declared provisionally. Thereafter the Scheduled Caste and Scheduled Tribe candidates who have been so earmarked may be promoted ad hoc for a period of six months against the vacancies reserved for them. During the said six months period, the Administration should give them all facilities for improving their knowledge and coming upto the requisite standard, if necessary by organising special coaching classes. At the end of the six months period, a special report should be obtained on the working of these candidates and the case put up by the Department concerned to the General Manager through SPO(RP) for a review. The continuance of the Scheduled Caste and Scheduled Tribe candidates in the 223 higher grades would depend upon this review. If the candidates are found to have come upto the requisite standard, their names would be included in the panel and the vacancies dereserved and filled in the usual manner by candidates from other communities. The procedure indicated in the preceding para would also apply to promotion to the posts filled on the basis of seniority cum suitability, with the only difference that the Review at the end of the six months period would be carried out by the authority competent to approve the Select List. This directive takes good care of harijan girijan obtuseness, if any. We move on to Annexure N of February 21, 1976 which relates to carrying forward of reserved vacancies remaining unfilled. We need not go into its details except to state that further facilities are offered to SC&ST promotees, on account of unsatisfactory intake as a fact. Although on paper what might appear to be pampering concessions were offered to SC&ST candidates, the painful reality, according to the Union of India, was alarming under representation and utter inadequacy of SC&ST personnel in the Railway Services. Arithmetical manipulations and national concessions incorporated in government proceedings did not impact on the raw life of depressed classes unless activist tactics of upgrading the competence and awareness of those human sectors were fruitfully carried out in a result oriented manner. The Union of India and the Railway Board apparently pinned their faith on increasing the percentage hoping that thereby more harijans would be attracted. The twin reservations of 15% and 7 1/2% for the SCs and STs to be filled by promotion in Class I, II, III and IV services, whereby seniority cum suitability or selection on the strength of competitive examinations, had all along been limited in such manner as not to exceed 50%, even on the application of the 'carry forward ' formulae. Since this did not ensure fair representation, a change was contemplated by Annexure O: The question of enlarging the scope of the existing scheme of reservation for Scheduled Castes and Scheduled Tribes in the aforesaid cases has been under the consideration of the Government of India for some time past and in partial modification of the instructions contained in the above letters it has now been decided that henceforth the reservations in posts filled by promotion under the existing scheme as indicated above would be applicable to all grades or services where 224 the element of direct recruitment, if any, does not exceed 66 2/3% as against 50 per cent as at present. What was done was to raise the maximum from 50% to 66 2/3% its vice, writ on its face according to counsel 's argument being promotion of inefficiency along with promotion of SC&ST appointees. The furious charges of inefficiency in Administration, injected by incompetence imported through SC&ST candidates and by frustration and demoralisation of the non SC&ST members who were passed over by their less competent juniors, was sought to be supported by reliance on the Report of the Railway Accidents Enquiry Committee 1968. There was reference in it to discontent among supervisors inter alia on account of the procedure of reservation of posts for SC&ST. It is true that the Report has a slant against the SC&ST promotion policy notwithstanding the assurance given by the Railway Board to the Committee that instructions had been issued not to relax standards in favour of SC&ST members where safety was involved. We need hardly say that it is straining judicial gullibility to breaking point to go that far. This is an argumentum an absurdum though urged by petitioners with hopeful ingenuity. Nor are we concerned with certain newspaper items and representations about frustration and stagnation. On the other hand, the plea, forcefully put forward that economic backwardness should be the touchstone of any reservation policy in a secular, socialist republic may merit better examination. Surely, extraneous factors, however passionately projected, cannot shake or shape judicial conclusions which must be founded on constitutional criteria and relevant facts only. What then is the defence of the Union to the charge of departure from equal treatment for all citizens alike ? What is the principle derivable from the precedents on the points raised ? A technical point is taken in the counter affidavit that the 1st petitioner is an unrecognised association and that, therefore, the petitioner to that extent, is not sustainable. It has to be overruled. Whether the petitioners belong to a recognised union or not, the fact remains that a large body of persons with a common grievance exists and they have approached this Court under article 32. Our current processual jurisprudence is not of individualistic Anglo Indian mould. It is broad based and people oriented, and envisions access to justice through 'class actions ', 'public interest litigation ', and 'representative proceedings '. Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept 225 of 'cause of action ' and 'person aggrieved ' and individual litigation is becoming obsolescent in some jurisdictions. It must fairly be stated that the learned Attorney General has taken no objection to a non recognised association maintaining the writ petitions. The case of the Union of India is that articles 46, 335, 16(1) and 16(4) must be taken as a constitutional package and not read in isolation. In that view, the policy of reservation is geared to equalisation of opportunities for employment and, therefore, a fulfillment of article 16(1). Reading the two sub articles as complementary to each other and giving a wider connotation to the expression "appointment", the learned Attorney General sought to include in its semantic circle appointments by way of promotion, deputation, transfer and on contract. On this footing, it was urged that article 16(4) completely protected the various directives regarding appointments by promotion. It is the case of the Government that SC&ST have all along suffered social and economic deprivation and utter under representation in the Government service. Naturally, reservation to boost the chances of the SC&ST in Government services had to be resorted to as a pragmatic policy of levelling up. Having regard to administrative efficiency and other social factors, Government had been reviewing the position from time to time and had tailored its reservation policy to fit the needs of a given service or state of affairs. The stand of the State is that . once the Government have decided after reviewing the overall position of representation of Scheduled Castes/Scheduled Tribes in Government Services that the reservation principles should continue in certain types of appointments, the reservation of a certain number of vacancies have to be provided, irrespective of whether Scheduled Castes/Scheduled Tribes are already duly represented or not in specific cadres of the Services. Although Rangachari 's case covered only selection posts, the Union of India took the view that the same principle held good for nonelection posts also. In fact, if at all the prospects of SC&STs in Government Service were to be improved, it had to begin with non selection posts. They are the lower categories where the members of the SC&ST have a chance. Provision of reservation in Class I services would be theoretically attractive to SC&STs but not so much in practice. . reservation in promotional appointments made by means of seniority cum suitability is necessary because the 226 Scheduled Castes/Scheduled Tribes who generally occupy the lower positions in the recruitment/promotional panels cannot get further promotion at all or as per the requisite percentage alongwith other employees because of their very low position in the seniority list The submission of the Central Government is that not with standing the extension of the principle of reservation, the presence of harijans and girijans is sparse. In this connection, an extract from the half yearly report of the Ministry of Railways for the period ending 31 3 1978 showing the representation of the Scheduled Castes and Scheduled Tribes in the various Railway Services presented to the Parliament by the Government is reproduced below. The table furnished as in 1978 shows that Scheduled Castes have in Class I around 7% representation, in Class II 9.5%, in Class III 11.1% and even in Class IV (excluding safaiwalas) only 18%. Safaiwalas, who are menials like scavengers and sweepers, are mostly drawn from harijans since other communities consider such jobs infra dig. So, there is 83% representation of SCs among safaiwalas. This is not because of representation but because no one else is forthcoming for such 'untouchable ' jobs. The Scheduled Tribes have a more pathetic tale to tell. In Class I services they have 1% representation, in Class II, 1.8%, in Class III, 2.2% and in Class IV (excluding safaiwalas) 5.1% and even among safaiwalas only 1.5%. On the basis of these statistics the Railway Board 's case is that adequacy of representation for SC&STs even according to their population (forgetting centuries of total exclusion) is a long way off. These official figures culled from the Reports of the Commissioner for Scheduled Castes and Scheduled Tribes are for employment in Central Govt. not confirmed to the Railways, and reveal how a square deal to SCs and STs may take centuries, observing the current snail 's pace in the intake. Social realists will read these pessimistic figure of the last ten years which prove the myth and negate the neurotic rhetoric about the SC&ST communities having cornered all the posts in the Central Government from Chaprasi to Secretary, accelerating there by the impending calamity of administrative collapse due to the disproportionate presence of the 'inefficient ' social components! A mere formula of reservation is not the factum of recruitment. That is 227 morbid fancy. The truth is that more aggressive policies than paper reservations are the need if equality and excellence are the creed. Reservation is but one strategy and historically has established itself. More must be done by a complex of processes by which harijans/girijans will get boosted in 'capabilities ', and mainstreamed to share in the Civil Service cake. The poor annual assimilation into the public employment sector of the weakest social segments makes a tragic mockery of the statistical jugglery of harijan monopoly. Any theory or formula is best tested by how it works, not by how it is worded. Nikita Kruschev once remarked: ". a theory isolated from practice, is dead, and practice which is not illumined by . theory is blind". The theoretical attack on over representation flowing from the reservation rule must be tried out in practice, as the figures for the last 10 years show; and the justification for more facilities and higher percentage in public employment must be validated by the thesis of social justice. Assertions either way end in a blind alley. That is why we have been at pains to project the constitutional theory and resultant representation of SC and ST reservations under article 16(4). Percentage of reservations made in favour of Scheduled Castes (SC) and Scheduled Tribes (ST). Class I Class II Class III Class IV As on SC ST SC ST SC ST SC ST 1 1 70 . 2.36 0.40 3.84 0.37 9.27 1.47 18.09 3.59 1 1 71 . 2.58 0.41 4.06 0.43 9.89 1.70 18.37 3.65 1 1 72 . 2.99 0.50 4.13 0.44 9.77 1.72 18.61 3.82 1 1 73 . 3.14 0.50 4.52 0.49 10.05 1.95 18.37 3.92 1 1 74 . 3.25 0.57 4.59 0.49 10.33 2.13 18.53 3.84 1 1 75 . 3.43 0.62 4.98 0.59 10.71 2.27 18.64 3.99 1 1 76 . 3.46 0.68 5.41 0.74 11.31 2.51 18.75 3.93 1 1 77 . 4.16 0.77 6.77 0.77 11.84 2.78 19.07 4.35 1 1 78 . 4.50 0.85 6.44 0.88 12.22 2.86 19.13 4.66 1 1 79 . 4.75 0.94 7.37 1.03 12.55 3.11 19.32 5.19 The facts, in the statement we have digested from the Reports of the Commissioner for Scheduled Castes and Scheduled Tribes, 228 conclusively show the long distance to travel before the SC&ST members in the civil services can be said to have and a fair or at least a proportional deal. Classes II and III for the whole of the central services have a range of 3.84% to 7.37% and 9.27% to 12.55% for Scheduled Castes and 0.37% to 1.03% and 1.47% to 3.11% for Scheduled Tribes while their eligibility is of the order of 15% and 7 1/2% respectively. What a grievous beeway after 33 long years may be the acid comment of the victim sector (i.e. the harijans and the girijans). The Central Government has countered the submission of the petitioners, presented persuasively by Shri Venogopal, that reservation compounded by the carry forward rule has ended up almost in cent per cent reservation to SC&STs (thus wholly excluding others from job opportunities). The counter affidavit states thus: I do not admit that the Government is giving 100% reservation to the Scheduled Castes and Scheduled Tribes. I submit that normally only 15% and 7 1/2% of the vacancies by means of a roster mechanism are reserved for the Schedule Castes and Scheduled Tribes respectively. However, in the following cases, it may look as if 100% of the available vacancies are being given to the Scheduled Castes/Scheduled Tribes. Of course, based on Rangachari (supra) the State contends that entry even at the promotional points is constitutionally permitted and protected. The grievance that junior harijans steal a march over other senior members of service is exceptional rather than general, according to the Railway Board, and, in any case, is inevitable where reservation is permissible. Furthermore the Ministry of Railways, having regard to article 335 had taken special care to give training, coaching and the like, to prevent inefficiency and to promote competency of SC&ST members in service. The deponent on behalf of the Union of India has explained the position thus: I submit that the Ministry of Railways, in 1974 after reviewing the position of intake of Scheduled Castes and Scheduled Tribes in groups of posts filled by promotion in Railway Services, and on the basis of a recommendation made by the Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes, introduced a scheme of training of the Scheduled Castes/Scheduled Tribes employees on the jobs of the posts to which they are to be promoted. According to this scheme, if, during selection proceedings, it is found that the Scheduled Castes/ 229 Scheduled Tribes of requisite standards are not available for being placed on the panel, the best among them numbering to the extent of reserved vacancies i.e. who secure the highest marks, are provided with in service training. For this purpose, such candidates are promoted an ad hoc basis for a period of six months to the grade of the post on the jobs of which they are to receive training. During the said six months ' period, the administration give them all facilities for improving their knowledge and coming upto the requisite standard, if necessary by organising special coaching classes. At the end of six months ' period, a special report is obtained on the working of such candidate which is reviewed by the General Manager or other competent authority. If, as a result of this review, they are found to have come upto the requisite standard of fitness to hold the post on regular basis, they are included in the panel and are promoted to the grade regularly. If, however, the said review reveals that such candidates, even after receiving the training on the jobs to which they are to be promoted regularly, have not come upto requisite standard of suitability, such candidates are immediately reverted to the grade from which they were given ad hoc promotion for the purpose of training. A further plea is taken that temporary promotions on ad hoc basis are sometimes given to SC&ST members purely for short duration "for the purpose of imparting them with in service training on the jobs of the post to which they aspire for promotion". This had to be treated as a training period rather than an unconstitutional promotion over the heads of seniors. In short, the factual submission of massive infiltration of incompetent harijans/girijans into the Railway Service vertically all along the line is refuted by facts and figures. Secondly, the legal contentions of the petitioners have also been contested by the Union of India (given earlier). In this background, we may formulate the following points round which arguments have ranged and then deal with some mini submissions and technical objections put forward before us. (1) Does article 16(1) insist on absolute equality or permit realistic and rational classification of unequal classes and treatment of such classes differently ? (2) Do SC&STs stand in a different class from the rest of the Indian community? 230 (3) Are SC&ST castes, within the scope of article 16(2) ? If so, does article 16(4) save special provisions in their favour in matters promotion and allied matters ? (4) Do the directives under attack impair administrative efficiency to a degree that it is violative of article 335 ? (5) Do the ten circulars reduce the fundamental right under article 16(1) to a husk or cipherise it altogether ? We must state certain constitutional fundamentals and societal elementals before we make a dialectical study of the basic issues thrown up by these cases. Most of the submissions made by counsel for petitioners cannot survive Rangachari and Thomas (supra) and our task is simplified by abiding by the propositions laid down therein, because these twin rulings bind us being of benches of five and seven judges. Even though we would, we could not and even though we could, we would, not depart from the holdings in these twin land mark cases which set the gravestone on many of the contentions. What are the constitutional fundamentals bearing on egalite vis a vis backward classes, especially the SC&STs ? What are the social essentials afflicting the life style of the SCs&STs ? What is economic backwardness as distinct from social injustice and how does the Constitution strike the path of remedial jurisprudence harmonising the demands of both categories? A luminous preface to the constitutional values nullified by social realities is found in Dr. Ambedkar 's address to the Constituent Assembly earlier extracted, which draws poignant attention to the life of contradictions between the explosive social and economic inequalities and the processes of political democracy. "How long shall we continue to live this life of contradictions ? How long shall we continue to deny equality in our social and economic life?" Was the interrogation before the framers of the Constitution and they wanted to enforce the principle of 'one man, one value '. This perspective must inform the code of equality contained in articles 14 to 16. Equality being a dynamic concept with flexible import this Court has read into articles 14 to 16 the pragmatic doctrine of classification and equal treatment to all who fall within each class. But care must be taken to see that classification is not pushed to such an extreme point as to make the fundamental right to equality cave in and collapse. (See observations in Triloki Nath Khosa and Ors. vs State of Jammu and Kashmir 231 Ray, C.J. in Kerala vs Thomas epitomised the position in a few passages: Articles 14, 15 and 16 from part of a string of constitutionally guaranteed rights. These rights supplement each other. Article 16 which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus to be the object to be achieved. Discrimination is the essence of classification. Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved. There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection. State of Mysore vs V. P. Narasinga Rao. This equality of opportunity need not be confused with absolute equality. Under Article 16(1) equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent class. The rule of parity is the equal treatment of equals in equal circumstances. The rule of differentiation in enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category. 232 The learned Chief Justice relied upon earlier decisions to substantiate this proposition. In Triloki Nath Khosa vs State of J & K(1) this Court had held that the State may make rules guided by realities just as the legislature "is free to recognise degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be the clearest." Thus we arrive at the constitutional truism that the State may classify, based upon substantial differentia, groups or classes and this process does not necessarily spell violation of articles 14 to 16 Therefore, in the present case if the SC&STs stand on a substantially different footing they may be classified group wise and treated separately since there is a Great Divide between the SC&STs on the one hand and the rest of the Indian community on the other. This is no matter of speculation or investigation because the Constitution itself has recognised the direst socioeconomic backward status of these species of humanity. We may quote Ray, C.J. where he observed: The Constitution makes a classification of Scheduled Castes and Scheduled Tribes in numerous provisions and gives a mandate to the State to accord special or favoured treatment to them. Article 46 contains a Directive Principle of State Policy fundamental in the governance of the country enjoining the State to promote with special care educational and economic interests of the Scheduled Castes and Scheduled Tribes and to protect them from any special injustice and exploitation. Article 335 enjoins that the claims of the members the Scheduled Castes and Scheduled Tribes to the services and posts in the Union and the States shall be taken into consideration. Article 338 provides for appointment by the President of a Special Officer for the Scheduled Castes and Scheduled Tribes to investigate all matters relating to the safeguards provided for them under the Constitution. Article 341 enables the President by public notification to specify castes, races or tribes which shall be deemed to be Scheduled Castes in the States and the Union Territories. Article 342 contains provision for similar notification in respect of Scheduled Tribes. Article 366(24) and (25) defines Scheduled Castes and Scheduled Tribes. The classification by the impugned rule and the order is with a view to securing adequate representa 233 tion to Scheduled Castes and Scheduled Tribes in the services of the State as otherwise they would stagnate in the lowest rung of the State services. Article 335 of the Constitution states that claims of members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the making of appointments to the services and posts in connection with affairs of the State consistent with the maintenance of efficiency of administration. I had made similar observations in the same case: The Directive Principles of State Policy, fundamental in the governance of the country, enjoin on the State the promotion 'with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes. and protect them from social injustice '. To neglect this obligation is to play truant with article 46. Undoubtedly, economic interests of a group as also social justice to it are tied up with its place in the services under the State. Our history, unlike that of some other countries, has found a zealous pursuit of government jobs as a mark of share in State power and economic position. Moreover, the biggest and expanding, with considerable State undertaking, employer is Government, Central and State, much so appointments in the public services matter increasingly in the prosperity of backward segments. The Scheduled Castes and Scheduled Tribes have earned special mention in article 46 and other weaker section ' in this context means not every 'backward class ' but those dismally depressed categories comparable economically and educationally to Scheduled Castes and Scheduled Tribes. Proceeding on this footing, the fundamental right of equality of opportunity has to be read as justifying the categorization of SC&STs separately for the purpose of "adequate representation" in the service under the State. The object is constitutionally sanctioned in terms, as articles 16(4) and 46 specificate. The classification is just and reasonable. We may, however, have to test whether the means used to reach the end are reasonable and do not outrun the purposes of the classification. Thus the scope of the case is narrowed down. 234 Of course, apart from article 16(1), article 16(2) expressly forbids discrimination on the ground of caste and here the question arises as to whether the Scheduled Castes and Tribes are castes within the meaning of article 16(2). Even assuming that there is discrimination, article 16(2) cannot be invoked unless it is predicated that the Scheduled Castes are 'castes '. Terminological similarities are an illusory guide and we cannot go by verbal verisimilitude. It is very doubtful whether the expression caste will apply to Scheduled Castes. At any rate, Scheduled Tribes are identified by their tribal denomination. A tribe cannot be equated with a caste. As stated earlier, there are sufficient indications in the Constitution to suggest that the Scheduled Castes are not mere castes. They may be something less or some thing more and the time badge is not the fact that the members belong to a caste but the circumstance that they belong to an indescribably backward human group. Ray, C.J. in Kerala vs Thomas (supra) made certain observations which have been extracted earlier to make out that "Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste". Since a contrary view is possible and has been taken by some judges a verdict need not be rested on the view that SCs are not castes. Even assuming they are, classification, if permitted, will validate the differential rules for promotion. Moreover, article 16(4) is an exception to article 16(2) also. The constitutional enquiry is whether the harijan/girijan fold is so sharply marked off from the rest of the Indian human family as to justify classification for considerate treatment in the field of public employment ? Let us be sure of the social facts. Mark Twain cynically remarked once: "Get your facts first, and them you can distort them as much as you please. " By that token, let us scan the status of the SC&STs, the result of reservations in habilitating them into State services and the depressment impact on efficiency by supersession of meritorious seniors. It is a fact of our social history and a blot on our cultural heritage that 135 million men and women, described as SC&STs, have been suffering as "suppressed classes", denied human dignity and languishing as de facto bonded labour. They still are, in several places, "worse than the serf and the slave" and "their social standard is lower than the social standard of ordinary human beings" (Ambedkar). Tortured, violated and even murdered, the saga of the SC&STs is not only one of economic exploitation but of social ostracisation. Referring to the sorrows of the suppressed shudras (what I 235 prefer to call the panchama proletariat) Swami Vivekananda demanded shudra raj and refuted the incapabilities of the groaning untouchables: "Aye, Brahmins, if the Brahmin has more aptitude for learning on the ground of heredity than the Pariah, spend no more money on the Brahmin 's education but spend all on the Pariah. Give to the weak, for there all the gift is needed. Our poor people, these downtrodden masses of India, therefore, require to hear and to know what they really are. Aye, let every man and woman and child, with out respect of caste or birth, weakness and strength, hear and learn that behind the strong and the weak, behind the high and the low, behind everyone, there is that Infinite Soul, assuring that infinite possibility and the infinite capacity of all to become great and good. Let us proclaim to every soul 'Arise, awake and stop not till the goal is reached. ' Arise, awake! To make democracy functional and the republic real the social and economic personality of these backwardmost sections had to be restored. From this angle, the ancient injustice on the shudras among the shudras has to be liquidated by effective equalising measures. Power, material power, is the key to socioeconomic salvation and the State being the nidus of power the framers of the Constitution have made provision for representation of these weaker sections both in the legislature and the executive. More poignant is the fact that all the welfare programmes have been only on paper, not in practical life. With all the 'pampering ' complained of, we find that these downtrodden millions remain at the bottom of the socioeconomic scale and totter in the administrative services surviving with difficulty and securing some promotion here or there amidst a hostile milieu. If the concessions, reservations, relaxations and other partisan provisions had actually brought into the Services a considerable percentage at least commensurate with their population, maybe, the grievance voiced may ring true. But as late as 1971, a former Minister, B. section Murthy, in his book "Depressed and Oppressed (Forever in Agony)" has given a sombre picture of the actual plight of the harijans of India and the figures of employment in Government Services of Scheduled Castes and Tribes as on 1 1 1970 (20 years after the Constitution) furnished by him (p. 74) are tell tale. In Class I services percentage wise these castes which constitute 22.5% of India 's population had 0.40% in Class II, 0.40, in 236 Class III, 1.47 and in Class IV, 3.41. This was socioeconomic democracy in reverse gear and a callous picture of under representation in administration as if harijans and girijans were still untouchable and unapproachable, vis a vis Services under the State. Once we realise with John Tyndall that "It is as fatal as it cowardly to blink facts because they are not to our taste", the wind is taken out of the sails of the case of the petitioners. For, in truth and actual life whatever the Railway Board 's orders may say the representation of the SC&STs remains substantially below the sanctioned level although fair representation, at least in proportion to their population is what is demographically just, ignoring for the moment the neutralisation of the iniquitions past. We must remember that article 14 speaks of equality before the law and article 16 vouchsafes equality of opportunity. The social dynamics of equality involve the strategy of equalisation in a society of stratification through casteification. One of us did observe : "In a spacious sense, 'equal opportunity ' for members of a hierarchical society makes sense only if a strategy by which the under privileged have environmental facilities for developing their full human potential. This consummation is accomplished only when the utterly depressed groups can claim a fair share in public life and economic activity, including employment under the State, or when a classless and casteless society blossoms as a result of positive State action. To help the lagging social segments, by special care, is a step towards and not against a larger and stabler equality. . It is a statistically proved social reality in India that the depressed employment position of harijans is the master problem in the battle against generations of retardation, and 'reservation ' and other solutions have made no significant impact on their employment in public services. In such an unjust situation, to maintain mechanical equality is to perpetuate actual inequality. A battery of several programmes to fight down this fell backwardness must be tried out by the State." Subha Rao, J. in Devadasan 's case brought out the need for equalisation to produce stable equality in society by a telling imagery. Although he was in a minority on one point in that case, that did not detract from the validity or force of the general observations: 237 Article 14 lays down the general rule of equality. Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. If it stood alone, all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an utopian conception unless a practical content was given to it. Its strict enforcement brings about the very situation it seek to avoid. To make my point clear, take the illustration of a horse race one is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed, that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise has been a force of a competition would be made a real one. The same difficulty had confronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without Adventitious aids till such time when they could stand on their own legs. A strikingly similar strain of justice thinking has been developed in other jurisdictions in the field of equal protection and benign discrimination by Polyvos G. Polyviou in his book "The Equal Protection of the Laws". It may be meaningful to notice the argument : ". focuses on the concepts of equal treatment and equal opportunity, professes to construe them realistically, and declares that '(t) he minority applicant does not have an opportunity "equal" to the white 's because the discriminatory denial of educational, professional and cultural opportunities for generations past has severely handicapped him in any contest of early intellectual attainment '. As Professor Cox has well put the question, '(d) we achieve 238 equality by putting each individual on the same starting line today or by giving minority applicants head starts designed to offset the probable consequences of past discrimination and injustice against the group with which the applicant is identified ? The same author deals with 'reverse discrimination ' in school admissions and refers to Prof. Dworkin 's socio jural defense of preferences: Nor should it be forgotten in this connection that, at least in terms of traditional theory, rights to equal treatment and to freedom from discrimination, as normally conceived, are personal and individual, and that '(e)qual protection is not achieved through (the) indiscriminate imposition of inequalities for the alleged benefit of groups, however disadvantaged. Benevolent quotas and reverse discrimination on this view, fatally offend fundamental notions of individualism inherent in the notion of equality. In answer, it may be said that to regard the concept of equality simply from this (traditionally) individualistic point of view is to take an unduly restrictive view of its social function and to ignore its allegedly multifaceted character. Or, to adopt a somewhat different strategy, one may read the right to equal treatment (both the more general right to equality and the right enshrined in the constitutional guarantee of equal protection) in a particularly abstract way and formulate it in such a manner that it is not necessarily violated by the adoption of benign racial classifications. In this way, Professor Dworkin distinguishes between two 'different sorts of rights ' which individuals may be said to have. The first is the right to equal treatment, which is the right to an equal distribution of some opportunity or resource, and the second is the right to treatment as an equal, 'which is the right, not to receive the same distribution of some burden or benefit, but to be treated with the same respect and concern as anyone else '. For Dworkin it is the right to treatment as an equal that is fundamental, whilst the right to equal treatment is only derivable, and it is the former that, as a general matter, is given 'constitutional standing ' by the Equal Protection Clause. In other words, white applicants for admission to Law School who may have been turned away because of the reservation of some places for members of disadvantaged minority groups cannot (in a case like the one set out above) successfully complain, the reason being that they 239 do not have a right to equal treatment in the assignment of places, but they do have the right to be treated as equals, that is, with equal respect, concern and sympathy, in the making of decisions as to which admissions standards should be used. More specifically, this right is viewed by Dworkin as meaning that each candidate for admission has a right that his interests should be looked at 'as fully and sympathetically ' as the interests of any others when decisions are being taken as to which of the many possible criteria for admission to elevate to the status of the pertinent ones. But if this condition is satisfied, rejected white applicants will fail in their contention that the particular admissions program was unfair and unconstitutional (even if they had been effectively excluded from consideration as a result of the adoption of racial criteria in determining the allocation of some of the available places). The simple question Dworkin would ask in these cases is whether the particular admissions program serves a proper policy that respects the right of all members of the community to be treated as equals, but not otherwise. No debate is needed to uphold reservation in promotions as such. Not only has Rangachari sustained it in regard to selection posts, Thomas 's case decided by a Bench of seven Judges, has expressly approved Rangachari. The only question bearing on reservation vis a vis promotion is as to whether it is unconstitutional if it is extended to non selection posts while it is constitutional in regard to selection posts. Anyway, Annexure F, one of the circulars sought to be quashed by the petitioners relates only to selection posts and has been expressly upheld in Rangachari 's case. The quantum of reservation is not excessive; the field of eligibility is not too unreasonable, the operation of the reservation is limited to selection posts and no relaxation of qualifications is written into the circular except that candidates of the SC&ST communities "should be judged in a sympathetic manner". Moreover, administrative efficiency is secure because there is a direction "to give such staff additional training and coaching, to bring them up to the standard of others". The rejection of the invalidatory contention of the petitioners is inevitable. Annexure H is bad for unconstitutionality according to the petitioners for many reasons. For one thing, an SC/ST employee gets one grading higher than otherwise assignable to him on the record of his service. So much so, if he is 'good ' he will be categorised as 'very 240 good '. This fiction or fraud in grading is said to be a vice rendering the promotional prospects unreasonable. We do not agree. Superficially viewed, this clumsy process of reclassifying ability may strike one as disingenuous. Of course, this concession is confined to only 25% of the total number of vacancies in a particular grade or post filled in a year. So there is no rampant vice of every harijan or girijan jumping over the heads of others. More importantly, we think this is only an administrative device of showing a concession or furtherance of prospects of selection. Even as under article 15(4) and article 16(4) lesser marks are prescribed as sufficient for SC&STs or extra marks are added to give them an advantage the re grading is one more method of boosting the chances of selection of these depressed classes. There is nothing shady about it. If there is advancement of prospects of SC&ST by addition of marks or prescribing lesser minimum marks or by relaxing other qualifications, I see no particular outrage in re categorisation which is but a different mode of conferring an advantage for the plain and understandable reason that SC&STs do need some extra help. It is important to note that the prescribed minimum qualifications and standards of fitness are continued even for SC&STs under Annexure H. The other vice pointed out against Annexure H is that the qualifying marks in respect of SC&ST candidates is somewhat less than is applicable to candidates of unreserved groups. There is no merit in this objection and no good ground exists which militates against the constitutionality of Annexure H. Annexure I is also unexceptionable since all that it does: is to readjust the proportion of reservation in conformity with the latest Census. Posts for which recruitment, realistically speaking, takes place on a regional basis are subjected to reservation taking into account the percentage of SC&ST population in the concerned State. This is also reasonable. Likewise, the carry forward rule being raised from 2 years to 3 years also cannot be struck down. It must be realised that law is not an abstraction but an actual prescription in action. So what we have to be more careful about is to scrutinise whether the carry forward rule by being increased to 3 years is going to confer a monopoly upon the SC&ST candidates and deprive others of their opportunity for appointment. From the percentage furnished by the Railway Board we find that even if we carry forward vacancies for any number of years there is no prospect, within the reasonable future, of sufficient number of SC & ST candidates turning up to fill them. There is a provision that if sufficient number of candidates from the SC & ST are not found, applicants from the unreserved communities will be given the appointment provisionally. After 3 years those vacancies cease to be reserved. Going by the actuals it is clear that no serious infraction of 241 any individual 's fundamental right under article 16(1) takes place and no monopoly is conceivably conferred on SC&ST candidates, they are not available in sufficient numbers to reach anywhere near the percentage reserved. Even going by the majority, Devadasan 's case ( ' ) lays down the proposition that under article 16(4) "reservation of a reasonable percentage B of posts for members of the Scheduled Castes and Tribes is within the competence of the State. What the percentage ought to be must necessarily depend upon the circumstances obtaining from time to time. " Madholkar, J. speaking for the majority has struck down only one restriction. "In order to effectuate the guarantee each year of recruitment will have to be by itself and the representation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities. " (emphasis added). Unlimited reservation of appointments may be impermissible because it renders article 16(1) nugatory. At the same time, article 16(4), calculated to promote social justice and expressive of the deep concern of the Constitution for the limping bracket of Indians, must be given full play. That is why the only restraint imposed by Mudholkar, J. is that an exercise of power under article 16(4) "does not mean that the provision made by the State should have the effect of virtually obliterating the rest of the Article, particularly clauses (1) and (2) thereof."( ') By the three year 'carry forward ' rule one is unable to see how, in practice, the total vacancies will be gobbled up by the harijan/girijan groups "virtually obliterating" article 16(1). The court has made it very clear that the problem of giving adequate representation to backward classes under article 16(4) is a matter for the Government to consider, bearing in mind the need for a reasonable balance between the rival claims as pointed out in Balaji 's case.(2) It is true that in Balaji 's case and Devadasans case(l) 'the carry forward ' rule for backward classes for exceeded 50% and was struck down. We must remember that the percentage of reservation for backward classes including SC&ST was rather high in both the cases. In Devadasan 's case the court went into the actuals, not into the hypothetical. This is most important. The Court actually verified the degree of deprivation of the 'equal opportunity ' right and discovered: (3 ) In the case before us 45 vacancies have actually been filled out of which 29 have gone to members of the Scheduled (1) ; at 695. (2) [1963] Supp. 1 SCR 439. (3) Ibid at 693 94. 242 Castes and Tribes on the basis of reservation permitted by the carry forward rule. This comes to about 64.4% of reservation. Such being the result of the operation of the carry for ward rule we must, on the basis of the decision in Balaji 's case hold that the rule is bad. (emphasis added) What is striking is that the Court did not take an academic view or make a notional evaluation but checked up to satisfy itself about the seriousness of the infraction of the right. On that footing, the petitioners have not demonstrated that in any particular year, virtually and in actual terms of promotion, there has been a substantial excess over 50% in favour of the SC&ST promotees. Mathematical calculations, departing from realities of the case, may startle us without justification, the apprehension being misplaced. All that we need say is that the Railway Board shall take care to issue instructions to see that in no year shall SC&ST candidates be actually appointed to substantially more than 50% of the promotional posts. Some excess will not affect as mathematical precision is different in human affairs, but substantial excess will void the selection. Subject to this rider or condition that the 'carry forward ' rule shall not result, in any given year, in the selection or appointments of SC&ST candidates considerably in excess of 50%, we uphold Annexure I. Heated arguments about the hurt caused by Annexure 'J ' have been addressed to us. It deals with the 40 point roster and the posts allotted to the SC&ST allottees. Once the fundamental premises are accepted there is nothing unreasonable or wrong in Annexures 1 and 2 to Annexure J. It is significant that with a view to prevent total exclusion of others there is a provision that if there are only two vacancies in a given year, in more than one may be treated as reserved and if there is only one vacancy, it should be treated as unreserved. Implementation of reservations necessarily involves practical steps like evolving a roster system. Once the parameters of reservation are within the framework of the fundamental rights, minute scrutiny of every administrative measure and hunting for unconstitutionality is not permissible. Far more serious is the criticism of Annexure 'K ' on the basis of which reservations were introduced even to promotion posts filled by the 'seniority cum suitability ' rule. Some other relaxations and con cessions also are granted under it to SC/ST candidates. But the maximum mayhem inflicted by Annexure K is in the extension of the operation of promotional reservation to non selection posts. It was urged that Rangachari (supra) did not cover non selection posts and, there 243 fore, could not be an authority to sustain its validity. There is no force in this submission. The sting of the argument against reservation is that it promotes inefficiency in administration by choosing sub standards candidates in preference to those with better mettle. Competitive skill is more relevant in higher posts, especially those where selection is made by competitive examinations. Lesser classes of posts, where promotion is secured mechanically by virtue of seniority except where the candidate is unfit, do not require a high degree of skill as in the case of selection posts. (See 1968 1 SCR p. 721 at 734). It is obvious that as between selection and non selection posts the role of merit is functionally more ` relevant in the former than in the latter. And if in Rangachari reservation has been held valid in the case of selection posts, such reservation in non selection posts is an afortiori case. If, in selecting top officers you may reserve posts for SC/ST with lesser merit, how can you rationally argue that for the posts of peons or lower division clerks reservation will spell calamity ? The part that efficiency plays is far more in the case of higher posts than in the appointments to the lower posts. On this approach Annexure K is beyond reproach. One may easily sympathise with holders of non selection posts. They are many in number in the lower stations of life. They are economically backward and burdened with the drudgery of life. That is why there is a ballyhoo raised by a larger number of people when some categories in far more distressing social situations enter the arena with preferential treatment. Looking at the problem from the point of view of law and logic and the constitutional justification under article 16(4) for reservation in favour of the panchama proletariat there is nothing to strike down in Annexure K. As between the socially, even economically depressed and the economically backward, the Constitution has emphatically cast its preference for the former. Who are we, as Judges to question the wisdom of provisions made by Government within the parameters of article 16(4)? The answer is obvious that the writ of the court cannot quash what is not contrary to the Constitution however tearful the consequences for those who may be adversely affected. The progressive trend must, of course, be to classify on the have not basis but the SC/ST, category is, generally speaking, not only deplorably poor but also humiliatingly pariah in their lot. Maybe, some of the forward lines of the backward classes have the best of both the words and their electoral muscle qua caste scares away even radical parties from talking secularism to them. We are not concerned with that II dubious brand. In the long run, the recipe for backwardness is not creating a vested interest in backward castes but liquidation of handi 244 caps, social economic, by constructive projects. All this is in another street and we need not walk that way now. Trite arguments about efficiency and inefficiency are a trifle phoney because, after all, at the higher levels the harijan/girijan appointees are a microscopic percentage and even in the case of Classes III and II posts they are negligible. The preponderant majority coming from the well reserved communities are presumably efficient and the dilution of efficiency caused by the minimal induction of a small percentage of 'reserved ' candidates cannot affect the over all administrative efficiency significantly. Indeed, it will be gross exaggeration to visualise a collapse of the Administration because 5 to 10% of the total number of officials in the various classes happen to be sub standard. Moreover, care has been taken to give in service training and coaching to correct the deficiency. It is fashionable to say and there is, perhaps, some truth in it that from generation to generation there is a deterioration in efficiency in all walks of life from politics to pedagogy to officialdom and other professions. Nevertheless, the world has been going forward and only parties whose personal interest is affected forecast a doom on account of progressive deficiency in efficiency. We are not impressed with the misfortune predicted about governmental personnel being manned by morons merely because a sprinkling of harijans/girijans happen to find their way into the Services. Their apathy and backwardness are such that in spite of these favourable provisions, the unfortunates have neither the awareness nor qualified members to take their rightful place in the Administration of the country. The malady of modern India lies elsewhere, and the merit mongers are greater risks in many respects than the naive tribals and the slightly better off low castes. Nor does the specious plea that because a few harijans are better off, therefore, the bulk at the bottom deserves no jack up provisions merit scrutiny. A swallow does not make a summer. Maybe, the State may, when social conditions warrant, justifiably restrict harijan benefits to the harijans among the harijans and forbid the higher harijans from robbing the lowlier brethren We have adverted to Annexure M earlier in this judgment which shows the determination of Government to impart in service training to those SC&ST candidates who are found to be below par. Even temporary promotions on an ad hoc basis are limited to six months only to give training and experience than the spoil permanently the efficiency of the system. The Annexure has come under attack because the reservation quota has been raised thereby from 50 to 66 2/3%. We have earlier dis 245 cussed this aspect and pointed out that what is important is not so much the figures mentioned on paper but the facts and circumstances in real life. We have also entered a caveat that in any particular year there shall not, as a fact, be a substantial increase upon 50% of induction of 'reserved ' candidates. It is true that Shri Venugopal, counsel for some of the petitioners tried to demonstrate that on account of reservation percentages coupled with the carry forward rule it is perfectly within the realm of possibility that in some years a monopoly may be conferred on the SC&ST candidates for certain categories or classes of posts. The mystic "maybe" do not scare us. The actual "must be" will alert us. The Constitution deals with social realities, not speculative possibilities. I have limited the physical operation of reservation in any particular year in such a manner that there will be a real opportunity for the exercise of the right under article 16(1) for every candidate of the unreserved communities. Certain minor attacks such as that a candidate of the SC&ST communities who has failed may still be tried if other successful candidates from those communities are not forthcoming. This may seem strange disbelief in examinations as measure of merit. But to read stray provisions in isolation may be unfair to the scheme. Look at the desperate State in which Government is trying to give fair representation to harijans/girijans in Administration. These miserables suppressed by centuries of trampling are still slumbering despite inducements to awaken. It is a genetic calumny and unscientific assertion to castigate the SC&ST communities as possessed of less intellectual potential what with Valmiki and Vyasa to Baba Sahib Ambedkar. The darkening and be numbing environment of ages in which shudras and panchamas have suffered their mental powers to be chained accounts for their seeming, retardation. Once brighter atmosphere and better opportunity enliven their talent their contribution to the Indian treasury will raise the human resources and democratic status of Bharat. A democracy of talent is an inarticulate major premise of our culture. The fundamental question arises as to what is "merit" and "suitability". Elitists whose sympathies with the masses have dried up are, from the standards of the Indian people, least suitable to run Government and least meritorious to handle state business, if we envision a Service State in which the millions are the consumers. A sensitized heart and a vibrant head, tuned to the tears of the people, will speedily quicken the developmental needs of the country, including its rural stretches and slum squalour. Sincere dedication and intellectual integrity these are some of the major components of "merit" and "suitability" not degrees from Oxford or Cambridge, Harvard or Stanford or simian, though Indian, 246 institutions. Unfortunately, the very orientation of our selection process is distorted and those like the candidates from the SC&ST who, from their birth, have had a traumatic understanding of the conditions of agrestic India have, in one sense, more capability than those who have lived under affluent circumstances and are calIous to the human lot of the sorrowing masses. Moreover, our examination system makes memory the master of 'merit ' and banishes creativity into exile. We need not enter these areas where a fundamental transformation and a radical re orientation even in the assessment of the qualities needed by the personnel in the Administration and the socialist values to be possessed by the echelons in office is a consummation devoutly to be wished. This may have to be subjected to a national debate. The colonial hangover still clings to our selection processes with superstitious tenacity and narrower concepts of efficiency and merit are readily evolved to push out Gandhis and J.Ps, Ambedkars and Nehrus, to mention but a few who knew the heart beats of the people. I diva gate and make these observations only to debunk the exaggerated argument about harijans and girijans being sub standard. We may put aside this angle of vision and approach the problem traditionally because every new idea has resistance to encounter before acceptance, every original thought has been branded a hearsay. Be that as it may, the constitutional merits of the various Board Circulars now discussed do not warrant their judicial 'execution ' subject to certain cautionary limitations already indicated. The argument that there are rich and influential harijans who rob all the privileges leaving the serf level sufferers as suppressed as ever. The Administration may well innovate and classify to weed out the creamy layer of SC&ST but the court cannot force the State in that behalf. For a comparative thought we may glance at Polyviou 's 'The Equal protection of the laws ': ( ') "A third argument traditionally employed against the use of preferential discrimination is that affirmative measures of the kind discussed here may significantly curtail efficiency. It does indeed stand to reason that the immediate result of benignity in admission and selection process will almost certainly be the selection of those who are not as competent or as able as some of those left out. 'Special admission programmes, almost by definition, operate to in sure that students are placed in schools for which they are (1) The equal protection of the laws by G. Polyviou p. 360. 247 not qualified ! The same objection applies with equal, if not more, force to the area of employment and elsewhere. One possible answer is that the importance of efficiency must be compared with and ultimately set against the significance of integration or the prevention of discrimination, and that integration and the rectification of socially harmful deprivation are the more pressing needs. Or one can fall back on the very different arguments that traditional admission processes are unfair because these are geared to the usual type of applicant and that preferential treatment after all only seeks to counteract such inherent bias. There is a human problem behind these writ petitions which we clearly appreciate. Most of the Classes II, III and IV employees are economically backward and struggle for survival what with price spirals and other tribulations. They hope, after years of yeomen service, to get some promotion and augment their poor resources in the afternoon of their life. Then they find another class, with which the Constitution shows ultra sympathy, elbowing them out, not on a massive scale, but minimally. Even this marginal push hurts these species living at subsistence level and so they scream. The economically backward and the socio economically backward truly belong to the 'have not ' camp and must jointly act to bring about a transformation of the economic order by putting sufficient pressure and make article 38 a living reality. Estrangement between the two categories weakens the militancy of a joint operation to inject social justice in the current economic order. The truth is that the employment market is distressingly a musical chair business and when starvation faces men their sympathy for their far weaker brethren vanishes. The true solution for the country 's problems, as reflected in these writ petitions, is in developmental expansion involving the millions, rather than denial to the weakest sector of Indian life the morsel to which it is justly entitled. Even Administration will do well to remember that Indian despair, after infinite patience, may augur danger unless 'the sorry scheme of things entire ' is remoulded nearer to article 38. Even these observations are made only to emphasise that the legal content of the contentions put forward by the petitioners is less than presentable although their economic grievance may be agonisingly genuine. The Court has its limitations unlike the Administration and can give justice only under the Constitution and not over it. The human pressure behind these writ petitions is the chronic drought of employment opportunities despite talent enough to make 248 deserts bloom. So long as this scarcity persists and power goes with office, the jaundiced politics of snatching the jobs going, initially or at promotion level, by hook or crook, is the only 'development ' that takes place, whatever the National Plans proclaim. The vast human potential of the harijans and girijans, on fifth of the Indian people, goes to thistles and every communal effort to twist the politics of power for promoting chances of getting jobs becomes inevitable caste being a deeprooted pathology in our country. Thus jobbery, politics, casteism and elections make an unholy, though invisible, alliance against national development which alone can liberate Indians from social and economic privation. If democracy itself thus plays into the hands of hostile forces, the jurisprudence of keeping the backward as backward and perpetuation of discrimination as a vested caste right may prevail as a rule of life. The remedy of 'reservations ' to correct inherited imbalances must not be an overkill. Backward classes, outside the Scheduled Castes and Tribes, cannot bypass article 16(2) save where very substantial cultural and economic disparity stares at society. The dubious obsession with 'backwardness ' and the politicking with castes labelled backward classes may, on an appropriate occasion, demand judicial examination. The politics of power cannot sabotage the principles of one man, one value. No sociological explanation for the flood of ruinous writ petitions regarding service conditions can be found except on this basis. Behind the writ petitions we deal with now is caste clamour to keep all the jobs safe from being 'robbed ' by 'reserved ' communities. It is forward caste versus backward caste, wearing the casteless caste marks! And the political process is likewise caste polluted Gunnar Myrdal writes in his Asian Drama: ( ' ) The type of appeal that can be made by politicians has also changed greatly since the liberation movement. They can no longer put the blame for poverty and stagnation on colonial masters, but must explain why there is not great progress now that India is independent Thus a key to the understanding of the power of the political bosses is the inherited social stratification of India and, above all, its caste system. At election times the caste groups function as political vote banks whereby the ballots of their members are joined to the candidate with a party label. For this reason alone the local political bosses have a vested interest in preserving the social and economic status quo and exploiting it as a matrix for political action. (1) Gunnar Myrdal, Asian Drama, Vol. I, pp. 249 M. N. Srinivas, the noted sociologist is more than right (1) A One cannot help wondering whether the drive to political maturity is, after all, a good thing in a country which has still not had a proper social revolution. It may well result in premature old age. We need now, not stagnation wearing the mask of stability and scrambling acrimoniously over the same shrunken cake, but progress by the constructive process of explosive rural development and exploitation of the untapped human potential of the Scheduled Castes and Scheduled Tribes. Sterile 'reservations ' will not help us go ahead unless, alongside of it, we have heroic national involvement of the masses in actual action, not paper logged plan exercises. In the last analysis, privation can be banished only by production, discontent by distributive justice and litigation by socially relevant Justice. The writ petitions are, regrettably, negative, although the driving force of penury deserves sympathy. This, perhaps, is a materialist interpretation of 'service litigation ' and a trim foot note to these writ petitions. D Before I conclude, I must strike a futuristic note. Excellence and equality may cooperating fruitfully and need not compete destructively. Ultimately harijan/girijan militancy must find fulfillment in effective main streaming and creative contribution. While they have miles to go, they have promises to keep. The poignant words of the Reverend Jesse Jackson come to my mind (1) "I don 't see how, we can survive as a people if we don 't have a great push for excellence now. A lot of what we 've done in the past will be in vain if we don 't. We can make one of the most valid contributions to Western civilization, even more of a contribution than slavery. Because slavery was our great contribution against our will. Now it 's time for us to make a great contribution as an act of will. " Given the opportunity and the environment, the Indian dalits can make India great and give up crutches. The writ petitions as well as the Special Leave Petitions cannot but be dismissed. PATHAK, J. My brothers Krishna Iyer and Chinnappa Reddy are agreed that the writ petitions should be dismissed. They have held against the petitioners on the several contentions raised in the (1) M. N. Srinivas, "Changing Attitudes in India Today" Yogana, October I 1961, p. 26. 250 case. With respect, I find myself unable to agree with all that they have said. I intend to confine myself here to certain aspects of the case which appear to possess a fundamental importance. Three provisions of the Constitution relate to reservations for Scheduled Castes and Scheduled Tribes. They are article 46, article 16(4) and article 335. The three form a single frame of reference. article 46, a Directive Principle of State Policy, proclaims the principle that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. One of the modes in which the economic interests of the Scheduled Castes and Scheduled Tribes can be promoted is the reservation of appointments or posts in their favour in services under the State where they are not adequately represented. article 16(4) declares that when the State intends to make such provision nothing in article 16 shall prevent it from doing so. The equality of opportunity guaranteed to all citizens in matters relating to employment or appointment to any office under the State will not restrain the State from making such reservation. It is now well accepted that the "equality provisions of Part III of the Constitution constitute a single code, illustrating the multi faceted character of the central concept of equality. article 16(4) also is one facet. It enables a backward class of citizens, by the process of reservation in Government service, to move along the road to ultimate equality with the more advanced classes. It is part of the process of equalization. Then follows article 335. It provides that the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the making of appointments to services and posts in connection with the affairs of the Union or a State, but and this is imperative such consideration must be consistent with the maintenance of efficiency of administration. The paramount need is to maintain the efficiency of administration. That is dictated by the common good. It embraces the need of all, the national good, and not of a mere section of the people. To its primacy all else is subordinate. Therefore, whatever is done in considering the claims of the Scheduled Castes and Scheduled Tribes must be consistent with that supreme need, the maintenance of efficiency of administration. article 335, it must be clearly stated, does not contain a positive principle, the advancement of Scheduled Castes and Scheduled Tribes, and a negative principle, the maintenance of efficiency of administration. This analysis of the article does not 251 truly comprehend its contents. It contains a single principle, the A advancement of Scheduled Castes and Scheduled Tribes, but through modes and avenues which must not detract from the maintenance of an efficient administration. That limitation is imposed as a clear and positive condition. A generally acknowledged and long established principle for securing an efficient administration is throwing open the doors to general recruitment, either directly or by promotion, where the governing criterion is excellence and the emphasis is solely on quality. I he net of selection is spread far and wide, and the competitive best are collected, regardless of religion, race, caste, sex, descent, place of birth or residence. However, a quota of the posts may be reserved in favour of a backward class of citizens, but the interests of an efficient administration require that at least half the total number of posts be kept open to attract the best of the nation`s talent and not more than half be made the sum of reserved quotas. If it was otherwise, an excess of reserved quotaas would convert the State service into a collective membership predominantly of backward classes. This, it is evident, will be inconsistent with the all important goal of maintaining the efficiency of administration. In considering the proportion of reserved quotas in the context of college admissions, this ( 'court laid down in M. R. Balaji vs State of Mysore( ') that broadly a special provision providing for reservation should be less than 50%, .and how much less than 50% would depend upon the relevant prevailing circumstances in each case. And, in this connection, Gajendragadkar, J. (as he then was) speaking for the Court, observed: " . when the State makes a special provision for the advancement of the weaker sections of society specified in article 15(4), it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations." (Emphasis supplied) The Court struck down the reservation of 68% as constitutionally Invalid. (1) [1963] Supp. 1 S.C.R. 439. 252 The principle that reserved quotas should not together exceed 50% of the vacancies available in a year was affirmed by this Court, by a majority of four learned judges to one, in T. Devadasan vs Union of India,( ') as the reason for striking down a "carry forward" rule which, for promotions in the Central Secretariat Service, permitted a carry forward for two successive years of the annual reserved quota. It was found in that case that observance of the rule had resulted in 65%, of the vacancies of the year being filled by reserved quotas, current and carried forward. The "carry forward" rule was held constitutionally invalid on the basis that for the purpose of article 16(1) each year of recruitment had to be considered as a distinct unit for applying the 50% rule. Mudholkar, J., on behalf of the majority, said: "We would like to emphasize that the guarantee contained in article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities. " It seems to me that apart from the impact that an excessive reservation in a particular year is bound to have on the general community of citizens, there is the further far reaching significance this assumes in the context of article 335. The maintenance of efficiency of administration is bound to be adversely affected if general candidates of high merit are correspondingly excluded from recruitment because the large bulk of the vacancies, numbering anything over 50%, is allotted to the reserved quota. In view of a maximum age limit invariably prescribed, some of such meritorious candidates may be loss to the service altogether. Viewed in that light, a maximum of 50% for reserved quotas in their totality is a rule which appears fair and reasonable, just and equitable, and violation of which would contravene Art 335. (1) ; 253 It has been urged by the respondents that Devadasn (supra) is A no longer good law in view of the 7 Judge decision in State of Kerala v N. M. Thomas( '). It does appear from some of the individual Judgments delivered in the latter case that although Devadas (supra) has not been expressly overruled by a majority of the Bench there are observations by the majority of Judges which throw doubt on the validity of the principle enunciated by it and ultimately the Court has upheld the promotion of 34 Scheduled Caste and Scheduled Tribe candidates among the total promotion of 51 candidates. It would seem then that there is an apparent conflict between Devadas (supra) and N. M. Thomas (supra). The validity of Rule 13AA of the Kerala State and Subordinate Service Rules, 1958 was questioned in N. M. Thomas (supra). That Rule permitted the exemption of Scheduled Caste and Scheduled Tribe members from passing the promotion tests for a specified period. That more than 50% of the promotions went to the Scheduled Caste and Scheduled Tribe candidates was a consequence of the operation of Rule 13AA. It is doubtful whether the petitioners ' challenge to the "carry forward" rule can avoid what has been said in N. M. Thomas (supra) and, therefore, a conclusion in their favour does not seem possible in this case. As the position is not clear, and in any event as my learned brothers have taken a definite view in favour of the "carry forward" rule, I have confined myself to expressing these observations. The petitioners have challenged other provisions prescribed in favour of members of the Scheduled Castes and Scheduled Tribes and have attempted to support their submissions by reference to data purporting to prove that those measures have resulted in reverse discrimination and are also inconsistent with the maintenance of efficiency of administration. We have been taken through charts and statistics among other documentary material but the material placed before us does not clearly and definitely establish what it seeks to prove. In the circumstances, it is not possible to record a finding in favour of the petitioners on those points. G Accordingly, the writ petitions are dismissed but without any order as to costs. CHINNAPPA REDDY J. In the name of Equality (of opportunity), we are asked to deny Equality (of opportunity), in these Writ Petitions. That we cannot do and that we will not do. If we do that we will be subverting the spirit and the sense of the Constitution. The (1) ; 254 petitioners claim that their Fundamental Right to Equality of Opportunity in the matter of public employment, guaranteed by article 16(1) of the Constitution has been flouted by a series of orders and circulars issued by the Railway Board reserving posts at several levels and making various concessions in favour of members of the Scheduled Castes and the Scheduled Tribes. This has been done, it is claimed, at the cost of efficiency, though forbidden by article 335 of the Constitution. The plain answer of the respondents is that everyone of the orders and circulars has the backing of article 16(1), 16(4) and other special provisions of the Constitution and that the alarm of inefficiency is nothing but a bogey. My brother Krishna Iyer, J. has considered the questions raised in his own characteristic, scintillating way and in some depth. Though respect for my brother would ordinarily prevent me from venturing to write a separate opinion, specially when I agree whole heatedly with his conclusions and the, route traversed by him, I propose to make, in this case, certain general observations because I expect the same questions to be raised repeatedly in different situations and in different forms and it is just as well that I project my own prosaic and pedestrian point of view, without going into the detail or depth already explored by my brother. The class of people known compendiously as 'the Scheduled Castes ', recognized and described as such in the Constitution of India have been treated as 'casteless ' outcastes and untouchables and have been oppressed and subjected to every manner of depravation and discrimination for centuries upon centuries by a unique system of social and economic segregation, a system of "graded inequality" (Dr. B.R. Ambedkar), of "gradation and degradation" (Dr. C.R. Reddy) and of "gigantic cold blooded repression" ( Rabindranath Tagore). And for centuries they were even prevented from protesting their plight. Nor was any attempt made by the superior and elitist classes to know anything about them. All that a Scheduled Caste parent could do was to lament: "Hush, my child; don 't cry, my treasure; Weeping is in vain, For the enemy will never Understand our pain. For the ocean has its limits Prisons have their walls around But our suffering and our torment have no limit and no bound. " Then, in 1950, came the Constitution rousing expectations, raising hopes, making promises and generally heralding a new, a bitter and 255 a more decent life for the underprivileged and the oppressed people of India. While the preamble to the Constitution proclaims the resolution of the people to constitute India into a Sovereign (also. 'Socialist, Secular ', Since the 42nd Amendment) Democratic Republic and to secure to all its citizens, "Justice, Social, economic and political" and "Equality of Status and opportunity" and to promote 'Fraternity, assuring the dignity of the individual", while the Right to Equality before the Law (article 14) and Equality of Opportunity n the matter of public employment (article 16) are guaranteed as Fundamental Rights and while the State is enjoyed by the Directive Principles of State Policy to promote the welfare of the p people by securing a social order in which justice, social, economic and political shall inform all the institutions of the national life article 38(1), to endeavour to eliminate inequalities in status, facilities and opportunities article 38 (2), and, to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good article 39(b) and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment article 39(c), pursuant to the very preamble and the provisions of the Constitution, special provisions have been made. in particular, for the protection and advancement of the Scheduled Castes and the Scheduled Tribes in recognition of their existing, low social and economic status and the consequent inability and failure on their part to avail themselves of any opportunity for self advancement. It is recognized that the failure of the State to create a climatic situation and provide the necessary impetus for the increasing participation of the members of the Scheduled Castes and the Scheduled Tribes in the public services would tentamount to a denial to them of equal opportunity in the matter of public employment. article 335 which is included in part XVI of the Constitution dealing with 'special provisions relating to certain classes ' expressly provides: "The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs to the Union or of a State. " article 46, one of the Directive Principles of State Policy, enjoins: "The State shall promote with special care the educational and economic interest of the weaker sections of the 256 people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social in justice and all forms of exploitation. " i article 16 (1) and 16 (4) which guarantee equality of opportunity in matters of public employment read as follows: "16 (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State." "16 (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State is not adequately represent in the services under the State " article 16 (2) which bars discrimination on certain rounds is as follows: "16 (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. " Now, it has been said, very rightly, a Constitutional instrument is sui generis and, obviously and necessarily, its interpretation cannot always run on the same lines as the interpretation of statutes made in exercise of the powers conferred by it. A constitution, like ours, born of an anti imperialist struggle, influenced by Constitutional instruments, events and r evolutions elsewhere, in search of a better world and wedded to the idea of justice, economic, social and political, to all, must receive a generous interpretation so as to give all its citizens the full measure of justice so proclaimed instead of 'the austerity of tabulated legalism '(1). And so, when the Constitutional instrument to be expounded is a constitution like the Indian Constitution, the expositors are to concern themselves not with words and mere words only, but, as much, with the philosophy or what we may call 'the spirit and the sense ' of the Constitution. Here we do not have to venture upon a voyage of discovery to find the spirit and the sense of the Constitution; we do not have to look to any extraneous sources for inspiration and guidance; they may be sought and found in the Preamble to the Constitution, in the Directive Principles of State Policy, and other such provisions. See Minister of Home Affairs : ; 257 Because Fundamental Rights are justiciable and Directive Principles are not, it was assumed, in the beginning, that Fundamental Rights held a superior position under the Constitution than the Directive Principles, and that the latter were only of secondary importance as compared with the Fundamental Rights. That way of thinking is of the past and has become obsolete. It is now universally recognised that the difference between the Fundamental Rights and Directive Principles lies in this that Fundamental Rights are primarily aimed at assuring political freedom to the citizens by protecting them against excessive State action while the Directive Principles are aimed at securing social and economic freedoms by appropriate, State action. The Fundamental Rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they arc of no value unless they can be enforced by resort to Courts. So they are made justiciable. But, it is also evident that notwithstanding their great importance, the Directive Principles cannot in the very nature of things be enforced in a Court of law. It is unimaginable that any Court can compel a legislature to make a law If the Court can compel Parliament to make laws then Parliamentary democracy would soon be reduced to an oligarchy of Judges. It is in that sense that the Constitution says that the Directive Principles shall not be enforceable by Courts. It does not mean that Directive Principles are less important than Fundamental Rights or that they are not binding on the various organs of the State. article 37 of the Constitution emphatically states that Directive Principles are 'nevertheless Fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It follows that it becomes the duty of the Court to apply the Directive Principles in interpreting the Constitution and the laws. The Directive Principles should serve the Courts as a code of interpretation. Fundamental Rights should thus be interpreted in the light of the Directive Principles and the later should, whenever and wherever possible, be read into the former. Every law attacked on the ground of infringement of a Fundamental Right should, among other considerations, be examined to find out if the law does not advance one or other of the Directive Principles or if it is not in discharge of some of the undoubted obligations of the State, constitutional or otherwise, towards its citizens or sections of its citizens, flowing out of the preamble. the Directive Principles and other provisions of the Constitution. So, we have it that the Constitutional goal is the establishment of a Socialist Democracy which Justice, economic, social and political 258 is secure and all men are equal and have equal opportunity. Inequality, whether of status, facility or opportunity, is to end, privilege is to cease and exploitation is to go. The under privileged, the deprived and the exploited are to be protected and nourished so as to take their place in an egalitarian society. State action is to be towards those ends. It is in this context that article 16 has to be interpreted when State action is questioned as contravening article 16. Let us now take a look at article 16(1) and Art 16(4). article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. To the class of citizens who are economically and socially backward this guarantee will be no more than mere wishful thinking, and mere 'vanity. wind and confusion", if it is not translated into reality by necessary state action to protect and nurture such class of citizens so as to enable them to shake off the heart crushing burden of thousand years ' deprivation from their shoulders and to claim a fair proportion of participation in the Administration. Reservation of posts and all other measures designed to promote the participation of The Scheduled Castes and the Scheduled Tribes in the Public Services at all levels are in our opinion necessary consequences flowing fro the Fundamental Right guaranteed by article 16(1)S This very idea is emphasised further by article 16(4). article 16(4) is not in the nature of an exception to article 16(1). It is a facet of article 16(1) which fosters and furthers the idea of equality of opportunity with special reference to an under privileged and deprived class of citizens to when egalite de droit (formal or legal equality) is not egalite de fait (practical or factual equality). It is illustrative of what the State must do to wipe out the distinction between egalite de droit and egalite de fait. It recognises that the right to equality of opportunity includes the right of the underprivileged to conditions comparable to or compensatory of those enjoyed by the privileged. Equality of opportunity must be such as to yield 'Equality of Results ' and not that which simply enables people, socially and economically better placed, to win against the less fortunate, even when the competition is itself otherwise equitable. John Rawls in 'A Theory of Justice ' demands the priority of equality in a distributive sense and the setting up of the Social System "so that no one gains or loses from his arbitrary place in the distribution of natural assets or his own initial position in society without giving or receiving compensatory advantages in return". His basic principle of social justice is: "All social primary goods liberty and opportunity, income and wealth, and the bases of self respect are to be distributed equally unless an unequal distribution of any or all these goods is to the advantage of the least 259 favoured". One of the essential elements of his conception of social A justice is what he calls the principle of redress: "This is the principle that undeserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities are somehow to be compensated for". Society must, therefore, treat more favourably those with fewer native assets and those born into less favourable social positions. If the statement that 'Equality of opportunity must yield Equality of Results ' and if the fulfillment of Articles 16(1) in article 16(4) ever needed a philosophical foundation it is furnished by Rawls ' Theory of Justice and the Redress Principle. The interpretation of articles 16(1) and 16(4) came up for consideration in several cases before this Court. Perhaps the most important of them is State of Kerala & Anv. vs N. M. Thomas & Ors.,(1) which was decided by a Bench of seven Judges. The question was whether a certain rule which gave a longer period of exemption to members belonging to Scheduled Castes and Scheduled Tribes than to others from passing certain departmental tests in order to be eligible for promotion from the Post of Lower Division Clerk to that of Upper Division Clerk was not violative of article 16(1) of the Constitution. The Court by a majority of five to two upheld the rule as valid. Ray, C. J., observed: "The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration. Article 16(2) rules out some basis of classification including race, caste, descent, place of birth etc. Article 16(4) clarifies and explains that classification on the basis of backwardness does not fall within Article 16(2) and is legitimate for the purposes of Article 16(1). If preference shall be given to a particular under represented community other than a backward class or under represented State in an All India Service such a rule will contravene Article 16(2). A similar rule giving preference to an under represented backward community is valid and will not contravene articles 14, 16(1) and 16(2). Article 16(4) removes any doubt in this respect". (I) ; @930 933. 260 "The classification of employees belonging to Scheduled Castes and Scheduled Tribes for allowing them an extended period of two years for passing the special tests for promotion is a just and reasonable classification having rational nexus to the object of providing equal opportunity for all citizens in matters relating to employment or appointment to public office. " xx xx xx "The Constitution makes a classification of Scheduled Castes and Scheduled Tribes in numerous provisions and gives a mandate to the State to accord special or favoured treatment to them." xx xx xx "Article 335 of the Constitution states that claims of members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the making of appointments to the services and posts in connection with affairs of the State consistent with the maintenance of efficiency of administration. The impugned rule and the impugned orders are related to this constitutional mandate." "Our constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members Or backward classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and Tribes, who are said by this Court to be backward classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Articles 15 (4) and 16(4) bring out the position of backward classes to merit equality Special provisions are made for the advancement of backward classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept of equality is equality of opportunity for appointment. Preferential treatment for members of backward classes with due regard to administrative efficiency alone, can mean equality of opportunity for all citizens. Equality under 261 Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having n nexus to the constitutionally permissible object. Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality". xx xx xx xx "All legitimate methods are available for equality of opportunity in service under Article 16(1). Article 16(1) is affirmative whereas Article 14 is negative in language. Article 16(4) indicates one of the methods of achieving equality embodied in Article 16(1)". Equally illuminating observations were made by Mathew, J., Beg. , J., Krishna Iyer, J., and Fazal Ali, J., in their separate concurring opinions but I do not propose to extract them in the interest of space. It is enough to mention that all five learned judges who constituted the majority were emphatic in repudiating the theory (propounded in earlier cases) that article 16(4) was in the nature of an exception to article 16(1). All were agreed that article 16(4) was a facet, an illustration or a method of application of article 16(1). So, it is now no longer necessary to apologetically explain laws aimed at achieving equality as permissible exceptions; it can now be boldly claimed that such laws are necessary incidents of equality. It all began with The General Manager), Southern Railway vs Rangachari(1). Two circulars issued by the Railway Board reserving selection (promotional) posts in Class III of the Railway Service in favour of the members of the Scheduled Castes and the Scheduled Tribes, were questioned in that case as offending article 16. It was contended that article 16(4) applied only to reservation of posts at the stage of initial appointment and not to promotional posts. The contention was rejected and it was held that article 16(4) applied at the stage of initial appointment as well as at the stage of promotion by selection. It was in the case that observations were made to the (1) ; 262 effect that article 16(4) was in the nature of an exception to article 16(1), but, as we have seen such a view is no longer tenable in view of State of Kerala & Anr. vs N. M. Thomas & Ors. (supra). Much of the argument of the learned counsel for the petitioners was anchored to, T. Devodasan vs Union of India(z & Anr.(1) 17 1/2% of vacancies in an establishment were reserved for members of the scheduled Castes and Scheduled Tribes. Alongside the reservation rule, there operated what is known as "the carry forward rule" familiar to all Govt. employees and those connected with 'service problems '. The carry forward rule so operated in the particular case that out of 45 appointments made by the Government 29 were from among the candidates belonging to the Scheduled Castes and Scheduled Tribes. In other words the reservation Came to 65% which was far in excess of the 177% originally contemplated by the Reservation rule. In those circumstances, a Constitution Bench of this Court (Subba Rao, J. dissenting) declared the carry forward rule bad. The Court did not strike down the carry forward rule on the ground that it was inherently vicious or on the hypothetical consideration that it was bound to lead to vicious results in the future if permitted to operate without inhibition. The learned judges indicated that the repercussions of such a rule would have to be watched from year to year. Another case upon which the petitioners placed reliance was M. R. Balaji & Ors. vs State, of Mysore(2). In that case the percent age of seats reserved in the Engineering and Medical colleges for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes came to 68% leaving only 32% of the seats for the merit pool. The Court held that generally and broadly reservation should not exceed 50%. The actual percentage was to depend upon the relevant prevailing circumstances in each case. As the reservation in that case for exceeded what was generally and broadly permissible, the reservation was held to be bad. There again the Court was concerned directly with the immediate, actual, practical result of the Reservation rule. In A. Peeriakaruppan, etc. Y. State of Tamil Nadu & Ors. ,(3) reservation of 41% of the seat in medical college in the State of (1) ; (2) [1963] Suppl. I SCR 439. (3) [1971] 2 SCR 430 @ 441 442. 263 Tamil Nadu for students coming from socially and educationally back ward classes was upheld. Hegde, J., observed (at p. 441 442): "There is no basis for the contention that the reservation made for backward classes is excessive. We were not told why it is excessive. Undoubtedly we should not forget that it is against the immediate interest of the Nation to exclude from the portals of our medical colleges qualified and competent students but then the immediate advantages of the Nation have to be harmonised with its long range interests. It cannot be denied that unaided many sections of the people in this country cannot compete with the advanced sections of the Nation. Advantages secured due to historical reasons should not be considered as fundamental mental rights. Nation 's interest will be best served taking a long range view if the backward classes are helped to march forward and take their place in line with the advanced sections of the people. That is why in Balaqi 's case [1931] Suppl 1 SCR (439), this Court held that the total of reservations for backward classes, scheduled castes and scheduled tribes should not ordinarily exceed 50% of the available seats. In the present case it is 41%. On the material before us we are unable to hold that the said reservation is excessive". In State of Punjab vs Hiralal & Ors. ,(l) a rule reserving the first out of every ten vacancies to a member of the Scheduled Castes and Scheduled Tribes and providing for 'carry forward ' of the vacancy if suitable candidate was not available was struck down by the High Court by visualising various hypothetical cases which could lead to anomalous situations in which a person getting the benefit of reservation may jump over the heads of several of his seniors not only in his own grade but even in higher grades. This Court reversed the decision of the High Court observing: "The extent of reservation to be made is primarily a matter for the State to decide. By this we do not mean to say that the decision of the State is not open to judicial re view. The reservation must be only for the purpose of giving adequate representation in the service to the Scheduled Castes, Scheduled Tribes and Backward Classes". xx xx (1) ; @ 272, 273, 274. 264 "The mere fact that the reservation made may give extensive benefits to some of the persons who have the benefit of the reservation does not by itself make the reservation bad. The length of the leap to be provided depends upon the gap to be covered". xx xx xx xx "There was no material before the High Court and there is no material before us from which we can conclude that the impugned order is violative of article 16(1). Reservation of appointments under article 16(4) cannot be struck down on hypothetical grounds or on imaginary possibilities. He who assails the reservation under that article must satisfactorily establish that there has been a violation of article 16(1)". The report of the Commissioner for Scheduled Castes and Scheduled Tribes for 1977 78 and the 'Reports on the progress made in the intake of Scheduled castes and Scheduled Tribes against vacancies reserved for them in recruitment and promotion categories in the Rail ways ' for the half years ending March 31, 1974, March 31, 1975, September 30, 1976, March 31, 1977 and September 30, 1979 were placed before us. they reveal how painfully slow and woefully in significant has been progress achieved by the members of the Scheduled Castes and Scheduled Tribes in the matter of their participation in the Railway administration. My brother Krishna Iyer J has extracted some of the facts and figures. I do not think it is necessary for me to refer to them over again. It is sufficient to say that members of the Scheduled Castes and Scheduled Tribes far from acquiring any monopolistic or excessive representation over any category of posts (other than sweepers) are nowhere near being adequately represented. Neither the Reservation rule nor the 'carry forward for three years ' rule has resulted in any such 'disastrous ' consequences. The complaint of the petitioners that the circulars and orders had resulted in excessive representation of the Scheduled Castes and Scheduled Tribes is without foundation generally or with reference to any particular year. One of the contentions vehemently submitted by the learned counsel for the petitioners was that efficiency of administration would suffer and safety of the travelling public would consequently be jeopardised if reservations were made and promotions affected in the manner sought to be done by the Railway Board. This is claimed by the respondents to be no more than a bogey. In the counter affidavit filed on behalf of the Railway Board it has been pointed out that minimum standards arc insisted upon for every appointment 265 and in the case of candidates wanting in requisite standards, those h with the highest marks are given special intensive training to enable them to come up to the requisite standards. In the case of posts which involve the safety of movement of trains there is no relaxation of standards in favour of candidates belonging to Scheduled Castes and Scheduled Tribes and they are required to pass the same rigid tests as other candidates. Therefore, we see that when posts whether at the stage of initial appointment or at the state of promotion are reserved or other preferential treatment is accorded to members of the Scheduled Castes, Scheduled Tribes and other socially and economically backward classes, it is not a concession or privilege extended to them, it is in recognition of their undoubted Fundamental Right to Equality of Opportunity and in discharge of the Constitutional obligation imposed upon the state to secure to all its citizens 'Justice, social, economic and political ' and 'Equality to status and opportunity ', to assure 'the dignity of the individual ' among all citizens, to 'promote with special D. care the educational and economic interests of the weaker section of the people ', to ensure their participation on equal basis in the administration of the affairs of the country and generally to foster the ideal of a 'Sovereign, Socialist, Secular, Democratic Republic '. Every lawful method is permissible to secure the due representation of the Scheduled Castes and Scheduled Tribes in the public Services. There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of fifty percent. There is no rigidity about the fifty percent rule which is only a convenient guideline laid down by Judges. Every case must be decided with reference to the present practical results yielded by the application of the particular rule of preferential treatment and not with reference to hypothetical results which the application of the rule may yield in the future. Judged in the light of this discussion I am unable to find anything illegal or unconstitutional in any one of the impugned orders and circulars. Each order and circular has been individually discussed by my brother Krishna Iyer J with whose reasoning and conclusions I agree and to which I wish to add no more. PBR Petitions dismissed.

In so far as the initial recruitment and later promotion to classes II, III and IV are concerned, the Railway Administration provided for reservation of certain percentage of vacancies for candidates belonging to the Scheduled Castes and Scheduled Tribes. Since, despite the special provision the intake of these communities into the Railway Services continued to be negligible further concessions and relaxations were offered from time to time to members belonging to the Scheduled Castes and Scheduled Tribes. Even so, in many cases the vacancies reserved for them remained unfilled. Yet another step taken by the Railway Administration to keep open the reserved vacancies was to adopt a policy of "carry forward" of the unfilled reserved vacancies for at least three years. In obedience to the policy decision of the Ministry of Home Affairs, the Railway Board issued certain directives designed to protect and promote the interest of members of the Scheduled Castes and Scheduled Tribes in the matter of their employment in the Railway Administration. The policy directive of reserving certain percentage of posts in favour of these communities having not proved effective, the Railway Board altered the rules "with a view to securing increased representation of Scheduled Castes and Scheduled Tribes in the Railway Services" (Annexure D). The Railway Board authorised the recruiting bodies to slur over low places obtained by Scheduled Castes and Scheduled Tribes candidates except where it was found that the minimum standard necessary for the maintenance of efficiency of the administration had not been reached. The appointing authorities were directed to give additional training and coaching to the recruits so that they might come up to the standard of other recruits appointed alongwith them. Likewise where direct recruitment, otherwise than by examination, was provided for, the Railway Board directed the selection of Scheduled Castes and Scheduled Tribes candidates fulfilling a lower standard of suitability than from other communities, so long as the candidates had the prescribed minimum educational and technical qualifications and the appointing authorities were satisfied that the lowering of standards would not unduly affect the maintenance of efficiency of administration. In the case of selection posts the Railway Board decided that promotions from class IV to class III and from class III to class II were of the nature of direct recruitment and the prescribed quota of reservation for Scheduled Castes and Scheduled Tribes should be provided as in direct recruitment. This reser 186 vation was confined to 'selection posts '. In regard to filling of "general posts" in class III it was stated that they were in the nature of direct recruitment and the reservation for Scheduled Castes and Scheduled Tribes as applicable to direct recruitment should be applied. (Annexure F). In 1969 the Railway Board further revised their policy in regard to the reservation and other concessions to the Scheduled Castes and Scheduled Tribes candidates in posts filled by promotion (Annexure H). The circular stated that in promotion by selection from class III to class II, if a member of the Scheduled Castes and Scheduled Tribes was within the zone of eligibility the employee would be given one grading higher than the grading otherwise assignable to him on the basis of his record of service. In April, 1970 the percentage of vacancies to be reserved for Scheduled Castes and Scheduled Tribes was raised from 121/2% and 5% to 15% and 71/2% respectively (Annexure I). By the same order the "carry forward" rule was altered from 2 to 3 years. In 1973 the Railway Board issued a directive stating that the quota of 15% and 71/2% for Scheduled Castes and Scheduled Tribes may be provided promotion to the categories and posts in classes I, II, III and IV filled on the basis of the seniority cum suitability provided the element of direct recruitment to those grades does not exceed 50% (Annexure K). In August, 1974 the Railway Board further directed that if the requisite number of Scheduled Castes and Scheduled Tribes candidates were not available for being placed on the panel in spite of the various relaxations the best among them i.e. those who secure highest marks should be earmarked for being placed on the panel to the extent vacancies had been reserved in their favour. The Scheduled Castes and Scheduled Tribes candidates so earmarked might be promoted ad hoc for a period of six months against the vacancies reserved for them. During the period of six months the administration was asked to give them all facilities for improving their knowledge and for coming upto the requisite standard. The procedure was required to be applied in cases of promotion to the posts filled on the basis of seniority cum suitability (Annexure N). A further modification to the then existing rules was made by Annexure 'O ' which stated that "reservations in posts filled by promotion under the existing scheme would be applicable to all grades or services where the element of direct recruitment, if any, does not exceed 66 2/3% as against 50% as at present". It was contended on behalf of the petitioners that Scheduled Castes cannot be a favoured class in the public services because (i) they are "castes" and cannot claim preference qua castes unless specially saved by Article 16(4) which speaks of "class" and not "castes", (ii) that Article 16(4) could not apply to promotional levels and (iii) efficiency of administration envisaged by Article 335 had been jeopardised by the impugned circulars which fomented frustration among the civil services and produced inefficiency by placing men of lower efficiency and less experience in higher posts. 187 A preliminary objection was raised that since the first petitioner was an unrecognised union, it was not a "person aggrieved" and so its petition was unsustainable. Dismissing the petitions [Per majority Krishna Iyer and Chinnappa Reddy, JJ, Pathak J. concurring in the result with reservation on certain questions] There is nothing illegal or unconstitutional in the impugned orders. [Per Krishna Iyer, J] The argument that since the first petitioner was an unrecognized association the petition is not sustainable must be overruled because whether the petitioners belonged to a recognised union or not, the fact remains that a large body of persons with a common grievance exists and they approached this Court under Article 32. Our current processual jurisprudence is broad based and people oriented and envisions access to justice through "class actions", "public interest litigation" and "representative proceedings". The narrow concept of cause of action and person aggrieved and individual litigation is becoming obsolescent in some jurisdictions. [224 G H] The well settled position in law is that the State may classify, based upon substantial differentia, groups or classes and this process does not necessarily spell violation of Articles 14 to 16. Therefore, in the present case if the Scheduled Castes and Scheduled Tribes stand on a substantially different footing they may be classified groupwise and treated separately. [232 B C] The fundamental right of equality of opportunity has to be read as justifying the categorisation of Scheduled Castes and Scheduled Tribes separately for the purpose of "adequate representation" in the services under the State. The object is constitutionally sanctioned in terms as Article 16(4) and 46 specificate. The classification is just and reasonable. [233 G H] Apart from Article 16(1), Article 16(2) expressly forbids discrimination on the ground of caste and here the question arises as to whether the Scheduled Castes and Tribes are castes within the meaning of Article 16(2). Assuming that there is discrimination, Article 16(2) cannot be invoked unless it is predicated that the Scheduled Castes are "castes". There are sufficient indications in the Constitution to suggest that the Scheduled Castes are not mere castes. They may be something less or something more and the time badge is not the fact that the members belong to a caste but the circumstance that they belong to an indescribably backward human group. [234 A C] Articles 14 to 16 form a Code by themselves and contain a constitutional fundamental guarantee. The Directive Principles which are fundamental in the governance of the country enjoin upon the State the duty to apply that principle in making laws. Article 46 obligates the State the promote with special care the educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and the Scheduled Tribes. Article 46 read with Article 16(4) makes it clear that the exploited lot of the harijan groups in the past shall be extirpated with special care by the State. A C] 188 At the same time reservations under Article 16(4) and promotional strategies under Article 46 should not be used to imperil administrative efficiency in the name of concessions to backward classes. The positive accent of Article 335 is that the claims of these communities to equalisation of representation in services under the State shall be taken into consideration. The negative element of this Article is that measures taken by the State pursuant to the mandate of Articles 16(4), 46 and 335 shall be consistent with and not subversive of the maintenance of efficiency of administration. [211 D F] Under Article 341, Scheduled Castes become such only if the President specifies any castes, races or tribes or parts or groups within castes, races or tribes for the purpose of the Constitution. It is the socioeconomic backwardness of a social bracket that is decisive and not mere birth in a caste. [212 A] Annexure F relates only to selection posts and has been expressly upheld in Rangachari 's case. The quantum of reservation is not excessive; the field of eligibility is not too unreasonable; the operation of the reservation is limited to selection posts and no relaxation of qualifications is written into the circular except that candidates of the Scheduled Castes and Scheduled Tribes communities should be judged in a sympathetic manner. Moreover administrative efficiency is secure because there is a direction to give such staff additional training and coaching, to bring them upto the standard of others. [239 F G] There is no vice in giving one grade higher than is otherwise assignable to an employee. based on the record of his service rendering the promotional prospects unreasonable because this concession is confined to only 25% of the total number of vacancies in a particular grade or post filled in a year and there is no rampant vice of every harijan jumping over the heads of others. More importantly, this is only an administrative device of showing a concession or furtherance of prospects of selection. Even as under Articles 15(4) and 16(4) lesser marks are prescribed as sufficient for these communities or extra marks are added to give them an advantage, the regrading is one more method of boosting the chances of selection of these communities. The prescribed minimum qualification and standard of fitness are continued even for Scheduled Castes and Scheduled Tribes under Annexure H. [240 B D] Annexure I is unexceptionable since all that it does is to readjust the proportion of reservation in conformity with the latest census. [240 E F] Similarly "carry forward" raised from two years to three years cannot be struck down. There is no prospect, even if the vacancies are carried forward, of sufficient number of Scheduled Castes and Scheduled Tribes candidates turning out to fill them. Moreover, there is a provision that if a sufficient number of candidates from these communities are not found, applicants from the unreserved communities would be given appointment provisionally. After three years these vacancies cease to be reserved. [240 G A] Even in Devadasan 's case, this Court has laid down the proposition that under Article 16(4) reservation of a reasonable percentage of posts for member of the Scheduled Castes and Scheduled Tribes is within the competence of the State. What was struck down was that the reservations should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities. By this rule there is no danger of the total vacancies 189 being gobbled up by the harijan/girijan groups virtually obliterating Article 16(1). The problem of giving adequate representation to backward classes under Article 16(4) is a matter for the Government to consider, bearing in mind the need for a reasonable balance between the rival claims. [241 B F] Subject to the condition that the carry forward rule shall not result in any given year in the selection or appointment of Scheduled Castes and Scheduled Tribes candidates considerably in excess of 50%, the Annexure I is upheld. [242 E] There is nothing unreasonable or wrong in Annexure J. Once the parameters of reservation are within the framework of the fundamental rights, minute scrutiny of every administrative measure is not permissible. [242 F] Annexure K is beyond reproach. As between selection and non selection posts the role of merit is functionally more relevant in the former than in the latter. If in selecting top officers, posts could be reserved for Scheduled Castes and Scheduled Tribes with lesser merit it cannot rationally be argued that for the posts of peons, or lower division clerks reservation would spell calamity. The part that efficiency plays is far more in the case of higher posts than in the appointments to the lower posts. [243 D] Dilution of efficiency caused by the minimal induction of a small percentage of reserved candidates cannot affect the over all administrative efficiency significantly. Moreover, care has been taken to give in service training and coaching to correct the deficiencies. [244 B C] [Chinnappa Reddy, J concurring] The preamble to the Constitution of India proclaims the resolution of the people to secure to all its citizens justice, social, economic and political, equality of status and opportunity and to promote fraternity assuring the dignity of the individual. The right to equality before the law and equality of opportunity in the matter of public employment are guaranteed as fundamental rights. The State is enjoined upon by the Directive Principles to promote the welfare of the people, to endeavour to eliminate inequalities in status, facilities and opportunities and special provisions have been made, in particular, for the protection and advancement of the Scheduled Castes and Scheduled Tribes in recognition of their low social and economic status and their failure to avail themselves of any opportunity of self advancement. In short the constitutional goal is the establishment of a socialist democracy in which justice economic, social and political is secure and all men are equal and have equal opportunity. Inequality whether of status, facility or opportunity is to end, privilege is to cease and exploitation is to go. The under privileged, the deprived and the exploited are to be protected and nourished so as to take their place in an egalitarian society. State action is to be towards those ends. It is in this context that Article 16 has to be interpreted when State action is questioned as contravening Article 16. [255 A F] A Constitution, such as ours, must receive generous interpretation so as to give an its citizens the full measure of justice so proclaimed. While interpreting the Constitution the expositors must concern themselves not so much with words as with the spirit and sense of the Constitution which could be found in the Preamble the Directive Principles and other such provisions. [256 G] 190 At one time it was assumed that because the fundamental rights are enforce able in a court of law while Directive Principles are not, the former were superior to the latter, that way of thinking has become obsolete. The current thinking is that while Fundamental Rights are primarily aimed at assuring political freedom to the citizens against excessive State action, the Directive Principles are aimed at securing social and economic freedoms by appropriate State action. The Directive Principles are made unenforceable in a limited sense because no Court can compel a Legislature to make laws. But that does not mean that they are less important than Fundamental Rights or that they are not binding on the various organs of the State. They are all the same fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. The Directive Principles should serve the Courts as a Code of Interpretation. Every law attacked on the ground of infringement of Fundamental Right should be examined to see if the impugned law does not advance one or other of the Directive Principles or if it is not in the discharge of some of the undoubted obligations of the State towards its citizens flowing out of the Preamble, the Directive Principles and other provisions of the Constitution. [257 A G] Reservation of posts and all other measures designed to promote the participation of the Scheduled Castes and Scheduled Tribes in public services at all levels are a necessary consequence flowing from the Fundamental Rights guaranteed by Article 16(1). This very idea is emphasized further by Article 16(4) which is not in the nature of an exception to Article 16(1) but a facet of that Article. In the State of Kerala vs N.M. Thomas the court has repudiated the theory propounded in earlier cases that Article 16(4) is in the nature of an exception to Article 16(1). It is no longer correct to say that laws aimed at achieving equality as permissible exceptions. Such laws are necessary incidents of equality. [258 D F] Minister of Home Affairs vs Fisher [1979]3 All E.R. 21, State of Kerala & Anr. vs N.M. Thomas & Ors. [1976] 1 S.C.R. 906 @ 930 933 and The General Manager, Southern Railway vs Rangachari [1962]2 S.C.R. 586 referred to. The figures quoted from the report of the Commissioner of Scheduled Castes and Scheduled Tribes for the year 1977 78 reveal how slow and insignificant the progress achieved by the members of these communities in the matter of participation in the Railway Administration had been. Far from acquiring any monopolistic or excessive representation over any category of posts these communities are nowhere near being adequately represented. Neither the reservation rule nor the "carry forward" rule for these years has resulted in any such disastrous consequence. Therefore, the complaint of the petitioners that the circulars had resulted in excessive representation of these communities is without foundation generally or with reference to any particular year. [246 D G] There is no substance in the argument that efficiency of administration would suffer if the Railway Board 's directives were followed in the matter of reservations and promotions. The Railway Board had stated that minimum standards were insisted upon for every appointment and in the case of candidates wanting in requisite standards of efficiency those with higher marks were given special intensive training to enable them to come up to the requisite standards. In the case of posts which involved safety of movement of trains there was no 191 relaxation of standards in favour of candidates belonging to Scheduled Castes and Scheduled Tribes and they were required to pass the same rigid tests as others.[265 A B] There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of 50% about which there is no rigidity. Every case must be decided on its own facts. [265 E] There is nothing illegal or unconstitutional in any one of the impugned orders and circulars. [265 G] [Pathak J concurring in the result with reservation on certain questions.] Article 46 of the Constitution enjoins upon the State to treat with special care the educational and economic interest of the weaker sections of the people and in particular the Scheduled Castes and Scheduled Tribes. One of the modes in which the economic interest of these communities can be promoted is by reservation of appointments or posts in their favour in services under the State where they are not adequately represented. By virtue of Article 16(4), when the State intends to make reservation of appointments or posts in favour of these communities in services under it nothing in Article 16 prevents it from doing so. Article 335 provides that claims of the members of these communities shall be taken into consideration in the making of appointments to services and posts in connection with the affairs of the Union or a State. But such consideration must be consistent with the maintenance of efficiency of administration which is regarded as paramount. It is dictated by the common good and not of a mere section of the people. Therefore, whatever is done in considering the claims of Scheduled Castes and Scheduled Tribes must be consistent with the need for maintenance of efficiency of administration. This Article contains a single principle, namely, the advancement of Scheduled Castes and Scheduled Tribes but through modes and avenues which must not detract from the maintenance of an efficient administration. [250 B H] For securing an efficient administration the governing criterion in the matter of appointments to posts under the State is excellence and the emphasis is solely on quality. The selection is made regardless of religion, race, caste, sex, descent, place of birth or residence. However, a quota of the posts may be reserved in favour of backward citizens. But the interests of efficient administration require that at least half the total number of posts be kept open to attract the best of the nation 's talent. If it was otherwise an excess of the reserved quota would convert the State service into a collective membership predominantly of backward classes. The maintenance of efficiency of administration is bound to be adversely affected if general candidates of high merit are correspondingly excluded from recruitment. Viewed in that light the maximum of 50% for reserved quota appears fair and reasonable, just and equitable violation of which would contravene Article 335. [251 B D] M. R Balaji vs State of Mysore [1963] Supp. 1 S.C.R. 439, 470, T. Devadasan vs Union of India [1964]4 S.C.R. 680 and State of Kerala vs N. M. Thomas [1976]1 S.C.R. 906 referred to. 192

ivil Appeal No. 3561 of 1986. From the Judgment and Order dated 28.2.1986 of the Gujarat High Court in SCA No. 1176 of 1974. Mehta, Shishir Sharma and P.H. Parekh for the Appel lants. Respondent in person. (N.P.) The Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of the High Court of Gujarat dated 28.2.1986 allowing the respondent 's writ petition and quashing order of discharge from service and directing his reinstatement in service. The respondent joined service as technical assistant with the Gujarat State Electricity Board (hereinafter re fened to as the Board). He was promoted to the post of Deputy Engineer. While he was posted at Surat as Deputy Engineer he was transferred to Ukai subdivision under the order of the Superintending Engineer dated 29th March, 1974. Pursuant to the order of transfer he was relieved from his duties at Surat on 30th March, 1974 to enable him to join at Ukai. He made representation to the Additional Chief Engi neer for cancelling his transfer order on the ground that his mother aged 70 years was ailing and it would cause great inconvenience to him if he was required to join at Ukai. His representation was rejected and he was directed to 361 join at Ukai but he did not do so instead he filed a civil suit at Baroda challenging validity of the order of trans fer. Meanwhile, the Chief Engineer by his order dated 27th May, 1974 discharged the respondent from service with effect from 31st March, 1974 in accordance with service Regulation No. 113. The respondent challenged the validity of the order of his discharge from service by means of a writ petition under Article 226 of the Constitution before the High Court of Gujarat. A learned Single Judge of the High Court quashed the order of termination on the findings that the order of discharge was issued m violation of the basic principles of natural justice as no opportunity was afforded to the re spondent before discharging him from services under Regula tion No. 113. The learned Single Judge granted a declaration in respondent 's favour holding the order void and illegal but having regard to recalcitrant attitude of the appellant and his continued conduct of disobedience of the orders of his superior authorities, he refused to grant consequential reliefs regarding reinstatement or payment of back wages. The respondent as well as the appellant board, both pre ferred Letters Patent appeals against the order of learned Single Judge. A Division Bench of the High Court dismissed the appeal preferred by the Appellants but it allowed the respondent 's appeal. The Division Bench upheld the order of the learned Single Judge holding the order of discharge illegal and void but it set aside the order of the learned Single Judge refusing to grant consequential relief instead it directed the appellants to reinstate the respondent, and to treat him in service without any break in service and to grant him benefits of increments, seniority, and promotion to which he may be entitled under the rules. The Bench, however, did not grant full back wages to the respondent instead it directed the Board to pay him 50 per cent of back wages. Aggrieved, the appellant has preferred the instant appeal after obtaining special leave of this Court. This appeal came up for hearing before us on 28th Janu ary, 1988 and on that day Sh. B.K. Mehta, Advocate appearing for the appellants and Sh. Vimal Dave, Advocate, appearing for the respondent were fully heard. After hearing learned counsel for the parties we were satisfied that the learned Single Judge as well as the Division Bench both had commit ted error in allowing the writ petition and granting relief to the respondent. We expressed our view in the Court and suggested to Mr. Vimal Dave, counsel for the respondent, that if he agreed the original writ petition of the respond ent could be dismissed without directing him to refund the amount which he had already been paid by the appellants in pursuance to the orders of the High Court and of this Court as during the pendency of the appeal, the appellants 362 were directed by means of interim order of this Court to continue to pay salary to the respondent which was being paid to him regularly. The hearing was adjourned to enable Sh. Vimal Dave, to obtain instructions from the respondent. The appeal came up for hearing before us on 16.2.1988 when another counsel appeared to argue the appeal on behalf of the respondent on merits. We refused to hear the counsel as we had already completed hearing. Thereupon, the respondent himself appeared in person and sought permission to make his submissions personally. We refused to accede to his request as oral heating had already been completed and the matter had been adjourned only to enable the respondent 's counsel to obtain instructions. However, in the interest of justice we permitted the respondent to file written submissions. if any, in support of his case. Thereafter, the case was listed several times but no written submissions were filed instead the respondent adopted an unusual course by sending an application by post expressing his no confidence in us with a prayer to transfer the case to some other Bench. Since this was unusual, uncalled for and unjustified request we ignored the same and reserved the order. We are constrained to note that instead of utilising the opportunity granted to him for filing written submissions the respondent has mis used adjournments for the purposes of raising frivolous objections for getting the case transferred to some other Bench. No party is entitled to get a case transferred from one Bench to the other, unless the Bench is biased or there are some reasonable grounds for the same, but no right to get a case transferred to any other Bench, can legitimately be claimed merely because the judges express opinion on the merits of the case on the conclusion of hearing. In the instant case on the conclusion of the oral hearing we had expressed our opinion on 28.1.1988 in the open court, that we were inclined to allow the appeal and set aside the order of the High Court and dismiss the writ petition but taking a sympathetic view we requested Sh. Vimal Dave, learned coun sel appearing for the respondent to obtain instructions as aforesaid. The opportunity granted to the respondent has, however, been misused by raising mischievous and frivolous objections instead of filing written submissions. The re spondent 's prayer is accordingly rejected and since oral hearing has already been completed, and in spite of several adjournments respondent failed to appear before the Court or to file the written submissions we proceed to decide the case on merits. Transfer of a Government servant appointed to a particu lar cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal tight for being posted at any particular place. Transfer from 363 one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficien cy in the Public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a repre sentation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his serv ice as he refused to comply with the order of his transfer from one place to the other. There is no dispute that the respondent was holding a transferable post and under the conditions of service ap plicable to him he was liable to be transferred and posted at any place within the State of Gujarat. The respondent had no legal or statutory right to insist for being posted at one particular place. In fact, during the tenure of his service in the Board the respondent had been transferred from one place to an other place several times. In March, 1974 he was transferred . from Surat to Ukai. The distance between the two places as was stated before us during the hearing of the case is less than 50 kms. He was relieved from his duties at Surat on 30th March, 1974 but he did not join at Ukai till the impugned order of discharge was issued on May 27, 1974. The Chief Engineer who discharged the respondent 's services exercised his power under Service Regulation No. 113, which runs as under: "113. The continued absence from duty or overstay, m spite of warning, to return to duty shall render the employee liable to summarily discharge from service without the necessity of proceedings under the Gujarat Electricity Board, Conduct, Discipline and Appeal Procedure. " The above Rule provides that if an employee of the Gujarat Electricity Board continues to remain absent from duty or overstays the period of sanctioned leave and in spite of warning, he fails to return to duty, he renders himself liable to be discharged summarily from service without 364 complying with the procedure prescribed for taking discipli nary action, under the Gujarat Electricity Board, Conduct, Discipline and Appeal Procedure. Regulation 113 confers wide powers on the authorities to summarily discharge an employee from service, if he continues to be absent from duty in an unauthorised manner and refuses to join his duty even after warning. Under the disciplinary rules detailed procedure is required to be followed for removing an employee from serv ice but Regulation 113 provides for summary discharge from service. Before this power is exercised, two conditions must be satisfied; Firstly, the employee must be found to be absent from duty without leave or overstaying the period of sanctioned leave, and secondly, he failed to join his duty even after a warning. The object and purpose of giving warning is to remind the delinquent employee that if he continues to be absent from duty he would be liable to action under Regulation 113 and to afford him an opportunity to make amends by joining his duty. If even thereafter he fails to join duty, his services are liable to be terminated by an order of discharge. It is noteworthy that the validity of Regulation 113 was not challenged before the High Court and the parties proceeded on the assumption that Regulation 113 was valid and applicable to the respondent 's service. The Chief Engineer discharged the respondent from service as he had continued to remain absent from duty w.e.f. March 30, 1974 to May 27, 1974. The Division Bench of the High Court held that no warning as contemplated by service Regulation No. 113 had been issued to the respondent nor he had been afforded any opportunity of showing cause before the im pugned order of discharge was passed and consequently, the order of discharge was null and void being contrary to service Regulation No. 113 itself. On perusal of the materi al on record we are of the opinion that the view taken by the High Court is not sustainable as there is sufficient material on record which shows that warning had been issued to the respondent before the order of discharge was issued. In determining the question whether any warning was given to the respondent it is necessary to refer to the sequence of events and the correspondence which ensued between the appellants and the respondent. On March 29, 1974 the Superintending Engineer of the Board issued the order, transferring the respondent from Surat to Ukai, on 30.3.1974 the respondent was relieved from Surat and directed to join his duty at Ukai, but the respondent did not join his duty at the new place of posting. Instead he made a representa tion to the Additional Chief Engineer on 8.4.1974 after the transfer order. The Transfer order was not stayed and as the respondent did not join 365 his duties, he continued to be absent without sanction of any leave. In this situation the Superintending Engineer by his letter dated 18th April, 1974 directed the respondent to show cause as to why action should not be taken against him for disobeying the order of transfer and also for unautho rised absence from duty in breach of service Regulation No. 113. The letter is as under: "GUJARAT ELECTRICITY BOARD O & M DIVISION Nana Varchha Road Surat. Dated 18th April, 1974 To Shri A.S. Pohani Junior Engineer, Ukai 37, Gurunagar Society Near Jakat Naka, Surat 3. Sub: Transfer from Surat to Ukai. You have been relieved on 30.3.1974 A.N. on account of your transfer from Surat to Ukai, but you have not reported to Ukai till today and remained on unauthorised absence on re lief, which is breach of S.R. No. 112 and 113. Please submit your explanation as to why action should not be taken against you for disobeying order of superior and breach of S.R. No. 112 and 113 within 7 days from re ceipt of this letter. Sd/ Execut ive Engineer (O & M) Surat Copy f.w.c.s. to Superintending Engineer, GEB, Utran. " There is no dispute that the respondent received the afore said letter as he sent a reply to the Superintending Engi neer on April 20, 1974, a copy of which was annexed as Annexure 'J ' by the petitioner, to his 366 petition before the High Court. By that letter respondent stated that he was waiting for the decision of his represen tation made for reconsideration of his transfer from Surat to Ukai and therefore, the question of his remaining on unauthorised leave was misconceived. Since the respondent had not obtained any sanctioned leave for his absence his absence from duty was unauthorised. No Government servant or employee of any public undertaking has a right to be absent from duty without sanction of leave, merely on account of pendency of representation against the order of transfer. Since the respondent continued to be absent from duty the Superintending Engineer by a registered post acknowledgment due letter dated April 24, 1974 informed the respondent that his request to postpone his transfer was rejected and he was directed to join his duty at Ukai and on his failure to do so disciplinary action would be taken against him. The Establishment Officer (P) of the Board, also informed the respondent by his letter dated May 6, 1974 that his repre sentation against the order of transfer was not accepted and he was directed to obey the order of transfer. A copy of the letter filed by the petitioner himself as Annexure 'K ' to the writ petition in the High Court. But even thereafter, the respondent did not join his duties. Ultimately, the Chief Engineer of the Board took action against the respond ent and discharged him from service with effect from 31.3.1974 by his letter dated May 27, 1974. The sequence of events and the correspondence which ensued between the officers of the Board and the respondent clearly show that the respondent disobeyed the order of transfer and he re mained absent from duty in an unauthorised manner without obtaining sanction of leave. The aforesaid documents leave no room for any doubt that the respondent was reminded of his failure to join his duties at Ukai and he was further reminded that his unauthorised absence had exposed him to disciplinary action. In fact, the Superintending Engineer had by his letter dated 18th April, 1974 clearly reminded the respondent that his unauthorised absence was in breach of Service Regulation No. 113 and called upon to show cause why action should not be taken against him but in spite of these letters the respondent failed to join his duties. The Division Bench of the High Court has held that since no warning was issued to the respondent action taken under Service Regulation No. 113 was not in accordance with law. This finding is wholly misconceived. A warning need not be in any particular form. The object and purpose of the warn ing as contemplated by the Regulation,. is to remind the delinquent employee that his continued unauthorised absence from duties was liable to result in discharge of his serv ice. The substance of the Superintending Engineer 's letter dated 18th April, 1974 which was admittedly served on the respondent, contained 367 warning to the respondent, which fully met the requirement of Regulation No. 113. Before the High Court a controversy was raised as to whether the registered letter dated 24.4.1974 addressed by the Superintending Engineer to the respondent was received by him or not. The registered cover, containing the letter dated 24.4.1974 was returned back by the postal authorities with an endorsement that the addressee refused to accept the same. The respondent 's case was that no such registered letter was tendered to him by the postman nor he ever re fused to accept the same. The Division Bench held that letter dated 24.4.1974 which contained a warning had not been served on the respondent and since the Board had failed to raise the question before the learned Single Judge it could not do so in the letters patent appeal. The Division Bench further held that since the letter dated 24.4.1974 was not served on the respondent, there was no material to show that any warning had been issued to the respondent before he was discharged from service. We do not agree with the view taken by the Division Bench. Firstly, even if the letter dated 24.4.1974 was not served on the respondent there is no dispute that the Superintending Engineer 's letter dated 18th April, 1974 had been served on him. By that letter warning as contemplated by Regulation No. 113 had been issued to the respondent. Therefore even if the letter dated 24.4.1974 was not served on the respondent the order of discharge as contemplated by Regulation No. 113 is sustainable in law. But even otherwise, the Division Bench committed error in holding that the Board had raised the question of service of the letter dated 24.4.1974 for the first time before the Division Bench in the letters patent appeal. Perusal of the averments made in paragraphs 17, 18, 23 and 25 (2)(ii) of the counter affidavit filed in reply to the petitioner 's writ petition before the learned Single Judge shows that the Board had categorically pleaded that the respondent was informed by letter dated 24.4.1974 that his representation to postpone his transfer was rejected and he should obey the order of transfer. It was further pleaded that the respond ent had refused to accept the registered letter and the same had been returned back by the postal authorities with an endorsement that the addressee refused to accept the same. In his rejoinder affidavit the respondent denied the afore said allegations and asserted that the letter was not ten dered to him and he never refused to accept the registered cover and the postal endorsement was wrong and incorrect. Apart from denying the postal endorsement, the respondent placed no material before the Court in support of his plead ing. In this view, we are of the opinion that the Division Bench was totally wrong in holding that 368 no opportunity was afforded to the respondent to meet the case set up by the Board that the letter dated 24.4.1974 was served on the respondent. No new plea had been raised by the Board before the Division Bench instead the plea relating to service of the aforesaid letter had already been before the learned Single Judge. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to dis charge this burden as he failed to place material before the Court to show that the endorsement made by the postal au thorities was wrong and incorrect. Mere denial made by ,the respondent in the circumstances of the case was not suffi cient to rebut the presumption relating to service of the registered cover. We are, therefore, of the opinion that the letter dated 24.4.1974 was served on the respondent and he refused to accept the same. Consequently,the service was complete and the view taken by the High Court is incorrect. In view of the above discussion, we therefore hold that the respondent 's failure to join his duties at Ukai resulted in unauthorised absence and his failure to join his duties in spite of the repeated reminders and letters issued to him constituted sufficient valid ground for taking action under Regulation No. 113. We further hold that before issuing the order of discharge the respondent was not only warned but he was also afforded an opportunity to explain as to why disci plinary action should not be taken against him. The respond ent acted in an irresponsible manner in not complying with the order of transfer which led to his discharge from serv ice in accordance with the Service Regulation No. 113. The learned Single Judge as well as the Division Bench both erred in law in setting aside the order of discharge. We, accordingly, allow the appeal, set aside the order of the Single Judge as well as Division Bench and dismiss the respondent 's petition. There would be no order as to costs. The respondent has been paid a sum of Rs. 1,04,170 towards salary under the interim orders of this Court. Now, since the order of 369 discharge is held to be valid the amount paid to the re spondent is liable to be recovered from him, but having regard to the facts and circumstances of the case and the hardship which could be caused to the respondent, we direct the appellant not to recover the amount already paid to the respondent. S.K.A. Appeal al lowed.

The respondent joined service as technical assistant with the Gujarat State Electricity Board and was later promoted to the post of Deputy Engineer. While he was posted at Surat he was transferred to Ukai Sub division under the order of the Superintending Engineer dated 29th March, 1974 and he was relieved from his duties at Surat on 30th March, 1974. He made representation to the Addl. Chief Engineer for cancelling his transfer order which was rejected and he was directed to join at Ukai but he did not do so and continued to be absent without sanction of any leave and instead he filed a civil suit challenging validity of the order of transfer. The Superintending Engineer by his letter dated 18th April, 1974 directed the respondent to show cause as to why action should not be taken against him for disobeying the order of transfer and also for unauthorised absence from duty in breach of service Regulation No. 113. The respondent failed to join his duty even after a warning. Thereafter the Superintending Engineer sent a letter dated 24th April, 1974 by registered cover which contained a warning but the same was returned back by the postal authorities with an endorse ment that the addressee refused to accept the same. Meanwhile, the Chief Engineer by his order dated 27th May, 358 1974 discharged the respondent from service in accordance with service Regulation No. 113 as he had continued to remain absent from duty since 30th March, 1974. The respondent filed a writ petition before the High Court challenging the validity of the order of his discharge from service. A learned Single Judge of the High Court quashed the order of discharge but looking to the attitude of the respondent and continued conduct of disobedience of the orders of his superior he was not granted consequential reliefs. The respondent as well as the appellant Board preferred Letter Patent Appeals. A Division Bench of the High Court dismissed the appeal of the appellant Board and allowed the respondent 's appeal upholding the order of discharge as illegal and void and directed the appellants to reinstate the respondent, to treat him in service, and to grant him benefits of incre ments, seniority, and promotion. The Division Bench, howev er, did not grant full back wages but directed the Board to pay the respondent 50 per cent of back wages. Against the order of the Division Bench of the High Court the appellants preferred an appeal to this Court by special leave. The appeal came up for hearing and advocates for both the parties were fully heard. Being satisfied that the Single Judge as well as Division Bench of the High Court committed error in allowing the writ petition of the re spondent, this Court suggested to the counsel for the re spondent that if he agreed the original writ petition of the respondent could be dismissed without directing him to refund the amount which he had already been paid by the appellants in pursuance to the orders of the High Court and of this Court. The bearing was adjourned to enable counsel to obtain instructions from the respondent. On the next hearing another counsel appeared on behalf of the respondent to argue on merits. The Court refused to hear fresh argu ments as the hearing had already been completed. Thereupon, the respondent appeared in person to make his submissions which the Court refused as oral. hearing has already been completed. However, in the interest of justice the respond ent was permitted to file written submissions. No written submissions were filed, instead the respondent adopted an unusual course by sending an application by post expressing his no confidence in the Bench of this Court with a prayer to transfer the case to some other Bench. The Court ignored the request of the respondent as it was unusual, uncalled for, and unjustified. 359 Allowing the appeal by special leave, this Court, HELD: No party is entitled to get a case transferred from one Bench to the other, unless the Bench is biased or there are some reasonable grounds for the same. but no right to get a case transferred to any other Bench, can legiti mately be claimed merely because the Judges express opinion on the merits of the case on the conclusion of hearing. [362E] Transfer of a Government servant appointed to a particu lar cadre of transferable posts from one place to other is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is gener ally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the Public Administra tion. [362H; 363A] Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representa tion to the competent authority for stay, modification, or cancellation of the transfer order. If the order of transfer is not stayed, modified, or cancelled the concerned public servant must carry out the order of transfer. [363B] If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other. [363C] No Government servant or employee of any public under taking has a right to be absent from duty without sanction of leave, merely on account of pendency of representation against the order of transfer. [366B] There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on 360 the party, challenging the factum of service. [368B C] In the instant case, the respondent 's failure to join his duties at Ukai resulted in unauthorised absence and his failure to join his duties in spite of repeated reminders and letters issued to him constituted sufficient valid ground for taking action under Regulation No 113. Before issuing the order of discharge the respondent was not only warned but he was also afforded an opportunity to explain as to why disciplinary action should not be taken against him. The respondent acted in an irresponsible manner in. not complying with the order of transfer which led to his dis charge from service in accordance with the Service Regula tion No. 113. The Single Judge as well as the Division Bench both therefore erred. in law in setting aside the order of discharge. [368E G]

No. 46931 of 1985. IN W.P. Nos. 11361 62 of 1983 etc. (Under Article 32 of the Constitution of India). A.K. Ganguli and K. Swami for the Petitioners. Shankar Ghosh, section Padmanabhan, K.K. Venugopal, C.S. Vaidyanathan, A.T.M. Sampath, P. Choudhary, S.R. Setia and S.R. Bhatt for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. There were disputes between the partners of the firm Balasubramania Foundry (hereinafter called 'the firm ') and several legal proceedings were taken in the courts of Coimbatore, these ultimately came to this Court. This Court by an order dated 2nd of November, 1982 referred the disputes to the Arbitrator. The order stated that the disputes were referred to the sole Arbitrator, Justice K.S. Palaniaswamy failing him Justice C.J.R. Paul and the respective parties including the firm were directed to file their 854 joint memos in all the courts where the suits/proceedings were pending before the Arbitrator. The Arbitrator was directed1 to proceed in accordance with the . In order to complete the narration, there was an application for appointment of Receiver which was directed to be pro ceeded with in the trial court. This Court, however, by the said order directed the trial court to dispose of that application. By the said order as mentioned hereinbefore in the absence of Justice K.S. Palaniaswamy, Justice C.J.R. Paul duly heard and considered the matter and published the award on 3rd April, 1985. It is claimed by Mr. Ghosh, appearing on behalf of respondent No. 1 as well as Mr. Venugopal, appearing on behalf of other respondents supporting that the said award be made a rule of the court and the judgment in terms of the said award be passed. It may be mentioned that the Coimba tore District Podu Thozillar Munnetra Samgam represented by its Secretary being a union of the workers filed writ peti tions in this Court being writ petitions Nos. 11361 62 of 1983. Later on another special leave petition being special leave petition No. 2271 of 1983 was filed by the firm against the order of the High Court confirming the order of appointment of Receiver 'of the firm. In those proceedings the Court was pleased to pass an order on 17th of February, 1984 that all the claims of the workers for their past dues would be referred for arbitration to the Arbitrator and considered by him. On 27th of July, 1984 this Court was pleased to refer the money claims of one Velmurugan Factory and the money claims of the workers who were members of the Coimbatore District Engineering and General Workers Union to the Arbitrator for adjudicating by arbitration. The Arbitrator has duly filed the award dated 3rd April, 1985 in this Court under section 14(1) of the . A. Rangaswamy, the petitioner herein for whom Mr. Gan guly is appearing has filed an affidavit alleging that the arbitrator was guilty of legal misconduct and there were errors which were amenable to corrections by this Court. It was contended on behalf of the workers also that their claims had not been fully protected. Mr. Sampath, appearing on their behalf has contended that the claims of the workers would amount to about rupees seven lakhs while provision had been made only for rupees three lakhs and even, then there was not sufficient provision. The workers, gratuity, it was contended would come to about rupees seven lakhs while the Arbitrator had really estimated 855 erroneously rupees four lakhs and provisions had been made only for Rs.3,10,000 which according to Mr. Sampath have been further diminished by payments made by the Receiver in the meantime. There is also an application on behalf of the workers ' union on these grounds. It appears, however, that this objection on behalf of the workers on ground of imperfect protection of workers was under a misconception on behalf of the respondents. It was stated and brought before us that in the last two years there had been sufficient profit to cover the claims of the workers. Indeed it appears that of the 27 workers whose claims had to be settled on account of gratuity, 14 had received the same and a document indicating the payments to them was sought to be filed before us. We are satisfied that sufficient provisions have been made for the existing li abilities of the workers and for any further contingencies in respect of the workers ' claims. It cannot be said, there fore, that the award of the Arbitrator is incomplete and left undetermined this dispute. The right to gratuity has been recognised and provision for the same has been made. The respondents Nos. 2, 3, and 5 pleaded before us through counsel that they had no objection to the award being made the rule of the court. The respondent No. I as mentioned hereinbefore is arguing that the award be made the rule of the court. Respondent No. 4 is also supporting that claim. It is only the petitioner A. Rangaswamy who is the only party opposing the award. It was submitted by Mr. Ganguly in support of his objection that the Arbitrator while holding that the lease in favour of the firm was bad had awarded substantial sum on the basis of the lease. It was further submitted that the Arbitrator while noting the reasons and recording the formal award had applied a reasoning altogeth er unconnected with the merits of the controversy which amounted to legal misconduct. It was further alleged that the award was inconsistent. In those circumstances, it was submitted that the award so far as it was against the appli cant. A. Rangaswami should be set aside. It was submitted that in spite of the alleged lapses in the illegal leases it was Palaniappan who was continuing to manage the business, sometimes as the Managing Partner of the firm and at other times as the proprietor or partner of the lessee company and recognition and rewarding him on that basis was perverse. It was further submitted that reliance placed on Exhibit A 46 for the purpose of allotting the articles was perverse and a grave error apparent on the face of the record. It was submitted that the Arbitrator committed a grave error in rejecting the claim of the applicant for a sum of Rs.39,27,940.11 which was due from Palaniappan and Doraiswa my as suppressed profits. It was submitted by Mr. Ganguly 856 that at least rupees nine lakhs should have been left out in item No, 9. This was not duly noted. On the other hand, it was urged that the alleged errors were not amenable to be corrected in this application by this Court. Mr. Ganguly submitted that on the whole the award was wholly inequita ble. The law on this aspect is, however, settled. In Union of India vs A.L. Rallia Ram, ; , this Court reiterated that in order to make arbitration effective and the awards enforceable, machinery was devised by the Arbi tration Act for lending the assistance of the ordinary courts. The Court was also entrusted with .the power to modify or correct the award on the ground of imperfect form or clerical errors, or decision on questions not referred, which were severable from those referred. The Court had also power to remit the award when it had left some matters referred undetermined, or when the award was indefinite, where the objection to the legality of the award was appar ent on the face of the award. The Court might also set aside an award on the ground of corruption or misconduct of the ' arbitrator, or that a party had been guilty of fraudulent concealment or wilful deception. But the Court could not interfere with the award if otherwise proper on the ground that the decision appeared to it to be erroneous. The award of the arbitrator was ordinarily final and conclusive, unless a contrary intention was disclosed by the agreement. The award was the decision of a domestic tribunal chosen by the parties, and the civil courts which were entrusted with the power to facilitate arbitration and to effectuate the awards, could not exercise appellate powers over the deci sion. Wrong or right the decision was binding, if it be reached fairly after giving adequate opportunity to the parties to place their grievances in the manner provided by the arbitration agreement. This Court reiterated in the said decision that it was now firmly established that an award was bad on the ground of error of law on the face of it, when in the award itself or in a document actually incorpo rated in it, there was found some legal proposition which was the basis of the award and which was erroneous. This view had been enunciated ' by the Judicial Committee in Champsey Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd., [1932] L.R. 50 I.A. 324. This view was again reiterated and emphasised by this Court in Kanpur Nagar Mahapalika vs M/s. Narain Das Hari , where Ray, J. as the learned Chief Justice then was observed at page 30 of the report relying on Champsey Bhara 's case (supra) "an error of law on the face of the award meant that one could find in the award, or in a document actually incorporated thereto, as, for instance a note appended by the arbi 857 trator stating the reasons for his judgment, some legal proposition which was the basis of the award and which one can say is erroneous. " In the instant case there is no legal proposition either in the award or in any document annexed with the award which was erroneous. In Allen Berry and Co. (P) Ltd. vs Union of India, New Delhi, ; , this Court reiterated that the principle was that an award could only be set aside where there is an error on its face. In the instant case, the alleged mistakes or alleged errors, if there be any of which Mr. Ganguly made grievances are mistakes of fact if at all. Mr. Ganguly 's grievances have a ring of similarity with the grievances which were agitated before this Court in Hindustan Tea Co. vs K. Sashikant Co. and another, , and this Court reit erated that it was an error of law and not mistake of fact committed by the arbitrator which was justiciable in the application before the court. It was an error of law and not mistake of fact committed by the arbitrator which was amena ble to corrections by this Court. The grievances of Mr. Ganguly 's client even if true, which as at present advised we are not inclined to accept, do not amount to error appar ent on the face of the record. In the aforesaid view of the matter we are unable to sustain, the objections to the award. There will, therefore, be judgment in terms of the award, there will no interim interest. There will, however, be interest on judgment at 9%. The objections are dismissed and the workers ' objections are disposed of by stating that there are sufficient provi sions in the award to meet the claim of the gratuity of the workers and they should have the right to be met out of the award. In that view of the matter the award is made the rule of the Court and the judgment be in terms of the award. No order as to costs. N.P.V. Petitions dis posed of.

There were disputes between the partners of the respond ent firm and several legal proceedings were taken in the courts below, which ultimately came to this Court. This Court by an order dated 2nd of November, 1982 referred the disputes to an Arbitrator. An application for appointment of Receiver was also directed to be disposed of by the trial court. The Arbitrator duly filed the award dated 3rd of April, 1985 in this Court under Section 14(1) of the . The petitioner in the special leave petitions filed an affidavit alleging that the Arbitrator was guilty of legal misconduct, and that there were errors which were amenable to correction by this Court, that the award was inconsistent and, therefore, the award should be set aside so far as it was against the applicant. On behalf of the Respondent Workers an application was filed and it was contended that their claims have not been fully protected, and that the workers ' claim on account of gratuity would come to about Rs.7 lakhs while the Arbitrator had estimated it erroneously at Rs.4 lakhs, and had also made no sufficient provision in respect thereof. Disposing of the Civil Miscellaneous Petitions, the Court, HELD: There is no legal proposition either in the award or in any document annexed therewith which was erroneous. The alleged mistake or alleged errors, if there be any, of which grievances are made, are mistakes of fact, if at all. The grievances, even if true, do not amount to an error apparent on the face of the record. [857A, B, D] 853 Sufficient provisions have been made in the award for the existing liabilities of the workers and for any further contingencies is respect of their claims. The right of gratuity has been recognised. It cannot, therefore, be said that the award of the arbitrator is left incomplete and this dispute left undetermined. [855C D] The objection to the award cannot be sustained. There will, therefore, be judgment in terms of the award. There will be no interim interest. There will, however, be inter est on judgment at 9%. [857E] Union of India vs A.L. Raffia Ram, ; ; Champsey Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd., [1932] L.R. 50 I.A. 324; Kanpur Nagar Mahapalika vs M/s Narain Das Haribansh, ; Allen Berry and Co. (P) Ltd. vs Union of India, New Delhi, ; and Hindustan Tea Co. vs K. Sashikant Co. and another, , referred to.

al No. 31 of 1966. Appeal from the judgment gad decree dated December 5, 1962 of the Allahabad High Court in First Appeal from Order No. 260 of 1952. R.M. Mehta and S.P. Nayar, for the .appellant. A.K. Sen, S.V. Gupte and S.S. Shukla, for the respondent. The Judgment of the Court was delivered by Bachawat, J. The respondent Jai Narain Misra is a building contractor. On September 2, 1944, he entered into a contract (No. ES. 2944) with the Government of India represented by the Chief Engineer, Central Command, for the construction of additional quarters at T.P. 2 Kanpur. The contract contained an arbitration clause. Disputes between the parties relating to the contract were referred to Col. H.T. Faithful. The arbitrator made his award on May 19, 1947. On November 15, 1947 the respondent made an application for modifying the award and for remitting it to the arbitrator for re consideration. On January 5, 1948, he filed additional objections. By his order dated May 26, 1952 the Second Civil Judge, Kanpur, dismissed the objections and pronounced judgment according to the award. The appellant filed an appeal against the order under section 39 of the . By an order dated December 5, 1962, the High Court allowed the appeal and set aside the award on the ground that it was vague and uncertain. The present appeal has been filed by the Union of India on the strength of a certificate granted by the High Court. It appears that the respondent submitted 23 items of claim to the arbitrator. By his letter dated May 6, 1947 he ' added 6 more items of claim. The Union of India made a counter claim. The 4Sup. C.I./69 5 590 arbitrator was thus required to decide 29 disputed items of claim and the counter claim. The award recited that certain differences between the parties in respect of contract No. ES. 2944 of 1944 had been referred to the arbitrator for his decision and that a final award was being made of and concerning the matters referred to him. The relevant part of the award was as follows : "I award and direct that the following sums be paid by the respondent to the claimant. Rupees twenty two thousand two hundred and ninety two annas five being the amount due to the claimant as calculated by the respondent. (2) Rupees six thousand being the amount of security deposit paid by the claimant and now in possession of the respondent. (3) Rupees seventy nine thousand three hundred and thirty nine. The total amount to be paid by the respondent to the claimant is therefore one lakh seven thousand six hundred and thirty one annas five. Each party to the dispute shall bear its own costs, including the cost of the stamp duty on this award. " The High Court held that the award suffered from a patent ambiguity for the following reasons: It was not clear why the arbitrator awarded the first item of Rs. 22,292/5 and the 3rd item of Rs. 79,339 separately. The arbitrator found only the first item of Rs. 22,292/5 to be due to the respondent, it was not clear whether he intended also to award the 3rd item of Rs. 79,339 to the respondent. As the dispute consisted of 29 items of claims and a counter claim, the arbitrator should have made an award in respect of all the items separately or in combination or should have made a lump award in respect of all the items. We are unable to accept this line of reasoning. The award on the face of it professes to be of and concerning all matters submitted to the arbitrator. In respect of all such matters the arbitrator awarded 'a sum cf Rs. 1,07,631/5 to the respondent. This amount was made up of three sums separately mentioned in the award. It was not the case of the respondent in the Trial Court that the award was uncertain or not intelligible. The objection was taken for the first time before the High Court. On the record there is nothing to show that the award was not intelligible to the parties. The Court leans towards the construction that the award is certain. Prima facie the award is good, and it is for the defendant 591 10 show that it is uncertain. Per Jervis, C.J. in Mays & Anr. vs Cannel(1). There is no ambiguity about the first and the third items of the award. The uncontradicted evidence of section Choudhry, the witness for the Government is "Item No. 1 of the award is that which was calculated by us in the government bill. Item No. 3 is in respect of the remaining claim of the plaintiff." Item No. 1 thus represents the sum admitted by the government to be due to the respondent, and item No. 3 represents the additional sum found by the arbitrator to be due to him. The arbitrator is not bound to give an award on each point. He can make his award on the whole case, see Ghulam Khan vs Mohammad Hassan (1). An arbitrator may award one sum generally in respect of all money claims submitted to him, unless the submission requires him to award separately on some one or more of them, see Whiteworth vs Hulse(3). The arbitrator can lawfully make an award of a sum admitted to be due and a lump sum in respect of the remaining claim. As the final award favour of the respondent professes to be made of and concerning all the matters referred to him, it must be presumed that in making it the arbitrator has taken into consideration all the claims and counter claims, see Harrison vs Creswick (4), Jewell vs Christie (5). We hold that the award is a final and certain determination of all the disputes referred. The arbitrator made an award in respect of the second item under some misapprehension. The security deposit of Rs. 6,000 had been returned to the respondent and there was no dispute about it before the arbitrator. In the circumstances, the arbitrator had no authority to award Rs. 6,000 to the respondent on account of the security deposit. This part of the award is clearly separable and may be struck out. Moreover, the award of Rs. 6,000 is to the advantage of the respondent; and the Court usually declines to set aside an award at the instance of a party who has not suffered any injury by the error, see Narsingh Narain Singh vs Ajodhya Prasad Singh(6). We find also that the award of Rs. 6,000 is now of no consequence. After the award was made, the respondent received a sum of Rs. 1,00,594/7 in full settlement of the award, presumably after giving the government credit for the sum of Rs. 6,000 already received by him. We therefore hold that there is no ground for setting aside the award. The award is not vague and/or uncertain and does not suffer from any other infirmity. (1) 24 Law Journal, Q.B. 41, Cal. 167, 186 (P.C.). (3) (1866) L,R. I exhibit 251. (4) ; (15) (6) , 113. 592 Mr. Mehta also contended that (1) the appeal before the High Court was not maintainable under sections 17 and 39 of the and (2) the respondent having received payment in full settlement of the award was estopped from challenging it. We do not find it necessary to decide these points in view of our conclusion that the award is not liable to be set aside. The appeal is allowed with costs in this Court, and the High Court. The order of the High Court is set aside and the order and decree passed by the Second Civil Judge, Kanpur, is restored. G.C. Appeal allowed.

The respondent, a building contractor, entered into a contract with the Government of India for the construction of certain flats. On disputes arising, they were referred to an arbitrator. the arbitrator made an award and directed certain sums to be paid by the Union of India to tile respondent. Rupees twenty two thousand two hundred and ninety two, annas five were to be paid as the amount due to the respondent 'as calculated by the Union of India. Rupees six thousand were to be paid as the amount of security deposit made by the respondent with the Union of India. The third item was mentioned as Rupees seventy nine thousand three hundred and thirty nine. total amount payable was mentioned as Rupees one lakh seven thousand six hundred and thirty one, annas five. The respondent made an application for modifying the award and for remitting it to the arbitrator for reconsideration. The Second Civil Judge, Kanpur dismissed the objections and pronounced judgment according to the award. The appellant filed an appeal against the order under section 39 of the . The High Court allowed ' the appeal and set aside the award on the ground that it was vague and uncertain. According to the High Court it was not clear why the arbitrator awarded the first item of Rs. 22,292/5/ and the third item of Rs. 79,339/ separately. Since the arbitrator found only the fir.st item of Rs. 22,922/5/to be due to the respondent, the High Court did not find it clear whether he intended also to award the 3rd item of Rs. 79,339/ to the respondent. As the dispute related to 29 items of claims and counter claims the arbitrator, according to High Court, should have made an award in respect of all the items separately or in combination or should have made a lump sum award in respect of nil the items. Against the order of the High Court the Union of India appealed to this Court with certificate. HELD: The reasoning of the. High Court could not be accepted. (i) The award on the face of it professed to be of and concerning all matters submitted for arbitration. In respect of all such matters the arbitrator awarded a sum of Rs. 1,07,631/6/ to the respondent. This amount was made of three sums separately mentioned in the award. On the record there was nothing to show that the award was not intelligible to the parties. [590 G] The court leans towards the construction that the award is certain. the evidence item No. 1 represented the sum admitted the sum due to respondent and item No. 3 represented the additional sum found by the arbitrator to be due to him. [590 H] (ii) The arbitrator is not bound to give an award on each point. He can give his award on the whole case. An 'arbitrator may award one sum generally in respect of all money claims submitted to him. unless the submission requires him to award separately on some one or more of them. 589 The arbitrator can lawfully make an award of a sum admitted to be due and a lump sum in respect of the remaining claim. As the final award in favour of the respondent professed to be made of and concerning all the matters referred to him, it must be presumed that in making it the arbitrator had taken into consideration 'all the claims and counter claims. The award must be held to be a final and certain determination of all the disputes referred. [591 C, D] (iii) The mention of the second item of Rupees six thousand in the award was a mistake. This part of the award being clearly separable must be struck out. The award of the sum of Rupees six thousand was to the advantage of the respondent and the court could not set aside an award at the instance of a party who had not suffered any injury. [591 F] Mays and Anr. vs Cannel 24 Law Journal Q.B. 41, 45; Ghulam Khan vs Mohammad Hassan I.L.R. , 186 (P.C.); Whiteworth vs Hulse (1866) L.R. 1 exhibit 251; Harrison vs Creswick ; , Jewell vs Christie and Narsingh Narain Singh vs Ajodhya Prasad Singh, , 113, referred to.

iminal Appeal No. 50 of 1973. 845 Appeal by special leave from the judgment and order dated January 24, 1972 of the Andhra Pradesh High Court in Cr. A. No. 796 of 1971 and Referred Trial No. 9 of 1971. O. P. Rana, for the appellant. The Judgment of the Court was delivered by DUA, J. In this appeal from the judgment and order of the Andhra Pradesh High Court convicting the appellant for the murder of one Gadusula Seetha under section 302, I.P.C. and sentencing him to death, special leave granted by this Court was limited only to the question of sentence. The preparation of the record was dispensed with and the appeal was directed to be heard on the S.L.P. paper book. In the order granting special leave dated March 1, 1973 it was specifically directed as under : "Let an actual date of hearing of the appeal be fixed ,which will not be longer than one month from today, and notice of the actual date of hearing of the appeal shall be sent to the respondent forthwith." Earlier, on July 5, 1972 the special leave petition has been placed before the vacation Judge (K. K. Mathew J) and notice was directed to go to the respondent to show cause why special leave should not be granted in regard to the sentence only. It is unfortunate that the matter could not be placed before the Bench after service of 'show cause notice for nearly eight months. The appellant had been sentenced to death as far back as October 30, 1971 by the Additional Sessions Judge, West Godavari Division at Eluru and the death sentence was confirmed by the High Court. on January 24, 1972. The prosecution story as upheld by the High Court stated briefly is that the deceased, who was a married woman, was having :an illicit intimacy with the appellant and they were both living at Tadimalla. Before they came to Tadmalla to settle down there, the deceased was married to one Basavaiah of Eythapuram. There, she had developed illicit intimacy with her husband 's brother and is stated to have eloped with him. Sometime later, she patched up with her husband and they both then went down to Tadimalla to live there, which was the native village of the deceased. But there also the deceased developed illicit intimacy with the appellant who belonged to Harijan community. Apparently the deceased belonged to a higher caste. It appears that the appellant and the deceased started living together in a portion of the appellant 's house in Harijanwada of Tadimalla village. According to the testimony of Osha Tharmaiah (P.W. 14) even ,when the deceased was living with the appellant she was having a liaison with this witness. The deceased met with her death on 846 April 24, 1971 at about 6 a.m. About 20 days prior to this date, the deceased left the appellant 's house and started living in a portion of the house of Gapapati Bapanamma (P.W. 13), the maternal grandmother of Osha Thammaiah (P.W. 14). According to P.W. 14 the deceased did so in order to continue her illicit intimacy with that witness. The appellant apparently felt distressed on account of this conduct on the part of the deceased. On the morning of April 14, 1971, the deceased went to the Panchayat well to take water to her house and while she was standing there on the platform of the well, the appellant went there, caught hold of her pig tail from behind with his left hand and delivered two blows on the left side,, of her neck and gave two or three blows on her left upper fore arm. The deceased tried to free herself from the appellant 's grip but fell down flat about six yards away from the well. The appellant is said to have delivered another blow with the knife on the left side of her abdomen which resulted in her intestines protruding out. The deceased it appears died soon after the receipt of these injuries. In the High Court on behalf of the appellant it was argued that the sentence should be reduced to life imprisonment because(1) the appellant is a very young man of about 20 years of age; (2) the incident arose out of sexual jealously and (3) the crime was not pre meditated. The High Court did not consider these circumstances to be sufficient to merit a lesser sentence, because from the evidence of the doctor and the. postmortem certificate given by him it was evident that the appellant had inflicted as many as ten incised injuries out of which two injuries were fatal and even after inflicting the injuries on the deceased indiscriminately the appellant stabbed her in the abdomen With such violence that the intestines actually came out and this happened after the deceased had fallen down. From the injuries caused by the appellant to the deceased the High Court felt that the accused must have intended to murder her and his intention in attacking the deceased was only to chastise her or to teach her a lesson. Finding no reason to reduce the sentence passed by the trial court the High Court confirmed the capital sentence. In this Court it was contended on behalf of the appellant that there was grave provocation for the appellant in that the appellant had sacrified everything for the sake of keeping the deceased with him but she had proved unfaithful and had not only started living with someone else but had even ridiculed him. It was also contended that the courts below had completely ignored the effect of the recent amendment of s.357, Cr. P.C. and that they have proceeded as if there must be some mitigating circumstance in order to justify the. imposition of a lesser penalty in case of con viction under section 302, I.P.C. 847 The learned additional Sessions Judge, when dealing with the question of sentence observed that there were "absolutely no extenuating circumstances to justify imposition of lesser sentence". No doubt, according to the trial court, the murder was committed in broad day light in the presence of many persons in the heart of the Harijanwada and nothing had transpired on the day of the occurrence which could have conceivably given any provocation to the appellant so as to incite him to commit the offence and the murder was committed in cold blood with pre meditation. But it does appear to us that the learned additional Sessions Judge was perhaps not fully conscious of the amendment and his approach suggests that he was looking for some mitigating circumstance to justify the imposition of lesser penalty. Having found none, the capital sentence was imposed. In the High Court also when the question of sentence was raised it was observed as follows : "It is clear that the accused intended to murder the deceased. We do not find any reason to reduce the sentence passed by the lower court. We confirm the sentence." While confirming the capital sentence the High Court had quite clearly an obligation to itself consider what sentence should 'be imposed and not be content with the trial court 's decision on the point unless some reason was shown for reducing that sentence. As observed in Jumman & others vs The State of Punjab(1), in such a case, "it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the pro visions of the law above mentioned it is for the High Court to come to an independent conclusion of its own." No doubt, as observed by the High Court there were as many as ten incised injuries on the deceased and injuries nos. 1 and 4 were considered by the medical evidence to be fatal. It is also clear that on the day of the incident nothing had happened to cause sudden provocation which should be grave enough to make the appellant lose his balance of mind. But in that case an argument would be open to take the offence out of the purview of sections 300 and 302, I.P.C. That point does not appear to be open to the appellant because this appeal was not admitted on the merits and we are only required to consider whether on the conclusions of the High Court and on the assumption that the offence (1) A. 1. R. 848 is one of murder, lesser penalty should be imposed in *,he present case. Apart from the question of what sentence should have been imposed by the trial court, in our opinion, it is open to this Court under article 136 of the Constitution to see what sentence permissible under the law would meet the ends of justice now when we are called upon to consider that question. The appellant was clearly on terms of improper intimacy with the deceased and was perhaps overcome by a sense of jealousy or indignation of ' what he thought was unfaithfulness on the part of the deceased. Assuming the trial court was justified in imposing the capital sentence, the long lapse of time since the imposition of the capital sentence by the trial court and the consideration of the question of sentence by us, in our opinion, constitutes a relevant ground for reducing the sentence to life imprisonment. In the present case the appellant must have been in the condemned cell ever since October 30, 1971 when the sentence of death was imposed on him by the trial court. The High Court confirmed the sentence as far back is January 24, 1972. Since then the agonising consciousness and feeling of being under the sentence of death must have constantly haunted the appellant. No doubt, this delay has been caused because of the time taken by the High Court in disposing of the application for leave to appeal to this Court and because of the pendency of the application for special leave to appeal in this Court since October, 1972. But that cannot detract from the acute mental agony to which the appellant must have been subjected ever since the imposition of the capital sentence on him. We find that in July, 1972 this Court issued notice to the respondent State to show cause why special leave should not be granted in regard to the sentence. The notice was apparently issued without any delay. But the matter was unfortunately not set down for hearing till March 1, 1973. This delay was perhaps due to the fact that the respondent State did not put in appearance. Indeed, he State was not represented at the hearing either of the special leave petition or of the appeal before us. Now the importance of speedy disposal of cases involving sentence of death has been recognised by this Court, for, in r. 21(2) of O.XXI,,it is expressly provided that in such cases the printed record shall be made ready and despatched to this Court within a period of 60 days after the receipt of intimation from the registry of this Court of the filing of the petition of appeal or of the order granting special leave to appeal. The same anxiety and concern for speedy disposal of special leave petitions in such cases is equally desirable. It appears that the importance of speedy hearing of the petition for special leave was not realised in this case. In our view, the neglect or unwillingness of the State to enter appearance should not have prevented the posting of the special leave. petition for hearing with the greatest possible dispatch. 849 On the facts and circumstances of this case we feel that the interests of justice require that the sentence of death should be reduced to that of life imprisonment and we so order. The fact that the State of Andhra Pradesh has not cared to enter appearance in spite of notice suggests that in the opinion of the legal advisors of the State there was no good cause to show against the reduction of sentence. In Piare Dusadh & others vs Emperor(1) the sentence of death was reduced to one of transportation for life when the convict had inter alia been awaiting execution of death sentence for over a year. The Federal Court there observed: "In committing the offence the appellant must have been actuated by jealousy or by indignation either of which would tend further to disturb the balance of his mind. He has besides been awaiting the execution of his death sentence for over a year. We think that in this case a sentence of transportation for life would be more appropriate than the sentence of death. " These observations are equally pertinent to the case in hand. The appeal is accordingly allowed and the appellant 's sentence is reduced to that of imprisonment for life.

Appellant, aged 20, was convicted and sentenced to death for murdering his wife on October 30, 1971 and the High Court confirmed the death sentence on January 24, 1972. The appeal to this Court was limited only to the question of sentence. In the High Court it was argued that the sentence should be reduced to life imprisonment because, the appellant was a young man of 20 years of age, the incident arose out of sexual jealousy and the crime was not pre meditated. The High Court did not consider these circumstances to be sufficient to merit a lesser sentence. In this Court it was contended that appellant acted under grave provocation and secondly, the Courts below had ignored the effect of the recent amendment of section 357 Cr. Allowing the appeal, HELD : (1) While confirming the capital sentence, the High Court has an obligation to itself to consider why sentence should be imposed and should not be content with the trial court 's decision on the point. It is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge. , In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge but the law requires that the High Court should come to an independent conclusion of its own. [847E] Jumman & others vs The State of Punjab, A.I.R. 1957 S.C. 469, referred to. (ii)In the present case, assuming the trial court was justified in imposing the capital sentence, the long lapse of time since the imposition of the capital sentence by the trial court and the consideration of the question by this Court, constitutes a relevant ground for reducing the sentence to life imprisonment. The appellant must have been in the condemned cell ever since the death penalty was imposed on him. The appellant must have been subjected to acute mental agony ever since the death penalty was imposed on him. Therefore, the sentence of capital punishment must be reduced to life imprisonment in the present case. [848C] in Piare Dusadh & Others vs Emperor A.I.R. 1944 F.C. 1, the sentence of death was reduced to one of transportation for life when the convict had inter alia, been awaiting execution of death sentence for over a year.

ivil Appeal Nos. 2316/69 and 1598/70. From the Judgment and order dated 14/17/18th March, 1969 of the Gujarat High Court in S.C.A. No. 729/68. 908 R. H. Dhebar and M. N. Shroff for the Appellants in C.A. 2316/69. D. V. Patel, M. V. Goswami and Ambrish Kumar for RR 1 5 in C.A. 2316/69 and RR. 1 4 in C.A. No. 1598/70. The Judgment of the Court was delivered by DESAI, J. These two appeals by certificate under article 133(1)(c) of the Constitution arise from a judgment rendered by the Gujarat High Court in Special Civil Application No. 720/68, being a petition under article 226 of the Constitution challenging the validity of a notification issued by the Government of Gujarat on 10th october 1967 under section 6 of the Land Acquisition Act, 1894 ( 'Act ' for short). Civil Appeal No. 2316/69 is preferred by the original respondent No. 2 Gujarat State Transport Corporation, and the cognate Civil Appeal No. 1598/70 is preferred by the State of Gujarat, the first respondent in the petition. As both the appeals arise from the same proceedings and raise identical contentions they were heard together and are being disposed of by this common judgment. A notification under section 4 of the Act was issued by the former Governent of Bombay on 10th October 1952 notifying that final plots 41, 42 and 43 were likely to be needed for a public purpose, viz., State Transport. The respondents who are tenants of different parcels of land comprised in the aforementioned final plots objected to the proposed acquisition. Soon after filing the objections under section 5A of the Act the respondents fild Civil Suit No. 1262/53 in the Court of Civil Judge, Second Division, Ahmedabad, for a declaration that the notification under section 4 was illegal and ultra vires and for an injunction restraining the respondent State from proceeding with the acquisition of the lands in possession of the respondents. During the pendency of this suit the then Government of Bombay, after considering the report submitted under section 5A, made a declaration under section 6 as per the notification dated 14th August 1953 declaring, inter alia, that final plots 41, 42 and 43 were required for the purpose of State Transport. The respondents amended their plaint adding a relief for quashing the notification under section 6. The suit filed by the petitioners was dismissed by the trial court and first and second appeals did not meet with success. They carried the matter to this Court and succeeded as per judgment reported in Valjibhai Muljibhai Soneji & Anr. vs The State of Bombay (now Gujarat) & Ors.(1). As per that judgment this Court decreed the plaintiff 's suit which would imply that this Court quashed both notifications under sections 4 and 6. Reading the judgment as a whole it 909 appears that the validity of section 4 notification was upheld and only the notification under section 6 was struck down. In the mean timn on the bifurcation of the erstwhile State of Bombay these land acquisition proceedings came within the cognizance of Government of Gujarat and when the State Government became aware some where in 1965 about the error in the decree, Review Applications Nos. 11 and 12 of 1965 were made for correcting the decree. This Court granted the applications and modified the decree on 13th September 1965. The Government taking its clue from the judgment of this Court which invalidated section 6 notification on the ground that the acquisition having been made for the benefit of a Corporation, though for public purpose, is bad because no part of the compensation is to come out of the public revenue and provisions of Part VII of the Land Acquisition Act have not been complied with, decided as per its letter dated 22nd August 1966 to contribute Re. 1/ , which was subsequently raised to Rs. 500/ towards payment of compensation. The Government, however, felt that as long time has elapsed since the earlier report under section 5A was submitted by the Collector, a fresh enquiry should be made Accordingly the Additional Special Land Acquisition Officer issued a notice dated 1st August 1966 intimating to the respondents that if they so desired the may submit their further objections by or before 16th August 1966. Complying with this notice the respondents submitted further objections on 31st August 1966 and they were also given a personal hearing. After examining the report submitted by the enquiry officer the Government of Gujarat issued a notification under section 6 on 10th October, 1967. The respondents questioned the validity and legality of this notification in the petition filed by them on 14th February, 1968. Respondents questioned the validity of the impugned section 6 notification on the only ground that it was issued more than 15 years after the date of section 4 notification and thus it had been issued after an unreasonable delay and it was illegal and void. While this was the only contention which found favour with the High Court, in reaching this conclusion the High Court, after taking note of the fact that there was no express provision in the Act requiring that the notification under section 6 must be issued within a reasonable time after issue of section 4 notification, primarily relied upon the postulate that every statutory power must be exercised reasonably, a doctrine too finally entrenched in our jurisprudence to brook any refutation which would assist in raising the implication that section 6 notification must follow within a reasonable time 910 after issue of section 4 notification. The Court also drew support from the scheme of sections 4, 5A and 6 as well as the history of the legislation. On behalf of the appellants it was pointed out to the High Court that in view of the provisions contained in sub section (2) of section 4 of the Land Acquisition (Amendment and Validation) Act, 1967 ( 'Amendment Act ' for short), as well as the proviso to section 6(1) also introduced by the same amendment Act the situation as has arisen in this case is not likely to arise and the apprehended mischief is not likely to be committed in future and, therefore, the Court should not go in search of the fetters on the power of the Government to issue section 6 notification, in the absence of any express provision, by implication that statutory power must be exercised within a reasonable time. It was further submitted on their behalf that once the legislature has clearly permitted a thing to be done within the time specified in the statute it would be impermissible by a process of interpretation to reduce the statutory period by implying a further fetter on the power of the Government and that would be the effect if the contention on behalf of the respondents was accepted. In other words, as the legislature has now provided that in respect of a notification issued under section 4 before the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, no declaration under section 6 shall be made after the expiry of two years from the commencement of the aforesaid Ordinance, and futher that in case of section 4 notification issued after the commencement of the Ordinance a statutory limit of three years is fixed within which declaration under section 6 can be made, the apprehended arbitrary exercise of power is thwarted and the Court should not further restrict or curtail the power of the Government to issue notification under section 6 within the time prescribed by the statute. The High Court was of the opinion that if the power to make a declaration under section 6 is exercised after an unreasonable delay from the date on which notification under section 4 is issued such exercies of power would be invalid and accordingly struck down the notificatio under section 6. Hence these two appeals. A preliminary objection was raised by the learined counsel for the respondents in both the appeals contending that as the appellants in both the appels failed to seek within the prescribed time substitution of the heirs and legal representatives of respondent 5 who died on 8th March, 1970 during the pendency of the appeal in this Court, in the circumstances of the case these appeals would abate as a whole. Undoubtedly, respondent 5 who is described in the cause title of the Memos. of Appeals as "Ramesh Ramjibhai, Manager, Ramesh Restaurant, a joint hindu family business", died on 8th March 1970. what 911 appears to have happened thereafter is that applications were made by the appellants under Order 22, Rule 10, Code of Civil Procedure, for bringing Shri Krishnakant Ramjibhai, Manager of Ramesh Restaurant, a joint hindu family business, on record in place of deceased respondent 5. According to the appellants the deceased respondent 5 had filed the original petition in his capacity as manager of joint hindu family business and on his death as the interest devolved upon the succeeding manager of the joint hindu family business, applications under order 22, rule 10, C.P.C. were made to bring the person on record on whom the interest devolved pending the appeal. Mr. D. V. Patel took serious exception to the procedure adopted by the appellants and there is some merit in this criticism. In fact, when Ramesh Ramjibhai who filed the initial petition in his capacity as karta of the undivided hindu family business died during the pendency of the appeal, proper applications should have been made by the appeal, proper applications should have been made by the appellants under O. 22, r. 4, to substitute heirs of Ramesh Ramjibhai who was respondent 5 in the appeals before this Court. In case of death of a party to a proceeding who is joined in his capacity as karta of an undivided hindu family, if the undivided hindu family continues to be in existence the succeeding karta can be substituted for the deceased karta of the family and that would be sufficient compliance with Order 22, r. 4. What appears to have been done is to make applications under O. 22, r. 10 and those applications appear to have been granted subject to just exceptions. The applications appear to have been made after the prescribed period of limitation, and in order to avoid seeking condonation of delay for setting aside abatement, O 22, r. 10 appears to have been invoked. Mr. Patel is right in saying that this was a device but in any event if proper applications were made under O. 22. r. 4 the gentleman who became the karta of the undivided hindu family after the death of the former karta could have been substituted on record for the deceased respondent 5. In any event, succeeding karta of the undivided hindu family having been brought on record though not strictly in accordance with law, we do not propese to give any importance to this technical objection and overrule the same. In a decision inter partes, Valjibhai 's case, (supra) this Court struck down the first section 6 notification issued on 14th August 1953 on the ground that the acquisition being for the benefit of a Corporation, though for a public purpose, was bad because no part of the compensation was to come out of the public revenue and the provisions of Part VII of the Act had not been complied with. It would appear that section 4 notification was issued on 10th October 1952 and within less than one year, after completing the enquiry under section 5A and the 912 examination of the report by the appropriate Government, section 6 notification was issued on 4th August 1953. By any yard stick it could not have been said that there was delay, much less an unreasonable delay, in making the necessary declaration under section 6 after the issue of the notification under section 4. The chronology of events that followed in the wake of issuance of a notification under section 6 dated 14th August 1953 would wholly exonerate the Government of any charge of dithering or dilatoriness or inaction. These events be noticed now so as to appreciate the submission on behalf of the appellants that they cannot be accused of any inaction, deliberate dilatoriness or dithering. Soon after the issue of the notification under section 4 dated 10th October 1952 and even before the declaration was made under section 6 as per notification dated 14th August 1953 the respondents filed Civil Suit No. 1262/53 challenging the notification under section 4 and sought an injunction restraining the then State of Bombay from proceeding with the acquisition of the lands in possession of the respondents. An interim injunction was sought but the same was refused. Thereafter came the notification under section 6 dated 14th August 1953. It appears that thereafter the respondents amended the plaint to add a relief for quashing and setting aside the notification under section 6 also. It would thus appear that whatever was required to be done by the Government for completing the proceedings of acquisition was undertaken and finished within a period of less than one year from the date of the notification under section 4. The suit filed by the respondents was dismissed by the trial court as per its judgment dated 28th January 1959. Both the notifications were held valid and they were not found to suffer from any infirmity as contended for and on behalf of the respondents. The respondents carried the matter in appeal to the District Court and this appeal was dismissed by the first appellate court as per its judgment dated 28th September 1959. The respondents preferred second appeal to the High Court but failed to carry conviction with the High Court, with the result that the appeal failed and was dismissed on 1st August 1960. The respondents did not rest content with the dismissal of their second appeal and applied for and obtained special leave of this Court under article 136 of the Constitution. The appeal of the respondents by special leave succeeded as per judgment rendered by this Court on 8th May 1963. The question is whether there was any delay much less unreasonable delay on the part of the State Government in taking follow up action after issuing notification under section 4. The State Government had actually taken the follow up action expeditiously within less than a year when on 14th August 1953, section 6 notification was issued. Even 913 before section 6 notification was issued the respondents filed the suit and went on preferring appeals. They succeeded for the first time in this when this Court allowed their appeals on May 8, 1963. Till then the Government could not be accused of any inaction or delay in taking the follow up action. What was the Government expected to do during the time the respondents went on preferring successive appeals ? Was the Government expected, even though it succeeded in the trial court and first and second appellate courts to foresee in advance that at some stage by some court in the pyramid of appeals its notification under section 6 would be found to be ineffective and forestall such a decision by issuing another section 6 notification ex major cautela ? If the Government succeeded in three courts and was assured by three courts that both its notifications under sections 4 and 6 were valid and effective, it is difficult to appreciate the observation of the High Court that when the Government issued the first section 6 notification it was ineffective exercise of power under section 6 and the Government wrongly went on contending that it was a valid exercise of power. This criticism is not well merited. There would have been some legitimacy in this criticism of the stand of the Government if the Government had lost in the first court and went on filing successive appeals even if each court went on holding the notification ineffective. The reverse is the position. The Government went on succeeding and the courts went on upholding the notification. There was no alternative with the Government but to go on defending its action before the courts to which it was dragged by the respondents after their successive failures. In this background the question was posed by the High Court: Can the Government then contend, when it is found to be wrong by the highest court in the land, that the delay in the exercise of the power under section 6 occasioned by its own wrong stand should be regarded as reasonable ? and answered by it by saying that if the Government had not persisted in wrongly asserting the validity of the first section 6 notification and accepting its invalidity, had cancelled it, the delay in the effective exercise of the power under section 6 could have been avoided. This answer is unfortunately not borne out by the events succeeding the issuance of the first section 6 notification. Not only the Government stand was not found to be wrong but by three courts it was found to be correct. It is this Court in the last appeal found section 6 notification invalid. Could the Government be expected to speculate in advance that ultimately it may fail to convince this Court though it had convinced three other courts and, therefore, right at the time of institution of the suit in the court, concede the contention of the respondents and cancel the first section 6 notification and issue a second one ? There was no guarantee that the second one would not have been challenged and obviously there was 914 no assurance that some defect may not be found by some court even in the second section 6 notification. The Government cannot be put on the horns of a dilemma. Therefore, we find it difficult to agree with the High Court that having adopted a wrong stand and thus taken about 11 years the Government cannot now be permitted to urge that the delay so occasioned should not be regarded as unreasonable. In fact the Government had practically little or no option but to support the decisions of the Courts which were in its favour till this Court for the first time found some defect in its notification under section 6. Any other view may lead to a starting result that every litigant before it can explain the delay on the ground of being led from court to court must foresee a possible error that the hierarchy of courts may at some stage notice and rectify its stand in advance. It would be nothing short of a speculative approach which may ill suit any litigant and more so the Government. The High Court was further of the opinion that even if there was some explanation for the delay from 14th August 1953 to 8th May 1963, there was no explanation for the delay in making the review application in the beginning of 1965 before the Supreme Court and that this period of one year and 9 months remains totally unexplained. In this context it may be advantageous to state that the respondents in the earlier round of litigation had challenged both the notifications under sections 4 and 6 had lost before the first three courts. This Court while allowing the appeal by its judgment dated 8th May 1963 passed the final order as under: "We, therefore, allow the appeals and decree the suits of the appellants with costs in all the Courts. " Literally implemented, the decretal portion would mean that both section 4 and section 6 notifications were struck down. Reading the body of the judgment it clearly transpires that this Court upheld the validity of the notification under section 4. When this inconsistency between the judgment and the decree came to the notice of the Government, Review Petitions Nos. 11 and 12 of 1965 appear to have been filed in the year 1965, and these petitions were allowed by this Court as per its order dated 13th September 1965 by deleting the decretal portion of the judgment as extracted hereinabove and substituting it in the following words: "and decree the suit for permanent injunction restraining the respondents from proceeding further with the land acquisition proceedings under the said notification issued under section 6(1) of the Act with costs in all the courts". 915 The High Court was of the opinion that the Government took a long time of one year and 9 months in ascertaining this inconsistency between the decretal portion of the judgment and the main body of the judgment and there was delay in moving the review applications. In this connection a reference to the affidavit of Mr. D. K. Motwani, Secretary to the Gujarat State Road Transport Corporation for whose benefit the acquisition was made, as well as the affidavit of Shri section R. Pardhan, Under Secretary to Government of Gujarat, would show that after the copy of the judgment was received and it was examined to ascertain what further steps were required to be taken to complete the process of acquisition consistent with the judgment of the Supreme Court, the error was discovered and then the learned advocate was instructed to file review applications. This delay of a year and few months in the context of the facts in this case cannot be said to be unreasonable. The third stage where the High Court found the delay in taking the follow up action was after the grant of review application and before the impugned notification dated 10th October 1967 was issued. This Court allowed the review applications on 13th September 1965. Thereafter the Government directed a fresh enquiry under section 5A. This was done in fairness to the respondents, though Mr. D. V. Patel learned counsel for the respondents was rather critical of this fairness of the Government inasmuch as he said that there was no necessity for a fresh enquiry. Earlier enquiry under section 5A was in 1952. By this time nearly 15 years had elapsed since the enquiry. If the Government in the backdrop of these facts considered it fair and just to order a fresh enquiry to give the respondents an opportunity to file fresh objections, the Government cannot be accused of dithering or whiling away precious time on what was described as a futile exercise. This second enquiry under section 5A was held after giving an opportunity as per notice dated August 1966, to file objections which in fact were filed on August 31, 1966, and then a notice dated 30th December 1966 was served upon the respondents calling upon them to appear for personal hearing on 12th January 1967. The enquiry was adjourned at the request of the respondents 9 times as set out in the affidavit of Shri section R. Pardhan. The enquiry was over on 13th April 1967. During the course of personal hearing the respondents appeared through their advocates Sarvashri K. M. Vyas, A. L. Shah, V. R. Bhatt and N. D. Pandey. The last of the submissions appear to have been made on 13th April 1967. Thereafter the enquiry officer submitted his report and the Government took the prompt action of issuing the impugned notification on 10th October 1967. Even here the High Court found a further unexplained delay after 13th September 1965 till 10th October 916 1967 when the impugned notification was issued. The High Court possibly overlooked the affidavit of Shri section R. Pradhan when it observed that there was no satisfactory answer to the question posed by it, in the affidavit filed on behalf of the respondents. With respect, it is not possible to subscribe to this view of the High Court in view of the facts clearly set out hereinabove. It, therefore, unmistakably transpires that in the facts and circumstances of this case there was no delay, though apparently there appears a time lag of nearly 15 years between section 4 and section 6 notifications because the events in the interregnum clearly made it impossible for the Government to issue a second section 6 notification when it had already issued a first section 6 notification within a period of less than one year from the date of the issue of the section 4 notification and the validity of which was beyond reproach till May 6, 1963. Assuming that the High Court was right in rejecting the explanation preferred by the Government for the delay in issuing the second section 6 notification, would it still be fair to hold that there was an unreasonable delay in issuing the second section 6 notification in view of the specific provision contained in sub section (2) of section 4 of the 1967 Amendment Act which provides that notwithstanding anything contained in clause (b) of sub section (1), no declaration under section 6 of the principal Act in respect of any land which has been notified before the commencement of the Land Acquisition (Amendment & Validation) Ordinance, 1967, under sub section (1) of section 4 of the principal Act, shall be made after the expiry of two years from the commencement of the Ordinance. The Ordinance came into force on 20th January 1967. Simultaneously a proviso was added to sub section (1) of section 6 in the following terms: "Provided that no declaration in respect of any particular land covered by a notification under section 4 sub section (1) published after the commencement of the Land Acquisition (Amendment & Validation) Ordinance, 1967, shall be made after the expiry of three years from the date of such publication". A combined reading of the provisions contained in sub section (2) of section 4 with the one contained in the proviso to sub section (1) of section 6 introduced by the Amendment Act would clearly put an end to the unsatisfactory situation which troubled the High Court in this case. In view of the statutory provision noticed herein the Government would be precluded from making a declaration under section 6 after the expiry of a period of three years from the date of the issue of a notification under section 4 which may be issued after the Amendment Act came into force. And in respect of those section 4 notifications which were issued perior to the 917 commencement of the Ordinance hereinabove noted on 20th January 1967 any notification which is required to be issued under section 6 must be made within a period of two years whereafter as a necessary corollary all section 4 notifications issued prior to 20th January 1967 would stand exhausted and would not provide either a source or reservoir for issuing section 6 notification. Consequently the mischief sought to be set at naught by the High Court by reading by necessary implication in the scheme of sections 4, 5A and 6 the concept of exercise of statutory power within a reasonable time has been statutorily remedied. The apprehensions of the High Court that if not checkmated by implying that such statutory power must be exercised within a reasonable time to curb arbitrary exercise of power to the detriment of a citizen have been taken note of by the legislature and fully met. Absence of any decided case on the subject of which High Court took note could not permit an inference as has been done by the High Court that in the absence of a decided case the legislature would not remedy the possible mischief. Legislature often does take note of a possible abuse of power by the executive and proceed to nip it in the bud by appropriate legislation and that has been done in this case. There is now no more possibility of a gap of more than three years between section 4 and section 6 notifications because any declaration made after the expiry of a period of three years from the date on which section 4 notification is issued would be invalid as being beyond the prescribed period. These newly inserted provisions were brought to the notice of the High Court. Now, as pointed out earlier, the Ordinance came into force on 20th January 1967. The notification under section 4 in this case was prior to the commencement of the Ordinance. Therefore, the provision contained in sub section (2) section 4 of the 1967 Amendment Act would be directly attracted. The Government could, therefore make a declaration within a period of two years from 20th January 1967. The Government has in fact issued the impugned notification under section 6 on 10th October 1967, i.e. within the period prescribed by the statute. The question then is: when a statute confers power and prescribes time within which it can be exercised, could it ever be said that even though the power is exercised within the statutory period yet the Court can examine the question of delay and record a finding that there was an unreasonable delay in exercise of the power and, therefore, the exercise of power is bad ? This approach would defeat the very purpose for prescribing a sort of a period of limitation on exercise of power. When a period is prescribed for exercise of power it manifests the legislative intention that the authority exercising the power 918 within the prescribed time could not at least be accused of inaction or dithering and, therefore, such exercise of power could not be said to be bad or invalid on the only ground that there was unreasonable delay in the exercise of the power. The very prescription of time in heres a belief that the nature and quantum of power and the manner in which it is to be exercised would consume at least that much time which the statute prescribes as reasonable and, therefore, exercise of power within that time could not be negatived on the only ground of unreasonable delay. Therefore, in this case it is difficult to agree with the High Court that there was an unreasonable delay in exercise of power and hence the exercise was either bad or invalid. The High Court by implication read a fetter on the power of the Government to issue section 6 notification within a reasonable time after the issue of section 4 notification after observing that there was no express provision that such power ought to be exercised within a reasonable time. In raising this implication the High Court took into account the postulate that every statutory power must be exercised reasonably and a reasonable exercise of power implies its exercise within a reasonable time. Coupled with it two other factors were taken into consideration such as the effect of issuing a section 4 notification on the rights and obligations of the owner of the land whose land is proposed to be acquired; the right of the Government to unilaterally cancel section 4 notification in the event of falling prices; history of legislation; and delayed issue of section 6 notification would deny adequate compensation to the owner. But by the time the High Court examined this matter the legislature had already introduced a provision by which the power to issue section 6 notification was to be exercised within the prescribed period of time. At that stage there hardly arose a question of a search of the fetter on the power of the Government ignoring to some extent the express statutory provision. Therefore, while appreciating the anxiety of the High Court we are of the opinion that once the legislature stepped in and prescribed a sort of period of limitation within which power to issue notification under section 6 could be exercised it was not necessary to go in search of a further fetter on the power of the Government by raising the implication. It thus appears to be satisfactorily established that the impugned section 6 notification was issued within the prescribed period introduced by the 1967 Amendment Act and, therefore, could not be struck down on the only ground that the power to issue second section 6 notification was exercised after an unreasonable and unexplained delay. This being the only infirmity found by the High Court to which we are not able to 919 subscribe, it must be held that the second section 6 notification dated 10th October 1967 is valid and legal. Accordingly both these appeals succeed and are allowed and the decision of the High Court is set aside and Special Civil Application No. 729/68 filed by the respondents is dismissed but in the circumstances of the case, with no order as to costs. S.R. Appeals allowed.

A suit (No. 1262/53) Challenging the notification under Section 4 of the Land Acquisition Act dated 10 10 1952 issued by the former Government of Bombay and later another notification under Section 6 of the Act dated 14 8 1953 (issued during the pendency of the suit), notifying that the final plots Nos. 41. 42 and 43 were required for public purpose viz. State Transport was dismissed by the Trial Court on 28 1 1959. The first and the second appeals having failed, the respondents came up to this Court. This Court in its decision inter partes, Valji Bhai 's case struck down Section 6 notification on the ground that the acquisition being for the benefit of a Corporation, though for a public purpose was bad beeause no part of the compensation was to come out of the public revenue and the provisions of Part VII of the Act had not been complied with. After the bifurcation of the erstwhile State of Bombay, the land acquisition proceedings came within the cognizance of Gujarat State. The State by its letter dated 22 8 1966 decided to contribute towards compensation a sum of Re. 1/ which was subsequently raised to Rs. 500/ . The Government felt that as long time has elapsed since the earlier report under Section 5A was submitted by the Collector, a fresh enquiry should be made. Accordingly the Additional Special Land Acquisition Officer issued a notice dated 1 8 1966 intimating to the respondents that if they so desired they might submit their further objections on or before 16 8 1966. Complying with this notice, the respondents submitted further objections on 31 8 1966 and they were also given a personal hearing. After examining the enquiry report submitted by the enquiry officer the Government of Gujarat issued a notification under Section 6 on 10 10 1967. The respondents questioned the validity and legality of this notification in the writ petition filed by them on 14 2 1968 on the only ground that it was issued more than 15 years after the date of Section 4 notification. The High Court was of the opinion that if the power to make a declaration under Section 906 6 is exercised after an unreasonable delay from the date on which notification under Section 4 is issued such exercise of power would be invalid and it accordingly struck down the notification under Section 6 of the Act. Hence the two appeals one by the State of Gujarat and the other by the Gujarat State Road Transport Corporation. Allowing the appeals by certificate, the Court ^ HELD: 1. The impugned section 6 notification was issued within the prescribed period introduced by the 1967 Amendment Act and, therefore could not be struck down on the only ground that the power to issue second section 6 notification was exercised after an unreasonable and unexplained delay. Section 6 notification, dated 10th october 1967, therefore is valid and legal.[918G H, 919A] 2. A combined reading of the provisions contained in sub section (2) of Section 4 with the one contained in the proviso to sub section (1) of Section 6 introduced by the Land Acquisition (Amendment and Validation) Act, (Central Act 13 of 1967) with effect from 20 1 1967 would make it clear that the Government would be precluded from making a declaration under section 6 after the expiry of a period of three years from the date of issue of a notification under Section 4 which may be issued after the Amendment Act came into force. And in respect of those section 4 notifications which were issued prior to the commencement of the Ordinance i.e. 20 1 1967, any notification which is required to be issued under section 6 must be made within a period of two years whereafter as a necessary corollary all section 4 notifications issued prior to 20th January 1967 would stand exhausted and would not provide either a source of reservoir for issuing section 6 notification. Consequently the mischief sought to be set at naught by the High Court by reading by necessary implication in the scheme of sections 4, 5A, and 6 the concept of exercise of statutory power within a reasonable time has been statutorily remedied. The apprehensions of the High Court that if not checkmated by implying that such statutory power must be exercised within a reasonable time to curb arbitrary exercise of power to the detriment of a citizen have been taken note of by the legislature and fully met. Absence of any decided case on the subject of which High Court took note could not permit an inference as has been done by the High Court that in the absence of a decided case the legislature would not remedy the possible mischief. Legislature often does take note of a possible abuse of power by the executive and proceed to nip it in the bud by appropriate legislation and that has been done in this case. There is now no more possibility of a gap of more than three years from the date on which section 4 notification is issued, otherwise it would be invalid as being beyond the prescribed period. [916 G H, 917 A D] In the instant case, the notifications under section 4 was prior to the commeneement of the ordinance. Therefore, the provision contained in sub section (2) of section 4 of the 1967 Amendment Act would be directly attracted. The Government could, therefore, make a declaration within a period of two years from 20th January 1967. The Government has in fact issued the impugned notification under section 6 on 10th October 1967 i.e. within the period prescribed by the Statute. [917 E F] 907 3.When a period is prescuibed for exercise of power it manifests the legislative intention that the authority exercising the power within the prescribed time could not at least be accused of inaction or dithering and, therefore, such exercise of power could not be said to be bad or invalid on the only ground that there was unreasonable delay in the exercise of the power. The very prescription of time inheres a belief that the nature and quantum of power and the manner in which it is to be exercised would consume at least that much time which the statute prescribes as reasonable and, therefore, exercise of power within the time could not be negatived on the only ground of unreasonable delay. [917H, 918 A B] Therefore, in this case, there was no unreasonable delay in exercise of power and hence the exercise was neither bad nor invalid. [918B] 4. Once the legislature stepped in and prescribed a sort of limitation within which power to issue notification under section 6 could be exercised, it was not necessary to go in search of a further fetter on the power of the Government by raising the implication. [918F G] In this case, the High Court by implication read a fetter on the power of the Government to issue section 6 notification within a reasonable time after the issue of section 4 notification after observing that there was no express provision that such power ought to be exercised within a reasonable time. In raising this impliccation the High Court took into account the postulate that every statutory power must be exercised reasonably and a reasonable exercise of power implies its exercise within a reasonable time. Coupled with it two other factors were taken into consideration such as the effect of issuing a section 4 notification on the rights and obligations of the owner of the land whose land is proposed to be acquured; the right of the Government to unilaterally cancel section 4 notification in the event of fall in prices; history of legislation; and delayed issue of section 6 notification would deny adequate compensation to the owner. But by the time the High Court examined this matter the legislature had already introduced a provision by which the power to issue section 6 notification was to be exercised within the prescribed period of time. At that stage there hardly arose a question of a search of the fetter on the power of the Government ignoring to some extent the express statutory provision. [918C F] 5. In the case of death of a party to a proceeding who is joined in his capacity as Karta of an undivided Hnndu family, if the undivided Hindu family continues to be in existence the succeeding Karta can be substituted for the deceased Karta of the family and that would be sufficient compliance with Order XXII Rule 4 of C.P.C. [911D E] In the insant case an application made under Order XXII Rules 10 C.P.C. made after the prescribed period of limitation and in order to avoid seeking condonation of delay for setting aside abatement is not correct. [911E] [The Court, however, overruled the objection on this ground since the L.rs. have already been substituted].

TION: Civil Appeal Nos. 1 3 & 14 Of 1971 From the Judgment & Order dated 2. 68 of the Kerala High Court at Ernakulam in Writ Petition NOS. 107 & 108/68. F A. section Nabiar and P. Parmeswaran, for the Appellant. N. Sudhakaran. P. K. Pallai, V. J. Francis, N. M. Popli A. C. Pudissary for the respondents. DESAI, J. The respondents in these two appeals filed Original Petitions Nos. 2892 3073 of 1965 challenging the validity of the licence fee levied by the appellant 'The City Corporation of Calicut ' to be paid for use of the land or premises for soaking of coconut husks. The appellant Corporation by its resolution dated January 25. 1963 levied licence fees in respect of various items set out in 1010 Schedule IV of the Calicut City Municipal Act, 190l subsequently restyled as Kerala Municipal Corporation Act, 1964 ( Corporation act ' for short) including for use of premises and land for soaking coconut husks. The respondents are admittedly carrying on the trade of soaking coconut husks and they had not taken out a licence for carrying on the trade. The Commissioner of the appellant Corporation issued a notice to each of the respondents calling upon him to show cause why within three days of the receipt of the notice, the respondents should not be prosecuted for using premises for soaking coconut husks without obtaining a licence as required by law. The respondents challenged the validity and legality of the afore mentioned notices issued by the Corporation and served upon them in the afore mentioned two writ petitions on diverse grounds, inter alia contending that if the licence fee Is levied as a fee, no service is rendered or special advantage or favour is conferred by the Corporation on the respondents for collecting such fee and that there is no quid pro quo and that the relevant provisions of the Act do not enable the Corporation to levy such a fee. Alternatively, it was contended that if it is levied as a tax, it is beyond the taxing powers of the Corporation. The Corporation filed its counter affidavit and sought to justify the fee as a licence fee or in the alternative it was contended that the Corporation had the power to levy a tax of the nature levied by it. Both the petitions came up before a learned Single Judge of the high Court who held that the levy of the impugned licence fee is not legal in the absence of conferment of special benefit on the petitioners and other persons who soak coconut husks. The alternative submission that the Corporation had the power to levy it as a tax was negatived observing that the power to levy the various taxes conferred on the Corporation under Chapter V of the 1964 Act does not comprehend the impugned levy and accordingly held that as a tax it was not valid and legal. Accordingly both the writ petitions were allowed and the impugned notices were quashed. The Corporation after unsuccessful Writ Appeals Nos. 107 108 of l967 filed these Appeals by special leave. Mr. A. section Nambiar, learned counsel who appeared for the appellant Corporation urged that the levy of licence fee as fee is fully justified and the High Court was In error in rejecting it as 1011 such on the ground that the respondents do not enjoy any special A service or benefit for paying the fees on the traditional view of law more or less than prevailing that for a fee there must necessarily be quid pro quo. He submitted that the trend revealed by recent decisions of this Court would show that traditional view about fee has undergone a sea change and that the demarcating line between tax and fee has become so blurred as to become almost invisible. It w s alternatively submitted that even according to traditional view the Corporation has placed enough evidence on record to show that the respondents have been and are receiving special service or benefit in return for the fees levied and paid It is not necessary to examine the alternative submission save saying in passing that the respondents do enjoy certain benefits from the functions discharged by the Corporation. The first limb of the contention must prevail in view. of the three resent decisions of this Court. in Municipal Corporation of Delhi & Ors. vs Mohd Yasin & Anr.1) after a review of the earlier decisions it was observed as under: "What do we learn from these precedents? We learn that there is no generic difference between a tax and a fee, though broadly a tax is a compulsory exaction as part of a common burden, without promise of any special advantages to classes of tax payers whereas a fee is a payment for services rendered, benefit provided or privilege conferred. Compulsion is not the hallmark of the distinction between a tax and a fee. That the money collected does not go into a separate fund but goes into the consolidated fund does not also necessarily make a levy a tax. Though a fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct, a mere casual relation may be enough. Further, neither the incidence Or the fee nor the service rendered need be uniform. that others besides those paying the fees are also benefited does not detract from the character of the fee. In fact, the special benefit or advantage to the payers of the fees may even be secondary as compared with the primary motive of regulation in the public interest. Nor is the court to assume the role of a cost accountant. It is neither necessary nor expedient to weigh too meticulously the coat of the services rendered etc. against the amount of fees collected so as to evenly balance the two. A broad co relationship is all (1) 1012 that is necessary quid pro quo in the strict sense is not the one and only true index of a fee; nor is it necessarily absent in a tax This view was reaffirmed in Sreenivasa General Traders and Others vs State of Andhra Pradesh and Others(l) observing that it is increasingly realized that the element of quid pro quo in the strict sense is not always a sine qua non for a fee. However, co relationship between the levy and the services rendered or expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a reasonable co relationship between the levy of the fee and the services rendered. In a very recent decision in M/s Amarnath Om Prakash and Others vs State of Punjab & Ors. (2) the Court reiterated the principle laid down in Mohd. Yasin 's case. It is thus well settled by numerous recent decisions of this Court that the traditional concept in a fee of quid pro quo is under going a transformation and that though the fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct, a mere casual relation may be enough. It is not necessary to establish that those who pay the fee must receive direct benefit of the services rendered for which the fee is being paid. If one who is liable to pay receives general benefit from the authority levying the fee the element of service required for collecting fee is satisfied It is not necessary that the person liable to pay must receive some special benefit or advantage for payment of the fee. Applying the ratio of these decisions it is incontrovertible that the appellant corporation is rendering numerous services to the persons within its areas of operation and that therefore the levy of the licence fee as fee is fully justified Soaking coconut husks emit foul odour and contaminates environment. The Corporation by rendering scavenging services, carrying on operations for cleanliness of city, to make habitation tolerable is rendering general service of which amongst others appellants are beneficiaries. Levy as a fee is thus justified. (1) ; (2) [1985] I S.C.C. 345. 1013 In this view of the matter it is not necessary to consider the A alternative submission that the levy as a tax is legal. Accordingly, both the appeals are allowed and the decision of the learned Single Judge as well as the decision of the Division Bench in writ appeals are set aside and the writ petitions filed by the petitioners are dismissed with no order as to costs. N. V. K. Appeal allowed.

The appellant Corporation levied licence fee for use of premises and land for soaking coconut husks under Schedule IV of the Calicut City Municipal Act 1961, Subsequently restyled as the Kerala Municipal Corporation Act 1961. The respondents were carrying on the trade of soaking coconut husks, and as they had not taken out the requisite licence, the Commissioner of the Corporation issued notices to show cause why they should not be prosecuted. The respondents challenged the validity and legality of the notices in Writ Petitions to the High Court, contending that if the licence fee is levied as a fee, no service is rendered or special advantage or favour is conferred by the Corporation for collecting such fee and that there is DO quid pro quo and that the relevant provisions of the Act do not enable the Corporation to levy such a fee. It was further contended that if the levy is treated is a tax, it is beyond the taxing powers of the Corporation. The Corporation contested the Writ Petitions justifying the fee as licence fee and that it had the power to levy a tax of the nature levied by it. A Single Judge of the High Court allowed the Writ Petitions, and quashed the impugned licence fee as not legal in the absence of conferment of special benefits in respect of persons who soak coconut husks. It was further held that the power to levy the various taxes conferred on the Corporation under Chapter V of the 1961 Act did not comprehend the impugned levy and consequently the tax was not valid and legal. The writ appeals of the Corporation were dismissed. 1009 Allowing the Appeals, this Court ^ HELD: By numerous recent decisions of this Court it is well settled that the traditional concept in a fee of quid pro quo is undergoing a transformation and that though the fee must have relation to the services rendered or the advantages conferred, such relation need not be direct, a mere casual relation may be enough. It is not necessary to establish that those who pay the fee must receive direct benefit of the services tendered for which the fee is being paid. If one who is liable to pay receives general benefit from the authority levying the fee the element of service required for collecting fee is satisfied. It is not necessary that the persons liable to pay must receive some special benefit or advantage for payment of the fee. [1012E F] In the instant case, it is incontrovertible that the appellant Corporation is rendering numerous services to the persons within its areas of operation and that therefore the levy of the licence fee as fee is fully justified. Soaking coconut husks emit foul odour and contaminates environment. The Corporation by rendering scavanging services, carrying on operations for cleanliness of the city, to make habitation tolerable is rendering general service of which amongst others respondents are beneficiaries. a The decisions of the Single Judge and of the Division Bench are set aside and the Writ Petitions of the respondents are dismissed. [1012 G H] Municipal Corporation of Delhi & Ors. vs Mohd. Yasin Others vs State of Andhra Pradesh and Others ; & M/s Amarnath Om Prakash and Others vs State of Punjab & Ors. (1985) I SCC 345 referred to.

iminal Appeal No. 97 of 1964. Appeal by special leave from the judgment and order dated January 29, 1964 of the Madhya Pradesh High Court (Gwalior Bench) in Criminal Revision No. 5 of 1963. I. N. Shroff, for the appellant. R. L. Anand and section N. Anand, for the respondents. 474 The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court (Gwalior Bench) in a Criminal Revision filed by M/s. Azad Bharat Finance Company, one of the respondents in this appeal. The revision arose out of the following facts. On May 3, 1961, truck No. M.P.E. 1548, while it was parked at the bus station, Guna, was searched by the Excise Sub Inspector and he found contraband opium weighing about three seers in it. Five persons were challaned for the alleged illegal possession of contraband opium and for its transport, under sections 9A and 9B of the Opitum Act (1 of 1878) as modified by the Opium (Madhya Bharat Amendment) Act, 1955, hereinafter referred to as the Madhya Bharat Act. Harbhajan Singh, one of the accused, is alleged to have absconded, and, therefore, he was tried separately later on. The Additional District Magistrate, Guna, convicted three persons and acquitted one person. Regarding the truck, he ordered that the final orders regarding the disposal of the truck would be passed later, on the conclusion of the trial of Harbhajan Singh. It may be Mentioned that Harbhajan Singh had taken this truck. under a hire purchase agreement from M/s. Azad Bharat Finance Co. and he Was not present in or near the truck when the contraband opium was taken possession of by the Excise Officer. On May 28, 1962, M/s. Azad Bharat Finance Co, applied in the Court of Shri M. C. Bohre, in which the trial of Harbhajan Singh was going on. for the release of the truck. On September 7. 1962. Harbhajan Singh was acquitted by the Magistrate but he ordered that the truck be confiscated to the State. The Magistrate was of the opinion that section 11 of the Madhya Bharat Act showed ,Clearly that the truck in which the opium was carried had to be forfeited in all circumstances. He observed: "By the use of the word "shall" this Court was ,compelled that the truck be seized, may be there was the hand of the owner in it or not and neither there is any provision that the truck owner had the knowledge or not of the opium being carried. " Both Harbhajan Singh and M/s. Azad Bharat Finance Co. filed revisions in the Court of the Sessions Judge. The Sessions Judge also held that the word "shall" in section 11(d) was mandatory and not directory. He observed: "Though it is correct that the truck was not used for carrying opium with the knowledge or connivance of the owner but section 11 (d) as applicable in this state does not give discretion to the Court in not ordering the confiscation of the conveyance used for carrying contraband opium. " 475 M/s. Azad Bharat Finance Co. filed a revision in the High Court. The High Court held as follows: "The word "shall" occurring in Sec. 11 of the M.P. Opium Act means "may" and that it confers discretion on the court to confiscate the conveyance provided it belongs to the offender. But where it is not so, and, the owner of the truck has neither authorised the offender to transport opium, nor is there any reason to believe that the owner knew that his vehicle was likely to be used for transporting contraband opium, the conveyance should not be confiscated because confiscation in such circumstances would be tantamount to punishing one, who has not committed any offence under the Opium Act. " The learned counsel for the appellant, Mr. Shroff, contends that the Opium (Madhya Bharat Amendment) Act, 1955 (15 of 1955) which amended the Opium Act, 1878, deliberately employed a different phraseology with the intention of making it obligatory on a Court to confiscate a vehicle in which contraband opium had been transported. He points out that in the Opium Act, 1878, in section 11, the. relevant words Ate as follows: " section 11 Confiscation of opium. In any case in which an offence under section 9 has been committed, The vessels, packages and covering in which any opium liable to confiscation under this section is found, and the other contents (if any) of the vessel or package in which such opium may be concealed, and the animals and conveyances used in carrying it, shall likewise be liable to confiscation. " He stresses the words "liable to confiscation" which according to him and certain authorities clearly give a discretion to the Court whether to confiscate the vehicle or not. In the Madhya Bharat Amendment Act the section providing for confiscation is as follows: "section 11. In any case in which an offence under Sections 9, 9A, 9B, 9C, 9D, 9E, 9F and 9G has been committed, the property detailed herein below shall be confiscated: (d)the receptacles, packages and coverings in which any opium liable to confiscation under this Section is found, and the other contents (if any) of the receptacle or package in which such opium may be concealed, and the animals, carts, vessels, rafts and conveyances used in carrying it. " In our opinion, the High Court was correct in reading section 11 of the Madhya Bharat Act as permissive and not obligatory. It is well settled that the use of the word "shall" does not always 476 mean that the enactment is obligatory or mandatory, it depends upon the context in which the word "shall" occurs and the other circumstances. Three considerations are relevant in construing section 1 1. First, it is not denied by Mr. Shroff that it would be unjust to confiscate the truck of a person if he has no knowledge whatsoever that the truck was being used for transporting opium. Suppose a person steals a truck and then uses it for transporting contraband opium. According to Mr. Shroff, the truck would have to be confiscated. It is well recognised that if a statute leads to absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. (Vide Tirath Singh vs Bachittar Singh)(1). Secondly, it is a penal statute and it should, if possible, be construed in such a way that a person who has not committed or abetted any offence should not be visited with a penalty. Thirdly, if the meaning suggested by Mr. Shroff is given, s.11 (d) of the Madhya Bharat Act may have to be struck down as imposing unreasonable restrictions under article 19 of the Constitution. Bearing all these considerations in mind, we consider that section II of the Madhya Bharat Act is not obligatory and it is for the Court to consider in each case whether the vehicle in which the contraband opium is found or is being transported should be confiscated or not, having regard to all the circumstances of the case '. Mr. Shroff then contends that if the matter is discretionary. the High Court should not have interfered in the discretion exercised by the learned Sessions Judge. But apart from the question that this point was not raised before the High Court, both the Magistrate and the Sessions Judge ordered confiscation of the truck on the ground that they had no option in the matter. Mr. Shroff then raises the point that M/s. Azad Bharat Finance Co. was a third party in the case and was not entitled to apply for setting aside the order of confiscation or request for the, return of the truck. This point was not raised before the High Court and, therefore, cannot be allowed to be raised at this stage. In the result the appeal fails and is dismissed. Appeal dismissed. (1) ; at 464.

H took a truck on hire from the respondent company. The truck was found to contain contraband opium and H was tried for offences under sections 9A and 9B of the Opium Act (10 of 1878) as modified by the Opium (Madhya Bharat Amendment) Act 1955. The company made an application for the release of the truck but the magistrate while acquitting H on the ground that he had no knowledge that the truck was carrying opium, confiscated the truck under section 11 of the Madhya Bharat Act. He took the view that the use of the word 'shall ' in that section gave him no option but to confiscate the truck. The Sessions Judge took the same view but the High Court held that the word 'shall in the context of the section was not mandatory and in the circumtances of the case the truck should not have been confiscated. The State appealed to this by special, leave. HELD: The word 'shall ' is not always mandatory; it depends upon the context in which the word occurs and the other circumstances [475H] Three considerations are relevant in construing section 11. First it would be unjust to confiscate the truck of a person if he has no knowledge whatsoever that the track was being used for transporting the opium. Secondly it is a penal '. statute and it should if possible be construed in such a way that a person who has not committed or abetted any offence should not be visited with a penalty. Thirdly, if confiscation was obligatory under the section, the section may have to be struck down as imposing an unreasonable restrictions under article 19 of the Constitution. [476 A D] Section 11 of the Madhya Bharat Act is not therefore to be construed as obligatory and it is for the court to consider in each case whether the articles in which the contraband opium is found or is being transported should be confiscated or not having regard to all the circumstances of the case. [476 D E] Tirath Singh vs Bachittar Singh, ; , referred to.

Civil Appeal No. 360 of 1971. From the Judgment and order dated the 27/29 1 1965 of the Bombay High Court in Income Tax Reference No. 75 of 1961. section C. Manchanda, K. J. John and J. B. Dadachanji for the Appellant. section T. Desai, Girish Chandra and M. N. Shroff for the Respondent. The Judgment of the Court was delivered by GUPTA, J. The appellant is a private limited company. The assessment year is 1955 56 for which the relevant previous year ended on June 30, 1954. The shareholders of the appellant company arc Mulraj Kersondas, members of his family, allied concerns and nominees only. In 1944 the appellant purchased the managing agency of the Elphinston Spinning and Weaving Mills Ltd. for Rupees six lakhs and thereafter entered into a separate managing agency agreement with the managed company for a period of seventeen years. The appellant 's only source of income was this managing agency in the relevant year. Mulraj and his group also held among themselves 25,000 ordinary and 10,000 preference shares of the Elphinston Spinning and Weaving Mills Ltd. Mulraj entered into an agreement for sale of these shares with K. D. Jalan of Calcutta for a consideration of Rupees forty five lakhs; one of the terms of the agreement was that Mulraj would have the managing agency of the appellant company terminated. In implementation of this agreement Mulraj wrote to the appellant company on October 21, 1953 asking the company to give up the managing agency on receipt of a sum of Rupees ten lakhs as compensation which he promised to pay. On the same day the appellant company passed a resolution accepting Mulraj 's offer and 775 wrote to the managed company, Elphinston Spinning and Weaving Mills Ltd., tendering resignation of its office as managing agents. The resignation was in due course accepted. The assessee received from Mulraj a sum of Rs. 9,95,000/ as compensation for premature termination of the managing agency, Rs. 5,000/ having been paid by Mulraj as brokerage to one Dhirajlal Maganlal. The amount received was credited to the Capital Reserve Account in the appellant 's books for the year ending on June 30, 1954 described as "compensation for loss of office". In the assessment year 1955 56 for which the appellant 's previous year ended on June 30, 1954, the Income tax officer assessed the entire amount of Rupees ten lakhs in the hands of the appellant company under section 10(5A) of the Income Tax Act, 1922. Section 10(1) of the Income Tax Act, 1922 states that the "tax shall be C payable by an assessee under the head "Profits and gains of business, profession or vocation in respect of the profit or gains of any business, profession or vocation carried on by him." Sub section (5A) was inserted in section 10 by the Finance Act, 1955 with effect from April 1, 1955, the relevant part of which is in these terms: "(5A) Any compensation or other payment due to or received by, (a) a managing agent of an Indian company at or in connection with the termination or modification of his managing agency agreement with the company; (b) a manager of an Indian company at or in connection with the termination of his office or modification of the terms and conditions relating thereto; (c) any person, by whatever name called, managing the whole or substantially the whole affairs of any other company in the taxable territories, at or in connection with the termination of his office or the modification of the terms and conditions relating thereto; (d) any person, by whatever name called, holding an agency in the taxable territories for any part of the activities relating to the business of any other person, at or in connection with the termination of his agency or the modification of the terms and conditions relating thereto; shall be deemed to be profits and gains of a business carried on by the managing agent, manager or other person, as the case may be, and shall be liable to tax accordingly;" The company preferred an appeal to the Appellate Assistant Commissioner against the order of the Income tax officer. The Appellate Assistant Commissioner allowed the appeal holding that section 10(5A) created a new source of income for which the previous year was not the previous year for the managing agency business which ended on June 30, 1954, that the compensation of Rupees 776 ten lakhs which the appellant received in October, 1953 fell in the financial year 1953 54 which would be the previous year for this income for which the assessment year was 1954 55 which was before sub section (5A) of section 10 was enacted, and the fact that the appellant had entered the amount in its books for the year that ended on June 30, 1954 could not be taken as an exercise of option by the assessee accepting the said year as the previous year in respect of the receipt. The Appellate Assistant Commissioner further held that if at all the amount was taxable in the assessment year 1955 56, the assessee was entitled to a deduction of Rupees six lakhs paid for acquiring the managing agency. The Department took an appeal to the Tribunal against the order of the Appellate Assistant Commissioner. The Tribunal was of opinion that section 10(5A) only regards the compensation received by the managing agent as profits and gains of a business and does not create a fresh source therefore, and as the amount in question in this case was received in the accounting year relevant to the assessment year 1955 56 it was taxable in the assessment year 1955 56. The Tribunal however agreed with the Appellate Assistant Commissioner that the assessee was entitled to a deduction of Rupees six lakhs which the assessee had paid for acquiring the managing agency, and allowed the appeal partly holding that the assessee was liable to pay tax on the sum of Rs. 3,95,000/ . At the instance of the parties the Tribunal referred the following two questions to the High Court under section 66(1): "(i) Whether the sum of Rs. 10 lakhs is income assess able in the year 1955 56 by virtue of Section 10 (5A) ? (ii) If the answer is in the affirmative, whether the initial cost of acquisition of the Managing Agency of Rs. 6 lakhs and Rs. 5000/ paid as brokerage on sale are deductible ?" The first question was referred at the instance of the assessee and the second at the instance of the Department. The High Court overruled the contention of the assessee that the amount in question was income from a new source for which the previous year was 1953 54, and answered the first question in the affirmative and in favour on the revenue. As regards the second question, the High Court answered it in favour of the assessee and upheld the order of the Tribunal. In the present appeal brought on a certificate under section 66A(2), the assessee challenges the correctness of the answer given by the High Court to the first question. "Previous year" is defined in section 2(11) of the Income Tax Act, 1922 and the relevant part of the definition is as follows: "(11) 'Previous year ' means in respect of any separate source of income, profits and gains (a) the twelve months ending on the 31st day of March next preceding the year for which the assessment is to be made, or, if the accounts of the assessee have 777 been made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of March, then at the option of the assessee the year ending on the day to which his accounts have so been made up ;" As stated already, sub section (5A) of section 10 came into force on April 1, 1955. Therefore, the amount in question, if received by the assessee during the previous year for the assessment year 1955 56, would be taxable under that sub section. By a legal fiction introduced by sub section (5A) any amount received by a managing agent as compensation for the termination of his managing agency agreement which would otherwise have been a capital receipt is to be deemed as profits and gains of a business carried on by the managing agent. The appellant contends that sub section (SA) indicates that this deemed income is to be treated as receipt from a New source and, that being, so, the relevant previous year for this income would not necessarily be the year ending on June 30, 1954 which was the previous year for the managing agency business, and the assessee should have been given an opportunity to choose the previous year in respect for the receipt in question; if the financial year 1953 54 is taken as the previous year for this income from a new source, the argument proceeds, then the amount would not be taxable in the assessment year 1955 56. It is further argued that the amount received as compensation could not be profits and gains of the managing agency business because the business itself was being terminated. The words of the sub section, according to learned counsel for the appellant, indicate that the receipt is to be treated as income from a new and independent source. Sub section (5A) states, inter alia, that any compensation or other payment received by a managing agent in connection with the termination of his managing agency agreement shall be deemed to be profits and gains of "a business" carried on by the managing agent. The use of the indefinite article before the word 'business ', it is submitted, makes it plain that the income is not relatable to the managing agency business but to a new and separate source. We are unable to accept the contention. The fiction introduced by sub section (5A) regards the capital receipt as income and does not extend to treating the termination of managing agency itself as a business. The amount received by the appellant was a payment for the termination of the managing agency business and, as such, the receipt is obviously related to that business. It is of course true that the amount was not earned in carrying on the business of managing agency, hut it is clear that the source of the receipt was the managing agency business itself. It cannot therefore be said that the receipt was income from a new and independent source. In our opinion the High Court was right in holding that in enacting sub section (5A) the legislature was concerned only with providing a head under which the receipt which has been deemed to be income could be brought to tax and was not concerned with creating a new source for that deemed income. Two decisions cited on behalf of the respondent, one of the Bombay High Court, Commissioner of Income tax, Bombay vs Sir 778 Chunilal vs Mehta & Sons Private Ltd and the other of the Madras High Court, R. V. Lakshmiah Naidu and Co. vs Commissioner of Income Tax, Kerala and Coimbatore, have both held that the compensation paid for the termination of a managing agency business is a payment in relation to the said business, and, therefore, the previous year relevant to that receipt would be the same as the previous year for the managing agency business itself. In our view these two decisions state the law on the point correctly. The appeal fails and is dismissed with costs. S.R. Appeal dismissed.

The assessee appellant received in October, 1953, a sum of Rs, 9,95,000/ out of Rs. 10,00,000 compensation for the premature termination of its managing agency business, a sum of Rs. 5,000/ , having been deducted towards brokerage. The said amount was credited to the Capital Reserve Account in its books for the year ending on June 30, 1954 described as "compensation for loss of office". In the assessment year 1955 56, for which, the appellant 's previous year ended on June 30, 1954, the Income Tax Officer assessed the entire amount of Rs. 10,00,000 in the hands of the appellant company under section 10 (5A). The Company preferred an appeal to the Appellate Assistant Commissioner who allowed the appeal holding that (i) section 10(5A) created a new source of income for which the previous year was not the previous year for the managing agency business ending on June 30, 1954; (ii) the compensation of Rs. 10,00,0000 which the assessee received in October, 1953 fell in the financial year 1953 54 ` which would be the previous year for this income for which the assessment year was 1954 55, which was before the enactment of sub section SA of section 10; (iii) the fact that the appellant had entered the amount in its books for the year that ended on June 30, 1954, could not be taken as an exercise of option by the assessee, accepting the said year as the previous year in respect of the receipt; and (iv) if at all the amount was taxable in the assessment year 1955 56, the assessee was entitled to a deduction of Rs. 6,00,000/ paid for acquiring the managing agency. The appeal preferred by the Department was partly allowed. Tho Tribunal agreed with the Appellate Assistant Commissioner that the assessee was entitled to a deduction of Rs. which the assessee had paid for acquiring the managing agency business. The Tribunal however held that Sec. 10 (5A) does not increase a fresh source of income that since tho amount in question was received in the accounting year relevant to the assessment year 1955 56 it was taxable in the assessment year 1955 56; The High Court on a reference under section 66(1) of the Act on the two questions namely (i) Whether the sum of Rs. 10 lakhs is income assessable in the year 1955 56 by virtue of Section 10(5A)? and (ii) If the answer is in the affirmative, whether the initial cost of acquisition of the Mananging Agency of Rs. 6 lakhs and Rs. 5 thousands paid as brokerage on sale are deductible ? agreed with the views of the Tribunal. On appeal by certificate under section 66A(2) and dismissing the appeal, the Court, ^ HELD: (1) Since sub section 5A of section 10 came into force on April 1, 1955, the amount in question if received by the assessee during the previous year for the assessment year 1955 56, would be taxable under that sub section. By 774 a legal fiction introduced by the sub section, any amount received by a managing agent as compensation for the termination of his managing agency agreement which would otherwise have been a capital receipt is to be deemed as profit and gains of a business carried on by the managing agent. The fiction regards the capital receipt as income and does not extend to treating the termination of managing agency itself as a business. The amount received by the appellant was the payment for the termination of the managing agency business and, as such, the receipt is obviously related to that business. Though the amount was not earned in carrying on the business of managing agency, yet the source of the receipt was the mananing agency business itself, it is not therefore correct to say that the receipt was income from a new and independent source (2) The High Court was right in holding that in enacting sub section 5A, the Legislature was concerned only with providing a head under which the or receipt which has been deemed to be income could be brought to tax and was not concerned with creating a new source fur that deemed income. [777G] (3) The compensation paid for the termination of a managing agency business is a payment in relation to the said business and, therefore, the previous year relevant to that receipt would be the same as the previous year for the managing agency business itself. [778A] Commissioner of Income Tax, Bombay vs Sir Chunilal V. Metha & Sons Private Ltd., ; and R. V. Lakshmiah Naidu and Co. vs Commissioner of Income Tax, Kerala and Coimbatore. , relied on

Appeal No. 180 of 1963. Appeal by special leave from the judgment and decree dated February 19, 1958 of the Patna High Court in Appeal from Appellate Decree No. 919 of 1954. Sarjoo Prasad and B. P. tha, for the appellants, 159 A. V. Viswanatha Sastri, B. K. P. Sinha and A. G. Ratna parkhi, for the respondent. The Judgment of the Court was delivered by Bachawat, J. The plaintiffs appellants instituted Title Suit No. 91 of 1950, out of which this appeal arises, for redemption of two usufructuary mortgages created by plaintiff No. 1 and ancestors of plaintiffs Nos. 2 to 6 dated July 5, 1927 and April 15, 1928 in favour of the defendant for Rs. 1,000 and Rs. 1,300 respectively. The mortgage dated July 5, 1927 was in respect of 7.20 acres of occupancy raiyati lands, consisting of four plots Nos. 149, 155, 955 and 957, in village Hichapur under the Tikari Raj. The mortgaged lands were part of a larger holding of 23.69 acres under khata No. 59, and the annual rent of the entire holding was Rs. 153 3 0. The mortgage deed provided that the mortgagee would pay Rs. 33 14 9 out of the total rent payable to the landlord and the mortgagors would pay the balance rent. There was default in payment of rent for several years. The landlord obtained a, decree for arrears of rent, and at the rent sale held on June 18, 1934, the mortgagee defendant purchased the Hichapur lands in the farzi name of Dwarkalal. The mortgage dated April 15, 1928 was in respect of 7.20 acres of lands in village Utrain tinder kahas mahal. The mortgaged lands were part of a larger holding of 1988 1/2 acres in khata No. 269. The, rent of the entire holding was Rs. 155 4 0. The mortgage deed provided that the mortgagee would pay Rs. 68 10 9 out of the total rent and the balance rent would be payable by the mortgagors. There was default in payment of rent for several years. Certificate proceedings were started for the recovery of the arrears of rent, and at a certificate sale held on January 22, 1934, the Utrain lands were purchased by the defendant in the farzi name of Deonarain. It appears that out of the sum of Rs. 33 14 9 pay able by the mortgagee annually on account of the rent of the Hichapur lands, the mortgagee consistently paid Rs. 33 annually, but did not pay the balance sum of 14 annas 9 pies, whereas the mortgagors consistently defaulted in payment of the sum of Rs. 119 4 3 payable by them annually on account of the total rent. It also appears that out of the sum of Rs. 68 10 9 payable by the mortgagee annually on account of the rent of the Utrain lands, the mortgagee consistently paid Rs. 68 annually but did not pay the balance sum of 10 annas 9 pies, whereas the mortgagors consistently defaulted 160 in payment of the sum of Rs. 86 9 3 payable by them annually on account of the total rent. The trial Court decreed the suit. The first appellate Court allowed the appeal in part, passed a decree for redemption of 3.93 acres of plot No. 955 only on the ground that this portion of the land was not sold at the rent sale and gave leave to the defendant to withdraw Rs. 1,000 deposited by the plaintiff in respect of the mortgage dated July 5, 1927. The High Court dismissed a second appeal preferred by the plaintiffs. The plaintiffs now appeal to this Court by special leave. The plaintiffs contend that the purchases at the rent sale and the certificate sale were made by the mortgagee by availing himself of his position as such and having regard to section 90 of the and Illustration (c) to it, the purchases enured for the benefit of the plaintiffs and they are entitled to redeem the entire mortgaged lands. The defendant mortgagee disputes this contention, and claims that the aforesaid sales extinguished the equity of redemption. Section 90 of the and Illustration (c) to it are as follows : "Where a tenant for life, co owner mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage. (c) A mortgages land to B, who enters into possession. B allows the Government revenue to fall into arrears with a view to the land being put up for sale and his becoming himself the purchaser of it. The land is accordingly sold to B. Subject to the repayment of the amount due on the mortgage and of his expenses properly incurred as mortgagee, B holds the land for the benefit of A." 161 In Basmat Devi vs Chamru Sao(1), a part of one entire hold ing was mortgaged, both the mortgagor and the mortgagee were liable to pay the rent of the holding, both of them defaulted in payment of the rent, the default of both contributed to the passing of a rent decree and the sale of the holding in execution of, the decree, the default of the mortgagee being substantial, and the mortgagee purchased the holding at the execution sale. On these facts, this Court held that the mortgagee clearly gained an advantage by availing himself of his position as such, and having regard to section 90 of the his purchase must inure for the benefit of the mortgagor, and the mortgagor was entitled to redeem the mortcaged property. In that case, Das Gupta, J. observed "Whether this would be true even where the portion which the mortgagee is liable to pay is so very small that the property is not ordinarily likely to be brought to sale for that amount, it is unnecessary for us to decide in the present case. " The question left open by Das Gupta, J. arises for decision in the present case. This is a case where the mortgaged property is part of a larger holding, the mortgagee agreed to pay a portion of the rent of the entire holding, and the mortgagors agreed to pay the balance rent payable in respect of it. The mortgagors defaulted in payment of the rent payable by them. The mortgagee paid almost the entire amount of the rent payable by him but defaulted in payment of a trifling sum. The portion of the rent which the mortgagee failed to pay is so small that it is impossible to say that the property was brought to sale for it or that his default was in any real sense a contributory cause of the sale of the property. it is not shown that non payment of the trifling sums by the mortgagee was made mala fide or with the ulterior object of the property being put up for sale and his becoming the purchaser of it. The mortgagee did not gain any advantage by availing himself of his position as such or of a situation brought about by his own default. The real effective cause of the sale was the default of the mortgagors alone. In the circumstances, section 90 of the and Illustration (c) to it are not attracted, and the purchase by the mortgagee does not inure for the benefit of the mortgagors. The rent sale and the certificate sale extinguished the right of redemption. Consequently, the suit by the mortgagors for redemption of the mortgaged property is liable to be dismissed. The first appellate Court, however, gave a decree for redemption of 3.93 acres of plot No. 955 in Hichapur village and gave (1) ; 162 liberty to the mortgagee to withdraw the entire sum of Rs. 1,000 deposited by the plaintiffs in respect of the mortgage of the Hichapur lands. Before the High Court the plaintiffs contended, relying upon the last paragraph of section 60 of the , that they were entitled to redeem the aforesaid 3.93 acres of Utrain lands on payment of the proportionate amount of the mortgage money payable under the mortgage dated July 5, 1927. The High Court negatived this contention. The Courts below observed that 3.93 acres of plot No. 955 of the Hichapur lands were not sold at all at the sale held on June 18, 1934, but quite inconsistently, the Courts below also observed that the aforesaid sale held on June 18, 1934 was a rent sale and was made in execution of a rent decree. Learned counsel on behalf of both parties conceded before us that there could be no rent sale in respect of a portion of the holding. It may be that there was a rent sale, and by mistake, the sale certificate omitted to mention the 3.93 acres of plot No. 955. The relevant documents are not printed in the paper book. Having regard to the value of the subject matter in dispute, it is not worthwhile to call for a fresh finding on this point. We, therefore, indicated to counsel on both sides in course of the argument that we shall decide this appeal on the footing that the sale held on June 18, 1934 was a rent sale and the entire Utrain lands were purchased by the defendant at the rent sale. On this footing the last paragraph of section 60 of the can have no application. The plaintiffs appellants do not now own the equity of redemption in any portion of the Hichapur lands. The Courts below, therefore, should have dismissed the entire suit for redemption, and the question of redemption of a portion of the property on payment of a proportionate amount of the mortgage money does not properly arise in this case. However, the first appellate Court gave a decree for redemption of the aforesaid 3.93 acres of land. The High Court affirmed this decree, and there is no cross appeal by the defendant respondent. In the circumstances, the decree passed by the Court below must be maintained. In the result, the appeal is dismissed with costs. Appeal dismissed.

The ancestors of the appellants created usufructuary mortgages in favour of the respondent. The mortgaged property was a part of a larger holding. The mortgagee respondent had agreed to pay a portion of the rent of the entire holding and the mortgagors agreed to pay The balance rent payable in respect of it. The mortgagors defaulted for several years in payment of the rent. The mortgagee paid almost the entire amount of the rent but defaulted in the payment of a trifling sum. The landlord obtained a decree for arrears of rent, and at rent sales the mortgagee pur chased the lands. The appellant s mortgagors filed a suit for redemption of the mortgage, which was decreed by the trial court. The mortgagee appealed, which was allowed in part passing a decree for redemption of a small plot only on the ground that this portion of land was not sold at the rent sale. The mortgagors ' appeal to the High Court was dismissed. In appeal by special leave, the mortgagors contended that the purchases at the rent sale and the certificate sale were made by the mortgagee by availing himself of his position as such as having regard to section 90 of the and Illustration (c) to it. the purchases enured for the benefit of the mortgaors and they were entitled to redeem the entire mortgaged lands. HELD : The portion of the rent which the mortgagee failed to pay was so small that it was impossible to say that the property was brought to sale for it or that his default was in any real sense a contributory cause of the site of the property. It was not shown that non payment of the titling sum by the mortgagee was made mala fide or with the ulterior object of the property being put up for sale and his becoming the purchaser of it. The mortgagee did not gain any advantage by availing himself of his position as such or of a situation brought about by his default. The real effective cause of the sale was the default of the mortgagor& alone. L161 E G] In the circumstances, section 90 of the and Illustration (c) to it were not attracted, and the purchase by the mortgagee did not enure for the benefit of the mortgagors. The rent sale and the certificate sale extinguished the right of redemption. [161 G H] Basmat Devi vs Chamru Sao, ; , referred to.

Appeal No. 1576 of 1966. Appeal from the judgment and ordered dated October 26. 1965 of the Punjab High Court in Letters Patent Appeal No. 174 of 1964. Bishan Narain, S.K. Mehta and K.L. Mehta, for the appellant. Harbans Singh and R.N. Sachthey, for the respondents. The Judgment of the Court was delivered by Ramaswami, J. In the month of August, 1942 the appellant company (hereinafter called the Company) was incorporated with its registered office in the city of Jullundur dealing in sale 535 and purchase of land as its substantial business. By a sale deed executed on November 24, 1944 the company purchased 646 karnals, 9 marlas of land from Harjit Singh for a sum of Rs. 32,326/ . The land was located in village Monanpura of District Sheikupura, now in West Pakistan. Out of the consideration for the sale, a sum of Rs. 9,000/ ' was left with the company for payment to the previous mortgagees and the balance of the money was paid to Harjit Singh before the Sub Registrar at the time of registration. On the basis of the registered sale deed the company was allotted 27 standard acres and 11 1/2 units of land village Bohani, Tehsil Phagwara District Kapurthala in the year 1950 in lieu of the land abandoned in Pakistan. A sanad No. K2/4/8 dated March 9, 1950 was issued in favour of the company. There was consolidation of holdings in village Bohani and as a result of consolidation the area allotted to the company came to 23 kanals and 5 marlas. Out of this the company sold 9 1/2 kanals to Mohan Singh, a Jar of village Bohani for Rs. 1900.00 by registered sale deed dated May 22, 1956. Another portion of 220 kanals and 15 marlas was sold on September 12, 1958 for Rs. 10,012/ to one Mehnga Singh and his sons. It was later discovered that the company had been allotted less area of land than it was entitled to as a result of consolidation operations and so. an additional area of 24 kanals was allotted to the company in village Bohani to make up the deficiency. On August 30, 1960 the Managing Officer, respondent No. 3, made a report, Annexure C, to the Chief Settlement Commissioner, Respondent No. 2 recommending cancellation of the allotment of land to the company and consequently the grant of permanent rights to it. The company was heard by the Chief Settlement Commissioner and thereafter the Chief Settlement Commissioner rejected the registered sale deed and balance sheets and relying on the jamabandi, annexure X, came to the conclusion that at the time of partition the company did not own any, land in Pakistan nor was it in occupation of any such land. By his order dated February 27, 1961 respondent No. 2 set aside the permanent rights acquired by the company to the extent of 27 standard acres, 111/2 units and also cancelled the quasi permanent 'allotment of the ,land made in the name of the company. On March 29, 1961 a revision petition was filed by the company to the Central Government, respondent No. 1. But the revision petition was dismissed on May 10, 1961. On June 8, 1961 the company filed a writ petition under article 226 of the Constitution praying for grant of a writ to quash the order of the Chief Settlement Commissioner dated February 27, 1961. The writ petition was allowed by Shamshat Bahadur, J. But the respondent took the matter in appeal under el. 10 of Letters Patent to a Division Bench which reversed the judgment of the learned single Judge and ordered the writ petition to be dismissed. 536 Section 24 of the (44 of 1954) (hereinafter called the Act) states: "(1) The Chief Settlement Commissioner may at any time call for the record o/any proceeding under this Act in which a Settlement Officer, an Assistant Settlement Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a Settlement Commissioner, a managing officer or a managing corporation has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. (2) Without prejudice to the generality of the foregoing power under sub section (1 ), if the Chief Settlement Commissioner is satisfied that any order for payment of compensation to a displaced person or any lease or 'allotment granted to such a person has been obtained by him by means of fraud, false representation or concealment of any material fact, then, notwithstanding anything contained in this Act, the Chief Settlement Commissioner may pass an order directing that no compensation shall be paid to such a person or reducing the amount of compensation to be paid to him, or as the case may be, canceling the lease or 'allotment granted to him; 'and if it is found that a displaced person has been paid compensation which is not payable to him, or which is in excess of the amount payable to him, Such amount or excess, as the case may be, may on a certificate issued by the Chief Settlement Commissioner be recovered in the same manner as an arrear of land revenue. In support of the appeal it was contended on behalf of the company that the document described as jamabandi, annexure II to writ petition, was not the jamabandi of the year 1946 47 of the land in dispute and the Division Bench was in error in holding that the Chief Settlement Commissioner could properly rely upon annexure . It was pointed out that annexure II was not the jamabandi for 1946 47 but it consisted of three notes one saying "Maamur bai", that is, that there is no land of non Muslims in the village. the second note related to Kartar Chand and Gopal Dass who embraced Islam and the third related to sale of his land by Harjit Singh in favour of S.A. Latif. All these notes are dated May 3, 1951. It was pointed out that these notes were made on May 3, 537 1961 for the purposes of exchange of jamabandi and the document did not depict the state of affairs as on August 15, 1947 which was the material date. It is not necessary to examine this document in detail for we are of opinion that the appeal must be allowed and the order of the Chief Settlement Commissioner must be quashed on the ground that there is no finding of the Chief Settlement Commissioner that the Company had obtained allotment of the land "by means of fraud, false representation or concealment of any material fact" within the meaning of section 24(2) of the Act. It is true that the Chief Settlement Commissioner had recorded a finding that the company had not proved its title to any land in village Momonpura and the allotment was "undeserved". But this is not tantamount to a finding that the allotment had been obtained by a false representation or fraud or concealment of material facts. Such a finding is a condition precedent for taking action under section 24(2) of the Act. The condition imposed by the section is mandatory and in the absence of any such finding the Chief Settlement Commissioner had ,no jurisdiction to cancel the allotment made to the company under section 24(2) of the Act. For these reasons we hold that the appeal should be allowed and the judgment of the Division Bench dated October 26, 1965 in Letters Patent Appeal should be reversed and the judgment of Shamshat Bahadur, J., dated November 28, 1963 quashing the order of the Chief Settlement Commissioner dated February 27, 1961 should be restored. The appeal is accordingly allowed with costs. R.K.P.S. Appeal allowed.

By a sale deed executed on November 24, 1944 the appellant company purchased certain land located in an area now part of West Pakistan. After the partition of India, the company, on the basis of a registered sale deed, was allotted certain land in Kapurthala in 1950 in lieu of the land abandoned in Pakistan. On a report made by the Managing Officer, Respondeat No. 3 on August 30, 1960 recommending cancellation of the allotment of land to the company and after hearing the company, the chief Settlement Commissioner rejected the registered sale deed and came to the conclusion that at the time of partition the company did not own any land in Pakistan nor was it in occupation of any such land. Therefore by his order dated February 27, 1961, he set aside the permanent rights acquired by the company. HELD: The order of the Chief Settlement Commissioner must be quashed on the ground that there is no finding of the Chief Settlement Commissioner that the company had obtained allotment of the land "by means of fraud, false representation or concealment of any material fact" within the meaning of section 24(2) of the Act. It is true that the Chief Settlement Commissioner had recorded a finding that the company had not proved its title to any land in the area now part of Pakistan and the allotment was "undeserved". But this is not tantamount to a finding that the allotment had been obtained by a false representation or fraud or concealment of material facts. Such a finding is a condition precedent for faking action under section 24(2) of the Act. The condition imposed by the section is mandatory and in the absence of any such finding the Chief Settlement Commissioner had no jurisdiction to cancel the allotment made to the company under section 24(2) of the Act. [537 A D]

il Appeal No. 2293 of 1978 From the Order dated 21.4.77 of the Punjab and Haryana High Court in Civil Misc. No. 508 C 1/77. Ramlal for the Appellants. The Order of the Court was delivered by PATHAK, J. This appeal by special leave is directed against the order dated April 21, 1977 of the High Court of Punjab and Haryana determining the interest payable on the compensation awarded to the appellants for the acquisition of their land by the State Government. A notification under Section 4 of the land Acquisition Act was made on August 31, 1961 in respect of land belonging to the appellants and in the proceedings which followed the land Acquisition officer determined a sum of Rs. 27,992.84 as compensation payable therefor. Possession of the land was taken thereafter. On reference made at the instance of the appellants, the learned District Judge held by his judgment dated November 30, 1963 that the appellants were entitled to a further sum of Rs. 11,307.10 as compensation. Dissatisfied with that determination, the appellants proceeded in appeal to the High Court, and on March 8, 1977 the High Court held that the appellants were entitled to a further amount of Rs. 17,919.30 as compensation. The High Court also held that the appellants were entitled to interest at the rate of 4 per cent per annum on the enhanced amount of compensation awarded by it, the interest to run from the date possession of the land was taken. The appellants then applied to the High Court for a review of its order in so far as it had determined the rate of interest. The appellants pointed out that section 28 and section 34 of the Land Acquisition Act, 1894 had been amended by the Haryana Act No. 8 of 1967 in consequence of which the rate of interest payable on the compensa 684 tion was awarded for acquisition of land had been enhanced from 4 per cent to 6 per cent per annum from the date possession was taken to the date of payment. The claim was resisted by the State, which contended that the Haryana Act No. 8 of 1967 had been brought into force with effect from July 1, 1967 and proceedings for the determination of compensation initiated before the enforcement of that Act were liable to be governed by the original rate of interest at 4 per cent per annum, and no advantage could be taken of the higher rate enacted later. By its order dated April 21, 1977 the High Court ruled in favour of the appellants and held that the higher rate of interest should be available to the appellants even though the proceedings for determination of compensation were already pending before the amending Act was brought into force. A curious inconsistency, however, entered thereafter in the judgment of the High Court. On the amount determined as compensation by the Land Acquisition Officer and the learned District Judge the High Court held that the higher rate of interest at 6 per cent per annum was attracted, and interest at that rate ruled from the date possession was taken to the date of payment. But on the amount of Rs. 17,919.30 representing the enhancement by it the High Court applied the rate of 4 per cent per annum from the date possession was taken and 6 per cent per annum from the date of its judgment awarding that amount. The High Court seems to have proceeded on the view that the right to this amount of Rs. 17,919.30 as compensation arose to the appellants only from date of its judgment. We are of opinion that the High Court has erred. It is apparent from the impugned order of the High Court that it has found the appellants entitled to interest at the rate of 4 per cent per annum on the sum of Rs. 17,919.30 from the date possession was taken. In so far that the High Court recognises the appellants ' claim to interest from that date the High Court is right, because the right to compensation arises when the land is acquired, and the judgment of the High Court merely represents a stage in the process of quantifying the compensation. The right to compensation and the quantification thereof are two distinct concepts. The right to compensation arises when the land vests in the State while its quantification may be concluded much later. Although the process of quantification may pass through several stages, from the Land Acquisition Officer to the District Judge and thereafter to the High 685 Court, the process of quantification is merely one of computing the value of the land, on the principles enacted in the Land Acquisition Act. All along, however, the right to the compensation so quantified refers back to the date of acquisition. The additional amount of compensation awarded by the District Judge or by the High Court represents the difference between the true value of the land on the one hand and the actual amount awarded on the other which fell short of the true value. The owner of the land is entitled to be paid the true value of the land on the date of taking over of possession. Since, however, the true value is usually determined only after it is computed through a multi tiered process passing through different levels of a hierarchical judicial structure by the very nature of things it take sometime before the true value can be finally determined. The fact that it is determined later does not mean that the right to the amount comes into existence at a later date. And if, as the High Court has held, interest at 6 per cent per annum rules from the date procession was taken in the case of compensation determined by the learned District Judge, there is no reason why the same rate should not be applied from the date possession was taken in the case of the enhancement effected by the High Court. We hold that the appellants are entitled to interest at 6 per cent per annum on the amount of Rs. 17,919.30 for the entire period from the date possession of the land was taken to the date of payment. The appeal is allowed, and the order dated April 21, 1977 passed by the High Court is modified accordingly. The respondents will pay the costs of the appellants.

The appellants were awarded certain amount of compensation by the Land Acquisition Officer which was later enhanced by the District Judge and the High Court. On being pointed out that sections 28 and 34 of the Land Acquisition Act had been amended by the Haryana Act No. 8 of 1967 which enhanced the rate of interest payable on the amount of compensation from 4 to 6 per cent per annum, the High Court awarded interest at the rate of 4 per cent per annum on the amount of compensation awarded by the Land Acquisition Officer and enhanced by the District Judge from the date possession was taken and 6 per cent per annum on the amount of compensation enhanced by it from the date of its judgment. In this appeal the appellants challenged the rate of interest as determined by the High Court. Allowing the appeal, ^ HELD: The right to compensation arises when the land is acquired, and the judgment of the High Court merely represents a stage in the process of quantifying the compensation. The right to compensation and the quantification thereof are two distinct concepts. Although the process of quantification may pass though several stages, the process of quantification is merely one of computing the value of the land, on the principles enacted in the Land Acquisition Act. All along, however, the right to the compensation so quantified refers back to the date of acquisition. The additional amount of compensation awarded by the District Judge or by the High Court represents the difference between the true value of the land on the one hand and the actual amount awarded on the other which fell short of the true value. The owner of the land is entitled to be paid the true value of the land on the date of taking over of possession. The fact that the true value is determined later does not mean that the right to the amount comes into existence at a later 683 date. And if, as the High Court has held, interest at 6 per cent per annum from the date possession was taken in the case of compensation determined by the learned District Judge, there is no reason why the same rate should not be applied from the date possession was taken in the case of the enhancement effected by the High Court. [684H;685 A D]

Civil Appeal No. 1995 of 1977. From the Judgment and order dated 16.9.1975 of the Andhra Pradesh High Court in Writ Petition No. 584 of 1975 . G.L. Sanghi, Subodh Markandeya and Mrs. Chitra Markandeya for the Appellants. K.G. Bhagat, Y. Prabhakar Rao, T.V.S.N. Chari and Ms. Vrinda Grover for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal is by special leave and is directed against the appellate judgment of a division bench of the Andhra Pradesh High Court upholding the rejection of the writ petition 26 by a Single Judge of that High Court. Appellants are Engineers in the establishment of the Chief Engineer (Roads and Buildings of the Andhra Pradesh Government and the dispute is one of inter se seniority between them on the one side and respondents 3 and 4 on the other. Appellants filed a writ petition being No. 4151 of 1972 in the High Court of Andhra Pradesh claiming a direction to the State Government for considering them for promotion to the post of Executive Engineer on the basis that they were senior to five promotee Assistant Engineers. A learned Single Judge disposed of the said writ petition by judgment dated 29th March, 1973, and gave the following directions: "The respondents 1 and 2 (State of Andhra Pradesh and its Chief Engineer respectively) will, therefore, consider the claims of the petitioners for promotion as Executive Engineers having regard to their seniority in the cadre of Assistant Engineers in relation to the seniority of respondents 3 to 7. I, therefore, direct respondents 1 and 2 to take the seniority of the petitioners, who were full members of service, in relation to the seniority of respondents 3 to 7 in the cadre of Assistant Engineers and consider the case of the petitioners for promotion to the posts of Executive Engineers in accordance with the rules. " The State Government, in compliance with the directions issued to it, by order dated 10th August, 1983, made an order stating: "As per Rule 5 of the said Special Rules, for promotion to the post of Executive Engineers (ordinary Grade) a Graduate Assistant Engineer should be: (a) a full member or approved probationer; (b) a direct recruit should put in six years service as Assistant Engineer; and (c) a promotee Assistant Engineer should put in five years service. No preference is provided for persons, who were either direct recruit Assistant Engineers or who secured earlier confirmation. In the absence of specific provision in the 27 Special Rules for giving any preference to direct recruit Assistant Engineers in the matter of promotion to the category of Executive Engineers, only the provisions of General Rules for State and Subordinate Services have to be applied therefor. According to Rule 33(a) of General Rules for Andhra Pradesh State and Subordinate Services, the seniority of a person in a service, class, category or grade, shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of first appointment to such service, class, category or grade. So, the seniority of the Writ Petitioners and the respondents has to be considered with reference to their dates of regular appointment to the category of Assistant Engineers (R & B) but not from the date of confirmation in the said category, for purpose of promotion as Executive Engineers. The dates of commencement of probation of the respondents and Writ Petitioners is as indicated below: Sl. Name of the Asstt. Date of Comm No. Engineer encement of probation ___________________________________________________________ Respondents 1. B.V. Venkataramana 19.5.1961 2. C.M. Ramachandramurthy 19.5.1961 Writ Petitioners 1. Desoola Rama Rao 18.7.1966 2. V. Murahari Reddy 30.6.1966 ___________________________________________________________ (Names of the three others stated in the order are not extracted as are not relevant). Thus the respondents commenced their probation between 1959 to 1963 while the writ petitioners commenced their probation in 1966 and their seniority is far below the respondents. The Government, after careful examination of the judgment of the High Court, with reference to the statutory rules and in relation to the seniority obtaining between the respondents and the writ petitioners, decide that the 28 turn of the two writ petitioners for promotion has not yet come and that their claims shall be considered for promotion as Executive Engineers (ordinary Grade) in their turn, along with others according to their seniority as per rules and eligibility. " The appellants thereafter filed a second writ petition being Writ Petition No. 6157 of 1973 before the High Court challenging the Government order. As already stated, the learned Single Judge has dismissed the writ petition and such dismissal has been upheld in appeal. Appellants were directly recruited as Assistant Engineers on 29th April, 1966 and Special Rules for Roads and Buildings Division of the public Works Department were made on 27th June, 1967, but were given effect from 1st April, 1965. According to the Rules, appointment to the posts of Assistant Engineers can either be by direct recruitment or by recruitment by transfer of Junior Engineers and Supervisors or Draftsmen (Special Grade) or Draftsmen (Grade I) Under the Rules, appellants became eligible for promotion to the post of Executive Engineer in 1971 and when their claim for promotion was overlooked the first writ petition, as already stated, was filed. According to the appellants, respondents 3 and 4 were appointed by transfer under Rule 10 A of the Rules and were approved probationers. They contend that the promotees are approved probationers and until confirmation as full members of the service, they would not be entitled to the benefit of seniority in service and, therefore, the appellants were senior to them. They, therefore, challenged the Government order referred to above and contended that the High Court went wrong in not holding that appellants were senior to the two respondents and on that basis they were entitled to consideration for promotion to the post of Executive Engineer in preference to those respondents. There is no dispute that both directly recruited Assistant Engineers as also promotee Assistant Engineers are entitled to promotion as Executive Engineers. The rule requires direct recruits to have put in six years of service while for promotees the prescription is five years of service for being eligible to be considered for promotion. As in many other service rules, there is no provision in the Rules under consideration that direct recruits would have preference over promotees for purposes of inter se seniority. In the absence of such a rule the High Court followed the guideline indicated in the General Rules which provides that seniority shall be determined by the date of first appointment to the service. The High Court found that respondents 3 29 and 4 came to serve as Assistant Engineers long before the appellants were recruited as Assistant Engineers. In fact in paragraph 6 of his judgment, the learned Single Judge in the second writ petition has indicated that respondents 3 and 4 were temporarily appointed as Assistant Engineers on 14th August, 1959 and 19th May, 1960 respectively. In exercise of power under Rule 23(a) of the General Rules, the services of the two respondents had been regularised retrospectively with effect from 19th May, 1961 and the order of regularisation had been passed by the Chief Engineer on 3rd May, 1967. In the instant case the date from which regularisation has been directed to take effect is not anterior to their appointment as Assistant Engineers. That being the position, regularisation is not vitiated on account of arbitrariness. The only other aspect argued on this score was that the Chief Engineer was not competent to make the order. Rule 23(a) of the Andhra Pradesh State and Subordinate Services Rules provides: "If a person, having been appointed temporarily under sub rule (a) or sub rule(c) of rule 10 to post borne on the cadre of any service, class or category or having been appointed to any service, class or category otherwise than in accordance with the rules governing appointment thereto is subsequently appointed to any service, class or category in accordance with the rules, he shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine." (Underlining is ours) The vires of this rule had not been challenged but the only contention in this regard was that the appointing authority being the State Government, the Chief Engineer should not have made the order fixing the date of commencement of probation. It is the case of the respondents that the State Government has delegated that power to the Chief Engineer and the order of delegation of that power is on record. The law relating to inter se seniority in a cadre is well settled. If there be a rule indicating the manner in which such seniority has to be fixed, that is binding. In the absence of such a rule, length of service is the basis for fixing inter se seniority. The High Court has found, and there is no longer any dispute, that respondents 3 and 4 have put in longer service than the appellants in the post of Assistant Engineer. In that view of the matter, the State Government was right, and the High 30 Court appropriately approved it, that the appellants would rank below the respondents 3 and 4 in the cadre and the promotional benefit would be given to them after the claim of the respondents 3 and 4 has been duly considered. We see no merit in the appeal. It is accordingly dismissed. There would be no order for costs. P.S.S. Appeal dismissed.

% Rule 5 of the Andhra Pradesh (Roads and Buildings) Engineering Service Special Rules, 1967 lays down that for promotion to the post of Executive Engineer, a Graduate Assistant Engineer should be (a) a full member or approved probationer, (b) a direct recruit should put in six years service as Assistant Engineer and (c) a promotee Assistant Engineer should put in five years service. There is no provision for giving preference to one category over the other for promotion. Rule 23(a) of the Andhra Pradesh State and Subordinate Service Rules, 1962 empowers the appointing authority to commence the probation of a person appointed to the service with retrospective effect. Rule 33(a) of these rules mandates the determination of the seniority of a person in a service by the date of first appointment. The appellants were directly recruited as Assistant Engineers in April 1966. Respondents 3 and 4 were temporarily appointed Assistant Engineers by transfer on 14th August, 1959 and 19th May, 1960 respectively. Their services were regularised with effect from 19th May, 1961 by an order dated 3rd May,1967 in exercise of the powers under section 23(a) of the General Rules. The appellants sought promotion to the post of Executive Engineer on the basis that they were senior to the promotee Assistant Engineers respondents. Their case was that the Chief Engineer was hot competent to make the order under s.23(a) of the General Rules. The State Government vide their order dated August 10, 1983 decided that the seniority of the direct recruits and promotees has to be determined with reference to their regular appointment of the category of Assistant Engineers and not from the date of confirmation in the said category and declared that the seniority of the appellants was far below the respondents and they would be considered for promotion in their turn alongwith others. 25 A writ petition filed by the appellants in the High Court challenging the said order was dismissed by a Single Judge, and that dismissal was upheld in appeal. Dismissing the appeal by special leave, ^ HELD: The law relating to inter se seniority in a cadre is well settled. If there be a rule indicating the manner in which such seniority has to be fixed, that is binding. In the absence of such a rule, length of service is the basis for fixing Inter se seniority. In the instant case, there is no provision in the Rules under consideration that direct recruits would have preference over promotees for purposes of inter se seniority. In the absence of such a rule the guidelines indicated in the General Rules, which provide that seniority shall be determined by the date of first appointment to the service, have to be followed. Respondents 3 and 4 have put in longer service than the appellants in the post of Assistant Engineer. Their services had been regularised with effect from May 19, 1961 in exercise of the powers under Rule 23(a) of the General Rules, which date is not anterior to their appointment as Assistant Engineer. The regularisation is thus not vitiated on account of arbitrariness. The appellants would, therefore, rank below respondents 3 and 4 in the cadre and the promotional benefit would be given to them after the claim of the respondents 3 and 4 has been duly considered.

titions Nos. 4021 4022, 4024 4025, 4027 4032, 4037, 4040 4041, 4045 4047, 4049 4075, 4078 4092, 4099, 4103 4111, 4120 4126, 4129 4140, 4142 4143, 4155 4157, 4184, 4187, 4188 4190, 4192, 4202, 4203, 4205, 4206, 4212, 4214, 4217, 4223, 4231, 4234 4235, 4245, 4250, 4252, 4300, 4308 of 1978 and 4226 of 1978. (Under article 32 of the Constitution of India.) AND Writ Petitions Nos. 966 971, 3643 3650, 3884 3896, 3900 3921, 3965, 3975 3990, 4001 4020, 4034, 4100, 4127 to 4128, 4186, 4193, 4208, 4271, of 1978 and 3968 3971, 4191, 4221 and 4272 4275 of 1978. (Under article 32 of the Constitution of India. AND Writ petitions: 4154, 4209, 4242, 4243, 4247, 4248, 4253, 4254, 4310 and 4314 of 1978. (Under article 32 of the Constitution of India.) A. K. Sen and Mrs. Rani Chhabra in W.P. 4021/78 for the Petitioners. Yogeshwar Parshad and Mrs. Rani Chhabra in W.P. Nos. 4022, 4024, 4025, 4027 4032, 4037, 4040, 4041, 4045, 4047, 4046, 4064 4067, 4078, 4079, 4092, 4142, 4143, 4187, 4090, 4092 and 4231 of 1978. V. C. Mahajan and Mrs. Urmila Sirur for the Petitioners in W.P. 4049 63, 4080 91, 4108 to 4111/78. K K. Mohan, section K. Sabharwal, Pramod Swarup and Shreepal Singh for the Petns. in W.P. Nos. 103, 4140, 4184, 4202 and 4234 of 1978. 126 O. P. Sharma, N. N. Sharma, A. K. Srivastava, Amlan Ghosh and P. K. Ghosh. in W.P. Nos. 4190 92 and 4226 of 1978. O. P. Sharma for the Petitioner in W.P. 4226/78. K. B. Rohtgi for the Petitioners in W.P. 3975 76 and 4274 75/ 78. O. P. Singh in W.P. 966 71 of 1978 for the Petitioners. A. L. Trehan for the Petitioner in W.P. 4100/78. section K. Sabharwal for the Petitioner in W.P. 4214/78. M. Qamaruddin for the petitioner in W.P. 4193 of 1978. R. K. Jain, K. K. Mohan and Rajiv Dutt, L. R. Singh for the Petitioners in W.P. 4271 73/78. section N. Kacker, Sol. Genl., O. P. Rana for the State of U.P. Soli J. Sorabjee Addl. of India and Hardev Singh for the State of Punjab, J. D. Jain and B. R. Kapoor in W.P. Nos. 4242 4244, 4247 4228, 4209 and 4308 of 1978. B. R. Kapoor and section K. Sabharwal for the Petitioners in W.P. 4150 4254/78. M. P. Jha for the Petitioner in W.P. 4252/78. section K. Sabharwal for the Petitioner in W.P. 4245, 4253 and 4310/78. Shreepal Singh for the Petitioners in W.P. 4235/78. Hardev Singh on behalf of R. N. Sachthey for the State of Punjab. The Judgment of the Court was delivered by KRISHNA IYER, J. What are we about? A raging rain of writ petitions by hundreds of merchants of intoxicants hit by a recently amended rule declaring a break of two 'dry ' days in every 'wet ' week for licensed liquor shops and other institutions of inebriation in the private sector, puts in issue the constitutionality of section 59(f)(v) and Rule 37 of the Punjab Excise Act and Liquor Licence (Second Amendment) Rules, (hereinafter, for short, the Act and the Rules). The tragic irony of the legal plea is that Article 14 and 19 of the very Constitution, which, in Article 47, makes it a fundamental obligation of the State to bring about prohibition of intoxicating drinks, is pressed into service to thwart the State 's half hearted prohibitionist gesture. Of course, it is on the cards that the end may be good but the means may be bad, constitutionally speaking. And there is a mystique about legalese beyond the layman 's ken ! 127 To set the record straight, we must state, right here, that no frontal attack is made on the power of the State to regulate any trade (even a trade where the turnover turns on tempting the customer to take reeling rolling trips into the realm of the jocose, belliocose, lachrymore and comatose). Resort was made to a flanking strategy of anathematising the statutory regulatory power in section 59(f)v) and its offspring, the amended rule interdicting sales of tipay ecstasy on Tuesdays and Fridays, as too naked, unguided and arcane and, resultantly, too arbitrary and unreasonable to comport with articles 14 and 19. Our response at the first blush was this. Were such a plea valid, what a large communication exists between lawyer 's law and judicial justice on the one hand and life 's reality and sobriety on the other, unless there be something occultly unconstitutional in the impugned Section and Rule below the visibility zone of men of ordinary comprehension. We here recall the principle declared before the American Bar Association by a distinguished Federal. . Judge William Howard Taft in 1895: "If the law is but the essence of common sense, the protests of many average. men may evidence a defect in a legal conclusion though based on the nicest legal reasoning and profoundest learning. " The Facts The Punjab Excise Act, 1914, contemplates grant of licences, inter alia, for trading in (Indian) foreign and country liquor. There are various conditions attached to the licences which are of a regulatory and fiscal character. The petitioners are licence holders and have, on deposit of heavy licence fee, been permitted by the State to vend liquor. The conditions of the licences include restrictions of various types, including obligation not to sell on certain days and during certain hours. Under the former rule 37 Tuesday upto 2 p.m. was prohibited for sale; so also the seventh day of the month. The licences were granted subject to rules framed under the Act and Section 59 is one of the provisions empowering rule making. Rule 37 was amended by a notification whereby, in the place of Tuesdays upto 2 p.m. plus the 7th day of every month, Tuesdays and Fridays in every week were substituted, as days when liquor vending was prohibited. Under the modified rules a consequential reduction of the licence fee from Rs. 12,000/ to Rs. 10,000 was also made, probably to compensate for the marginal loss caused by the two day closure. Aggrieved by this amendment the petitioners moved this 128 Court challenging its vires as well as the constitutionality of section 59(f)(v) which is the source of power to make rule 37. If the Section fails the rule must fall, since the stream cannot rise higher that the source. Various contentions based on article 19(g) and (6) and article 14 were urged and stay of operation of the new rule was granted by this Court. We will presently examine the tenability of the argument and the alleged vice of the provisions; and in doing so we adopt, as counsel desired, a policy of non alignment on the morality of drinking since law and morals interact and yet are autonomous; but, equally clearly, we inform ourselves of the plural 'pathology ' implicit in untrammelled trading in alcohol. He who would be a sound lawyer, Andrea Alciati, that 16th century Italian humanist, jurist, long ago stressed, should not limit himself to the letter of the text or the narrow study of law but should devote himself also to history, sociology, philology, politics, economics, nostics and other allied sciences, if he is to be a jurist priest in the service of justice or legal engineer of social justice.(1) This is our perspective because, while the forensic problem is constitutional, the Constitution itself is a human document. The integral yoga of law and life once underlined, the stage is set to unfold the relevant facts and focus on the precise contentions. Several counsel have made separate submissions hut the basic note is the same with minor variations in emphasis. Why drastically regulate the drink trade ? the Social rationale on Brandies brief Anywhere on our human planet the sober imperative of moderating the consumption of inebriating methane substances and manacling liquor business towards that end, will meet with axiomatic acceptance. Medical, criminological and sociological testimony on a cosmic scale bears out the tragic miscellany of traumatic consequences of, shattered health and broken homes, of crime escalation with alcohol as the hidden villain or aggressively promotional anti hero, of psychic breakdowns, insane cravings and efficiency impairment, of pathetic descent to doom sans sense, sans shame, sans everything, and host of other disasters individuals, familial, genetic and societal.(2) We need hot have dilated further on the deleterious impost of unchecked alcohol intake on consumers and communities but Shri Mahajan advocated regulation as valid with the cute rider that even (1) Encyclopaedia of the Social Sciences, Vol. J ll p. 618. (2) Ibid p. 619 27. 129 water intake, if immoderate, may affect health and so regulation of liquor trade may not be valid, if more drastic than for other edibles. The sequitur he argued for was that the two day ban on liquor licensees was unreasonable under article 19(g) read with article 19(6). He also branded the power to restrict the days and hours of sale of liquor without specification of guidelines as arbitrary and scouted the submission of the Addl. Solicitor General that the noxious nature of alcohol and the notorious fall out from gentle bibbing at the beginning on to deadly addiction at the end was inherent guideline to salvage the provision from constitutional casualty. Innocently the equate alcohol with aqua is an exercise ill intoxication and straining judicial credibility to absurdity. We proceed to explain why alcohol business is dangerous and its very injurious character and mischief potential legitimate active policing of the trade by any welfare State even absent article 47. The alcoholics will chime in with A.E. Houseman(1): ' "And malt does more than Milton can to justify God 's ways to man. But the wisdom of the ages oozes through Thomas Bacon who wrote: "For when the wine is in, the wit is out." Dr. Walter Reckless, a criminologist of international repute who had worked in India for years has in "The Crime Problem" rightly stressed "Of all the problems in human society, there is probably none which is as closely related to criminal behaviour as is drunkenness. It is hard to say whether this close relation ship is a chemical one, a psychological one, or a situational one. ' Several different levels of relationship between ingestion of alcohol and behaviour apparently exist. A recent statement by the National Council on Crime and Delinquency quite succinctly describes the effect of alcohol on behaviour: Alcohol acts as a depressant; it inhibits self control before it curtails the ability to act; and an individual 's personality and related social and cultural factors assert themselves during drunken behaviour . Although its dangers are not commonly understood or accepted by the public, ethyl alcohol can have perhaps the most serious con sequences of any mind and body altering drug. It causes (1) Makers of Modern world by Louis Untermeyer p. 275. (2) The Crime Problem (Fifth Edition) Walter C. Reckle Page 115, 116 & 117. 130 addiction in chronic alcoholics, who suffer consequences just as serious, if not more serious than opiate addicts. It is by far the most dangerous and the most widely used of any drug." (emphasis added). The President 's Commission on Law Enforcement and Administration of Justice made the following pertinent observation: The figures show that crimes of physical violence are associated with intoxicated persons. Thus the closest relationship between intoxication and criminal behaviour (except for public intoxication) has been established for criminal categories involving assaultive behaviour. This relationship is especially high for lower class Negroes and whites. More than likely, aggression in these groups is weakly controlled and the drinking of alcoholic beverages serves as a triggering mechanism for the external release of aggression. There are certain types of key situations located in lower class life in which alcohol is a major factor in triggering assaultive behaviour. A frequent locale is the lower class travern which is an important social institution for the class group. Assaultive episodes are triggered during the drinking situation by quarrels that center around defaming personal honor, threats to masculinity, and questions about one 's birth legitimacy. Personal quarrels between husband and wife, especially after the husband 's drinking, frequently result in assaultive episodes, in the lower lower class family.", The steady flow of drunkenness cases through the hands of the police, into our lower courts, and into our jails and workhouses has been labelled the "revolving" door, because a very large part of this flow of cases consists of chronic drinkers who go through the door and out, time after time. On one occasion when the author was visiting a Saturday morning session of a misdemeanor court, there was a case of an old "bum" who had been in the local workhouse 285 times previously." An Indian author, Dr. Sethna dealing with society and the criminal, has this to say :(1) Many crimes are caused under the influence of alcohol or drugs. The use of alcohol, m course of time, causes great and irresistible craving for it. To retain the so called (1) Society and the Criminal by M. J. Sethna 3rd Edn. P. 164. 131 'satisfaction ', derived from the use of alcohol or drugs, the drunkard or the drug addict has got to go on increasing the quantities from time to time; such a state of affairs may lead him even to commit thefts or frauds to get the same otherwise. If he gets drunk so heavily that he cannot understand the consequences of his acts he is quite likely to do some harmful act even an act of homicide. Every often, crimes of violence have been committed in a state of intoxication. Dr. Hearly is of the opinion that complete elimination of alcohol and harmful drug habits would cause a reduction in crime by at least 20 per cent; not only that, but there would also be cumulative effect on the generations to come, by diminishing poverty, improving home conditions and habits of living and environment, and perhaps even an improvement in heredity itself. Abstinence campaigns carried out efficiently and in the proper manner show how crime drops. Dr. Hearly cites Baer, who says that Father Mathew 's abstinence compaigns in Ireland, during 1837 1842, reduced the use of spirits SO per cent, and the crimes dropped from 64,520 to 47,027. According to Evangeline Booth, the Commander of the Salvation Army, "In New York before prohibition, the Salvation Army would collect from 1,200 to 1,300 drunkards in a single night and seek to reclaim them. Prohibition immediately reduced the gathering to 400 and the proportion of actual drunkards from 95 per cent to less than 20 per cent". And "a decrease of two thirds in the number of derelicts, coupled with a decrease in the number of drunkards almost to the Vanishing point, certainly lightened crime and charity bills. It gave many of the erstwhile drunkards new hope and a new start". So says E. E. Covert, in an interesting article on Prohibition. The ubiquity of alcohol in the United States has led to nationwide sample studies and they make startling disclosures from a criminological angle. For instance, in Washington, D.C. 76.5 % of all arrests in 1965 were for drunkenness, disorderly conduct and vagrancy, while 76.7% of the total arrests in Atlanta were for these reasons(1) Of the 8 million arrests in 1970 almost one third of these were alcohol related. Alcohol is said to affect the lives of 9 million persons (1) Society, Crime and Criminal Careers by Don C. Gibbons p. 427 428. 132 and to cost 10 billion in lost work time and an additional 15 billion health and welfare costs. ' '(1) Richard D. Knudten stated "Although more than 35% of all annual arrests in the United States are for drunkenness, additional persons committing more serious crimes while intoxicated are included within the other crime categories like drunken driving, assault, rape and murder.(2) President Brezhnev bewailed the social maladies of increasing alcoholism. Nikita Krushchev was unsparing: "Drunks should be 'kicked out of the party ' not moved from one responsible post to another. "(3) Abraham Lincoln, with conviction and felicity said that the use of alcohol beverages had many defenders but no defence and intoned: "Whereas the use of intoxicating liquor as a beverage is productive of pauperism, degradation and crime, and believing it is our duty to discourage that which produces more evil than good, we, therefore, pledge ourselves to abstain from the use of intoxicating liquor as a beverage. "(4) In his famous Washington 's birthday address said: "Whether or not the world would be vastly benefited by a total and final banishment from it of all intoxicating drinks seems to me not now an open question. Three fourths of mankind confess the affirmative with their lips, and I believe all the rest acknowledge it in their hearts. "(5) Jack Hobbs, the great cricketer, held: "The greatest enemy to success on the cricket field is the drinking habit." And Don Bradman, than whom few batsmen better wielded the willow, encored and said: "Leave drink alone. Abstinence is the thing that is what made me. "(6) (1) Current perspectives on Criminal Behaviour edited by Abraham S Blumberg P.23. (2) crime in a complex society by Richard D. Knudten P.138. (3) Report of the study Team on Prohibition Vol. L. P. 344. (4) Ibid p.34s. (5) Ibid p.345. (6) Report of the Study Team on Prohibition vol. I. P.347. 133 Sir Andrew Clark, in Lachrymal language spun the lesson from hospital beds: "As I looked at the hospital wards today and saw that seven out of ten owed their diseases to alcohol, I could but lament that the teaching about this question was not more direct, more decisive, more home thrusting than ever it had been. "(1) George Bernard Shaw, a provocative teetotaller, used tart words of trite wisdom. 'If a natural choice between drunkenness and sobriety were possible, I would leave the people free to choose. But then I see an enormous capitalistic organisation pushing drink under people 's noses of every corner and pocketing the price while leaving me and others to pay the colossal damages, then I am prepared to smash that organisation and make it as easy for a poor man to stay sober, if he wants to as it is for his dog. Alcohol robs you of that last inch of efficiency that makes the difference between first rate and second rate. I don 't drink beer first, because I don 't like it; and second, because my profession is one that obliges me to keep in critical training, and beer is fatal both to training and to criticism. only teetotallers can produce the best and sanest of which they are capable. Drinking is the chloroform that enables the poor to endure the painful operation of living. It is in the last degree disgraceful that a man cannot pro vide his own genuine courage and high spirits without drink. I should be utterly ashamed if my soul had shrivelled up to such an extent that I had to go out and drink a whisky. (2) The constitutional test of reasonableness, built into article 19 and of arbitrariness implicit in article 14, has a relativist touch. We have to view the impact of alcohol and temperance on a given society; and (1) Ibid P. 347. (2) Report of the study Team on Prohibition Vol. I P. 346. 134 for us, the degree of constitutional restriction and the strategy of meaningful enforcement will naturally depend on the Third World setting, the ethos of our people, the economic compulsions of today and of human tomorrow. Societal realities shape social justice. While the universal evil in alcohol has been indicated the particularly pernicious consequence of the drink evil in India may be useful to R r remember while scanning the. rationale of an Indian temperance measure. Nearly four decades ago, Gandhiji, articulating the inarticulate millions ' well being, wrote: "The most that tea and coffee can do is to cause a little extra expense, but one of the most greatly felt evils of the British Rule is the importation of alcohol. that enemy of mankind, that curse of civilisation in some form or an other. The measure of the evil wrought by this borrowed habit will be properly gauged by the reader when he is told that the enemy has spread throughout the length and breadth of India, in spite of the religious prohibition for even the touch of a bottle containing alcohol pollutes the Mohammedan, according to his religion, and the religion of the Hindu strictly prohibits the use of alcohol in any form whatever, and yet alas ! the Government, it seems, instead of stopping, is aiding and abetting the spread of alcohol. The poor there, as everywhere, are the greatest sufferers. It is they who spend what little they earn in buying alcohol instead of buying good food and other necessaries It is that wretched poor man who has to starve his family, who has to break the sacred trust of looking after his children, if any, in order to drink himself into misery and premature death. Here be it said to the credit of Mr. Caine, the ex Member for Barrow, that, he undaunted, is still carrying on his admirable crusade against the spread of the evil, but what can the energy of one man, however, powerful, do against the inaction of an apathetic and dormant Government. "(1) Parenthetically speaking, many of these thoughts may well be regarded by Gandhians as an indictment of governmental policy even to day. The thrust of drink control has to be studied in a Third World country, developing its; human resources and the haven if offers to the poor, especially their dependents. Gandhiji again: "For me the drink question is one of dealing with a growing social evil against which the State is bound to (1) The Collected Works of Mahatma Gandhi pp.29 30 135 provide whilst it has got the opportunity. The aim is patent. We want to wean the labouring population and the Harijans from the curse. It is a gigantic problem, and the best resources of all social workers, especially women, will be taxed to the utmost before the drink habit goes. The prohibition I have adumbrated is but the beginning (undoubtedly indispensable) of the reform. We cannot reach the drinker so long as he has the drink ship near his door to tempt him ' '(l) Says Dr. Sethna in his book already referred to: "And in India, with the introduction of prohibition we find a good decline in crime. There are, however, some per sons who cannot do without liquor. Such persons even so to the extent of making illicit liquor and do not mind drinking harmful rums and spirits. The result is starvation of children at home, assaults and quarrels between husband and wife, between father and child, desertion, and other evils resulting from the abuse of alcohol. The introduction of prohibition in India actually caused considerable fall in the number of crimes caused by intoxication. Before prohibition one often had to witness the miserable spectacle of poor and Ignorant persons mill hands. Labourers, and even the unemployed with starving families at home frequenting the pithas (liquor and adulterated toddy shops) drinking burning and harmful spirits, and adulterated toddy, which really had no vitamin value; these persons spent the little they earned after a hard day 's toil, or what little that had remained with them or what they had obtained by some theft, trick, fraud or a borrowing they spent away all that, and then, at home, left wife and children starving and without proper clothes, education, and other elementary necessaries of life. "(2) (emphasis added) The Labour Welfare Department or the State Governments and of the Municipalities are rendering valuable service, through their labour welfare officers who work at the centres assigned to them, impressing upon the people how the use of alcohol is ruinous and instructing them also how to live hygienically; there are lectures on the evils of drug and drink habits. (1) The Collected Works of Mahatma Gandhi, Vol. (2) Society and the Criminal by M. J. Sethna 3rd Edn. p. 165, 166 & 168 169. 136 Partial prohibition of hot country liquors was introduced by the Congress Ministries in Bombay, Bihar, Madras (in Salem, Chittor, Cuddaph and North Arcot Districts) when they first came into power. In C. P. and Berar, prohibition covered approximately one fourth of the area and population of the State. In Assam, prohibition is directed mainly against opium. In Deccan Hyderabad on 3rd January, 1943, a Firman as issued by his Exalted Highness the Nizam, supporting the temperance movement. Jammu and Kashmir came also on the move towards prohibition. Since 1949 State Governments determined the policy of introduction of total prohibition. On April 10, 1948, the Central Advisory Council for Railways, under the Chairmanship of the Hon 'ble Dr. John Matthai, agreed to the proposal to ban the serving of liquor in refreshment rooms at railway stations and dining cars. In Madras, prohibition was inaugurated on 2nd October 1948, by the Premier. the Hon 'ble Mr. O. P. Ramaswami Reddiar who pronounced it a red letter day. In 1949, West Punjab took steps for the establishment of prohibition. In 1949, nearly half the area of the Central Provinces and Berar got dry, and it was proposed to enforce prohibition throughout the State. In Bombay the Prohibition Bill was passed and became Act in 1949, and Bombay got dry by April 1950. The number of offences; under the Abkari Act is notoriously high. It shows the craving of some persons for liquor in spite of all good efforts of legal prohibition. The remedy lies in making prohibition successful through education (even at the school stage), suggestion re education. The Tek Chand Committee(1) surveyed the civilizations from Babylon through China, Greece, Rome and India. X rayed the religions of the world and the dharmasastras and concluded from this conspectus that alcoholism was public enemy. Between innocent first sour sip and nocent never stop alcoholism only time is the thin partition and, inevitability the sure nexus, refined arguments to the contrary notwithstanding(2). In India, some genteel socialities have argued for the diplomatic pay off from drinks and Nehru has negatived it: (1) Report of the Study Team on Prohibition. (2) Ibid p. 345. 137 "Not only does the health of a nation suffer from this (alcoholism), but there is a tendency to increase conflicts both in the national and the international sphere. " I must say that I do not agree with the statement that is sometimes made even by our ambassadors that drinks attract people to parties and if there are no drinks served people will not come. I have quite B: frankly told them that if people are only attracted by drinks, you had better keep away such people from our missions. I do not believe in this kind of diplomacy which depends on drinking. and, if we have to indulge in that kind of diplomacy, others have had more training in it and are like to win.(1) Of course, the struggle for Swaraj went beyond political liberation and demanded social transformation. Redemption from drink evil was woven into this militant movement and Gandhiji was the expression of this mission. "I hold drink to be more damnable than thieving and perhaps even prostitution. Is it not often the parent to both ? I ask you to join the country in sweeping out of existence the drink revenue and abolishing the liquor shops. Let me, therefore, re declare my faith in undiluted prohibition before I land my self in deeper water. If I was appointed dictator for one hour for all India, the first thing I would do would be to close without compensation all the liquor shops destroy all the toddy palms such as I know them in Gujarat, compel factory owners to produce humane conditions for the workmen and open refreshment and recreation rooms where these workmen would get innocent drinks and equally innocent amusements. I would close down the factories if the owners pleaded for want of funds. "(2) It has been a plank in the national programme since 1920. It is coming, therefore, in due fulfillment of the national will definitely expressed nearly twenty years ago.(3) Sociological Journey to interpretative Destination. This long excursion may justly be brought to a close by an off repeated but constitutionally relevant quotation from Field, J. irresistible attractive for fine spun feeling and exquisite expression. "There is in this position an assumption of a fact which does not exist, that when the liquors are taken in excess the injuries are confined to the party offending. The injury, if it is true, first falls upon (1) Report of the Study Team on prohibition Vol. I P. 345. (2) Ibid P. 344. (3) Collected Works of Mahatma Gandhi Vol. 10 520SCI/78 138 him in his health, which the habit undermines; in his morals, which it weakens; and in the self abasement which it creates. But as it leads to neglect of business and waste of property and general demoralization, it affects those who are immediately connected with or dependent upon him. By the general concurrence of opinion of every civilised and Christian community, there are few sources of crime and misery to society equal to the dram shop, where intoxication liquors, in small quantities, to be drunk at the time, are sold indiscriminately to all parties applying. The statistics of every State show a greater amount of crime and misery attributable to the use of ardent spirits obtained at those retail liquor saloons than to any other source. The sale of such liquors in this way has therefore, been, at all times, by the courts of every State, considered as the proper subject of legislative regulation. Not only may a licence be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of. but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day, and the days of the week, on which the saloons may be opened. Their sale in that form may be absolutely prohibited. It is a question of Public Expediency and public morality, and not of federal law. The police power of the State fully competent to regulate the business to mitigate its evils or to suppress it entirely, there is no inherent right in a citizen to thus sell intoxicating liquors by retail, it is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community, it may as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the Governing authority. That authority may vest in such officers as it may deem proper and power of passing upon applications for permission to carry it on, and to issue licenses for that purpose. It is a matter of legislative will only. "(1) The Panorama of views, insights and analyses we have tediously. projected serves the sociological essay on adjudicating the reasonableness and arbitrariness of the impugned shut down order on Tuesdays and Fridays. Whatever our personal views and reservations on the philosophy, the politics, the economics and the pragmatics of prohibition, we are called upon to pass on the vires of the amended order. "We, the people of India ', have enacted article 47 and 'we, the Justices of India ' cannot 'lure it back to cancel half a life ' or 'wash out a word of it ', especially when progressive implementation of the policy of prohibition is, by Articles 38 and 47 made fundamental to the country 's governance. The Constitution is the property of the people (1) Crowely vs Christensen, ; , 623. 139 and the courts know how is to apply the constitution, not to assess it. In the process of interpretation, Part IV of the Constitution must enter the soul of Part III and the laws, as held by the Court in State of Kerala & Anr. vs N. M. Thomas & Ors.(1) and earlier. The dynamics of statutory construction, in a country like ours, where the pre Independence Legislative package has to be adapted to the vital spirit of the Constitution, may demand that new wine be poured into old bottles, language permitting. We propound no novel proposition and recall the opinion of Chief Justice Winslow of Wisconsin upholding as constitutional a Workmen 's Compensation Act of which he said: "when an eighteenth century constitution forms the charter of liberty of a twentieth century government, must its general provisions be construed and interpreted by an eighteenth century mind surrounded by eighteenth century conditions and ideals ? Clearly not. This were a command of half the race in its progress, to stretch the state upon a veritable bed of Procrustes. Where there is no express command or prohibition, but only general language of policy to be considered, the conditions prevailing at the time of its adoption must have their due weight hut the changed social, economic and governmental conditions of the time, as well as the problems which the changes have produced, must also logically enter into the consideration and become influential factors in the settlement of problems of construction and interpretation. "(2) In short, while the imperial masters were concerned about the revenues they could make from the liquor trade they were not indifferent to the social control of this business which, if left unbridled, was fraught with danger to health, morals, public order and the flow of life without stress or distress. Indeed even collection of revenue was intertwined with orderly milieu; and these twin objects are reflected in the scheme and provisions of the Act. Indeed, the history of excise legislation in this country has received judicial attention earlier and the whole position has been neatly summarised by Chandrachud J. (as he then was) if we may say so with great respect, as a scissor and paste operation is enough for our purpose: (1) [1976] I S.C.R. 906. (2) Borgnis vs The Falk Co. 147 Wisconsin Reports P. 327 at 348 et See (1911). That this doctrine is to be deemed to apply only to "due process ' and "police Power" determinations, see especially concurring opinions of Marshalle, and Barness, J. 140 "Liquor licensing has a long history. Prior to the passing of the Indian Constitution, the licensees mostly restricted their challenge to the demand of the Government as being in excess of the condition of the licence or on the ground that the rules in pursuance of which such conditions were framed were themselves beyond the rule making power of the authority concerned. The provisions of the Punjab Excise Act, 1914, like the provisions of similar Acts in force in other States, reflect the nature and the width of the power in the matter of liquor licensing. We will notice first the relevant provisions of the Act under consideration. Section S of the Act empowers the State Government to regulate the maximum or minimum quantity of any intoxicant which may be sold by retail or wholesale. Section 8(a) vests the general superintendence and administration of all matters relating to excise in the Financial Commissioner, subject to the control of the State Government. Section 16 provides that no intoxicant shall be imported, exported or transported except after payment of the necessary duty or execution of a bond for such payment and in compliance with such conditions as the State Government may impose. Section 17 confers upon the State Government the power to prohibit the import or export of any intoxicant into or from Punjab or any part thereof and to prohibit the transport of any intoxicant. By section 20(1) no intoxicant can be manufactured or collected, no hemp plant can be cultivated no tari producing tree can be tapped, no tari can be drawn from any tree and no person can possess any material or apparatus for manufacturing an intoxicant other than tari except under the authority and subject. to the terms and conditions of a licence granted by the Collector. By sub section (2) of section 20 no distillery or brewery can be constructed or worked except under the authority and subject to the terms and conditions of a licence granted by the Financial Commissioner. Section 24 provides that no person shall have in his possession any intoxicant in excess of such quantity as the State Government declares to be the limit of retail sale, except under the authority and in accordance with the terms and conditions of a licence or permit. Sub section (4) of section 24 empowers the State Government to prohibit the posses 141 sion of any intoxicant or restrict its possession by imposing such conditions as it may prescribe. Section 26 prohibits the sale of liquor except under the authority and subject to the terms and conditions of a licence granted in that behalf. Section 27 of the Act empowers the State Government to "lease" on such conditions and for such period as it may deem fit or retail, any country liquor or intoxicating drug within any specified local area. On such lease being granted the Collector, under sub section (2), has to grant to the lessee a licence in the form of his lease. Section 34(1) of the Act provides that every licence, permit or pass under the Act shall be granted (a) on payment of such fees, if any, (b) subject to such restrictions and on such conditions, (c) in such form and containing such particulars, and (d) for such period as the Financial Commissioner may direct. By section 35(2), before any licence is granted for the retail sale of liquor for consumption on any premises the Collector has to ascertain local public opinion in regard to the licensing of such premises. Section 36 confers power on the authority granting any licence to cancel or suspend it if, inter alia; any duty or fee payable thereon has not been duly paid. Section 56 of the Act empowers the State Government to exempt any intoxicant from the provisions of the Act. By section 58 the State Government may make rules for the purpose of carrying out the provisions of this Act. Section 59 empowers the Financial Commissioner by clause (a) to regulate the manufacture, supply, storage or sale of any intoxicant. xxx xxx xx The Prohibition and Excise Laws in force in other States contain provisions substantially similar to those contained in the Punjab Excise Act. Several Acts passed by State Legislatures contain provisions rendering it unlawful to manufacture export, import, transport or sell intoxicating liquor except in accordance with a licence, permit or pass granted in that behalf. The Bombay Abkari Act 1878; the Bombay Prohibition Act 1949, the Bengal Excise Acts of 1878 and 1909; the Madras Abkari Act 1886; 142 the Laws and Rules contained in the Excise Manual United Province, the Eastern Bengal and Assam Excise Act 1910; the Bihar and orissa Excise Act 1915; the Cochin Abkari Act as amended by the Kerala Abkari Laws Act 1964; the Madhya Pradesh Excise Act 1915, are instances of State legislation by which extensive powers are conferred on the State Government in the matter of liquor licensing. (1) In this background, let us read section 59(f)(v) and Rule 37 before and after the impugned amendment: "59(f)(v). The fixing of the days and hours during which any licensed premises may or may not be kept open, and the closure of such premises on special occasions; Rule 37(9). Conditions dealing with licensed hours Every licensee for the sale of liquor shall keep his shop closed on the seventh day of every month, on all Tuesdays upto 2 p.m. On Republic day (26th January), on Independence day (15th August), on Mahatma Gandhi 's birthday (2nd October) and on such days not exceeding three in a year as may be declared by the Government in this behalf. He shall observe the following working hours. hereinafter called the licensed hours, and shall not, without the sanction of the Excise Commissioner, Punjab or other competent authority, keep his shop open outside these hours The licensed hours shall be as follows: xx xx xx After amendment 37(9). Conditions dealing with licensed hours. Every licensee for the sale of liquor shall keep his shop closed on every Tuesday and Friday, on Republic Day (26th January), on Independence day (15th August), on Mahatma Gandhi 's birthday (2nd October) and on such days not exceeding three in a year as may be declared by the Government in this behalf. He shall observe the following working hours, hereinafter called the licensed hours, and shall not, without the sanction of the Excise (1) Har Shankar & Ors. etc. vs Dy. Excise & Taxation Commr. and ors. [1975 ], 3 S.C.R. 254 at 266 267. 143 Commissioner, Punjab or other competent authority, keep his shop open outside these hours. The licensed hours shall be as follows: * * * Note: The condition regarding closure of liquor shops on very Tuesday and Friday shall not be applicable in the case of licenses of tourist bungalows and re sorts being run by the Tourism Department of the State Government. Before formulating the contentions pressed before us by Shri A. K. Sen, Shri Mahajan and Shri Sharma, we may mention that Shri Seth, one of the Advocates who argued innovatively, did contend that the Act was beyond the legislative competence of the State and if that tall contention met with our approval there was nothing more to be done. To substantiate this daring submission the learned counsel referred us to the entries in the Seventh Schedule to the Constitution. All that we need say is that the argument is too abstruse for us to deal with intelligibly. To mention the plea is necessary but to chase it further is supererogatory. The main contention The primary submission proceeded on the assumption that a citizen had a fundamental right to carry on trade or business in intoxicants. The learned Addl. Solicitor General urged that no such fundamental right could be claimed, having regard to noxious substances and consequences involved and further contended that, notwithstanding the observations of Subba Rao, C.J. in Krishna Kumar Narula etc. vs The State of Jammu & Kashmir & ors.(I) the preponderant view of this Court, precedent and subsequent to the 'amber ' observations in the aforesaid decision, has been that no fundamental right can be claimed by a citizen in seriously obnoxious trades, offensive businesses or outraging occupations like trade in dangerous commodities, trafficking in human flesh, horrifying exploitation or ruinous gambling. Even so, since the question of the fundamentality of such right is before this Court in other batches of writ petitions which are not before us, we have chosen to proceed on the footing, arguendo, that there is a fundamental right in liquor trade for the petitioners. Not that we agree nor that Shree Sorabjee concedes that there is such a right but that, (1) [1961] S S.C.R. SO. 144 for the sake of narrowing the scope of the colossal number of writ petitions now before us, this question may well be skirted. The Bench and the Bar have, therefore, focussed attention on the vires of the provision from the standpoint of valid power of regulation of the liquor trade vis a vis unreasonableness, arbitrariness and vacuum of any indicium for just exercise. Essentially, the point pressed was that section 59(f)(v) vested an unguided, uncanalised, vague and vagarious power in the Financial Commissioner to fix any days or number of days and any hours or number of hours as his fancy or humour suggested. There were no guidelines, no indicators, no controlling points whereby the widely worded power of the Excise Commissioner on whom Government has vested the power pursuant to Sec. 9) should be geared to a definite goal embanked by some clear cut policy and made accountable to some relevant principle. Such a plenary power carried the pernicious potential for tyrannical exercise in its womb and would be still born, judged by our constitutional values. If the power is capable of fantastic playfulness or fanciful misuse it is unreasonable, being absolute, tested by the canons of the rule of law. And if, arguendo, it is so unreasonably wide as to imperil the enjoyment of a fundamental right it is violative of article 19(1)(g) and is not saved by article 19(6). Another facet of the same submission is that if the provision is an arbitrary armour, the power wielder can act nepotistically, pick and choose discriminatorily or gambol goodily. Where a law permits discrimination, huff and humour, the guarantee of equality becomes phoney, flimsy or illusory article 14 is outraged by such a provision and is liable to be quashed for that reason. An important undertaking by the State We must here record an undertaking by the Punjab Government and eliminate a possible confusion. The amended rule partially prohibits liquor sales in the sense that on Tuesdays and Fridays no hotel, restaurant or other institution covered by it shall trade in liquor. But this prohibition is made non applicable to like institutions run by the Government or its agencies. We, prima face, felt that this was discriminatory on its face. Further, article 47 charged the State with promotion of prohibition as a fundamental policy and it is indefensible for Government to enforce prohibitionist restraints on others and itself practise the opposite and betray the constitutional mandate. It suggests dubious dealing by State Power. Such hollow homage to article 47 and the Father of the nation gives diminishing credibility mileage in a democratic polity The learned Additional Solicitor General, without going into the correctness of propriety of 145 our initial view probably he wanted to controvert or clarify readily agreed that the Tuesday Friday ban would be equally observed by the State organs also. The undertaking recorded, as part of the proceddings of the Court, runs thus: "The Additional Solicitor General appearing for the State of Punjab states that the Punjab State undertakes to proceed on the footing that the 'Note ' is not in force and that they do not propose to rely on the 'Note ' and will, in regard to tourist bungalows and resorts run by the Tourism Department of the State Government observe the same regulatory provision as is contained in the substantive part of Rule 37 Sub rule 9. We accept this statement and treat it as an undertaking by the State. Formal steps for deleting the 'Note ' will be taken in due course." Although a Note can be law, here the State concedes that it may not be treated as such. Even otherwise, the note is plainly severable and the rule independently viable. Shri A. K. Sen who had raised this point at the beginning allowed it to fade out when the State 's undertaking was brought to his notice. The vice of discrimination, blotted out of the law by this process, may not be sufficient, if the traditional approach were to be made to striking down; but if restructuring is done and the formal process delayed, there is no reason to quash when the correction is done. Courts try to save, not to scuttle, when allegiance to the Constitution is shown. In short, Tuesdays and Fridays, so long as this rule remains (as modified in the light of the undertaking) shall be a holiday for the liquor trade in the private Or public sector throughout the State. We need hardly state that if Government goes back on this altered law the consequences may be plural and unpleasant. Of course, we do not expect, in the least, that any such apprehension will actualise. one confusion that we want to clear up is that even if section 59 and Rule 37 were upheld in toto that does not preclude any affected party from challenging a particular executive act pursuant thereto on the ground that such an act is arbitrary, mala fide or unrelated to the purposes and the guidelines available in the Statute. If, for instance, the Financial Commissioner or the Excise Commissioner, as the case may be declares that all liquor shops shall be opened on his birthday or shall remain closed on his friend 's death anniversary, whatever our pronouncement on the vires of the impugned provisions, the executive order will be sentenced to death. The law may be good, the act may be corrupt and then it cannot be saved. 146 The only question seriously canvassed before us is as to whether the power under section 59(f)(v) unguided and the rule framed there under is bad as arbitrary. We will forthwith examine the soundness of that proposition. An irrelevant controversy consumed some court time viz., that the two day shut down rule meant that a substantial portion of the year for which the licence was granted for full consideration would thus be sliced off without compensation. This step was iniquitous and inflicted loss and was therefore 'unreasonable ' therefore void. The Additional Solicitor General refuted this charge on facts and challenged its relevance in law. We must not forget that we are examining the vires of a law, not adjudging a breach of contract and if on account of a legislation a party sustains damages or claims a refund that does not bear upon the vires of the provision but be longs to another province. Moreover, the grievance of the petitioners is mere 'boloney ' be cause even their licence fee has been reduced under the amended rule to compensate, as it were, for the extra closure of a day or so. We do not delve into the details nor pronounce on it as it is not pertinent to constitutionality. But a disquieting feature of the rule, in the background of the purpose of the measure, falls to be noticed. Perhaps the most significant social welfare aspect of the closure is the prevention of the ruination of the poor worker by drinking down the little earnings he gets on the wage day. Credit sales are banned and cash sales spurt on wage days. Any Government, with workers ' weal and their families ' survival at heart, will use its police power ' under article 19(6) read with Sec. 59(f)(v) of the Act to forbid alcohol sales on pay days. Wisely to save the dependent women and children of wage earners the former unamended rule had forbidden sales on the seventh day of every month (when, it is well known, the monthly pay packet passes into the employees ' pocket). To permit the tavern or liquor bar to transact business that tempting days is to abet the dealer who picks the pocket of the vulnerables and betray the Gandhian behest. And yet, while bringing in the Tuesday Friday forbiddance of sales, the ban on sales on the seventh of every month was entirely deleted an oblique bonus to the liquor lobby, if we look at it sternly, an unwitting indiscretion, if we view it indulgently. The victims are the weeping wives and crying children of the workers. All power is a trust and its exercise by governments must be subject to social audit and Judas exposure. 'For whom do the constitutional bells toll ? ' this court asked in an earlier 147 judgment relating to Scheduled Castes.(1) We hope Punjab will rectify the error and hearten the poor in the spirit of article 47 and not take away by the left hand what the right hand gives. We indicated these thoughts in the course of the hearing so that no one was taken by surprise. Be that as it may, the petitioner can derive no aid and comfort from our criticisms which are meant to alert the parliamentary auditors of subordinate legislation in our welfare 1 State. The Scheme and the subject matter supply the guidelines We come to the crux of the matter. Is Section 59(f)(v) 'bad for want of guidelines ? Is it over broad or too bald ? Does it lend itself to naked, unreasonable exercise? We were taken through a few rulings where power without embankments was held bad. They related to ordinary items like coal or restrictions where guidelines were blank. Here, we are in a different street altogether. The trade is instinct with injury to individual and community and has serious side effects recognised everywhere in every age. Not to control alcohol business is to abdicate the right to rule for the good of the people. Not to canalise the age and sex of consumers and servers, the hours of sale and cash and carry basis, the punctuation and pause in days to produce partially the 'dry ' habit is to fail functionally as a welfare State. The whole scheme of the statute proclaims its purpose of control in time and space and otherwise. Section 58 vests in Government the power for more serious restrictions and laying down of principles. Details and lesser constraints have been left to the rule making power of the Financial Commissioner. The complex of provisions is purpose oriented, considerably reinforced by article 47. Old statutes get invigorated by the Paramount Parchment. Interpretation of the text of pre constitution enactments can legitimately be infused with the concerns and commitments or the Constitution, as an imperative exercise. Thus, it is impossible to maintain that no guidelines are found in the Act. We wholly agree with the learned Additional Solicitor General that the search for guidelines is not a verbal excursion. The very . subject matter of the statute intoxicants eloquently impresses the Act with a clear purpose, a social orientation and a statutory strategy. If bread and brandy are different the point we make argues itself. The goal IS promotion of temperance and, flowing there out, of sobriety, public order, individual health, crime control, medical bills, family welfare, curbing of violence and tension, restoration of the addict 's mental, moral and physical personality and interdict on (1) [1977] 1.S.C.R. 906. 148 impoverishment, in various degrees, compounded. We have extensively quoted supportive literature; and regulation of alcohol per se furnishes a definite guideline. If the Section or the Rule intended to combat an evil is misused for a perverse, ulterior or extraneous object that action, not the law, will be struck down. In this view, discrimination or arbitrariness is also excluded. A final bid to stigmatize the provision [Sec. 59 (f)(v)] was made by raising a consternation. The power to fix the days and hours is so broad that the authority may fix six out of seven days or 23 out of 24 hours as 'dry ' days or closed hours and thus cripple the purpose of the licence. This is an ersatz apprehension, a caricature of the provision and an assumption of power run amok. An Abkari law, as here unfolded by the scheme (chapters and Sections further amplified by the rules framed thereunder during the last 64 years) is not a Prohibition Act with a mission of total prohibition. The obvious object is a to balance temperance with tax, to condition and curtail consumption without liquidating the liquor business, to experiment with phased and progressive projects of prohibition without total ban on the alcohol trade or individual intake. The temperance movement leaves the door half closed, not wide, ajar; the prohibition crusade banishes wholly the drinking of intoxicants. So it follows that the limited temperance guideline writ large in the Act will monitor the use of the power. Operation Temperance, leading later to the former, may be a strategy within the scope of the Abkari Act. Both may be valid but we do not go into it. Suffice it to say that even restrictions under article 19 may, depending on situations, be pushed to the point of prohibition consistently with reasonableness. The chimerical fear that 'fix the days ' means even ban the whole week, is either pathological or artificial, not certainly real under the Act. We are not to be understood to say that a complete ban is without the bounds of the law it turns on a given statutory scheme. While the police power as developed in the American jurisprudence and constitutional law, may not be applicable in terms to the Indian Constitutional law, there is much that is common between that doctrine and the reasonableness doctrine under article 19 of the Indian Constitution. Notes an American Law Journal: "The police power has often been described as the "least limitable" of the governmental powers. An attempt to define its reach or trace its outer limits is fruitless for each case turns upon its own facts. The police power must be used to promote the health, safety, or general welfare of the public, and the exercise of the power must be 149 "reasonable". An exercise of the police power going beyond these basic limits is not constitutionally permissible. Noxious Use Theory: . This theory upholds as valid any regulation of the use of property, even to the point of total destruction of value, so long as the use prohibited is harmful to others. " (1) In a Law Review published from the United States 'police power ' with reference to intoxicant liquors has been dealt with and is instructive: "Government control over intoxicating liquors has long been recognized as a necessary function to protect society from the evils attending it. Protection of society and not the providing of a benefit of the license holder is the chief end of such laws and regulations. There is no inherent right in a citizen to sell intoxicating liquors as retail. It is a business attended with danger to the community and it is recognised everywhere as a subject of regulation. " As to the legislative power to regulate liquor, the United States Supreme Court has stated: "If the public safety or the public morals require the discontinuance of the manufacture or traffic (of intoxicating liquors) the hand of the legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer." The States have consistently held that the regulation of intoxicants is a valid exercise of its police power. The police power stands upon the basic principle that some rights must be and are surrendered or modified in entering into the social and political state as indispensible to the good government and due regulation and well being of society. In evaluating the constitutionality of a regulation within the police power, validity depends on whether the regulation is designed to accomplish a purpose within the scope of that power. "(2) (1) South Western Law Journal Annual Survey of Texas Law, vol. 30 No. I, Survey 1976 pp. 725 26. (2) Idaho Law Review, Vol. 7, 1970 p. 131. 150 It is evident that there is close similarity in judicial thinking on the subject. This has been made further clear from several observations of this Court in its judgments and we may make a reference to a recent case, Himmatlal, and a few observations therein: "In the United States of America, operators of gambling sought the protection of the commerce clause. But the Court upheld the power of the Congress to regulate and control the same. Likewise, the pure Food Act which prohibited the importation of adulterated food was upheld. The prohibition of transportation of women for immoral purposes from one State to another or to a foreign land was held valid. Gambling itself was held in great disfavour by the Supreme Court which roundly stated that 'there is no constitutional right to gamble`. Das, C.J., after making a survey of judicial thought, here and abroad, opined that freedom was unfree when society was exposed to grave risk or held in ransom by the operation of the impugned activities. The contrary argument that all economic activities were entitled to freedom as 'trade ' subject to reasonable restrictions which the Legislature might impose, was dealt with by the learned Chief Justice in a sharp and forceful presentation; "on this argument it will follow that criminal activities undertaken and carried on with a view to earning profit will be protected as fundamental rights until they are restricted by law. Thus there will be a guaranteed right to carry on a business of hiring out goodness to commit assault or even murder, of house breaking, of selling obscene pictures, of trafficking in women and so on until the law curbs or stops such activities. This appears to us to be completely unrealistic and incongruous. We have no doubt that there are certain activities which can under no circumstances be regarded as trade or business or commerce although the usual forms and instruments are employed therein. To exclude those activities from the meaning of those words is not to cut down their meaning at all but to say only that they are not within the true meaning of those words. Learned Counsel has to concede that there can be no 'trade ' or business in crime but submits that this principle should not be extended . " (1) Fatehchand Himmatlal vs Maharashtra ; at 839 840. 151 We have no hesitation, in our hearts and our heads, to hold that every systematic, profit oriented activity, how ever sinister, suppressive or socially diabolic, cannot, ipso facto, exalt itself into a trade. Incorporation of Directive principles of State policy casting the high duty upon the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice social, economic and political shall inform all the institutions of the national life, is not idle print but command to action. We can never forget, except at our peril, that the Constitution obligates the State to ensure an adequate means of livelihood to its citizens and to sec that the health and strength of workers men and women, are not abused, that exploitation, normal and material, shall be extradited. In short State action defending the weaker sections from social injustice and all forms of exploitation and raising the standard of living of the people, necessarily imply that economic activities, attired as trade or business or commerce, can be de recognised as trade or business. At this point, the legal culture and the public morals of a nation may merge, economic justice and taboo of traumatic trade may meet and jurisprudence may frown upon day dark and deadly dealings. The Constitutional refusal to consecrate exploitation as 'trade ' in a socialist Republic like ours argues itself. " A precedentral approach to the ultra vires argument. The single substantive contention has incarnated as triple constitutional infirmities. Counsel argued that the power to make rules fixing the days and hours for closing or keeping open liquor shops was wholly unguided. Three invalidatory vices flowed from this single flaw viz. (i) excessive delegation of legislative power, (ii) unreasonable restriction on the fundamental right to trade in intoxicants under article 19(1) (g), and (iii) arbitrary power to pick and choose, inherently violative of article 14. Assuming the legality of the triune lethal blows, the basic charge of uncanalised and naked power must be established. We have already held that the statutory scheme is not merely fiscal but also designed to regulate and reduce alcoholic habit. And, while commodities and situations dictate whether power, in given statutory provisions, is too plenary to be other than arbitrary or is instinct with inherent limitations, alcohol is so manifestly deleterious that the nature of the guidelines is written in invisible ink. 152 A brief reference to a few rulings cited by counsel may not be inept. It is true that although the enactment under consideration is more than five decades old, its validity can now be assailed on the score of unconstitutionality: "When India became a sovereign democratic Republic on 26th January, 1950, the validity of all laws had to be tested on the touchstone of the new Constitution and all laws made before the coming into force of the Constitution have to stand the test for their validity on the provisions of Part Ill of the Constitution. ' '(1) This is why the principle of excessive delegation, that is to say, the making over by the legislature of the essential principles of legislation to another body, becomes relevant in the present debate. Under our constitutional scheme the legislature must retain in its own 'hands the essential legislative functions. Exactly what constitutes the essential legislative functions is difficult to define. "The legislature must retain in its own hands the essential legislative function. Exactly what constituted "essential legislative function", was difficult to define in general terms, but this much was clear that the essential legislative function must at least consist of the determination of the legislative policy and its formulation as a binding rule of conduct. Thus where the law passed by the legislature declares the legislative policy and lays down the standard which is enacted into a rule of law, it can leave the task of subordinate legislation which by its very nature is ancillary to the statute to subordinate bodies, i.e., the making of rules, regulations or bye laws. The subordinate authority must do so within the frame work of the law which makes the delegation. and such subordinate legislation has to be consistent with the law under which it is made and cannot go beyond the limits of the policy and standard laid down in the law. Provided the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case. "(2) (1) Suraj Mall Mohta and Co.v. A.V. Visvanatha Sastri and another ; at 457. (2) Municipal Corporation of Delhi vs Birla Cotton, Spinning and Weaving Mills Delhi & Anr. ; at 261 153 In Vasanthlal Maganbhai Sajanwal vs The State of Bombay(1) the same point was made: "A statute challenged on the ground of excessive delegation must therefore be subject to two tests, (1) whether it delegates essential legislative function or power and (2) WHETHER the legislature has enunciated its policy and principle for the guidance of the delegate. " Likewise, if the State can choose any day or hour for exclusion as it fancies and there are no rules to fix this discretion, plainly the provision [Sec.59(f)(v)] must offend against Art.14 of the Constitution. (See Saghir Ahmed 's case)(2) Another aspect of unguided power to affect the citizen 's fundamental rights in the province of article 19 since imposition of unreasonable restrictions on the right lo carry on business is violative of article 19(1)(g). Patanjali Sastri, C.J., in V. G. Row 's case observed(2) "The test of reasonableness, wherever prescribed should l) applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be Laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent or urgency of the evil sought to be remedied thereby, the disproportion of imposition, the prevailing conditions at the time should enter into the judicial verdict" This Court, in R. M. Seshadri,(4) dealt with unreasonable restrictions on showing of films by theatre owners and struck down the provisions. Similarly, in Harichand(5) an unreasonable restriction on the right to trade was struck down because the regulation concerned provided no principles nor contained any policy and this Court observed: "A provision which leaves an unbridled power to an authority cannot in any sense be characterised as reasonable. Section 3 of the Regulation is one such provision and is therefore liable to be struck down as violative of article 19(1)(g)". (1) (2) ; (3) ; (4) [1955]1 S.C.R. 686. (S) LALA Hari Chand Sarda vs Mizo District Council & Anr [1967]1 S.C.R. 1012 11 520 SCI/78 154 other decisions in the same strain were cited. Indeed an annual shower of decisions on this point issues from this Court. But the essential point made in all these cases is that unchannelled and arbitrary discretion is patently violative of the requirements of reasonableness in article 19 and of equality under article 14, a proposition with which no one can now quarrel. lt is in the application of these principles that disputes arise as Patanjali Sastri, C.J. clarified early in the day in V. G. Row 's case (cited Supra). Reasonableness and arbitrariness are not abstractions and must be tested on the touchstone of principle pragmatism and living realism. It is in this context that the observations of this Court in Nashirwar(1) become decisive. While considering the soundness of the propositions advanced by the advocate for the petitioners the Additional Solicitor General rightly shielded the statutory provisions i question by drawing our attention to the crucial factor that the subject matter of the legislation was a deleterious substance requiring restrictions in the direction of moderation in consumption. regulation regarding the days and hours of sale and appropriateness in the matter of the location of the places of sale. If it is coal or mica or cinema, the test of reasonableness will be stricter, but if it is an intoxicant or a killer drug or a fire arm the restrictions must be stern. When the public purpose is clear and the policing need is manifest from the nature of the business itself, the guidelines are easy to find. Shri Mahajan 's reliance on the Coal Control Case( ') or Shri A. K. Sen 's reliance on the Gold Control case (3)is inept. Coal and gold are as apart from whisky and toddy as cabbages are from kings. Don 't we feel the difference between bread and brandy in the field of trade control ? Life speaks through Law. Counsel after counsel has pressed that there is no guideline for the exercise of the power of rule making and the Addl. Solicitor General has turned to the history, sociology and criminology relating to liquor. In support of his contention, Shri Soli Sorabjee for the State has drawn our attention to the following passages in Nashirwar which are quoted is extenso because of the persistence of counsel on the other side in pressing their point about unbounded power: "In our country the history of excise shows that the regulations issued between 1790 1800 prohibited manufacture or sale of liquors without a licence from a Collector. In 1 808 a regulation was introduced in tile Madras Presidency (1) ; (2) ; (3) ; 155 Which provided that the exclusive privilege of manufacturing and selling arrack should be farmed in each district. In 1820 the law was amended to authorise the treatment of toddy and other fermented liquors in the same way as spirits by allowing Collectors to retain the manufacture and sale under direct management if deemed preferable to farming. In 1884 a Committee was appointed to investigate the excise system. The recommendations of the Committee were adopted. Under the new system the monopoly of manufacture was let separately from that of sale. The former was granted on condition of payment of a fee per shop or a number of shops, or on payment of a fee determined by auction. In the Bombay Presidency the monopoly of the retail sale of spirits and the right to purchase spirits was formed. In 1857 the Government declared its future policy to be the letting by auction of each shop, with its still, separately. In 1870 71 a change was made. The rule at that time was that the Collector would fix the number and locality of the different shops and determine their letting value according to the advantages possessed by each. It was not intended that they should, as a rule, be put up to public competition; but competition might be resorted to by the Collector and taken into account in determining the same at which each would be leased. This rule remained in force for many years. The practice of putting the shops up to auction was, thereafter followed. The history of excise administration in our country before the Independence shows that there was originally the farming system and thereafter the central distillery system for manufacture. The retail sale was by auction of the right and privilege of sale. The Government of India appointed an Excise Committee in 1905. The measures recommended by the Committee were the advances of taxation, the concentration of distillation the extended adoption of the contract distillery system. The Committee suggested among other things the replacement of the then existing excise law by fresh legislation on the lines of the Madras Abkari Act. (See Dr. Pramatha Nath Banerjee: History of Indian Taxation P. 470 seq.). Reference may be made to the Taxation Enquiry Commissioner Report 1953 54 Vol. 3. At page 130 following there is a discussion of State excises. Among the major sources of revenue which are available to the State Government there is a duty on alcoholic liquors for human consumption. At page 132 of the Report it is stated that in addition 156 to the excise duties, licence fees are charged for manufacture or sale of liquor or for tapping toddy trees etc. Similarly, several fees like permit fees, vend fees, outstill duties are also levied. Manufacture or sale of liquor is forbidden except under licences which are generally granted by auction to the highest bidders. The manufacture of country spirit is done in Government distilleries or under the direct supervision of the excise staff. All supplies are drawn from Government warehouses which ensures that the liquor is not more than of the prescribed strength. The licensed sellers have to sell the country spirit between fixed hours and at fixed selling rates. As in the case of country spirit, the right of tapping and selling toddy is also auctioned. In addition to the licence, in some States the licensee has to pay a tree tax to Government. Traditionally tobacco, opium and intoxicating liquors have been the subject matter of State monopoly. (See section IV of the Madras Regulation XXV of 1 802 relating to permanent settlement of land revenue). Section IV states that the Government having reserved to itself the entire exercise of its discretion in continuing or abolishing, temporarily or permanently, the articles of revenue included, according to the custom and practice of the country, under the several heads inter alia of the abkary, or tax on the sale of spirituous liquors and intoxicating drugs, of the excise on articles of consumption, of taxes personal and professional, as well as those derived from markets, fairs, or bazars. of lakhiraj lands (or lands exempt from the payment of public revenue), and of all other lands paying only favourable quit rents, the permanent assessment of the land tax shall be made exclusively of the said articles now recited. The excise revenue arising out of manufacture and sale of intoxicating liquors is one of the sources of State revenue as is customs and excise. In England sale of intoxicating liquors although perfectly lawful at common law is subject to certain statutory restrictions. These restrictions are primarily of two kinds; those designed for the orderly conduct of the retail trade and those designed to obtain revenue from the trade r whether wholesale or retail. Trade in liquor has historically stood on a different footing from other trades. Restrictions which are not permissible other trades are lawful and reasonable so far as the trade 157 in liquor is concerned. That is why even prohibition of the trade in liquor is not only permissible but is also reasonable. The reasons are public morality, public interest and harmful and dangerous character of the liquor. The State possesses the right of complete control over all aspects of intoxicants, viz., manufacture, collection, sale and consumption. The State has sight in order to raise revenue. That is the view of this Court in Bharucha 's case (supra) and jaiswal 's case ( supra) . The nature of the trade is such that the State confers the right to vend liquor by farming out either in auction or on private treaty. Rental is the consideration for the privilege granted by the Government for manufacturing or vending liquor. Rental is neither a tax nor an excise duty. Rental ii the consideration for the agreement for grant of privilege by the Government." (pp. 869 871) The guide lines. Now that we have held that the provision [Section 59(f)(v)] is valid on a consideration of the criteria controlling the wide words used therein there is a minor matter remaining to be disposed of. The extract from the Section, as will be noticed, contains a clause which runs: "and the closure of such premises on special occasions". Thus, rules may be made by the Financial Commissioner for fixing the closure of licensed premises on 'special occasion '. Shri Mahajan insisted that 'special occasions ' may mean anything and may cover any occasion dictated by humour, political pressure or other ulterior considerations. It is thus a blanket power which is an unreasonable restriction on the licensee 's trade. Certainly if 'special occasions ' means any occasion which appeals to the mood of the Financial Commissioner or has other casual fascination for him the rule may suffer from arbitrary and unreasonable features. Gandhiji 's birthday and also Vinobaji 's birthday have been included in the licence itself. 'Special occasions ' contemplated by Sec. 59(f) (v) are not stricken by such a vice for the obvious reasons we have elaborately given in the earlier part of our argument. The occasion must be special from the point of view of the bread considerations of national solemnity. public order, homage to national figures, the likelihood of eruption of inebriate violence On certain days on account of meals, festivals or frenzied situations or periods of tension. Bapuji 's birthday, election day, hours of procession by rival communities when tensions prevail or festivals where colossal numbers of people gather and outbreak of violence is on the agenda, are clear illustrations. 'Special occasions ' cannot be equated with fanciful occasions but such as promote the policy of the statute as expounded by us earlier. There is no merit in this argument either and we reject it. 158 As between temperance and prohibition it is a policy decision for the Administration. Much may be said for and against total prohibition as an American wit has cryptically yet sarcastically summed up(1): "The chief argument against prohibition is that it does not prohibit. This is also the chief argument in favour of it." This survey of the law ways of article 19 and the police power is sufficient in our view to clinch the issue. our conclusions may now be set out. (a) Section 59(f)(v) of the Punjab Excise Act, 1914, is perfectly valid; (b) The regulation of the number of days and the duration of the hours when supply of alcohol by licensees shall be stopped is quite reasonable, whether it be two days in a week or even more. We leave open the question as to whether prohibition of the number of days and the number of hours, if it reaches a point of substantial destruction of the right to vend, will be valid, since that question arises in other writ petitions; (c) The exercise of the power to regulate, including to direct closure for some days every week, being reasonable and calculated to produce temperance and promote social welfare, cannot be invalidated on the imaginary possibility of misuse. The test of the reasonableness of a provision is not the theoretical possibility of tyranny; and (d) There is enough guideline in the scheme and provisions of the Punjab Excise Act to govern the exercise of the power under Secs. 58 and 59. In a few beer bar cases the grievance ventilated is regarding the manipulation of hours of sale. Nothing has been made out to hold that the readjustment of the hour of beer bidding is unrelated to the statutory guidelines or destructive of the business. We reject the objection. We have reasoned enough to justify the ways of the Constitution and the law to the consumers of social justice and spirituous potions. The challenge fails and the Writ Petitions Nos. 4108 4109 tc. , of 1978 are hereby dismissed with costs (one hearing fee). May we hopefully expect the State to bear true faith and allegiance to that Constitutional orphan, article 47 ? N V.K Petitions dismissed. (1) "Reconsiderations H. L. Meneken Anti All Kinds of Blah by Lila Ray appeared in "Span" Aug. 1978 p. 41.

The Punjab Excise Act 1914 contemplates grant of licences for trading in (Indian) foreign and country liquor. Section 59(f) (v) of the Act provides for the fixing of the days during which any licensed premises may or may not be kept open for sale of liquor and the closure of such premises on special occasions. The conditions of the licence includes restrictions of various types including obligation not to sell liquor on certain days and during certain hours. Rule 37(a) as it originally stood prohibited sale of liquor on Tuesdays upto 2 p.m. and also on tho 7th day of every month. This rule was amended by a notification whereby in place of "Tuesdays upto 2 p.m. plus the 7th of every month" "Tuesday and Friday in every week", was substituted as the days when liquor vending was prohibited. "Note" appended to the said rule exempted tourist bungalows and. rest houses run by the Department of tho State Government from the operation of the condition regarding closure. Consequent upon the change of days, the . Licence fee payable by a vendor was reduced from Rs. 12,000/ to Rs. 10,000/ to compensate for the marginal loss caused by two days ' closure. The petitioners who were licensed vendors of liquor in the State challenged the constitutionality of section 59(f)(v) and the vires of Rule 37 on the ground that section 59(f)(v) vested an unguided, uncanalised, vague and vagarious power in the Financial Commissioner to fix the days or number of days and hours or number of hours without laying down any guidelines, indicators or controlling points. The State on the other hand contended that the subject matter of the legislation being a deleterious substance (liquor), requiring restrictions in the direction of moderation in consumption, regulation regarding the days and hours of sale and appropriateness in the matter of location of the places of sale, reasonableness and arbitrariness must be tested on the touchstone of principled pragmatism and living realism, Dismissing the writ petitions, ^ HELD: (a) Section 59(f)(v) of the Punjab Excise Act 1914 is valid. [158 C] 123 (b) The regulation of the number of days and the duration of the hours when supply of alcohol by licensees shall be stopped is quite reasonable whether it be two days in a week or more. [158D] (c) The exercise of the power to regulate, including to direct closure for some days every week, being reasonable and calculated to produce temperance and promote social welfare, cannot be invalidated on the imaginary possibility of misuse. The test of the reasonableness of a provision is not the theoretical possibility of tyranny. [158E] (d) There is enough guideline in the scheme and provisions of the Punjab Excise Act to govern the exercise of the power under sections 58 and 59. [158E] (1) (a) The Constitutional test of reasonableness, built into Article IV and of arbitrariness implied in Article 14 has a relativist touch. The degree of constitutional restriction and the strategy of meaningful enforcement will naturally depend on the Third World setting, the ethos of our people, the economic compulsions of today and of human tomorrow. While scanning the rationale of an Indian temperance measure it would be useful to remember the universal evil in alcohol and the particularly pernicious consequences of the drink evil in India. Societal realities shape social justice. [133H, 134A B] (b) "We, the people of India" have enacted Article 47 and "we the Justices of India" cannot 'lure it back to cancel half a life ' or 'wash out a word of it especially when progressive implementation of the policy of prohibition is, by Articles 38 and 47, made fundamental to the country 's governance. [138H] (c) The Constitution is the property of the people and the court 's know how is to apply the Constitution not to assess it. In the process of interpretation Part IV of the Constitution must enter the soul of Part m and the laws.[138H, 139A] State of Kerala & Others vs N. M. Thomas & Others ; referred to. (d) Even restrictions under Article 19 may, depending on situations be pushed to the point of prohibition consistently with reasonableness. While the police power as developed in the American Jurisprudence and Constitutional law. may not be applicable in terms to the Indian Constitutional law, there is much that is common between that doctrine and the reasonableness doctrine under Article 19 of the Indian Constitution. There is also a close similarity in judicial thinking on the subject. [148F, G] South Western Law Journal Annual Survey of Texas Law Vol. 30 No. 1. Survey 1976 pp. 725 26. Idaho Law Review Vol. 7 1970 p. 131, Fatehchand Himmatlal vs Maharashtra ; at 839 848 referred to. (e) The statutory scheme of the Act is not merely fiscal but also designed to regulate and reduce alcoholic habit. While commodities and situation dictate whether power, in given statutory provisions, is too plenary to be other than arbitrary or is instinct with inherent limitations, alcohol is so manifestly deleterious that the nature of the guidelines is written in invisible ink. [151 G H] 124 (f) The subject matter of the legislation is a deleterious substance (alcohol) requiring restrictions in the direction of moderation in consumption, regulation regarding the days and hours of sale and appropriateness in the matter of the location of the places of sale. If it is coal or mica or cinema, the test of reasonableness will be strict, but if it is an intoxicant or a killer drug or a fire arm the restrictions must be stern. Just as the difference between bread and brandy is felt in the field of trade control, coal and gold are as apart from whisky and toddy as cabbages are from kings. Life speaks through law. [ 154D F] Nashirwar vs M.P. State ; at 869 71 referred to. (2) Even if section 59 and Rule 37 were upheld in toto that does not preclude any affected party from challenging a particular executive act pursuant Thereto on the ground that such an act is arbitrary, malafide or unrelated to the purposes and the guidelines available in the statute. To illustrate, if the Financial Commissioner or the Excise Commissioner as the case may be declares that all liquor shops shall be opened on his birthday or shall remain closed on his Friend 's death anniversary, the executive order will be invalid. The law may be good, but the executive action may be corrupt and then it cannot be sustained. [145G H] (3) The most significant social welfare aspect of the closure is the prevention of the ruination of the poor worker by drinking down the little earnings he gets on the wage day. Any government with worker 's weal and their families ' survival at heart will use its 'police power ' under Article 19(6) read with. section 59(f)(v) of the Act to forbid alcohol sales on pay days. To save the dependent women and children of wage earners the former unamended rule had forbidden sales on the 7th day of every month the day the monthly pay packet passes into the employees ' pocket. While bringing in the Tuesday Friday for biddance of sales, the ban on sales on the seventh of every month was entirely deleted. The victims of the change are the weeping wives and crying children of the workers. All power is a trust and its exercise by governments must be subject to social audit and Judas exposure. [146E H] (4) The liquor trade is instinct with injury to individual and community aud has serious side effects recognised everywhere in every age. Not to control alcohol business is to abdicate the right to rule for the good of the people. Not to canalize the age and sex of the consumers and servers, the hours of sale and cash and carry basis, the punctuation and pause in days, to produce partially the 'dry ' habit it to fail functionally as a welfare state. The whole scheme of the statute proclaims its purpose of control in time and space and otherwise. Section 58 vests in government the power for more serious restrictions and laying down of principles. Details and lesser constraints have been left to the rule making power of the Financial Commissioner. The complex of provisions is purpose oriented, considerably reinforced by Article 47. Old statutes get invigorated by the Paramount Parchment. Interpretation of the text of preconstitution enactments can legitimately be infused with the concerns and commitments of the Constitution as an imperative exercise. It is impossible 'to maintain that no guidelines are found in the Act. [147D F] (5) While the forensic problem is constitutional, the Constitution itself is a human document. The Court has justified the ways of the Constitution and the law to the consumers of social justice and spirituous potions. [128D, 158G] 125 (6) As between temperance and prohibition it is a policy decision for the Administration. Hopefully it is expected of the State to bear true faith and allegiance to that Constitution orphan, Article 47. [158A, G] The Collected Works of Mahatma Gandhi pp 29 30. Society and the Criminal by M. J. Sethna 3rd Edn. P. 165, 166 & 168 69 . Society, Crime and Criminal Career by Don C. Gibbars p. 427 428. Har Shankar & others etc. vs Dy. Excise & Taxation Commissioner & others ; at 266 267 referred to. Report of the Study Team on Prohibition Vol. 344. 346, 347

: Criminal Appeal No. 343 of 1976. (Appeal by Special Leave from the Judgment and Order dated 27 1 1975 of the Rajasthan High Court in D.B. Crl. Appeal No. 575/74) S.M. Jain, I. Makwana and D. Shandari, for the appellant. Doongar Singh and S.K. Garnbhir, for the respondents. The Judgment of the Court was delivered by GOSWAMI, J. The respondents were tried by the Sessions Judge, Merta (Rajasthan) for offences under sections 302, 302/149 and some other minor sections of the Indian Penal Code. Respondent Goparam was acquitted of all the charges. The other respondents also were acquitted of the charges under .sections 302 and 302/149, IPC. Respondent Sangram was convicted under section 304 Part 11, IPC. Respondent Dayal ram was convicted under section 324 IPC. Respondents Budharam and Ramdeen were convicted under section 323 140 Being aggrieved by the judgment of the Sessions Judge, the State of Rajasthan preferred an appeal against acquittal of the major charges under section 378 of the Code of Crimi nal Procedure, 1973. The Sessions Judge delivered the judgment on March 30, 1974 and the Code of Criminal Procedure, 1973, came into force from April 1, 1974. The appeal was, therefore, preferred under the new Code. It appears that the State of Rajasthan preferred a petition for leave to appeal under section 378(3) of the Code of Criminal Procedure, 1973, on June 27, 1974, which was within the period of limitation prescribed under article 114(b) of the . Article 114(a) of the , provides for a period of limitation for appeal from. an order of acquittal under subsection (1) or sub section (2) of section 417 of the Code of Criminal Procedure, 1898 (hereinafter to be described as the Old Code). The being an act of the year 1963, does not naturally refer to section 378 of the Code of Criminal Procedure Code, 1973. Section 378 of the Code of Criminal Procedure, 1973, is equivalent to section 417 of the Old Code with an important difference in case of appeal against acquittal by the State. Under the Old Code there was no provision for taking leave of the High Court by the State for presentation of an appeal to the High Court against an original or appellate order of acquittal. There was, however, provision for obtaining special leave to appeal under section 417(3) of the Old Code against an order of acquittal in any case instituted upon complaint. With some changes about limitation, with which we are not con cerned, provision for special leave to appeal in any case instituted upon complaint has been retained in the new Code. Unlike in the Old Code, section 378(3) provides that no appeal under sub section (1) or sub section (2) thereof shall be entertained except with the leave of the High Court. Such a. provision for obtaining leave of the High Court by the State was absent in the Old Code. Since the State flied an appeal against acquittal in this case soon after the coming into force of the new Code, the State of Rajasthan preferred an application describing it as a petition for leave to appeal under section 378(3) of the Code of Criminal Procedure, 1973, with a prayer "to accept this petition to file an appeal in the present case . "Although the application was described as one under section 387(3) of the Code of Criminal Procedure, all the facts and other requisites for a memorandum of appeal, including the grounds on which the appeal was rounded, were given in as great a detail as was necessary. The High Court after hearing the State granted leave to appeal on August 16, 1974. The State thereafter filed again a petition of appeal on September 10, 1974. This date is clearly. beyond the period of ninety days prescribed under article 114(e) of the . The High Court dismissed the appeal on January 27, 1975 as time barred. In view of section 8 of the , it is not disputed before us that article 114(a) is applicable in this case. The respondents, however, submit that the petition of appeal should have 141 been presented within ninety days of the judgment of the Sessions Judge which was on March 30, 1974. Since that was not done and there was not even an application for condona tion of delay, the High Court had no alternative then to dismiss the appeal as time barred. The respondents further add that it was the practice of the Rajasthan High Court to present a memorandum of appeal after obtaining leave of the High Court. It was, therefore, incumbent upon the appellant to have preferred the petition of appeal within ninety days as prescribed under the law. The High Court also while refusing leave to appeal to the Supreme Court observed in its order that "the practice of this court is that separate memo of appeal has to be filed in all matters relating to the grant of leave to appeal under section 378 Cr. P C.". It is difficult to appreciate the reference to practice, by the High Court, so far as appeals by State are concerned when the new Code of Criminal Procedure, for the first time, provided for obtaining leave to appeal by the State only from April 1, 1974. It is admitted that there are no rules laid down by the High Court in the matter of application for leave to appeal by the State. It is, therefore, not possi ble to decide the matter relying upon the so called practice soon after the provision has been introduced. The matter will, therefore, have to be decided in terms of section 378(1) and (3) of the Code of Criminal Procedure, 1973. Section 378(1), so far as it is material for our purpose, provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal. Sub section (3) of that section provides that such an appeal shall not be entertained except with the leave of the High Court. Under the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer for leave to entertain the appeal. It is not necessary, as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal. If such a procedure is adopted, as above, it is likely, as it has happened in this case, the appeal may be time barred if the High Court takes more than ninety days for disposal of the application for leave. The possibility that the High Court may always in such cases condone the delay on applica tion filed before it does not, in law, solve the legal issue. The right conferred by section 378(1), Cr. P.C., upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted, for in certain cases it may so happen that the High Court may refuse to exercise its discretion to condone the delay. The right conferred under the section cannot be put in peril by an interpretation of section 378, Cr. P.C. which is likely to affect adversely or even perhaps to destroy that right. Besides, under article 114 of the , in an appeal from an order of acquittal by the State, the period of limitation is 142 ninety days from the date of the order appealed from; where as in an appeal from an order of acquittal, in any case instituted upon complaint, the period is thirty days from the date of the grant of special Leave. Thus there is a clear distinction between the two types of appeals with regard to terminus a quo under article 114 It is there fore, not fiecessary to wait until the grant of leave by the High Court to present a memorandum of appeal against acquit tal at the instance of the State. Thus appeal can be filed by the State within ninety days from the date of the order of acquittal and a prayer may be included in that appeal for entertaining the appeal under sub section (3) of section 378, Cr. If the leave sought for is not granted by the High Court, the appeal is not entertained and stands dis missed. We are, therefore, clearly of opinion that the application for leave to appeal, which was made by the State in this case, is equivalent to a memorandum of appeal under section 373(1) read with sub section (3) of that section of the Code of Criminal Procedure 1973. The fact that the application mentioned section 378(3) is not deci sive of the true character of the applicant1on which to all intents and purposes was a memorandum of appeal. There was There was therefore, no need for presentation of a second petition of appeal nor for an application for condonation of delay in this case. The petition of appeal was filed within time and the High Court committed an error of law in dismissing the same as time barred. In the result the appeal is allowed. The order of the High Court is set aside. The petition of appeal of June 27, 1974, shall be restored to the file of the High Court and treated as a memorandum of appeal under section 378(1) of the Code of Criminal Procedure, 1973, and, since leave had already been granted by the High Court, the appeal will be disposed of in accordance with law. Appeal allowed.

The State filed an application under section 378(3) of the Cr.P.C, 1973, for leave to appeal against the acquittal of the respondents, of the charges under section 302 and 302/149 I.P.C., by the Trial Court. The application, although made under section 378(3) contained all the requisites for a memoran dum of appeal. The High Court granted the appellant leave to the appeal, but dismissed the appeal filed thereafter, on the ground that it had not been filed within ninety days of the date of judgment appealed from, and was therefore time barred under article 114(a) of the . Allowing the appeal by special leave the Court, HELD (1) The High Court has not laid down any rules in the matter of application for leave to appeal by the State. The matter will have to be decided in terms of section 378(1) and (3) of the Code of Criminal Procedure, 1973. An appeal can be filed by the State within ninety days from the date of the order of acquittal, and a prayer may be included in that appeal for entertaining the appeal under sub section (3) of section 378 Cr. The appeal may otherwise become time barred if the High Court takes more than ninety days for disposal of the application for leave, and refuses to exercise its jurisdiction to condone the delay. The right conferred under the section cannot be put in peril by an interpretation of section 378, Cr. P.C. which is likely to affect adversely or even perhaps to destroy that right. [141 C H] (2) The fact that the appellant 's application mentioned section 378(3) is not decisive of the true character of the application which to all intents and purposes was a memoran dum of appeal. [142 C D]

any malafides again st Parliament and rightly. [130B C] & ORIGINAL JURISDICTION: Writ Petition No. 162 of 1977. (Under Article 32 of the Constitution of India. ) Jitendra Sharma for the Petitioners. T.V.S.N. Chari for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. This application under article 32 of the Constitution is by two petitioners petitioner No. 1, a private company and the other a Director thereof. The pet i tioners have challenged the vires of the Sick Textile Unde r takings (Nationalisation) Act, 1974 (57 of 1974) and ha ve asked for a direction to the respondents to restore t he Mills to the petitioners in the same condition as it was on 31.10.197 1 when it was initially taken over. Petitioners have alleged that the spinning mills prev i ously belonged to one S.R. Narasimhachari and three other section Mahalingam Chettiar, husband of the second petitione r, purchased the said Mills in 1965. He was not at all aquain t ed with the working of spinning mills and soon found th at the affairs of the Mills were far from satisfactory a nd realised that he had acquired a non viable asset. In Dece m ber 1967, Mahalingam issued notice of closure to be effe c tive from 3.1.1968, but as a fact by a subsequent noti ce dated December 22, 1967, the Mill was closed down wi th immediate effect. According to the petitioners the Mill h ad ceased to be a "textile undertaking" by January 1968; t he workmen by numerous claim petitions in the Labour Court of Madurai pressed for their various demands, they took posse s sion of the Mills and even obstructed Mahalingam 's ent ry into the premises. At one stage during that period Mahali n gam had applied for a loan of Rs. 10 lakhs from the Gover n ment of India with the hope of restarting the Mills aft er replacement of the machinery but that did not work out. T he establishment had thus closed down and according to 129 the petitioners the textile undertaking had complete ly disappeared by 1969, and the Act did not apply to it. Agai n, the 1974 Act was ultra vires the Constitution. The Sick Textile Undertakings (Taking Over of Manag e ment) Ordinance 9 of 1972 became operative from 31.10.197 2. Item 41 of the First Schedule to the Ordinance mention ed petitioner No. 1 as one of the textile undertakings who se management was to be taken over and possession was, ther e fore, taken by respondent No. 2 in terms of the provisio ns of section 4(1) thereof. The Ordinance was replaced bY Act 72 of 1972 which received Presidential assent on 23.12.1972 b ut was deemed to be in force from 31.10.1972. The petitione rs had challenged the validity of the Act by filing a wr it petition before the High Court of Madras but during t he pendency of the writ petition the Sick Textile Undertaki ng (Nationalisation) Ordinance, 12 of 1974, came into for ce from 1.4.1974, and petitioner No. 1 featured as Item 96 in the Schedule to the Ordinance. The pending writ petitio n, therefore, became infructuous and the petitioners filed a fresh writ petition challenging the validity of the Ord i nance of 1974. The Ordinance was duly replaced by the N a tionalisation Act 57 of 1974. During the pendency of t he writ petition Emergency was proclaimed and the writ petiti on was permitted to be withdrawn in December 1976, with liber ty to approach the Court again. That is how the present appl i cation has been filed. Section 2(j) defines a 'sick textile undertaking 'to mean: "a textile undertaking, specified in the First Schedule, t he management of which has, before the appointed day, be en taken over by the Central Government under the Industri es (Development and Regulation) Act, 195 1, or as the case m ay be, vested in the Central Government under the Sick Texti le Undertakings (Taking Over of Management) Act, 1972. " It is not disputed that management of petitioner No. 1 h ad been taken over under the 1972 Act and petitioner No. 1, therefore, came within the definition. Section 3 provides: "3(1) On the appointed day, every sick textile undertaki ng and the right, title and interest of the owner in relati on to 130 :every such sick textile undertaking shall stand transfer red to, and shall vest absolutely in, the Central Govern ment. (2) Every sick textile undertaking which stands vested in the Central Government by virtue of Sub section (1) shall, : immediately after it has so vested, stand transferr ed to, and vested in, the National Textile Corporation. " The First Schedule to the Act against Entry 96 shows t he petitioner 's Mills.; There is a legislative determinati on that petitioner No. 1 came Within the definition of 'si ck textile undertaking ' as provided in section 2(j) of the Act. T he petitioners have not alleged any mala fides against Parli a ment and in our opinion rightly. It is relevant to notice at this stage that the Central Act 57 of 1974 has been put in to the 9th Schedule of the Constitution by the 39th Amendme nt and, therefore, has come under the umbrella of protecti on provided under article 31 B of the Constitution. In the case of Minerva Mills Ltd. & Ors. vs Union of India & Ors. , ; challenge was raised against the vires of this Ac t. The Court dealt with the effect of the inclusion of the A ct in the 9th Schedule by referring to the ratio in Waman R ao vs Union of India; , and upheld its vire section Similar was the view of the Court in the case of Panip at Woollen and General Mills Company Ltd. & Anr. vs Union of India & Ors. , ; There is no force in the two contentions raised on behalf of the petitioners and the writ petition is, ther e fore, dismissed. We direct the parties to bear their o wn costs of the proceedings. T.N.A. Petition dismissed.

Petitioner No. 1, Kothandran Spg. Mills Pvt. Ltd., w as taken over under the provisions of the Sick Textile Unde r takings (Taking Over of Management) Act, 1972 and possessi on of the mill was taken by the National Textile Corporatio n, respondent No. 2. Subsequently, the Sick Textile Underta k ings (Nationalisation) Act, 1974 came into force. The petitioners filed a writ petition under Article 32 of the Constitution challenging the vires of the Sick Te x tile Undertakings (Nationalisation) Act, 1974 and that t he mills be restored to them. It was also submitted that t he establishment had been closed down, and the Textile Unde r taking had completely disappeared by 1969 and therefore t he aforesaid Act did not apply to it. Dismissing the writ petition, HELD: 1. The Sick Textile Undertakings (Nationalisatio n) Act, 1974 has been put into the 9th Schedule of the Const i tution by the 39th Amendment and, therefore, has come und er the umbrella of protection provided under Article 31 B of the Constitution. [130C D] Minerva Mills Ltd. & Ors. vs Union of India & Ors . ; , ; Waman Rao vs Union of India, ; ; Panipat Woollen and General Mills Company Ltd. Anr. vs Union of India & 128 Ors. ; , , applied. The First Schedule to the Act against Entry 96 sho ws the Petitioner 's Mills. There is a legislative determinati on that petitioner company came within the definition of 'si ck textile undertaking ' as provided in Section 2(j) of the Ac t.

Appeal No. 12 of 1952. Appeal from the Judgment and Order dated the 18th January, 1950, of the High Court of Judicature at Madras (Satyanarayana Rao and Viswanatha Sastri JJ.) in Case Referred No. 27 of 1947. O.T. G. Nambiar (section N. Mukherjee, with him) for the appellant. M.C. Setalvad, Attorney General for India, and C. K.Daphtary, Solicitor General for India (G. N. Joshi and P.A. Mehta, with them) for the respondent. December 22. The Judgment of the Court was delivered by MAHAJAN J. This is an appeal from the judgment of the High Court of Judicature at Madras dated 18th January, 1950, delivered on a reference by the Incometax .Appellate Tribunal under section 66(1) of the Indian Income tax Act, whereby the High Court answered the two questions referred in the affirmative. ' The appellant is a public limited company incorporated in the United Kingdom and owns a spinning and weaving mill located at Pondicherry in French Indial. The year of account of the appellant is the calendar year. In the year 1939 no sales of yarn or cloth manufactured by the company were effected in 456 British India, though in the previous year such sales were effected. All the purchases of cotton required for the mills were made in British India by Messrs. Best & Co., Ltd. Under an agreement between the appellant and Messrs. Best & Co., Ltd., Madras, dated 11th July, 1939, Messrs. Best & Co., Ltd. were constituted the agents of the appellant for the purposes of its business in India. Messrs. Best & Co., Ltd. have under the terms of the agreement full powers in connection with the business of the appellant in the matter of purchasing stock, signing bills and other negotiable instruments and receipts and settling, compounding or compromising any claim by or against the appellant. The agents are empowered to borrow money on behalf of the appellant and to make advances. They are also expected to secure the best commissions, brokerages, rebates, discounts and other allowances in respect of and in connection with the business of the appellant. They are enjoined to keep proper accounts of the appellant and to pay over to the appellant the sum standing to its credit. They are remunerated by a salary of Rs. 6,500 per mouth and a percentage commission on the profits made. During the relevant year all the purchases of cotton required for the mill at Pondicherry were made by the agents in British India and no purchases were made through any other agency. The agents exercised their judgment and skill and purchased such qualities and quantities of cotton and at such prices as they in their experience considered most advantageous in the interests of the company. Prior to 1939 40 the appellant was assessed to income tax in British India on the profits computed on a turnover basis earned by the sales in British India of the goods manufactured by the appellant. In the course of the assessment year 1939 40 the appellant stated that it discontinued its business in British India with effect from 1st April, 1939, and claimed relief under section 25`3) which was granted. In the course of his further enquiries the Income tax Officer found 'that though the appellant was not 457 selling its goods in British India and earning a profit thereby, it continued to have an active business connection in British India having regard to the way in which the business of purchasing goods and materials for them ills was carried on. There upon the Incometax officer held that such purchases of cotton in British India constituted a business connection in British India and that the profits attributable to the purchases were liable to tax under sections 42(1) and 42(3) of the Act. The net income of the company was computed to be Rs. 2,81,176 and ten per cent. of this sum was apportioned under section 42(3), of the Act as being the profits and gains reasonably attributable to that part of the business operations, which were carried out in British India. The appellant appealed against the said order of the Income tax Officer to the Appellate Assistant Commissioner who confirmed the order of the Income tax Officer. A further appeal by the appellant to the Tribunal was unsuccessful. At the instance of the appellant, the Tribunal stated a case and referred the following questions for the decision of the High Court under section 66(1) of the Act : " 1. Whether in the circumstances of this case the assessee company had any business connection in British India within the meaning of sections 42(1) and 42(3) of the Income tax Act ? 2.Whether any profits could reasonably be attributed to the purchase of entire cotton made in British India by the secretaries and agents of the assessee company within the meaning of sections 42(1) and 42(3) of the Income tax Act ? The High Court answered both these questions in the affirmative and, in our opinion, rightly. The learned counsel for the appellant reiterated before us the arguments that he had addressed in the High Court and contended that on the facts of this case there was no scope for the finding that any profits or. gains accrued to the assessee directly or 458 indirectly through or from any business connection in India. It was argued that a mere purchase of raw materials or goods in British India does not result in the accrual or arising of profits and that the profits on the sale of goods arise and accrue only at the place where the sales are effected and that in the present case, there being no sales effected in British India in the year of account 1939, no profits accrued or arose to the company in British India nor could ally profits be deemed to have accrued or arisen in British India. In support of his proposition, the learned counsel placed reliance on a number of cases, inter alia, on Board of Revenue vs Madras Export Co.(1), Jiwan Das vs Commissioner of Income tax, Lahore (2), Rahim vs Commissioner of Income tax(3), Commissioner of Incometax, of Income tax vs Little 's Oriental Balm Ltd.(5). Most of these decisions were given under the Act of 1922, before the insertion of section 42 (3) in the Act of 1922 by the amending Act of 1939. As against the cases relied upon by the learned counsel for the appellant, several authorities have been cited to us which have proceeded on the footing that even purchase of raw materials could be an operation in connection with a business and if it was carried on in British India it might make the profits attributable to such operation taxable under section 42 of the Indian Income tax Act. The case Rogers Pyatt Shellac Co. vs Secretary of State for India(6) is one of the leading decisions on this point. This case was decided under section 33 of the Indian Income tax Act, 1918, and the judgment shows that the principle followed in the case was similar to that which was subsequently embodied in section 42 (3) of the Income tax Act, 1922. The question referred to the High Court in that case was in these terms: "Is this company which purchased shellac and mica in India for sale in the open market in America (1) Mad. (2) (I929) 1. L. R. (3) A.I.R. 1949 Orissa 60. (4) A.T.R. (5) [1950) (6) (1925) I.L.R.52 Cal. 459 liable to be assessed to income tax and super tax under either Income tax Act VII of 1918 or Act XI of 1922 and the Super tax Act, VIII of 1917. " And it was answered in the affirmative. The same line of reasoning was adopted by the Rangoon High Court in Commissioner of Income tax Burma vs Steel Bros. Co. '(1). Among recent cases on this point which were decided under section 42 of the Income tax Act, 1922, can be mentioned the case of Motor Union Insurance Co. Ltd. vs Commissioner of Income tax, Bombay(2) and that of Webb Sons & Co. vs Commissioner of Income tax, East Punjab(3). In the last case, the assessee company which was incorporated in the United States of America was carrying on in America the business of manufacturing carpets. Its only business in British India was the purchase through its agent in British India, of wool as raw material for use in the manufacture of carpets. It was held that the purchase was an operation within the meaning of section 42 (3), and the profits from such purchases could be deemed to arise in British India and it was consequently assessable under section 42 (3) of the Indian Income tax Act. The questions referred to the High Court in this case and relevant to this enquiry were these: "(i) Is mere purchase of raw material an operation within the meaning of section 42 (3) of the Act? (ii)Can any profit arise out of mere purchase of raw material?" While answering these questions in the affirmative it was said: "It is clear that the purchase of raw material by a firm of manufacturers is one of the processes or operations which contributes to an appreciable degree to the ultimate profit which is realized on the sale of manufactured articles. " There is thus no uniformity of judicial opinion on the question that the mere act of purchase produces no profit. (1) Rang. (2) A.I.R. 1945 Bom. (3) [1950) 460 In our judgment, the contention of the learned counsel for the appellant, and on which his whole .argument is founded, that it is the act of sale alone from which the profits accrue or arise can no longer be sustained, and has to be repelled in view of the decision of this Court in Commissioner of Income tax, Bombay vs Ahmedbhai Umarbhai & Co.(1). That was a case that arose under the Excess Profits Tax Act, XV of 1940. A firm which was resident in British India and carried on the business of manufacturing and selling groundnut oil, and owned some oil mills within British India also owned a mill in Raichur in the Hyderabad State where oil was manufactured. The oil manufactured in Raichur was sold partly within the State of Hyderabad and partly in Bombay. It was held by this Court that the profits of that part of the business, viz., the manufacture of oil at the mill in Raichur accrued or arose in Raichur even though the manufactured oil was sold in Bombay and the price was received there, and accordingly, that part of the profits derived from sales in Bombay which was attributable to the manufacture of the oil in Raichur was exempt from excess profits tax under the proviso to section 5 of the Act. Reference in this case was made to the decision of the House of Lords in In re Commissioners of Taxation vs Kirk (2), wherein it was held that where income was in part derived from the extraction of ore from the soil of New South Wales Colony, and from the conversion in the latter colony of the crude ore into a merchantable product, this income was assessable under the New South Wales Land and Income Tax Assessment Act of 1895, section 15, sub sections 3 and 4, nowithstanding that the finished products were sold exclusively outside the colony. Lord Davey while delivering the judgment of the Privy Council observed as follows : "It appears to their Lordships that there are four processes in the earning or production of this income (I) the extraction of the ore from the soil ; (2) the (1) ; (2) 461 conversion of the crude ore into a merchantable product, which is a manufacturing process; (3) the sale of the merchantable product; (4) the receipt of the moneys arising from the sale. All these processes are necessary stages which terminate in 'money, and the income is the money resulting less the expenses attendant on all the stages. The first process seems to their Lordships clearly within sub section 3, and the second or manufacturing Process, if not within the meaning of ' trade ' in subsection 1, is certainly included in the words any others source whatever in sub section 4. So far as relates to these two processes, therefore, their Lordships think that the income was earned and arising and accruing in New South Wales. " On a parity of reasoning it can well be said in this case that the profits accrue or arise to the appellant from three business processes or operations, those being (1) the purchase of cotton in British India; (2) its conversion by the process of manufacture in Pondicherry into yarn or cloth ; and (3) the sale of the merchantable product, and those have to be apportioned between these three operations. The same line of reasoning was adopted by the Madras High Court in Bangalore Woollen, Cotton & Silk Mills Co. Ltd. vs Commissioner of Income tax, Madras(1). There it was held that the purchase of raw materials by the man aging agents in British India would be an operation within the meaning of section 42(3) and it was reasonable to attribute a portion of the profits to such purchases in British India. After a careful consideration of the decided cases on the subject and in view of the insertion of section 42 (3) in the Act of 1922 by the amending Act of 1939, we have reached the conclusion that in the present state of the law there is hardly any scope for maintaining the view contended for by the learned counsel for the appellant and we therefore agree with the High Court in repelling it. While maintaining the view taken by the High Court in this case we wish (1) 462 to point out that it is not every business activity of a manufacturer that comes within the expression "operation" to which the provisions of section 42(3) are attracted. These provisions have no application unless according to the known and accepted business notions and usages the particular activity is regarded as a well defined business operation. Activities which are not well defined or are of a casual or isolated character would not ordinarily fall within the ambit of this rule. Distribution of profits on different business operations or activities ought only to be made for sufficient and cogent reasons and the observations made here are limited to the facts and circumstances of this case. In a case where all that may be known is that a few transactions of purchase of raw materials have taken place in British India, it could not ordinarily be said that the isolated acts were in their nature " operations " within the meaning of that expression. In this case the raw materials were purchased systematically and habitually through an established agency having special skill and competency in selecting the goods to be purchased and fixing the time and place of purchase. Such activity appears to us to be well within the import of the term " operation " as used in section 42 (3) of the Act. It is not in the nature of an isolated transaction of purchase of raw materials. The first contention of the assessee is therefore negatived. The learned counsel argued in a rather half hearted manner that there was no business connection of the assessee in British India. This contention does not require serious consideration. An isolated transaction between a non resident and a resident in British India without any course of dealings such as might fairly be described as a business connection does not attract the application of section 42, but when there is a continuity of business relationship between the person in British India who helps to make the profits and the person outside British India, who receives or realizes the profits, such relationship does constitute business connection. In this case there 463 was a regular agency established in British India for the purchase of the entire raw materials required for the manufacture abroad and the agent was chosen by reason of his skill, reputation and experience in the line of trade. The terms of the agency stated in by earlier part of this judgment fully establish that Messrs. Best & Co. Ltd. were carrying on something almost akin to the business of a managing agency in India of the foreign company and the latter certainly had a connection with this agency. We therefore negative this contention of the learned counsel as well. For the reasons given above we uphold the view taken by the High Court and dismiss the appeal with costs. Appeal dismissed.

Though a few isolated transactions of purchase of raw mate rials in India by a manufacturer carrying on business outside India may not amount to the carrying on of an " operation " in India within the meaning of section 42 (3) of the Indian Income tax Act, where raw materials are purchased systematically and habitually in India through an established agency having special skill and competency in selecting the goods, such an activity will be an "operation" within a. 42 (3), and the portion of the profits 455 attributable to the purchases in India can be assessed to incometax under section 42(1) and (3) of the Indian Income tax Act. Bangalore Woollen, Cotton & Silk Mills Co. Ltd. vs Commis sioner of Income tax, Madras , Commissioner of Income tax, Bombay vs Ahmedbhai Umarbhai d Co. ([1950] S.C.R. 335), Commissioners of Taxation vs Kirk ([1900] A.C. 588), Rogers Pyatt Shellac Co. vs Secretary of State for India ([1925] I.L.R. and Webb Sons & Co. vs Commissioner of Incometax, East Punjab ([1950] relied on. An isolated transaction between a non resident and a resident in India without any course of dealings such as might fairly be described as a business connection does not attract the application of section 42, but when there is a continuity of business relationship between the person in India who helps to make the profits and the person outside India who receives or realises the profits, such relationship constitutes a business connection.

Criminal Appeal No. 710 of 1991. From the Judgment and Order dated 29.1. 1991 of the Delhi High Court in Cr. W.P. No. 9 of 1991. B.Pajha and Manoj Prasad for the Appellant. V.C.Mahajan, S.D.Sharma and S.N.Terde for the Respondents. The Judgment of the Court was delivered by SHARMA, J. Special leave is granted. The appellant, Havildar Ratan Singh was tried and convicted by Summary Court martial. He was reduced in rank and sentenced to suffer rigorous imprisonment for one year. He filed an application under Article 226 of the Constitu tion of India before the Delhi High Court, which was dis missed by the impugned judgment. 372 3. Although a number of questions were raised in the writ petition and the special leave petition, the ground urged by the learned counsel for the appellant before us is confined to one point. It has been contended that having regard to the nature of the charge against the appellant, the provisions of section 34 of the (herein after referred to as the Act) are attracted, and in view of section 120 (2) of the Act, trial by summary not permitted. The learned counsel has placed the relevant provisions of the Act indicating that the appellant would have been enti tled to a qualitatively better right of defence before a court martial other than a summary court martial which was denied to him on a wrong assumption that the case was cov ered by section 36, and not by section 34. The question which arises in this case, is whether the Summary Court Martial had jurisdiction to try the appellant in the facts as alleged in the present case. The charge sheet states that when fired upon by a group of terrorist militants during an armed operation against them, the appellant quitted his place without orders from his superior officer. Section 120 of the Act states that subject to the provisions of sub section (2) of the section a summary court martial may try any offence punisha ble under the Act. Sub section (2) reads as follows : "(2) When there is no grave reason for immedi ate action and reference can without detriment to discipline be made to the officer empowered to convene a district court martial or on active service a summary general court martial for the trial of the alleged offender, an officer holding a summary court martial shall not try without such reference any offence punishable under any of ' the sections 34, 37 and 69, or any offence against the officer holding the Court. " The position, thus, is that if the offence is covered by section 34 and immediate action for the specified reasons is not warranted, the summary court martial shall not have jurisdiction to hold the trial. Section 34 states that any person subject to the Act, who commits any of the offences enumerated thereunder, shall on conviction by court martial, be liable to suffer death or such less punishment as prescribed. The offences are detailed in 12 clauses and clauses (a) and (h) appear to be relevant in the present context. They are quoted below: "(a) shamefully abandons or delivers up any garrison, fortress, post, place or guard, committed to his charge, or which it is his duty to defend or uses any means to compel or induce any 373 commanding officer or other person to commit any or the said acts; or ****************************************** (h) in time of action leaves his commanding officer or his post,guard, picquet, patrol or party without being regularly, relived or without leave; or. " 6. The evidence in the case, included in the paper book prepared by the appellant, indicates that the appellant while engaged in an armed action against a group of mili tants is alleged to have run away when the militants opened fire and he, thus, in a cowardly manner left his post with out permission of his superior officer. The allegations included in the charge sheet on the basis of which the appellant was tried are also to the same effect. The appel lant is, therefore, right in his stand that if the prosecu tion case be assumed to be correct (which he denies) he was guilty of a more serious offence under clauses (a) and (h) of section 34 of the Act than under section 36. In reply it is contended on behalf of the respondents that the case is covered by section 36, and, therefore, the Summary Court Martial was fully authorised to try the appellant under section 120 (1). There is no dispute that the appellant is governed by the provisions of the Act. It is also not suggested on behalf of the respondents that there was in existence any grave reason for immediate action so as to justify trial by an officer holding summary court martial. The Operation in which the appellant was engaged was directed against the militants who were undisputedly included in the expression 'enemy ' within section 3(x). The impugned order is attempted to be justified solely on the ground that section 36 covers the case. The argument overlooks the position that it is not the scope of section 36 which can answer the question raised in the present case. The issue is whether the offence is punishable under section 34 or not. Section 36 covers a wide range of offences and the scope of section 34 is limited to a smaller area where the offence is more serious attracting more severe punishments. If the allegations are assumed to be true then the appellant, on the militants opening fire, shamefully abandoned the place committed to his charge and which he was under a duty to defend. Both clauses (a) and (h) are, therefore, clearly attracted. The impugned trial by summary court martial and the decision thereby must be held to be without jurisdiction and have to be quashed. We do not find any merit in the other points men tioned in the writ petition or in the special leave peti tion. They are finally rejected. 374 9. During the course of the hearing we drew the pointed attention of the learned counsel for the appellant that if he succeeded on the basis that the Summary Court Martial was without jurisdiction, he (the appellant) may have to be retired and awarded a more severe punishment, The learned counsel, however, decided to press the point even at the risk of a second trial of the. appellant. The learned coun sel for the respondents stated that a fresh proceeding may now be barred by the law of Limitation, and in view of the fact that the appellant is guilty of a very serious charge, this Court should decline to exercise its power under Arti cle 136. In reply the learned counsel for the appellant pointed out that the period of limitation for commencing a fresh proceeding against the appellant shall not expire before 05.02.92 and the apprehension expressed on behalf of the respondents that the appellant, even if guilty, may escape a trial is misconceived. We hold that the appellant is correct. Accordingly we set aside the impugned judgment of the High Court as also the conviction and sentence passed against the appellant by the Summary Court Martial, but allow the respondents authorities to proceed to hold a fresh trial of the appellant in accordance with law. The appeal is accordingly allowed. T.N.A. Appeal allowed.

The appellant, a Havildar, was charge sheeted on the ground that during an armed action against a group of mili tants when the militants opened fire he ran away in a cow ardly manner and left his post without permission of his superior. The respondent authorities proceeded on the ground that his offence was covered by section 36 of the and accordingly section 120 (1) of the Act was applicable. Consequently, he was tried by a summary court Martial and was convicted and reduced in rank and imprisoned for one year. He filed an application under Article 226 before the Delhi High Court which was dismissed. In appeal to this Court it was contended on behalf of the appellant that having regard to the nature of the charge against him section 34 of the was attracted and in view of section 120(2) of the Act trial by summary Court was not permitted. Allowing the apeal and setting aside the judgment of the High Court, this Court, HELD: 1. Under section 120 (2) of the if an offence is covered by section 34 and immediate action for the specified reasons is not warranted, the summary court martial shall not have jurisdiction to hold the trial. [372 D F] 2. Section 36 covers a wide range of offences and the scope of 371 section 34 is limited to a smaller area where the offence is more serious attracting more severe punishments. The opera tion in which the appellant was engaged was directed against the militants who were undisputedly included in the expres sion 'enemy within section 3 (x). If the allegations are assumed to be true, than the appellant, on the militants ' opening fire shamefully abandoned the place comitted to his charge and which he was under a duty to defend. Both clauses (a) and (h) of section 34 are clearly attracted. The appel lant was therefore guilty of a more serious offence under clauses (a) and (h) of section 34 of the Act than under section 36. 1373 D G] It is also not suggested on behalf of the respondents that there was in existence any grave reason for immediate action so as to justify trial by an officer holding summary court martial. Consequently the impugned, hed trial by Summary Court Martial and the decision thereby must be held to be without jurisdiction and is quashed. The conviction and sentence passed against the appellant is set aside. [373 E G] 3. The respondents authorities can proceed to hold a fresh trial of the appellant in accordance with law. [374. C]

No. 59 of1951. Appeal from the Judgment and Decree dated the 22nd August, 1944, of the High Court of Judicature at Allahabad (Verma and Hamilton JJ.) in First Appeal No. 345 of 1940 arising out of the Judgment and Decree dated the 24th August, 1940, of the Court of the Special Judge, 1st Grade of Shahjahanpur in Miscellaneous Case No. 52 of 1940 and Original Suit No. 2 of 1938. Chaudhry Niamutullah (Gopalji Mehrotra, with him) for the appellant. Onkar Nath Srivastava for respondent No. 5. 1953. October 8. 507 MAHAJAN J. This appeal is before us on a certificate granted by the High Court of Judicature at Allahabad under section 110 of the Code of Civil Procedure and the only point it raises is whether the appeal preferred by the appellant to the High Court was imperfectly constituted, inasmuch as all the creditors were not impleaded as parties to that appeal. The facts are that on the 28th October, 1936, Rama Krishna Narain and others submitted an application under section 4 of the U. P. Encumbered Estates Act, 1934, to the sub divisional officer, Tilhar, Shahjahanpur, praying that the provisions of the said Act be applied to them. This application was eventually transferred by the sub divisional officer to the court of the special judge, first grade, Shahjahanpur. The landlords on 26th August, 1938, submitted a written statement to the special judge under section 8 of the Act and therein stated inter alia that they had a pro prietary interest to the extent of ten annas share in 52 items of taluqdari villages which formed part of taluka Bharawan. A notice of this application was published as required by section 11(1) of the Act in the U.P. Gazette dated 13th May, 1939. On 30th November, 1939, Raja Dev Singh, who subsequently became a ward of the Court of Wards, filed a claim petition under section 11(2) of the Act and alleged therein that he was the proprietor of 6 1/2 pies share in 47 items of property mentioned in schedule (A) of the landlords ' written statement. This claim was. disallowed by the special judge by an order dated 24th August, 1940, and it was held that Raja Dev Singh was not the owner of the property claimed by him in his objection petition. The Deputy Commissioner of Hardoi who is the Court of Wards of Bharawan estate filed an appeal against this decision of the special judge to the High Court. All the applicant landlords were impleaded as respondents in the appeal along with the Unao Commercial Bank Ltd., one of the creditors who had taken part in the proceedings before the special judge at that stage. It does not appear from the record that the other creditors had either filed written statements 67 508 under section 10 or had made any allegation that the landlords had secreted any property. Their names were not mentioned in the memorandum of parties annexed to the memo of costs, and in these circumstances they were not impleaded as respondents in the appeal. Subsequently the appellant made an application for impleading them as respondents in the appeal and prayed that he be given the benefit of section 5 of the Indian Limitation Act. This application was rejected, and eventually the appeal was dismissed on the ground that it was. defective and could not be entertained in the absence of all the creditors as respondents in the appeal. The, cross objection filed by the Unao Commercial Bank with respect to costs was allowed. The appellant on 21st November, 1944, filed a petition for leave to appeal to His Majesty in Council. It was alleged in this application that the valuation of the subject matter of the appeal in the trial court in the High Court and before His Majesty in Council was over Rs. 10,000 and that though in the result the judgment and decree of the High Court affirmed the judgment and decree of the trial court , a substantial question of law affecting not only the parties but of general interest was involved. The High Court with out deciding whether the appeal raised a substantial question of law granted leave to the appellant under section 110 of the Code of Civil Procedure on the ground that the judgment of the High Court being one of variance, and the value of the subject. matter in dispute in the trial court as well as in the appeal to His Majesty in Council being over Rs. 10,000, the case fulfilled the requirements of that section. Mr. Srivastava who represented the debtors landlords before us raised a preliminary objection that the certificate under section 110 of the Civil Procedure Code was defective and the appeal was thus incompetent and could not be entertained by us. He contended that the only variation made by the High Court in the judgment of the trial judge was in respect of costs and such a variation in the matter of costs only did not invoice the decree a decree of variance, and that 509 being. so, the ground on which the High Court had granted the certificate was erroneous and the certificate being defective this appeal could not be heard. In our opinion, this contention is without force. It is no doubt true that costs are not taken into consideration and are treated as extraneous to the subjectmatter of a suit, and variation in the matter of costs does not make the decree of the appellate court a decree of variance; but as already stated, the appellant did not pray for the certificate on that ground. He had expressly alleged that the decree being one of affirmance he was entitled to a certificate, because the subject of the suit as well as of the appeal was a sum of orver Rs. 10,000 and the case involveda4 substantial question of law. It is obvious that the ground on which the appeal was dismissed by the High Court raises a question of law of importance to the parties and that being so, on that ground alone the appellant was entitled to a certificate under section I 10, Civil Procedure Code. The certificate therefore is good, though the around on which it was granted is erroneous. It is always open to an appellant to support the certificate on grounds other than those, on which it has been actually ordered to be given. The preliminary objection therefore fails. In order to determine whether the creditors are necessary parties in proceedings under chapters 3 and 4 of the U.P. Encumbered Estates Act, 1934, it is necessary to refer to the relevant provisions of the Act. The law was enacted for giving relief to encumbered estates in U. P. Section 4 provides that any landlord, who is subject to or whose immoveable property or any part thereof is encumbered with private debts, may make an application in writing to the Collector of the district, stating the amount of such private debts and also of his public debts both decreed and undecreed and requesting that the provisions of this Act be applied to him. The section gives an option to the landlord who is subject to private debts to make an application for obtaining relief under the provisions of the Act. The Collector then transmits the application to the special judge appointed under the Act. 510 The direct consequence of the acceptance of such an application by the collector is that the creditors are deprived of their rights of proceeding against such a landlord in civil or revenue courts in respect of their debts and all attachments made in execution of decrees become null and void and no process in execution can issue after that date. The provisions of the Act are clearly detrimental to the contractual rights of the creditors and to their remedies in civil law and such a statute can by no stretch of imagination be described to have been enacted for the benefit of creditors. Section 8 of the Act confers power on the special judge of calling upon the applicant to submit to him within a period to be fixed by him in this behalf, a written statement containing full particulars respecting the public and private debts to which he is subject or with which his immoveable property is encumbered; of the nature and extent of his proprietary rights in land; of the nature and extent of his property which is liable to attachment and sale; and lastly, of the names and addresses of the creditors, so far as can be ascertained by him. If the applicant fails to submit a written statement as called for or furnish the information referred to in the proviso to sub section (2), the special judge is empowered to dismiss the application. The landlord is not required to implead any creditors as party respondents in his written statement, but he has to furnish information, regarding the names and addresses of his creditors so far as they are known to or can be ascertained by him and his failure to give information may result in a dismissal of the application. Section 9 requires the special judge to publish in the official gazette a notice in English calling upon all persons having claims in respect of private debts both decreed and undecreed against the person or the property of the landlord to present to the special judge within three months from the date of the publication of the notice, a written statement of their claims. He is also required to cause copies of such notice to be published in such paper or papers as he may direct and to exhibit it at his own office, at the office of the collector and at some 511 conspicuous place where the landlord resides. He is further directed to send a copy of the notice and a copy of the written statement under sub section (1) of section 8 by registered post to each of the creditors whose names and addresses are mentioned in the statement under clause,(d) of sub section (1) of section 8. Section 10 provides that every claimant referred to in section 9 shall in the written statement of his claim give full particulars thereof and shall state so far as they are known to or can be ascertained by him, the nature and extent of the landlord 's proprietary rights in the land and the nature and extent of the landlord 's property other than proprietary rights in land. The provisions of this section not only require a creditor to give particulars of his own debt but also give him opportunity to contend that the landlord has secreted some property. Section 11 (1) of the AA directs the special judge to publish a notice specifying the property mentioned by the applicant under section 8 or by any claimant under section 10. The object of the provisions made in section 11 (1) is to find out the extent of the property that can be utilized to wards liquidation of the debts ascertained under the subsequent provisions of the Act. Section 11 (2) provides as follows: Any person having any claim to the property mentioned in such notice shall, within a period of three months, from the date of the publication of the notice in the official gazette make an application to the special judge stating his claim and the special judge shall determine whether the property specified in the claim, or any part thereof is liable to attachment sale or mortgage in satisfaction of the debts of the applicant. " Sub section (3) directs the special judge to determine such claims before he proceeds to determine the amount due to any creditor under section 14. He is further directed not to pass any decree under section 14 until the expiry of a period of one month from the last day on which he determines a claim under section 11. Sub section (4) off section 11 provides that any order passed by the special judge under this section shall be 512 deemed to be a decree of a civil court of competent jurisdiction. Section 13 enacts that every claim, decreed or undecreed against the landlord shall, unless made within the time prescribed be deemed for ;III purposes and on all occasions to have been duly discharged. Section 14 lays down the procedure for determination of the amount of debts. The judge is directed to give notice of the date of enquiring into the claims of the creditors to the different claimants and to the person who has made the application under ,section 4. He is directed to examine each claim after hearing all such parties as desire to be heard and after considering the evidence, if any, produced by them. The section lays down them mode of calculating interest on the amount of such claims and provides for the application of the provisions of the Usurious Loans Act to the proceedings under the Act. Sub section (7), provides as follows: "If the special judge finds that any amount is due to the claimant be shall pass a simple money decree for such amount together with any costs which he may allow in respect of proceedings in his court and of proceedings in any civil court stayed under the provisions of this Act, together with pendente lite and future interest at a rate not greater than the rate specified in section 27 and if he finds that no amount is due, he may pass a decree for costs in favour of the landlord. Such decree shall be deemed to be a decree of a ' civil court of competent jurisdiction but no decree against the landlord shall be executable within the United Provinces except under the provisions of this Act. " Section 18 provides that subject to the right of appeal or revision, the effect of a decree of the special judge under sub section (7) of section 14 shall be to extinguish the previously existing rights, if any, of the claimant, together with all rights, if any, of mortgage or lien by which the same are secured and, where any decree is given by the special judge to substitute for those rights a right to recover the amount of the decree in the manner and to the extent specified in the Act. Section 45 provides for appeals and revisions against orders and decrees of the special judge. 513 It is apparent from the provisions of the Act cited above that the U.P. Encumbered Estates Act is no more, nor less than, a code for the administration of the assets of the landlord debtor and for giving relief to him in a number of ways against the contractual rights of his creditors. It clearly deprives the creditors of any remedies that they would ordinarily have in ordinary civil courts and extinguishes the mortgages held by them. Sectional(2) deals with claims of third parties to the property alleged by the landlord as belonging to him and the judge is required to determine whether such property is liable to attachment or sale. It is noteworthy that under section 14(1) the special judge is directed to follow a certain procedure, but no such procedure is prescribed under section 1 1(2). In section 14 he is required to fix a date and to give notice of the date of inquiring into the claims of the creditors to all the claimants. There is no such parallel requirement in respect of claims of third parties under section 11(2), though as a matter of practice similar procedure is also followed in an enquiry under this section. The question that requires consideration in these circumstances is whether the rules of the first schedule to the Code of Civil Procedure should be rigorously applied to proceedings under the Encumbered Estates Act, and whether the creditors who are no doubt ' .persons interested in those proceedings and who would ultimately be entitled to recover their decretal debts from the property the extent of which falls for determination in an enquiry under section II, are necessary parties in the enquiry, or are merely proper parties thereto and as such entitled only to notice of the proceedings. Order 1, Rules I and 3 of the Code of Civil Procedure, provide in regard to the persons who are to be joined as plaintiffs or those who have to be joined as defendants in suits. Rule 1 is in these terms: "All persons may be joined in one suit as plaintiff, in whom any right to relief in respect of or arising of the same act or transaction or series of act transactions is alleged to exist, whether 514 severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise." Rule 3 provides: " All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought aaainst such persons any common question of law or fact would arise. " It is apparent that strictly speaking the provisions of these rules cannot be applied to the proceedings contemplated by the U. P. Encumbered Estates Act. These proceedings cannot be. described as suits. It was conceded at the Bar that an inquiry into third party claims under section 11(2) cannot be described as a suit. Neither section 8 nor section 1 1 provides that the creditors have to be impleaded as parties respondents in such an objection application. As already said, the section provides that the applicant has to give information about the names of the creditors and the amounts due to them. Till the time that a decree is passed under section 14 in favour of any of the creditors it cannot be, said that any one of them is entitled to share in the property of the debtor. It is only when a claim has been made under section 10 by a creditor and it has ripened into a decree that he is entitled to share in the assets of the landlord. But if he commits a default in submitting a written statement of the claim under section 10, the claim stands discharged under section 13. In this particular case it is not clear whether any of the creditors except the Unao Commercial Bank had made a claim under section 10. It is also not clear whether any decree under section 14 has been passed in favour of any of the creditors. An inquiry for the determination of the quantum of the debts of the landlord can only be made after third party claims have been settled under the provisions of section 11(2). In view of these provisions it seems difficult to hold that the technical and 515 strict rules as to impleading of parties can have appli cation to proceedings under section 11 of the U.P. Encumbered Estates Act. It is true that the creditors must be given notice and opportunity to say whether the landlord has secreted any property, but if they do not do so and are content with the disclosures made by the landlord they cannot be said to have any further interest in the quantum of the property which the landlord has mentioned under the provisions of section 8 in his written statement. In that situation, if a third party claims any item of property mentioned by the landlord in the written statement, the controversy at that stage lies only between the landlord and the claimant, though in the result the creditors may either be benefited or deprived of some of the 'assets which the landlord discloses in the application as liable to attachment and sale towards payment of decrees that may be passed in favour of the creditors. It can well be assumed that the fight at that stage being a bona fide fight between the objector and the landlord, the interests of the creditors will be fully represented by the landlord and any decision obtained in his favour or against him would be binding on all the creditors on the principles enacted in explanation 6 to section I 1, Civil Procedure Code. If, therefore, in such a contest the claimant loses and the landlord succeeds, then in an appeal against that decision he need only implead the landlord as a party respondent and it is not necessary to implead all the creditors as respondents merely on the ground that ultimately they would be affected by the result, either to their benefit or to their detriment. The court has power, if it considers that the presence of the creditors is necessary at the hearing, to give them notice of the appeal so that they may have the opportunity of placing their con tentions before it. The observance of such a procedure may well conduce to a fair hearing of the appeal, even if the creditors have raised no plea of any kind before the special judge. In a case, however, where the creditors raise a plea that the landlord has secreted certain property and it should be included in the schedule and such property is then claimed by a third 516 party, they may well be regarded as real parties to the controversy and failure to implead them may result in the appeal being imperfectly constituted. In the situation that arises in the present case the appeal should have been held to be properly constituted because all those who raised any controversy whatsoever as to the ownership of the property in dispute were impleaded. We are fully conscious of the fact that the view that we have expressed above is not in conformity with a number of decisions of the Oudh Chief Court and the Allahabad High Court. It is therefore necessary to examine those decisions in order to see whether the reasons given therein are sound or erroneous. In Rameshwar vs Ajodhia Prasad(1) a Bench of the Oudh Court held that all the creditors who were impleaded as parties to the application under the Act are necessary parties to an appeal by the objector against an adverse order passed against him under section 11. This judgment proceeds on the assumption that all the creditors having been impleaded as parties to the application and not having been made respondents in the appeal, the appeal became imperfectly constituted. In this case the question whether under the provisions of the Encumbered Estates Act an applicant is required to implead creditors as parties to the application was neither argued nor considered; on the other hand, it was assumed that all the creditors have to be impleaded as parties in the application made by the claimants under the Act. That assumption is, of course, erroneous. Under section 4 the applicant is entitled to request the collector, that the provisions of the Act be applied to him and relief given to him under its provisions. He is not required even to give information about the names and addresses of creditors and no question of impleading anyone as a respondent arises at that stage. When the collector has forwarded this application to the special judge, then the special judge is empowered to call upon the applicant to file a written statement and therein he is bound %to give information About the (1) A.I.R. 1941 Oudh 580, 517 names and addresses of his creditors so far as they are known to him or can be ascertained by him. In the written statement which he is called upon to file on a requisition by the special judge he is not called upon to implead any persons as parties, in the sense in which that term is used in the Code of Civil Procedure. This decision therefore is not of any help on the point that was argued before us. In Chaudhri Bishunath Prasad vs Sarju Saran Tewari(1), another Bench of the Oudh Court held that an enquiry into the indebtedness of the landlord is to be carried out by the special judge in the presence of all the creditors, that though it is true that each creditor is interested in establishing his own debt against the landlord, he is further interested that the landlord should not be allowed to withhold any property from the court, and that if 'a claimant under section I I sets up a title to the property shown by the landlord to belong to him, although the real contest may for the time being be between the claimant on the one hand and the landlord on the other hand, it is to the ultimate interest of the entire body of the creditors that the property should be held to belong to the landlord, and if the decision is in favour of the landlord, all the creditors will be entitled to have their debts satisfied out of such property; but if, however, the decision is against them, the property will go out of the reach of the creditors and will not be available to them for the satisfaction of their debts. It was further held that as all. the creditors had not been joined as parties to the appeal and as they were interested in the result of the appeal, it could not be held that they were wholly unconcerned in the result of the case and therefore the appeal was not maintainable. It seems to us that in making these observations the learned Judges did not clearly bear in mind the distinctions between the provisions of sections 11 and 14 of the Act. Section 14 lays down a definite procedure so far as the enquiry into the claims of creditors is concerned . Each creditor has to establish his claim against the landlord as he (1) A.I.R. 1942 Oudh 16. 518 would do if he had filed a suit against him. This enquiry is made after the quantum of the property of the debtor has been ascertained under section 11. As already pointed out, if any creditor raises any dispute as to the quantum of the property as he is entitled to raise such a dispute in his written statement filed under section 10, in that situation it may well be held that such a creditor is directly interested in the enquiry under section 11 ; but it is difficult to see that all other creditors who have accepted the list of property filed by the debtor as true are directly interested in the enquiry under that section and are as such necessary parties and that without impleading them the enquiry cannot proceed. Rules I and 3 of Schedule I Of the Code of Civil Procedure do not lay down that every person who is ultimately interested in the result of a suit should be impleaded as a defendant. All that these rules insist upon is that all persons should be joined as defendants against whom any right to relief is alleged to exist, provided that such right arises in respect of the same act or transaction or series of acts or transactions and the case is one where common question of law or fact would arise. It is not possible to hold that the objector can claim any right to relief against the creditors as such. The right to relief in the enquiry under section 11 is only against the landlord who alleges himself to be the owner of the property which the claimant says belongs to him, and creditors have no right of interest in the property claimed by the objector. The test of ultimate benefit therefore laid down by the Oudh Court for holding that all creditors are necessary parties in the enquiry under section 11 of the U.P. Encumbered Estates Act does not fulfil the conditions laid down in the Code for impleading parties as plaintiffs or as defendants. If they are not necessary parties in the true sense of the term in the enquiry under section 11, a fortiori failure to implead them as respondents in the appeal detective. In Lakshmi Narain vs Satgurnath(1) another Bench of the Oudh Court took the ' same view. In this case. (1) A.I.R. 1942 Oudh 339. 519 the earlier decisions of the Oudh Court were followed The view was reiterated that creditors are parties in the proceedings under the Encumbered Estates Act. In Benares Bank Ltd., Benares vs Bhagwandas (1), a Full Bench of the Allahabad High Court considered this question and expressed the same opinion as had been expressed in the Oudh decisions referred to above. Mr. Justice Braund, who was one of the Judges constituting the Full Bench, with great reluctance shared the opinion of the majority merely out of respect for the opinion of Pathak J. and it appears that, left to himself, he would have held otherwise. The majority judgment was delivered by Pathak J. He enunciated two tests for deciding whether a certain person was a necessary party in a proceeding: (1) that there must be a right to some relief against such party in respect of the matter involved in the proceedings in question, and (2) it should not be possible to pass an effective decree in the absence of such party, and proceeded to observe that the creditors of a landlord who have claimed relief under the Encumbered Estates Act are necessary parties to the proceedings under that Act and that the object of the Act is to compel the landlord to surrender his entire property for the benefit of his creditors and to liquidate the debts of all the creditors in accordance with and to the extent per mitted by the Act. There can be no question that these are the true tests for determining whether a person is a necessary party to certain proceedings but the question is whether judged on these tests the creditors of a landlord under the U. P. Encumbered Estates Act can be said to be necessary parties in an enquiry under section 11. It seems to us that in the first instance it is an incorrect assumption to make that the object of the Act is to grant relief to the creditors of a landlord; it is quite the converse. The object of the Act is to grant relief to the landlord whose estate is encumbered with debts, by scaling, down the debts and by depriving the creditors of their (1) A.I.R. 1947 All. 18. 520 civil remedies. The creditors are allowed to prove their debts and obtain decrees from the special judge according to the provisions of and to the extent allowed by the Act and they lose all their rights on securities held by them. Coming to the application of the tests laid down by the learned Judge, it is not possible to hold that any right of relief exists in an objector under section 11 as against the creditors. It is also difficult to see how an effective decree cannot be passed as regards title to the property in the absence of creditors. One test of the effectiveness of a decree is whether that decree can be executed without the presence of creditors as regards property decreed in favour of a claimant. It is obvious that in execution proceedings a warrant of attachment and for delivery of possession can only be issued against the owner, viz., the landlord, and not against the creditors. In these proceedings the special judge can give no relief to the objector against the creditors. So on the tests mentioned by the learned Judge it is clear that the creditors of a debtor are not necessary parties in these administrative proceedings under the Encumbered Estates Act, though they may be given notice of those proceedings and afforded opportunity to watch those proceedings in order to see that no property is secreted from them and it is preserved for satisfaction of decrees that may eventually be passed in their favour. In his judgment Pathak J. proceeded to observe that though the landlord is a, party to the dispute under section 11, it is obvious that the main party who is vitally interested in that dispute is the entire body of creditors, because the issue that arises out of such a claim is whether the property which is the subject matter of the claim is liable for the satisfaction of the debts due to the entire body of creditors. This statement also, in our opinion is not very precise. It is not correct to say that the result of a decision,in such a claim makes the property liable for satisfaction of debts due to the entire body of creditors who had made claims at that stage. The property is only 521 liable for satisfaction of decrees that may be passed subsequently under section 14. It may well be that of the persons who have been disclosed as creditor under section 8, a number of them may not at all be interested in the result of the decision of the claim under section II. It is an overstatement to make that the main party who is vitally interested in the dispute is the entire body of creditors '. The dispute relates to title to property and according to all principles of impleading of parties it is not the eventual benefit that a person may derive from a certain decision that is the crucial test in deciding whether a party is a necessary party or merely a proper party. Pathak J. proceeded to observe as follows : "Could it be suggested that in a suit under Order XXI, rule 63, Civil Procedure Code, the decree holders who desire to seize the property belonging to the judgment debtor are not necessary parties?" With great respect again, this analogy is not very happy or apposite. Under Order XXI, rule 63, it is only the attaching creditor who has the right to file a suit or of being impleaded as defendant in a suit by the judgment debtor. AR the creditors of the judgment debtor who have not attached the property are not necessary parties in a suit under Order XXI, rule 63, though after the decision in that suit they may be entitled to share in the rateable distribution of the property if they make an application for that purpose. In a way it is true to say that in all suits by a creditor against a debtor where the debtor owes to a number of creditors, every other creditor is interested in seeing that that creditor 's suit is dismissed or his debt is considerably cut down; but from that it does not follow that in a suit on a promissory note by a creditor against the debtor all the other creditors are necessary parties. The eventual interest of a party in the fruits of a litigation cannot be hold to be the true test of impleading parties under the Code of Civil Procedure and it is rather difficult to hold that where that is not the true test under the Code, that should be adopted as A test in proceedings of an administrative 522 character under the U. P. Encumbered Estates Act. it cannot be forgotten that under the provisions of section 11 no provision has been made for issuing notice to all the creditors. Reference may also be made to rule 6 framed under the Encumbered Estates Act. This rule provides that the proceedings under this Act shall be governed by the Code of Civil Procedure so far as they are applicable. As already pointed out, the provisions of Order 1, rules 1 and 3, cannot aptly be held applicable in such proceedings. We cannot uphold the view of Pathak J. that all creditors become parties to the proceedings under the Act in the technical sense of the term after a notice has been served upon them and in any event after they have filed the written statements, that they continue to remain ' as parties until the debts are liquidated or proceedings terminated in accordance with the provisions of the Act. This seems to be too wide a statement of the law on the point. Can it be said that after each individual creditor obtains a decree in respect of his claim under section 14, each one of these creditors has to be impleaded as a party in an appeal preferred by that creditor or by the debtor. It is not possible to give an answer in the affirmative to such proposition. no hesitation in saying that though he ultimately abondoned n thinking that in. We have therefore Mr. Justice Braund, his view, was right administrative proceedings technical rules of the First Schedule of the Code of Civil Procedure regarding impleading of parties should not be invoked and that the matter should be viewed in a more liberal way, regard always being had to the fact that there is no collusion between the debtor and the claimant and that there are persons who are bona fide litigating in respect of the title of the claimant under section 11, and if there has been such a bona fide fight which results in a decree in an appeal against that decree it is sufficient that those who took an active part in the proceedings under section II are impleaded. It is not necessary to implead each and every creditor who either did pot appear or put forward a written statement under 523 section 10 or took no active part in the proceedings under section 11(2). In the view that we have taken it is not necessary to decide the question whether the High Court was right in not exercising its powers under Order XLI, rule 20, in impleading the creditors as respondents to the appeal. For the reasons given above we allow this appeal, set aside the judgment of the High Court and remand the case to that court for hearing the appeal in accordance with law on its merits. If the High Court thinks fit that the presence of any creditors would help the court in arriving at a true decision of the matter it in its discretion may give notice to the creditors of the date of hearing, We leave the parties to bear their own costs of this appeal. Appeal allowed. Agent for respondent No. 5: section section Shukla.

Creditors who did not take an active part in the proceedings are not necessary parties to an appeal from an order rejecting a claim made in a proceeding under section 11 (2) of the U. P. Encumbered Estates Act, 1934. The technical rules of the Civil Procedure Code regarding the impleading of parties should not be applied to such proceedings. The matter should be viewed in a more liberal way, regard being always had to the fact that there is no collusion between the debtor and the claimant. I Rameshwar vs Ajodhia Prasad (A.I.R. 1941 Oudh 580), Chaudhri Bishuanth Prasad vs Sarju Saran Tewar (A.I.R. 1942 Oudh 16), Lakshmi Narain vs Satgurnath (A.I.R. 1942 Oudh 339) and Benares Bank Ltd. vs Bhagwandas (A.I.R. 1947 All. 18) overruled.

N: Criminal Appeal No. 932 933 of 1981. Appeals by special leave from the judgment and order dated the 23rd October, 1981 of the Allahabad High Court in CM. 5909 (W) of 1981 in CW No. 8918/81. R.K. Bhatt for the Appellant. Shaukat Hussain and Shakil Ahmed for the Respondent. The Judgment of the Court was delivered by CHANDRACHUD, C.J. : Heard counsel. Special leave granted. The respondents, who are detained under the provisions of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 filed Habeas Corpus petitions in the High Court of Allahabad challenging the orders of detention passed against them. Those petitions were almost fully heard by a Division Bench on October 19 and 22, 1981. The learned Judges, however, released the writ petitions from their list since the Court had Diwali 26 holidays from October 24 until November 2, 1981 and they were not likely to be available, perhaps as a Bench, for concluding the hearing of the writ petitions. Another Division Bench took up the Writ Petitions for hearing on October 23 but they adjourned the petitions until the reopening of the Court on November 3. Soon after the Division Bench rose, counsel for the respondents approached a learned Single Judge after Court hours and applied for bail. It appears that the Deputy Government Advocate was available. He was sent for and after hearing both the sides, the learned Judge granted bail to the respondents on the ground that the State Government had erred in forwarding the respondents ' representations to the Advisory Board without considering them for itself. The writ petitions were taken up for hearing by another Division Bench on November 3, 1981. They concluded the hearing on that date, reserved their judgment and allowed the respondents to continue on bail till November 10 which was fixed for judgment. The judgment is not yet delivered. The learned Judges directed: "It may however be inquired as to how file was sent before the learned single Judge for bail when there was no case fixed before him." These Special Leave Petitions are directed against the order passed by the learned Single Judge on October 23, 1981, releasing the respondents on bail "until the next date of hearing of the Habeas Corpus petitions. " We are unable to appreciate how the learned Single Judge could release the respondents on bail when, in the first instance, the writ petitions filed by them were listed for hearing before a Division Bench. Secondly, and that involves a question of principle, we are unable to see for what special reason the learned Judge thought it necessary to release the respondents on bail. The order passed by the learned Judge does not show that there was any pressing or particular reason of a unique kind for which it was imperative to enlarge the respondents on bail. If persons held in detention are released on bail in the manner done by the learned Judge, the very object and purpose of detention will be totally frustrated. Grave illness or pressing and personal business may justify an order of release in detention cases for a short period suited to the exigencies of the particular occasion. But a detenu cannot be released on bail as a matter of common practice, on considerations generally appli 27 cable to cases of punitive detention. The learned Single Judge virtually took upon himself the decision of the writ petitions of merits. He found, evidently on an on the spot argument, that the State Government had erred in not considering the representations of the respondents before forwarding them to the Advisory Board and released the respondents on bail as their further continuance in detention was "prima facie" vitiated. In passing the order of bail, the learned Judge has sought the support of a decision of a Constitution Bench of this Court in State of Bihar vs Rambalak Singh and Others. In that case, the State of Bihar appealed to this Court against an order of interim bail passed by the Patna High Court in a Habeas Corpus petition which was filed by the respondent to challenge an order of detention issued under Rule 30 of the Defence of India Rules, 1962. It was held by this Court that though the High Court has jurisdiction to grant bail in Habeas Corpus petitions filed against orders of detention passed under rule 30, the exercise of the said jurisdiction is inevitably circumscribed by the considerations which are special to such proceedings and which have relevance to the object which it intended to be served by orders of detention passed under the said Rule. If on proof of certain conditions or grounds it is open to the High Court to set aside the order of detention made under Rule 30 and direct the release of the detenu, then it cannot be held that in a proper case the High Court has no jurisdiction to make an interim order giving the detenu the relief which the High Court would be entitled to give him at the end of the proceedings. The Court, however, hastened to emphasize: ". though we have no hesitation in affirming the jurisdiction of the High Court in granting interim relief by way of bail to a detenu who has been detained under Rule 30 of the Rules there are certain inexorable considerations which are relevant to proceedings of this character and which inevitably circumscribe the exercise of the jurisdiction of the High Court to pass interim orders granting bail to the detenu. There is no doubt that the facts on which the subjective satisfaction of the detaining authority is based, are not justiciable, and so, it is not open to the High Court to enquire whether the impugned order of detention is justified on facts or not. The jurisdiction of the High Court to grant relief to 28 the detenu in such proceedings is very narrow and very limited. That being so, if the High Court takes the view that prima facie, the allegations made in the writ petition disclose a serious defect in the order of detention which would justify the release of the detenu, the wiser and the more sensible and reasonable course to adopt would invariably be to expedite the hearing of the writ petition and deal with the merits without any delay. Take the case where mala fides are alleged in respect of an order of detention. It is difficult, if not impossible, for the Court to come to any conclusion, even prima facie about the mala fides alleged, unless a return is filed by the State. Just as it is not unlikely that the High Courts may come across cases where orders of detention are passed mala fides, it is also not unlikely that allegations of mala fides are made light heartedly or without justification; and so, judicial approach necessarily postulates that no conclusion can be reached, even prima facie, as to mala fides unless the State is given a chance to file its return and state its case in respect of the said allegations; and this emphasises the fact that even in regard to a challenge to the validity of an order of detention on the ground that it is passed mala fides it would not be safe, sound or reasonable to make an interim order on the prima facie provisional conclusion that there may be some substance in the allegations of mala fides. What is true about mala fides is equally true about other infirmities on which an order of detention may be challenged by the detenu. That is why the limitation on the jurisdiction of the Court to grant relief to the detenus who have been detained under R. 30 of the Rules, inevitably introduce a corresponding limitation on the power of the Court to grant interim bail. " The Court, speaking through Gajendragadkar, C.J. added: "It is no doubt true that a detenu is detained without a trial; and so, the courts would inevitably be anxious to protect the individual liberty of the citizen on grounds which are justiciable and within the limits of their jurisdiction. But in upholding the claim for individual liberty within the limits permitted by law, it would be unwise to ignore the object which the orders of detention are intended 29 to serve. An unwise decision granting bail to a party may lead to consequences which are prejudicial to the interests of the community at large; and that is a factor which must be duly weighed by the High Court before it decides to grant bail to a detenu in such proceedings. We are free to confess that we have not come across cases where bail has been granted in habeas corpus proceedings directed against orders of detention under R. 30 of the Rules, and we apprehend that the reluctance of the courts to pass orders of bail in such proceedings is obviously based on the fact that they are fully conscious of the difficulties legal and constitutional, and of the other risks involved in making such orders. Attempts are always made by the courts to deal with such applications expeditiously; and in actual practice, it would be very difficult to come across a case where without a full enquiry and trial of the ground on which the order of detention is challenged by the detenu, it would be reasonably possible or permissible to the Court to grant bail on prima facie conclusion reached by it at an earlier stage of the proceedings. If an order of bail is made by that Court without a full trial of the issues involved merely on prima facie opinion formed by the High Court, the said order would be open to the challenge that it is the result of improper exercise of jurisdiction. It is essential to bear in mind the distinction between the existence of jurisdiction and its proper exercise. Improper exercise of jurisdiction in such matters must necessarily be avoided by the courts in dealing with applications of this character. " The learned Single Judge, with respect, has failed to appreciate the weight of these observations while passing the order of interim bail. A Division Bench had heard the petitions for two days but did not think it fit or proper to grant interim relief to the detenus. Another Division Bench was going to rehear the petitions after ten days. It is not proper that, in between, the learned Single Judge should have taken upon himself the task of examining the merits of the matter in order to find whether there was a prima facie case for releasing the detenus on bail. Shri Shaukat Husain, who appears on behalf of the respondents, has drawn our attention to an order passed by the Division 30 Bench itself on November 10, 1981 by which it has permitted the respondents to continue on bail until the delivery of the judgment by it in the writ petitions. Learned counsel says that the special leave petitions filed by the State of Uttar Pradesh against the order passed by the learned Single Judge have become infructuous by reason of the order passed by the Division Bench. We are unable to accept this submission because the primary order of bail under which the respondents are at large is the one passed by the learned Single Judge. The Division Bench has allowed that order to remain in operation, only for the reason that counsel for the State was unable to say whether the Advisory Board had recommended the confirmation of detention or not. The Division Bench postponed the delivery of the judgment for that reason and directed that the respondents, who are already on bail, will be allowed to continue on bail until further orders. For reasons aforesaid, we set aside the order of bail and direct that the respondents shall be taken in custody forthwith. We hope that the Division Bench which has already heard arguments in the Writ Petitions, will be able to deliver its judgment expeditiously, if it has not already done so. The appeals will stand disposed of in terms of this judgment. P.B.R. Appeal allowed.

After hearing the habeas corpus petitions of the respondents, who were detained under the provisions of the Maintenance of Supplies of Essential Commodities Act, 1980 the Division Bench of the High Court released the writ petitions from their list since the Court was to have holidays for over ten days immediately thereafter. Another Division Bench, which took up the petitions for hearing, also adjourned the petitions until the reopening of the Court after holidays. In the mean time a single Judge of the High Court, before whom the detenus made an application for bail, allowed their petitions on the ground that the Government had erred in forwarding their representations to the advisory board without considering them for itself. On reopening of the Court, a Division Bench heard the habeas corpus petitions. It however, allowed the detenus to be on bail till the judgment was pronounced. In its petition for grant of special leave to appeal the State challenged the impugned order of the Single Judge releasing the detenus on bail "until the next date of hearing of the habeas corpus petitions". Allowing the appeal ^ HELD: 1. The single Judge erred in releasing the detenus on bail when their writ petitions were listed for hearing before a Division Bench. Neither was there any pressing or particular reason of a unique kind such as grave illness or pressing and personal business justifying the order of release on bail for a short period. The detenus cannot be released on bail as a matter of common practice on considerations generally applicable to cases of punitive detention. [26 F H] In the instant case the single Judge took up on himself the decision on merits. 25 Although the Courts would be anxious to protect the individual liberty of the citizen on justiciable grounds and within the limits of their jurisdiction, it would be unwise to ignore the object which the orders of detention are intended to serve. The reluctance of Courts to pass orders of bail in detention cases is based on the fact that they are fully conscious of the difficulties legal and constitutional and of the other risks involved in making such orders. If an order of bail is made by the Court without a full trial of the issues involved merely on prima facie opinion formed by the High Court, such order would be open to challenge that it is the result of improper exercise of jurisdiction. It is essential to bear in mind the distinction between the existence of jurisdiction and its proper exercise. Improper exercise of jurisdiction in such matters must necessarily be avoided by the courts in dealing with applications of this character. [29 A F] State of Bihar vs Rambalak Singh and others, applied. There is no force in the argument of the detenus that by reason of the decision of the Division Bench, allowing the detenus to be on bail till the delivery of the judgment by it in their writ petitions, the special leave petition filed by the State had become infructuous because the primary order of bail was the one passed by the single Judge. The Division Bench has allowed that order to remain in operation only because the counsel for the State was unable to say whether the Advisory Board had recommended the confirmation of detention or not. The Division Bench postponed the delivery of the judgment for that reason and directed that the detenus would be allowed to continue on bail until further orders. [30 A C]

Civil Appeal No. 3482 of 1984. Appeal by Special Leave from the Judgment and Order dated the 8th May, 1984 of the Patna High Court in Second Appeal No. 182 of 1978. Jayanarayan, Miss section Agarwal D.S. Mehra and R. P. Singh for the Appellant. Lal Narain Sinha and D. P. Mukharji for the Respondent. After hearing counsel for the parties we are clearly of the view that the judgment of the High Court cannot be sustained for two reasons. Firstly, the High Court had earlier remanded the case to the trial court and called for a finding from the trial court on the question of partial eviction. The trial court while recording its finding was of the view that the question of partial eviction should be considered in the light of the requirement of the landlord as deposed to by him. In doing so, the High Court failed to take into account the proviso to Section 12 (1) (c) of the Bihar Building (Lease, Rent & Eviction) Control Act of 1977, which in terms enjoins that what is necessary to be considered is the 'reasonable ' requirement of the landlord and whether it would be 'Substantially ' satisfied by evicting the tenant from a part only of the premises. The Court has therefore, in the first instance, to determine the extent of the premises which the landlord "reasonably" requires. Determine it objectively and not on the basis of his ipse dixit or his mere desire to occupy as much as he wants. But the Court has to furthermore apply a test as to whether such requirement, as the Court considers reasonable, will be 'substantially ' satisfied (not fully satisfied) by ordering partial eviction. This vital aspect has been 640 altogether overlooked by the trial court. Secondly, since the High Court had directly called for a finding from the trial court itself, the High Court should have scrutinized the said finding with special reference to the question of partial eviction even on facts as the finding of the trial court standing on its own (not confirmed by appellate court) is not conclusive on facts even in a second appeal. This is so because the High Court had called for a finding of fact from the trial court bypassing the appellate court and thus deprived the right of appeal to the District Judge (last court on facts) which, for aught we know, might not have agreed with the trial court and may have considered the question from the point of view indicated by us, viz, giving full effect to the concept of reasonable extent of the requirement from the perspective of 'substantials ' satisfaction of such requirement as considered to be reasonable objectively. Only in case the District Judge would have agreed with the finding of the trial court then it may have become a finding of fact which was binding on the High Court in second appeal. Besides the question as to the connotation of the word 'substantial ' was itself a substantial point of law there being no decision of the Patna High Court on this specific point. Other Acts in various States do not embody the concept of "substantial" satisfaction. These decision would therefore be of no avail in the context of the facts of the present case. In these circumstances, it cannot be said that the finding of the trial court, which is not the final court on facts, is conclusive and immune from the scrutiny of the High Court even in a second appeal. We therefore, allow appeal, set aside the decree of the High Court and remand the case to the High Court to decide the question fresh after considering the evidence on record in the light of the aforesaid observations. The appeal is disposed of accordingly. In the meantime there will be stay of dispossession. The High Court is requested to expedite the hearing of the case.

In a second appeal filed by the appellant tenant against an eviction order, the High Court remanded the matter to the trial court and called for a finding on the question of partial eviction. The trial court while recording its finding was of the view that the question of partial eviction should be considered in the light of the requirement of the landlord respondent as deposed to by him. The High Court accepted the finding of the trial court without scrutinising it and dismissed the appeal accordingly. Hence this appeal by special leave. Allowing the appeal. ^ HEID: (1) The High Court should have scrutinised the finding of the trial court with special reference to the question of partial eviction even on facts as the finding of the trial court standing on its own (not confirmed by appellate court) is not conclusive on facts even in a second appeal. This is so because the High Court had called for a finding of facts from the trial court bypassing the appellate court and thus deprived the right of appeal to the District Judge (last court on facts) which might not have agreed with the trial court. [640 A B] (2) The High Court as well as the trial court failed to take into account the Proviso to section 12 (1) (c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act 1977, which provides, inter alia, that where the court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly. Therefore, the court has, to determine; 639 (i) the extent of the premises which the landlord "reasonably" requires. Determine it objectively and not on the basis of his ipse dixit or his mere desire to occupy as much as he wants; and (ii) whether such requirement as the court considers reasonable, will be 'substantially ' satisfied (not fully satisfied) by ordering partial eviction. [639 G H] The Court remanded the case to the High Court to decide the question afresh after considering the evidence on record in the light of the aforesaid observations. [640 F]

iminal Appeal No. 65 of 1959. Appeal by special leave from the judgment and order dated January 9, 1959, of the Bombay High Court in Criminal Revision Application No. 1485 of 1958. C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and T.M. Sen, for the appellant. Nur ud din Ahmed and Naunit Lal, for respondent No. 1. 1961. October 6. The Judgment of the Court was delivered by SHAH, J. This is an appeal by the State of Bombay against the order passed by the High Court of Judicature, Bombay, acquitting the respondents of offences punishable under sections 65(a)(1) and 66(b)(1) of the Bombay Prohibition Act XXV of 1949 hereinafter referred to as the Act. The respondents are residents of Sehore a town in what was at the material time the territory of the State of Bhopal. Respondent 1 is the brother of the owner of a concern which carries on business of manufacturing drugs, in the name and style of Rajkumar Laboratories, Sehore. Prabhat Trading Company a firm carrying on business at Ahmedabad in the State of Bombay placed an order on January 26, 1955, with the Rajkumar Laboratories, for 4800 bottles of Mrugmadasav ' an Ayurvedic 18 preparation. The Rajkumar Laboratories prepared the drug and as it contained rectified spirit, paid Rs. 3600 as excise duty to the Bhopal State. A permit authorising export of the preparation out of the Limits of Bhopal State was also obtained on July 28, 1955. A motor truck belonging to the second respondent was engaged for transporting the preparation from Sehore to Ahmedabad. On July 29, 1955, Sub Inspector Shintre stopped the motor truck at Dohad a. town in the State of Bombay The motor truck on examination was found carrying 7073 bottles of various sizes labelled "Mrugmadasav, Rajkumar Laboratories, Sehore. " on the label was also printed the legend that the preparation contained 85.5% alcohol. Respondents 1 and 2 who were accompanying the motor truck in a jeep in which also bottles of Mrugmadasav were found, were arrested. Samples of the contents of the bottles were drawn and collected in the presence of Panchas and were sent to the Assistant Chemist, Drugs and Excise Laboratory, Baroda, for analysis and report. Samples were also sent to the Principal of R. A. Poddar Ayurvedic college at Bombay. The respondents and eight others were then prosecuted in the Court of the Judicial Magistrate, 1st class, Dohad, State of Bombay for offences punishable under SS. 65(a) and 66(1)(b) of the Bombay Prohibition Act XXV of 1949. The Magistrate convicted the first respondent of offences under 88. 65(a) and 66(1)(b), the second respondent of offences under 8. 65(a) read with 8. 81 of the Bombay Prohibition Act, and four other accused with whom we are not concerned in this appeal, of certain offences. The Court of Session at Panch Mahals at Godhra, in appeal, confirmed the order and sentence, but in exercise of its revisional Jurisdiction, the High Court of Bombay set aside the conviction and sentence passed upon the respondents and acquitted them. The High Court held (a) that the State failed to prove that the contents of the bottles were liquor meant for consumption 19 as intoxicant and (b) that the State Government "could not validly come to the conclusion that the bottles contained intoxicating liquor without obtaining the opinion of the Board of Experts constituted under section 6A of the Bombay Prohibition Act. Against the order of acquittal the State of Bombay has preferred this appeal with special leave. It was the Case for the State that the bottles seized by the police, though labelled "Mrugmadasav", which is an Ayurvedic preparation indicated foruse in delirious fever and cholera, did not contain genuine Mrugmadasav but contained intoxicating liquor, import, transportation and possession whereof without a permit or licence under the Bombay Prohibition Act were prohibited. H. P. Parikh, Assistant Chemist, Drugs & Excise Laboratory, Baroda, stated that on analysis, the samples were found to contain 75.55% to 79.97% V/V ethyl alcohol and that in his opinion contents of the bottles were not an "Asav" preparation. In his opinion the liquid analysed was fit for use as intoxicating liquor and that it was not a standard preparation, though he could not say whether it was a medicinal preparation, he having no means of examining the other active ingredients. M. Y. Lele Principal of R. A. Podar Ayurvedic College, stated that the principal constituent of Mrugmadasav is musk (Mrugmad), which has a characteristic and penetrating odour, and that he could not get any odour of musk out of the sample sent to him and that, in his opinion, the contents of the bottles were not Mrugmadasav at all. He also stated that in about 6 1/2 seers of Mrugmadasav prepared according to the Ayurvedic formula there would be 20 tolas of musk and that the current market rate of musk was Rs. 60 to Rs. 80 per tola. One Ansare, Excise Inspector of Sehore, was also examined on behalf of the prosecution. He stated that the alcoholic proof strength of the liquid in the bottles was 150 and the percentage of alcohol therein was .855% V/V and that the rest was water. The 20 witness deposed that the Mrugmadasav which was meant for export to Ahmedabad was manufactured under his supervision and that it was a "proprietary ayurvedic preparation of added alcohol", and that it was "not a genuine preparation of self generated alcohol". To a question asked in cross examination, the witness stated that in his presence 50 tolas of rectified spirit were added to 4 tolas of musk and 2 tolas each of black pepper, jaifal, pipal and cinnamon. This part of the statement of the witness was disbelieved by the trial Magistrate and by the Sessions Judge. The Magistrate held on review of the evidence that the respondents had imported into the State of Bombay a preparation which contained a large percentage of alcohol which was not self generated that the preparation did not contain musk and that it did not conform to the standard formula of Mrugmadasav and that the preparation seized by the police was meant for internal consumption and as consumption thereof was likely to cause intoxication it was not exempt from the operation of sections 12 and 13 of the Act. The Sessions Judge agreed with the Magistrate. But the High Court disagreed with that view on the ground that the testimony of Lele, who relied solely upon his 'sense of smell" could not justify the conclusion that the liquor(l seized was alcohol meant for consumption as intoxicating liquor and that Parikh, who found on examination that the preparation seized contained 75% alcohol Was unable to state what the other ingredients were. Section 2(24) of the Bombay Prohibition Act defines "liquor" as including (a) spirit of wine, denatured spirit, beer, toddy and all liquids consisting of or containing alcohol; and (b) any other intoxicating substance which the State Government may, by notification in the Official Gazette, declare to be liquor for the purpose of the Bombay Prohibition Act. Section 2(22) defines "intoxicant" as meaning any liquor, intoxicating drug, opium or any other substance, which the State Government may by notification in the official Gazette declares 21 to be an intoxicant. Sections 12 to 24, in Chapter Ill of the Act, contain diverse prohibitions. By section 12 it is provided that "No person shall (a) manufacture liquor; ( b) construct or work any distillery or brewery; (c) import, export, transport or possess liquor; or sell or buy liquor. Section 13 provides that no person shall (a) bottle any liquor for sale; (b) consume or use liquor; or (c) use, keep or have in his possession any materials, still utensils, implements or apparatus whatsoever for the manufacture of any liquor. These prohibitions have to be read subject to section 11 which, in so far as it is material, provides that notwithstanding the prohibitions contained in the Chapter it shall be, lawful to import, export, transport, manufacture, sell, buy, possess, use or consume any intoxicant in the manner and to the extent provided by the provisions of the Act or any rules, regulations or orders made in accordance with the terms and conditions of a licence, permit pass or authorization granted thereunder. The prohibitions contained in ss.12 and 13 are also subject to restrictions contained in section 24A which was added by Bombay Act 26 of 1952. In the Act, as originally enacted, the prohibitions contained in the various sections were, subject to section 11 absolute. The validity of the Bombay Prohibition Act was challenged in the Bombay High Court, and that High Court declared certain provisions of the Act ultra vires (Fram Nusservanji Balsara vs State of Bombay(l). Against the decisions of the High Court an appeal was preferred to this Court(2). Fazal Ali, J., who delivered the judgment of the Court summarised his conclusions in so far as they are material to this appeal, as follows: In the result I declare the following provisions of the Act only to be invalid: (1) 1. L. R. (2) The State of Bombay vs F.N. Balsara ; 22 (1) Clause (c), of section 12, so far as it affects possession of liquid medicinal and toilet preparations containing alcohol. (2) Clause (d) of section 12, so far as it affects the selling or buying or such medicinal and toilet preparations containing alcohol. (3) Clause (b) of section 13, so far as it affects the consumption or use of such medicinal and toilet preparations containing alcohol." The Bombay Legislature there after enacted Act 26 of 1952 which by section 7 added s.24A, which as subsequently amended reads as follows: "Nothing in this Chapter shall be deemed to apply to (1) any toilet preparation containing alcohol which is unfit for use as intoxicating liquor; (2) any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor; (3) any antiseptic preparation or solution containing alcohol which is unfit for use as intoxicating liquor; (4) any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating liquor: Provided that such article corresponds with the description and limitations mentioned in section 59A: Provided further that the purchase, possession or use of any liquor or alcohol for the manufacture of any such article shall not be made or h d except under a licence granted under section 31A." By this addition, the prohibitions imposed by sections 12 and 13 were not to apply to toilet, medicinal, 23 antiseptic and flavouring extract, essence or syrup preparations containing alcohol specified therein. The respondents contend that Mrugmadasau imported by them and found in their possession by the Sub Inspector of Police was a genuine Ayurvedic medicinal preparation; that in ay event, the State must prove that it was not a medicinal preparation; and that the burden lies on the State to prove their case that the importation and possession by the respondents of the contents of the bottles was in violation of the prohibitions imposed by sections 12 and 13 of the Act inviting as a consequence the penal provisions of sections 65 and 66 of the Act. In a criminal prosecution, normally the burden lies upon the prosecution to prove all the ingredients which constitute the offence charged against the accused, and we are unable to agree with the submission of the Solicitor General that a different rule is indicate in the trial of offences under the Act. It was for the State to prove that the substance seized, if a medicinal preparation, was not unfit for use as intoxicating liquor. The State has even under the Prohibition Act to establish that the respondents had infringed the prohibitions contained in sections 12 and 13. Undoubtedly, by virtue of section 24 a the prohibitions do not apply to certain categories of toilet, medicinal, antiseptic and flavouring preparations, even if they contain alcohol; but on that account the burden lying upon the State to establish in any given case in which it is alleged that the accused has infringed the prohibitions contained is sections 12 and 13 that the infringement was not in respect of an article or preparation which was not in respect of an article or preparation which was covered by section 24 A is not shifted on to the shoulders of the accused. Section 24 A is in substance, not an exception; it takes out certain preparations from the prohibitions contained in sections 12 13 But the operation of section 24A does not extend to all medicinal, toilet antiseptic or flavouring preparations containing alcohol; even if the preparation 24 is a toilet, medicinal, antiseptic or flavouring preparation,if it is fit for use as intoxicating liquor the prohibitions contained in sections 12 and 13 will apply. In order that the provisions contained in section 24A is attracted, the contents of the article. even as a medicinal preparation has by the first proviso to correspond with the description and limitations" contained in section 59A i.e. no more alcohol shall be used in the manufacture of such article than the quantity necessary for extraction or solution of the elements contained therein and for the preservation of the article, and in case of manufacture of an article in which the alcohol is generated by a process of fermentation the amount of such alcohol does not exceed 12 per cent. If alcohol in excess of the quantity prescribed by s.59A is found in the article, the provisions of section 24 A will not apply irrespective of the question whether it is fit or unfit to used as intoxicating liquor. Again, the preparation, even if it is medicinal, toilet, antiseptic or flavouring, must to unfit for use as intoxicating liquor i e. it must be such that it must not be capable of being used for intoxication without danger to health. If the preparation may be consumed for intoxication it would still not attract the application of section 24 A provided the intoxication would not be accompanied by other harmful effects. A medicinal preparation which may, because of the high percentage of alcohol contained therein, even if taken in its ordinary or normal dose intoxicate liquor A medicinal preparation containing a small percentage of alcohol ma still be capable of intoxicating if taken in large quantities, but if consumption of the preparation in large quantities is likely to involve danger to the health of the consumer, it cannot be regarded as fit to be used as intoxicating liquor. In the case before us, the preparation which is styled Mrugmadasau was sought to be passed off as a medicinal preparation. If genuine, it could have 25 been used in the treatment of certain fevers and cholera. The preparation, however, contained 75.5 ^ alcohol which is much in excess of the normal percentage of alcohol found in that preparation according to the standard Ayurvedic formula. The other constituents of Mrugmadasav as given in Bharat Bhishag Ratnakar Part IV are honey, water and comparatively small quantities of musk, black pepper, cloves, nut meg and cinnamon, and these are not such as to create any harmful effects or danger to health. From the evidence of Lele, it is clear, not withstanding the assertion to the contrary of Ansare (which is disbelieved by the Trial Magistrate and the Sessions Court) that the preparation seized could not contain any substantial quantity of musk. Having regard to the market price of musk, which ranged between Rs. 60 to Rs. 80 per tola at the material time, it would be impossible for any manufacturer intending to do business as a seller of drugs to price a bottle of Mrugmadasav at Rs.1 12.0 per Lb. When according to the standard formula it would contain about 4.% of musk and according to Ansare the preparation contained 8% of musk by weight. Even according to the standard formula, the value of musk alone in one Ib. Of Mrugmadasav would be from Rs.100 to Rs.140. The preparation seized by the police, therefore, could not contain genuine musk in any substantial or even appreciable quantity. The High Court did not rely upon the bare assertion of Lele because it was founded only upon the "sense of smell"; but the evidence of Lele is corroborated by the circumstance that musk could not be a constituent of the preparation, which was seized in the large quantity which it was claimed it contained. The other constituents of the preparation, according to Ansare, are comparatively speaking harmless drugs and having regard to the large percentage of alcohol even if it be regarded as a medicinal preparation, though not a standard 26 preparation, which was medicinal, prima facie, it was capable of intoxicating taken in a normal dose in which any "Asav" may be consumed. In any serious danger to health or concomitant deleterious effect. In that view of the case it must be held that the preparation seized by the police was not saved by virtue of section 24 A from the prohibitions contained in sections 12 and 13 of the Act. It is not the case of the accused and the burden of proving that case would lie upon the accused, that the importation or possession of the article seized was permitted under section 11 of the Act. The High Court following an earlier judgement of the Bombay High Court in D. k. Merchant vs The State of Bombay (1), decided against the State also on the ground that the prosecution for the offences under sections 65 and 66 could not be maintained unless the State Government was satisfied after consulting the Board of Experts under section 6A that the article was intoxicating liquor. In our view section 6A is not susceptible of the interpretation placed upon it by the High Court. Section 6A provides as follows: "6A. (1) For the purpose of determining whether (a) any medicinal or toilet preparation containing alcohol, or (b) any antiseptic preparation or solution containing alcohol, or (c) any flavouring extract, essence or syrup containing alcohol, is or is not an article unfit for use as intoxicating liquor, the State Government shall constitute a Board of Experts. (1) 27 (2) The Board of Experts constituted under sub section (1) shall consist of such members, not less than three in number, with such qualifications as may be prescribed. The members so appointed shall hold office during the pleasure of the State Government. (3) To members shall form a quorum for the disposal of the business of the Board (4) Any vacancy of the number of the Board shall be filled in as early as practicable: Provided that during any such vacancy the continuing members may act, as if no vacancy had occurred. (5) The procedure regarding the work of the Board shall be such may be prescribed. (6) It shall be the duty of the Board to advise the State Government on the question whether any article mentioned in sub section (1) containing alcohol is unfit for use as intoxicating, liquor and on such other matters incidental to the said question as may be referred to it by the State Government. On obtaining such advice the State Government shall determine whether any such article is fit or unfit for use as intoxicating liquor or not and such article shall be presumed accordingly to be fit or unfit for use as intoxicating liquor; until the contrary is proved. " By the first sub section a duty is cast upon the State Government to constitute a Board of Experts for the purpose of determining whether the medicinal, toilet or antiseptic preparations or flavouring materials containing alcohol are unfit for use as intoxicating liquor. Sub sections (2) to (5) deal with matters purely procedural. By sub section (6) duty is imposed upon the Board to advise the State Government on the question whether any substance mentioned in sub section ( 1 ) containing alcohol is unfit for use as intoxicating liquor and on such other 28 matters incidental to the said question as may be referred to it by the State Government. If the opinion of the Board is obtained, duty is imposed on the Government to determine whether the article is fir or unfit to be used as intoxicating liquor and on the determination so made by the Government a rebuttable presumption arises that the article is fit or unfit for use as intoxicating liquor. Substantially, the section creates three distinct obligations: (1) upon the State to constitute a Board for the purposes specified in sub s.(1): (2) upon the Board, when consulted, to advise the State Government whether a substance mentioned in sub section (1) is unfit for use as intoxicating liquor ; and (3) an obligation on the State, when the advice of the Board is received, to determine whether the article is fit or unfit to be used as intoxicating liquor. There is, however, no obligation expressly imposed upon the State in any given case to consult the Board of Experts, nor can such a provision be implied, and there is nothing in sections 65 and 66 which make the consultation with the Board a condition precedent to the institution of proceedings for breach of the provision of the Act. Section 6A WAS Incorporated in the Bombay Prohibition Act by Act 26 of 1952 which also incorporated section 24 A. In view of the judgement of this Court in Balsaras case (1) it was found that the Bombay Prohibition Act, in so far as it sought to impose restrictions and to provide penalties for infringement of those restrictions in respect of genuine medicinal, toilet, antiseptic preparations and flavouring extracts, was ultra vires. The Legislature enacted section 24 A and restricted the prohibitions contained in sections 12 and 13 qua these preparations. It also provided for setting up machinery for determining whether the preparations specified were unfit for use as intoxication liquor: but the Legislature did not impose any obligation upon the State to resort to the MACHINERY PROVIDED BY section 6A. By declining to avail itself of the machinery provided (1) The State of Bombay vs F. N. Balsara, [1951] section C. R . 682. 29 by sub section (6) of section 6A, in cases which are not sent to the Board, the State may undertake an onerous burden, i.e. it will not be entinled to rely on the presumption arising under the last sentence of that sub section and will have affirmatively to establish the ingredients of the offence. Consultation with the Board and the determination contemplated by 8. 6A would make the task of the State in a prosecution in respect of infringement of prohibitions regarding the liquor contained in ss.12 and 13 somewhat less onerous. The State may in a prosecution for infringement of the prohibition contained in sections 12 and 13 rely. upon the presumption, after resorting to the machinery under section 6A(6), but is not obliged to rely upon the presumption. Imposition of a duty to constitute a Board for the purposes specified in sub section (1), does lot involve a duty to consult the Board and imposition of a duty upon the Board to advise the State Government does not involve a duty to consult the Board in every case where a prosecution is sought to be launched in respect of any medicinal, toilet, antiseptic or flavouring preparation (containing alcohol. The plea that because the Government of Bhopal had levied a duty on the preparation an(l had granted a permit, no offence was committed by importing and possessing the offending preparations in the State of Bombay has, in our judgment, no substance. C which is a permit issued by the Government of Bhopal to export spirit, medicinal, toilet preparations and perfume containing Bhopal made spirit on payment, of duty in Bhopal State does not protect the importer of the preparation in another State against prosecution for an offence according to the law of that other State committed by the importation of such articles. The export permit has not and cannot have extra territorial effect; it merely enables a person seeking to export preparation to do so. The statement in Ext. L, a letter by the Prabhat Trading Co. to 30 Rajkumar Laboratories, Sehore that the former ``hold a licence for possession and sale" without production of such licence, cannot be set up in set up in defence. If it was the case of the respondents (and the burden of proving lay upon the respondents) that the importation and possession of the article was lawful in view of a licence issued under section 11, it was for them to produce the licence granted under that section. None such having been produce, the defence is not available to the respondents. Nor does the order of the Commissioner of Excise Department, Bhopal dated October 14, 1955 (Ext. M) advising against the exportation to the State of Bombay by the manufacturers to in the State of Bhopal of proprietary spirituous preparations including Mrugmadasav or other Ayurvedic preparations which contain a large percentage of alcohol without getting the preparations classified for duty purposes assist their case. It appears that in July , 1954 the Excise and prohibition Director of Bombay had addressed a letter to the Chief Commissioner of Bhopal informing that Officer that "28 restricted Asavas and Arishtas" mentioned in the list appended thereto were liable in the State of Bombay to duty at the rate of Rs 3 per Imperial Gallon of six reputed quart bottles and further requesting that Officer to issue instructions to manufacturers in the State of Bhopal that these preparations should not be exported to the State of a Bombay except on payment of the duty at the above prescribed rate to the credit of the State of Bombay and under cover of an export pass granted by the competent Excise authority of the District of export. The list of restricted Asavas and Arishtas does not include "Mrugmadasav" and it expressly refers to "Ayurvedic preparations prepared according to Ayurvedic process containing self generated alcohol. " There is nothing in the letter dated July 23, 1954, which may lend support to the contention of the respon 31 dents that they had on payment of excise duty been authorised to import "Mrugmadasav" and the prohibitions contained in sections 12 and 13 in respect of preparations containing alcohol were suspended, for the preparation is not one listed in the Schedule nor does it contain self generated alcohol. We are of the view, therefore, that the prohibitions contained in 88. 12 and 13 operated in respect of the preparation seized by the police and that the payment of excise duty to the Bhopal State under the law in force in that State, for exporting the preparation from that State did not protect the respondents from liability to prosecution for infringement of provisions of the Bombay Prohibition Act XXV of 1949 within the State of Bombay. We further hold that the High Court was in error in holding that the consultation with the Board under section 6A(G) of the Act was condition precedent to the launching of prosecution against the respondents. We set aside the order passed by the High Court and restore the order passed by the Judicial Magistrate, 1st Class, Dohad, and confirmed by the Court of Session at Panch Mahals sentencing the respondent No. 1 to rigorous imprisonment for six months, and to pay a fine of Rs. 500 and in default of payment of fine to suffer rigorous imprisonment for three month, and respondent 2 to rigorous imprisonment for one month and to pay a fine of Rs. 300 and in default of payment of fine to uudergo rigorous imprisonment of one month and fifteen days in addition. The order of confiscation of the property is also restored. Appeal allowed.

The respondents were charged with offences punishable under sections 65(a) and 66(1)(b) of the Bombay Prohibition Act, 1949, for violating the provisions of sections 12 and 13 of the Act. The prosecution case was that the respondents brought in their motor truck into the State of Bombay from the adjoining State of Bhopal, bottles labelled Mrugmadasav, and that the bottles did not contain genuine Mrugmasadav, an Ayurvedic preparation, but only intoxicating liquor, import transportation and possession whereof without permit or licence under the Act were prohibited. The Magistrate found that the bottles contained 75.50% alcohol much in excess of the normal percentage of alcohol used in preparing Mrugmadasav, according to the standard Ayurvedic formula 16 that it did not contain any appreciable quantity of musk essential in such a preparation, and that having regard to the large percentage of alcohol it was capable of being used for purposes of intoxication. Accordingly he held that the preparation Was not saved by s 24A from the prohibitions contained in sections 12 and 13 of the Act,and convicted the respondents. The High Court, however, acquitted the respondents on the grounds (a) that the State had failed to prove that the contents of the bottles were. liquor meant for consumption as intoxicant, and (b) that the State could not validly come to the conclusion that the bottles contained intoxicating liquor without obtaining the opinion of the Board of Experts constituted under. s 6A if the Act. In the appeal filed by the State of Bombay with special leave the respondents pleaded that, in any case, as the Government of Bhopal had levied a duty on the preparation and had granted a permit, no offence was committed by importing and possessing the preparations in the State of Bombay. ^ Held:(1) that it was for the State to prove that the substance, if a medicinal preparation. was not unfit for use as intoxicating liquor and to establish that the prohibitions contained in sections 12 and 13 of the Bombay Prohibitions Act, 1949, had been infringed, and that the burden of proof that infringement was not in respect of a preparation which was covered by s.24A was not shifted on the shoulders of the accused; (2) that if alcohol in excess of the quantity prescribed by s.59A was found in the article, the provisions of section 24A would not apply irrespective of the question whether it was fit or unfit to he used as intoxicating liquor; (3) that a medicinal preparation which may, because of the high percentage of alcohol contained therein, even if taken in its ordinary or normal dose intoxicate a normal person, would be regarded as intoxicating liquor within the meaning of section 24A, but such a preparation containing a small percentage of alcohol even though it might be capable of intoxicating if taken in large quantities, could not be regarded as fit to be used as intoxicating liquor within the meaning of that section. (4) that a State may in a prosecution for infringement of the prohibitions contained in sections 12 and 13 of the Act rely upon the presumption after resorting to the machinery under s 6A(6), but these was no obligation upon the State in any given case to consult the Board of Experts under section 6A nor was consultation with the Board a condition precedent to the institution of proceedings for breach of the provisions of the Act . 17 D. R. Merchant vs The State of Bombay, (1958) Bom. I, R. 1183, disapproved. (5) that the payment of excise duty to the Bhopal State under the law in force in the State for exporting the preparation from the State did not protect the respondents from liability to prosecution for the infringement of the prohibition laws in force in the State of Bombay; and (6) that in the instant case the preparation though styled Mrugmadasav was not a genuine medicinal preparation and having regard to the large percentage of alcohol contained therein it was capable of intoxicating taken even in a normal dose, and was not saved by section 24A from the prohibitions contained in sections 12 and 13 of the Act.

Special Leave Petition (Civil) Nos. 12 12A of 1988. From the Judgment and order dated 18.12.1987 of the Andhra Pradesh High Court in W.A. Nos. 1649 and 1650 of 1987 P.N. Lekhi, M.K. Garg and Lokesh Kumar for the Petitioner. Kuldeep Singh, Additional Solicitor General and Mrs. A. Subhashini for the Respondents. The following order of the Court was delivered: O R D E R In response to the queries made by this Court by its order dated January 8, 1988 Shri Kuldeep Singh, learned Additional Solicitor General has furnished the relevant information as under: (1) In the matter of the age of Shri Justice K. Bhaskaran, Chief Justice of the Andhra Pradesh High Court, the advice and comments of the Chief Justice of India were sought in terms of Articles 217(3) of the Constitution of India. The files containing all the relevant papers were referred to the Chief Justice of India on 28th September, 1987. (2) The Chief Justice of India on 29th December, 1987 desired to have an opinion as to the effect of the judgment pronounced by the Andhra Pradesh High Court concerning the matter of the age of the Chief Justice Bhaskaran. The opinion was made available to the Chief Justice of India on 6th January, 1988. The Chief Justice of India on 11th January, 1988 indicated further course of action in the matter. The file has been resubmitted to 730 the Chief Justice of India on 16th January, 1988 for his further advice. (3) A view in the matter will be taken by the President of India after the advice of the Chief Justice of India is made available. In view of the foregoing, it is clear that the President of India in compliance with Article 217(3) of the Constitution of India has referred the question as to the age of Shri K. Bhaskaran, the Chief Justice of the Andhra Pradesh High Court to the Chief Justice of India for his opinion. That being so, no writ of mandamus can lie. The President of India as a constitutional functionary has discharged his duties under Article 217(3) of the Constitution and the decision must rest on the advice of the Chief Justice of India and not the Council of Ministers. As laid down in the Union of India vs Jyoti Prakash Mitter,. [1971] 3 SCR at 503 & 504, the matter as to the age of the Chief Justice or a sitting Judge of a High Court is a judicial function of the President of India, which has to be discharged in accordance with the special provisions made under Article 217(3) of the Constitution. Such a question as to the age of the Chief Justice or a Judge under Article 217(3) of the Constitution is beyond the reach of the Council of Ministers under Article 74 of the Constitution. J.C. Shah, C.J., speaking for the Constitution Bench has laid down the law in these words: It is necessary to observe that the President in whose name all executive functions of the Union are performed is by article 217(3) invested with judicial power of great significance which has bearing on the independence of the Judges of the Higher Courts. The President is by article 74 of the Constitution the Constitutional head who acts on the advice of the Council of Ministers. " The question as to the age of Shri K. Bhaskaran, the Chief Justice of the Andhra Pradesh High Court must, therefore, be decided by the President of India on the advice of the Chief Justice of India as enjoined by Article 217(3) of the Constitution in the light of the principles laid down by this Court in Jyoti Prakash Mitter 's, case. The High Court, in our considered opinion, should have thrown out the petition under article 226 of the Constitution at the very threshold because the President of India was seized with the question under Article 217(3) of the Constitution. Indeed, it appears from the judgment of the 731 High court that when the learned counsel for the Union of India A informed the Court that the President of India is seized with the question, the counsel for the appellant conceded that the writ of quo warranto is not maintainable. The special leave petitions are accordingly dismissed. G.N. Petitions dismissed.

% The appellant raised the question as regards the determination of age of the Chief Justice of Andhra Pradesh High Court, in these Special Leave Petitions filed against the Judgment and order of the Andhra Pradesh High Court dismissing in limine the Writ Appeals against the order of dismissal of the Writ Petitions by a Single Judge of the High Court. ln the course of the proceedings, this Court, on January 8, 1988, made certain queries to which the Additional Solicitor General furnished information broadly on the following lines: That a view in the matter will be taken by the President of India after the advice of Chief Justice of India is made available, and that all relevant files have been submitted to the Chief Justice of India along with the opinion as to the effect of the judgment pronounced by the Andhra Pradesh High Court. In view of the information made available, this Court dismissed the Special Leave Petitions and, ^ HELD: 1. The matter as to the age of the retired Chief Justice or a sitting Judge of a High Court is a judicial function of the President of India, which has to be discharged in accordance with the special provisions made under Article 2l7(3) of the Constitution. [730C D] 2. Such a question as to the age of the Chief Justice or a Judge, under Article 217(3) of the Constitution, is beyond the reach of the Council of Ministers under Article 74 of the Constitution. [730D E] Union of India vs Jyoti Prakosh Mitter, [ 197 l ] 3 SCR 483, followed. 729 3. Since the President of India, in compliance with Article 2l7(3), has referred the question as to the age of Shri K. Bhaskaran, Chief Justice of Andhra Pradesh High Court, to the Chief Justice of India for his opinion, no Writ of Mandamus can lie. [730B] 4. The President of India as a constitutional functionary has discharged his duties under Article 217(3) and the decision must rest on the advice of the Chief Justice of India and not the Council of Ministers. [730C]

Appeal No.155 of 1953. Appeal by special leave from the Judgment and Order dated the 15th July, 1953, of the Election Tribunal, Nagpur, in Election Petition No. 3 of 1952.B. Sen and T. P. Naik for the appellant. Veda Vyas (section K. Kapur with him) for respondent No. 1. 1954. February 15. The Judgment of the Court was delivered by Bose J. This is an appeal against a decision of the Nagpur Election "Trbunal. The contest before the tribunal was about two seats in the Bhandara Parliamentary Constituency. The elections were held on five days 'in December, 1951, and January, 1952. 819 Thirteen candidates filed nomination papers, among them the petitioner. Of these, six contested the seat reserved for the Scheduled Castes. One of these was Gangaram Thaware who has since died. The Scheduled Caste in question is the Mahar caste. Objection was taken to Thaware 's nomination for the reserved seat on the ground that he was not a Mahar. It is admitted that he was born a Mahar, but later in life he joined the Mabanubhava Panth. This, according to the appellant, is a sect which does not believe in caste, and alternatively that it forms a separate caste in itself The contention was that when Gangaram Thaware joined the Panth he ceased to be a member of the Mahar caste ' The objection succeeded and his nomination was rejected. The nomination of another Scheduled Caste candidate was also rejected and five others were withdrawn before the election, among them was the present petitioner. That left six candidates of whom three were eligible for the reserved seat. The two who were elected were Tularam Sakhare, for the Scheduled Caste seat, and chaturbhuj, Jasani, nor the general seat. Jasani 's election was challenged on the ground that he was subject to the disqualifications set out in section 7 (d) of the Representation of the People Act (Act XLIII of 1951) as he was interested in a contract for the supply of goods to the Central Government. The Election Tribunal held that the rejection of Gangaram Thaware 's nomination was improper as he continued to be a member of the Mahar caste despite his conversion to the tenets of the Mahanubhava. Panth. It also held that Chaturbhuj Jasani had a contract with the Central Government, so he was disqualified. Accordingly it set aside the whole election. We will deal with Chaturbhuj Jasani 's election first. Section 7(d) is in these terms : "A person shall be disqualified for being chosen as, and for being, a member etc. * * * * 820 (d)if by himself he has any share or interest in a contract for the supply of goods to the appropriate Government." Chaturbhuj Jasani was, and still is, a partner in the firm of Moolji Sicka & Company, and it is said that at all material times the firm had a contract for the supply of bidis to the Government for the troops. Moolji Sicka & Company is a firm of bidi manufacturers. The Central Government was interested in stocking and purchasing bidis for sale to its troops through its canteens. Accordingly, it placed two of the brands of bidis manufactured by this firm on its approved list and entered into an arrangement with the firm under which the firm was to sell, and the Government was to buy from the firm, from time to time, these two brands of bidis. It was argued that this amounted to a contract for the supply of goods within the meaning of the section. It was said that the contract was embodied in four letters. We do not intend to analyse these letters in detail. It is enough to say that in our opinion no binding engagement can be spelt out of them except to this extent : Moolji Sicka & Company undertook to sell to the canteen contractors only through the Canteen Stores and not direct and undertook to pay a commission on all sales. This, in our opinion, constituted a Continuing arrangement under which the Canteen Stores, i.e., the Government, would be entitled to the commission on all orders placed and accepted in accordance with the arrangement ; and in fact the Canteen Stores did obtain a sum of Rs. 7,500 'in satisfaction of a claim of this kind. This money was paid long before the dates which are crucial here but the settlement illustrates that there was an arrangement of that nature and 'that it was a continuing one. In our opinion, it continued in being even after that and the mere fact that there was no occasion for any claim subsequent to the settlement does not indicate that it was no longer alive. But except for this, the; letters merely set out the terms on which the parties were ready to do business with 821 each other if and when orders were placed and executed. As soon as an order was placed and accepted a contract arose. It is true this contract would be governed by the terms set out in the letters but until an order was placed and accepted there was no contract. Also, each separate order and acceptance constituted a different and distinct contract: see Rose and Frank Co. vs J. R. Crompton & Bros. Ltd.(1) The crucial dates with which we are concerned are 15th November, 1951, the last date for putting in the nominations, and 14th February, 1952, the date on which the results were declared. The section runs "A person shall be disqualified for being chosen as. The words which follow, "and for being", need not be considered as it is enough for our purposes to use only the former. Now the words of the section are "shall be disqualified for being chosen. " The choice is made by a series of steps starting with the nomination and ending with the announcement of the election. It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen. The disqualification alleged in this case is that Chaturbhuj Jasani had an interest in a contract, or a series of contracts, for the supply of goods to the Central Government. He had this interest because the contracts were made with Moolji Sicka & Company a firm of which Jasani is one of the partners. The fact of partnership is admitted but the other facts are denied. We have therefore to see whether any contract for the supply of goods to Government by Moolji Sicka & Company existed at any 'time on or between the relevant dates. Exhibit C is a tabular statement which sets out the dealings between the parties during certain months. It is accepted as correct by both sides. The following extracts from this statement show that Moolji Sicka & Company had an interest in a series of contracts for the sale of bidis to the Canteen Stores at and between the relevant dates. (1) ; 822 Date of order Date of invoice Price of Date of by and goods pay Canteen Stores Despatch. supplied.ment. 8 10 1951 18 10 1951Rs. 1,684 13 919 12 1951. 8 10 195119 10 19513,373 9 3do 17 8;195126 10 195112,602 8 0do 12 9 195126 10 195111,426 14 6do 11 10 195126 10 19518,411 14 0do 21 10 195130 11 195110,125, 2 9do 9 8 195129 8 195125,812 12 024 12 1951 8 10 195118 10 19514,793 4 9do 14 11 195122 11 1951:1,887 9 95 I .1952 17 10 19518 11 195116,534 2 022 1 1952 12 11 195120 11 19514,205 15 0do 13 12 195110 1 195213,97,079 7 912. 2 1952 14 1 195222 1 19521,691 11 9do 21 12 195110 1 195216,983 8 018 2 1952 12 11 195122 11 19518,411 14 013 3 1952 9 1 195216 1 19525,888 4 9do 23 1 195228 1 19528,411 ,14 020 3 1952 This statement reveals that various contracts aggregating Rs. 15,39,345 6 0 less some small sums for railway freight, were outstanding at one time or another between the two crucial dates and that payments in discharge of these liabilities were made at various dates between 15th November, 1951, and 20th March, 1952. It also shows that orders were placed and accepted for goods priced at Rs. 84,659 14 3 before 15th November, 1951, and that payment was not made till after that date. Therefore, on 15th November, 1951, goods worth Rs. 84,659 14 3 had still to be paid for. Then between 15th November, 1951, and 14th. February, 1952, further orders for goods valued at Rs. 39,695 8 9 were placed And accepted and they were not paid for till after 14th February, 1952. It was argued that there is nothing to show that. the goods were, not supplied before 15th November, 1951, and before 14th February, 1952. It was said on behalf of 'the appellant that these are the only dates which are crucial, so if Moolji Sicka. & Company hid. fully 823 executed their part of the contracts before the two crucial dates the disqualification would not apply. That raises these questions: (1) Does a person who has fully executed his part of a contract continue to have an interest in it till the goods are paid for ?; and (2) were these contracts fully executed so far as Moolji Sicka & Company 's part was concerned? The parties are not agreed about this, so it will now be necessary to examine their letters in detail to determine the terms of the various contracts. The correspondence discloses that the Canteen Stores and Moolji Sicka & Company dealt with each other from time to time under various arrangements which they called " systems. The earliest letter we have about the transactions between these parties is one dated 30th March, 1951. It shows that the "system" which they called the " Direct Supply System " was in use at that time. The details of the " system " are set out in an order dated 17th April, 1951. Under it Moolji Sicka & Company had to send supplies of bidis direct to the Canteen Stores contractors as and when ordered. The value of the goods so supplied was to be recovered from the contractors direct and the Canteen Stores were to be informed of the sales and were to be paid a certain commission. This led to some friction and in their letter of 30th March, 1951, the Canteen Stores complain that information about some of the sales to the contractors had been suppressed with the result that the Canteen Stores lost their commission. Moolji Sicka & Company replied to this on 24th April, 1951, and suggested a slight change in the system, namely that all orders for the goods should in future be placed through the Canteen Stores and that there should be no dealings with the contractors direct except to supply them with the goods ordered by the Canteen Stores; then, ' they said, there would be no complaint about their having been kept in the dark. This appears to have been agreed to because such of the subsequent order& as are on record were placed by the Canteen Stores. 824 The order dated 17th April, 1951, to which we have referred above is a sample. This was considered unsatisfactory and it was felt that a change was called for. Moolji Sicka & Company 's letter of 24th April, 1951, shows that their complaint was that the Canteen Stores did not keep a sufficient stock of bidis on hand. They said " We feel that you can stock more of our bidis. And that will mean an added profit to you; since the rebate you get on supplies made under the Direct Supply System is Rs. 4 only, whereas on supplies made to you we have now offered a much higher rebate. . . We have therefore to request you to kindly 8stock more of our bidis. " In view of this, two representatives of Moolji Sicka & Company, met the Chairman of the Board of Administration, who was in charge of the Canteen Stores Department, on 10th July, 1951. They reached certain tentative conclusions which were reduced to writing by the Canteen Stores on 11th July, 1951. Their letter of that date shows that the Canteen Stores proposed to abolish the Direct Supply System in the near future but so far as Moolji Sicka & Company were. concerned they said that the system could be abolished. at once (" forthwith " is the word used) provided Moolji Sicka & Company would agree to supply bidis for the Bombay, Calcutta and Delhi Depots of the Canteen Stores under a new system which they called the " Consignment System ". Under this the Canteen Stores were to pay as they sold. But the new system was intended only for the Bombay, Calcutta and Delhi Depots of the Canteen Stores. The letter goes on to say that for the Pathankot and Srinagar Depots the supplies would have to be made on the " Outright Purchase Basis ". These proposals were embodied under the heading " Future Business RelationsThen there was a provision for what was called theTransition Period ". That said that Untilstocks could be placed in our depots, it was agreed that you would supply your bidis direct against our orders and on such supplies you would allow us rebate as at present. 825 These proposals were sent to Moolji Sicka & Company for confirmation. It will be seen that the ' letter makes four proposals: (1)That so far as Moolji Sicka & Company were concerned, " The Direct Supply System " should be terminated at once though, so far as other manufacturers were concerned, it should continue in force for some time longer; (2)That in its place the Calcutta, Bombay and Delhi Depots were to be supplied under a new system called the " Consignment System "; (3)That the Pathankot and Srinagar Depots were to be supplied under another new system called the Outright Purchase System "; (4)That during the "transition period" the "Direct Supply System" was to continue in operation " as at present " even with Moolji Sicka and Company. Moolji Sicka & Company replied on 16th July, 1951, saying that they were prepared to accept these terms provided the Canteen Stores confirmed certain modificatioins which Moolji Sicka & Company proposed. They were as follows: (1)Regarding the " Transition Period " they said" "We are pleased to note that you will soon be abolishing the Direct Supply System. But it should be applied to all suppliers at the same time. Till then we should be allowed to supply any orders received from the Canteen Contractors. You should inform us of the date on which Direct Supply System will be discontinued. (2) Regarding the new proposals under the heading Future Business Relations Moolji Sicka & Company said "Goods sent to your depot on consignment basis must be either returned to us or paid for fully within three months of the date of supply. We understand that the system. of supplying goods on consignment basis will be discontinued in about six months ' time. " 107 826 (3) They said " And for this purpose we have agreed to offer you Rs. 7,500 in full and final settlement of all your claims to date and upon the understanding of your acceptance of the terms for future business. They concluded " Upon receiving your confirmation we shall instruct our Bombay office to send you the cheque for the amount stated above. " The Rs. 7,500 was what the Canteen Stores claimed from Moolji Sicka & Company as compensation for breach of the agreement under which Moolji Sicka & Company had agreed not to sell to the Canteen Contractors without paying the Canteen Stores a commission. Neither side was able to produce exact figures but this was the estimate made by the Canteen Stores of the loss suffered by them by reason of that breach. It will be seen that the proposal about the " Consignment System " which the Canteen Stores made was that they would pay Moolji Sicka & Company only when they sold the stocks with which Moolji Sicka & Company were to supply them for stocking their depots at Calcutta, Bombay and Delhi. Moolji Sicka & Company were not satisfied with this and said that the Canteen Stores must either return or pay for all stocks supplied, within three months from the date of supply. The Canteen Stores replied on 19th July, 1951, as follows: (1) They accepted Moolji Sicka & Company 's suggestion that when the Direct Supply System was abolished the abolition would apply to all suppliers of bidis. (2) As regards the " Consignment Account System they did not turn down the proposals but observed that they were thinking of doing away with that too in favour of the " Outright Purchase System" and warned Moolji Sicka & Company that in view of that it might not be necessary to place any of Moolji Sicka & Company 's stocks in their depots. 827 (3) They wanted a six months ' guarantee period in place of three months. The letter concludes "Although under the system of provisioning,adopted by us, and as explained to you during our discussions, it may not be that we shall at any time have any stocks surplus to our requirements or stocks which have not been disposed of within the guarantee period, but should there be any solitary occasions will you please confirm that you will replace Such stock with fresh stock without any cost to us? We await your agreement by return. " They also said, "We now await your cheque for Rs. 7,500. Moolji Sicka & Company replied on 26th July, 1951, and commenced by saying " We agree to all you have said in page one of your letter under reply. " Regarding the guarantee they said they could not agree to six months but would agree to three provided the guarantee was limited to goods found to be defective because of faults in manufacture. They concluded "We have also to pay you Rs. 7,500 as per our ' letter, dated 16th July, 1951," and asked how the Canteen Stores would like the payment to be made. The Canteen Stores replied on 31st July, 1951, and explained what they meant by the " guarantee period ". Bidis deteriorate by keeping, so the idea was to have a system under which they could be returned within six months to prevent their deterioration. They explain that this is in the interests of the 'manufacturer because (1) it will not bring their brands into disrepute, for that would, be the inevitable result if stale bidis which had deteriorated were sold in the canteens and (2) if the period is made too short, then "the goods will not stay in our depots and in the stalls of our canteens and contractors long enough to sell and hence our depots will always be,, anxious to 828 return these stocks. The result will be obvious. Your sales will be, lower. They continue " We therefore consider that the period of six months should be the least before the expiry of which goods may be taken back by you and replaced. . . The period of three months within which you expect us to return your stocks, should we find them not moving, will be too short. " They conclude by saying that they hope Moolji Sicka & Company will agree to the six months. Now it will be seen that all this correspondence related to the proposals about the " Consignment System " which were first mooted on 11th July, 1951. Moolji Sicka & Company complained on 24th April, 1951, that the Canteen Stores were not keeping large enough stocks of their bidis and they asked the Canteen Stores to stop the Direct Supply System and purchase stocks direct. The Canteen Stores were naturally reluctant to keep large stocks on hand because bidis 'deteriorate and become unsaleable in course of time. Therefore they proposed the " pay as we sell " system, that is, they would keep stocks of bidis and pay for whatever they sold. But the problem of unsold stocks deteriorating still remained. Who was to be responsible? The obvious answer was that the manufacturers should take back the unsold stocks before they were too far gone and in their place send fresh consignments for sale on the " pay as we sell " basis. We say "obvious" because the manufacturers could use the stale tobacco by re curing and blending it, or could use it for other purposes provided it was not too far gone. The proposal therefore was that the, Canteen Stores were to keep stocks of Moolji Sicka & Company 's bidis in their depots and canteens, pay for what they sold and return all unsold stocks within six months. Moolji Sicka & Company were then to replace them with fresh stocks which would be paid for when sold. This was agreed to in the main but the point at which they were at issue was the six months. Mooli Sicka & Company proposed three months while the 829 Canteen Stores wanted six months. We think 'the argument used in the letter of 31st July, 1951, that " the result will be obvious. Your sales will be lower " can only have reference to an arrangement of this kind, otherwise no question of the sales being lower could arise. In the case of an outright sale, the sale would be complete when the order was executed, and except for bidis found to be defective due to manufacture Moolji Sicka & Company would have no further concern with them. The sentences the goods may be taken back by you and replaced and " should we find them not moving " can only refer to these proposals about the "Consignment System " In any case, it certainly includes this system. Moolji Sicka & Company 's reply is dated 9th August, 1951. They say "We are in receipt of your letter No. 7B/29/ 17 1299, dated 31st July, 1951, and are pleased to extend the guarantee period from three to six months. We are sure this will now enable you to keep adequate stocks of our bidis. Awaiting your esteemed orders. " This is an acceptance of the interpretation of the " guarantee period " as given by the Canteen Stores in their letter of 31st July, 1951. The words "now" and "adequate" relate to the dispute which started on 24th April, 1951, when Moolji Sicka & Company complained that the Canteen Stores were not keeping adequate.stocks of their bidis in their depots. The ,subsequent correspondence was aimed at finding out ways and means to meet this objection and at the same time satisfy both sides. It all ended by Moolji Sicka & Company accepting the terms set out in the letter of 31st July, 1951. We are accordingly of opinion, that Moolji Sick& & Company accepted the " Consignment System " on 9th August, 1951. That imported a "pay as we sell" arrangement with an obligation to take back stocks unsold within six months and replace them with fresh stocks which would be paid for when sold. in the "transition period " the Direct Supply System was also to continue. That meant that there would be two systems in force for a time in certain depots: the "Consignment 830 System " regarding stocks ordered for the stocking up of the Calcutta, Bombay and Delhi depots of the Canteen Stores and the " Direct Supply System " till such time as the depots were stocked. The third system of " Outright Purchase " was limited for the time being to the Pathankot and Srinagar depots. Both the "Direct Supply" and the "Consignment" systems were abolished together on list November, 1951 (see the Canteen Stores ' letter dated 24th November, 1951). But the obligation to take back unsold stocks within the six months ' period continued to attach to all contracts for consignment to the Calcutta, Bombay and Delhi depots made between 9th August, 1951, and 31st October, 1951. The tabular statement shows that the following contracts for consignment to one or other of these three depots were made during that period. The date of the invoice is the date of the execution of the order and thus of the acceptance of the proposal contained in the order. Date of Invoice Depot Price of goodsd date & despatch supplied payment. 1 10 1951 Bombay. Rs. 5,056 2 0 15 11 1951 13 10 1951 do. 13,536 4, 6 do 18 10 1951 Delhi 1,684 13 919 12 1951 19 10 1951 Calcutta 3,373 9 3 do 18 10 1951 Bombay 4,793 4 924 12 1951 The value of these orders comes to Rs. 28,444 2 3. The obligations under these several contracts continued from 1st April, 1952 to 18th April, 1952. It was argued that assuming that to be the case then there were no longer any contracts for the "supply of goods" in existence but only an obligation arising under the guarantee clause. We are unable to accept such a narrow construction. This term of the contract, whatever the parties may have chosen to call it, was a term in a contract for the supply of goods. When a contract consists of a number of terms and conditions, each condition does not form a separate contract but is an item in the one contract of which it is a part. The consideration for each 831 condition in a case like this is the consideration for the contract taken as a whole. It is not split up into several considerations apportioned between each term separately. But quite apart from that, the obligation, even under this term, was to supply fresh stocks for these three depots in exchange for the stocks which were returned and so even when regarded from that narrow angle it would be a contract for the supply of goods. It is true they are replacements but a contract to replace goods is still one for the supply of the goods which are sent as replacements. But even if all that be disregarded and it be assumed that Moolji Sicka & Company had fully performed their part of the contract by placing the goods on rails before 15th November, 1951, we are of opinion that the contracts were not at an end until the vendors were paid and the contracts were fully discharged. The words of the sections are "if. he has any share or interest in a contract for the supply of goods to. . the appropriate Government. " There can be no doubt that these various transactions were contracts and there can equally be no doubt that they were contracts for the supply of the goods. Whether they were contracts for the supply of goods to the Government is a matter which we shall deal with presently. But we have no doubt that they were contracts for the supply of goods. The question then is, does a contract for the supply of goods terminate when the goods are supplied or does it continue in being till payment is made and the contract is fully discharged by performance on both sides 9 We are of opinion that it continues in being till it is fully discharged by performance on both sides. It was contended, on the strength. of certain observations in some English cases, that the moment a contract is fully executed on one side and all that remains is to receive payment from the other, then the contract terminates and a new relationship of debtor and creditor takes its place. With the utmost respect we are unable to agree. There is always a possibility of the liability being disputed before actual payment is made and the vendor may 832 have to bring an action to establish his claim to payment. The existence of the debt depends on the contract and cannot be established without showing that payment was a term of the contract. It is true the contractor might abandon the contract and sue on quantum meruit but if the other side contested and relied on the terms of the contract, the decision would have to rest on that basis. In any case, as we are not bound by the dicta and authority of those cases, even assuming they go that far, we prefer to hold that a contract continues in being till it is fully discharged by both sides: see the observations of Gibson J. in O 'Carroll vs Hasting8(1). To use the language of O 'Brien L.C.J. in that case at page 599, these contracts have not been "merged, abandoned, rescinded, extinguished or satisfied; and if any demur was made as to payment before payment was actually made, he could have sued upon the contract specially; or if he sued for work done at the request of the defendants the contract would have been. a part of his necessary proofs" We agree with the learned Lord Chief Justice in thinking that "it is far fetched to contend that a man is not concerned in the contract or security by which he can enforce payment. " The same view was taken, by Costello J. in an Indian case in Satyendrakumar Das vs Chairman of the Municipal Commissioners8 of Dacca(2). Counsel for the appellant relied strongly on certain English cases. They were all examined and distinguished in the above decisions. They either turned on special facts or on the words of a statute which are not the same as ours. The leading case appears to be Royse vs Birley(3 ). But the decision turned on the language of the English statute which the learned Judges construed to mean that the contract must be executory on the contractor 's part before the English Act can apply. Tranton vs Astor(4) follows the earlier ruling. The statute with which Darling J. was dealing (1) at 608. (2) I.L.R. from p. 193 onwards. (3) (4) 833 in Cox vs Truscott(1) is nearer the language of our Act. He hesitatingly proceeded on the debtor and creditor basis. We need not go further than this because, as we have said, if these decisions cannot be distinguished, then we must with respect differ. We hold therefore that these contracts which Moolji Sicka & Company had entered into with the Government subsisted on 15th November, 1951, and on 14th February, 1952, and that as Chatturbhuj Jasani, the appellant, was a partner in the firm he also had both a share and an interest in them on the crucial dates. That brings us to article 299 (1) of the Constitution. It states: "All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President . and all such contracts. made in the exercise of that power shall be executed on behalf of the President . by such persons and in such manner as he may direct or authorise." The contention was that as these contracts were not expressed to be made by the President they are void. Cages were cited tons under the Government of India Acts of 1919 and 1935. Certain sections in these Acts were said to be similar to article 299. We do not think that they are, but in any case the rulings ,under section 30 (2) of the Government of India Act, 1915, as amended by the Government of India Act of 1919 disclose a difference of opinion. Thus, Krihsnaji Nilkant vs Secrtary of State(2) ruled that contracts with the Secretary of State must be by a deed executed on behalf of the Secretary of State for India and in his name. They cannot be made by correspondence or orally. Secretary of State vs Bhagwandas(3) and Devi Prasad Sri Krihhna Prasad Ltd. vs Secretary of State(1) held they could be made by correspondence. Secretary of State V. O.T. Sarin & Company(1) took an intermediate vie,* and held that though contracts in the prescribed form could not be enforced by either side, (1) (4) A.I.R. 1941 All. 377. (2) A.I.R. 1937 Bom. 449,451. (5) I.L.R. 11 Lah. (3) A.I.R. 1938 Bom. 108 834 a claim for compensation under section 70 of the Indian Contract Act would lie. Province of Bengal vs section L. Puri(1) took a strict view and held that even letters headed "Government of India" did not comply with, the rule in section 175 (3) of the Government of India Act, 1935. The Federal Court was called upon to construe section 40 (1) of the Ninth Schedule of the Government of India Act, 1935. It held that the directions in it were only directory and not mandatory, and the same view was taken of article 166 (1) of the present Constitution by this court in Dattatreya Moreshwar Pangarkar vs State of Bombay(2). None of these provisions is quite the same as article 299. For example, in article 166, as also in section 40(1) of the Government of India Act of 1935, there is a clause which says that "orders" and "instruments" and "other proceedings" "Made" and "expressed" in the name of the Governor or Governor General in Council and "authenticated" in the manner prescribed shall not be, called in question on the ground that it is not an "order" or "instrument" etc. 'made" or "executed" by the Governor or Governor General in Council. It was held that the provisions had to be read as a whole and when that was done it became evident that the intention of the legislature and the Constitution was to dispense with proof of the due "making" and "execution" when the form prescribed was followed but not to invalidate orders and instruments otherwise valid. Article 299(1) does not contain a similar clause, so we are unable to apply the same reasoning here. In our opinion, this is a type of contract to which section 236(3) of the Indian Contract Act would apply. This view obviates the inconvenience and injustice to innocent persons which the Federal Court felt in J. K. Gas Plant Manufacturing Co., Ltd. vs The King. Emperor (3)and at the same time protects Government. We feel that some reasonable meaning must (1) (2) ; at 632, 633. (3) at 156, 157, 835 be attached to article 299(1). We do not think the provisions were inserted for the sake of mere form. We feel they are there to safeguard Government against unauthorised contracts. If in fact a contract is unauthorised or in excess of authority it is right that Government should be safeguarded. On the other hand, an officer entering into a contract on behalf of Government can always safeguard himself by having recourse to the proper form. In between is a large class of contracts, probably by far the greatest in numbers, which, though authorised, are for one reason or other not in proper form. It is only right that an innocent contracting party should not suffer because of this and if there is no other defect or objection we have no doubt Government will always accept the responsibility. If not, its interests are safeguarded as we think the Constitution intended that they should be. In the present case, there can be no doubt that the Chairman of the Board of Administration acted on behalf of the Union Government and his authority to contract in that capacity was not questioned. There can equally be no doubt that both sides acted in the belief and on the assumption, which was also the fact, that the goods were intended for Government purposes, namely, amenities for the troops. The only flaw is that the contracts were not in proper form and so, because of this purely technical defect, the principal could not have been sued. But that is just the kind of case that section 230(3) of the Indian Contract Act is designed to meet. It would, in our opinion, be disastrous,to hold that the hundreds of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally or through correspondence and that every petty contract must be effect ed by a ponderous legal document couched in a particular form. it may be that Government will not be bound by the contract in that case, but that is a very different thing from saying that the contracts as such are void and of no effect. It only means "that the principal cannot be sued ; but we take it there would 836 be nothing to prevent ratification, especially if that was for the benefit of Government. There is authority for the view that when a Government officer acts in excess of authority Government is bound if it ratifies the excess: see The Collector of Masulipatam vs Cavaly Venkata Narrainapah(1). We accordingly hold that the contracts in question here are not void simply because the Union Government could not have been,sued on them by reason of article 299(1). Now section 7(d) of the Representation of the People Act does not require that the contracts at which it strikes should be enforceable against the Government; all it requires. is that the contracts should be for the supply of goods to the Government. The contracts in question are just that and so are hit by the section. The purpose of the Act is to maintain the purity of the legislatures and to avoid a conflict between duty and interest. It is obvious that the temptation to place interest before duty is just as great when there is likely to be some difficulty in recovering the money from Government (for example, if Government were to choose not to ratify the contracts) as when there is none. In our opinion, the Election Tribunal was right in disqualifying Chatturbhuj Jasani. We now turn to Gangaram Thaware. He stood as a Scheduled Caste candidate and his nomination was rejected on the ground that he did not belong to the Scheduled Caste in question, namely the Mahars. The only question here is whether he ceased to be a Mahar when he joined the Mahanubhava Panth. This gave rise to much controversy and we have been presented with many conflicting opinions. Thus, the Imperial Gazetteer of India, Voluime XXI, page 3012 states that the founder of the sect repudiated the caste system as also a multiplicity of God7f3 and insisted on the monotheistic principle. At the same time it ,says that he taught his disciples to eat with none but (1) 8 M.I.A. 529 at 554. 837 the initiated and to break off all former ties of caste and religion. Russell in Volume IV of his Tribes and Castes of the Central Provinces says that the Manbhaos (Mahanubhau) is a religious sect,or order which has " now" (1911) become a caste. The Central Provinces Ethnographic Survey, Volume IX, says the same thing at page 107 and at page 110 and adds that members of the sect often act as priests or gurus to the Mahars. As against this, the Election Tribunal has quoted a number of opinions which tend the other way. Thus, V. B. Kolte says at page 247 of his Shri Chandradhar Charitra that no serious attempt has been made by them to abolish caste, and Ketkar says at page 76, Volume XVIII of the 1926 edition of his Maharashtriya Dhnyankosh that there are two divisions among the Mahanubhavas, one of Sanyasig who renounce the world and the other a secular one. The latter observe the caste system and follow the rituals of their own caste and carry on social contacts with their caste people and marry among them. Similar views are expressed by Bal Krishna Mohanubhav Shastri. But we are not really concerned 'with their theology. What we have to determine are the social and political consequences of such conversions and that, we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds. Conversion brings many complexities in its train, for it imports a complex composite composed of 'many ingredients. Religious beliefs, spiritual experience and emotion and intellectual conviction mingle with more material considerations such as severance of family and social ties and the casting off or retention of old customs and observances. The exact proportions of the mixture vary from person to person. At one extreme there is bigoted fanaticism bitterly hostile towards the old order and at the other an easy going laxness and tolerance which makes the conversion only nominal. There is no clear out dividing line and it is not a matter which can be viewed from only one angle. 838 Looked at from the secular point of view, there are three factors which have to be considered: (1) the reactions of the old body, (2) the intentions of the individual himself and (3) the rules of the new order. If the old order is tolerant of the new faith and sees no reason to outcaste or ex communicate the convert and the individual himself desires and intends to retain his old social and political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political rights of the old body the views of the new faith hardly matter. The new body is free to ostracise and outcaste the convert from its fold if he does not adhere to its tenets, but it can hardly claim the right to interfere in matters, which concern the political rights of the old body when neither the dld body nor the convert is seeking either legal or political favours from the new as opposed to purely spiritual advantage. On the other hand, if the convert has shown by his conduct and dealings that his break from the old order is so complete and final that he no longer regards himself as a member of the old body and there is no reconversion and readmittance to the old fold, it would be wrong to hold that he can nevertheless claim temporal privileges and political advantages which are special to the old order. In our opinion, broadly speaking, the principles laid down by the Privy Council in the case of a Hindu convert to Christianity apply here: not, of course, the details of the decision but the broad underlying principle. In Abraham vs Abraham(1), their Lordships say: " He " (the convert) " may renounce the old law by which he was bound, as he has renounced his old religion, or, if he thinks fit, he may abide by the old law, notwithstanding he has renounced the old religion. " The only modification here is that it is not only his choice which must be taken into account but also the views of the body whose religious tenets he has (1) 9 M.I.A. 199 at 242, 243, and 244. 839 renounced, because here the right we are considering is the right of the old body, the right conferred on it as a special privilege to send a member of its own fold to Parliament. But with that modification the observations which follow. apply in their broad outline. "The profession of Christianity releases the convert from the trammels of the Hindu law, but it does not of necessity involve any change of the rights or relations of the ' convert in matters with which Christianity has no concern, such as his rights and interests in, and his powers over, property. The convert, though not bound as to such matters, either by the Hindu law or by any other positive law, may by his course of conduct after his conversion have shown by what law he intended to be governed as to these matters. He may have done so either by attaching himself to a class which as to these matters has adopted and acted. upon some particular law, or by having himself observed some family usage or custom; and nothing can surely be more just than that the rights and interests in his property, and his powers over it, should be governed by the law which he has adopted, or the rules which he has observed. " Now what are the facts here ? Whatever the views of the founder of this sect may have been about caste, it is evident that there has been no rigid adherence to them among his followers in later years. They have either changed their views or have not been able to keep a tight enough control over converts who join them and yet choose to retain their old caste customs and ties. We need not determine whether the Mahanubhava tenets encourage a repudiation of caste only as a desirable ideal or make it a fundamental of the faith because it is evident that present day Mahanubhavas admit to their fold persons who elect to retain their old caste customs. That makes it easy for the old caste to regard the converts as one of themselves despite the conversion which for all practical purposes is only ideological and involves no change of status. 840 Now no witness has spoken of any outcasting, neither outcasting in general nor in this special case. No single instance has been produced in which any person who has joined this sect from the Mahar community has ever been outcasted from the Mahars for that reason; and as the sect is said to be over 1000 years old, therehas been time enough for such instances to accumulate. Further, no instance has been produced of a Mahanubhava marrying outside his or her old caste whereas there are instances of Mahanubhavas who have married non Mahanubhavas belonging to their own caste. Nene (P. W. 1), Sadasheo (P. W. 3), Sitaram (P. W. 4) and Haridas (P. W. 5) say that a Mahar 'convert does not lose his caste on conversion. He is admitted to all caste functions and can marry in the community. Of these, Sadasheo (P. W. 3) and Haridas (P. W. 5) are Mahars. There is no evidence to rebut this. The witnesses on the other side take refuge in theory and, when confronted with actual facts, evade the issue by saying that Mahanubhavas who do these things are not real Mahanubhavas. Harendra (R. W. 1) is a Mahanubhava Guru and so ought to know, but he affects an otherworldly indifference to mundane affairs and says that as he does not lead a worldly life he does not know whether converts retain their caste distinctions and whether there are inter dinings and inter marriages in the Mahanubhava fold itself among those who belonged to different castes before conversion. Shankar (R. W. 2) says that a convert loses his caste on conversion but gives no instance of ostracism from the old fold. In any case, his evidence is confined to the sanyasi order among the Mahanubhavas because he says that every person who becomes a convert to this sect must renounce the world and cannot marry. When pinned down in cross exami nation he had to admit that he did know two or three Mahanubhavas who were leading a worldly life but he meets that by saying that they are not real Mahanubhavas. Chudaman (R. W. 3) evades the issue in the same way. He is a Mahanubhava Pujari and so is 841 another person who ought to have special knowledge. Despite that he says he cannot give a single instance of a person belonging to one caste, initiated into the Mahanubhava sect, marrying a person of another caste initiated into the same Panth. When further pressed he said the question did not arise as a man lost his caste on conversion. On this evidence, and after considering the historical material placed before us, we conclude that conversion to this sect imports little beyond an intellectual acceptance of certain ideological tenets and does not alter the convert 's caste status, at any rate,, so far as the householder section of the Panth is concerned. So much for the caste consciousness on both sides. Now considering Gangaram Thaware the individual we find that he was twice married and on both occasions to Mahar girls who were not Mahanubhavas at the time of their respective marriages. His first wife was never converted. His second wife was converted after her marriage. The witnesses say ' he was still regarded as a Mahar after his conversion and always looked upon himself as a Mahar and identified himself with the caste. No one on the other side denies this. As we have shown, they took shelter behind generalities and evaded the issue by saying that in that case he cannot be a real Mahanubhava. If he was not, then he must have continued a Mahar even on their view. The evidence also discloses that Gangaram Thaware led Mahar agitations and processions as a member and leader of the Mahar caste. In 1936 he contested the election for the Provincial Assembly as a Mahar candidate. No one appears to have questioned his competency. And lastly, he declared himself to be a Mahar in the verification to his nomination form in the present election as also in an affidavit filed before the Returning Officer who rejected his nomination. The 'Returning Officer described that as a "cleverly, worded document. " We have read it and find nothing tricky or crooked in it., Therefore, applying the test in Abraham vs Abraham(1), we hold that despite his (1) 9 M.I.A. 199. 109 842 conversion he continued to be a Mahar and so his nomination form was wrongly rejected. That affects the whole election. The other points argued before the Election Tribunal were not pressed before us. We therefore uphold the decision of the Tribunal and dismiss the appeal with costs. Appeal dismissed.

A contract for the supply of goods does not terminate when the goods are supplied, it continues into being till payment is made and the contract is fully discharged by performance on both sides. O 'Carroll vs Hastings ( [1905] 2 I.H. 590) and Satyendrakumar Das vs Chairman of the Municipal Commissioners of Dacca (I.L.R.58 Cal. 180) relied upon. The firm Moolji Sicka and Company of which the candidate was a partner had entered into contracts with the Central 106 818 Government for the supply of goods. The contracts subsisted on ;he crucial dstes, November 15, 1951, and February 14, 1952. November 15, 1951, was the last date for putting in, nominations and February 14, 1952, was the date on which results were declared : Held, that the candidate had both a share and an interest in the contracts for the supply of goods to the appropriate Government on the crucial dates and was thus disqualified for being chosen as a member of Parliament by virtue of the disqualification set out in section 7(d) of the Representation of the People Act (XLIII of 1951). Held further, that the contention that the contracts in question were void because the Union Government could not be sued by reason of article 299(1) of the Constitution as the contracts were not expressed to be made by the President was without force because this was the type of case to which a. 230(3) of the Indian Contract Act would apply. When a Government officer acts in excess of authority Government is bound if it ratified the excess. The Collector of Masulipatam vs Cavaly Venkata Narrainapah (8 M.I.A. 529) reliecl upon. A member of the Mahar caste which is one of the Scheduled Castes continues to be a member of the Mahar caste despite his conversion to the tenets of the Mahanubhava Panth as such conversion imports little beyond @ an intellectual ' acceptance of certain ideological tenets and does not alter the convert 's caste status. Abraham vs Abraham (9 M.I.A. 199) relied upon.

Appeal No. 59 of 1953. Appeal from the Judgment and Order dated the 5th April, 1950, of the High Court of Rajasthan at Jaipur in Case No. 24 of Samvat 2005 (Review modifying the Decree dated the 3rd March, 1949, of the High Court of the former Jaipur State in Civil Second Appeal No. 187 of Samvat 2004 against the Decree 52 dated the 15th April, 1948, of the Court of the District Judge, Jaipur City, in Civil Appeal No. 40 of Samvat 2004 arising out of the Decree dated the 23rd August, 1947, of the Civil Judge, Jaipur City, in Suit No. 66 of Samvat 2002). Dr. Bakshi Tek Chand, (Rajinder Narain, with him) for the appellant. D.M. Bhandari, (K. N. Aggarwala and R. N. Sachthey, with him) for the respondent. April 9. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C. J. This is an appeal from the judgment and decree of the High Court of Judicature of Rajasthan, dated the 5th April, 1950, modifying the decree of the High Court of the former Jaipur State, dated the 3rd March, 1949, on an application for review in a second appeal concerning a suit for possession of property. The property in dispute originally belonged to one Ramchandra who died sonless in the year 1903. He was survived by his mother, Sheokori, his widow, Mst. Badni, and his two daughters,. Bhuri and Laxmi. It is alleged that he made an oral will under which he bequeathed the property in dispute to his daughter, Laxmi. On the 6th September, 1906, Mst. Sheokori and Mst. Badni, purporting to act in accordance with the directions of the oral will, executed and registered a deed of gift of the property in dispute in favour of Mst. Laxmi. The gift deed contains the following recitals: " These houses are made a gift to you according to the will of your father, Ramchandra. . In this way, these houses belonging to us were purchased by your father, Ramchandra, and he in his last days having made a gift of these houses to you, made a will to us that he had made a gift of that house to his daughter, Laxmi, and directed us to get the gift deed registered in her name. He further said that if we or our relations., kinsmen, creditors do raise any dispute with her he would I damangir hoonga catch hold of him by his 53 garments. According to his aforesaid will, we have got this gift deed executed in your favour, while in best of our senses and in discharge of our sacred duty enjoined by Dharma. No other person except you has got any claim over the house. You deal with your house in any way you like. If anybody takes back the land gifted by himself or his ancestors, he will live in hell as along as the sun and moon shines. " The scribe, it seems, did not in appropriate language express the directions of the two widows and his ideas of the legal situation were somewhat confused but there can be no manner of doubt that the two executants were not conferring themselves any title which they had in the property on Laxmi but were merely giving effect to the oral will as executors and were putting the legatee in possession of the bequeathed property in this manner. That the widows had no title themselves is evident from the fact that Mst. Sheokori also joined in executing the gift deed. Admittedly Ramchandra 's estate could not devolve on her. Bhuri, the second daughter, died in the year 1907, while Mst. Badni, the widow., died in the year 1927. Laxmi remained in possession of the property till her death in the year 1928. After her death Balabux, her husband, on the 5th of July, 1930, claiming as heir to her mortgaged the house in dispute to the defendant appellant Nathoo Lal and later on the 5th of October, 1933, he sold it to him and put him into possession of it and since then he is in possession. On the 4th October, 1945, that is one day before the expiry of the period of 12 years from the date of the defendant 's entry into possession of the house, the plaintiff, son of Mst. Bhuri, sister of Mst. Laxmi, claiming as an heir to her estate, filed this suit in forma pauperis for possession of the house. He alleged that he was in possession of the house till the 24th of August, 1933, through his tenant, that after it was vacated by the tenant he locked it and went away to his native village Harmara ; and that on the 27th of September, 1944, he came to know that the house had been taken possession of by the appellant during his absence. It 54 was contended by him that Balabux had no right either to mortgage or sell the house and that Laxmi was not the absolute owner of the property but had only a limited estate in it, and on her death he was entitled to possession of it. On the 28th of August, 1947, the suit was dismissed by the Civil Judge, who held that Mst. Laxmi became the absolute owner of the property, and the plaintiff therefore had no title to claim possession of it after her death, Balabux being her stridhan heir. The learned Judge however held that the suit was within limitation. On appeal, this decision was affirmed by the District Judge. He expressed the opinion that the widow in executing the deed of gift was only acting as an execution of the oral will made by Ramchandra at his deathbed and that Laxmi got under this will an absolute estate in the suit property. The plea of limitation raised by the defendant was negatived on the finding that the plaintiff was in possession of it within twelve years of the suit. Plaintiff preferred a second appeal to the High Court of Jaipur and this time with success. The High Court held that after the death of Laxmi the plaintiff continued in possession of the house till he was dispossessed by the defendant on the 5th of October, 1933, and that he was in possession even during her lifetime. On the main question in the case the High Court held that though the house was bequeathed to Laxmi by Ram chandra under an oral will, there was no proof that it conferred upon her an absolute interest in the property and that in the absence of any evidence indicating that the donor intended to convey an absolute interest to her, the gift being in favour of a female could only confer upon her a limited life estate and on her death revert to the donor 's heirs and the plaintiff being such an heir was entitled to succeed. In the result the appeal was allowed and the plaintiff 's suit was decreed with costs throughout. The defendant applied for a review of this judgment. Meanwhile the Jaipur High Court had become defunct and the review was heard by the Rajasthan High Court 55 as successor to the Jaipur High Court under the High Courts Ordinance and was partially allowed on the 5th of April, 1950, and the decree was accordingly amended and it was provided therein that the plaintiff shall not be entitled to possession of the house except on payment of Rs. 4,000 to the defendant as costs of improvements and repairs. It is against this judgment and decree passed after the coming into force of the Constitution of India that the present appeal has been preferred to this Court by leave of the Rajasthan High Court under article 133(1)(c) of the Constitution. The learned counsel for the respondent raised a preliminary objection as to the maintainability of the appeal. He contended that according to the Code of Civil Procedure of the Jaipur State the decision of the Jaipur High Court had become final as no appeal lay from it and hence this appeal was incompetent. It was argued that the proceedings in the suit decided in 1945 had concluded by the decision of the High Court given in 1949, and the review judgment which modified the decree in regard to improvements, could not entitle the appellant to reopen the decision of the High Court of Jaipur given in 1949. In our opinion, this objection is not well founded. The only operative decree in the suit which finally and conclusively determines the rights of the parties is the decree passed on the 5th of April, 1950, by the Rajasthan High Court and that having been passed after the coming into force of the Constitution of India, the provisions of article 133 are attracted to it and it is appealable to this Court provided the requirements of that article are fulfilled. The Code of Civil Procedure of the Jaipur State could not determine the jurisdiction of this Court and has no relevancy to the maintainability of the appeal. The requirements of article 133 having been fulfilled, this appeal is clearly competent. The learned counsel then contended that the High Court was in error in granting the certificate in this case. We are unable to agree. An inquiry was made into the valuation of the property and it was reported that its value was Rs. 20,000 or that the decision affected 56 property of the value of above Rs. 20,000. A substantial question of law was involved in the case, that is, whether a testamentary disposition by a Hindu in favour of a female ' heir conferred on her only a limited estate in the absence of evidence that he intended to confer on her an absolute interest in the property. In these circumstances the High Court was fully justified in granting the certificate. We ourselves would have been prepared to admit this appeal under our extraordinary powers conferred by article 136(1) of the Constitution, if such a certificate had not been given in the case. For the reasons given above we see no force in either of these two preliminary objections which we overrule. Dr. Bakshi Tek Chand for the appellant contended that the Courts below were in error in holding that the plaintiff 's suit was within limitation. He urged that in order to bring the suit within limitation the plaintiff in paragraph 5 of the plaint alleged that after the death of Laxmi he kept tenants in the house, realised the rent and enjoyed it and/that the last tenant vacated on the 24th August, 1933, and thereafter he went to his native place after locking the house, but that this allegation had not been made good by him, and as there was no evidence that he looked the house, it should be held that plaintiff 's possession discontinued with effect from the 24th August, 1933, and hence his suit brought more than twelve years from that date was not within time. It has been found by the Courts below that the plaintiff was in possession of this house even during the lifetime of Laxmi and continued in possession thereafter. Even if the tenant vacated the house on the 24th August, 1933, and the plaintiff did not lock it, his possession would be presumed to continue till he was dispossessed by some one. The law presumes in favour of continuity of possession. The three Courts below have unanimously held that on the evidence it was established that after the death of Laxmi plaintiff continued in possession of the house and the suit was within limitation. There are no valid grounds for reviewing this finding in the fourth Court and the contention is therefore negatived. 57 Dr. Bakshi Tek Chand next contended that Laxmi acquired an absolute title in the suit property under the will of her father and that the High Court was in error in@holding that unless there were express words indicating that the donor who had absolute interest in the gifted property intended to convey an absolute interest to her, the gift in favour of an heir who would ordinarily inherit a limited interest could not be construed as conferring an absolute interest. The learned counsel for the respondent on the other hand raised two contentions. He urged in the first instance that it seems that the intention of Ramchandra was to make a gift of the suit property in favour of Laxmi but he was unable to perfect the gift by executing a registered deed, being on his deathbed and in that situation the property devolved on his widow by inheritance and it only came to Laxmi under the widow 's gift and under it she could not get a larger interest than what the widow herself possessed, namely, a limited life estate, which terminated on her death. In the alternative, it was said that there was no evidence as to the terms of the oral will and that 'being so, the gift being in favour of a female heir, the presumption in the absence of evidence to the contrary was that the donee got only a limited life interest in the bequeathed property. In our judgment, there is force in the contention of Dr. Tek Chand and none of the contentions raised by the respondent 's 'counsel have any validity. That Ramchandra bequeathed the suit property and did not gift it to his daughter Laxmi is a fact which cannot be questioned at this stage. It was admitted by the plaintiff himself in the witness box. This is what he said : " Ramchandra had made a will in favour of Mst. Laxmi and in that connection my maternal grandmother and maternal great grandmother got the gift deed registered. This very gift deed was got executed by my maternal grandmother and maternal great grandmother and had got it registered. Through this gift deed Mot. Laxmi held possession over it till she was alive. She had kept deponent as her son and so 8 58 she got the rent notes executed in my name." ' What is admitted by a party to be true must be presumed to be true unless the contrary is shown. There is no evidence to the contrary in the case. The gift deed fully supports the testimony of the plaintiff on this point. It definitely states that according to the will, the gift deed was executed in favour of Laxmi and it further recites that Laxmi was entitled to deal with the house in any manner she liked. Those who were directed to execute the oral will made by Ramchandra must be presumed to have carried out his directions in accordance with his wishes. It seems clear that the intention of the testator was to benefit his daughter, Laxmi, and to confer upon her the same title as he himself possessed. She was the sole object of his bounty and on the attendant circumstances of this case it is plain that he intended to confer on her whatever title he himself had. Laxmi therefore became the absolute owner of the property under the terms of the oral will of her father and the plaintiff is no heir to the property which under the law devolved on Laxmi 's husband who had full right to alienate it. We are further of the opinion that the High Court was in error in thinking that it is a settled principle of law that unless there are express terms in the deed of gift to indicate that the donor who had absolute interest intended to convey absolute ownership, a gift in favour of an heir who inherits only a limited interest cannot be construed as conferring an absolute interest. It is true that this was the principle once deduced from the Privy Council decision in Mahomed Shumool V. Shewukram(1) wherein it was held that a bequest to a daughter in law passed a limited estate. The proposition laid down in Mahomed Shumsool 's case was construed by the High Courts in India to mean that a gift of immovable property to a woman could not be deemed to confer upon her an absolute estate of inheritance which she could alienate at her pleasure unless the deed or will gave her in express terms a heritable estate or power of alienation. Later decisions of the Judicial Committee made it clear that if words were used (1) 2 I.A. 7. 59 conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being con ferred by express and additional terms. Shumsool 's case(1) has been examined in recent years in some High Courts and it has been observed that according to the law as understood at present there is no presumption one way or the other and there is no difference between the case of a male and the case of a female, and the fact that the donee is a woman does not make the gift any the less absolute where the words would be sufficient to convey an absolute estate to a male (see Nagammal vs Subbalakshmi Ammal(2). The matter has now been set at rest by the decision of this Court in Ram Gopal vs Nand Lal(3). In this case it was observed as follows: " It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her. The reasoning adopted by Mitter J. of the Calcutta High Court in Mst. Kollani Kuar vs Luchmi Kuar(4), which was approved of and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable. It was held by the Privy Council as early as in the case of Tagore V. Tagire (5) that if an estate were given to a man without express words of inheritance, it would, in the absence of a conflicting context, carry, by Hindu Law, an estate of inheritance. This is the general principle of law which is recognized and embodied in section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a "widow 's estate, ' there is no justification for departing from this principle. There is certainly no such provision in Hindu Law and no text could be supplied in support of the same. " The position, therefore, is that to convey an absolute estate to a Hindu female, no express power (1) 21 A. 7. (4) (2) (1947) I M.L.J. 64. (5) , P.C. (3) ; 60 of alienation need be given; it is enough if words are used of such amplitude as would convey full rights of ownership." The learned Judges of the High Court were therefore clearly wrong in law in holding that the will having been made by the father in favour of his daughter, it should be presumed that he intended to give her a limited life estate. For the reasons given above we allow the appeal, set aside the decree of the High Court decreeing the plaintiff 's suit and restore the decree of the trial Court dismissing the plaintiff 's suit. In the circumstances of this case we will make no order as to costs. Appeal allowed.

It may be taken as well settled that there is no warrant for the proposition of law that when a grant of immoveable property is made to a Hindu female she does not get an absolute or alienable interest in such property unless such power is expressly conferred upon her. The law is that there is no presumption one way or the other and there is no difference between the case of a male and the case of a female and the fact that the donee is a woman does not make the gift any the less absolute where the words would be sufficient to convey an absolute estate to a male. Mohamed Shumsool vs Shewakram (2 I.A. 7), Nagammal vs Subbalakshmi 1(1947) I.M.L.J. 641 and Ram Gopal vs Nand Lal (A.I.R. referred to.

Appeal No. 168 of 1963. Appeal by special Leave from the judgment and decree dated May 1, 1962, of the Gujarat High Court in Appeal from Order No. 46 of 1962. I.M. Nanavati, 1. B. Dadachanji 0. C. Mathur and Ravinder Narain, for the appellant. S.T. Desai, M. M. Shah and I. N. Shroff, for the res pondents. September 5, 1963. A. K. Sarkar, J. delivered a dissenting opinion. The judgment of M. Hidayatullah and J. C. Shah, jj. was delivered by Shah, J. SARKAR J. In my opinion this appeal should succeed. The respondent landlords demised certain premises to 895 Maneklal Mafatlal for a term of five years from March 5, 1950. The tenant continued in possession after the expiry of the term under the protection from eviction given by the Bombay Rents and Lodging House Rates (Control) Act, 1947 which came into force on February 2, 1948. On April 27, 1956, the landlords filed a suit against him for eviction for non payment of rent and obtaineda decree on June 22, 1960. While this suit was pending the tenant sub let a part of the demised premises to the appellant. In execution of the decree the landlords got possession of a small part of the premises which was in the actual occupation of the tenant. As to the rest, the sub tenants in possession including the appellant resisted eviction. The appellant in fact filed a suit against the landlords claiming that under section 14 of the Act it had upon the determination of the interest of the tenant in the premises by the decree against him become their direct tenant of the portion sub let to it and asking for a permanent injunction restraining the landlords from evicting it. In that suit the appellant made an application for an interim injunction but the application was rejected by the trial Court and an appeal therefrom, by the appellate Court. The appellant then moved the High Court of Gujarat in revision and the High Court confirmed the orders of the Courts below holding that after the expiry of the term the tenant had no power of sub letting and the appellant, therefore, was not a sub tenant and it was not entitled to any injunction. The correctness of this judgment of the High Court is challenged in this appeal. The protection under which the tenant in this case stayed on after the expiry of his lease was given by sub section (1) of section 12 of the Act which provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays rent and observes and performs the conditions of the tenancy as provided in the section. The tenant contemplated in sub section (1) of section 12 is plainly a tenant whose had come to an end. The Act at various places uses the word "tenant" as including such a person and also defines the word "tenant" in section 5(11) (b) as including "any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person . " ' 896 Such a person has been called a statutory tenant and I shall also use that description for economy of expression. The landlords contend that though by virtue of section 12(1) of the Act the tenant could not be evicted after the expiry of his lease, yet he had then lost all interest in the demised premises and could not, therefore, sub let the same. How it may be that under the general law of landlord and tenant, a tenant has no right to sub let after the expiry of the lease but we have here a statute which has altered that law in many ways. The power of tenant to sub let cannot therefore be decided by reference to the general law of landlord and tenant but the Act must be examined to see how it affects that power. In my opinion such a power in a statutory tenant is contemplated by the Act and in particular by cl. (e) of sub section (1) of section 13. That section lays down the circumstances in which a landlord notwithstanding the bar in section 12(1), can get a decree in ejectment against the tenant and the part of it to which I wish to refer is in these terms : section 13. (1) "Notwithstanding anything contained in this Act but subject to the provisions of section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied . . . . . . . . . . . . . . . (e)that the tenant has, since the coming into operation of this Act, unlawfully sub let the whole or part of the premises or assigned or transferred in any other manner his interest therein;" This clause plainly contemplates a tenant sub letting and this is not in dispute. But it is said that the tenant here referred to is one whose lease has not expired whom I will for short call a contractual tenant as to whose power to sub let there is no question. The reason given in support of this view is that a statutory tenant having no interest in the premises cannot certainly assign or transfer his interest in the demised premises and, therefore, the word "tenant" in cl. (e) of section 13(1) must in relation to assignment and transfer by a tenant be understood as a contractual tenant. That being so, and as it is unlikely that the word had been used in different meanings in the 897 same clause, it must mean only a contractual tenant in relation to sub letting also. I am unable to accept this contention. The word "tenant" has been given various meanings by the definition clause in the Act. All those meanings must be given to that word wherever it occurs in the Act unless the context otherwise requires. If a statutory tenant cannot transfer or assign his interest as to which I express no opinion cl. (e) of section 13(1) cannot, of course, be contemplating him as doing so. That, however, would not show that definition of "tenant" as a statutory tenant would not be available for deciding what kind of tenants were contemplated by cl. (e) when it said that a tenant unlawfully sub letting would be liable to eviction. In all other ,clauses in section 13(1) the word "tenant" clearly includes both a statutory and a contractual tenant and, therefore, the section contemplates the word "tenant" being used in ,more than one sense. The fact that the clause talks of ,a contractual tenant alone assigning does not provide a context preventing the word "tenant" when it talks of the tenant sub letting, as being understood in the sense of a statutory tenant. Another contention advanced draws its force from the word "sub let". It proceeds on the basis that the word " sub let" can only mean transfer of an estate. It is said that cl. (e) by using the word "sub let" indicated that it did not contemplate a statutory tenant as he could not sub let for he had no interest in the demised premises. No authority has been brought to our attention in support of the contention that letting or sub letting necessarily means transfer of estate or property and I do not think that it is well founded. Decisions of Courts in England to which I will later refer, have held that a statutory tenant who has no estate or property in the demised premises, can sub let. When the clause talks of a statutory tenant sub letting, it may not be contemplating transfer ,of property. The Act undoubtedly creates rights in the tenant in respect of the property. He can maintain an ,action for trespass against any one including the landlord, illegally depriving him of the possession of property. He ,has at least this interest in the property that he can require possession of, it to be delivered to him. It is not as if his 898 right is one only of a personal action in damages. The sub letting contemplated in cl. (e) of section 13(1) may be of ' this statutory right in the property. It would be no answer to this to say that the right impersonal, for the right would not be personal in the strict sense if it can be sublet. In Baker vs Turner(1) Lord Porter approved of the observation of Scrutton L. J. in Keeves vs Dean(2) about a statutory tenant that "Parliament has certainly called him a tenant, and he appears to me to have something more than a personal right against his landlord". Then it was said that under the clause unlawful subletting as also unlawful assignment and transfer were grounds for eviction and if the clause implied a power in the statutory tenant to lawfully sub let it also must equally imply in him a power to, lawfully assign or transfer his interest in the tenancy. It was contended that since it was impossible for a statutory tenant to assign or transfer any interest in the premises as he had none, it would follow that he could not lawfully sub let either. In the first place, I do not think that the word "unlawfully" in the clause applies to "assigned or transferred"; I think as the clause stands it applies only to sub letting. The Act furthermore nowhere states what is an unlawful assignment or transfer of a tenant 's interest. It would undoubtedly have done so if it contemplated unlawful assignment or transfer. It is significant that it specifically talks of lawful and unlawful sub letting in sections 14 and 15. Nor can it be said that the unlawful assignment or transfer contemplated by cl. (e) is one which is against the terms of the contract of tenancy, for it would be unnecessary to provide that an unlawful assignment or transfer by a contractual tenant, that is, an assignment or transfer which is contrary to the terms of the contract of tenancy, would justify an order for possession as in such a case the protection against eviction under section 12(1) would have been lost by non observance of a condition of the tenancy. Therefore, it seems to me that the present contention of the landlords wholly lacks foundation. But assume I am wrong; that cl. (e) contemplates unlawful assignment or transfer of a tenant 's interest in the 1 , 416. 2 , 644. 899 demised premises. A statute can well authorise a statutory tenant to assign or transfer his interest in the demised premises. Indeed section 17 of the English Rent Act of 1957 provides for the transfer of a statutory tenancy. It cannot be said that assignments or transfers of statutory tenancies are inconceivable. It has to be remembered that there is no authority for the proposition that a statutory tenant has no interest in the demised premises and this is at the basis of the theory, which I think is misconceived, that a statutory tenant cannot transfer his tenancy. It is true that he has no estate or property in the demised premises, but that is a different matter. He has none the less an interest, a right in the premises occupied by him, which he may be empowered to transfer. Lastly, I am unable to agree that because a statutory tenant cannot transfer, assuming that to be so, that would show that the word "tenant" in cl. (e) must be understood as referring to a contractual tenant only. I think the word must have the meanings given in the definition including the meaning of a statutory tenant unless the context otherwise indicates. No such indication can be said to be present merely because the word in one part of the clause refers to a contractual tenant only. In Roe vs Russel, (1) the Court of appeal in England held that section 4(1)(h) of the Rent and Mortgage Interest (Restrictions) Act, 1923 which provided that no order for ejectment of a tenant from a dwelling house shall be made unless "(h) the tenant without the consent of the landlord has. . assigned or sub let the whole of the dwelling house or sub let part of the dwelling house, the remainder being already sub let", indicated that a statutory tenant had the power to sub let a part of the premises. In this case it had been held that the statutory tenant had no estate or property as a tenant at all but had a purely personal right to possess, but that did not create any difficulty in the way of the Court holding that he had power to sub let. All subsequent cases in England have accepted that Roe vs Russel(1) has laid down the law correctly. I entirely agree with that view. In Campbell vs Lill,(2), which is an earlier case and which took the same view as Roe vs, Russel,(1) the argument that section 1 (2) 900 4(1)(h) of the English Act of 1923 dealt only with con tractual tenants was expressly rejected on the ground that the word meant both contractual and statutory tenants throughout the section and it would be contrary to all canons of interpretation to give it a restricted meaning only in cl. I wish also to observe that the English provision made an assignment by a tenant a ground for eviction but none the less the word "tenant" was mentioned as referring to a statutory tenant. It was not said that since the tenant contemplated was one who could assign, it must have been that a contractual tenant only was contemplated. These arguments, it will be remembered, were also advanced in this case. Now the similarity between section 13(1)(e) of the Bombay Act and section 4(1)(h) of the English Act is obvious. If the English provision implied that a statutory tenant could sub let part of the premises, there would be no reason for saying that section 13(1) (e) of the Bombay Act did not imply a power in a statutory tenant to sub let lawfully for what was penalised was only an unlawful subletting. There is, therefore, some support for the view that I have taken. The learned judge in the High Court did not question the correctness of the decision in Roe vs Russel(1) but sought to distinguish it from the present case on grounds which I have earlier discussed. I find that case indistinguishable for the purpose of interpreting section 13(1)(e) of the Bombay Act. Indeed if cl. (e) of section 13(1) did not contemplate subletting by a statutory tenant as the landlords contend, the result would be most anomalous. Therefore, in my view, the Act provides a context which indicates that the word " tenant" in that clause had been used as including a statutory tenant. Suppose a statutory tenant does actually sublet and he and his sub tenant are content to carry out their bargain, as happened in the present case, then the landlord would not be able to take advantage of section 13 (1) (e) and evict the tenant if the contention of the landlords in this case is correct, for, ex hypothesi, the sub letting by the tenant was ineffective and, therefore, as good as not made at all. The result would be that a contractual ten,ant sub letting would forfeit the protection under section 12(1) 1[1928] 2 K. B. 117. 901 while a statutory tenant in fact doing so would still be entitled to the protection of the Act. This would put a statutory tenant in a better position than the contractual tenant. An interpretation of the Act which leads to such a result would be most unnatural and it is one that I am unable to accept. It is not contended that such an anomalous result was intended but it is said that even if the word "tenant" in cl. (e) of section 13(1) is understood as referring to a con tractual tenant only, there is no anomaly, for the statutory tenant would by sub letting render himself liable to eviction under other provisions of the Act though not under section 13(1)(e). It was contended that a statutory tenant is entitled to protection only so long as he remains in possession and by sub letting the statutory tenant would be forfeiting his right to protection under section 12(1) of the Act. Therefore it was said that a statutory tenant sub letting would not be in a better position than a contractual tenant doing so. I am unable to accede to the proposition that a statutory tenant sub letting a part of the premises has so parted with the possession thereof as to forfeit his claim to protection under section 12(1). It has to be remembered that in the present case the tenant had not parted with the entirety of the premises bar sub letting. In Roe vs Russel(1) it was said at p. 134, "when an individual is placed, as the statutory tenant undoubtedly was, in the position of having an exclusive personal possession of his premises, he is necessarily in a position in which he can place a third person in actual possession of a part of the premises, while retaining possession of the remainder, and that totally irrespective of whether his own right to exclusive undisturbed possession is purely personal or amounts to something of the nature of an estate or interest in the premises. In Campbell vs Lill(2) it was said, "The policy of the statute is to give protection only to persons in occupation within the meaning of the statute and it aimed at persons who had parted with possession and such parting is deemed to have taken place if the tenant assigns or sub lets the whole of the premises or sub lets part of them, the remainder being already sub let. In the present case (1) 2 902 the tenant sub let a portion only and remained in pos session of the remainder. In these circumstances, I think the tenant is protected. " Both these cases show that under the English Act, a statutory tenant cannot be said to have parted with pos session by sub letting part of the demised premises. It would appear that under the Bombay Act there is even less reason for saying that a statutory tenant sub letting a part of the demised premises has gone out of possession of them, for I find nothing in that Act which justifies the view that in order to be entitled to protection the statutory tenant must himself be in possession of the entire premises. On the other hand, the English Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 by sub section (1) of section 15 provided that "a tenant who by virtue of the provisions of this Act retains possession of any dwelling house. . shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy". Notwithstanding this the view in England has been that parting with possession of a portion of the demised premises by way of sub letting does not deprive a tenant his protection under the Act. I do not find any such express provision in our Act regarding a statutory tenant 's possession of the premises. If the Act contemplated a statutory tenant sub letting and that is the basis on which I am examining the effect of sub letting under section 12(1) it cannot by providing that by doing so, he would be so far out of possession as to cease to be entitled to the protection of the Act. Such an interpretation of the Act would result in one part of the Act contradicting another and would be wholly unacceptable. I find no justification in any case for the view that subletting by a statutory tenant of a part of the demised premises results in a parting with possession of the premises or that such parting deprives him of the protection of the Act. I think that section 13(1)(e) clearly indicates that a statutory tenant has the power to sub let. I now set out section 14 of the Act on which the claim of the appellant is based. "Where the interest of a tenant of any premises is determined for any reason, any sub tenant 903 to whom the premises or any part thereof have been lawfully sub let before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. " It is not in dispute that the sub letting took place before the date mentioned in this section. It was contended that the word "interest" in the section showed that it contemplated only sub letting by a contractual tenant. I am unable to agree for reasons earlier set out. As I have already said, a statutory tenant has an interest in the premises and when the section talks of the interest of a tenant being determined, it obviously means in the case of a statutory tenant, determined by a decree or by such a tenant giving up the protection of the Act. In this case the interest of the tenant was determined by the decree that was passed against him. I may here state that the Ordinance mentioned in the section came into force on May 21, 1959. I, therefore, find that the appellant became a subtenant before the date mentioned in section 14 and the interest of the tenant who sub let to it had been determined. The appellant has however still to prove that "the premises had been lawfully sub let to it. The only provision in the Act which declares a sub letting to be unlawful is section 15. That section is in these terms : S.15. (1) Notwithstanding, anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sub let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein : Provided that the State Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification. (2)Notwithstanding anything contained in any judgment, decree or order of a Court or any contract, 904 the bar against sub letting, assignment or transfer of premises contained in subsection (1) or in any contract shall, in respect of such sub lessees, assignees or transferees as have entered into possession despite the bar before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amend ment) Ordinance, 1959 and as continue in possession at such commencement, have no effect and be deemed never to have had any effect. It is said that the section is confined only to contractual tenancies. The argument is that sub section (1) makes subletting by contractual tenants after the date mentioned unlawful excepting where the contract otherwise provides and that sub section (2) saves from this illegality certain varieties of sub lettings by the tenants. It is however not in dispute that if the section applies to sub lettings by statutory tenants, then the present sub letting to the appellant would be saved by sub section It is said that the words "but subject to any contract to the contrary" in sub section (1) of section 15 show that that section was intended to refer to sub lettings by contractual tenants only. It seems to me that even if those words are applicable only when a contractual tenant sub lets, as to which I have some doubts, that would not lead to the conclusion that the tenant there referred to is only a con tractual tenant. Those words would only be applicable where a covenant permitting sub letting is contained in the lease. Take a case of a contractual tenant where the lease contains no covenant permitting him to sub let. In such a case those words would have no application even though the tenant is a contractual tenant. Therefore where there is no contract about granting of sub leases, the section may still be applicable and in such a case there would be no reason to support the view that it is concerned with a contractual tenant only. The section would have to be interpreted in such a case without reference to the words in question. It would then surely apply to a statutory tenant who, as I have said, can sub let. It cannot therefore be said that section 15 deals only with a contractual tenant. But what happens if section 15 does not apply to a statutory tenant? It was said that that would then show that 905 a statutory tenant cannot at all sub let. If apart from section 15, the proper reading of the Act is, as I have earlier said, that a statutory tenant has the power to sub let, I do not see that this section would provide a ground sufficiently strong to outweigh all the considerations which have led me to that view. The only result then, if section 15 applies to a contractual tenant alone, would be that a sub letting by a tenant would not have been made unlawful by the section. If that is so, then also the appellant 's claim under section 14 would become unchallengable. Whatever view is taken of section 15, it is impossible to say that the section makes the sub letting to the appellant in the present case unlawful. It is unnecessary to go into any question of the Act contemplating a sub letting which was unlawful for rea sons other than those mentioned in it, for it has not been contended that the sub letting in the present case was for any such reason unlawful. The result is that the sub let ting to the appellant must be held to have been lawful. One other matter remains to be dealt with. It was said, and this is not in dispute, that the sub letting to the appellant took place after the landlords had filed their suit against the tenant which resulted in a decree for ejectment to which I have earlier referred. It was con tended that the appellant was, therefore, bound by the decree in view of section 52 of the Transfer of Property Act. On behalf of the appellant it was said that that section was amended so far as Bombay was concerned by Bombay Act 14 of 1939 and the amended section required certain notice to be given before the sub letting could be affected by the principle of lis pendens stated in the section. I do not think it necessary to deal with this contention for in my view, even section 52 as it stands in the Transfer of Property Act without any amendment does not affect the sub letting in this case. The first thing that I wish to point out is that, that section does not make any transfer of property illegal. Therefore, the section does not justify the view that the subletting to the, appellant, assuming it was a transfer of property, as to which doubts may legitimately arise, was. in any way unlawful or invalid. If any authority is needed for this proposition, reference may be made to Veyin 58 2 S C India/64 906 dramuthu Pillai vs Maya Nandan.(1) All that section 52 does is to provide that pending a litigation concerning property, the property cannot be transferred so as to affect the rights of any party thereto under the decree that may be passed in the suit. The only effect then of the section is that the rights of the decree holder under the decree are not to be affected by the transfer. Now the rights of a landlord who gets a decree for possession of property against his tenant are those men tionEd in 0. 21, r. 35 of the Code, namely, to obtain de livery of it "if necessary, by removing any person bound by the decree who refuses to vacate the property". It is true that a sub tenant under the general law of landlord and tenant is a person bound by the decree obtained by the landlord against the tenant for possession, though he was not made a party to the suit. The reason for this is that the sub tenant 's right to remain in possession came to an end with the determination of the tenancy of the tenant : see Yusuf vs lyotish Chandra Banerji(2). Where however a statute like the Act in the present case gives the sub tenant a right to continue in possession even after the determination of the tenancy of the superior tenant, he would not be a person bound by the decree for his tenancy has not come to an end with the tenancy of the superior tenant. A sub tenant to whom the premises were lawfully sub let, would under section 14 of the Act be such a person. That being so, a decree obtained by a landlord against his tenant does not give him a right to evict a sub tenant who is entitled to the benefit of section 14. Section 52 could not be resorted to by the landlords in the present case to evict the appellant. I would for these reasons allow the appeal. SHAH, J. A lease of the ground and the first floors of a building named 'Anand Bhavan ' in the town of Ahmedabad was granted by the trustees of the trust named "Anandji Kalyanji Pedhi" to one Maneklal, for five years commencing from March 5, 1950 at a monthly rental of Rs. 2,000/. A suit instituted by the trustees in the Court of Small Causes (which is the Court competent under (1) Mad. 696. (2) Cal. 907 s.28 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 hereinafter called 'the Act ' to entertain the suit) against Maneklal after the expiration of the period of the lease for a decree in ejectment and for arrears of rent was decreed on June 22, 1960. In execution of the decree the trustees obtained possession of the first floor but were obstructed as to the rest by a private limited company called "Anand Nivas Private Ltd. " and two others who claimed to be sub Iessees from Maneklal and thereby to have acquired rights of tenancy of the ground floor upon the determination of the tenancy of Maneklal. Anand Nivas Private Ltd which will hereinafter be called 'the Company ' filed Suit No. 2814 in the Court of Small Causes at Ahmedabad for a declaration that it was not bound to deliver possession of the premises in its occupation in execution of the decree in the suit filed by the trustees against Maneklal and for an induction restraining the trustees from enforcing the decree. The Company 's application for an injuction restraining the trustees from obtaining possession in enforcement of the decree obtained by them against the tenant was dismissed by the Court of First Instance. In appeal against that order the District Judge, Ahmedabad refused an interim injuction restraining the trustees from executing the decree pending the hearing and disposal of the appeal. The High Court of Gujarat was then moved against that order by a petition invoking its revisional jurisdiction. At the hearing, die petition was, by order of the Court, converted into an appeal from order refusing to grant an injuction. The High Court dismissed the appeal holding that a "statutory tenant" remaining in possession after determination of his contractual tenancy was in law not competent to sublet the premises in whole or in part and a person claiming to be a sub tenant from a statutory tenant could not effectively plead the protection of section 14 of the Act as amended by Ordinance III of 1959 or Bombay Act 49 of 1959. With special leave, the Company has appealed to this Court. The Company sets up its claim to protect its possession on the, plea that it had acquired die , rights of a 908 tenant by virtue of section 14 of the Act. This plea is supported on two grounds : (i)that the contract of tenancy in favour of the tenant expressly authorised him to sublet, and the tenant having lawfully sublet the premises the Company acquired on the determination of the interest of the tenant the rights of a tenant under the landlord; and (ii)in any event, on the determination of the statutory tenancy of the tenant by virtue of Ordinance III of 1959 issued by the Goveronr of Bombay, retrospectively amending section 15 of the Act the Company acquired the rights of a tenant under the landlord. In the view of the High Court clause (i) of the lease restricted "the ordinary rights of the tenant to sublet under section 108(j) of the Transfer of Property Act", and cannot be interpreted as conferring any right on the tenant to sub let, because it "postulates the existence of a right to sublet, and provides for restrictions on the exercise of such right". Whether the covenant in the lease authorised or recognised the power of subletting in the tenant before the period of the lease expired, need not be decided in this appeal. It is common ground that after the expiration of the period of the lease, no extension of or fresh lease was granted to the tenant, and he could set up only such rights as the Act granted or recognised. Sub section (1) of section 12 of the Act provides "A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act. " For the protection of tenants the clause imposes a pro hibition against the landlord against recovery of possession of the premises demised to a tenant so long as he pays or is ready and willing to pay the standard rent and permitted increases and also observes and performs the other conditions of the tenancy consistent with the provisions of the Act. A person remaining in occupation of the premises let to him after the determination of or ex 909 piry of the period of the tenancy is commonly though in law not accurately, called a "statutory tenant. Such a person is not a tenant at all: he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on Ms death only in the manner provided by the statute. The right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sublet by him. But with the determination of the lease, unless the tenant acquires the right of a tenant holding over, by acceptance of rent or by assent to his continuing in possession by the landlord, the terms and conditions of the lease are extinguished, and the rights of such a person remaining in possession are governed by the statute alone. Section 12(1) of the Act merely recognises his right to remain in possession so long as he pays or is ready and willing to pay the standard rent and permitted increases and performs the other conditions of the tenancy, but not the right to enforce the terms and conditions of the original tenancy after it is determined. On a matter of interpretation of section 12(1) the decisions of the King 's Bench Division of the High Court in England, viz. Roe vs Russel(1) and Lewis vs Reeves(2), on which reliance was placed by the appellant are of little assistance. Those cases were decided on the interpretation of the relevant provisions of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920 (10 & 11, Geo. 5 Ch. 17), and particularly of section 15(1). In Roe vs Russel(1) the question whether a statutory tenant of a dwelling house holding upon terms which do not prohibit subletting, may sublet part of the dwelling house, fell to be determined, and the Court held that a right to sublet a part of the premises provided the remainder was not already sublet could be claimed by a (1) (2) 910 statutory tenant relying upon the "terms and conditions" of the original contract of tenancy. A similar view was also taken in Lewis vs Reeves(1). In that case the widow of a statutory tenant remaining in possession, sublet a part of the premises in her occupation. It was held that on the death of the widow the sub tenant became the direct tenant of the landlord, because subletting of a part of the premises by the widow of a statutory tenant who acquired all the rights under section 12(1)(g) of the Rent Act (10 & 11 Geo. 5 Ch.17) was lawful. But these cases were decided on the interpretation of section 15(1) of the Act of 1920, which insofar as it is relevant, provided : "A tenant who by virtue of the provisions of this Act retains possession of any dwelling house to which this Act applies shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy, so far as the same are consistent with the provisions of this Act, and * * * " The terms of section 15(1) of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920, differ materially from sub section (1) of section 12 of Bombay Act 57 of 1947. Whereas a tenant who retains possession, and is protected by virtue of the provisions of the English Rent Act is entitled, so long ashe retains possession, to the benefit of all the terms andconditions of the original contract of tenancy so far asthey are consistent with the provisions of the Act, the Bombay Act merely grants conditional protection to a statutory tenant and does not invest him with the right to enforce the benefit of any of the terms and conditions of the original tenancy. This difference in the phraseology of the two enactments is vital to the matter under discussion, and we are unable to hold assuming that the tenant was entitled to sublet the premises under the terms of the Iease that he could, relying upon section 12(1), exercise the right to sublet granted under the lease after he became a statutory tenant. The first ground on which the claim was founded by the Company must therefore fail. (1) 911 The second ground on which the Company claimed to be a lawful tenant of the trustees cannot also be sustained. In the High Court it was common ground between the parties that the tenant continued to remain in possession after March 5, 1955 of the premises leased to him not because of any renewal or grant of a fresh tenancy, but in virtue of the protection afforded to him by, the Act as a 'statutory tenant '. As a statutory tenant he had no estate or interest capable of being assigned or transferred, and his statutory right to occupy could not in law be sublet, because a lawful subletting postulates a right: to enjoy the property and a right to transfer the same to another. There can be no subletting when there is no right in the premises especially when the statutory tenancy ceases when the tenant parts with possession. The decision of the Calcutta High Court in Krishna Prosad Bose vs Sm. Sarajubala Dassi(1) on which reliance was placed by the Company in support of its plea that a statutory tenant is entitled to sublet the premises in his occupation does riot assist the argument. The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, recognises the right of a statutory tenant to sublet. Section 12(1) of the West Bengal Act provides that notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant, including a tenant whose lease has expired. By the proviso it is enacted that nothing in the sub section shall apply to any suit for a decree for such recovery of possession against a tenant who has sublet the whole or a major portion of the premises for more than seven consecutive months provided that if a tenant who has sublet the major portion of the premises agrees to possess as a tenant the portion of the premises not sublet on payment of rent fixed by the Court, the Court shall pass a decree for ejectment from only a portion of the premises sublet and fix proportionately fair rent for the portion kept in possession of such tenant. By sub section (2) of section 13 it is provided, in so far as it is material, that where any premises or any part thereof have been or has been sublet by a tenant of the first degree, if the tenancy of such tenant (1) A.I.R. 1961 Cal. 912 is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the ground specified in clause (h) of the proviso to sub section (1) of section 12, the sub lessee shall be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord for the tenant whose tenancy has been determined. In Krishna prosad Bose 's case(1) Sinha, J., set out certain principles governing the position of a statutory tenant of which the seventh set out below is material : "Although a statutory tenant has no estate, and although his right is a personal right, he can sublet, provided the right of subletting can be spelt out from the Rent Act in operation, either from its express terms or by necessary implication. The sub tenant will get only such rights as are conferred by the statute" and observed that the right of the statutory tenant to sublet was clearly recognized by section 13(2), and the right of a sub tenant to become a direct tenant under the owner in certain circumstances was expressly provided for. We are not concerned in this case to decide whether the provisions of the Act were correctly interpreted by the Court: 'it may be sufficient to observe in this case that the Court in Krishna Prosad 's case (1) held that the right of a statutory tenant to sublet was recognised by the statute which afforded him protection. But it was urged that by Ordinance III of 1959 a right to sublet premises in the occupation of a statutory tenant was invested retrospectively since the commencement of the parent Act. It is common ground that the tenant purported to sublet a part of the premises in his occupation after the trustees instituted a suit in ejectment against him, and before Ordinance III of 1959 was promulgated. The Company has claimed the right of a subtenant on the second ground relying upon the Ordinance, ,and it would be necessary to consider the material statutory provisions as amended by the Ordinance. Section 5(11) as amended defines a "tenant" as meaning : (1) A.I.R. 1961 Cal. 913 "any person by whom or on whose account rent is payable for any premises and includes (a) such sub tenants and other persons as have derived title under a tenant before the commencement of the Bombay Rents Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959; (a ) any person to whom interest in premises has been transferred under the proviso to sub section (1) of section 15; (b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or Ms predecessor who has derived title before the commencement of the Bombay Rents, Hotel Lodging House Rates Control (Amendment) Ordinance, 1959; (c) any member of the tenant 's family residing with him at the time of his death as may be decided in default of agreement by the Court. " The expression "tenant" in the different clauses is defined to mean a contractual tenant or a statutory tenant or both. In the principal definition the expression "tenant" means only a person who is a contractual tenant because rent is payable by a contractual tenant and not by a statutory tenant. By cl. (a) sub tenants and other persons who have derived title under a tenant before the commencement of the Ordinance III of 1959 would be regarded as tenants. These would be sublessees, transferees or assignees of contractual tenants. Similarly by cl. (a) persons to whom interest in premises has been transferred in virtue of a notification issued by the State Government permitting in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification, would be transferees of contractual tenants. Clause (b) contemplates a tenant holding over and a statutory tenant alike; it takes in a person remaining in occupation with or without the assent of the landlord, when the premises were let to him or to Ms predecessor before the commencement of the Ordinance. Clause (c) includes in the definition the members of the family of a tenant statutory or contractual residing with him at the time of his death, as may 914 be decided in default by agreement by the Court. Having regard to the plurality of its meaning, the sense in which the expression is used in different sections, and even clauses, must be ascertained from the context of the scheme of the Act; the language of the provision and the object intended to be served thereby. In sub section (1) of section 12 which imposes a prohibition against a landlord recovering possession of premises, the expression "tenant" must of necessity mean a statutory tenant and not a contractual tenant, for unless the contractual tenancy is determined, the landlord has no right to recover possession. Section 13(1)(e), in so far as it is material, provides that : "Notwithstanding anything contained in this Act, but subject to the provisions of section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied (e) that the tenant has, since the coming into operation of this Act, unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein;" In this clause the expression "tenant" apparently means a contractual tenant, for it authorises a landlord to recover possession of premises if the tenant has unlawfully assign ed, transferred his interest in the premises or has unlaw fully sublet the premises. A statutory tenant has no inte rest in the premises occupied by him, and he has no estate to assign or transfer. To read the clause as meaning that an assignment or transfer of any premises which attracts liability to eviction would be only in respect of a con tractual tenancy whereas subletting which invites that penalty may be in respect of tenancies contractual and statutory alike, would be to attribute to the Legislature an intention to impute two different meanings to the expression " tenant" in cl. (e) of section 13(1). By cl. (e) the Legislature has recognised the right of a landlord to re cover possession if the tenant has without being so autho rised by contract, sublet in whole or in part the premises, or assigned or transferred in any other manner his interest therein. The adverb "unlawfully" qualifies all the three verbs sublet, assigned and transferred. That is clear from 915 the terms of section 15(1) which prohibits "subject to any con tract to the contrary" subletting of premises or assignment or transfer of interest therein. Section 15(1) provides : "Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sub let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein : Provided that the State Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification." By cl. (1) of section 15 all transfers and assignments of interest in the premises, and subletting of premises, by tenants are, subject to any contract to the contrary, made unlawful. The clause however saves contracts to the contrary and to be effective can operate only in favour of contractual tenants. A statutory tenant having no interest in the property, it was plainly unnecessary to prohibit transfer of what was ineffective. Nor can there be letting of the premises by a statutory tenant, for letting postulates a transfer of the right to enjoy property made for a certain time, express or implied, in consideration of price paid or promised and a statutory tenant has merely a personal right to resist eviction. Section 15(1) therefore applies only to contractual tenants. The proviso to the clause also furnishes an indication to that effect for the exemption which the Provincial Government may grant can only be in respect of leases or a class of lease. Sub section(2) is in terms an exception to sub s.(1). It provides that : "Notwithstanding anything contained in any judgment, decree or order of a Court or any contract. the bar against subletting, assignment or transfer of premises contained in subsection (1) or in any contract shall, in respect of such sub lessees , assignees or transferees as have entered into possession despite the bar before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordi nance, 1959 and as continue in possession at such 916 commencement, have no effect and be deemed never to have had any effect. " The exception clause could manifestly not apply to statutory tenancies when the principal clause applied only to contractual tenancies. The effect of the clause is to vali date assignments, transfers and sub tenancies granted by contractual tenants, despite the prohibition contained in sub section (1) or even in the contract of tenancy, and this validation is effective, notwithstanding any judgment, decree or order of a Court. The sub section is plainly retrospective, and protects sub tenants of contractual tenants and removes the bar against sub letting by sub section (1) as well as by contract, provided that the transferee is in possession at the commencement of the Ordinance. The argument that by restricting the operation of section 13(1)(e) to contractual tenants subletting by statutory tenants would be protected, is without force, Sections 12 and 13(1) have to be read together. Clause (e) of section 13(1) entitles a landlord to obtain possession, where a contractual tenant has during the subsistence of the tenancy sublet the premises or assigned or transferred his interest therein. Where a statutory tenant has purported to sublet the premises, or has purported to assign or transfer his interest therein, and in pursuance of such a transaction parted with possession, he would forthwith forfeit the protection which the statute accords to him by section 12(1). In the light of this legal position the claim of the Company founded on section 14 may be considered. The section enacts : "Where the interest of a tenant of any premises is determined for any reason, any sub tenant to whom the premises or any part thereof have been lawfully sublet before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. " There is abundant indication in the section that it applies to contractual tenancies alone. In the first instance it speaks of the interest of the tenant and determination of 917 that interest. It then invests a sub tenant to whom the premises have been lawfully sublet before the date of the Ordinance with the rights of a tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. The subletting to be lawful must be permitted by contract, or validated by sub section (2) of section 15. The object of section 14 is to protect sub tenants. By that section forfeiture of the rights of the tenant in any of the contingencies set out in section 13 does not in all cases destroy the protection to the sub tenants. The protection which a sub tenant is entitled to claim against his own landlord (that is the head tenant) becomes on determination of the head tenancy available to him against the head landlord, but the condition on which such a claim may be sustained is that there is a lawful subletting. A statutory tenant is, as we have already observed, a person who on determination of his contractual right, is permitted to remain in occupation so long as he observes and performs the conditions of the tenancy and pays the standard rent and permitted increases. His personal right of occupation is incapable of being transferred or assigned, and he having no interest in the property there is no estate on which subletting may operate. If it be assumed that a statutory tenant has the right of subletting, some very surprising consequences may ensue. A statutory tenant by parting with possession of the premises would forfeit all rights in the premises occupied by him, but he would still, if section 14 is construed as suggested by the Company, be able to create an interest in the person inducted in the premises not derivatively but independently, for the statutory tenant had no interest in the premises and the protection granted by the statute is by the very act of transfer of possession extinguished. Again even though the sub tenant of a statutory tenant may not be protected, because the bar against such subletting is not effectively removed by section 15(2), he would still be entitled to claim the rights of a tenant under section 14 on determination of the tenancy of the head tenant. Having regard to these considerations there can be little doubt that a sublessee from a statutory tenant under the Act acquires no right of a tenant in the premises occupied by him. 918 Even under the Increase of Rent and Mortgage Interest (Restriction) Act, 1920, protection was accorded to the sub tenant of a part of the premises occupied by a statutory tenant : when the statutory tenant parted with possession of the entirety of the premises occupied by him either by one subletting or more or by subletting of part and surrendered of the rest of the premises, the persons claiming a right of occupation derivatively from the statutory tenant had no protection : Solomon vs Orwell(1). In that case a statutory tenant of a dwelling house bad sublet a part of the house, vacated the premises in her occupation by removing herself therefrom. The landlord then filed a suit against the sub tenant who had remained in possession of a part sublet to her. The subtenant submitted that after the surrender of the statutory tenancy, she was entitled to the same rights against the landlord as the statutory tenant had and therefore her tenancy could not be terminated by merely giving a notice to quit. This contention was rejected by the Court holding that "a statutory tenant had no interest capable of existing in law as an estate, but merely a statutory right of occupation which could not be the subject of surrender at common law, and, therefore, when the tenant vacated the premises the sub tenant 's right of occupation automatically came to an end. " We therefore hold that before the date of the institution of the suit, Manekal as a statutory tenant had no right to sublet the premises and the Company acquired no right of a tenant on the determination of the tenant 's right by virtue of section 14 of the Act. One more argument remains to be considered. It was urged on the assumption that a statutory tenant has an interest in the property occupied by him, and that by purporting to sublet he transferred that interest that the doctrine of 'ut lite pendente nihil innovetur ' enunciated in section 52 of the Transfer of Property Act did not operate against the Company and the Company was not bound by the decree obtained against the tenant. Reliance in support of that plea was placed upon the Transfer of Property Act and the Indian Registration (Bombay Amendment) Act, XIV of 1939. By this Act the rule of 'Lis Pendens ' applies only when a notice of the pendency 919 of the suit in which any right to immoveable property is directly and specifically in question, is registered under section 18 of the Registration Act. The Act is some what clum sily worded : it applies not to proceedings in Court but to notices in respect of suits or proceedings. But the reason for the method of drafting adopted is not far to seek. Condition of registration of notice relating to the suit is only to apply where the suit is in respect of property situate in the area to which the Act is extended. A suit relating to immoveable property may, in certain cir cumstances, lie in a Court other than the Court within the territorial jurisdiction whereof it is situate (e.g. under cl. 12 of the Letters Patent and section 17 Code of Civil Proce dure) and it appears that the Legislature intended to make the Act applicable only to transfers of title to immoveables only in areas where the litigants were sufficiently sophisticated to understand the importance of registration. As Bombay Act XIV of 1939, it intended to apply to the situs of immoveable property and not the Court proceeding, application of the rule of 'Lis Pendens ' is, in respect of proceedings relating to immoveable properties situate in certain areas, made conditional upon the registration of the notice of the pendency of the suit. But this Act did not apply to the suit filed by the trustees. The Act by section 2 applies only to notices in res pect of suits or proceedings which relate to immoveable property situate wholly or partly in Greater Bombay. By the proviso to section 2 it may be extended by the Provincial Government by notification to notices relating to immoveable properties situate wholly or partly in such other areas as may be specified. The suit was filed by the trustees in the Court of Small Causes at Ahmedabad and our attention has not been invited to any notification issued by the appropriate Provincial Government extending the Act to notices relating to immovable properties in areas outside Greater Bombay. Whereas the rule of 'Lis Pendens ' under the Transfer of Property Act aplies to all suits and proceedings which are not collusive in which the right to immoveable property is directly and specifically in question, by virtue of the amended Act the rule applies in proceedings relating to immoveable property in the areas notified, only if a notice of suit is registered, and from the date of regis 920 tration. The section in terms applies only to notices in respect of suits or proceedings which relate to immoveable property in the Greater Bombay Area it does not apply to any suits in which property in Greater Bombay is not the subject matter in dispute. The Transfer of Property (Bombay Provision for Uniformity and Amendment) Act, 57 of 1959, does not also assist the Company. By that Act, amongst other things, uniformity in the provisions of the Transfer of Property Act as amended in its application to the State of Bombay as it existed after the enactment of the , was sought to be achieved. Section 3 of the Act enacted that the provisions of Bombay Act XIV of 1939 which amended the Transfer of Property Act in its application to the pre reorganized State of Bombay, were extended to and shall apply to that part of the State to which they did not apply immediately before the commencement of that Act. Enactment of this Act was necessitated because of section 119 of the States Reorganization Act, 1956, which continued, notwithstanding the formation of the new States, the territorial extent of the laws previously in operation. It was found expedient to secure uniformity of the laws in the State, and therefore it was enacted by the State Legislature that one of the condi tions of the applicability of the rule of 'Lis Pendens ' was that notice of a suit or proceeding in which any right to immoveable property within the area notified under section 2 of Act XIV of 1939, is directly and specifically in question, is registered under section 18 of the Registration Act. The decree in the suit filed by the trustees against Maneklal was therefore enforceable against the Company. The appeal fails and is dismissed with costs. ORDER BY COURT The appeal is dismissed with costs. On the Appellant 's undertaking to vacate and deliver possession of the property within one month from today, execution of the decree obtained by the Respondent in Suit No. 707 of 1956 against Maneklal Mafatlal, is stayed for one month. September 5, 1963.

The respondents granted to one Maneklat for five years a lease of the ground and the first floor of a building named Anand Bhawan in the town of Ahmedabad. After the expiration of the period of the lease, a suit was instituted by the respondents against Maneklal for a decree in ejectment and the realisation of arrears of rent. The suit was decreed. However, Maneklal sublet a part of the premises in his occupation to the appellant after the institution of the suit against him but before the promulgation of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959. In execution of the decree, the respondents obtained possession of the first floor but were obstructed as to the rest by the appellant and two others who claimed to be sub lessees from Maneklal and thereby to have acquired rights of tenancy of the ground floor upon determination of the tenancy of Maneklal. The appellant filed a suit for a declaration that it was not bound to deliver possession of the premises in its occupation in execution of the decree passed against Maneklal and for an injunction restraining the respondents form enforcing the decree. The trial Court refused to grant the interim injunction against the respondents. The lower appellate court also refused to issue the interim injunction. The High Court dismissed the appeal of the appellant on the ground that a statutory tenant re 893 maining in possession after determination of its contractual tenancy was in law not competent to sublet the premises in whole or in part and a person claiming to be a sub tenant from a statutory tenant could not effectively plead the protection of section 14 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as amended by the Ordinance of 1959. The appellant came to this Court by Special Leave. Held (per Hidayatullah and Shah, JJ. Sarkar, J. dissenting) (i) Maneklal was a statutory tenant and as such had no right to sublet the premises and the appellant acquired no right of a tenant on the determination of the right of Maneklal by virtue of section 14 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as amended in 1959. (ii)The appellant was bound by the decree obtained by the respondents against Maneklal and it could not take advantage of the Transfer of Property Act and the Indian Registration (Bombay Amendment) Act, 1939. By section 15(1), all transfers and assignments of interests in the premises and sub letting of premises by tenants are, subject to any contract to the contrary, made unlawful. This provision applies only to contractual tenants and not to statutory tenants who have no interest in the property. A statutory tenant cannot sublet the premises because subletting involves a transfer of the right to enjoy property for a certain period in consideration of price paid or promised and a statutory tenant has merely a personal right to resist eviction. Section 15(2) is in the nature of an exception to section 15(1). It applies to contractual tenancies. It protects subtenants of contractual tenants and removes the bar against subletting imposed by section 15(1) as well as by contract, provided the transferee is in possession of the premises at the commencement of the Ordinance. A statutory tenant is a person who remains in occupation of the premises let to him after the determination of or the expiration of the period of the tenancy. He has no estate or interest in the premises occupied by him. He merely enjoys the protection of the law in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal. It is not capable of being transferred or assigned and devolves on his death only in the manner provided in the Act. On the other hand, the right of a contractual tenant is an estate or interest in the premises and in the absence of a contract to the contrary, is transferable and the premises may be sub let by him. Roe vs Russel, , Lewis vs Reeves, , Krishna Prasad Bose vs Sm. Sarajubala Dassi, A.I.R. 1961 cal. 505 and Solomon vs Orwell, [1954] 1 All E. R. 874, referred to. 894 Per Sarkar, J. (1) The word 'tenant ' in section 13(1)(c) of the Bombay, Rents, Hotel and Lodging House Rates Conrtol Act, 1947 includes not only contractual tenants but also statutory tenants and a statutory tenant has the power to sublet. There is no justification for the view that sub letting by a statutory tenant of a part of the demised premises results in a parting with possession of the premises or that such parting deprives him of the protection of the Act. Section 13(1)(e) of the Bombay Act implies that a statutory tenant can sublet a part of the premises lawfully. Section 15 of the Bombay Act deals not only with contractual tenants but also with statutory tenants. The result is that the sub letting by Maneklal of the premises must be held to have been lawful. (ii)The appellant was not bound by the decree obtained by the respondent against Maneklal. It is true that a sub tenant under the general law of landlord and tenant is bound by the decree obtained by the landlord against the tenant for possession, though he was not made a party to the suit, but where a statue like the Bombay Act gives sub tenant a right to continue in possession even after determination of the tenancy of the statutory tenant, the sub tenant is not bound by the decree and his tenancy does not come to an end with the tenancy of the superior tenant. A decree obtained by a landlord against his tenant does not give him a right to evict a subtenant like the appellant who is entitled to the benefits of section 14 of the Act. Section 52 of the Transfer of Property Act cannot be resorted to by the respondents in the present case to evict the appellant. Baker vs Turner, , Keeves vs Dean, , Roe vs Russel, , Campbell vs Lill, , Vevindramuthu Pillai vs Maya Nandan, (1920) 1. L.R.43 Mad. 696 and Yusuf vs joytish Chandra Banerji, (1932) 1. L. R. Cal. 739, referred to.

ivil Appeals Nos. 785 of 1971 and 1781 of 1975. Appeal by Special Leave from the judgment and orders dated the 2nd September, 1970 and 25th March, 1974 of the Madhya Pradesh High Court in Misc. Petition Nos. 3/68 and 390/72 respectively. V. M. Tarkunde and K. J. John of M/s. J. B. Dadachanji & Co. for the appellant (In CA 785/71) Ram Panjwani, Dy. Gen. (M.P.) with H. section Parihar for respondent No. 1 (In CA 785/71 & appellant in CA. 1781/75). section P. Nayar for respondent No. 2 (In CA. 785/71) G. L. Sanghi, A. K. Sanghi, C. K. Ratnaparkhi and A. G. Ratnaparkhi for respondent No. 3 (in CA 785/71) M/s. Balakrishnan and Ghatate, for respondents in CA 1781/75. The Judgment of the Court was delivered by UNTWALIA, J. These two appeals by special leave have been heard together as they originate from a common dispute between the parties. They are being disposed off by a common judgment and order. To provide for the regulation of mines and the development of minerals under the control of the Union of India The , Central Act 67 of 1957 hereinafter referred to as the Act, was passed. In section 3 of the Act clause (a) says: "minerals" includes all minerals except mineral oils. " Clause (e) provides: "minor minerals" means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declared to be a minor mineral," For the sake of convenience and to distinguish minor minerals from minerals, the minerals are generally called major minerals and will be described as such hereinafter in this judgment. Provisions of sections 4 to 13 are applicable to the grant of any prospecting licence or a mining lease for a major mineral. In exercise of the power under section 13, the Central Government made the Mineral Concession Rules, 1960 hereinafter called the Central Rules. The State Government was authorised by section 15 of the Act to make Rules for regulating the grant of prospecting licences (now quarry leases) and mining leases in respect of minor minerals. The Government of Madhya Pradesh in exercise of the said power made the Madhya Pradesh Minor Mineral Rules, 1961 hereinafter called the State Rules. In clause (iii) of Rule 2 'quarry lease ' was stated to mean a mining lease for minor minerals. 879 Limestone is found in abundance in the State of Madhya Pradesh. The Central Government issued a notification dated the 1st June, 1958 in exercise of the powers conferred on them by clause (e) of section 3 of the Act declaring "limestone used for lime burning" as a minor mineral. By a subsequent notification dated the 20th September, 1961 the description of the limestone as a minor mineral was changed and only "limestone used in kilns for manufacture of lime used as building material" was declared as a minor mineral. The power to grant a quarry lease for limestone as a minor mineral or a mining lease for limestone as a major mineral rested in the State Government the former under the State Rules and the latter under the Central Rules. Applicants had to apply to the State Government in the respective forms prescribed in the two Rules. Gorelal Dubey the appellant in Civil Appeal No 785 of 1971 made and application on May 7, 1965 to the State Government for a quarry lease for "limestone for burning purpose" for a term of 10 years mentioning in paragraph 3 of the application "minor minerals" against the 6th column "Minor minerals or minerals which the applicant intends to mine. " The land in respect of which the application was made by the appellant measured 8.36 acres and is situated in village Bistara, District Jabalpur. The firm, Ram Chander Badri Prasad Gaur, respondent No. 3 filed an applications before the State Government on June 2, 1965 under the Central Rules in respect of the same area asking the Goverment to grant a mining lease to it for mining limestone as a major mineral By their order dated November 10 1965 a quarry lease was granted by the State Government to the appellant and a Lease Deed was executed on November 10, 1965 including special clause 18A therein. Respondent No. 3 filed an application in revision before the Central Government. They allowed the revision by their order dated December 14, 1967 holding therein that in substance the application for a lease filed by the appellant was an application for major mineral and lease granted was also not for minor mineral, hence the grant of the lease to the appellant was not competent. The Central Government, therefore, directed the State Government to consider the application of respondent No. 3 for grant of mining lease for limestone over an area of 8.36 acres in village Bistara. The appellant filed a writ petition (M.P. No. 3/1968) in the Madhya Pradesh High Court to challenge the order of the Central Government. The High Court dismissed the writ application by order dated September 2, 1970 affirming the view of the Central Government that in substance and in effect the application for and grant of lease to the appellant by the State Government was for a major mineral and not a minor mineral. Since the other two points urged before the High Court were not pressed in argument before us, we need not make any reference to them. The appellant came to this Court against the order of the High Court. Special leave to appeal was granted but stay was refused. The result was that the appellant 's lease could remain in operation for a period of about 5 years and for the last 5 years, respondent No. 3 who was granted a mining lease pursuant 880 to the order of the Central Government has been carrying on its operation of mining limestone as a major mineral. During the pendency of the lease in favour of the appellant, rate of royalty was enhanced by the State Government in exercise of their power under the State Rules. Demands of more royalty were made from the appellant by the State Government. He filed a writ petition (MP No. 328/1968) in the High Court on July 23, 1968 to challenge the demand of the enhanced royalty. After the decision dated September 2, 1970 of the High Court in M.P. 3 of 1968 the appellant amended his M.P. 328/1968 by introducing paras 20A and 20B and a prayer (b)(i) in the writ application to say that he was liable to pay, in view of the decision of the High Court, royalty on the limestone quarried by him at a rate which were chargeable on limestone as a major mineral. On certain grounds, which are not necessary to be detailed here, the High Court allowed M.P. 328/1968 by its judgment and order dated December 14, 1970 and remanded the matter of quantification of the amount royalty due from appellant to the authorities concerned. After remand the authorities determined the amount of royalty due from the appellant at Rs. 16,722/ and demanded the same from him. The appellant filed a writ petition (MP 390) 72) in the High Court to attack the demand of Rs. 16,722/ from him and contended that if royalty was charged from him on the basis of limestone as a major mineral then he had paid Rs. 36,000 and odd more. The High Court by its judgment and order dated March 25, 1974 allowed M.P. 390/1972 and quashed the demand of Rs. 16,722 made by the State Government from the appellant. The State of Madhya Pradesh filed an application for special leave to appeal from the said decision of the High Court. During the course of hearing of Gorelal Dubey 's appeal, special leave was granted by us and thereupon the appeal was registered and numbered as CA 1781/75. Mr. Tarkunde appearing for the appellant in CA 785/71 submitted that in view of the decision of this Court in Smt. Rukmani Bai Gupta vs The State Government of Madhya Pradesh, Bhopal and others the decision of the Central Government as also of the High Court to the effect that the appellant application for and grant of lease to him was in substance a lease for a major mineral is erroneous. He submitted that the order should be quashed and the State Government should be directed to grant a fresh lease to the appellant for another period of 10 years or the balance of the said period as the case may be. Mr. Sanghi appearing for respondent No. 3 endeavoured to point out that the decision of this Court in Rukmani Bai 's case (supra) was distinguishable and the decision of the Central Government and the High Court is correct. He further pointed out that the appellant had himself taken categorical stand in MP 328/1968 and MP 390/1972 that he had quarried limestone as a major mineral, disposed it of as such and was liable to pay royalty only on that basis. Counsel further submitted that there was no renewal clause in the appellant 's lease and the period of 10 years having expired now 881 the appellant was entitled to no relief in this Court. Mr. Ram Panjwani, appearing for the State of Madhya Pradesh supported the appellant on the question of the nature of his lease as being one for a minor mineral and pressed the Govermnent 's demand of Rs. 16,722 in C. A. 1781/75. It appears even after the issuance of the notification dated September 20, 1961 by the Central Government making a change in the description of the limestone as a miner mineral confusion persisted amongst the applicants for quarry lease of limestone as also the governmental authorities. They did not clearly appreciate the distinction between the new description of limestone as a minor mineral given in 1961 notification and the one which had been mentioned in the 1958 notification. In Rukmani Bai 's case the appellant had stated in column 6 of the application "limestone for burning as a minor mineral" and the lease which was granted described it as "Iimestolle for burning". Taking into consideration the totality of the facts it was held by this Court that the application and the grant of the lease was for limestone as a minor mineral. The facts of the instant case are almost identical, the only difference being that in column 6 of the application the present appellant had merely stated 'minor minerals '. But reading the said expression with the expression "limestone for burning purpose" mentioned in para 1 the same result follows. A contrary view expressed by the Central Government and the High Court does not hold good. We, therefore, hold that the application of the appellant was for a minor rnineral and the lease granted to him was for the same. After the adverse decision of the High Court, he was ill advised to take the stand that he was liable to pay royalty on the amount of limestone quarried by him only as a major mineral. We were a bit surprised to know that the amount of royalty which is chargeable on limestone as a major mineral is lower than the one chargeable upon it as a minor mineral. Without further light it seems to us curious. In paragraph 8 at page 996 it was pointed out in Rukmani Bai 's case by this Court with reference to the two notifications issued by the Central Government in the years 1958 and 1961: "The field of minor mineral, in so far as it concerned limestone, was narrowed down. Formerly limestone used for burning for manufacture of lime, whatever may be the uses to which such lime may be put, whether as building material or for other purposes, was within the definition of 'minor mineral ', but after the amendment, it was only lime stone used for burning in kilns for manufacture of lime used as building material that was covered by the definition of minor mineral. When limestone is used for burning for manufactories of lime for industrial or sophisticated purposes otherwise than as building material, it would have to be of superior quality and hence after the amendment, was classified as major mineral, leaving only limestone used for burning in kilns for manufacture of lime used as building 882 material to be regarded as minor mineral. But in both cases, whether under the original notification or the amended notification, limestone was contemplated to be used for burning for manufacture of lime. The only difference was that in the former, burning could be by any means or process and lime manufactured could be for any purpose in cluding building material, while in the latter, burning could be only in the kilns and for manufacture of lime used only as building material and for no other purpose. " It was admitted at the Bar that ordinarily and generally only limestone of inferior grade is used as burning in kilns for manufacture of lime used as building material and limestone of superior grade is used either as such for industrial purposes or a high quality lime produced from it is used for purposes other than building material including industrial or sophisticated purposes. For the purpose of some clarification we may add a few words to point out the distinction between the two notifications. Limestone used for lime burning was a minor mineral under 1958 notification irrespective of the process of burning or the quality of the lime it produced. After the 1961 notification only that type of limestone would be a minor mineral which is capable of being used for burning materials for producing that quality of lime which can ordinarily and generally be used as a building material. The leasee 's responsibility ceases when the limestone quarried by him is used for burning in kilns producing the building material quality of lime. It would be beyond his control to see that the lime so produced was actually used as a building material. But then by and large the question of grant of a lease for quarrying or mining the limestone will have to be decided by the State Government on the basis of the quality of the limestone in a particular area. Mr. Sanghji endeavioured to place materials before us to show that in the area in question was to be found limestone of high grade and quality. He, therefore, submitted that the State Government should not be permitted to waste the national wealth of high grade limestone by granting a quarry lease as a minor mineral merely for the purpose of getting more royalty on it. We see force in this argument but it is not possible for us to decide the contentious question as to whether the limestone found in the area was such that could be used as a minor mineral or was fit to be used as a major mineral. If a major portion in the area is such that can be used as a minor mineral. then a lease in accordance with the State Rules will have to be granted and a special clause like clause 18A may be provided therein if per chance some quality of limestone quarried in the demised area is found to be of high grade. Similarly if the major portion is found to be of high grade limestone, then a mining lease for mining lime stone as a major mineral in accordance with the Central Rules will have to be granted. A special clause may be incorporated in such a lease also. In either event the lease will be liable to be cancelled if the lessee commits any breach of the terms of the lease including the one as to the purpose of using the limestone as a major or a minor mineral. 883 Following Rukmini Bai 's case we have held that the application filed by the appellant and the lease granted to him was for quarrying limestone as a minor mineral. But that does not entitle him to get the relief as he wants from this Court. A peculiar feature of this case, and which may occur in respect of some other area is that there, were two applicants one the appellant was wanted the lease of limestone as a minor mineral and the other respondent No. 3 who wanted it as a major mineral. In such a situation it was not open to the State Government to merely ignore the application of respondent No. 3 and grant lease to the appellant. Nor was it appropriate for the Central Government on the view which has been found to be erroneous by us to direct the State Government to consider the application of respondent No. 3 alone. The proper course in such a situation is to direct the State Government to consider both the applications, determine the question as to whether the quality of the limestone contained in the area in question is such that a lease to quarry it as a minor mineral should be granted or is such that a lease for mining it as a major mineral should be granted and then it should proceed to grant the lease. The proper course which ought to have been followed has neither been followed nor has been directed to be followed. For the reasons stated above, we allow C.A. 785/71, quash the order of the High Court as also of the Central Government. The leaser granted to respondent No. 3 pursuant to the said order shall cease to have effect. The State Government is directed to consider both the applications for grant of lease and dispose of the matter afresh in the light of this judgment. It will be open to the State Government to grant a lease for such period as it deems fit and proper to determine or for the balance of the period of the lease of the party to whom it may be granted. For the past period the appellant will be liable to pay royalty on the amount of limestone quarried by him during the subsistence of his lease on the basis of the royalty payable on a minor mineral and respondent No. 3, similarly, will be liable to pay royalty on the amount of limestone extracted by it during the period of its lease on the basis of the rates chargeable on a major mineral. Learned counsel for Gorelal Dubey during the course of argument had offered to withdraw his writ petitions M.P. 328/68 and M.P. 390/1972 and to pay the sum of Rs. 16,722, if it be found that the lease granted to him was a lease for a minor mineral. In view of our finding recorded above, we allow CA 1781/75, set aside the orders of the High Court made in the two writ petitions and allow them to be withdrawn. We shall make no order as to costs in any of the matters. S.R. Appeals allowed.

In respect of an area of 8.36 acres of land containing limestone in the village Bistara, Jabalpur District, there were two applications before the State Government (Respondent in C.A. 785/71 & Appellant in C.A. 1781/75) empowered to grant prospecting licence or a mining lease for a major mineral under the Mineral Concessions Rules, 1960 or a "quarry lease" under the Madhya Pradesh Mineral Rules, 1961, for a minor mineral as defined in section 3(e) of the one by "GD", (the appellant in C.A. 785/71 and respondent in C.A. 1781/75) dated 7 5 1965 for a quarry lease for "limestone for burning purposes, minor minerals intended" and another by "RC" dated 2 6 1965 for a mining lease for "a major mineral". The "quarry lease" was granted to "GD" on 1 11 1965 and the lease deed was executed on 10 11 1965 with a special clause 18A therein. In revision by "RC" against the order granting quarry lease to GD the Central Government by its order dated 14 12 1967, holding that in substance the application of "GD" was an application for "major mineral" and, there fore. the grant of the "quarry lease" to the appellant was not competent, directed the respondent State to consider the application of "RD" for the grant of mining lease. As the writ petition No. 3/68 assailing the said order, filed by "GD" in the M.P. High Court was dismissed on 2 9 1970, GD obtained a special leave (CA 785/71), but the stay was refused, resulting in his lease running in operation only for a period of about 5 years and "RD" carrying on its operation of mining limestone as a major mineral. During the pendency of the lease in favour of "GD" the rate of royalty was enhanced by the State Government and "GD" filed another writ petition (MP No. 328/1968) in the High Court on 23 7 1968. As the MP 3/68 Was dismissed on 2 9 1970, "GD" amended the application suitable in MP 328/68 with the words "in view of the decision of the High Court, he was liable to pay royalty at a rate which were chargeable as a major mineral". The High Court allowed the writ petition, remanded the matter of qualification of the amount of royalty due from "GD". After the remand, the State Government determined the royalty at Rs. 16,722/ . The said demand was again 877 challenged by "GD" for the third time by way of a writ petition No. MP 390/72 contending that if royalty was charged from him on the basis of a major mineral, then he had paid Rs. 36,000/ and odd more. The writ was allowed in 25 3 1974 during the course of the hearing of CA 785/71 in the Supreme Court and the appeal by special leave (CA 1781/75) obtained by the respondent State against the order dated 25 3 1974 was heard with CA 785/71. Allowing CA 785/71 on merits, following the decision in Rukmani Bai Gupta vs The State Government of Madhya Pradesh, Bhopal and others; , and allowing CA 1781/75 with permission to the appellant to withdraw the writ petitions No MP 328/68 and MP 390/72, the Court: ^ HELD: (1) The facts of the instant case, being almost identical as Smt. Rukmani Bai Gupta 's case, with the only difference that in column 6 of his application the present appellant had merely stated "minor minerals" reading the said expression with the expression "limestone for burning purposes" mentioned in paragraph 1, the same result follows. Therefore, the application of the appellant was for a minor mineral and the lease granted to him was for the same. After the adverse decision of the High Court, he was ill advised to take the stand that he was liable to pay royalty on the amount of limestone quarried by him out as "a major mineral", that the amount of royalty which is chargeable upon it as "a major mineral" is lower than one chargeable upon it as a "minor mineral". [881 CE] Smt. Rukmani Bai Gupta vs The State Government of Madhya Pradesh, Bhopal and others. ; , followed. HELD FURTHER: (2) The distinctive points between the 1958 and 1961 notifications are as under: (a) Limestone for lime burning was a 'minor mineral" under the 1958 notification irrespective of the process of burning or the quality of the lime it produced. [882 C] (b) After the 1961 notification only that type of limesone would be a "minor mineral" which is capable or being used for burning in kilns for producing has quality of lime which can ordinarily and generally be used as a building material. [882 D] (c) The lessees ' responsibility ceases when the limestone quarried by him is used for burning kilns producing the building material quality of lime. It would be beyond his control to see that the lime so produced was actually used as a building material. (3) The question of grant of a lease for quarrying or mining the limestone will have to be decided by the State Government on the basis of the quality of the limestone in a particular area. If a major portion in the area is such that can be used as a "minor mineral" then a lease in accordance with the State Rules will have to be granted and a special clause like clause 18 may be provided therein if per chance some quality of limestone quarried in the demised area is found to be of high grade. Similarly if the major portion is found to be of high grade limestone, then a mining lease for mining limestone as a major mineral in accordance with the Central Rules will have to be granted. A special clause may be incorporated in such a lease also. In either event the lease will be liable to be cancelled if the lessee commits any breach of the terms of the lease including the one as to the purpose of using the limestone as a major or a minor mineral.[882 EH] (4) In situations like the instant case where there were two applicants one wanting the lease of limestone as a minor mineral and the other who wanted it as a major mineral, it was not open to the State Government to merely ignore the application for major mineral and grant lease to the appellant; nor was it appropriate for the Central Government to direct the State Government to consider the application for major mineral. The proper course in such a situation is to direct the State Government to consider both the applications, determine the question as to whether the quality of the limesone contained in the area in question is such that a lease to quarry it as a minor mineral should 878 be granted and then it should proceed to grant the leave. In the instant case the proper course which ought to have been followed has neither been followed nor has been directed to be followed by the Central Government. [883 AD]

Special Leave Petition No. 1900 of 1981 etc. From the Judgment and order dated 3.2.1981 of the Allahabad High Court in C.M.W.P. No. 1924 of 1981. P.P. Rao, Ambrish Kumar, Mrs. Rani Chhabra, M. Qamaruddin, Mrs. Qamaruddin, A.K. Srivastava, B.B. Tawakley, Mrs. Subhadra, S.N. Singh, C.K. Ratnaparkhi, S.K. Gupta, Uma Dutt, C.P. Lal, M.K. Garg, and Lokesh Kumar for the Petitioners. Anil Dev Singh, O.P. Rana, B.P. Maheshwari, Mrs. section Dikshit, P.K. Pillai, R. Ramachandran, A.K. Srivastava, S.C. Birla, section Wasim, A. Qadri, N.N. Sharma, Shakeel Ahmad and K.K. Gupta for the Respondents.

% In exercise of the powers conferred by Section 239(2)(E)(a) of the Uttar Pradesh Kshetra Samiti and Zila Parishads Adhiniyam, 1961, various Zila Parishads framed a bye law, providing that right to trade in carcass utilisation in the rural area of the respective Zila Parishads shall be put to public auction. Such activities comprised of taking of the carcass of dead animals to a specified place, skinning of the carcass, storage of bones and skins, curing and dyeing of such skins and preparation of leather goods. In a writ petition challenging the validity of the said bye law, a Single Judge of the High Court struck down the latter part of the bye law framed by one of the Zila Parishads, providing for farming out of the privilege of utilisation and disposal of carcass of dead animals, on the ground that it created a monopoly in favour of an individual or group of individuals. A Division Bench reiterated that view in two writ petitions filed before it, and distinguished the decision of this Court in State of Maharashtra vs Mumbai Upnagar Gramodyog Sangh, ; taking a contrary view on the ground that the restrictions were reason able within the meaning of article 19(6), in the context of the thickly populated metropolitan city. The correctness of the said decision of the Division Bench was open to question. Another Division Bench referred the matter to a Full Bench, which expressly repelled the aforesaid view, and held that it was competent for the Zila Parishads to frame such bye laws in exercise of the powers conferred by section 239(2)(E)(a) of the Act. 539 Against the various judgments and orders of the High Court, special leave petitions and appeals by special leave challenging the constitutional validity of the aforesaid bye law, were filed in this Court. In SLP(C) No. 1900 of 1981, this Court, in order to protect the interests of persons traditionally engaged in the work of skinning, tanning etc., directed the State Government to frame a Model Scheme for carcass utilisation in the Etawa district at the village panchayat level on an experimental basis, and passed certain incidental directions as to the price payable for skins, bones and horns. As nothing further was done, in partial modification of its earlier orders, this Court directed the Zila Parishad, Etawa to issue licence to any person who applied for the same. In the meantime, the Government of Uttar Pradesh issued a Circular dated June 7, 1986 stating that in future the licences for disposal of carcass of animals should be granted only to registered industrial cooperative societies formed by the persons engaged in this work. Disposing of the Special Leave Petitions and civil appeals, ^ HELD: It is plain upon the reading of the Circular dated June 7, 1986 issued by the State Government that the contract system envisaged by the impugned bye law framed by the different Zila Parishads in the State has been virtually abandoned, and the State Government proposes to replace the system of auction by a system of licensing, giving preferential right to cooperative societies consisting of members of the traditional occupation, for the disposal of carcass of dead animals. [544E F] In view of the subsequent policy decision taken by the State Government, the present controversy no longer survives. It would be open to different Zila Parishads, in view of the directive of the State Government, to frame the appropriate Bye laws consistent with and for the implementations of the policy declared by the State Government. The Zila Parishads, while considering the question, shall keep in view the directions issued by this Court on April 15, 1983, and also the order passed introducing the licence system in the Zila Parishad, Etawa on an experimental basis.[544F G] For a meaningful effectuation of the policy decision of the Government, which is taken in the larger interests of a sizeable segment of the weaker sections of the society, it is of utmost importance that the 540 work of formation of cooperative society of the members of the traditional occupation, who lack the will and the ability to organise themselves, should be taken up by the social welfare department of the State Government and every effort should be made to bring the members of the traditional occupation within the fold of these cooperative societies. The social welfare department shall take effective steps to organise such cooperative societies. [544H; 545A B] Wherever it is not possible to implement the policy decision and there is likely to be a loss of revenue or other compelling reason, it would be open to the Zila Parishads, as a purely transitory measure and with the prior concurrence of the State Government, to arrange for carcass utilisation by auction if the Bye laws permit such auction. It is only where, for any compelling reason, the said policy decision cannot be implemented effectively in any area, that the concerned Zila Parishad could, with the prior sanction of the State Government, continue the present contract system subject to such variation as may be necessary till the cooperative societies are formed. [545C D1]

Civil Appeal Nos. 4799 4800 of 1992. From the Judgments dated 4.3.1992 and 8.4.1992 in Madras High Court in W.P. No. 246/92 and W.A. No. 349 of 1992. G. Ramaswamy Attorney General, K. Sankaran, A. Rangananthan and A.V. Rangam for the Appellants. M.K. Ramamurthi, M.A. Krishnmoorthy, M.A. Chinnaswamy, H. Subramaniam and Ms. C. Ramamurthi for the Respondents. Rajendra Sachhar, Ambrish Kumar and M.D. Pandey for the Inter vener. The Order of the Court was delivered: Intervention application is allowed. Leave granted. Civil Appeal No. 4799 of 1992. The controversy in this case is in a narrow compass. The appellant Bank issued Staff Circular No. 42 containing an understanding reached with the Bank staff union laying down the policy for promotion of clerks to the post of Head Clerks. Clause 1(d) of the said circular states as follows: Employees who decline to accept Head Clerk 's post at a Branch Office outside their place of service, i.e., outside their city, will again be offered the appointment only when a vacancy arises at any one of the offices within that city, provided that at the material time there is no other senior employees at that office who had earlier declined a posting outside his Branch, as a Head Clerk in which case the senior most employee will first be offered the appointment. Also, if an employee declines to accept the post of a Head Clerk at an office within the same city, his case for appointment as Head Clerk will be considered only when a vacancy arises at his office, in the order of his seniority. His case cannot be considered for a vacancy at any of the other offices in the city. It will be apparent from the above provision of the said clause that those employees who decline to accept the Head Clerk 's post at a branch office which is outside the city in which they work will have a further option. Such employees would be offered the post of Head Clerk again but only when a vacancy arises at any one of the Bank 's offices within that city. This is of course subject to the condition that at the material time, there is no other senior employee who had similarly declined the post outside his branch office, in which case, the senior most would have the first choice. The further provision of this rule and with which we are concerned in the present case is as follows. If an employee declines to accept the post of Head Clerk at an office within the same city his case for appointment as Head Clerk would be considered only when a vacancy arises at his office. This is also subject to the condition that there is no senior employee similarly situated at the material time. If the third and the final offer for the post of Head Clerk is declined, there is a permanent debarment of the promotion. One more thing necessary to be stated before we come to the facts of the present case is that the appellant Bank has a local Head Office at Madras. In 1972, it was split into two the local Head Office and Madras Main Branch. In 1976 77, there was a further splitting up of the local Head Office and the Main Branch and ultimately in 1979, the Madras Local Head Office was divided into following six offices as part of the same Head Office: "(i) Local Head Office (ii) Madras Main Branch (iii) Overseas Branch (iv) Regional Office, which is called Zonal Office (v) The Commercial Branch (vi) Siruthozhil Branch" 4. There is no dispute that as far as the Clerks and the Head Clerks in all the six parts of the same local Head Office are concerned, a common seniority list is maintained. The effect of the aforesaid arrangements for the purposes of the clause 1(d) is that "the employees" in the said clause means the employees in all the said six parts of the local Head Office. In other words, if a vacancy for a Head Clerk occurred at any of the said six offices, it was considered to be a vacancy in one office, viz. ,the local Head Office of which the other five offices were only parts. It appears that respondent Parthasarathy was working as a clerk in the Madras Regional Office (now called Zonal Office) which is, as will be clear from above, a part of the Local Head Office itself. On 21st August, 1973, he was offered the post of Head Clerk at Deva Kottain which is outside Madras city. This offer was declined by him. On 1st July, 1980, he was offered the post of Head Clerk in the Sowkarpet branch office in the same city which was less than 2 kms, from his Regional office where he was working. He declined the said offer too. He was then entitled to be considered for posting as Head Clerk only in his office which meant in any of the six parts of the local Head Office, that being the third and the final offer that could be made to him. The third offer was made to him for the post of Head Clerk at the Overseas branch, and that being part of the same local Head Office, he was bound to accept it. However, he declined the third and the final offer also, and issued a lawyer 's notice to the Bank contending that the Overseas branch was different from the Regional office where he was working and, therefore, the offer given to him was contrary to the said clause 1(d). The allegations made in the notice were of course denied by the bank. On 6th September, 1983, one A. Nizamuddin who was working as Head Clerk in the Regional office passed away and that post became vacant. On 24th September, 1983, the respondent filed a writ petition before the High Court for quashing the third and the final offer made to him on 4th August 1983, and for a direction for posting him in the Regional office where the vacancy had occurred. The High Court took the view that the third offer made was not for the post of the Head Clerk in the same office where the respondent was working and, therefore, his refusal to accept the post did not exhaust the third option and he was entitled to the vacancy created by Nizamuddin 's death in the Regional office where the respondent was working. We are afraid this interpretation is incorrect in view of the position explained above with regard to the local Head Office which was split into six different offices which together constituted one unit. The respondent, when he was offered the third option in the Overseas branch, was offered the post in the same office where he was working, the Regional office being as much a part of the Head Office as the Overseas branch. By refusing to accept the said third and the final offer, the respondent had clearly exhausted all his three options and had become permanently debarred from seeking promotion to the post of Head Clerk. We, however, do not interfere with the appointment of the respondent to the post of Head Clerk in the Regional office in the facts and circumstances of the case which show that a fortuitous appointment had arisen within almost a month of his refusal to accept the offer. This, however, will not be treated as a precedent nor does it affect the interpretation that we have placed on the clause 1(d) as above. Civil Appeal No. 4800 of 1992 In this case also, the respondent Sampath was working as a Clerk in Madras Regional Office. The first offer of the post of Head Clerk was made to him on 6th August, 1973 at Mudukulathur branch which is in Madras city. This was declined by him. On 12th May, 1980, he was given the second offer for the post of Head Clerk at Air Force Station branch, Tambaram which was in Madras city. The third and final offer was made to him on 4th August, 1983 to the post of Head Clerk in the Stationery department of the Madras Local Head Office. There is no dispute that Stationery department of the Local Head Offfice and the Regional Office form part of one unit, viz., Madras Local Head Office. The respondent declined this offer as well, and on 23rd January, 1984 filed a writ petition in the High Court for quashing the third offer and for posting him in his office, viz., Regional Office as the Head Clerk. The learned Single Judge of the High Court quashed the order making the third offer and allowed the petition following the earlier decision in Parthasarathy 's case with which we have dealt with earlier. The Division Bench of the High Court also confirmed the order. For the reasons we have given in C.A.No. 4799 of 1992, we are unable to accept the interpretation given by the High Court on clause 1(d) of Staff Circular No. 42. However, if in the present case, the respondent has already been accommodated in the post of Head Clerk in the Regional Office itself, we do not intend to interfere with the same. It is nonetheless made clear that it is the interpretation that we have placed on the said clause that will prevail and not the interpretation placed by the High Court. With these observations, the appeals are allowed only to the extent that the interpretation placed by the appellant Bank on clause l(d) of the Staff Circular No. 42 is correct and the decision of the High Court on the point is incorrect. There will be no order as to costs.

The appellant Bank issued Circular No. 42 containing an understanding reached with the Staff union laying down the policy for promotion of clerks to the post of Head Clerks. As per clause 1(d) of the Circular the employees who decline to accept Head Clerk s post at a branch office outside the city in which they work, will have a further option when a vacancy arises at any one of the Bank 's offices within that city. However, this was subject to the condition that at the material time there was no other senior employee who had similarly declined the post outside his branch office, in which case the senior most would have the first choice. It was further provided that if an employee declines to accept the post of Head Clerk at an office within the same city, his case would be considered only when a vacancy arises at his office. This was also subject to the condition that there was no senior employee similarly situated at the material time. If the third and final offer is declined, there would be a permanent debarment of promotion. Since there were six offices at the Madras Local Head Office, a common seniority was maintained and all the six offices were considered as one office, viz. local Head Office of which the other five offices were only parts. The Respondents declined their first, second and final offers, though indisputably the final offer was made to them for being posted in an office forming part of the local Head Office. Both the Respondents moved the High Court by way of Writ Petitions and the High Court took the view that the final offer made was not in the same office and so they were entitled to be posted as Head Clerks in the same office. Being aggrieved by the said two decisions of the High Court, the appellant Bank preferred the present appeals. On the question of interpretation of clause 1(d) of the circular in question: Allowing the appeals, this Court, HELD :1. The High Court 's interpretation of cl. 1(d) of the Circular that the third offer made was not in the office where the Respondents were working and therefore their refusal to accept the post did not exhaust the third option and they were entitled to be posted as Head Clerks in the Office where they were working is incorrect in view of the fact that the local Head Office was split into six different offices which together constituted one unit. By refusing to accept the third and final offer, the Respondents had clearly exhausted all the three options and had become permanently debarred from seeking promotion to the post of Head Clerk. [366 E G] 2. This Court does not intend to interfere with the appointment of the respondents to the post of Head Clerk in the Regional Office in the facts and circumstances of these matters which show that in one case a fortuitous appointment had arisen due to death of an employee within almost a month of the Respondent 's refusal to accept the offer, and in the other case, the Respondent has already been accommodated in the post of Head Clerk in the Regional Office itself. However, this would not be treated as a precedent and this would not affect the interpretation of clause 1(d) of the Circular, placed by this Court. [366 H; 367 A]

tition Nos. 293,391 and 392 of 1981. (Under Article 32 of the Constitution) 138 M.M. Abdul Khader and Shakeel Ahmed for the Petitioners. R.K. Bhatt, D. Goburdhan and Miss A. Subhashini for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. These three Writ Petitions may be disposed of by a single judgment since the principal question argued in all the three cases is one. The question is whether delay in considering the representation made by a detenu under article 22(5) of the Constitution vitiates a detention under the National Security Act and entitles the detenu to be released on that ground alone. As a result of a series of decisions of this Court,( ') it is now well settled that the representation made by a detenu under article 22(5) of the Constitution against his detention under the , must be considered by the detaining authority with the ut most expedition and that any unexplained delay in considering the representation will be fatal to the detention. The learned counsel for the State of Uttar Pradesh urged that the rule requiring expeditious consideration of a detenu 's representation is a judge made rule based on provisions of the Conservation of Foreign Exchange and Prevention of the Smuggling Activities Act, 1974, and that the extension of the application of the rule to cases of detention under the National security Act was unwarranted. The learned counsel contrasted the provisions of the National Security Act and the provisions of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974, and urged that in the case of detention under the National Security Act, a certain amount of delay was inevitable having due regard to the procedure prescribed by the Act and, 139 therefore, delay in consideration of the representation should not be allowed to prejudice the detention. We are unable to agree with the submission of the learned counsel. We will presently give our reasons for our inability to accept the learned counsel 's submissions but we will first like to refer to a few facts. In Writ Petition (Criminal) No. 293 of 1981 the order and the grounds of detention were served on the detenu on October 30, 1980 and November 12, 1980 respectively. The detenu made a representation on November 12, 1980. Though according to the detenu he has received no communication from the Government about his representation, the Additional District Magistrate has stated in his counter affidavit that the representation was rejected on December 9, 1980 and that it was communicated to the detenu through the Superintendent of the Central Jail. The counter affidavit mentions not a word to explain the delay in considering the representation. The only reference to the representation in the counter affidavit is in these two sentences: "It is admitted that the detenu made a representation to the Home Secretary on November 12, 1980, and the same was rejected on December 9, 1980. The rejection of the representation was communicated to the detenu through Superintendent, Central Jail by the Government". Similarly in Writ Petition (Criminal No. 391 of 1981, the order and the grounds of detention were served on the detenu on November 12, 1980. The representation was rejected on December 10, 1980. In the counter affidavit filed by the Section Officer, Confidential Department, of the Government of Uttar Pradesh, it is stated that on receipt of the representation, the Secretary ' Home Department, forwarded it to the District Magistrate for his comments. In order to meet the allegations in the representation, the District Magistrate had to gather information from many sources and the representation alongwith his comments was returned to the Home Secretary by the District Magistrate on November 25, 1980. Thereafter Law Department was consulted and the file could reach the Home Minister on December 5, 1980 only. The representation was rejected by the Home Minister on December 8, 1980 and then communicated to the detenu through the Superintendent, Central Jail. In Writ Petition (Criminal) No. 392 of 1981 the order and the grounds of detention were served on the detenu on October 16, 1980. The detenu made a representation on October 24, 1980. It was rejected on November 25, 1980. The counter 140 affidavit filed by the Additional District Magistrate does not offer any explanation for the delay in the consideration of the representation. He has satisfied himself with the statement "as regards the representation of the detenu to the Home Secretary this fact is admitted. " The question for consideration is whether a person preventively detained under the provisions of the National Security Act is entitled to be released if there is delay in the consideration of the representation made by him to the detaining authority. It is true that the series of cases where delay in the consideration of the representation made by a detenu was held to be fatal to detention were cases which arose under the . We are however, unable to see how that would make any difference. The right of detenu to have his representation considered "at the earlier opportunity" and the obligation of the detaining authority to consider the representation "at the earliest opportunity" are not a right and an obligation flowing from either the , or the National Security Act or, for that matter any other Parliamentary of State law providing for preventive detention. They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law. article 22(5) enjoins a duty on the authority making the order of detention to afford the detenu "the earliest opportunity of making a representation against the order". The right and obligation to make and to consider the representation at the earliest opportunity is a Constitutional imperative which cannot be curtailed or abridged. If the Parliament or the State legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate. It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable. The learned counsel for the State of Uttar Pradesh pointed out certain differences between the and the National Security Act which according to him make delay inevitable in 141 the consideration of representations in cases of detention under the National Security Act. We think that the differences pointed out are irrelevant. The constitutional mandate brooks no unreasonable delay in the consideration of a representation. In the cases before us, in Criminal Writ Petition Nos. 293 of 1981 and 392 of 1981 no explanation was offered by the detaining authority for the delay in the consideration of representations and in Criminal Writ Petition No. 391 of 1981, administrative red tape was the only explanation offered. We are satisfied that in all the three cases there was unreasonable delay in the consideration of the representations and the detenus are, therefore, entitled to be released. They will be released forthwith. The Writ Petitions are allowed.

Allowing the appeals, the Court ^ HELD: 1: 1. Article 22 (5) of the Constitution enjoins a duty on the authority making the order of detention to afford the detenu the earliest opportunity of making a representation against the order. The right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative which cannot be curtailed or abridged. [140 E] 1: 2. If the Parliament or the State Legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate. It is essential that any law providing for preventive detention and any authority obliged to make order for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable. The constitutional mandate brooks no unreasonable delay in the consideration of a representation. [140 G, 141A] 1: 4. The right of detenu to have his representation considered "at the earliest opportunity" and the obligation of the detaining authority to consider the representation "at the earliest opportunity" are not a right and an obligation flowing from either the Conservation of Foreign Exchange and Prevention of Smuggling Activities, 1974 or the National Security Act or, for that matter any other Parliamentary or State law providing for preventive detention. They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law. [140 D] Jayanarayan Sukul vs State of West Bengal, ; ; Narendra Purshotam Umrao etc. vs B.B. Gujral and Ors.,[1979] 2 SCR 315; V.J. Jain vs Pradhan, ; ; Smt. Ichhu Devi Choraria vs Union of India and Ors.; ; ; Ramachandra A. Kamat vs Union of India and Ors. ; ; Frances Coralie Mullin vs W. C. Khambra and Ors. ; , referred to.

Civil Appeal No. 1083 of 1969. Appeal from the Judgment and Order dated 5 12 1967 of the Allahabad High Court in Special Appeal No. 1068 of 1967. J. P. Goyal and Sobhagmal Jain for the Appellant. G. N. Dikshit and O. P. Rana for Respondents 1 3. Yogeshwar Prashad and Mrs. section Bagga for Respondent No. 4. The Judgment of the Court was delivered by TULZAPURKAR, J. This appeal by certificate is directed against the judgment rendered by the Allahabad High Court on December 5, 1967 in Special Appeal No. 1068 of 1967 and raises a short question whether the appellant is entitled to the benefit of certain concessions (deductions) in the minimum price notified by the Cane Commissioner in his order issued on June 1, 1955 ? The appellant (Shri Janki Sugar Mills & Company) is a partnership firm carrying on the business of manufacturing sugar. By an order passed on November 1, 1954 under section 15 of the Uttar Pradesh Sugar Cane (Regulation of Supply and Purchase) Act 1953, the Cane Commissioner reserved certain sugarcane centres for the appellant 's sugar 781 factory. On November 12, 1954 (i.e. within 14 days of the reservation of the sugarcane centres) the respondent No. 4 (Laskar Co operative Cane Development Union Ltd.) made an offer for the 1954 55 crushing season for the supply of 6 lac maunds of sugarcane out of a total estimated yield of 12 lac maunds of sugarcane from certain centres. This offer was accepted by the appellant firm on November 27, 1954 (i.e. within 14 days of the receipt of the offer) and an agreement in the prescribed Form 'C ' was duly executed on February 9, 1955. It contained the usual term that the appellant firm will pay for the sugarcane supplied to it "at the minimum price notified by the Government subject to such deductions, if any, as may be notified by the Government from time to time". On March 22, 1955 the respondent No. 4 made another offer for supplying additional quantity of 2 lac maunds of sugarcane to the appellant firm, which offer was also accepted on May 4, 1955 and a composite agreement in prescribed Form 'C ' was entered into on that very day for the supply of 8 lac maunds of sugarcane (inclusive of the initial 6 lac maunds). This agreement also contained the usual term with regard to the payment being made "at the minimum price subject to such deductions as may be notified by the Government from time to time". By a Press Note dated May 23, 1955 the Government of India notified its decision that certain deductions in the minimum cane price, on the basis of recovery of sugar from sugarcane, will be allowed to sugarcane factories in Uttar Pradesh on the cane supplied to them on and after May 1, 1955 but that the deductions will be allowed only on "unbonded cane" crushed by each factory and not on "bonded cane", the latter of which shall have to be purchased by each factory at the minimum cane price already fixed for the season. In exercise of the powers under section 3 of the , (delegated to him by the Government of India under a Notification dated April 25, 1955), the Cane Commissioner, Uttar Pradesh issued a Notification on June 1, 1955 whereunder "the producers of sugar by vacuum pan process were allowed to make deductions as specified in the Schedule thereto from the minimum price of per maund of cane fixed for the season 1954 55 in respect of the unbonded sugarcane crushed on and after May 1, 1955". The appellant firm taking advantage of this Notification granting concessions in the minimum price, made payments to Respondent No. 4 after making deductions in respect of the two lac maunds of sugarcane supplied to it, in respect whereof the offer had been made to it on March 22, 1955. However, a Recovery Certificate under sections 17 and 18 of Uttar Pradesh Sugar Cane (Regulation of Supply and Purchase) Act, 1953 against the appellant firm for a sum of Rs. 53,878/10/ being the amounts deducted by the 782 appellant firm while making payments to Respondent No. 4. The appellant firm disputed the legality of the Recovery Certificate on the ground that it had the right to make the deductions in view of the Cane Commissioner 's Notification dated June 1, 1955. The said dispute was referred by the Cane Commissioner to the District Cane Officer, Bulandshahr as the sole arbitrator under Rule 108 of the U.P. Sugarcane (Regulation of Supply & Purchase) Rules, 1954. By his award dated May 30, 1962, the District Cane Officer held that the appellant firm had wrongly made the deductions in respect of the supply of two lac maunds of sugarcane which was "bonded cane" and that the appellant firm was liable to pay the minimum price therefor. Aggrieved by the award the appellant firm preferred an appeal to the Divisional Commissioner, Meerut under Rule 118 of the said Rules, but the appeal was dismissed on March 30, 1963. The appellant firm challenged the legality of the award of the District Cane Officer as also the appellate order of the Divisional Commissioner by means of a writ Petition in the Allahabad High Court being Civil Miscellaneous Writ No. 2003 of 1963. The learned Single Judge who heard the writ petition dismissed the same by his judgment and order dated October 24, 1967. A further Special Appeal No. 1068 of 1967 carried by the appellant firm to the Division Bench of that Court also proved unsuccessful on December 5, 1967. The appellant firm has come up in appeal to this Court. The only contention that was urged by counsel for the appellant firm before us in this appeal was that the supply of two lac maunds of sugarcane made by respondent No. 4 to the appellant firm was not bonded sugarcane at all and as such the appellant firm was entitled to the concessions (deductions) in the minimum price payable in respect thereof to respondent No. 4 in view of the Cane Commissioner 's Notification dated June 1, 1955. In support of this contention counsel relied upon sub cls. (2) and (3) of cl. 3 of the U.P. Sugarcane Supply and Purchase Order, 1956 issued under section 16 of the Uttar Pradesh Sugarcane (Regulation of Supply & Purchase) Act, 1953 and it was pointed out that under sub cl. (2) within 14 days of issue of the reserving certain areas for a factory a cane grower or a Cane growers ' Cooperative Society has to make an offer to supply cane grown in the reserved area to the occupier of the factory and under sub cl. (3) it was obligatory upon the occupier of the factory for which such area has been reserved to accept the same within 14 days of the receipt of the offer and enter into an agreement in the prescribed form and it was urged that unless such offer was made within 14 days as prescribed 783 by sub cl. (2) and was accepted within 14 days as prescribed by sub cl. (3) the supply of sugarcane thereunder could not be regarded as supply of bonded sugarcane. Counsel pointed out that the offer of two lac maunds of sugarcane in the instant case was made by respondent No. 4 long after the expiry of 14 days from the issuance of the order reserving certain areas for the appellant firm 's factory and that offer had been accepted not within the limit prescribed in sub cl. (3) and, therefore, the sugarcane so supplied by respondent No. 4 to the appellant firm was not bonded sugarcane but ought to be classified as 'unbonded sugarcane ' and as such the appellant firm was entitled to the concessions in the minimum price notified in the Cane Commissioner 's Notification dated June 1, 1955. It was further pointed out that though under sub cl. (4) of cl. 3 of the U.P. Sugarcane supply and Purchase Order, 1954, the Cane Commissioner had the power to extend the date for making offers in respect of any reserved area, no such extension had been granted by the Cane Commissioner in the instant case, and, therefore, the offer of two lac maunds of sugarcane which was made by respondent No. 4 on March 22, 1955, long after the expiry of 14 days from the issuance of the order of the Cane Commissioner on November 1, 1954 reserving certain sugarcane centres for the appellant 's factory under section 15 of the Act, could not culminate into an agreement under the statute or the U.P. Sugarcane Supply and Purchase Order, 1954, that the agreement entered into between the parties on May 4, 1955 in respect of the said supply must be regarded as an ordinary contract under the Indian Contract Act and that the sugarcane supplied under such ordinary contract must be regarded as unbonded sugarcane. In other words, the contention was that only such sugarcane as would be supplied by a cane grower or a Cane growers ' Cooperative Society under an agreement made in strict compliance of sub cls. (2) and (3) of cl. 3 of the U.P. Sugarcane Supply and Purchase Order, 1954 could be regarded as bonded sugarcane. The question raised in the appeal really turns upon what is meant by the expression "unbonded sugarcane" occurring in the Cane Commissioner 's Notification dated June 1, 1955 and the true effect of sub cls. (2) and (3) of cl. 3 of the U.P. Sugarcane Supply and Purchase Order, 1954. It must be stated, however, that neither the expression "bonded sugarcane" nor "unbonded sugarcane" has been defined either in the statute or in the U.P. Sugarcane Supply and Purchase Order 1954 and, therefore, regard must be had to the ordinary dictionary meaning of the said expressions. In Shorter Oxford English Dictionary the legal and technical meaning of the expression ' "bond" 784 is given as "a deed by which the Obliger binds himself, his heirs, executors, or assigns to pay a certain sum to the obligee". In Stroud 's Judicial Dictionary (4th Edn.) the expression "bond" is explained as: "an obligation by deed". It will thus be clear that the expression "bonded sugarcane" must mean sugarcane secured by a bond or deed. Under the Notification of the Cane Commissioner dated June 1, 1955 certain deductions from the minimum price per maund of cane fixed for the season 1954 55 had been notified in respect of the "unbonded sugarcane" crushed on or after May 1, 1955. In other words, the concession is granted in respect of the supply of 'unbonded sugarcane ' in contradistinction with supply of 'bonded sugarcane '. There is nothing in the Notification to suggest that any particular bond or a bond in accordance with the provisions of the U.P. Sugarcane Supply and Purchase Order 1954 was intended and therefore supply of 'bonded sugarcane ' would mean supply of sugarcane which has been secured by a bond or an agreement and such supply will not be entitled to the concession. On a plain reading of the Notification in question, therefore, it will appear clear that since the supply of two lac maunds of sugarcane made by respondent No. 4 to the appellant firm had been secured by the agreement that was entered into between the parties on May 4, 1955 the said supply will have to be regarded as supply of "bonded sugarcane" and as such the appellant firm was not entitled to the concession in the minimum price payable in respect thereof to respondent No. 4. Considering the question in the context of sub cls.(2) and (3) of cl.3 of the U.P. Sugarcane Supply and Purchase Order 1954 also we are clearly of the view that the appellant firm was not entitled to the benefit of the Cane Commissioner 's Notification dated June 1, 1955. For this purpose it will be necessary to refer to section 15 of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and set out Cl. 3 of the U.P. Sugarcane Supply and Purchase Order, 1954. Under s.15(1) of the Act power has been conferred upon the Cane Commissioner after consulting the factory and the cane grower/Canegrowers ' Co operative Society to (a) reserve any area (hereinafter called the reserved area) or, (b) assign any area (hereinafter called an assigned area) for the purpose of the supply of sugarcane to a factory in accordance with the provisions of s.16 during one or more crushing seasons as may be specified. It was under this provision that the Cane Commissioner has passed order dated November 1, 1954 reserving certain sugarcane centres (reserved area) for the appellant firm for the 1954 55 season. 785 Clause 3 of the U.P. Sugarcane Supply and Purchase Order 1954 runs thus: "3. Purchase of cane in reserved areas. (1) The occupier of a factory shall estimate or cause to be estimated by the 31st day of October or such later date in a crushing season as, on an application being made to the Cane Commissioner by the occupier of a factory, may be fixed by the Cane Commissioner, the quantity of cane with each grower enrolled in the Grower 's Register and shall on demand submit the estimate to the Cane Commissioner and the Collector. (2) A cane grower or a Cane growers ' Co operative Society may within 14 days of the issue of an order reserving an area for a factory, offer in Form A of the Appendix, to supply cane grown in the reserved area, to the occupier of the factory. (3) The occupier of the factory for which an area has been reserved, shall, within fourteen days of the receipt of the offer enter into an agreement in Form B or Form C of the Appendix, with the Cane grower or the Canegrowers ' Cooperative Society, as the case may be, in respect of the cane offered: Provided that any purchase of cane made before the execution of the prescribed agreement shall be deemed to have been made in accordance with such agreement. (4) The Cane Commissioner may, for reasons to be recorded in writing, extend the date for making offers in respect of any reserved area. On a fair reading of the sub cls.(2) & (3) of cl. 3 of the Order two or three things become at once clear. In the first place sub cl.(2) uses the expression 'may ' and provides that a cane grower or Canegrowers ' Co operative Society may within 14 days of the issue of an order reserving an area for a factory make an offer to supply the cane grown in the reserved area to the factory. That the period of 14 days mentioned in this sub clause is not imperative or mandatory is also clear from sub cl.(4) which confers power upon the Cane Commissioner to extend the date for making offer in respect of any reserved area. Secondly, sub cl.(3) uses the expression 'shall ' indicating that an imperative obligation is cast upon the factory to accept the offer 786 within 14 days from the receipt of the offer. Reading the two sub clauses together, it becomes clear that if a cane grower or Canegrowers ' Cooperative Society makes an offer within 14 days mentioned in sub cl.(2) it is obligatory upon the occupier of the factory to accept that offer within 14 days of the receipt of the offer, this only means that if the offer is made by the cane grower or Cane growers ' Cooperative Society beyond the period specified in sub cl.(2) or the extended time under sub cl.(4) it would not be obligatory but optional for the occupier of the factory to accept the said offer but if such offer made beyond the prescribed or extended period is accepted by the occupier of the factory a binding agreement comes into existence between the parties and sugarcane supplied thereunder would be 'bonded sugarcane ', more so when the agreement is entered into in the prescribed form. Merely because the offer from the cane grower or Cane growers ' Co operative Society emanates after the expiry of the period mentioned in sub cl.(2) it does not mean that the parties are prevented from entering into an agreement in the prescribed form and if they do enter into an agreement in the prescribed form, as was the case here, the sugarcane supplied thereunder would be 'bonded sugarcane '. It is not possible to accept the contention of learned counsel for the appellant that sugarcane supplied by the cane growers or Canegrowers ' Cooperative Society could be regarded as 'bonded Sugar Cane ' only if offer of the Cane grower or the Cane Growers ' Co operative Society emanates within the period prescribed by sub cl.(2) and the same is accepted by the occupier within the period prescribed by sub cl. As stated earlier, the true effect of sub cls. (2) and (3) read together is that the compulsion or obligation to accept the offer on the part of the occupier of the factory arises only when the offer is made by the cane grower or Cane growers ' Co operative Society within the time prescribed by sub cl.(2) or the extended time under sub cl.(4) but if the offer is made after the expiry of that period it is optional for the factory occupier to accept it or not but in cases where he accepts such offer a binding agreement comes into existence, and the sugarcane supplied thereunder becomes "bonded sugarcane". In the instant case the offer of additional quantity of two lac maunds of sugarcane was undoubtedly made long after the expiry of the period of sub cl.(2) but the same was accepted by the appellant firm and a binding agreement came into existence and what is more that a binding agreement was executed by the parties in the prescribed Form 'C '. Further the conduct on the part of the appellant firm in referring the dispute to arbitration and filing an appeal against the arbitrator 's award under the relevant Rules clearly shows that the parties, particularly the appellant firm, treated the agreement dated May 4, 1955 787 as one under the Act and the U.P. Sugarcane and purchase Order, 1954. We are, therefore, of the view that the authorities below were right in coming to the conclusion that the said additional supply of two lac maunds of sugarcane by respondent No.4 to the appellant firm was the supply of "bonded sugarcane" and, therefore, the appellant firm was not entitled to the benefit of the Cane Commissioner 's Notification dated June 1, 1955. In the result the appeal fails and is dismissed with costs. V.D.K. Appeal dismissed.

The Government of India notified its decision that certain deductions in the minimum cane price, on the basis of recovery of sugar from sugarcane will be allowed to sugarcane factories in U.P. on the cane supplied to them on and after May 1, 1955 but that the deductions will be allowed only on "unbonded cane" crushed by each factory and not on "bonded cane", the latter of which shall have to be purchased by each factory at the minimum cane price already fixed for the season. In exercise of the powers delegated to him under section 3 of the , the Cane Commissioner U.P. issued a Notification on June, 1, 1955, whereunder "the producers of sugar by vacuum pan process were allowed to make deductions as specified in the Schedule thereto from the minimum price of per maund of cane fixed for the season 1954 55 in respect of the unbonded sugarcane crushed on and after May 1, 1955. The appellant firm taking advantage of this Notification granting concession in the minimum price, made payment to Laskar Co operative Cane Development Union Ltd; after making deductions in respect of 2 lac maunds of sugarcane supplied to it, under an agreement entered into pursuant to the offer made to it on March 22, 1955. However, on December 21, 1955 the Cane Commissioner issued a Recovery Certificate under Sections 17 and 18 of U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 against the appellant firm for a sum of Rs. 53,879.10 being the amount deducted by the appellant firm while making payments to Laskar Co operative Union. On a challenge to legality of the Recovery Certificate, the dispute was referred to the sole arbitrator, the District Cane Officer under Rule 108 of the U.P. Sugarcane (Regulation of Supply and Purchase) Rules, 1954. The arbitrator found that the supply of sugarcane was "bonded cane" and therefore gave an award that the appellant was not entitled to the concession and was liable to pay the minimum price therefor. An appeal to the Divisional Commissioner having been dismissed, the appellant firm filed a Writ Petition in the Allahabad High Court which also was rejected. A further special appeal also proving unsuccessful the appellant firm appealed to the Supreme Court after obtaining a certificate of fitness. Dismissing the appeal, the Court, ^ HELD: 1. Neither the expression "bonded sugarcane" nor "unbonded sugar cane" has been defined either in the Statute or in the U.P. Sugarcane Supply and Purchase Order, 1954. Having regard to the ordinary dictionary 779 meaning of the said expressions, the expression "bonded sugarcane" must mean Sugar Cane secured by a bond or deed. [783 G H, 784 A] 2. Under the Notification of the Cane Commissioner dated June 1, 1955 certain deductions from the minimum price per maund of cane fixed for the season 1954 55 had been notified in respect of the "unbonded sugarcane" crushed on or after May 1, 1955. In other words, the concession is granted in respect of the supply of 'unbonded sugarcane in contradistinction with supply of 'bonded sugarcane. There is nothing in the Notification to suggest that any particular bond or a bond in accordance with the provisions of the U.P. Sugarcane Supply and Purchase Order 1954 was intended and therefore supply of bonded sugarcane ' would mean supply of sugarcane which has been secured by a bond or an agreement and such supply will not be entitled to the concession. On a plain reading of the Notification in question, therefore, it will appear clear that since the supply of two lac maunds of sugarcane made by respondent No. 4 to the appellant firm had been secured by the agreement that was entered into between the parties on May 4, 1955 the said supply will have to be regarded as supply of "bonded sugarcane" and as such the appellant firm was not entitled to the concession in the minimum price payable in respect thereof to respondent No. 4, Laskar Co operative Cane Development Union. [784 B E] 3. On a fair reading of the sub cls. (2) and (3) of cl. 3 of the Order two or there things become at once clear. In the first place sub cl. (2) uses the expression 'may ' and provides that a cane grower or cane growers ' cooperative Society may within 14 days of the issue of an order reserving an area for a factory make an offer to supply the cane grown in the reserved area to the factory. That the period of 14 days mentioned in this subclause is not imperative or mandatory is also clear from sub cl. (4) which confers power upon the Cane Commissioner to extend the date for making offer in respect of any reserved area. Secondly, sub cl. (3) uses the expression 'shall ' indicating that an imperative obligation is cast upon the factory to accept the offer within 14 days from the receipt of the offer. Reading the two sub clauses together, it becomes clear that if a cane grower or cane growers ' Co operative Society makes an offer within 14 days mentioned in sub cl. (2) it is obligatory upon the occupier of the factory to accept that offer within 14 days of the receipt of the offer; this only means that if the offer is made by cane grower or cane growers ' Co operative Society beyond the period specified in sub cl. (2) or the extended time under sub cl. (4) it would not be obligatory but optional for the occupier of the factory to accept the said offer but if such offer made beyond the prescribed or extended period is accepted by the occupier of the factory a binding agreement comes into existence between the parties and sugarcane supplied thereunder would be bonded sugarcane ', more so when the agreement is entered into in the prescribed form. Merely because the offer from the cane grower or cane growers ' Co operative Society emanates after the expiry of the period mentioned in sub cl. (2) it does not mean that the parties are preventive from entering in to an agreement in the prescribed form and if they do, as was the case here, the sugar cane supplied there under would be 'bonded sugarcane '. Therefore, considering the question in the context of sub cl. (2) and sub cl. (3) of the U.P. sugarcane supply and Purchase Order 1954, also the appellant firm was not entitled to the benefit of the Cane Commissioner 's Notification dated June 1, 780 4. The contention that sugarcane supplied by the cane growers or cane growers ' Co operative Society could be regarded as "bonded sugarcane" only if offer of the Canegrower or the Canegrowers Co operative Society emanates within the period prescribed by sub clause (2) and the same is accepted by the occupier within the period prescribed by sub cl. (3) is not correct. [786 D F] 5. The true effect of sub clauses (2) and (3) read together is that the compulsion or obligation to accept the offer on the part of the occupier of the factory arises only when the offer is made by the cane grower or Cane growers ' Co operative Society within the time prescribed by sub cl. (2) or the extended time under sub cl. (4) but if the offer is made after the expiry of that period it is optional for the factory occupier to accept it or not but in cases where he accepts such offer a binding agreement comes into existence, and the sugarcane supplied thereunder becomes "bonded sugarcane". [786 E M]. In the instant case the offer of additional quantity of two lac maunds of sugarcane was undoubtedly made long after the expiry of the period of sub cl. (2) but the same was accepted by the appellant firm and a binding agreement came into existence and what is more a binding agreement was executed by the parties in the prescribed Form 'C '. Further the conduct on the part of the appellant firm in referring the dispute to arbitration and filing an appeal against the arbitrator 's award under the relevant Rules clearly shows that the parties, particularly the appellant firm, treated the agreement dated May 4, 1955 as one under the Act and the U.P. Sugarcane Supply and Purchase Order, 1954. [786 F H]

ivil Appeal No. 3081 of 1988. From the Judgment and Order dated 25. 1985 of the Punjab and Haryana High Court in Civil Revision No. 2457 of 1985. R.K. Jain and Ms. Abha Jain for the Appellant. K.C. Sharma and R.K. Virmani for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted. The appeal is disposed of herein after hearing counsel for both the parties. The appellant landlord filed a suit for possession in the Civil Court of Hissar in Haryana. The respondent is the tenant in the shop situated at Raj Guru Market which had PG NO 531 been rented out to the respondent in 1978. The suit was filed on the basis that the respondent was in arrears of rent from lst December, 1982 to 3lst May, 1982 and the tenancy of the respondent had been terminated by giving him notice. The suit was filed for recovery of possession on the termination or expiry of the period of tenancy. It was filed because of Section 1(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as 'the Act '). The Act was passed with the object to control the increase of rent of certain buildings and rented land situated within the limits of urban areas and the eviction of tenants therefrom. For our present purpose, it would suffice if we bear in mind two relevant provisions. Section 1(3) of the Act provides as follows : "Nothing in this Act shall apply to any building the construction of which is completed on or after the commencement of this Act for a period of ten years from the date its completion. " Section 13 of the Act deals with the eviction of tenants and sub section (1) thereof provides that the tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of that section. The section thereafter enumerates the statutory grounds for eviction upon which eviction is permitted which incidentally are more or less similar statutory ground all over the country. On or about 15th February, 1983, the respondent tenant filed his written statement. In November, 1984, the respondent tenant moved an application for dismissal of the suit of the appellant stating that the shop in question was constructed in June, 1974 as such the period of ten years had elapsed by June, 1984 in terms of section l(3) of the Act. and, as such, the immunity from the application of the had expired. The suit under the Act is not maintainable and the Jurisdiction of the Civil Court stands barred. The learned Sub Judge, Hissar. held that the decree was not necessary to be passed within the exemption period of ten years under section 1(3) of the Act. the learned Sub Judge accordingly dismissed the respondent 's application. Aggrieved thereby, the tenant respondent preferred a revision to the High Court of Punjab and Haryana. The High Court held that as the suit had not been decreed within the period of ten years, the building in question came within the operation of the Act and as such the Rent Act was applicable and the Civil Court had no jurisdiction. In the PG NO 532 premises, the learned Judge of the High Court dismissed the suit pending before the Sub Judge. Aggrieved thereby the appellant has come up in appeal to this Court. More or less identical provisions of the U. P. Act had come up for consideration before this Court in the case of Vineet Kumar vs Manal Sain Wadhera, [l984] 3 S.C.C. 352. The only point that was urged before this Court in that decision was whether the premises which was not ten years ' old on the date of the suit and was exempted from the operation of the new Rent Act, could be governed by it if ten years expired during the pendency of the litigation. The relevant provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 provided as follows: "20. Bar of suit for eviction of tenant except on specified grounds. (1) Save as provided in sub section [2). no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner. Provided that nothing in this sub section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in court or otherwise reduced to writing and signed by the tenant. " In Vineet Kumar vs Mangal Sain Wadhera, [supra], the respondent landlord filed a suit for eviction and for arrears of rent and damages, inter alia, on the grounds that the building in question was not covered by the U.P. Urban Buildings [Regulation of Letting, Rent and Eviction] ct, 1972 in view of the exemption granted to new buildings under section 2 [2] of the said Act and that the defendant appellant had defaulted in payment of rent. The tenant had resisted the claim on the ground that having regard to the date of construction of the building, it was covered ' by the Act, that the plaint having not been amended so as to bring the suit under the Act, it was barred by section 20 and that term was no default in payment of rent. As mentioned hereinbefore, during the pendency of the litigation the exemption granted under section 2 [2] expired. The question was whether the premises which was not ten years ' old on the PG NO 533 date of the suit and was exempted from the operation of the Rent Act, would be governed by it if ten years expired during~, the pendency of the litigation. Allowing the appeal, this Court held that the appellant must get benefits of the Act which became applicable to the premises in question during the pendency of the litigation. That would not affect the cause of action in that case. It was held that the contention that the Court had to decide the case on the basis of cause of action that accrued prior to the date of filing the suit and not on a new cause of action was not sustainable. It was further held that normally amendment in plaint is not allowed if it changes the causes of action. However, where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already, on the record, the amendment would be allowed even after the statutory period of limitation. This Court observed that processual justice required that the events and developments subsequent to the institution of proceedings must be taken into consideration in appropriate cases to promote substantial justice. Vineet Kumar 's case (supra] was discussed and explained by this Court in Nand Kishore Marwah und others vs Sammundri Devi, [1987] 4 S.C_ '.C. 382. This Court held that in view of section 2(2) of the 1972 Act, if an assessment is made of the newly built house then the date of completion of the building, the date from which 10 years have to be computed will be the date on which the first assessment was made. Therefore, the period of 10 years have to be computed from October. This Court further hold that if a tenant is entitled to the advantage of sections 39 and 40 of the Act and the period of 10 years elapses during the pendency of the eviction suit or appeal before this Court (which is the continuation of the suit), then the tenant would be entitled to the benefits of the Act. This Court further held that within 10 years as provided for in section 2(2) restriction on the institution of suit as provided for in section 20 (1) will not be applicable. It was held that during the pendency of the litigation even if 10 years expired the restriction under section 20 will not be attracted as the suit had been instituted within 10 years. It is well settled that the rights of the parties will have to be determined on the basis of the rights available to them on the date of the suit. This Court pointed out that the attention of the Court had not been drawn to the decision of this Court in Om Prakash Gupta vs Dig. Vijendrapal Gupta; , This Court referred to the words used in section 20 of the said Act which emphasised that "no suit shall be instituted for eviction." 'This clearly indicates that the restriction put under section 20 of the said Act is to the institution of the suit itself and, therefore, it is clear that if the provision of PG NO 534 this Act applies then no suit for eviction can be instituted except on the grounds specified in the sub sections of that section of the Act. This applies more so in the instant case where the section 13 of the Act provides that the tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of this section. Those provisions would not be applicable to a suit instituted within 10 years from the date of the completion of the building in question. That is the plain meaning of the expression "use". It was further to be borne in mind that in finding out the plain meaning of the expression "use"z the language, the background, the context, the purpose, these all have to be borne in mind. In Ram Saroop Rai vs Lilavati, ; , Krishna lyer, J. has explained the section 2(2) of the U. P. Act as follows ; "The legislature found that rent control law has a chilling effect on new building construction, and so, to encourage more building operations, amended the statute to release, from the shackle of legislative restriction, 'new constructions ' for a period of ten years. So much so, a landlord who had let out his new building could recover possession with out impediment if he instituted such proceedings within ten years of completion ? ' It is well settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim "actus curiam neminem gravabit" an act of Court shall prejudice no, man. Therefore, having regard to the time normally consumed for adjudication, the 10 years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within 10 years and even then within that time it may not be disposed of. That will make the 10 years holidays from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else. Judicial time and energy is more often than not consumed in finding what is the intention of the Parliament or in other wards, the will of the people. Blackstone tells us that the fairest and most rational method to interpret the will of the legislator is by exploring his inten tions at PG NO 535 the time when the law was made, by signs most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. (Underlined by the Court). See Commentaries on the Laws of England (facsimile of lst edition of 1765, University of Chicago Press, 1979 Vol. 1, p. 59). Mukherjea, J. as the learned Chief justice then was, in Poppatlal Shah vs State of Madras, ; said that each word, phrase or sentence was to be construed in the light of purpose of the Act itself. But words must be construed with imagination of purpose behind the said Judge Learned Hand, long time ago. It appears, therefore, that though we are concerned with seeking of intention, we are rather looking to the meaning of the words that the legislator has used and the true meaning of what words as was said by Lord Reid in Black Clawson International Ltd. vs Papierwerke Waldhof Aschaffenburg A G, [1975] Appeal Cases 591 at 613. We are clearly of the opinion that having regard to the language we must find the reason and the spirit of the law. If the immunity from the operation of the Rent Act is made and depended upon the ultimate disposal of the case within the period of exemption of 10 years which is in reality ability, then there would be empty reasons. In our opinion,bearing in mind the well settled principle that the rights of the parties crystallise on the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta vs Dig Vijendrapal Gupta, (supra), the meaningful construction must be that the exemption would apply for a period of 10 years and will continue to be available until suit is disposed of or adjudicated. Such suit or proceeding must be instituted within the stipulated period of 10 years. Once rights crystallise the adjudication must be in accordance with law. In that view of the matter, we are of the opinion that the High Court was in error in the view it took. The judgment and order of the High Court are set aside and the order of the learned Sub Judge is restored. The suit will now proceed in accordance with law in the light of the observations herein as expeditiously as possible. The costs of the appeal will be the costs of the suit. N.V.K. Appeal allowed.

The appellant landlord filed a civil suit against the respondent tenant for possession of a shop which had been rented out by him in 1978. The suit was filed on the basis that the respondent was in arrears of rent from lst December, 1981 to 31st May,1982, that the tenancy had been terminated by giving a suit notice, and that section 1(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973_exempted the building from the purview of the Act. On or about 15th February, 1983, the respondent tenant filed his written statement, and in November, 1984, moved an application for dismissal of the suit stating that the shop in question was constructed in June 1974 and as such, the period of 10 year had elapsed by June 1984 in terms of section 1 [3] of the Act and as such, the immunity from the application of the Act having expired, the suit under the Act is not maintainable, and that the jurisdiction of the Civil Court was barred. The Sub Judge held that the decree was not necessary, to be passed within the exemption period of 10 years under section 1 (3) of the Act, and accordingly dismissed the respondent 's application. The respondent preferred a revision petition to the High Court , which held that as the suit had not been decreed within the period of 10 years, the building in question came within the operation of the Act and as such, PG NO 528 PG NO 529 the rent Act was applicable and the Civil Court had no jurisdiction. The High Court allowed the petition and consequently dismissed the suit pending before the Sub Judge. The landlord appealed to this Court by Special Leave. Allowing the appeal and remanding the case, HELD: l.(a) The rights of the parties will have to be determined on the basis of the rights available to them on the date of the suit. The Judgment and Order of the High Court set aside, and order of the Sub Judge restored. The suit to proceed in accordance with law. {533G 535F] (b) Section 13 of the Act provides that the tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of the said Section. Those provisions world not be applicable under Section 1(3) to a suit instituted within 10 years from the date of the completion of the building in question. {534B} (c) It is well settled that no man should suffer because of the fault of the Court or delay in the procedure. "Actus curiam neminem gravabit ' ' an act of Court shall prejudice no man. [534E] (d) Having regard to the time normally consumed for adjudication, the 10 years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to he filed within that time and be disposed of finally. [534F] (e) It is common knowledge that unless a suit is instituted soon after the date of letting, it world never be disposed of within 10 years and even then within that time it may not be disposed of. That will make the 10 years holiday from the Rent Act illusory and provide no incentive to the landlords to build new holiday to solve problem of shortages of houses. The purpose of the legislation would thus be defeated. [534G] (f) Bearing in mind the well settled principle, that the rights of parties crystallise on the date of the institution of the suit, the meaningful construction must be that the exemption world apply for a period of 10 years and will continue to be available until the suit is disposed of or adjudicated. Such suit or proceedings must be instituted within the stipulated period of 10 years. Once rights crystallise the adjudication must be in accordance with law. [535E] PG NO 530 Vineet Kumar vs Mangal Sain Wadhera, [1984] 3 S.C.C. 352; Nand Kishore Marwah and Ors. vs Samundri Devi, ; ; Om Prakash Gupta vs Dig. Vijendrapal Gupta, ; ; Ram Saroop Rai vs Lilavati, ; , referred to. 2.(a) Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else. [534G] (b) Judicial time and energy is more often than not consumed in Finding what is the intention of the Parliament or in other words, the will of the people. The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable and these signs are either the words, the context, the subject matter, the effects and consequences or the spirit and reasons of the law. [534H 535A] (c) Each word, phrase or sentence has to be construed in the light of the purpose of the Act itself but words must be construed with imagination of purpose behind them. Though the Court is concerned with seeking of intention, it is rather looking to the meaning of the word that the legislator has used and the true meaning of the words used. {535B} Poppatlal Shah vs State of Madras, ; and Black Clawson International Ltd. vs Papierwerke Walnhof Aschaffenburg A G, {1975] A.C. 591 at 613.

Appeal No. 1106 of 1964. Appeal by special leave from the judgment and order dated the October 31, 1961 of the Madras High Court in Tax Case No. 67 of 1958. A. V. Viswanatha Sastri, R. Venkataraman and R. Gopala krishnan, for the appellant. section T. Desai, Gopal Singh, B. R. G. K. Achar and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Judicature at Madras answering the following question of law in favour of the respondent : "Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the sum of rupees 84,633/ expended by the assessee in obtaining the loan or any part thereof is an allowable expenditure ?" The facts and circumstances of the case as stated by the Tribunal in the statement of the case are as follows : The appellant, India Cements Limited, Madras, hereinafter referred to as the assessee, is a public limited company. The question arises in respect of the assessment year 1950 51, accounting period April 1, 1949 to March 31, 1950. During the accounting year it obtained a loan of 40 lakhs of rupees from the Industrial Finance Corporation of India. This loan was secured by a charge on the fixed assets of the company. Since Mr. section T. Desai, the learned counsel for the respondent, has disputed some facts as stated by the Appellant Tribunal, it would be convenient to give these facts in the words of the Appellate Tribunal. It is stated in the statement of the case that "the proceeds of this loan was utilised to pay off a prior debt of 25 lakhs due to Messrs A. F. Harvey Limited and Madurai Mills, Limited. It cannot be stated definitely how the balance of 15 lakhs was used but the directors, while reporting on the accounts for the year ended 946 31 3 1949 on 4 10 1949 stated that that was utilised towards working funds. " The expenditure of Rs. 84,633/ in connection with this loan was made up of thefollowing items : Stamps 60,02300 Registration Fee 16,,06700 Charges for certified copy of the mortgage deed 2800 Indemnity deed by Essen and Company, Limited 1500 Vakil 's fee for drafting deed 7,50000 Legal fees 1,00000 Total Rs. 84,633 0 0 The assessee did not charge this expenditure in the profits and loss account for that year. It was shown in the Balance Sheet as mortgage loan expenses. It continued to be so shown till March 31, 1952. In the accounts for March 31, 1953 this was written off by appropriation against the profits of that year. The Income Tax Officer refused to allow the deduction of Rs. 84,633/ . He observed "As per the information furnished by the auditors, Rs. 25 lakhs of the loan was to be paid to Messrs A. F. Harvey, Limited, and Mathurai Mills, Limited in, discharge of the amount borrowed from them and utilised on the capital assets of the company. Though in the Company 's books the amount of Rs. 84,633 was not charged to revenue but capitalised and carried forward in the Balance Sheet, for purposes of income tax, the Company 's auditors claim the same as an admissible item of revenue expenditure." He held that the expenditure was incurred in obtaining capital and should be distinguished from interest on borrowed capital which was alone admissible as a deduction under section 10 (2) (iii). According to him, section 10 (2) (xi) specifically excludes from consideration any item of capital expenditure. He further held that the case was not distinguishable from the decision in The Nagpur Electric Light and Power Co. vs Commissioner of Income tax, Central Provinces(1). The Appellate Assistant Commissioner agreed with the Income Tax Officer. The Appellate Tribunal distinguished the case of Nagpur Electric Light and Power Co. (1) 947 vs Commissioner of Income Tax(1) on the ground that in the Nagpur Electric Light(1) case money was expended for obtaining capital. It observed as follows "Here we find the position to be different. A study of the balance sheets of the company as at 31 3 1949 discloses the fact that the paid up capital was sufficient to cover the entire capital outlay of the company and that the further borrowal of Rs. 25 lakhs was for aug menting the working. funds of the company. It appears to us that even at that early stage the money was borrowed and used not for capital purposes but for augmenting the working funds of the company. We, therefore, consider that the whole of the mortgage loan was used firstly to discharge the loan of Rs. 25 lakhs and the balance for working funds and, as such, the whole of the amount was purely for the purposes of augmenting the working capital of the company and that it could not be stated that it was used for capital purposes. In this view of the matter, we hold that the money expended in obtaining the loan is an allowable expenditure." The High Court, after noticing the findings of the Income Tax Officer and the Tribunal preferred the findings of fact made by the Income Tax Officer. It observed "At this stage, we may point out that the conclusion reached by the Tribunal that the money was borrowed only for working expenses and not for capital investment proceeded on an inference based upon the balance sheet. The Tribunal did not investigate how the sum of Rs. 25 lakhs earlier borrowed from A. H. Harvey and Madurai Mills Ltd. was actually utilised. Though in the order of the Income tax Officer it is found stated that that amount was utilised on the capital assets of the company and that statement was based on the authority of the information furnished by the auditors of the assessee, the Tribunal either overlooked or ignored this circumstance. In the face of the statement so recorded by the Income tax Officer, the Tribunal does not appear to have been justified in relying upon inferences in ascertaining whether the earlier borrowal was on capital or revenue account." (1)6 I.T.C. 28. 948 The High Court after reviewing various cases, observed : "If we ask for what purpose the expenditure in the present case was incurred, the only answer must be that it was incurred for the purpose of bringing into existence an asset in the shape of borrowing these Rs. 40 lakhs. The further question would then be whether this asset or advantage was not for the enduring benefit of the business and whether the expenditure incurred was one which was incurred once and for all. The answer to both questions would again be in the affirmative. It is true that the borrowed money has to be repaid and it cannot be an enduring advantage in the sense that the money becomes part of the assets of the company for all time to come. But, it certainly is an advantage which the company derives from the duration of the loan and undoubtedly it could not have been for any purpose other than an advantage to the business that the borrowing was made. That it is not enduring in the sense that the borrowing has to be repaid after a short or long period, as it were, cannot affect the conclusion that it was nevertheless an asset or an advantage that was secured. Viewed in the light of the tests adumbrated in the above decision Assam Bengal Cement Co. Ltd. vs Commissioner of Income Tax(1) it seems to us that the expenditure must be regarded as capital expenditure. As the facts of the case which we have set out earlier indicate, there can be no doubt that at least to the extent of Rs. 25 lakhs that amount was expended for purposes of a capital nature, clearly in order to bring into existence capital assets. We have also pointed out that though it was vaguely stated by the Tribunal that the other sum of Rs. 15 lakhs was utilised as working funds, there seems to be no material whatsoever before the Tribunal to justify its coming to that conclusion." The learned counsel for the assessee company, Mr. A, V. Viswanatha Sastri, urges that the expenditure is admissible as a deduction under section 10(2) (xv) of the Act. He says that the High Court erred in holding that the expenditure was made to acquire any asset or advantage of an enduring nature within the test laid down by Viscount Cave and approved by this Court in Assam, Bengal Cement Co. Ltd. vs Commissioner of Income Tax(1). He (1) 949 further says that what was secured by the expenditure was a loan and in India money expended in raising a loan, whether by means of a debenture or a mortgage and whether you call it a loan capital or not, is not an expenditure in the nature of capital expenditure. He further submits that the expenditure was expended wholly and exclusively for the purpose of the business of the company. The learned counsel for the revenue, Mr. section T. Desai, supports the reasoning of the High Court. He says that the High Court was right in preferring the findings of the Income Tax Officer on the ground that there was no material for the finding made by the Appellate Tribunal and the finding was based on surmises and material evidence was ignored. He says that the High Court in a reference is entitled to ignore any findings of fact made by the Appellate Tribunal if those findings are vitiated. In the alternative, he says that the question referred is wide enough to include the question whether there was any material for the finding of the Appellate Tribunal. On the merits he contends that expenditure takes the colour from the thing on which the expenditure is made. If the money is spent to obtain capital then the expenditure assumes the nature of capital expenditure, but if the money is spent to obtain raw materials then the expenditure takes the colour of revenue expenditure. He further says that the borrowed money is an enduring asset and any expenditure made to obtain this money falls within the test laid down by Viscount Cave and approved by this Court. A number of cases have been referred to during the hearing of the case by both the counsel but we do not propose to refer to all of them. We must start first with the cases decided by this Court and see what principles have been laid down for distinguishing revenue expenditure from expenditure in the nature of capital expenditure, and especially those cases which dealt with similar problems. We will first consider State of Madras V. G. J. Ceolho(1). This was not a case arising under the Indian Income Tax Act but under the Madras Plantations Agricultural Income Tax Act, 1955, in which a section exactly similar to section 10 (2) (xv) existed. In brief, the facts in that case were that the assessee had borrowed money for the purpose of purchasing the plantations and he claimed that in computing his agricultural income from these plantations the entire interest paid by him on moneys borrowed for the purpose of purchasing the plantation should be deducted as expenditure, under section 5(e) of the Act. In (1) [1964]8 S.C.R. 60 1 ; 950 the Madras Act there was no provision similar to section 10(2) (iii) of the Act and thus interest was not expressly deductible as an allowance. This Court applied the test formulated by Viscount ,Cave, L. C., in Atherton vs British Insulated and Helsby Cables Ltd.(1) and approved by the Court in Assam Bengal Cement Co. Ltd. vs Commissioner of Income Tax(1), and held that the payment of interest was a revenue expenditure. It observed that "no new asset is acquired with it; no enduring benefit is obtained. Expenditure incurred was part of circulating or floating capital of the assessee. In ordinary commercial practice payment of interest would not be termed as capital expenditure. " This Court further held that the expenditure was for the purpose of business. Mr. Desai tried to distinguish that case on the ground that what was at issue was interest on loan and not expenditure incurred for ,obtaining the loan. In our opinion, there is no justification for drawing this distinction in India. As observed by Lord Atkinson in Scottish North American Trust vs Farmer(1) "the interest is, in truth, money paid for the use or hire of an instrument of their trade as much as is the rent paid for their office or the hire paid for a typewriting machine. It is an outgoing by means of which the Company procured the use of the thing by which it makes a profit, and like any similar outgoing should be deducted from the receipts, to ascertain the taxable profits and gains which the Company earns. Were it otherwise they might be taxed on assumed profits when, in fact, they made a loss. " It will be remembered that there was no section like section 10(2) (iii) of the Act in the English Income Tax Act. On the other hand, there were certain rules prohibiting the deduction in respect of "any capital withdrawn from, or any sum employed or intended to be employed as capital in such trade. " or "any interest which might have been made if any such sums as aforesaid had been laid out at interest." Lord Atkinson first held in that case that the express prohibitions did not apply to the facts of the case and then proceeded to discuss general principles. These observations show that where there is no express prohibition, an outgoing, by means of which an assessee procures the use of a thing by which it makes a profit, is deductible from the receipts of the business to ascertain taxable income. On the facts of this case, the money secured by the loan was the thing for the use of which this expenditure was made. In principle, apart from any statutory provisions, we see no distinction between interest in respect of a loan and an expenditure incurred for obtaining the loan. (1) (2)[1955] 1 S.C.R. 972 : (3)5 T.C. 693 at 707. 951 Mr. Desai urges that these observations of Lord Atkinson should be limited to a case where temporary borrowings are made. It is true that the House of Lords. was dealing with the case of a company and the moneys that were borrowed were of a temporary character. But this fact was only relied on to hold that the moneys secured were not 'capital ' within rule 3 of First Case, section 100 (5 and 6 Vic. 35) of the Income Tax Act, 1842, for Lord Atkinson observed at p. 706; ". it appears to me, simply, amounts to this that the word "capital" must, in this rule, be held to bear a wholly artificial meaning differing altogether from the ordinary signification, though there be no context in the clause requiring that there should be given to it a meaning different from that which it bears in ordinary commercial transactions." He then referred to the decision in Bryon vs The Metropolitan Saloon Omnibus Company(1) to show that the borrowing by a joint stock company of money by the issue of debentures does not amount to an increasing of the capital of the company. In Bombay Steam Navigation Co. Ltd. vs Commissioner of Income Tax(2), this Court again examined the question of distinguishing between capital expenditure and revenue expenditure. This Court first held that on the facts of the case, cl. (iii) of section 10(2) did not apply, because the assessee in that case had agreed to pay the balance of consideration due by the purchaser and this did not, in truth, give rise to a loan. Then Shah, J., observed : "Whether a particular expenditure is revenue expenditure incurred for the purpose of business must be determined on a consideration of all the facts and circumstances, and by the application of principles of commercial trading. The question must 'be viewed in the larger context of business necessity or expediency. If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profit earing process and not for acquisition of an asset or a right of a permanent character, the possession of which is a condition of the carrying on of the business, the expenditure may be regarded as revenue expenditure: ' (1) 3 D.G. and J. 123. (2) ; : L8Sup. Cl/63 14 952 We will now briefly deal with relevant decisions of the High Courts. The first case referred is In re Tata Iron and Steel Company Ltd.(1) In that case, the Tata Iron and Steel Co. Ltd. had incurred an expenditure of Rs. 28 lakhs as underwriting commission paid to underwriters on an issue of 7 lakhs preference shares of Rs. 100/ each and the company claimed to deduct this amount as expenses under section 9 (2) (ix) of the Indian Income Tax Act (VII of 1918). Macleod, C.J., observed: "If it is admitted that the cost of raising the original capital cannot be deducted from profit after the first year, it is dffficult to see how the cost of raising additional capital can be treated in a different way. Expenses incurred in raising capital are expenses of exactly the same character whether the capital is raised at the flotation of the company or thereafter : The Texas Land and Mortgage Company vs William Holtham (2)". He further observed that "as long as the law allows preliminary expenses and goodwill to be treated as assets, although of an intangible nature, the money so spent is in the nature of capital expenditure just as much as money spent in the purchase of land and machinery." The Chief Justice accordingly held that Rs. 28 lakhs could not be treated as expenditure (not in the nature of capital expenditure) solely incurred for the purpose of earning the profits of the company 's business. Shah, J., also came to the same conclusion, and he thought that the ratio decidendi in Texas Land and Mortgage Company vs William Holtham (2 ) and the principles underlying the decision in Royal Insurance Company vs Watson(1) lent support to this conclusion. At this stage it would be convenient to consider the Case of Texas Land and Mortgage Company vs William Holtham (2) relied on in this decision. We have already mentioned that the statute law in England is different from the law in India and the observations of the learned Judges in the English cases must be appreciated in the light of the background of the English Income Tax Act. In this case a mortgage company had raised money by the issue of debentures and debenture stock and incurred expenses for the issue of mortgage and placing of such debentures and debenture stock. The Company claimed to deduct these expenses but the High Court held that the expenses could not be deducted under Schedule D of the English Income Tax Act as trading ex (1) (3) ; (2) 953 penses. Mathew, J., gave the following reasons for disallowing the claim: "The amount paid in order to raise the money on debentures, comes off the 'amount advanced upon the debentures, and, therefore, is so much paid for the cost of getting it, but there cannot be one law for a company having sufficient money to carry on all its operations and another which is content to pay for the accommodation. This appears to me to be entirely concluded by the decision of yesterday. (Anglo Continental Guano Works vs Bell(1)". In the course of arguments, Cave J., had remarked "It is only so much capital. A man wants to raise pound 1 00,000 of capital, and in order to do that he has to pay pound 4,000. That makes the capital pound 96,000. That is all. " In reply to the argument of Finlay, Q.C., that "the capital of the, company, properly so called, is the share capital" Cave, J. remarked : "To the extent that you borrow you increase the capital of the company." In our opinion, if one keeps in mind the background of the English Income Tax Act, the observations reproduced above have no relevance to cases arising under the Indian Income Tax Act. In face of rule 3, Case 1, section 100 (5 & 6 Vict. 35) prohibiting the deduction of any expenditure in respect of any sum employed or intended to be employed as capital, Mathew and Cave, JJ. were only concerned with the question whether the amount secured by debentures and the amount obtained by the issue of debentures and debenture stock could be called capital employed or intended to be employed within the meaning of this rule. Rightly or wrongly, the English Courts have held that the amount obtained by the issue of debentures is capital employed within the meaning of the rule, but this does not give us any guidance in interpreting the words 'capital expenditure ' occurring in section 10 (2) (xv) of the Act. In our opinion, the Bombay High Court was wrong in relying on Texas Land and Mortgage Company vs William Holtham(2). But we do not say that the Tata Iron and Steel (1) (2) 954 Co. (1) case was wrongly decided. Obtaining capital by issue of shares is different from obtaining loan by debentures. In Nagpur Electric & Light Co. vs Commissioner of Income Tax(1), the Court of the Judicial Commissioner, Nagpur, held that expenses for raising debenture loan required for changing the system of supplying current from D.C. to A.C. and for discharging a prior loan was not allowable as deduction of the company 's assessable income. The Judicial Commissioner followed the case of Texas Land and Mortgage Company vs William Holtham(3) and In re Tata Iron and Steel Company Ltd.(1). After referring to these two cases, the only additional reason given was that "apart from authority it seems to us to stand to reason that money expended in obtaining capital must be treated as capital expendiure." With great respect we must hold that this case was wrongly decided. The Kerala High Court in Western India Plywood Ltd. vs Commissioner of Income Tax, Madras(4)held that the expenditure incurred by the company a capital expenditure and was 10(2)(xv). The High Court Trust Company vs Jackson(5) Du#(1) and some other cases Madras(4) held that the expenditure raise a loan by debenture was therefore not deductible under section relying on European investment and Ascot Gas Water Heaters vs drew a distinction between the borrowing of capital and securing merely temporary or day to day accommodation or banking or trading facilities. According to the High Court, the expenses for borrowing capital could not be treated as revenue expenditure. This distinction may be valid in English Law but we are unable to appreciate how the distinction is valid under the Indian Income Tax Act. As the decision is mainly based on this distinction and relies inter alia on In re Tata Iron and Steel Co. Ltd.(") and Nagpur Electric and Light Co. vs Commissioner of Income Tax (2 we must with respect hold that the case was wrongly decided. In Vizagapatnam Sugars and Refinery Ltd. vs Commissioner of Income Tax(") the Andhra Pradesh High Court relying on Texas Land and Mortgage Company V. William Holtham(3) and the decision in Western India Plywood Ltd. vs C.I.T., Madras(4) held that on the facts and circumstances of that case, brokerage and commission of four annas on every maund of sugar paid by (2) (3) (1) (4) (5) (6) (7) 955 the assessee company was not revenue expenditure but capital expenditure. In our opinion, the derision, as far as the brokerage was concerned, was wrong, but we do not say anything in this case with respect to the decision as far as the commission on sale of goods was concerned. The Calcutta High Court examined the question in great detail in Sri Annapurna Cotton Mills Ltd. vs Commissioner of Income Tax(1), Bachawat, J., held that the loan of Rs. 10 lakhs obtained by the company was an asset or advantage for the enduring benefit of the business of the assessee. He placed reliance on a number of cases,some of which we have already considered. But we are unable to agree that a loan obtained can be treated as an asset or advantage for the enduring benefit of the business of the assessee. A loan is a liability and has to be repaid and, in our opinion, it is erroneous to consider a liability as an asset or an advantage within the test laid down by Viscount Cave and approved and applied by this Court in many cases. Sinha, J., after referring to a number of cases, felt that the raising of capital by issue of debentures was a recognised mode of raising capital and he felt that the decided cases had laid down the proposition that borrowing money by the issue of debentures was an acquisition of capital asset and that any commission or expenditure incurred in respect thereof was of a capital nature and not to be considered as in the nature of revenue. He was impressed by the fact that not a single case to the contrary was brought to his notice. But we have to decide the case on principle, and with respect it seems to us that he erred in treating the loan as equivalent to capital for the purpose of section 10(2) (xv) of the Act. In section F. Engineer vs Commissioner of income Tax (2) the Bombay High Court held that the expenditure incurred for raising loan for the carrying on of a business cannot in all cases be regarded as an expenditure of a capital nature. On the facts of the case they held that as construction and sale of the building was the sole business of the firm and the building was its stock intrade, and the loan was raised and used wholly for the purpose of acquiring this stock in trade and not for obtaining any fixed assets or raising any initial capital or for expansion of the assessee 's business, the expenditure incurred for the raising of loan was not an expenditure of capital nature but revenue expenditure. Although the conclusion of the High Court was correct, we are not able to agree with the principle that the nature of the expenditure incurred in raising a loan would depend upon the nature and purpose of (1) (2) 956 the loan. A loan may be intended to be used for the purchase of raw material when it is negotiated, but the company may after raising the loan change its mind and spend it on securing capital assets. Is the purpose at the time the loan is negotiated to be taken into consideration or the purpose for which it is actually used ? Further suppose that in the accounting year the purpose is to borrow and buy raw material but in the assessment year the company finds it unnecessary to buy raw material and spends it on capital assets. Will the income tax officer decide the case with reference to what happened in the accounting year or what happened in the assessment year ? In our opinion, it was rightly held by the Nagpur Judicial Commissioner in Nagpur Electric Light and Power Co. vs Commissioner of Income Tax(1) that the purpose for which the new loan was required was irrelevant to the consideration of the question whether the expenditure for obtaining the loan was revenue expenditure or capital expenditure. To summarise this part of the case, we are of the opinion that (a) the loan obtained is not an asset or advantage of an enduring nature; (b) that the expenditure was made for securing the use of money for a certain period , and (c) that it is irrelevant to consider the object with which the loan was obtained. Consequently, in the circumstances of the case, the expenditure was revenue expenditure within section 10(2)(xv). The last contention of Mr. Desai is that even if it is revenue expenditure, it was not laid out wholly and exclusively for the purpose of business. Subba Rao, J., reviewed the case law in Commissioner of Income Tax vs Malayalam Plantation(1) and observed as follows : "The expression "for the purpose of the business" is wider in scope than the expression "for the purpose of earning profits. " Its range is wide : it may take in not only the day to day running of a business but also the rationalisation of its administration and modernization of its machinery; it may include measures for the preservation of the business and for the protection of its assets and property from expropriation, coercive process or assertion of hostile tide; it may also comprehend pay ment of statutory dues and taxes imposed as a precondition to commence or for carrying on of a business; it may comprehend many other acts incidental to the carrying on of a business." (1) (2) ; 957 Mr. Desai says that the act of borrowing money in this case was not 'incidental to the carrying on of a business. We are unable to accept this contention. In Eastern Investments Ltd. vs Commissioner of Income Tax(") this Court held that the Eastern Investments Ltd., an investment company, when it borrowed money on debentures, the interest paid by it was incurred solely for the purpose of making or earning such income, profits or gains within the purview of section 12(2) of the Indian Income Tax Act. It held on a review of the facts that the transaction was voluntarily entered into in order indirectly to facilitate the running of the business of the company and was made on the ground of commercial expediency. This case, in our opinion, directly covers the present case, although Mr. Desai suggests that the case of an investment company stands on a different footing from the case of a manufacturing company. In some respects, their position may be different but in determining the question whether raising money is incidental to a business or not, we cannot discern any difference between an investment company and a manufacturing company. We may mention that in that case this Court was not considering whether the expenditure was in the nature of a capital expenditure or not, because it was agreed all through that the expenditure was not in the nature of capital expenditure, and the only question which this Court dealt with was whether the expenditure was incurred solely for the purpose of making or earning income, profits or gains. The case of Dharamvir Dhir vs Commissioner of Income Tax(1) also supports the conclusion we have arrived at on this part of the case. It was held in that case that the payment of interest and a sum equivalent to 11/16th of the profits of the business of the assessee in pursuance of an agreement for obtaining loan from the lender were in a commercial sense expenditure wholly and exclusively laid out for the purpose of the assessees business and they were, therefore, deductible revenue expenditure. Before we conclude we must deal with the point raised by Mr. Sastri that the High Court erred in law in preferring the findings of the Income Tax Officer to that of the Appellate Tribunal. It is not necessary to decide this question but it seems to us that in a reference the High Court must accept the findings of fact made by the Appellate Tribunal and it is for the person who has applied for a reference to challenge those findings first by an application under section 66(1). If he has. failed to file an application under (1) (2) ; : 958 S.66(1) expressly raising the question about the validity of the findings of fact, he is not entitled to urge before the High Court that the findings are vitiated for one reason or the other. To conclude we hold that the expenditure of Rs. 84,633/ was not in the nature of capital expenditure and was laid out or expended wholly and exclusively for the purpose of the assessee 's business. The answer to the question referred, therefore, must be in the affirmative. The appeal is allowed, the judgment of the High Court set aside and the question referred answered in the affirmative. The appellant will have its costs incurred here and in the High Court. Appeal allowed.

During the accounting period relevant for the assessment year 1950 51 the appellant company obtained a loan of 40 lakhs of rupees from the Industrial Finance Corporation of India. The loan was secured by a charge on the fixed assets of the company. A sum of Rs. 84,633 was shown in the Balance Sheet for the said accounting year as mortgage loan expenses; the sum was not charged as expenditure in the profit and loss account. In the accounts for the accounting year ending March 31, 1953, this sum was written off by appropriation against profits of that year. The Income tax Officer disallowed the deduction; he held that the expenditure was incurred in obtaining capital and should be distinguished from interest on borrowed capital which alone was admissible as a deduction under section 10(2)(iii). In his view the expenditure was of a capital nature and therefore not admissible under section 10(2)(xv) either. After intermediate proceedings the High Court in reference gave a finding upholding the view of the Income tax Officer. The appellant by special leave, came to this Court. It was contended on behalf of the appellant that : (1) the expenditure in question was not incurred to acquire any asset or advantage of an enduring nature; (2) it was applied wholly and exclusively for the purposes of the business; and (3) was admissible as a deduction under section 10 (2) (xv). HELD : In the circumstances of the case the expenditure in question was revenue expenditure within section 10(2)(xv). (i)When there is no express prohibition, an outgoing, by means of which an assessee procures the use of a thing by which it makes a profit, is deductible from the receipts of the business to ascertain taxable income. On the facts of the instant case, the money secured by the loan was the thing for the use of which this expenditure was made. In principle, apart from any statutory provisions, there is no distinction, as drawn by the Income tax Officer, between interest in respect of a loan and an expenditure incurred for obtaining the loan. [950 G H] (ii)A loan obtained cannot be treated as an asset or advantage for the enduring benefit of the business of the assessee. A loan is a liability and has to be repaid and it is erroneous to consider a liability as an asset or an advantage. [955 C] (iii)The nature of the expenditure incurred in raising a loan cannot be made to depend on the nature and purpose of the loan. A loan may be intended to be used for the purchase of raw material when it is negotiated but the company may after raising the lo an change its mind and spend it on securing capital assets, [955 11 956 B] 945 (iv)The loan was voluntarily entered into in order to facilitate the running of the business of the company and it could not be said that it was not laid out wholly and exclusively for the purpose of the business. [958 B] Case law considered.

ivil Appeal No. 5483 of 1983. From the Judgment and Order dated 7.10. 1982 of the Madhya Pradesh High Court in M.P. No. 169 of 1982. R.F. Nariman and P.H. Parekh for the Appellants. V.N. Ganpule, V.M. Tarkunde, S.K. Agnihotri, S.K. Sinha, Rajinder Narain, R.S. Singh, and Rameshwar Nath for the Respondents. The appellant, a partnership firm filed the writ petition seeking writ of mandamus and other direction to remove Rajdhani Distilleries Corporation, the 7th respondent in the writ petition in the High Court and 6th respondent in this appeal for short 'respondent ' or his 'servants ' or 'agents ' and to deliver vacant and peace ful possession of U j jain Distillery and warehouses at tached to it and the plant and machinery mentioned in the schedule Annexure P 3 to the writ petition. It also sought for mandamus or other order to have the valuation of the plant and machinery in Annexure P 3 assessed or direction to return the goods or things described in Annexure P 7 or on its failure to pay a sum of Rs.8,48,179.28 and a mandamus directing the State Govt. to terminate the licence granted on August 25, 1981 to the respondent and to issue licence to the appellant under section 13 of the M.P. Excise Act, 19 15, for short 'the Act ', etc. Thus this appeal. The material facts, to dispose of the point arose in this appeal, lie 482 in a short compass as stated hereunder: In the State of Madhya Pradesh nine distilleries for the manufacture of spirit were established and one of which was situated at Ujjain. The appellant and its predecessors continuously had licence under sections 13 and 14 of the Act in form D 2 to distil rectified spirit or denatured spirit or liquor and D I licence for wholesale supply of country made liquor in the distillery to retail vendors in the area attached to the distillery. The licence was for a period of 5 years. The last licence of which was for the period from April 1, 1977 to March 31. The normal procedure in vogue was to call for tenders and the lowest was being accepted, though sometimes highest was also preferred. Next licensing period commenced from April 1, 198 1 to March 31, 1986 and the respondent became the successful tenderer which the appellant impugned in Misc. Petition No. 701/81 and obtained stay of dispossession from the distillery and the attached warehouses, The interim stay was later vacated and the petition was dismissed on August 20, 198 1. We may also mention here that the writ petition was also dismissed and the special leave petition was dismissed by this court. Thus grant of licence to the respondent under D 1 and D 2 li cences became final. On August 21, 1981 the Officer in Charge of the distillery wrote a letter to the appellant calling upon them to be present on August 22, 1981 to deliv er the distillery, plant, machinery, etc. to the respondent. The appellant neither received it nor cooperated to deliver possession of the distillery, etc. to the respondent. In stead it locked the distillery and went away. In the mean while the Excise Department also put their locks on the distillery etc. On August 27. 1981 the District Excise Officer again called upon the appellant to be present on August 28, 1981 to deliver possession of the distillery, etc. to the respondent. But the appellant remained absent. Consequently possession was taken of the distillery and warehouses, after taking inventory of stock in hand in the presence of the witnesses and the same were handed over to the respondent on August 28, 1981. The appellant sent a letter on February 23, 1982 valuing the goods taken posses sion of at Rs.8,36,988.61. On August 8, 1982 the appellant demanded redelivery of the distillery, plant and machinery and warehouses and the value of the stock in trade or pay the amount. On March 16, 1982 the appellant filed the writ petition in the High Court but was dismissed. The appellant contended in the High Court that it had been in exclusive possession of the distillery, plant and machinery at Ujjain and the attached warehouses and dispossession was unlawful and that, 483 therefore, the appellant was entitled to restitution of the plant and machinery and also to the grant of licence after cancellation of the licence granted to the respondent. The High Court found that the appellant had no exclusive posses sion which always remained with the Excise Department. The appellant worked out the contract of manufacturing rectified spirit or spirit (country made liquor) in the distillery and wholesale supply to the retail vendors within the area attached to the distillery. Due to non cooperation of the appellant possession was taken and delivered to the incoming licensee, the respondent, as per rules and the appellant was not entitled to restitution. The other findings are not necessary as they are not pressed before this court. The appellant had given up the reliefs of valuation of the plant and machinery and stock in trade. During the pendency of the appeal on an application made by the appellant this court directed the state to make over payment of a sum of Rs. 10 lacs deposited by the respondent with the State Govt. and also further directed the respondent to deposited sum of Rs.5 lacs in the Registry of this court and directed the Registry to keep that amount in fixed deposit to earn inter est thereon subject to adjustment at the final hearing. Despite issuance of several notices by the department, the appellant did not cooperate in the estimate of the value of the plant and machinery of the distillery and warehouses. the Committee appointed in terms of the conditions of the licence, fixed a sum of Rs. 10,53,016.45 as total value payable to the appellant. Since a sum of Rs. 10 lacs had already been paid, the appellant is still entitled to the balance amount of Rs.53,016.45. R.F. Nariman, learned counsel for the appellant, in his thorough and analytical arguments based on record made a shift in the stand and now contended that on a read ing of several clauses in the licence exhibit P 2, in particu lar, clause 50 enjoins the state to fix the valuation of all materials like buildings, still, machinery, etc. belonging to the appellant as an outgoing licensee; should be pur chased by the respondent before the expiry of the contract and commencement of the succeeding contract of the respond ent; the Committee appointed by the Excise Department in this behalf should estimate fair valuation and payment thereto be made to the appellant before taking over posses sion and handing over the plant and machinery of the dis tillery and the attached warehouses to the respondents as a condition precedent to dispossess the appellant and start the operation of the contract by the respondent which admit tedly were not done. This is in contravention of the manda tory conditions of the licence and the rules. The 484 appellant, therefore, is entitled to restitution of the plant and machinery of the distillery and the attached warehouses illegally taken possession of by the respondent and the state. In support thereof he placed strong reliance in Godhra Electricity Co. Ltd. & Anr. vs State of Gujarat & Ors. , ; He also referred to us in support of his contention various documents. In our view it is not necessary to dwelve deep into them. Sri Ganpule and Sri Tarkunde, the learned senior counsel for the State and the respondent. contended that the appellant was requested twice to be present for delivery of the plant and machinery in the distillery and warehouses to the respondent and due to its non cooperation possession was taken. Even for the assess ment of the valuation, before the expiry of the contract. the appellant was given several notices requesting it to furnish the evidence of the value of the plant and machinery stock in trade, etc., and due to its non cooperation. the valuation could not be made. Prior valuation and payment are not condition precedent to work out the licence. The appel lant has no right to the restitution after the expiry of the licence. Sri Tarkunde, in particular, emphasised that the restitution prayed for became infructuous on account of the subsequent events, namely, pursuant to December 1984 Govt. policy the respondents established their distillery at U j jain at their own expenses. The second period of licence also expired in 1991. There was further change in the policy of the Govt. , namely each District was made a supply area under a separate licence for two years. Under these circumstances the appellant is not entitled to any reliefs. It is also further contended that the conditions in the licence in exhibit P 2 marked in the High Court should be read harmoniously. It is clear that prior fixation of the valuation and the payment of the price is not a condition precedent. The ratio in Godhra Electricity Co. Ltd. case is inapplicable to the facts of this case. The sole question is whether fixation of the price of the plants and machinery at Ujjain and the attached ware houses and stock in trade and payment thereof to the appel lant is a condition precedent to take possession and deliv ery thereof to the respondent on August 28, 1981. At the outset we may make it clear that, though Sri Nariman con tended that the grant of licence to the respondent was in gross violation of the conditions of the tender as the respondent did not comply with any of the mandatory condi tions stipulated therein and the delivery of the possession of the distillery in pursuance of the illegal contract is without jurisdiction, we decline to go into this question, though prima facie may be plausible to be countenanced, for the 485 reasons that the grant of licence for the period of 1981 to 1986 to the respondent became final and expired by efflux of time. It was also contended by Sri Nariman that the valua tion made at Rs. 10,53,0 16.45 was not proper and contrary to the tender 's conditions which stipulated deposit of a minimum of Rs. 19 lacs by the respondent as a condition to grant licence, and that, therefore, the appellant is enti tled to valuation of at least Rs. 19 lacs. We decline to go into that question also since the relief of valuation was given up in the High Court. It is also clear from the record that the appellant had not cooperated in estimating the value and the Committee of designated officers, namely the Addl. Collector, the District Excise Officer, Astt. Commis sioner of Excise and Accounts Officers was compelled to go into the question and made an assessment of the value on January 5, 1984. That valuation was also not questioned in the writ petition. To find whether it is a condition precedent to fix the valuation of the plants and machinery of the distillery and the warehouses and the stock in trade and payment thereof before taking over possession and handing over the same to the incoming licencee, the material clause 50 to be looked into reads thus: "All the materials like buildings, still, machinery, drums, wood fuel, coal, mahua, bottling, machinery, bottles, spices, red sealing wax, coaltar, pilfer proof seals, crown corks, alongwith alu capsules, etc. belonging to the outgoing licensee purchased for the use of distillery and warehouses attached thereto, shall be valued before the expiry of the old contract and the commence ment of the new one by a committee appointed by the Excise Department in this behalf. The committee aforesaid shall be appointed by the Excise Commissioner under the previous sanc tion of the Government (Separate Revenue Department) and it shall consist of five members, namely (1) Collector or Additional Collector convenor, (2) Assistant Commissioner of Excise of the Division concerned member (3) Executive Engineer Technical member, (4) Accounts Officer of the Excise Department Member, and (5) Representative of the licensee Member. If the representative of the licensee remains absent in the committee at the appointed time, the remaining four members shall begin their work in his absence and no objection of the licensee in this respect shall be heard. The valuation made and agreed upon by the Committee shall be sanc tioned by the Excise Commis 486 sioner with such necessary changes as he deems fit and in case of difference of opinion amongst the members, the Excise Commissioner shall pass orders relating to disputed valua tion. The orders of Excise Commissioner shall be final and binding upon the licensee. Note: The valuation of sanctioned plant at the warehouses may be done by a committee consisting of some of the members of the above referred committee, subject to the orders of the Excise Commissioner, which shall be final and binding on the licensee. Prima facie, if the clause by itself is read in isola tion, it would indicate that prior fixation of the value and payment is a condition precedent. But in our view all the conditions of the licence, policy of the Act and Rule of the possession, manufacture, supply, sale and distribution of the rectified spirit or denatured spirit or liquor from the stage of manufacture in Distillery till retail sale to the consumer be viewed as an integrated whole and the human behaviour of the outgoing licensee also has to be kept in view. Any other view would disrupt smooth transition from the outgoing to the incoming licensee; hampers the continui ty of supply and sale of intoxicants and cause collosal loss of public revenue. So let us consider the relevant proposi tions from this background. Section 13 of the Act requires a licensee to manufacture intoxicants: (a) Licence is required for manufacture, etc. of intoxicants; (b) No intoxicant shall be manufactured or collected . . . (f) No person shall induce, keep in his possession any material. . for the purpose of manufacture of intoxicants, other than tari, except under the authority and subject to the terms and conditions of the licence granted in that behalf. Section 14 provides that: (a) establish a distillery in which spirit may be manufactured under licence granted under section 13 on such conditions as the Govt. may impose. 487 (C) license on such conditions as the State Govt. may impose the construction and working of the distillery and brewery; (c) establish or licence warehouses wherein any intoxicant may be deposited and kept without payment of duty, subject to payment of such fee as the State Govt. may direct. . Section 17 provides inter alia that no intoxicant shall be sold except under the authority and subject to the terms and conditions of licence granted in that behalf. Thus it is clear that establishment of a distillery or a warehouse; manufacture of intoxicants, spirit (country made liquor), the possession and distribution and sale thereof are regulated under the Act. The Govt. in exercise of its power under section 62 of the Act made rules regulating the control of distilleries and warehouses by Officers of the Excise Department, especially appointed by the Excise Commissioner for that purpose. Therefore, any licensee, under the Act and the Rules, be it incoming or outgoing, should have D 2 and D I licences for establishment of distillery and warehouses, possession of raw materials, manufacture of liquor or rectified spirit or denatured spirit and supply to the retail vendors of the area attached to the distillery. Any infraction is an of fence. It is settled law by several decisions of this court that there is no fundamental right to a citizen to carry on trade or business in liquor. The state under its regulatory power, has power to prohibit absolutely any form of activity in relation to an intoxicant, its manufacture, possession, import and export. No one can claim, as against the state, the right to carry on trade or business in any intoxicants, nor the state be compelled to part with its exclusive right or privilege of manufacture, sale, storage of liquor. Fur ther when the state has decided to part with such right or privilege to the others, then state can regulate consistent with the principles of equality enshrined under article 14 and any infraction in this behalf at its pleasure are arbitrary violating Article 14. Therefore, the exclusive right or privilege of manufacture, storage, sale, import and export of the liquor through any agency other than the state would be subject to rigour of Article 14. Vide Har Shankar & Ors. vs Dy. Excise & Taxation Commissioner & Ors., and State of M. P.v. Nandial Jaiswal. ; , 488 When the state was dealing with the grant of the privi lege of establishing or manufacturing intoxicants, rectified spirit or denatured spirit, spirit (country made liquor) in a distillery owned or regulated by it, and invites tenders in this regard it should conform to the rigour of article 14 of the Constitution. Admittedly, the licence of the appellant expired on March 31, 1981 and thereafter it had no right to manufacture and store at distillery in Ujjain and distribu tion as wholesaler of the country made liquor from the attached warehouses to the retail vendors within that area granted to the respondent. But for the stay granted by the High Court the operation of the respondent 's licence was to begin on April 1,198 1. The outgoing licensee, the appel lant, had to hand it over to the respondent on that date. The conditions in the licence P 2 postulate of mutual rights and obligations between the outgoing licensee to sell and the incoming licensee to purchase the plant and machinery of the distillery, stock in trade and also the machinery in the warehouse including the apparatus, etc. enumerated in the conditions either at the price fixed or agreed directly between the parties or fixed by the committee of the desig nated officers. In case of any difference in the valuation between the members, the Commissioner of the Excise or the State Govt. would fix the valuation, which was made final. The Committee designated was to be constituted with prior approval of the Govt. as per condition 50 to evaluate the plant and machinery of the distillery and some of them of the warehouses. Outgoing licensee also is entitled to repre sent in the Committee. On his non cooperation the rest of the four members of the Committee are empowered to determine the value. Clause 23(iii) provides that any dispute relating to valuation of the sanctioned plant shall be referred to the State Government and the decision of the State Govt. shall be final and binding on the parties to the dispute. Clause 2 thereof refers that the licensee shall made over the said distillery and warehouses buildings on the termination of the licence in as good condition as they were at the com mencement hereof excluding reasonable wear and tear. Clause 36(4) provides that any dispute relating to the sale of spirit or plant by the licensee or the valuation of the plant shall be referred to the State Govt. and the decision of the State Govt. shall be final and binding. Clause 39(1) in particular, mentions that at the commencement of the term of this licence, the licensee shall buy all sanctioned plant at the U j jain distillery including spare parts, furniture, motor trucks and fittings at a price to be fixed by the State Government. Licensee shall pay the price thereof within 30 days of the communication. Similarly, clause 41, 42(1) and clause 44 provide that the incoming licensee shall take on lease all 489 other buildings structures attached to the distillery at Ujjain on such conditions and terms as per Public Works Department Manual Vol. II within a period of one month of the intimation of the acceptance of the tender. Then comes clause 50 quoted hereinabove. The incoming licensee shall make payment within 30 days from the date of communication of the value. Therefore, the courts should adopt realism, pragmatism, practicality and the purpose envisaged under the Act and the rules in construing the relevant clauses in the licence. The purpose of the Act the rules made therein is to regulate the manufacture, distribution sale of the intoxicants, rectified spirit or denatured spirit, liquor, sale to consumers within the state of Madhya Pradesh. It is an on going process conducted through the licensing system, an exclusive privi lege of the state through the licences granted under form D 1 and D 2 in this behalf. The duration of the licence is fixed one. On expiry of the licence the outgoing licensee shall be bound to handover the distillery plant and machin ery therein, and warehouses attached thereto, the stock in trade and other apparatus and goods used for the manufac ture, storage and distribution. The outgoing contractor is entitled continue his business activity till the last date of the licence, namely March 31, of the ending year. The succeeding licensee would take over the business from the outgoing licensee on April 1 of the year of licence. Thus there should be no hiatus between taking over and handing over the manufacture, possession. storage of the wholesale business of the spirit (country made liquor) or rectified spirit or denatured spirit. Under these circumstances it will well nigh be impossible to assess the valuation of the entire stock in trade or plant and machinery in the distill ery or the warehouses till the last date. In addition the cooperation of the outgoing licensee is also necessary and expected as he would be in possesssion of the records of the previous purchases of the materials, or plant or machinery if any new additions are made etc. Unless they are made available, it is not possible to assess the value after giving due rebate or depreciation, etc. to the incoming licensee. The human nature and conduct would be such that the outgoing licensee, being the unsuccessful tenderer, would not cooperate in handing over possession of the dis tillery and stock in trade and would approach the High Court under article 226 of the Constitution as was done in this case. The incoming licensee has time of thirty days in case of stock in trade or three months in the case of plant and machinery from the date of communication to him to pay the value to the outgoing licensee. Keeping those circumstances at the back of our mind we decline to adopt lexographic strict construction of clause 50 which 490 would thwart continuity; create hiatus in smooth operation of manufacture, storage, distribution and sales of the intoxicants. Moreover, after the assessment is made and in case of any difference of opinion in the valuation or the outgoing licensee claims higher value the final arbiter would be in some cases like stock in trade, the Commissioner of Excise and in case of plant and machinery or warehouses the State Govt. After the decision of the Commissioner or the State Government, it shall be communicated to the suc ceeding licensee, who has been given maximum period of three months to make payment to the outgoing licensee. In the light of the scheme of valuation of the plant and machinery of the distillery, or the apparatus in the warehouses and the stock in trade, we hold that strict construction would lead to innumerable complications and loss of public reve nue. We are inclined to hold that before the expiry of the licence, if the outgoing licensee cooperates, the value can be fixed with consensus, payment should also be made within the time stipulated. In all other cases it could be done even after the expiry of the stipulated period. In that perspective we have no hesitation to hold that prior valua tion of plant and machinery in the distillery, stock in trade therein or the value of the machinery in the ware houses and stock of the liquor stored therein and payment thereof before taking possession and handing them over to the incoming licensee is not a mandatory, nor a condition precedent. Therefore, taking over possession from the appel lant on August 28, 1981 and handing over the plant and machinery, etc. to the respondent is not illegal. Undoubtedly this court, in Godhra Electricity case held that it is mandatory that a person who is deprived of his property, before its taking over, the value should be esti mated and the payment made or else it is illegal. But the ratio would be considered in the light of the setting there in. The licence granted under section 6 of the as amended in 1959 to produce electrical energy was acquired by the Electricity Board. Section 6(6) provides that where a notice exercising the option of purchasing the undertaking has been served upon the licence, the licensee shall deliver the undertaking to the State Electricity Board on expiry of the relevant period referred to in section 6(1). In that case the constitutional validity of section 6(6) was ques tioned which did not provide for payment before taking over of the undertaking as offending Article 19(1)(f) and (g) and article 14 of the constitution. While considering the constitu tional validity of section 6(6) this court held that valuation and payment is a condition precedent since the Act did not envisage any payment of interest subsequent thereto. Accord ingly this court directed redelivery of the undertaking 491 to the licensee subject to follow the procedure as per law laid down therein. In this case admittedly the conditions of licence are not questioned, but expressly given up in the High Court. Even before us the validity of the valuation has not been questioned. It cannot cut the branch on which the appellant sits to assail the constitutional validity of the conditions of the licence. Accordingly we have no hesitation to hold that the appellant is not entitled to the restitu tion of the plant and machinery of the distillery at Ujjain and the attached warehouses. The appellant though claimed that the value of the plant and machinery was too low, contrary 'to the specification in this behalf in tender condition and though we decline to go into the question, the appellant appeared to have smarted under apprehension that it had to face the plea of acquies cence, if it were to cooperate earlier. So it is open to the appellant to make a representation to the Govt. and any officer not below a Secretary preferably of the concerned Department would go into the matter and decide the value as per the material on record. It is open to the appellant to place all its material. It is also open to the respondent to place its material and the authority would consider after giving an opportunity of hearing through counsel, if asked for, and decide the value accordingly. As regards deposit now made in the Registry of this Court, the Registry is directed to make payment of a sum of Rs.53,016.45 and inter est accrued thereon to the appellant and the balance amount and the interest accrued on the residual to the respondent and the respondent 's liability would be subject to the decision by the Secretary as indicated in the judgment. The appeal is accordingly allowed to the above extent and since the appellant substantially failed there would be no order as to costs. Y.L. Appeal partly allowed.

The appellants and its predecessors continuously held licences under Sections 13 and 14 of the Madhya Pradesh Excise Act to distil rectified spirit or denatured spirit or liquor. The last of such licence which the appellant had related to the period from 1.4.1977 to 31.3.1981. The next licensing period commenced from 1.4.1981 to 31.3.1986 and the respondent Rajdhani Distilleries Corporation became the successful tenderer in respect thereof which the appellant impugned by means of a writ petition before the High Court but failed both before the High Court as also in this Court in a special leave petition. Thereupon the appellant was called upon twice to be present to deliver the possession of the distillery to the respondent but the appellant did not co operate. Likewise the appellant did not co operate in fixing the value of the plant and machinery of the distill ery and warehouses as a result of which a committee was appointed in terms of the licence which fixed a sum of Rs.10,53,016.45 p. as the total value payable to the appel lant. Due to the non cooperation of the appellant, the Excise Department took over the possession of the distillery after making inventory of stock in hand in the presence of the witnesses and the same was handed over to the respond ent. The appellant thereafter demanded redelivery of the distillery and on his failure to get the same it filed a writ petition in the High Court praying for a writ of manda mus seeking inter alia restitution of the distillery and the warehouses etc., challenging the quantum of valuation fixed. The High Court dismissed the writ petition. The High Court found that the appellant had no exclusive possession which always remained with the excise Department; the appellant worked out the contract of manufacturing rectified spirit etc. and that due to non cooperation of the appellant, possession was taken and delivered to the incoming licensee as per rules and the 479 480 appellant was not entitled to restitution. Hence this appeal by special leave. It is contended on behalf of the appellant that clause 50 enjoins the State to fix the valuation of all the materials belonging to the appellant and pay the same to it as an outgoing licensee, before taking over possession and handing over the distillery and the attached warehouses to the respondents. According to it, it is a condition precedent under clause 50 to dispossess the appellant and start the operation of the contract by the respondent which admittedly were not done. This is a contravention of the mandatory conditions of the licence and the rules. The respondents on the other hand contend that the appellant is not entitled to restitution as it was due to its non cooper ation, possession was taken. According to them prior valua tion and payment are not condition precedent to work out the licence. Partly allowing the appeal, this Court, HELD: In the light of the scheme of valuation of the plant and machinery of the distillery, or the apparatus in the warehouses and the stock in trade, the Court held that strict construction (of clause 50) would lead to innumerable complications and loss of public revenue. We are inclined to hold that before the expiry of the licence, if the outgoing licensee cooperates, the value can be fixed with consensus, payment should also be made within the time stipulated. In all other cases it could be done even after the expiry of the stipulated period. In that perspective the Court had no hesitation to hold that prior valuation of plant and machin ery in the distillery, stock in trade therein or the value of the machinery in the warehouses and stock of the liquor stored therein and payment thereof before taking possession and handing them over to the incoming licensee is not a mandatory, nor a condition precedent. Therefore, taking over possession from the appellant on August 28, 1981 and handing over the plant and machinery, etc. to the respondent is not illegal. [490C E] In this case admittedly the conditions of licence are not questioned, but expressly given up in the High Court. Even before us the validity of the valuation has not been questioned. It cannot cut the branch on which appellant sits to assail the constitutional validity of the conditions of the licence. Accordingly we have no hesitation to hold that the appellant is not entitled to the restitution of the plant and machinery of the distillery at Ujjain and the attached warehouses. [491A B] It is open to the appellant to make a representation to Government and any officer not below a Secretary preferably of the concerned 481 Department would go into the matter and decide the value as per the material on record. It is open to the appellant to place all its material. It is also open to the respondent to place its material and the authority would consider after giving an opportunity of hearing through counsel, if asked for, and decide the value accordingly. [491D] Godhra Electricity Co. Ltd. and Anr. vs State of Gujarat and Ors. , ; ; Hat Shankar & Ors. vs Dy. Excise of M. P.v. Nandial Jaiswal; , , Referred to.

Appeal No. 20 of 1968. Appeal under Section 116 A of the Representation of the People Act, 1951 from the judgment and order dated the November 30, 1967 of the Patna High Court in Election Petition 19 of 967. Danial A. Latifi, and R.A. Gupta, for the appellant. D. Goburdhun, for the respondent. The Judgment of the Court was delivered by Mitter, J. This is an appeal by an unsuccessful candidate at an election held in February 1967 for the Bihar State Legislative Assembly from the Single Member Rajmahal Constituency No. 139. Originally there were eight candidates. : we are concerned only with two of them, namely, the election petitioner and respondent, Nathumal Dokania, the returned candidate as a result of the election. The election petitioner lost before the High Court. The main ground on which he presses this appeal are based on paras 4(c) and 4(e) of the petition. The relevant issue framed by the learned trial Judge with regard to paragraph 4 (c) issue No. 5 reading : "Did the respondent or his election agent or his workers with his or his election agent 's consent resort to corrupt practices in the election, as alleged by the petitioner and has the result of the election been materially affected thereby ?" para 4(c) it is pleaded that the respondent himself and his agents and workers including certain named persons with his consent "committed a corrupt practice of publication of statements of facts throughout the constituency and mainly at Shahebganj, Teen Pahar and Rajmahal during the election campaign during 43 the period 11th February 1967 to 15th February 1967 which induced and caused deception in the mind of the electors whereby the respondent procured a large number of votes which he would not otherwise have secured but for the corrupt practice aforesaid. " Copies of the pamphlets from Annexure 2 series to the petition. Mr. Latifi appearing for the appellant submitted that Annexure 2(A) does not further his client 's cause. His grievance is based on Annexure 2. The translation of this Annexure of which the original was in Hindi shows that it was a call to the Muslim voters of Rajmahal to "hear the message and prepare the graveyard for the Congress. " Reference was made therein to "the appeal of the day by Maulana Syed Usman Ghani Saheb of Phulwari Sharif Khankah" "that nobody should be in illusion that Muslims have to vote for the Congress. time also. It was also suggested that on account of high handedness of the Congress group Muslims should not support it. There was also a reference to the appeal of Pit Saheb of the Dargah of Phulwari Sharif that Muslims should not vote for any Congress candidate. The appeal ends with the sentence, "when you have life long connection with Sri Nathmal Dokania, the candidate of the Swantantra Party and when the Head of your religion, your Islam also opposes the Congress, then it becomes your duty to come out victorious by affixing stamps on the "Star" symbol." Mr. Latifi tried to argue that by the publication of the pamphlet an attempt was made to. induce Muslim electors not to vote for a Congress candidate in opposition to the mandates of the two. named religious heads. In other words, his contention was that undue influence within the meaning of section 123(2) of the Act was sought to be exercised on the Muslim voters in the name of the religious heads mentioned in the pamphlet under the threat of divine displeasure or spiritual censure. He also sought to argue that the reference to the mandate of Islam in the pamphlet amounted to the use of a religious symbol and as such the appeal by the pamphlet came within the mischief of section 123 (3) of the Act. Under 8. 123(2), a candidate may be guilty of corrupt practice if he uses "undue influence" which in the words of the section means any direct or indirect interference or attempt to interfere with the free exercise of any electoral right of a voter. Mr. Latifi 's submission was. that the pamphlet came within the mischief of subclause (ii) of proviso, (a) to section 123(2). Unfortunately for Mr. Latifi, although the pamphlet might have sustained a plea of undue influence about which we express no opinion, there is no pleading to that effect in the petition. In order that a pleading may be sufficient to make out a case of undue influence, it must 44 set out full particulars of it under the provisions of section 83(1)(c) of the Act which may be compared with Order 6 rule 4 of the Code of Civil Procedure. The said provision of the Act read with section 123(2) makes it obligatory on a party setting .up a case of corrupt practice by exercise of undue influence as suggested, to give full particulars thereof by stating inter alia who attempted to induce electors to believe that voting for a particular person would render them objects of divine displeasure or spiritual censure and in what manner such attempts were made. The real charge in paragraph 4(c) of the petition is that the pamphlet complained of misled the electors by false statements. Such a pleading falls far short of an allegation of undue influence by an attempt to make electors exercise their franchise in a particular manner. Para 4(c) does not even mention Muslim voters and does not contain any averment to the effect that they were sought to be influenced by the opinion of the religious heads. Mr. Latifi 's attempt to bring his case under section 123(3) is equally futile. Mr. Latifi sought to argue that Islam was a religious symbol of Muhamedans and the publication of the pamphlet containing a reference to the mandate of Islam was an attempt to prejudicially affect the election of the, petitioner. This case too is not borne out by the pleadings. Failing in his attempt to bring the ' case under the two sub sections mentioned already, he tried to bring his case under section 123 (4) of the Act. In this too, in our view, he cannot succeed. To bring the case under this sub section, there must be a publication by the candidate or his agent of any statement of some fact which is false, and which he believed to be false or did not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate 's election. The pamphlet does not cast any aspersion on the personal character or conduct of the election petitioner. Nor is there any false statement in relation to the candidature of the petitioner. In fact there is no reference to him at all. Consequently, the election petition does not attract the operation of the aforementioned sub sections of section 123 of the Act. The learned trial Judge should not have entertained any argument under subsections 3 and 3A of section 123 of the Act as in view of the pleadings issue No. 5 did not permit the raising of such contentions. In view of the pleadings we did not permit Mr. Latifi to pursue his arguments on this issue on the basis of section 123 sub sections (2)or (3) of the Act. That leaves us only with the allegation in para 4(e) of the petition which runs thus: "The election of the respondent is void, because the Returning Officer who is also the Sub Divisional Magis 45 trate of the area, in collusion with the respondents harassed the petitioner in all possible ways so much so that a mere application for correction in the petitioner 's name was allowed at the last juncture and the petitioner had been arrested the very next day of the said application, was put in jail for eight valuable days and thereby prevented from pursuing the election campaign. " The issue under which the above complaint was sought to be raised was the general one, namely, whether the election of the respondent is liable to be set aside ? Mr. Latifi drew our attention to portions of the testimony of the Returning Officer where he denied that he was in collusion with Nathmal Dokania or that because of such collusion he got the petitioner arrested after he had filed applications for correction of the entries with respect to his name in the electoral roll. He also denied that he got the petitioner arrested with any mala fide intention so that he might not be able to contest the election. in his cross examination, the Returning. Officer referred to. the proceedings started against the petitioner and said that the petitioner had been arrested once in January and for a second time in February 1967. The arrest in January 1967 was in connection with proceedings under section 107 of the Code of Criminal Procedure. The arrest in February 1967 was in connection with a case for some substantive offences. He added however that he was not in a position to say what was the offence alleged to have been committed by the petitioner by a mere reference to the certified copy of the order sheet. On this evidence there was nothing before the court to justify a conclusion in favour of the petitioner on the general issue. Only some suggestions had been made to the Returning Officer in his cross examination that he had ,acted mala fide and that he had a acted in collusion with the successful candidate. No details with regard to the complaints leading to or the grounds for the arrests were forthcoming. We find it difficult to believe that the petitioner did not know the 'grounds on which he was put under arrest. The arrest immediately before the election surely hampered the campaign of the election petitioner, but by itself the arrest does not lead to the conclusion that the Returning Officer was trying to bring pressure upon the election petitioner not to contest the election and much less that the arrest was made in collusion with the successful candidate. These being the only two points which were urged before us in the appeal, the appeal must fail and it is hereby dismissed with costs. G.C. Appeal dismissed.

The election of the respondent to the Bihar Legislative Assembly at the 1967 general election was challenged by the appellant one of the defeated candidates in an election petition. Annexure 2 to the petition was a pamphlet alleged to have been issued by the respondent and his supporters in which reference was made to the call of two Muslim religious heads that Muslims should not vote for the Congress party to which Islam was opposed. The High Court dismissed the election petition whereupon appeal was filed in this Court. The appellant urged that (i) In the aforesaid pamphlet an attempt was made to induce muslim voters not to vote for a Congress candidate in opposition to the mandate of two named religious heads and this amounted to the corrupt practice of "undue influence" under section 123(2) of the Representation of the People Act 1951; (ii) The reference to the mandate of Islam amounted to the use of a religious symbol within the mischief of section 123(3); (iii) The said pamphlet also came within the mischief in section 123(4); (iv) The Returning Officer who was also the Sub Divisional Officer of the District ordered the arrest of the appellant immediately before the election; this was done mala fide, in collusion with the respondent and the appellant was thereby hampered in his election campaign. HELD: (i) The pleadings in the appellant 's election petition did not permit consideration of his contention based on section 123(2) of the Act. In order that a pleading may be sufficient to make out a case of undue influence it must set out full particulars of it in compliance with section 83(1)(c) of the Act comparable to Order 6 r. 4 of the Code of Civil Procedure. The said provision of the Act read with section 123(2) makes it obligatory on a party setting up a case of corrupt practice by exercise of undue influence as suggested, to give full particulars thereof by stating inter alia who attempted ' to induce electors to believe that .voting for a particular person would render them objects of divine displeasure or spiritual censure and in what manner such attempts were made. The real charge in the relevant paragraph of the petition in the present case was that the pamphlet complained of misled the electors by false statements. Such a pleading falls short of an allegation of unique influence by an attempt to make electors exercise their franchise in a particular manner. [43 H 44 C] (ii) The contention that the case fell under section 123.(3) because of the use of the mandate of Islam as a religious symbol was 'also not borne out by the pleadings and therefore could not be considered. [44 D] (iii) To bring the case under section 123(4) there must be a publication by the candidate or his agent of any statement of same fact which is up. CI/69 4 42 false, and which is believed to be false or not believed to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate being a ,statement reasonably calculated to prejudice the prospects of that candidate 's election. The pamphlet in question did not cast any aspersion on the personal character or conduct of the election petitioner. Nor was there any false statement in relation to the candidature, of the petitioner. .Section 123(4) was therefore not attracted to the case. [44 E F] (iv) The. evidence in the case did not prove that the Returning Officer caused the appellant to be arrested mala fide or in collusion with the respondent. The arrest immediately before the election surely hampered the campaign of the election petitioner, but by itself the mere fact of arrest does. not lead to the conclusion that the Returning Officer was trying to bring pressure on the election petitioner not to contest the election and much less that the arrest was made in collusion with the successful candidate. [45 G]

vil Appeal Nos. 4180 and 4181 of 1989. From the Judgment and Order dated 20/21/22 7 1988 and 18/298 1988 of the Bombay High Court in Writ Petition Nos. 3313 and 3417 of 1987. N.N. Keshwani and R.N. Keshwani for the Appellants. 383 A.B. Rohatgi, Mrs. Gool Barucha, M.J. Paul, Kailash Vasdev, R. Karanjawala, Mrs.M Karanjawala (NP) and H.S. Anand for the Respondents. The Judgment of the Court was delivered by OJHA, J. Special leave granted. These civil appeals have been preferred against a common judgment of the Bombay High Court dismissing writ petition No. 33 13/87 filed by Arjun Khiamal Makhijani who is the appellant in one of these appeals and writ petition No. 3417/87 by Prithdayal Chetandas and others who are the appellants in the other civil appeal. Jamnadas C. Tuliani who is respondent No. 1 in both these appeals is the owner and tile landlord of the suit premises comprising two bed rooms flat together with a garage on the ground floor and a store room on Bhulabhai Desai Road in the city of Bombay. A suit was instituted by him for ejectment from the said premises against five defendants on the ground that they were tenants of the said premises and were in arrears of rent for a period of more than six months which they had not paid in spite of a notice of demand having been served on them as contemplated by sub section (2) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Act) and were consequently liable for eviction under sub section (3)(a) of the Act as it then stood. Two other grounds were pleaded by the re spondent No. 1 namely that the tenants had changed the user of the suit premises and that they had committed breach of terms and conditions of the tenancy. Subsequently, Arjun Khiamal Makhijani aforesaid was impleaded as defendant No. 6 in the suit on the assertion that the tenants had illegally sublet a portion of the suit premises namely the garage to him and were consequently liable to be evicted on this ground also. The suit was contested both by the tenants as well as by defendant No. 6. The Trial Court recorded find ings in favour of the landlord in so far as the pleas of default in payment of rent and illegal sub tenancy are concerned. The other two pleas namely that the tenants had changed the user of the suit premises and had also committed breach of terms and conditions of the tenancy were decided against the landlord. On the basis of the findings on the pleas of default in payment of rent and illegal subletting, the suit was decreed. Two appeals were preferred against the judgment of the Trial Court, one by the tenants and the other by defendant No. 6. Both these appeals were dismissed and the tenants and defendant No. 6 aggrieved by the said decree filed two writ petitions in the High Court. 384 Against the common judgment of the High Court dismissing these writ petitions, the present civil appeals have been preferred. Before dealing with the respective submissions made by learned counsel for the parties it may be pointed out that even though the finding that the tenants were defaulters in payment of rent has been upheld by the High Court, the other finding namely that the tenants had illegally sublet the garage of the suit premises to defendant No. 6 has been set aside and it has been held accepting the case of the tenants that the defendant No. 6 was a trespasser. The tenants had also claimed before the High Court the benefit of sub sec tion (3) of Section 12 of the Act as substituted by Amend ment Act 18 of 1987 which came into force on 1st October 1987. This plea too was repelled. The defendant No. 6 before the High Court on the other hand took up the plea that in view of the finding in the suit that he was an illegal sub tenant of the garage since 1967, he was entitled to the benefit of sub section (2) of Section 15 of the Act as amended by the aforesaid Amendment Act 18 of 1987. The High Court repelled this plea on the finding that he was not a sub tenant but a trespasser and also on the ground that he was not in possession on 1st February 1973, the relevant date mentioned in the said sub section. The High Court also held that benefit of subsection (2) of Section 15 as amend ed, could not be given to defendant No. 6 in a writ peti tion, the same being not a proceeding contemplated by Sec tion 25 of the Amendment Act. In order to appreciate the submissions made by learned counsel for the parties, it will be useful to extract sub section (3) as it stood at the time when the suit was instituted and sub section (3) as it stands after its amendment. Subsection (3) as it stood when the suit was instituted reads as hereunder: "3(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court. shall pass a decree for eviction in any such suit for recovery of possession. (b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court max fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to 385 pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. " After its amendment as aforesaid, it reads: "(3) No decree for eviction shall be passed by the Court in any suit for recovery of posses sion on the ground of arrears of standard rent and permitted increases if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and together with simple interest on the amount of arrears of such standard rent and permitted increases at the rate of nine per cent per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permit ted increases till the suit is finally decided and also pays costs of the suit as directed by the Court; Provided that, the relief provided under this sub section shall not be available to a tenant to whom relief against forfeiture was given in any two suits previously instituted by the landlord against such tenant." Sub section (2) of Section 15, on the other hand, after its amendment as aforesaid runs thus: "(2) The prohibition against the sub letting of the whole of any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in subsection (1), shall, subject to the provisions of this subsection, be deemed to have had to effect before the 1st day of February 1973, in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything con tained in any contract or in the judgment, decree or order of a Court, any such sublease, assignment or transfer of any such purported sublease, assignment or transfer in favour of any person who has entered into possession, despite the prohibition in subsection (1), as purported sub lessee, assignee or transferee and has continued in a possession on the date aforesaid shall be deemed to be valid and effectual for all purposes, 386 and any tenant who has sub let any premises or part thereof, assigned or transferred any interest therein, shall not be liable to eviction under clause (e) of sub section (1) of Section 13. The provisions aforesaid of this sub section shall not affect in any manner the operation of sub section (1) after the date aforesaid." Since considerable emphasis has been placed on Section 25 of the Amendment Act 18 of 1987, the same may also be usefully quoted. It reads: 25. Nothing contained in the principal Act, as amended by this Act, shall be deemed to autho rise the re opening of any suit or proceeding for the eviction of any person from any prem ises to which the principal Act applies as if such proceeding had been finally disposed of before the commencement of this Act. Explanation For the purposes of this section, suit or proceeding, as the case may be, shall not be deemed to have been finally disposed of, if in relation to that suit or proceeding, any appeal or proceeding is pending, or, if the period of limitation for preferring an appeal or proceeding, as the case may be, had not expired before the com mencement of this Act. " It has been urged by the learned counsel for the tenants that 14th November 1967 was the first day of hearing of the suit and since in pursuance of an order passed by the Trial Court on that day, the tenants had deposited the entire arrears of rent on 9th January 1968 within the time granted by the Court and continued to deposit the monthly rent thereafter they could not be treated as defaulters in pay ment of rent even if the amendment made in sub section (3) of Section 12 by the Amendment Act 18 of 1987 was ignored. We, however, find it difficult to agree with this submis sion. It is not denied that the arrears of rent which were for a period of more than six months and in respect of which a notice of demand had been served on the tenants under sub section (2) of Section 12 of the Act had not been paid by the tenants to the landlord within one month of the service of the notice. It is also not denied that during the said period of one month, no dispute regarding the amount of standard rent or permitted 387 increases was raised by the tenants. On a plain reading of clause (a) of sub section (3) of Section 12 of the Act as it stood at the relevant time, the said clause was clearly attracted and the consequence provided therein had to follow namely a decree for eviction against the tenants had to be passed. Clause (b) of sub section (3) on the face of it was not attracted inasmuch. as the said clause applied only to a case not covered by clause (a). This is amply borne out by the use of the opening words "In any other case" of clause (b). In Harbanslal Jagmohandas and Anr. vs Prabhudas Shiv lal, [1977] 1 S.C.C. page 576, these clauses (a) and (b) of sub section (3) of Section 12 of the Act came up for consid eration and it was held that the tenant can claim protection from the operation of the Section 12(3)(a) of the Act only if he makes an application raising a dispute as to standard rent within one month of the service of the notice terminat ing the tenancy. In the instant case this had not admittedly been done by the tenants. The consequence of non payment of arrears of rent claimed in the notice of demand was, there fore, inevitable. In Jaywant section Kulkarni and Others vs Minochar Dosabhai Shroff and Others, [1988] 4 S.C.C.p.108, clauses (a) and (b) of sub section 3 of Section 12 again came up for consideration. It was held: "Sub section (3)(a) of Section 12 categorical ly provided that where the rent was payable by the month and there was no dispute regarding the amount of standard rent or permitted increases, if such rent or increases were in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after notice referred to in subsection (2), the court shall pass a decree for evic tion in any such suit for recovery of posses sion. In the instant case, as has been found by the court, the rent is payable month by month. There is no dispute regarding the amount of standard rent or permitted in creases. Such rent or increases are in arrears for a period of six months or more. The tenant had neglected to make payment until the expi ration of the period of one month after notice referred to in subsection (2). The Court was bound to pass a decree for eviction in any such suit for recovery of possession." Faced with this difficulty, learned counsel for the tenants urged that since the Act was a beneficial legisla tion the tenants having deposited the arrears of rent within the time granted by the Trial Court and having continued to deposit future rent thereafter the decree for 388 their eviction deserves to be reversed by this Court. In so far as this submission is concerned, it may be pointed out that in Ganpat Ram Sharma and others vs Gayatri Devi, [1987] 3 SCC page 576, while dealing with almost a similar Rent Control Legislation it was held: "But quite apart from the suit being barred by lapse of time, this is a beneficial legisla tion, beneficial to both the landlord and the tenant. It protects the tenant against unrea sonable eviction and exorbitant rent. It also ensures certain limited rights to the landlord to recover possession on stated contingencies. In Ganpat Ladha vs Sashikant Vishnu Shinde, [1978] 2 SCC page 73 while dealing with the scope of clauses (a) and (b) of sub section (3) of Section 12 of the Act, it was held: "It is clear to us that the Act interferes with the landlord 's right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlord 's power to evict them, in these days of scarcity of accommodation, by assert ing his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf. Thus Section 12(3)(a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J.) in Ratilal Balabhai Nazar vs Ranchhodbhai Shan kerbhai Patel, AIR 1968 Guj 172. If there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlord acquires a right under Section 12(3)(a) to get a decree for eviction. But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in section 12(3)(b) and defeat the landlord 's claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to 389 see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation." (Emphasis supplied). When the Act contains provisions, some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord, the assertion that even with regard to such provisions of the Act which fall under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenants. The argument indeed is self defeating and only justifies the cynical proverb Head I win tail you lose. It is difficult to countenance the sentimental approach made by learned counsel for the tenants, for the simple reason that as pointed out in Latham vs R. Johnson and Nephew Ltd., (408) sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles. Reliance was placed by learned counsel for the tenants on Vatan Mal vs Kailash Nath, [1989] 3 SCC page 79. In that case provisions of Amending Ordinance No. 26 of 1975 whereby Section 13(a) was inserted in the Rajasthan Premises (Con trol of Rent and Eviction) Act, 1950, came up for considera tion. After pointing Out that the object of inserting Sec tion 13(a) was to confer benefit on all tenants against whom suits for eviction on ground of default in payment of rent were pending and to achieve that object, the said Section had been given overriding effect, it was held that the interpretation of Section 13(a) must conform to the legisla tive intent and the courts should not take narrow restricted view which will defeat the purpose of the Act. In our opin ion, in view of the mandatory provisions contained in Sec tion 12(3)(a) of the Act, the decision in the case of Vatan Mal, (supra) is not at all attracted to the facts of the instant case. Clauses (a) and (b) of sub section (3) of Section 12 of Act are calculated to meet entirely different situations and the object of clause (b) was not to defeat the mandatory requirement of clause (a) scope of which has already been discussed above. For the same reason, the decision of this Court in B.P. Khemka Pvt. Ltd. vs Birendra Kumar Bhowmick & Anr., [1987] 2 SCR page 559 on which too reliance has been placed by the learned counsel for the tenants is of no assistance to them. 390 It was then urged by the learned counsel for the tenants that notwithstanding the provisions contained in Section 12(3)(a) of the Act, this Court can still grant relief to the tenants in view of the power conferred on it under Article 142 of the Constitution "for doing complete justice" in the case. Reliance in support of this submission has been placed on Smt. Kamala Devi Budhia and others vs Hem Prabha Ganguli and Others, [1989] 3 SCC page 145. This submission ignores the basic concept that Article 142 does not contem plate doing justice to one party by ignoring mandatory statutory provisions and thereby doing complete injustice to the other party by depriving such party of the benefit of the mandatory statutory provision. In the case of Smt. Kamala Devi Budhia, (supra), the question arose as to wheth er an application under Section 12 of the Bihar Buildings (Lease, Rent and Eviction) Control Act was competent or in the circumstances of the case only a suit under Section 11 thereof could be filed. It was pointed out that it is the same Court before which both a suit under Section 11 and an application under Section 12 are to be filed and it was in this background that it was held: "If it is assumed that an application under Section 12 of the Act is not maintainable in the facts and circumstances of the present case, in our opinion, the proceeding has to be treated as a suit and the judgment of the learned Munsif as a decree therein. A further question may arise as to the effect of the Judicial Commissioner, Ranchi declining to pass a formal decree of eviction and directing the appellants to make an application under Section 12(3) of the Act for that purpose. Can this Court restore the decree of the trial court in absence of an appeal by the appel lants before the High Court? We think.that we can and we should. the question does not affect the substantive right of the parties as the controversy was concluded by the first appellate court in favour of the appellants. What was left was only procedural in nature and inconsistent with our decision to treat the proceeding as a suit. The occasion for filing an application under Section 12(3) can arise only where the matter is covered by Section 12, and as we have made an assumption in favour of the respondents that Section 12 has no application to the present case, there is no point in asking the appellants to file such an application. As mentioned in Article 142 of the Constitution of India, this Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, 391 and the present case is a most appropriate one for exercise of such power." (Emphasis supplied) The said decision apparently cannot be applied to the facts of the instant case. Learned counsel for the tenants then urged, relying on Praduman Kumar vs Virendra Goyal (Dead) by L.Rs., [1969] 3 SCR page 950, that at all events the tenants were entitled to be relieved against forfeiture for non payment of rent under Section 114 of the Transfer of Property Act benefit of which could be given if deposit of rent was made at any stage of the hearing of the suit. In our opinion, there is no substance in this submission either inasmuch as Section 114 of the Transfer of Property Act cannot be applied to a case where the suit for eviction of a tenant has been insti tuted not on the basis of forfeiture of lease under the Transfer of Property Act but on the basis of statutory provision dealing specifically with the rights and obliga tions of the landlords and tenants such as Section 12 of the Act. In a case where a tenant renders himself liable to be evicted on the ground of being defaulter in the payment of rent as contemplated by sub sections (2) and (3)(a) of Section 12 of the Act, bar from the way of the landlord in instituting a suit for ejectment of a tenant is removed and he gets a right to have a decree for eviction. Such removal of bar is not in any sense forfeiture of any rights under lease which the tenant held. Section 114 of the Transfer of Property Act which provides relief against forfeiture for non payment of rent applies to a case where a lease of immovable property has determined by forfeiture for non payment of rent. Section 111 of the Transfer of Property Act deals with various contingencies whereunder a lease of an immovable property determines. Clause (g) contains one.of such contingencies being by forfeiture inter alia in case the lessee breaks an express condition which provides that on breach thereof the lessor may re enter. In a case where forfeiture of lease is claimed for non payment of rent, it would, therefore, have to be established that one of the express conditions of the lease provided that on breach of that condition namely on nonpayment of rent the lessor was entitled to re enter. It is only in those cases where such an express condition is contained in the lease and the lessee breaks the said condition and the lessor on his part gives notice in writing to the lessee of his intention to determine the lease that a lease of immovable property determines by forfeiture for non payment of rent. In the instant case, the suit was not based on any such forfeiture of lease under the Transfer of Property Act but was filed for the 392 enforcement of the statutory right conferred on the landlord by subsections (2) and (3)(a) of Section 12 of the Act. Lastly, it was urged by the learned counsel for the tenants that after clauses (a) and (b) of sub section (3) of Section 12 were substituted by the consolidated sub section (3) of the Amendment Act 18 of 1987, the tenants should have been given the benefit of the deposit of arrears of rent on the first day of hearing in pursuance of the order of the Trial Court dated 14th November, 1967, and of the deposits of future rent thereafter and at all events they were enti tled to make the necessary deposit after the commencement of the Amendment Act 18 of 1987. In our opinion, the tenants are not entitled even to the benefit of the amended sub section (3) of Section 12 of the Act inasmuch as on a plain reading of the sub section it is not possible to give it a retrospective operation. In this connection, it will be useful to notice that while amending sub section (2) of Section 15 of the Act, it was provided by the Amendment Act 18 of 1987 that the provisions which were substituted in the said sub section, shall be deemed to have been substituted on the 1st day of February 1973. No such provision was made with regard to the substitution of sub section (3) of Sec tion 12 of the Act. Sub section (3) uses the words "on the first day of the hearing of the suit or on or before such other day as the Court may fix". If the deposit of arrears of rent on 9th January 1968 is pleaded as compliance of the deposit contemplated by the amended sub section (3) and even if for the sake of argument this plea is accepted, the said deposit would still not confer on the tenants the benefit of sub section (3) for the obvious reason that the said sub section contemplates not only the deposit of standard rent and permitted increases then due but also of simple interest on the amount of arrears of such rent and permitted in creases at the rate of nine per cent per annum. Such amount of interest was admittedly not deposited by the tenants either on 9th January 1968 or on any date thereafter. We owe turn to the submission of the learned counsel for the ten ants that the tenants were entitled to make the deposit contemplated by sub section (3) "on the first day of the hearing of the suit or on such other day as the Court may fix" after sub section (3) being substituted by the Amend ment Act 18 of 1987. This argument ignores the difference between the terms "at the hearing of the suit" as used in Section 114 of the Transfer of Property Act and the term "on the first day of the hearing of the suit". In the case of former, it may be possible to argue that the deposit can be made at any hearing of the suit either in the Trial Court or the Appellate Court, an appeal being a continuation of the suit but the said argument is not available in the latter case where the words used are "on the first day 393 of the hearing of the suit". In the very nature of things it is not possible to contemplate numerous dates all of which may fulfil the requirement of being "the first day of the hearing of the suit". In this connection, it would be useful to notice that the words "on the first day of the hearing of the suit or on or before such other day as the Court may fix" occurring in sub section (3) of Section 12 of the Act after its amendment by the Amendment Act 18 of 1987 occurred in clause (b) of the unamended sub section (3) also. In S.D. Chagan Lal vs Dalichand Virchand Shroff and Others, [1968] 3 S.C.R. page 346 while dealing with the clauses (a) and (b) of the unamended sub section (3) of the Section 12 of the Act, it was held that the date fixed for settlement of issues was September 3, 1956 which can be taken to be the date of the first hearing of the suit for the purpose of the Act. The same meaning obviously has to be given to the aforesaid words when they have been repeated in the amended sub section (3) of Section 12 of the Act. The date fixed for settlement of issues in a suit cannot be equated with any other date or dates which may be fixed in the suit or the appeal. The words "on or before such other dates as the Court may fix" occurring after the words "on the first day of the hearing of the suit" in subsection (3) of Section 12 of the Act were obviously meant to meet a situation where for some inevitable reason the necessary deposit could not be made on the day of the hearing of the suit and the Court extended the time to make such deposit. A deposit made on or before such extended date would also meet the requirement of the subsection. Even Section 25 of the Amendment Act 18 of 1987 would be of no assistance in so far as the interpreta tion of Section 12(3) of the Act is concerned. The said Section provides for certain exceptions in which a suit or proceeding for the eviction of any person may be reopened. A provision containing exceptions cannot be interpreted so as to enlarge the scope of sub section (3) of Section 12 of the Act. The said Section 25 may be applicable to sub section (2) of Section 15 as amended by the Amendment Act 18 of 1987, the amendments whereunder were given retrospective effect as indicated earlier or also to a similar provision. Clause (a) of the unamended sub section (3) of the Section 12 of the Act conferred a substantive right on the landlord to have a decree for eviction in his favour as held by this Court in the case of Ganpat Ladha, (supra) and such a right could be taken away only by a provision which either ex pressly took away that fight or could be interpreted to have taken away that right by necessary inendment We do not find any such indication either in the amended sub section (3) of Section 12 of the Act or even in Section 25 of the Amendment Act 18 of 1987. By taking recourse to the process of reopen ing of proceedings one cannot put the hands of the clock back and create an artificial 394 date as the "first day of the heating of the suit". No other point has been urged by learned counsel for the tenants and consequently we find no merit in the appeal filed on behalf of the tenants. We now turn to the appeal filed by defendant No. 6 to whom the garage was found by the courts below to have been illegally sub let but who has been found to be a trespasser by the High Court. As seen above, the High Court in its judgment under appeal repelled the claim of defendant No. 6 that he was entitled to the benefit of the amended sub section (2) of Section 15 of the Act on three grounds (i) that he was a trespasser and not a person to whom the garage had been illegally sub let, (ii) that he was not in posses sion on the relevant date namely 1st February, 1973 and (iii) that the said benefit could be extended only in a suit or proceeding under the Act and not in a writ petition which did not constitute a continuation of a suit or proceeding under the Act but was an independent proceeding under the Constitution. It has been urged by learned counsel for defendant No. 6 that since the finding of the Courts below that the garage had been illegally sub let to the defendant No. 6 was in consonance with the pleading of the landlord in this behalf, the said finding could not be reversed in a. writ petition first, because it was not within the competence of the High Court to reverse that finding either under Article 227 or even under Article 226 of the Constitution and .secondly, that the landlord was bound by his admission in the plead ing. In so far as the submission that the landlord was bound by his admission in the pleading is concerned, it is true that such an admission being a judicial admission under Section 58 of the Evidence Act stands on a higher footing than evidentiary admissions as held by this Court in Nagin das Ramdas vs Dalpatram Ichharam, [1974] 1 SCC page 242 but on the facts of the instant case to which reference shall be shortly made, it is the proviso to Section 58 which comes into play and the rights of the parties had to be determined de hors the said admission. The said proviso contemplates that the Court may in its discretion require the facts admitted to be proved otherwise than by such admissions. The scope of this provision did not fall for consideration in the case of Nagain Das (supra). Reverting to the facts of the instant case it would be seen that there was a triangu lar dispute in this case. After getting the plaint amended the landlord no doubt set up the case that the tenants had illegally sub let the garage to the defendant No. 6. The case of the tenants, on the other hand, was that defendant No. 6 was a trespasser and they had never sub let the garage to him. In so far as the defendant No. 6 is 395 concerned, the plea set up by him was that he came into possession of the garage in pursuance of an agreement en tered into between him and Daulat, son of one of the ten ants, for a period of six months. As pointed out by the High Court in its judgment under appeal no positive plea of sub tenancy, whether lawful or unlawful was raised by defendant No. 6 in the Trial Court. It is in this background that the controversy on the question as to whether the garage had been illegally sub let by the tenants to the defendant No. 6 had to be resolved. First, since the defendant No. 6 himself had disputed the contention of the landlord that the garage had been illegally sub let to him by the tenants and had set up the agreement with Daulat who apparently had no interest whatsoever in the garage apart from being the son of one of the tenants, a finding that the garage had been sub let to the defendant No. 6 illegally could obviously not be given simply on the basis of the case set up by the landlord in this behalf. Even if defendant No. 6 was permitted to take a somersault and set up a plea contrary to his pleadings, admitting the case of the landlord, any finding given on the basis of such admission would not be binding on the tenants who were contesting the plea of the landlord and had set up a case that defendant No. 6 was a trespasser and that the garage had never been sub let by them to him. Such a finding as aforesaid vis a vis tenants would be a finding based on the admission of the landlord in his own favour. To resolve the controversy as between the landlord and the tenants in this behalf, therefore, an independent finding on merits based on evidence and not on the basis of the plea raised by the landlord had to be given. These are the peculiar facts of this case on account of which the proviso to Section 58 of the Evidence Act was clearly attracted and the parties had to be required to prove their respective cases by adduc ing evidence de hors the admission of the landlord in his plaint. In so far as the submission made by learned counsel for defendant No. 6 that a finding of fact could not be inter fered with in a writ petition by the High Court is con cerned, by and large no exception can be taken thereto. The rule in this behalf, however, is not inflexible but has exceptions recognised by judicial decisions which being well known are not necessary to be recapitulated. For in stance this rule will not apply if a finding is arbitrary or based on no evidence or is such that no one properly in structed in law could have given it the same being in the teeth of some statutory provision or in ignorance of binding precedents. In our opinion, the instant case is one which falls within the exception to the said rule. It is true that the landlord by getting his plaint subsequently amended set up the plea that the garage had been illegally sub let by the tenants to defendant No. 6. It is, 396 however, equally true that the said plea was categorically denied by the tenants and it was specifically asserted by them that they had never sub let the garage to defendant No. 6 and that the defendant No. 6 was a trespasser. As regards the defendant No. 6 himself he pleaded to have come into possession of the garage for a period of six months on the basis of an agreement entered into between him and Daulat, the son of one of the tenants. In the life time of his father Daulat could not have the status of a joint tenant and in the eye of law he had no interest in the garage, apart from using it in his capacity as the son of one of the tenants. He was not in a position either to sub let the garage or even to grant a licence thereof. As seen above, the High Court has emphasised in its judgment under appeal that no positive plea of sub tenancy, whether lawful or unlawful, was raised by defendant No. 6 in the Trial Court. That apart, defendant No. 6 in unequivocal terms admitted in his deposition also before the Trial Court that he came in possession by virtue of the agreement with Daulat, the son of defendant No. 1. He further admitted that he did not know that the defendant Nos. 1 to 5 were the tenants of the flat, store room and garage and that he did not make enquiry as to who were the tenants. This being the situation there was no scope for even drawing an inference that taking of posses sion of the garage for six months by defendant No. 6 in pursuance of the agreement entered into between him and Daulat may have been with the tacit approval of the tenants namely defendant Nos. 1 to 5. Nothing has been brought to our notice to indicate that the case of the landlord was that the tenants had sub let the garage to defendant No. 6 in his presence and he had personal knowledge about the transaction of sub letting. The High Court has also pointed out in paragraph 25 of its judgment under appeal that in support of their plea that defendant No. 6 was a trespasser defendant Nos. 1 to 5 had led evidence and that the lower court had no justification to ignore that evidence. It was apparently, therefore, a case where no one properly in structed in law could have come to the conclusion that the tenants had illegally sub let the garage to defendant No. 6. In this state of affairs it cannot obviously be said that the High Court committed any error in holding that defendant No. 6 was a trespasser. This being so, defendant No. 6 indisputably could not derive any benefit out of the amended subsection (2) of Section 15 of the Act. The finding of the High Court that defendant No. 6 was not in possession on the relevant date namely 1st February, 1973 was based on the circumstance that on that date admit tedly the garage was in possession of a receiver appointed by the Court and not in possession of defendant No. 6. It has been urged by learned counsel for defendant 397 No. 6 that possession of the receiver would enure to the benefit of defendant No. 6. This proposition has been con tested by the learned counsel for the landlord. We, however, do not find it necessary to go into this question in view of our conclusion that the finding of the High Court that the garage had not illegally been sub let to defendant No. 6 and that the said defendant was a trespasser is unassailable. Even if the submission of learned counsel for defendant No. 6 in this behalf is accepted the nature of possession of defendant No. 6 on 1st February 1973 would be in no way better than of a trespasser. For the same reason, we find it unnecessary to go into the correctness or otherwise of the view of the High Court that a writ petition being an inde pendent proceeding was not a proceeding in relation to a suit or proceeding under the Act. It was lastly urged by learned counsel for defendant No. 6 that after the judgment had been delivered by the High Court on 22 July 1988 dismissing the two writ petitions it was not open to the High Court to reopen and hear the writ petitions on 18 August 1988 and 29 August 1988. So far as this submission is concerned it may be pointed out that the very first sentence of the order of the High Court dated 18 August 1988 indicates that the judgment had not been deliv ered earlier but had only been dictated and the transcript was ready. Listing the matter again for further hearing became necessary inasmuch as while dictating the judgment a factual position was noticed that defendant No. 4 had died and there was nothing to show that his heirs had been brought on record. Learned counsel for the parties appeared on that date and an affidavit was taken on record. They prayed for time to make submissions on the said question. The matter was ordered to stand over till 29 August 1988 and in the meantime an affidavit in reply to the affidavit taken on record as aforesaid was permitted to be filed. Time given to defendant No. 1 to file affidavit in support of the undertaking given by him earlier was also extended to 29 August 1988. This submission also made by learned counsel for defendant No. 6 has, therefore, no substance. In view of the foregoing discussion, there is no merit even in the appeal filed by defendant No.6. In the result, both the appeals fail and are dismissed. In the circumstances of the case, however, there shall be no order as to costs. R.N.J. Appeals dismissed.

Jamunadas C. Tuliani is the owner and the landlord of the suit premises. He instituted a suit for ejectment against five defendants on the ground that they were tenants of the said premises and were in arrears of rent for a period of more than six months which had not been paid inspite of notice having been served on them as required by Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates, Control Act, 1947 (hereinafter referred to as the Act) and were consequently liable for eviction under sub section 3(a) of the Act as it then stood. Two other grounds were that the tenants had changed the user of the suit premises and they had committed breach of the terms and conditions of the tenancy. Subsequently Arjun Khiamal Mak hijani was impleaded as defendant No. 6 in the suit on the assertion that the tenants had illegally sub let a portion of the premises namely garage to him and were thus liable to be evicted on that ground also. The Trial Court decreed the suit in favour of the land lord on the plea of default in payment of rent and illegal sub letting. The other two pleas that the tenants had changed the user of the suit premises and had committed breach of terms and conditions of tenancy were decided against the landlord. Two appeals were preferred against the judgment of the Trial Court, one by the tenants and the other by the defend ant No. 6 and both these appeals were dismissed. Aggrieved by the said decree the tenants and defendant No. 6 filed two writ petitions in the High Court. Against the common judg ment of the High Court dismissing these writ petitions, the present civil appeals have been preferred. 381 Dismissing both the appeals, the Court, HELD: (i) On a plain reading of clause (a) of sub sec tion (3) of section 12 of the Act as it stood at the rele vant time, the said clause was clearly attracted and the consequence provided therein had to follow namely a decree for eviction against the tenants had to be passed. Clause (b) of sub section (3) of the face of it was not attracted inasmuch as the said clause applied only to a case not covered by clause (a). This is amply borne out by the use of the opening words "In any other case" of clause (b). [387A B] (ii) Article 142 of the Constitution does not contem plate doing justice to one party by ignoring mandatory statutory provisions and thereby doing complete injustice to the other party by depriving such party of the benefit of the mandatory statutory provisions. [390B] (iii) In a case where a tenant renders himself liable to be evicted on the ground of being defaulter in the payment of rent as contemplated by sub sections (2) and 3(a) of Section 12 of the Act, bar from the way of the landlord in instituting a suit for ejectment of a tenant is removed and he gets a right to have a decree for eviction. Such removal of bar is not in any sense forfeiture of any rights under the lease which the tenant held. In the instant case, the suit was not based on such forfeiture of lease under the Transfer of Property Act but was filed for the enforcement of the statutory right conferred on the landlord by sub sections (2) and 3(a) of Section 12 of the Act. [391D; 391H;392A] (iv) The tenants are not entitled even to the benefit of the amended sub section (3) of Section 12 of the Act inas much as on a plain reading of the sub section it is not possible to give it a retrospective operation. [392C ] The date fixed for settlement of issues in a suit cannot be equated with any other date or dates which may be fixed in the suit or the appeal. [393C] The words "on or before such other date as the Court may fix" occurring after the words "on the first day of the hearing of the suit" in sub section (3) of Section 12 of the Act were obviously meant to meet a situation where for some inevitable reason the necessary deposit could not be made on the day of the hearing of the suit and the Court extended the time to make such deposit. [393D] 382 By taking recourse to the process of reopening of pro ceedings one cannot put the hands of the clock back and create an artificial date as the "first day of the hearing of the suit." [393H; 394A] (v) Interpretation of statutes: "When the Act contains provisions, some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord, the assertion that even with regard to such provisions of the Act which fail under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenants. The argument indeed is self defeating and only justifies the cynical proverb Head I win tail you lose. It is difficult to countenance the sentimental approach made by learned counsel for the tenants, for the simple reason that as pointed out in Latham vs R. Johnson and Nephew Ltd., (408) sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles." [389B D] Harbanslal Jagmohandas and Anr. vs Prabhudas Sivlal, [1977] 1 SCC page 576; Jaywant section Kulkarni & Ors. vs Mino char Dosabhai Shroff & Ors., [1988] 4 SCC P. 108; Ganpat Ram Sharma & Ors. vs Gayatri Devi, [1987] 3 SCC P. 576; Ganpat Ladha vs Sashikant Vishnu Shinde, [1978] 2 S.C.C.P. 573; Latham vs R. Johnson & Newhew Ltd., (408); Vatan Mal vs Kailash Nath, [1989] 3 S.C.C.P. 79; B.P. Khemda Pvt. Ltd. vs Birendra Kumar Bhowmick & Anr., [1987] 2 S.C.R.P. 559; Smt. Kamala Devi Budhia & Ors. vs Hem Prabha Ganguli & Ors., [1989] 3 S.C.C.P. 145; Praduman Kumar vs Virendra Goyal (Dead) by L.Rs., [1969] 3 S.C.R.P. 950; S.D. Chagan Lal vs Dalichand Virchand Shroff & Ors., [1968] 3 S.C.R.P. 346 and Nagindas Ramdas vs Dalpatram Ichharam, [1974] 1 S.C.C.P. 242, referred to.

Appeals Nos. 503 to 506 of 1958. Appeals by special leave from the judgment and orders dated August 4, 1957, of the Bombay High Court in Letters patent Appeals Nos. 29 to 32, of 1957. J. C. Bhatt, R. P. Bhatt, R. A. Gagrat and G. Gopalakrishnan, for the appellants. N. C. Chatterjee, Madhowdas C. Bhagat and Radhey Lal Agarwal, for the respondents in C. A. No. 503 of 58. Madhowdas C. Bhagat and Radhey Lal Agarwal, for the respondents in C. As. 504 to 506 of 1958. September 29. The Judgment of the Court was delivered by DAS GUPTA, J. When a lessee takes lease of open land for the purpose of constructing on it buildings intended to be used for residence or for business is this "letting for residence,", or "letting for business"? That is the short question which arises for decision in these four appeals. The appellant brought these four suits in the City Civil Courts, Bombay, for recovery of arrears of rent in respect of the premises mentioned in the plaint of these several suits. It is clear under the law that the City Civil Court, Bombay, would have no jurisdiction to try these suits if the provisions of Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. 57 of 1947), which later in this judgment we shall refer to as the "Rent Act", applied to the permises in suits. For this reason the plaintiff stated in the plaint itself that this Rent Act did not apply to the demised premises. The defendant in each case pleaded on 930 the contrary that the Rent Act applied and so the City Civil Court had no jurisdiction to try the suits. The first issue framed in each of these suits therefore was, whether the Court had jurisdiction to entertain the suit. The learned Judge held that Part II of the Rent Act applied to the premises in each of these suits and consequently only the special court,% specified in section 28 of the Rent Act had jurisdiction to entertain the suits and the City Civil Court had no jurisdiction. Accordingly, he ordered the plaint in each of the four suits to be returned to the plaintiff for presentation to the proper Court. The plaintiff appealed to the High Court of Bombay but all the four appeals were summarily dismissed. The Letters Patent appeals preferred by the plaintiff from the decision of the Single Judge were also dismissed summarily. These appeals have been preferred against that decision of the Bombay High Court in Letters Patent Appeals on special leave obtained from this Court. Under a. 5, sub section 8 of the Rent Act unless there is anything repugnant in the context, "premises" means, among other things, "any land not being used for agricultural purposes. " It is 'undisputed in these cases that the land in respect of which the suits were brought was not being used for agricultural purposes and so comes within the definition of " 'Premises" in section 5. The provisions of Part If of the Act do not however apply to all premises which fall within this definition. Section 6 with which this Part II opens provides in its first sub section that this part shall apply to premises let for residence, education, business, trade or storage in areas specified in Sch. It is subject to a proviso that the State Government may direct that in any of the said areas, this Part shall cease to apply to premises let for any of the said purposes, with a further proviso that the State Government may again direct that in any of the said areas this Part shall re apply to premises let 931 for such of the, aforesaid purposes. As there has been no notification under these provisos affecting the premises in suit, we are not concerned with them; nor are we concerned with sub section 1(A) under Which the State Government may direct that this Part shall, apply to premises let for any other purposes. The four premises in respect of which the four suits were brought are all within the city of Bombay and thus in the area specified in Schedule of the Act. In each of these cases we have therefore to examine the, purpose of the lease and to decide whether it was let for residence or for education, business, trade or storage. The lease men tions that the leasee will construct buildings suitable for residential, business, industrial or office purposes. The plaintiff 's case is that as open land is not intended to be used as it is for residence or business but for construction of buildings for residence or business the land is not being let for residence or business. The defendant in each case contends that the letting was for residence or business as that was the ultimate purpose of taking the lease. Mr. Bhatt addressed his arguments to the question whether the letting could be said to be for residence and did not separately address us on the question of letting for business as obviously if the land could not be said to be let for residence it could not also be said to be let for business. The extreme proportion which Mr. Bhatt raised first of all on behalf of the appellant is that open land can never be let for residence and so. when a. 6 speaks of premises being let for residence, land as defined in sub section 8 (a) of section 5 is outside the word "premises". There is, in our opinion,, no substance in this contention. It is quite clear that open land as it is can be used for residence and so there is no reason to think that open land was not intended to be included in ,premises" when a. 6 speaks of premises being let for residence. 932 The more substantial question for consideration is whether when open land is being leased not to be used for residence in its condition of open land but to be used for the purpose of residence after constructing buildings thereon, the letting of the open land can reasonably be called to be letting for residence. Mr. Bhatt contends that as, what is to be considered is whether the letting of the open land is, for residence the land cannot be said to be for residence if not the open land, but, something constructed on the open land is to be used for residence. In such a case, says Mr. Bhatt, the land is let for construction of a building and not for residence. We are unable to accept this argument. Land can be used for many purposes. It maybe used for agriculture; for residence of human beings; for keeping cattle or other animals; for holding meetings; : or carrying on business or trade; for storage of goods; for supply of water by excavating tanks, and many other purposes. Many of these purposes can be achieved on the open land without the construction of any buildings. But many of them can be better achieved if some kind of structure is created on the open land. It seems reasonable to us to think that when the Bombay Legislature took particular care to include open land not being used for agricultural purposes within the word "premises" and then went on in the very next section to speak of premises being let for several specified purposes, it was thinking of the purposes to which the land will be used irrespective of whether the purpose was intended to be achieved with or without construction of a structure. The intention in mentioning only some purposes, viz., residence, education, business, trade or storage in section 6 was to exclude land let for purposes like, keeping of cattle, (except in the way of business or trade), and numerous other purposes to which the land may be put from the benefit of part II of the Act. It seems to us that when people speak ordinarily of land being let for business, they are only 933 thinking that the ultimate purpose behind the letting is that business will be carried on and they are not thinking whether the business will be carried on on the land in its present state or by the construction of temporary sheds or by putting up permanent buildings. Similarly, when a man says that he will take lease of a plot of land for storage of his goods, what he has in mind is that by taking lease of the land he will achieve the object of storing goods, irrespective of whether for such storage he will have to put up a structure or not. In the same way. , we think, that when land has been let for the purpose of constructing buildings for residence, people will say that it is being let for residence, just as they will say that the land has been let for residence if the lessee intends to use it as caravan site so that the people may live on the open land in caravans. In our opinion, the words ', 'let for residence, education, business, trade or storage" are wide enough to include a letting for the achievement of these purposes with construction of buildings as also without construction of buildings. But, says Mr. Bhatt, look at sub a. (i) of section 15 of the Rent Act which is in this very part II and that will show that the Legislature could not have intended land which is let for the construction of buildings for residence to I" within the phrase , 'premises let for residence". Section 15 of the Act after its amendment by Bombay Act 49 of 1959 reads thus: "Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful, after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. " It may be mentioned that as the section originally stood the words "but subject to any contract to the contrary" were not there. When the amending Act 934 of 1959 introduced these words the amendment further provided that these words shall be deemed always to have been there. Even after the amendment, it remains unlawful, where there is no contract to the contrary, for any tenant of premises to sublet the whole or a by part thereof Mr. Bhatts argument is that in every case where there is no such contract to the contrary the difficulty that will result if land let for construction of residential buildings be held to be premises let for residence within the meaning of a. 6. is that after the building is constructed the lessee will not be able to sublet the building or any portion of it; so that in many cases where the real purpose of taking the land is for the construction of building for letting out the same, that purpose will be defeated. This argument as regards the difficulty in the matter of letting out the building constructed on the land on which lease has been taken was more plausible when the saving phrase "but subject to any contract to the contrary" did not form part of the section. Now, however, the cases in which such difficulty will arise, if at all, would be few and far between; for, it is reasonable to expect that when taking lease of land for the construction of building intended to be let out to others for residence, the lessee of the land would take care to include in the contract of lease a term permitting him to let out the building. Assuming that there may be cases where the contract of lease does not contain any such term and assuming further that it will not be lawful for the lessee of the land to let out the building constructed by him, the probability of such difficulty in some cases, can be no reason to out down the ordinary and reasonable connotation of the words , let for residence" in a. 6. It 'is unnecessary for us to decide whether if there is no contract to the contrary, section 15 will really stand in the way of a lessee of the land letting out buildings constructed by him, on such land. We may say however that there is in our opinion 935 much force in the argument which found favour with the Bombay High Court in Vinayak Goapl vs Laxman Kashinath (1), where the very question, which.is now before us arose for decision, that the bar of section 15 will operate only in the way of letting out the land of which lease has been taken, but will not stand in the way of letting the building constructed on the land. In that case the Bombay High Court held that where land is leased for the purpose of construction of buildings for residence the land is "let for residence" within the meaning of section 6 of the Rent Act. Mr. Bhatt devoted a considerable part of his argument to persuade us that some of the reasons given in that judgment do not stand scrutiny. We think it unnecessary however to examine whether all the reasons given in the judgment are correct. For, as already indicated, the words " 'let for residence" on a proper construction would cover the case of open land being let for construction of residential buildings and so the conclusion reached by the Bombay High Court in Vinayak Gopal 's Case(1) is, in our opinion, correct. It is unnecessary for us also to consider for the purpose of the present appeals as to what may happen to the sub lessee if and when on the terms of a particular lease the building ultimately vests in the owner of the land nor as to what may happen if and when on the terms of a particular lease the lessee who has constructed the building gets the right to remove the building. These considerations should not, in our opinion, affect the construction of the words "let for residence". Turning now to the facts of the present case we find that in each of these cases the lease was taken with a view to construct buildings thereon for residential, business, industrial or office purposes. The premises let am therefore "premises" to which (1) I. L. R. 936 under section 6(1) of the Rent Act the provision of part II of the Act, apply. The Trial Court and the High Court were therefore right in holding that the City Civil Court Bombay, had no jurisdiction to try the suits. The appeals are accordingly dismissed with costs. There will be one set of hearing fee for the four appeals. Appeal dismissed.

The appellant took lease of an open land for construction of buildings suitable for residential, business, industrial or office purposes. The appellant brought suits in the City Civil court, Bombay, for the recovery of arrears of rent in respect of premises built on the said open land, all within the city of Bombay thus in the area specified in Schedule I of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The appellant stated in the Plaint itself that the Bombay Rent Control Act, 1947, did not apply to the dcmiscd premises. The defendants pleaded that the Rent Act applied and the City Civil Court had no jurisdiction to try the suit. The trial judge held that part II of the Rent Act applied to the premises and consequently only the special courts specified in section 28 of the Rent Act had jurisdiction to entertain the suit and ordered the plaints in the suits to be returned to the plaintiff, for presentation to the proper court. The Bombay High Court summarily dismissed the appeals from the said orders. The point at issue for decision was whether "when a lessee takes lease of open land for the purpose of constructing on it buildings intended to be used for residence or for business, this amounts to "Letting for residence" or "letting for business". The appellants ' contention was that as open land not intended to be used, as it is, for residence or business but for construction of buildings for residence or business was taken on lease the land was not being let for residence or business. Held, that the words "let for residence, education, business or storage" in s.6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, are wide enough to include a letting for the achievment of these purposes by construction of buildings as also without construction of buildings. Held, further, that on the facts of the present case, in each of these cages, the lease was taken with a view to construct, buildings thereon for residential, business, industrial or office purposes and the land let was therefore 'premises ' to 929 which under section 6(1) of the Bombay Rent Act, the provisions of Part II of the Act applied. Vinayak Gopal v Laxman Kashinath I. L. R. , approved.

Appeal No.1539 of 1971. (From the Judgment and Order dated 5 8 1969 of the Allahabad High Court in Special Appeal No. 58/65). B.B. Ahuja and R.N. Sachthey, for the Appellant. A.T.M. Sampath and Ram Lal, for Respondent No. 1. 215 The Judgment of the Court was delivered by SARKARIA, J. This appeal on certificate is directed against an appellate judgment, dated August 5, 1969, of a Bench of the High Court of Allahabad. It arises as follows: M/s. S.B. Singar Singh and Sons (hereinafter called the assessee) were assessed to Excess Profits tax for the chargeable accounting periods, ending March 31, 1945 and March 31, 1946. under two assessment orders dated August 26, 1949. The previous years 193637 was chosen by the assessee as his standard period. " The profits of that year were Rs. 38,703/ . After deducting the profits of the standard year, the Excess Profits Tax Officer, assessed the tax on the remaining amounts of profits. The Excess Profits Tax thus assessed for the accounting years, was to the tune of Rs. 1,06,181.5 and Rs. 48,978/ , respectively. In his orders, the assessing Officer said that "for reasons detailed in the earlier assessment orders no adjustments are made for capital variations in the standard period and the chargeable accounting period". These reasons as given in the earlier assessment order, dated October 30, 1947, per taining to the chargeable accounting period ending March 31, 1944, were: "As complete and regular accounts are not maintained by the assessee, it is not possible to make any adjustment for variations in average capital which cannot be accurately ascertained". Against the orders of assessment, the assessee preferred two appeals on September 24, 1949 to the Assistant Appellate Commissioner. By two separate applications dated October 24, 1949, the assessee took an additional ground of appeal which obvious ly he had not taken in the original memorandum of appeal that the Excess Profits Tax Officer had erred in not allowing adjustments on account of the increase and decrease of capital in the relevant chargeable accounting period. The assessee added that he "was always prepared to file his computa tions of average capital". Dismissing the appeals by his orders, dated November 24, 1949, the Assist ant Appellate Commissioner negatived the assessee 's contention, in these terms: "As in these years no regular accounts have been maintained and it is not possible to make any adjustment for variations in average capital which cannot be exactly ascertained. No figures have been shown to me, nor has any exact working been fur nished at this stage. The accounts are left in the same manner as for the earlier years. Profits in the major accounts had to be worked out by the application of a rate to the turnover. I am, thus, unable to allow this contention. " Aggrieved, the assessee carried appeals to the Income tax Appellate Tribunal. In the memoranda of appeals, one of the specific grounds taken was, that "the Excess Profits Tax Officer and the Assistant Appellate Commissioner had erred in not allowing to the assessee proper standard profits in accordance with the standard period subject to the adjust ment on account of the increase and decrease of capital in the relevant chargeable accounting period. " It was reiter ated that "the 216 appellant was always prepared to file his computation of average capital. " This ground relating to standard profits was not dis cussed by the Tribunal and no finding was recorded thereon. The Excess Profits Tax Appeals and other Income tax appeals filed by the assessee were heard together by the Tribunal and disposed of by common orders dated February 24, 1951. In the Income tax appeals, some relief was granted, but in the Excess Profits appeals, no relief was granted due to the variation of the capital in the chargeable accounting period of 1945 46 and 1946 47. The assessee on July 27, 1951, made an application under section 35 of the Income tax Act, 1922 for rectification of its order to the Tribunal on grounds other than the one regarding variation in the standard profits due to increase and decrease of the capital. This application was dismissed on August 27, 1951 by the Tribunal on the ground that there was no mistake apparent on the record. No grievance was made in this application that the Tribunal did not consider and decide the ground relating to adjustment of standard profits according to variation in capital during the relevant peri od. On March 11, 1954, the assessee made a representation to the Central Board of Revenue praying for reopening of the assessments. In this representation, also, he did not take up Ground No. 1. Subsequently however on May 24, 1954 he wrote a letter to the Income tax Officer saying that he was sorry to omit 'one important point ' i.e., Ground No. 1, from his representation to the Board, and that the Income tax Officer should "supplement the same while making (his) report to the higher authorities. ' His representation dated March 11, 1954 and the petition dated May 24, 1954, both were rejected and the Commissioner communicated those rejec tions to the assessee by a letter dated May 25, 1955, saying that he did not see any justification for re opening the assessments which had become final and closed. Thereafter on April 2, 1956, the assessee made a second application to the Tribunal (which in substance was one for review of its orders, dated .February 24, 1951), contending that Ground No. 1 raised in his two appeals, relating to the standard profits of the two chargeable accounting periods and pointing out the failure of lower authorities to make necessary adjustments in such profits according to section 6 of the Excess Profits Tax Act (hereinafter referred to as Ground No. 1 ) was not disposed of by the Tribunal. It was prayed that the appeals relating to excess profits tax matters which should be deemed to be still pending owing to the non decision of Ground No. 1 be disposed of after hear ing the assessee. The Tribunal rejected this contention with the remark that the appeals were decided as early as 24th February, 1951 and it is now futile to contend that the matter was pending when the Tribunal had already passed orders and the orders were served on the assessee. " The Tribunal further observed that the absence of a reference "to the contention of the assessee regarding the standard profits and the necessary adjustments would not render the Tribunal 's order a nullity, nor would it mean that the Tribunal had partially disposed of the appeals and some residue is pending". In the alternative, it held that even on the assumption that 217 Ground No. 1 was argued and was not disposed of by the Tribunal, the proper remedy for the assessee was either to apply for rectification under section 35 or to move an applica tion under section 66. The Tribunal refused to treat this application as one for rectification because, in its opinion, such an application would be much too time barred. In the result, the Tribunal dismissed that application by an order dated June 9, 1956. The assessee had filed a reference application, also under section 66(1) the Income tax Act in these cases. That application was dismissed by the Tribunal on August 28, 1951. The assessee then made applications under section 66(2) of the Income tax Act before the High Court requesting for reference on certain question of law arising out of the order, dated February 24, 1951, of the Tribunal. In these applications, alsO, he did not ask for reference on a question relating to Ground No. 1 (regarding adjustment of standard profits). These applications were allowed by the High Court by an order, dated April 12, 1956, whereby the Tribunal was directed to state a case and refer for decision certain questions of law to the High Court. Thereafter, during the proceedings before the Tribunal for preparation of the statement of the case, the assessee moved an application, dated July 23, 1957, requesting it to refer the question of adjustment of standard profits on account of increase and decrease in the capital in the relevant periods to the High Court, in addition to the questions of law directed by the High Court to be referred to it. This application was rejected for the reason that the question had not been raised in the reference applica tion, nor did it arise out of the appellate orders of the Tribunal. On July 24, 1957, the Tribunal stated the case and made a reference on the other question to the High Court in compliance with that Court 's order, dated April 12, 1956. On November 4, 1968, the assessee filed a writ petition in the High Court praying for a writ of Mandamus requiring the Tribunal to consider his Ground No. 1 mentioned in the Excess Profits Tax Appeals Nos. 651 and 660 of 1949 and 1950 and his subsequent application dated April 2, 1956. The writ petition was heard by a learned single Judge of the High Court who held that while disposing of the appeals, it was the duty of the Tribunal to record a finding on Ground No. 1 which had been specifically raised in the memoranda of appeals before it, that the Tribunal therefore, could and should have reviewed its orders and rectified its mistake in the exercise of its inherent powers when that mistake was brought to its notice by the assessee by his application dated April 2, 1956; that section 35 of the Income tax Act which provides a period of four years ' limitation for seeking rectification of mistakes in assessment orders, was not applicable to assessment orders made by the. Tribunal under the Excess Profits Act; that consequently, the Tribunal was in error in refusing to treat the assessee 's application, dated April 2, 1956,.as one for rectification of a mistake of the Tribunal on 16 1003 8C1/76 218 the ground of limitation. In the result, the learned Judge set aside the Tribunal 's order, dated June 9, 1956, and directed the Tribunal to dispose of the assessee 's applica tion dated April, 2, 1956, afresh in accordance with law. The Revenue filed a Special Appeal against the order of the learned single Judge before the Appellate Bench of the High Court. The Bench dismissed the appeal and affirmed the findings and orders of the learned single Judge. Hence this appeal. Mr. Ahuja, appearing for the appellant, con tends that the writ petition of the assessee should have been thrown out by the High Court on the preliminary ground that he had not come with clean hands. In this connection Counsel has pointed out several circumstances which according to him, belie the main plea of the assessee that the Tribunal had not considered his Ground No. 1 although the same was urged before it at the hearing of the appeals. It is stressed that .Ground No. 1 was not original ly taken by him in the grounds of appeal filed before the Assistant Appellate Commissioner, al though subsequently in the Additional grounds filed about one month after the institution of the ap peals, he, as an after thought, did introduce "Ground No. 1", that he did not make any grievance whatever on the score of Ground No. 1 in his appli cation for rectification of the Tribunal 's orders, filed on July 27, 1951; that for more than 5 years after the announcement of the appellate orders of the Tribunal, he made no application to the Tribu nal for review and rectification of its appellate orders in relation to Ground No. 1; that the assessee delayed the making of the application, dated April 2, 1956 presumably with a view to ensure that at the time of its presentation, none of the members of the Tribunal who had originally decided the assessee 's appeals, was there to hear the application; that even in this inordinately delayed application, review and rectification was not asked for in a straight forward manner but it was disguised as an application for decision of the appeals which on account of non decision of Ground No. 1 were alleged to be still pending; that the writ petition was filed after an abnormal delay of ten years; that a perusal of the assessment orders made by the Excess Profits Tax Officer and the Assistant Appellate Commissioner, and even the memoranda of appeals filed before the Tribunal shows that at no stage the assessee furnished complete accounts or even a statement showing variation in the capital during the relevant peri ods. It is emphasised that all that the assessee said in the memoranda of appeals was that he was "prepared" to furnish a statement of such computa tion and accounts. It is further pointed out that no certificate of Shri Surinderjit Singh, Advocate who is supposed to have argued the appeals before the Tribunal, was filed. It is maintained that the only reasonable inference from these circumstances was that Ground No. 1 was not pressed or argued at all by Shri Surinderjit Singh before the Tribu nal who consequently, did not think it necessary to deal with it. Mr. Sampath, appearing for the assessee respondent has not been able to deny the existence of the circumstances pointed out by Mr. 219 Ahuja. His argument is that in the affidavit accompanying the writ petition, the deponent had sworn that Ground No. 1 was, in fact, argued before the Tribunal and that this sworn statement had been believed by the High Court. This being the case, it is argued, this Court should not re open the question as to whether Ground No. 1 was, in fact, argued or not before the Tribunal. According to Mr.Sampath, over 5 years ' delay in making the application dated April 2, 1956, partly stood explained by the circumstance that he had made a representation to the Board supplemented by the assessee 's letter of May 24, 1954 to the Income tax Officer, seeking relief on the basis of Ground No. 1. We find a good deal of force in the submissions made by Mr. Ahuja. The sheet anchor of the assessee 's case in the writ petition was that at the hearing of the appeals, his Counsel had argued Ground No. 1 set out in the memoranda of appeals, but the Tribunal did not consider it at all. The question whether or not this Ground had been argued, was one of fact. The tell tale circumstances enumerated by Mr. Ahuja, unerringly lead to the conclusion that, in all proba bility, Ground No. 1 was not argued by the Counsel, possibly because he was aware that in the absence of a complete statement of accounts showing variations in the capital during the relevant periods, a contention rounded on Ground No. 1 would be an exercise in futility. It is noteworthy that at no stage before the Revenue authorities or the Tribunal, did the assessee categorically say that he had actually produced a complete statement of accounts and computation of the increase and decrease in capital. All that he said in his Additional Grounds of appeal before the 'Assistant Appellate Commissioner and the Appellate Tribunal in Ground No. 1, was that he was prepared to file such a statement. Shri Surinderjit Singh, Counsel who argued the appeals, has not thought it fit to certify that Ground No. 1 was actually argued, and not abandoned, by him. The affida vit of another person who could not be the best informed person on this point, was of little value and could hardly displace the irresistible inference arising from the sur rounding circumstances and the conduct of the assessee, namely, that his Counsel had not argued on Ground No. 1, at all and had thus given it up. In the light of what has been observed above, we are of opinion that the High Court could not justifiably interfere in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution with the appellate orders of the Tribunal. In any case, the question as to whether the omission to record a finding on Ground No. I by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal, which de served rectification, was a .matter entirely for the author ities under those Taxation statutes. It will be well to recall once more what this Court speaking through J.C. Shah J. (as he then was,) had stressed in Shivram Poddar vs Income tax Officer(1) "Resort to the High Court in exercise of its extraordi nary jurisdiction conferred or recognised by the Constitu tion in matters relating to assessment, levy and collection of income tax may be permitted only when questions of infringe ment of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to bypass the provisions of the Income tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities, the party approaching the court has often to ask the Court to make assumptions of facts which remain to be investigated by the revenue authorities." In the instant case, the High Court had assumed juris diction on the assumption that a certain ground had been urged before the Income tax Appellate Tribunal which had arbitrarily refused to consider the same and record a find ing thereon. This assumption, in our opinion, stood thor oughly discounted by the concomitant circumstances of the ease, including the dilatory and questionable conduct of the assessee. This was therefore not a fit ease for the exer cise of its special jurisdiction under Article 226 by the High Court. Accordingly, on this short ground we allow the appeal and dismiss the writ petition. As the appeal succeeds on a preliminary ground, we do not feel it necessary to express any opinion on the question as to whether or not the Appel late Tribunal under the Excess Profits Tax Act has statutory or inherent power to review and rectify mistakes in its orders. The assessee shall pay one set of the costs of the appellant. P.B.R. Appeal allowed.

Since the assessee had not maintained complete and regular accounts for the purpose of Excess Profits tax, the Excess Profits Tax Officer assessed tax on the basis of accounts of certain previous years chosen by the assessee as his "standard period", pointing out that because of this position it was not possible to make any adjustment for variations in average capital. The Assistant Appellate CommisSioner upheld the assessment order. In appeal to the Appellate Tribunal one of the specific grounds taken by the assessee was that the Excess Profits Tax Officer and the Assistant Appellate Commissioner had erred in not allowing proper standard profits in accordance with the standard period subject to the adjustment on account of increase and decrease of capital in the relevant chargeable accounting period and that they were prepared to file computation of average capital. Without discussing the ground relating to the standard profits the Tribunal disposed of the appeals. The assessee 's second application alleging that the ground relating to the standard profits was not disposed of by it was rejected by the Tribunal. In an application under section 66(2) of the Income Tax Act before the High Court, the assessee did not ask for a reference on this ground. But during proceedings for preparation of statement of case, the assessee 's application requesting the Tribunal to refer this ground to the High Court was rejected by it. The assessee 's petition for a writ of Mandamus requiring the Tribunal to consider the ground relating to standard profits was allowed by the High Court. Allowing the Department 's appeal to this Court, HELD: The High Court could not justifiably interfere, in the exercise of its extraordinary jurisdiction under article 226 of the Constitution, with the appellate orders of the Tribunal. The question as to whether the omission to record a finding on Ground No. 1 by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal, which deserved rectifica tion, was a matter entirely for the authorities under the statute to decide. [219 G] Shivram Poddar vs Income tax Officer (1964) 51, I.T.R. 823, 829 (,S.C.) applied. In the instant case the High Court had assumed jurisdic tion on the assumPtion that a certain ground had been urged before the Tribunal which had arbitrarily refused to consid er the same and record a finding thereon. This assumption, stood thoroughly discounted by the concomitant circumstances of the case including the dilatory and questionable conduct of the assessee. This was not a fit case for the exercise by the High Court of its ' special jurisdiction under article 226. [220 C]

vil Appeal No. 135 I(N) of 1973. From the Judgment and Decree dated 14.3.1973 of the Rajasthan High Court in S.B. Civil Second Appeal No. 201 of 1966. K.K Jain, Pramod Dayal and A.D. Sanget for the Appellant. U.N. Bachavat, Sushil Kumar Jain, Sudhanshu Atreya and L.C. Agarwala for the Respondents. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. This appeal by special leave is from the judgment of the Rajasthan High Court dated March 14, 1973 in S.B. (Civil) 2nd Appeal No. 201of 1966. The case has a long history. It is concerned with a garden (baghichi) with temples of Sri Satyanarayanji, Sri Mahadeoji and other buildings at Motidungri Road in Jaipur. The local Darjees (Tailors) claim that it is their community property. According to them 359 it is known as 'Baghichi Darjian ' since it belongs to Darji community. The property however, was the subject matter of several litigations. It was claimed by different persons at different intervals on different grounds. One Narayan was admittedly 'Pujari ' of the Temples. There was allegation that Narayan purported to have sold the Baghichi in favour of one Khawas Bala Bux. The Panchas of Darjian community filed a suit for cancellation of the sale deed and posses sion of the baghichi. The suit was also for declaration of the right to administer the trust of the temples and the other properties. Narayan was the first defendant in that suit. He did not contest the suit. He was, however, summoned and his statement was recorded on July 8, 1925, wherein he admitted that he was only the Pujari of the temples. The other defendants in the suit set up rival title to the property relying upon the sale deed of Samvat 1932 in the name of Raghunath. The trail court dismissed the suit but on appeal the District Judge decreed it. That decree was af firmed by the former Chief Court, Jaipur by judgment exhibit A8 dated September 15, 1928. Thereafter, for about 23 years there was no problem and there was no rival claimant to the property. But the dispute started after the death of Narayan. His eldest son Bhonrilal respondent 3 herein, made attempts to get his name mutated in the revenue records as owner of the baghichi. It appears that Bhonrilal after the death of his father was acting as Pujari of the temples. The Darjian community authorised Kalyan Singh, the appellant herein, as well as one khawas Suraj Narayan to bring an action for ejectment of Bhonrilal. In 1951 they instituted a suit for his ejectment. In that suit Bhonrilal admitted the Panchayat 's right to the baghichi but raised a number of other pleas including his title by adverse possession. In 1966 the Munsif Court (West Jaipur) decreed the suit in favour of the Darji community. In 1958 the appeal against that decree was dismissed by the senior civil Judge, Jaipur City. Bhonrilal preferred Second Apeal No. 8C of 1958 in the High Court of Rajasthan and obtained stay of delivery of possession on depositing mesne profits at Rs.25 per month. On September 15, 1960, the High Court dismissed the second appeal. Thus the title of the Darjee community in respect of the baghichi was again recog nised. Even before disposal of the aforesaid second appeal, Ganga Ram the younger brother of Bhonrilal started another round of litigation. On December 12, 1959, he brought a declaratory suit claiming that he is owner of the property consisting of baghichi and temples. In this appeal we are concerned with the fight claimed by him. The suit was pri marily against the present appellant Kalyan Singh and Suraj 360 Narayan, since deceased. Bhonrilal was also impleaded as the third defendant. Ganga Ram based his title to the property under a sale deed dated Baishakh Sudi 12th Samvat 1932 (about 1875 A.D.) and also on a will dated Asaj Sudi 12th Samvat 1973 (about 1916 A.D.). It was further alleged that the bagichi belonged to Bhagala and Girdhari and they sold the same to Raghunath Brahmin. Raghunath constructed the temple of Sri Satyanarainji and other buildings. Raghunath had only one son called Gaurilal and he was issueless. Garuilal executed a will giving all his properties to Ganga Ram. It was alleged that the earlier suit against Bhonrilal was collusive between the parties. With these allegations, Ganga Ram prayed for the following reliefs: "(a) the plaint of the plaintiff be decreed and the plaintiff be declared as the owner of the aforesaid property. The plaintiff is the owner of the property mentioned in Para No. 1. The decree which the defendant Nos. 1 and 2 had obtained on 20.8. 1956 against the Defend ant No. 3 and was upheld by the Senior Civil Judge on 6.2. 1958, is null and void against the claim of the plaintiff. " The appellant the first defendant in the suit denied plaintiff 's title to the baghichi. He also denied the title of Bhagala and Girdhari. It was maintained that the baghichi was community property of Darjees and Narayan was only a 'Pujari ' of the temples. Narayan continued as Pujari till his death in 1950 and thereafter his eldest son Bhonrilal was acting as Pujari. Reference was made to the judgment of the Chief Court of Jaipur in the first suit against Narayan and judgments in the second suit against Bhonrilal. In view of those litigations and judgments rendered therein, it was claimed that the present suit was barred by principle of res ]udicata. It was also specifically stated that the suit against Bhonrilal was not collusive but brought on behalf of the Darjee community in a representative capacity. The trial Judge on considering the evidence produced by the parties decreed the suit declaring the plaintiff as owner of the suit property. It was also declared that the plaintiff is not bound by the judgment and decree dated September 15, 1928 of the Chief Court of the erstwhile State of Jaipur. But no reference was made to the judgment and decree obtained in the suit against Bhonrilal. No declara tion was given that it was not binding on the plaintiff though that relief was specifically sought for. Perhaps the plaintiff did not press that point. Kalyan Singh and Suraj Narayan appealed to the District Court. The 361 learned District Judge dismissed the appeal. He also did not refer to the judgment in the suit against Bhonrilal. He only examined the validity of the said Sale deed and Will and held that they were proved to have been executed. The de fendants approached the High Court in Second Appeal No. 201/41 Before the High Court, they sought to produce addi tional evidence. They moved an application under Order 41 Rule 27 C.P.C. to accept a certified copy of the judgment dated September 15, 1928 of the Chief Court of the erstwhile Jaipur State and a copy of the statement of Narayan recorded in that suit. The High Court accepted the judgment of the Chief Court of Jaipur State, but rejected the Statement of Narayan. During the pendency of the appeal in the High Court Suraj Narain died and his name was deleted from the appeal memo. Ganga Ram also died and his wife and son were brought on record as his legal representatives. The principal question argued before the High Court related to the validity of sale deed (exhibit 3) and will (exhibit 4) which formed the foundation of Gangaram 's title to the suit property. The High Court rejected both the documents. The sale deed exhibit 3 was rejected as inadmissible in evi dence. The will exhibit 4 was disregarded in view of the suspi cious circumstances surrounding its execution. These conclu sions would have been sufficient for allowing the appeal and dismissing the suit. But the High Court did not do that and instead rounded off the discussion as follows: "The plaintiff is undoubtedly in possesion of the Baghichi and it cannot be gainsaid that he was not a party to the previous litigation and he is not claiming the property though his father Narayan or his brother Bhonrilal. Apart from everything, the suit does not seem to have been filed against Kalyan Singh and another in a representative capacity in ac cordance with Order 1 Rule 3 Civil Procedure Code. There was no application for permission to sue them in their representative capacity. Therefore, in spite of my having reached the conclusion regarding the document exhibit 3 and 4 against the plaintiff respondents I am not inclined to interfere with the decree of the court below though I do feel that the litiga tion against Kalyan Singh and another in their individual capacity was a fruitless exercise. ' ' 362 Kalyan Singh the defendant has now appealed challenging the decree of the High Court. Counsel for the appellant has a two fold contention. In the first place, it was argued that the Darjee community in their representative suit against Bhonrilal has obtained a decree declaring their title to the property and that decree could not be nullified by the present suit against individu als. The High Court instead of holding that the plaintiffs suit was a fruitless exercise, ought to have dismissed the suit. Secondly, it was urged that the High Court after discarding the sale deed exhibit 3 and will exhibit 4 ought to have non suited the plaintiff since there is no other material whatever to support his title to the property. Normally, these contentions would have been accepted without much discussion, but we have to consider the submis sions of counsel for the respondents. He challenged the correctness of the findings on all material points. It is, therefore, necessary to examine the judgment in greater detail. We will first consider whether the previous suit against Bhonrilal was a representative suit on behalf of the Darjee community. It was argued for the respondents that it was only a suit on behalf of the 'Panchayat Darjian ' and not a representative suit on behalf of the Darjee community. Our attention was drawn to the trail court order dated November 16. 1962 in the present suit. Thereunder the trial court has rejected an application for amendment of written statement. It was observed that the defendants in the affidavit have not denied allegations of the plaintiff that the suit against Bhonrilal was not in a representative capacity. But the Court made that observation only on perusing the affida vits of parties for a limited purpose of considering the amendment application and not on an issue arising out of pleadings in the suit. In fact, the court has not framed any issue on that controversy although the defendant in the written statement has asserted that it was a representative suit on behalf of the Darjee community. The view expressed in the order dated November 1962 is therefore, unacceptable. Counsel for the appellant however, relied upon state ments from judgments in the previous suit in support of his contention that it was representative suit on behalf of the Darjee community. exhibit A 2 is the judgment of the trial court. It begins with a sentence: "This is a representative suit by the plaintiffs Kalyan Singh and Suraj Narayan on behalf of the Panchayat Darjian for recovery of possession of the 363 baghichi. " But this statement may not help counsel for the appellant, since the suit was said to be on behalf of the 'Panchayat Darjian ' and not Darjee community. exhibit A 4 is the High court judgment in the second appeal arising out of that suit. There the High court has stated: "That the suit was brought by Kalyan Singh and another against Bhonrilal by the representatives of Darjee community. " Here again we do not find much support to the appellant. The suit might have been instituted by representatives of the Darjee community, but that by itself was not sufficient to constitute the suit as a representative suit. For a representative suit, the court 's permission under Order 1 Rule 8 of the Code of Civil Procedure is mandatory. One does not know whether any such permission was obtained. The pleading in that suit or the order obtained under Order 1 Rule 8 has not been produced. There is no other evidence to support the contention of either of the parties. In the absence of necessery material the conclusion one way or the other as to the nature of the previous suit will not be justified. But that does not mean that the plaintiff could succeed ignoring the judgment and decree in the suit against Bhonri lal. It must be stated that any member of a community may successfully bring a suit to assert his right in the commu nity property or for protecting such property by seeking removal of encroachments thereform. Such a suit need not comply with the requirements of Order 1 Rule 8. The suit against Bhonrilal even if it was not a representative suit on behalf of the Darjee community would be a suit of this category. Kalyan Singh and another claimed that the baghichi was their community property and Bhonrilal was a trespasser. They brought the suit to recover possession from Bhonrilal. The suit was decreed. The rival title claimed by Bhonrilal by adverse possession was negatived. So long as that decree operates it would be futile to decree the present suit. The observation of the High Court that the present suit is a fruitless exercise could therefore, be sustained on this ground if not for the reasons stated. The validity of the will may now be considered. On this question, the High Court said: "Having read the evidence of these witnesses I am satisfied that according to the ordinary standard of proving a document the document exhibit 4 can be said to have been proved. Howev er, there are two disturbing elements sur rounding the execution of the will. The first striking feature of this will is that even though the wife of Gaurilal was living at 364 the time as she had survived him, no provision whatsoever had been made regarding her by Gaurilal in the alleged will exhibit 4. Then the second striking feature is that even though litigation had been going on almost for years this will had not been referred to by anyone. In the first suit Narain was a defendant he had not contested the suit and the proceedings remained ex parte against him. However, he was called by the Court and his statement was recorded. The judgment of the Jaipur Chief Court shows that he had laid no claim to the property and took the position that he was a Pujari at the baghichi. Then subsequently when suit was filed by the Darzi community against Bhonrilal, no reference came to be made to this will exhibit 4 Learned counsel for the re spondents, as I have already observed, sug gested that Narain or Bhonrilal could not be expected to make any reference to the will as that would be detrimental to the stand taken by them. The argument, no doubt, looks attrac tive, but if it is examined in the light of none other than the statement of Ganga Ram himself it cannot stand the scrutiny. Gangaram had referred to the earlier litigation in the plait, but when he entered the witnesses box he had taken a somersault. He was asked wheth er he was aware of the previous litigation and he said, he did not know of it. He was then questioned with reference to para 5 of the plaint as to how the facts had been mentioned by him therein and he kept mum and had no answer. He also admitted that it was Narain who had given him the document, exhibit 4 some 5 or 7 years after the death of Gaurilal i.e. some 30 or 35 years back. In that situation there was no mention of the alleged will in any of the two previous suits. It is also remarkable that even upto the High Court Bhonrilal had asserted his own possession over the property and had also obtained a stay order on payment of mesne profits vide exhibit A 7. XXXXX XXXXXX XXXXXXX The will is, therefore, not free from suspi cion and it has not been dispelled. My con science in this regard is not satisfied and therefore, I am unable to hold that exhibit 4 was the last will of Gaurilal in favour of Ganga Ram". Counsel for the respondents however, urged that the plain tiff has 365 proved its execution by producing one of the attestors and the scribe and their evidence has not been disbelieved by the High Court. We were referred, in particular, to the evidence of plaintiff PW 3, Ramdeo PW 4 and Sham Sunder PW 7. We have perused their testimony and we are of the opinion that it is far from satisfactory. The plaintiff has deposed that Gaurilal was issueless and hence executed the will bequeathing the property to him. Ramdeo claims to be the attesting witness to the will. He has stated that the plain tiff was 10 11 years old when the will was executed. But the plaintiff himself has deposed that he was then a boy of 2 3 years. Ramdeo has given his age as 55 years when he deposed in the court on January 5, 1962. If we go by that age Ramdeo must have been a boy of 9 years when he attested the will in 19 16 Sham Sundar claims to be the scribe of the will. He has deposed that after he wrote the will attestation was made by witnesses but he has not named any one of them. He has not even referred to Ramdeo as an attesting witness. It was said that the plaintiff was adopted son of Gauri lal, and was thus the object of his affection for the exclu sive bequest. But there is no reference in the will that he was the adopted son. The plaint also makes no reference to his adoption by Gaurilal. Nor there is any other material to lend credence to such relationship. On the contrary, the Temple register shows that he was the son of Narayana. Even if we proceed on the plea that the plaintiff was adopted son of Gaurilal, there seems to be little reason to justify the bequest exclusively m his favour. It is now not in dispute that Gaurilal 's wife was living at the time of execution of the will, but no provision was made for her maintenance. In the normal course, the wife would be the first to be thought of by the husband executing a will. She should have been the first beneficiary of her husband 's bounty unless there was odium or embittered feelings between them. But there is no such evidence and it was not even the plaintiff 's case that their relationship was strained. Why then she should be excluded altogether? It is indeed baf fling since it runs counter to our societal values. Yet there is another circumstance which tells against the genuineness of the will. The will purports to have been executed in 1916 and Gangaram instituted the suit in 1959. The will had not seen the light of the day till the institu tion of the suit. It is not as if Gangaram or his brother or father had no opportunity to produce the will to assert rights over the property in question. The plaintiff has stated in his evidence that his father Narayan handed over the will to 366 him. Narayan was therefore, aware of the execution of the will. Yet he did not disclose it to the court in the suit against him. His statement was recorded on July 8, 1925 wherein he had admitted that he was only the Pujari of the temple and the wife of Baldeo sold the property. He did not say that his son Gangaram became owner of the property under the will executed by Gaurilal. In ,he second suit, Bhonrilal set up independent title to the property by adverse posses sion. That claim was totally destructive of Gangaram 's title. It cannot be said that Gangaram was ignorant of that litigation till he filed the suit. His evidence does not lead to that inference. In fact the plaint averments and his statements in the court lead to the contrary. Gangaram, however, made no attempt to produce the will in that suit. In the long period of 43 years, none made any attempt to rely upon the will against the claim of the Darji community when the community representatives have successfully brought two suits. This would not have been the natural conduct of person if the will had been really in existence. It has been said almost too frequently to require repe tition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from false hood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circum stances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circum stances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party. In H. Venkatachala lyengar vs B.N. Thimmajamma & Ors., [1959] Supp. 1 SCR 426 Gajendragarkar, J., as he then was, has observed that although the mode of proving a will did not ordinarily differ from that of proving any other docu ment, nonetheless it requires an element of solemnity in the decision on the question as to whether the document pro pounded is proved as the last will and testament of departed testator. Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfac tion of the court before the will could be accepted as genuine. Where there are 367 suspicious circumstances, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. These principles have been reiterated in the subsequent decisions of this Court in Rani Purnima Devi & Anr. vs V. Kumar Khagendra Narayan Dev & Anr., and Smt. Indu Bala Bose & Ors. vs Manindra Chandra Bose & Anr., ; The Privy Council in Mr. Biro vs Atma Ram & Ors., AIR 1937 PC 10 1 had an occasion to consider an analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in public. There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the widow of the testator and three other women, namely, his mother, his step mother and his paternal aunt. These women though entitled under the Hindu Law only to mainte nance, were made joint owners equally with the widow of the testator. None of the devisees could get the estate parti tioned or alienate it for necessity. It was however, provid ed that the lady, who survived the other three devisees, would become the absolute owner of the estate. The widow of the testator would not get her husband 's estate, if she predeceased any of her co devisees. The will was not pro duced until 22 years after its execution though there were occasions to produce it, had it been in existence. Consider ing these circumstances, the Privy Council observed (at 104): "It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a will which would practically disinherit them. That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But this is not the only circum stances which tells against its genuineness. The will purports to have been executed on 24th August 1900, and the testator died within a month of that date. But it is strange that it was not produced until 1922, after the com mencement of the present litigation. During this long period of 22 years, which inter vened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did not do so . " 368 ,The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator 's wife seems to be unnatural. It casts a serious doubt on genuine ness of the will. The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff 's title to the property. The plaintiff was re quired to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We therefore, concur with the conclusion of the High Court and reject the will as not genuine. This takes us to the validity of the sale deed exhibit 3. The High Court rejected the document with the following observations: "exhibit 3 is neither a certified copy given under any of the provisions of the Evidence Act nor is it a copy made from the original by any mechanical process. It also does not appear to have been made or compared from the original as there is no verification or endorsement of the kind and it does not come under clauses 1 or 5 of section 63 ei ther. No one has given the oral account of the contents of the original document. If in place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by second ary evidence. But where there is no secondary evidence as contemplated by Section 66 of the Evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence. " The basis of the plaintiff 's title relates back to the sale deed dated Baisakh Sudi 12 Samvat 1932 (1875 A.D.). It was said to be a registered sale deed by which Bhagala Girdhari purported to have sold the baghichi to Raghunath Brahmin. The plaintiff has not produced the original sale deed. Nor a certified copy of it has been produced. All that we find from the record is an ordinary copy of a sale deed exhibit 3 produced by Gopal Prasad PW 1. Gopal Prasad has stated that exhibit 3 was a copy submitted by the parties along with the original sale deed for registration. The original sale deed was said to have been returned to the party after its registration and a copy was kept in the file. But Gopal Prasad has no personal knowledge about the registration of the sale deed, nor he has produced the register to indicate that that sale deed was registered and a copy was kept in the record. exhibit 3 produced 369 by him does not bear any endorsement to the effect that it was a true copy of the original. The High Court said, and in our opinion very rightly, that exhibit 3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of sec ondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case exhibit 3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. exhibit 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence. In the result, the appeal is allowed, modifying the judgment and decree of the High Court. The judgment and decree of the trial court as affirmed by the District Court are set aside and the plaintiff 's suit is dismissed. Since the original plaintiff died leaving behind his widow during pendency of the appeal before the High Court, we make no order as to costs. R.N.J. Appeal allowed.

This case is concerned with a garden with temples and other buildings at Jaipur claimed to be the property of Darjee (Tailors) community popularly known as 'Bagichi Darjian '. It was claimed by different persons at different intervals on different grounds. One Narayan, Pujari on the temples was said to have sold the Bagichi in favour of one Khawas Bala Bux. Darjee community filed a suit for cancella tion of that sale and declaration of its right to administer the property. The Trial Court dismissed the suit but on appeal District Judge decreed it and this decree was af firmed by the Chief Court of Jaipur. But after 23 years on the death of Narayan his eldest son Bhonrilal respondent No. 3 herein who became the Pujari attempted to get his name mutated in revenue records as owner of the Bagichi. On behalf of the Darjee community the appellant herein together with one Khawas Suraj Narayan filed a suit in 1951 for his ejectment. This suit was decreed in favour of the Darjee community. Appeal against that decree by Bhonrilal was dismissed by the Senior Civil Judge, Jaipur. Second appeal in the High Court too failed. However, even before the disposal of the aforesaid Second appeal, Gangaram the younger brother of Bhonrilal started another round of litigation. He filed a declaratory suit claiming the ownership of the Bagichi and temples on the basis of sale deed dated Baishakh Sudi 12th Samvat 1932 (about 1875 A.D.) and a Will purported to be executed in 1916 A.D. in his favour. 357 The Trial Judge decreed the suit in his favour. The defendants ' appeal was dismissed by the District Judge upholding the validity of the said Sale Deed and the Will. On further appeal, the High Court rejected the validity of the Sale Deed as well as that of the Will which formed the foundation of Ganga Ram 's title. But instead of allowing the appeal and dismissing the suit the High Court declined to interfere with the decree of the Court below though holding that the plaintiff 's suit was a fruitless exercise. Kalyan Singh the defendant challenged the decree of the High Court in this Court on two counts. Firstly that the suit against Bhonrilal was of a representatives character which could not be nullified by the present suit against individuals. Secondly the High Court after discarding the Sale Deed and the Will ought to have non suited the plain tiff since there was no other material whatever to support the title. While allowing the appeal and modifying the judgment and decree of the High Court, this Court, HELD: In the absence of permission under Order I Rule 8 CPC to file a representative suit which is mandatory any member of the community may successfully bring a suit to assert his right in the community property or for protecting such property. Such a suit need not comply with the require ments of Order I Rule 8 C.P.C. and the suit against Bhonri lal even if it was not a representatives suit on behalf of the Darjee Community would be a suit of this category. [363D E] It is essential that trust worthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of wit nesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case of reach a proper conclusion on the nature of the evidence adduced by the party. [366E F] The Will in the instant case, constituting the plaintiff as a sole legatee with no right whatever to the testator 's wife seems to be unnatural. It casts a serious doubt on the genuineness of the Will. The Will has not been produced for very many years before the Court or 358 public authorities even though there were occasions to produce it for asserting plaintiff 's title to the property. The plaintiff was required to remove these suspicious cir cumstances by placing satisfactory material on record. He has failed to discharge his duty. This Court concurs with the conclusion of the High Court and rejects the Will as not genuine. [368A B] Section 63 of the Evidence Act mentions five kinds of secondary evidence. Clauses (1), (2) and (3) refer to copies of documents; clause (4) refers to counter parts of docu ments and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under section 79 but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. [369B C] H. Venkatachala lyengar vs B.N. Thimmajamma & Ors., [1959] Supp. I SCR 426; Rani Purnima Devi & Anr. vs V. Kumar Khagendra Narayan Dev & Anr., ; Smt. Indu Bala Bose & Ors. vs Manindra Chandra Bose & Anr., ; and Mst. Biro vs Atma Ram & Ors., AIR 1937 PC 101.

Appeal Nos. 2914 16 of 1993 etc. From the Judgment and Order dated 23.3.1993 and 29 3 93 of the Madras High Court in W.P. Nos 15081/91, 8002/92 and 16068/91. WITH Civil Appeal Nos. 2937/93 3040 40A B/93 3026 27/93 3025/93 990 3015 24/93 3028/93 3084/93 3002/93 3032/93 2993 94/93 3003 04/93 3086 87/93 2995/93 3005 07/93 2987 89/93 3014/93 3008 10/93 3086 87/93 2940 41/93 3011 301 IA/93 2998 3000/93 2986/93 3101 07/93 2992/93 3108/93 2982 82A/93 2983 85/93 3029 31/93 3093 94/93 2943 44/93 991 2955 57/93 2996 97/03 3042 3080/93 3035/93 3039/93 3041/93 3095/93 3033 34/93 3090 92/93 3096 97/93 2981/93 3088 89/93 2979/93 2976 77/93 2960 61/93 2990/93 2968/93 2958 59/93 2971/93 2978/93 2972/93 2942/93 3082 83/93 2969 70/93 2965 67/93 2991/93 992 2973 75/93 3036 38/93 2962 64/93 3085/93 3127 29/93 3012 13/93 3018/93 2938 39/93 2990/93 2945 54/93 WITH Special Leave Petition (CIVIL) Nos. 7375, 8009 11, 8108, 7416, 7560 62 OF 1993. Shanti Bhushan, K.K. Venugopal, Soli J. Sorabjee, N. Santosh Hegde, Shivasubramaniam. K. Parasaran, P. Chidambaram, Mrs. Revathy Raghavan, M.A. Krishna Moorthy, Kailash Vasdev, Pawan Kumar, B. Rabu Manohar, Dr. A. Francis Julian (For M/s. Arputham, Aruna and Co.), P. Chandrasekhran, Aruneshwar Gupta, A. Chandrasekar, Pushpendra Singh Bhati, V. Ramajagadesan, V. Balachandran, V. Krishnamurthy, K.V. Vijaya Kumar, Ajit Kumar Sinha, Selvar thenave, Martin, K.V. Mohan, R. Mohan, R. Nedumaran, and P.D. Dinakaran for the Appellants. P.R. Seetharaman for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH,J. These bunch appeals are by the Teachers Training Institutes in the State of Tamil Nadu. They claim to be the minority educational institutions in terms of Article 30(1) of the Constitution of India. The State Government has declined to recognise these institutes on (lie ground that they have failed to satisfy the conditions for grant of recognition as provided under the Tamil Nadu Minor 993 ity Schools(Recognition and Payment of Grants) Rules, 1977 as amended by the Government Order No. 536 dated May 17, 1989 and Government Order No. 861 dated June 12, 1991. (Recognition Rules) The appellants challenged, before the Madras High Court by way of writ petitions under Article 226 of the Constitution, the validity of the Recognition Rules. inter alia, on the ,rounds that the said Rules are violative of Articles 30(1) and 14 of the Constitution of India. A Division Bench of the High Court consisting of M. Srinivasan and Thangamani, JJ, dismissed the writ petitions. M. Srinivasan J., who spoke for the Bench, has given a scholarly judgment. The case law on the subject has been dealt with in detail and the conclusions culled out succinctly. The High Court judgment has been of utmost assistance to us. These appeals via special leave are by the Teachers Training Institutes against the judgment of the Division Bench of the High Court. We announced our conclusions in these matters dismissing the appeals and special leave petitions on May 25, 1993. Now we proceed to give our reasoned judgment. The Recognition Rules provide for instructions and teaching practice to be followed, minimum qualifications for teaching and non teaching staff and the following additional Conditions to be satisfied by a teachers training institute to quality for grant of recognition 1.The Teachers Training Institute should have at least 10 acres of suitable land of its own to he used for construction of Building for Institution and Administration and for Hoste l accommodation and staff quarters and also for Play Ground purposes, 2.The Institution Building must consist of suitable rooms to provide for class rooms with roughly 60 sq. feet of carpet area per inmate one Auditorium cum projection hall with an area of about 2000 Sq. Laboratory and Special Rooms. Library Staff rooms separately for Men and Women staff, Principal 's Room, Off ice Room, Store Room for Craft and Physical Education articles. Toilet facili ties separately for men and women and women 's Common Room; 3.Bath rooms and toilets should be provided. if the Institution is meant for both sexes separate Such facilities should be provided for 994 men and women teaching staff non teaching staff and men and women candidates. As far as bath rooms and toilets are concerned arrangements should he made at the rate of one for ten inmates. 4.(a) Adequate furniture and office equipment including furnitures for class rooms, Library, Laboratory and other rooms should be provided to the value of at least a lakh of rupees, (b)Laboratory equipments worth at least a lakh of rupees should be provided for Science, Geography, Home; (c)Teaching appliances. audio visual aids, charts, maps etc. worth about Rs. 50,000 should be provided. (d)Sports/Games/Arts/Music Equipments worth about Rs. should be provided. (e)Equipment and Material for work experience worth about Rs. 50,000 should be provided. 5.A room with a space of approximately 1000 sq. with sufficient storage space to keep the equipment furnishing to organise various learning situations, and provision to observe the trainees at work in the laboratory situations. without being noticed has to be provided. Sufficient furnitures such as, working tables and almirahs should be provided. Each Teacher Training Institution should have a good library with at least 10,000 volumes of back and reference books worth at least a lakh of rupees: 7. Play ground space for sports, gymnastics and other Physical Education activities with an area about 5 acres should be provided. If the Institute is meant for both sexes, another 3 acres of and should he provided exclusively for women candidates. The Play ground should he provided adjacent to the main Institution building within the campus and not in a remote place away from the Institution, 995 8. At least one full fledged recognised Middle School with Standards I to VIII should be functioning under the same management of every Teacher Training Institute seeking recognition, for the purpose of providing teaching practice to the trainess. This will be a precondition even at the time of sending in applications for recognition of Teachers Training Institutes. The practical aspects of the Training will be assessed by a competent board to be constituted by the concerned authority. (a) The need for the opening of the institution in that area will be assessed by a District Committee with a Joint Director nominated by Director of School Education as Chairman with Chief Educational Officer and District Educational Officer/Inspectors of Girls Schools as members as the case may. This committee will submit a report about satisfaction of norms based on which the competent authority will consider Recognition for the institution, (b) The Authority competent to grant recognition shall take into account the need for granting such recognition to Teacher Training Institutes taking into consideration the trained teachers already available and waiting for appointment and potential to. absorb the Teachers to be trained in future in the services of Government and Private Schools. There should he economic strength as prescribed by the education department. The teachers training institutes should not admit more than forty students in all for the course and should not exceed this limit either in the first or second year. It was argued before the High Court that as the minorities have a fundamental right under Article 30(1) of the Constitution to establish and administer educational institutions of their choice, the conditions provided under the Recognition Rules are wholly arbitrary and have been designed to oust the appellants from the educational fieled and the provisions regarding, having a middle school '. ten acres of land, play grounds, library with 10,000 books, laboratory, hostel, staff quarters, bathrooms for students etc. are so onerous that it is difficult rather impossible to comply with the same. 996 While dealing with the argument based on Article 30(1) of the Constitution of India the High Court discussed in detail the judgments of this Court in Kerala Education Bill[1959] SCR 995, Rev,. Sidhajbhai Sabhai & Ors. vs State of Bombay and Anr [ ; S Azeez Basha vs Union of India ; , State of kerala etc, vs Very. Rev. Mother Provincial etc, [ ; , Regina vs St. Aloysius Higher Elementary School and Anr, [19711 Supp. SCR 6. The Gandhi Faiz e am College, Shahjahanpur vs University of Agra and Anr. [ 19751 2 SCC 283, Lilly,. Kurian vs Sr. Lewina and Ors, [ 1 979] 1 SCR 820,All Saints High School, Hyderabad etc. vs Government of Andhra Pradesh & Ors. etc ; ; The Managing Board of the Milli Talimi Mission, Bihar Ranchi & Ors. vs The State of Bihar & Ors., ; , A.P. Christians Medical Educational Society vs Government ofAndhra Pradesh and Anr ; , Frank Anthony Public School Employees Association vs Union of India and ors,[1986]4 SCC 707,All Bihar Christion Schools Association andAnr. vs State of Bihar and Ors [ 1 988] 1 SCC 206; St. Stephen 's College vs The University of DelhiJT [1991]4 SC 548; Unni Krishnan andAnr. vs State ofAndhra Pradesh and Ors. Writ Petition (C) No. 607/92 decided on February4,1993 and TheAhmedabad St Xaviers College Society & Anr. vs State of Gujarat and Anr 1 975 ] 1 SCR 173. On the analysis of the above judgments the High Court culled out the following principles 1)The fundamental right declared by Article 30(1) of the Constitution is absolute in terms, but subject to regulatory measures ', 2)There is no fundamental right under Article 19(1) (g) of the Constitution to establish or administer an educational institution, if recognition is sought therefor; 3) The institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms, 4) There is no fundamental right to recognition and any institution seeking recognition should abide by the regulations,prescribed by the State as conditions therefor; 5)The minority institutions must be fully equipped with educational excellence to keep in step with other institutions in the State; 6) The regulations framed by the State cannot abridge the fundamental right of the minorities and they should be in the interests of 997 the minority institutions themselves and not based on State necessity or general societal necessities; 7) The regulations should be with a view to promoting excellence of educational standards and ensuring security of the services of teachers and others employees of the institutions and in the true interests of efficiency of institutions, discipline, health, sanitation, morality, public order and the like, 8) Even unaided institutions are not immune from the operations of general laws of the land such as Contract Law, Tax measures, Economic Laws, Social Welfare Legislations Labour and Industrial Laws and similar other laws which are intended to meet the need of the Society, No fault can he found with the above quoted legal principles enunciated by the High Court. Mrs. Kitty Kumar Manglam. Mr. Shanti Bhushan, Mr. K.K. Venugopal. Mr. K. Parasaran, Mr. P. Chindambram and other learned counsel appearing for the appellants fairly conceded that the High Court has correctly summed upthe conclusions arising out of the interpretation of Article 30(1) of the Constitution of India. Before dealing with the Recognition Rules the High Court referred to the Guidelines framed pursuant to the National Educational Policy introduced in the year 1986, the recommendations of the Education Commission (1964 1966), the role of the National Council for Teacher Education under the National Council of Educational Research and Training, the views of various eminent educationists and came to the conclusion that there is a need for drastic change in the basic concept of teachers training in the country. Comprehensive overhauling of administrative structure of these institutions was urgently needed. The High Court dealt with in detail the revised syllabus for the diploma in teacher education course and also the curriculum of the institutes of Education Training set up by the Tamil Nadu Government which shows that the State.of Tamil Nadu is in the process of overhauling the methodology of teaching and administration of the teachers training institutes in the State of Tamil Nadu. The High Court referred to various judgments of this Court wherein the importance of teacher training and need to uplift the standard of such institutions was repeatedly highlighted. The High Court rightly emphasised the need for maintaining very high standards of Education, Sports, administration and maintenance of the Teachers 998 Training Institutes. These Institutions are established with the avowed object of training teachers and educationists who have to shoulder the responsibility of moulding the nation. This Court in N.M. Nageshwaramma vs State of Andhra Pradesh & Anr. [1986] Supp SCC 166 observed as under: "The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose. on the innocent and unwary children, teachers who have not received proper and adequate training. True they will be required to pass the examination but that may not be enough. Training for a certain minimum period in a properly organised and equipped Training Institute is probably essential before a teacher may be duly launched." Jagannatha Shetty, J. speaking for this Court in Andhra Kesari Education Society vs Director of School Education & Ors. J.T.(1988) 4 S.C. 431 observed as under: "Though teaching is the last choice in the job market, the role of teacher is central to all processes of formal education. The teacher alone could bring out the skills and intellectual capabilities of students. He is the 'engine ' of the educational system. He is a principal instrument in awakening the child to cultural values. He needs to be endowed and energised with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and motivate into action the benefitter. He must keep himself abreast of ever changing conditions. He is not to perform in a wooden and unimaginative way. He must eliminate fissipasrous tendencies and attitudes and infuse nobler and national ideas in younger minds. His involvement in national integration is more important, indeed indispensable. It is, therefore. needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency. It has greater relevance to the needs of the day. The ill trained or sub standard teachers would be detrimental to our educational system, if not a punishment on our children. The Government and the University must, therefore, take care to see that inadequacy in the training of teachers is not compounded by any extraneous consideration. " In State of Maharashtra vs Vikas. Sahebrao Roundale & Ors.,. J.T (1992) 5 999 S.C. 175, K. Ramaswamy, J. speaking for this Court observed as under: "The teacher plays pivotal role in moulding the career,character and moral fibres and aptitude for educational excellence in impressive young children. The formal education needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest technics to the students on secular, scientific and rational outlook. A well equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuits. The teacher is adorned as Gurudevobhava, next after parents, as he is a Principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline. The teachers, therefore, must keep abreast ever changing technics, the needs of the society and to cope up with the psychological approach to the aptitudes of the children to perform that pivotal role. In short teachers need to he endowed and energised with needed potential to serve the needs of the society. The qualitative training in the training colleges or schools would inspire and motivate them into action to the benefit of the students. For equipping such trainee students in a school or a college all facilities and equipments are absolutely necessary and institutions bereft thereof have no place to exist nor entitled to recognition. In that behalf compliance of the statutory requirement is insisted upon. Slackening the standard and judicial fiat to control the mode of education and examining, system are detrimental to the efficient management of the education. " The teacher education programme has to be redesigned to bring in a system of education which can prepare the student teacher to shoulder the responsibility of imparting, education with a living dynamism. Education being closely interrelated to life the well trained teacher can instill anesthetic excellence in the life of his pupil. The traditional, stereotyped. lifeless and dull pattern of" 'chalk. talk and teach" method has to be replaced by a more vibrant system with improved methods of teaching. to achieve qualitative excellence in teacher education. Keeping in view the National Policy of Education, the Government of Tamil Nadu has published, a revised syllabus for the diploma in teacher education course. in the Government Gazette of August 15, 1990. The aims and objectives of the said syallbus and curriculum as given by the State of Tamil Nadu are as under: 1000 .LM15 "A sound Programme of Elementary Teacher Education is inevi table for the qualitative improvement of Education. Education must become all effective instrument of social change and the part played by the teacher should be suitable and significant for this purpose. The gap between the Teacher Education curriculum and the school curriculum has to he minimized for enabling the teachers to act as agents of social change which necessitates that the education imparted in schools has relevance to the personal as well as social life of individuals and to "the needs and aspirations of the people. In order to be a catalyst in the process of developing a citizen who is productive and who believes in social justice and national integration, tile teacher himself needs to become such a citizen through appropriate learning experience. " The High Court has examined the legality of the impugned Recognition Rules in the above background. It has discussed in detail the object and utility of laying down the impugned conditions for recognition. The High Court has found that none of the conditions infract Articles 14 and Article 30(1) of the Constitution of India. We agree with the reasoning and the conclusions reached by the High Court. This Court cannot go into the question as to whether a Teachers Training Institute should be set up on a campus consisting of 10 acres or 5 acres. It is also not for this Court to lay down the sizes of the class rooms. laboratories, number of ' toilets or the number of books to he kept in the library. It is entirely for the State Government to lay down tile requirements of a teachers training institute campus. The learned Advocate General appearing for the State of Tamil Nadu has contended that the Recognition Rules are also applicable to Government run teachers training, institutes and also to the institutes which are Government aided. According to him the new Recognition Policy of the Government has been designed with the object of closing the "teaching shops" and encouraging the genuine institutions. According, to him the policy is based on the Guidelines issued by the Central Government from time to time. He further stated that the condition of having an area of 10 acres for the campus has now been reduced to five acres in case of the institutions which are set up within the area of Municipal Corporation. He has clarified that the only requirement for setting up the library is that it must have reference books worth at least a lakh of rupees. According to him the number of toilets. bathrooms etc. and other conditions regarding the institute building are in the nature of guidelines and are to he substantially complied with. On our suggestion the learned Advocate General has agreed to command to the State Government. not to insist on additional 3 acres of land in case of ' co 1001 educational institutes in case these institutes are having 10 acres/5 acres of area as provided under the Recognition Rules. Mr. Shanti Bhushan appearing in civil appeals arising out of Special Leave Petitions No. 6762 63/93 has contended that the appellants institutes started functioning in the year 1984. They were refused recognition and as such they challenged the order by way of a writ petition before the High Court. The learned counsel has invited our attention to the judgment of the High Court dated November 3, 1987 in the said writ petition wherein it is held as under "Consequently, the orders of the respondents 2 and 3 are set aside a writ of mandamus will issue directing the third respondent to grant recognition to the petitioner institute with effect from 27th September, 1984. This writ petition is allowed with costs. " Mr. Shanti Bhushan contended that the impugned Recognition Rules cannot be made applicable to the institutions which have already been established and given recognition by the State Government under directions of the Court. Relying upon the above quoted judgment of the High Court learned counsel has contended that his clients were given recognition with effect from 1984 under the directions of the High Court and as such the impugned Recognition Rules which came into force in the year 1989 cannot be made applicable to them. It is not disputed by Mr. Shanti Bhushan, that under the directions of the High Court temporary recognition was given to his clients, though according to him the order of the Government granting temporary recognition was challenged before the High Court and the said petition was also disposed of by the impugned judgment. We see no force in the contention of the learned counsel. All those institutes which did not have permanent recognition before the issue of the Recognition Rules are bound to comply with the said conditions before they are entitled to permanent recognition. The High Court was justified in holding that the institutions which were operating on the basis of temporary recognitions, either under the orders of the Courts or otherwise, shall to comply with the recognition rules to enable them to earn recognition. Mr. K.K. Venugopal contended that a distinction has to be made between the institutions which are functioning earlier to the coming into force of the recognition rules and those which have applied for recognition for the first time. According to him change over period should be given to the existing institutes which are functioning on the basis of temporary recognition. We do not agree with Mr. Venugopal. The training institutes which are functioning on the basis of 1002 temporary recognitions are neither properly organised nor fully equipped to train the teachers. These institutes have done more harm than good to the cause of education. Mr. Venugopal and Mr. K. Parasaran have further argued that the students who have already taken the examinations, their results be directed to be declared and if successful, certificates be awarded to them. Mr. Chindambram, appearing for some of the appellants, has argued that there are students who have already taken the examination and their results have also been declared but they have not been given certificates on the ground that the institutes which sponsored them have not been recognised. It is no doubt correct that temporary recognitions have been granted to some of the institutions either under the orders of the Court or otherwise and the students of such institutions were permitted to write the examinations. In number of cases under orders of the Court permission to the students to write the examinations have been given. The High Court also directed in some cases to publish the results of the students who wrote the examination in April 1992. All these situations were brought to the notice of the High Court in Writ Petition No. 3674 of 1992 and Writ Petition No. 5469 of 1993 which were heard together. The High Court refused to grant relief to the students who had written the examination or who had passed the examination and were being denied the certificates. The High Court observed as under "Based on the above orders, learned counsel for the petitioner contends that the students of the petitioner Institution have validly written the examination when the order of recognition was in force and the results of the examination have already been published, pursuant to the orders of this Court. It is contended that the students of the petitioner are certainly entitled to the consequential relief of issue of certificates. Another interlocutory application is now filed in WMP No. 5469 of, 1993 on 22.2.93 for a direction to the third respondent to publish the results of the students who wrote the examination held in July 1992. In similar cases, we have given directions to the authorities to publish the results. But, we have taken care to observe that such publication of results will not confer any right on the students as the Institutions have not complied with the rules framed in GOMS. No. 536. They cannot take advantage of the interim orders passed by this court directing the government to grant temporary recognition Orders of such temporary recognition 1003 are expressly made subject to the result of the main writ petitions. Now, we have held that GO Ms. No. 536 is valid and the orders of temporary recognition will not confer any other remedies on the students of the petitioner. So far as these institutions are concerned, they should be treated only as non recognised. Just because the students have written the examinations and results are published, they are not entitled to any further relief. The writ petition is dismissed with the above observations". It has come to the notice of this Court that many institutions claiming themselves to be minority institutions within the meaning of Article 30(1) of the Constitution, invoke the jurisdiction of the High Court under Article 226 or of this Court under Article 32 for a writ of mandamus to recognise the institutions in question as minority institutions and pending the final disposal of such applica tions, an interim direction is sought to allow the students of such institutions to appear at the examinations concerned. In connection with such interim prayer, this Court in the case of A. P. Christians Medical Educational Society vs Government of Andhra Pradesh (supra) said: "Shri K.K. Venugopal, learned counsel for the students who have been admitted into the MBBS course of this institution, pleaded that the interests of the students should not be sacrificed because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution. He invited our attention to the circumstance that students of the Medical college established by the Daru Salam Educational Trust were permitted to appear at the examination not with standing the fact that affiliation had not by then been granted by the University. Shri Venugopal suggested that we might issue appropriate directions Lo the University to protect the interests of the students. We do not think that we can possibly accede to the request made by shri Venugopal on behalf of the students. Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law that a direction by the court to disobey the laws. " 1004 In view of the aforesaid pronouncement of this Court, the High Court should not have passed, interim order directing the respondents to allow the teachers of unrecognised institutions to appear at the examinations in question. Such teachers cannot derive any benefit on basis of such interim orders, when ultimately the main writ applications have been dismissed by the High Court, which order is being affirmed by this Court. The same view has been expressed by this Court, in connection with the minority unrecognised teachers training institutions in the State of Tamil Nadu itself, in the case of State of Tamil Nadu and others vs St. Joseph Teachers Training Institute and another [1991] 3 SCC 87. As such no equity or legal right can be pleaded on behalf of the Teachers admitted for training by such minority institutions, for publication of their results, because they were allowed to appear at the examinations concerned, during the pendency of the writ applications before the High Court, on basis of interim orders passed by the High Court, which were in conflict with the view expressed by this Court in the aforesaid cases. We see no ground to differ with the view taken by the High Court. This court in N.M. Nageshramma 's case (supra) has held that training in a properly organised and equipped training institute is essential before a candidate becomes qualified to receive teachers training certificate. Simply passing the examination is not enough. The future teachers of the country must pass through the institutions which have maintained standards of excellence at all levels. We see so ground to interfere with the impugned judgment of the High Court. We agree with the views expressed by the High Court on various aspects of teachers training institutes. We also agree with the reasoning and the conclusions reached by the High Court. Before we part with this judgment we consider it necessary to strike a note of caution in respect of passing of interim orders by Courts directing the students of unrecognised institutions, to appear at the examinations concerned. In view of ' the series of judgments of this Court, the Courts should not issue fiat to allow the students of unrecognised institutions to appear at the different examinations pending the disposal of the writ applications. Such interim orders affect the careers of several students and cause unnecessary embarrassment and harassment to the Authorities, who have to comply with such directions of the Court. It is a matter of common knowledge that as a part of strategy, such writ applications for directions to recognise the institutions in question and in the meantime to allow the students to appear at the examinations are filed only when the dates for examinations are justified. Many of such institutions are not only "masked phantoms" but are 1005 established as business ventures for admitting sub standard students, without any competitive tests, on basis of considerations which cannot serve even the interest of the minority. There is no occasion for the Courts to be liberal or generous, while passing interim orders, when the main writ applications have been filed only when the dates for the examination have been announced. In this process, students without knowing the design of the organisers of such institutions, become victim of their manipulations. The appeals/special leave petitions are dismissed. No costs. R.P. Appeals dismissed.

The respondent state, in the process of overhauling the methodology of teaching and administration of teachers training institutes in order to achieve qualitative excellence in teacher education , amended the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules 1977 by G.O. No.536 dated 17 5 1989 and No. 661 dated 12 6 1991. The Rules besides providing for instructions teaching practice to be followed and minimum qualification for the staff prescribed certain other conditions regarding land,building, hotel 986 furniture, library, teaching appliances, sports facilities, recognised middle school for providing teaching practice to trainees, etc. to be satisfies by a teachers training institute to qualify for grant of recognition. The appellant/petitioners are various Teachers Training Institute in the State of Tamil Nadu. claiming to be minority educational institutions in terms of Article 30(1) of the Constitution of India The State Government declined to recognise these institutions on the ground that they failed to sutisfy the conditions for grant of recognition as provided under the Recognition Rules. The appellants/petitioners filed writ petitions before the High Court challenging the validity of the Recognition Rules on the ground that the same were violative of Articles 30(1) and 14 of the Constitution. It was contended that as the minorities have a fundamental right under r Article 30(1) of the Constitution to establish and administer educational institutions of their choice, the conditions provided under the recognitions Rules were wholly arbitrary and were designed to oust the appellants from the educational field and the the provisions were so onerous that it was difficult rather impossible to comply with the same. The High Court dismissed the writ petitions. The appellants/petitioners filed the appeals and the special leave petitions. It was contended on behalf of the appellants that the Rules could not be made applicable to the institutions already established and given recognition by the State Government under the directions of the Court; and that the successful students of these institutions who had taken examinations be given certificates. This Court dismissed the appeals and the special leave petitions by its order dated 25 5 1993 indicating that reasons therefor would follow. Giving reasons for its order dated 25 5 1993, this Court HELD : 1. The High Court was right in holding that none of the conditions for grant of recognition to teachers training institutes prescribed under the Tamil Nadu Minority Schools (Recognition and Payment of Grants) Rules, 1977, infracted Articles 14 & 30(1) of the Constitution. It rightly culled out the following principles (i) The fundamental right declared by Article 30(1) of the Constitution is absolute in terms, but subject to regulatory measures; 987 (ii)There is no fundamental right under Article 19(1) (g)of the Constitution to establish or administer an educational institution, if recognition is sought therefore; (iii) The institutions must he educational institutions of the minorities in truth and reality and not mere masked phantoms; (iv) There is no fundamental right to recognition and an% institution seeking recognition should abide by the regulations prescribed by the State as conditions therefor, (v) The minority institutions must be fully equipped with educational excellence to keep in step with other institutions in the State; (vi) The regulations framed by the State cannot abridge the fundamental right of the minorities and they should be in the interests (if the minority institutions themselves and not based on State necessity or general societal necessities . (vii) The regulations should be, with a view to promoting excellence (of educational standards and ensuring security of the services of teachers and other employees of the institutions and in the true interests of efficiency (if institutions, discipline, health, sanitation, morality public order and the like; (viii) Even unaided institutions are not immune from the operations of general laws of the land such as Contract Law Tax measures, Economic Laws and, Social Welfare legislations, Labour and Industrial Laws and similar other laws which are intended to meet the need of the Society. Kerala education bill,[1959] SCR 995; Rev. Sidhajbai Sabhai section vs State of Bombay and Anr[1963] 3 SCR 837; section Azeesh Basha vs Union of India ; ; State o Kerala etc. vs Very Rev. Mother Provincial etc ; ; Regina vs St. Alosius Higher Elementary School and Anr[1971] Supp. SCR 6; The Ahmedabad St. Xaviers College Society and Anr etc vs State of Gujarat and Anr[1975] 1 SCR 173; The Gandhi Faiz e am College, Shajahanpur University of Agra and Anr.[1975] 2 SCC 283; Lilly Kurian vs Sr. Lewina and 988 Ors.[1979] 1 SCR 320; All Saints High School, Hyderabad etc. vs Government of Andhra Pradesh & Ors. etc ; ; The Managing Board of the Milli Talimi Mission, Bihar Ranchi & Ors vs The State of Bihar & Ors ; ; A.P. Christians Medical Educational Society vs Government of Andhra Pradesh and Anr.[1986] 2 SCC 667 Frank Anthony Public School Employees Association vs Union of India and Ors [1986]4 SCC 707 All Bihar Christian Schools Association and Anr. vs State of Bihar and Ors. ; St. Stephon 's College vs The University of Delhi JT(1991) 4 SCC, 548 and Unni Krishnan and Anr. vs State of Andhra Pradesh and Ors. cited. 2.1 The teacher education programme has to he redesigned to bring in a system of education which can prepare the student teacher to shoulder the responsibility of imparting educating with a living dynamism and the traditional pattern of "chalk, talk and teach" method has to be replaced by more vibrant system with improved methods of reaching, to achieve qualitative excellence in teacher education. N.M. Nageshwaramma vs State of Andhra Pradesh & Anr [1986] Supp SCC 166 Andhra Kesari Education Society vs Director of School Education & Ors and State of Maharashtra vs Vikas Sahebrao Roundale & Ors. J.T.(1992) 5 SC 175, relied on. 2.2 It is entirely for the State Government and not for this Court, to lay down the requirements of a teachers training institute campus. All those institutes which did not have permanent recognition before the issue of the Recognition Rules, 1977 are bound to comply with the said conditions before they are entitled to permanent recognition. The High Court was Justified in holding that the institutions which were operating on the basis of temporary recognitions, either under the orders of the Courts or otherwise, shall have to comply with the recognition rules to enable them to earn recognition. These institutions are neither properly, organised nor fully, equipped to train the teachers. and have done more harm than good to the cause of education. 3.1 In view of the series of the judgments of this Court the Courts should not issue fiat to allow the students of unrecognised institutions to appear the different examinations pending the disposal of the writ applications. Such interim orders affect the career of several students and cause unnecessary embarrassment and harassment to the authorities, who have to comply with such directions of the Courts. 989 A.P. Christians Medical Educational Society vs Government of Andhra Pradesh ; , relied on. 3.2 The High Court should not have passed interim orders directing authorities concerned to allow the teachers of unrecognised institutions to appear at the examinations. It is a matter of common knowledge that many institutions claiming themselves to be minority institutions within the meaning of Article 30(1) of the Constitution invoke the jurisdiction of the High Court under Article 226 or of this Court under Article 32 for a writ of mandamus to recognise the institutions as minority institutions only when the dates for examinations are notified and, as a part of strategy, seek directions to allow, meanwhile, the students to appear at the examinations. Many of such institutions are not only "masked phantoms" but are established as business ventures for admitting sub standard students without any competitive tests, on basis of considerations which cannot serve even the interest of the minority. The teachers of such institutions cannot derive any benefit on basis of interim orders when ultimately the main writ applications have been dismissed. As such no equity or legal right can be pleaded on behalf of the students admitted for traning by such minority institutions for publication of their results or award of certificates. A.P. Christians Medical Educational Society vs Government of Andhra Pradesh, ; ; and State of Tamil Nadu and others vs St. Joseph Teachers Training Institute and another; , , relied on.

y of the view that the almost unanimous opinion of experts is that after the age of 15, bulls. bullocks and buffaloes are no longer useful for breeding, draught and other purposes and whatever little use they may have then is greatly offset by the economic disadvantages of feeding and maintaining unserviceable cattle disadvantages to which we had referred in much greater detail in Md. Hanif Quareshi 's case (1). Section 3 of the Bihar Act in so far as it has increased the age limit to 25 in respect of bulls, bullocks and she buffaloes, imposes an unreasonable restriction on the fundamental right of the petitioners, a restriction moreover which cannot be said to be in (1) ; 623 the interests of the general public, and to that extent it is void. We may here repeat what we said in Chintaman Rao vs The State of Madhya Pradesh (1): "The phrase 'reasonable restriction ' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word 'reasonable ' implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality. " As to r. 3 the grievances of the petitioners are these. Under the rule the prescribed authority for the purpose of section 3 of the Act consists of the Veterinary Officer and the Chairman or Chief Officer of a District Board, Municipality etc. Unless both of them concur, no certificate for slaughter can be granted. It is pointed out that the Chairman or Chief Officer would be a layman not in a position to judge the age or usefulness of cattle. The result would be that the animal in respect of which a certificate is required may have to be shown to the Veterinary Officer as also the Chairman or Chief Officer, who may not be staying at the same place as the Veterinary Officer. If the two differ, the matter has to be referred to the Sub divisional Animal Husbandry Officer. This procedure, it is contended, will involve the expenditure of so much money and time that it will not be worthwhile for the petitioners to ask for a certificate, or having got a certificate, to slaughter the animal. An animal which is above 15 or which has become useless generally costs much less than a young, serviceable animal. If the petitioners have to incur all the expenditure which the procedure laid down by r. 3 must necessarily cost them, then they must close down their trade. As to the right of appeal from an order refusing to grant a (1) ; ,763. 624 certificate, it is contended that that right is also illusory for all practical purposes. To take the animal to the Deputy Director of Animal Husbandry or the District Animal Husbandry Officer or the Sub divi sional Animal Husbandry Officer, as the case may be, and to keep and feed the animal for the period of the appeal and its hearing will cost more than the price of the animal itself. We consider that these grievances of the petitioners have substance, and judged from the practical point of view, the provisions of r. 3 impose disproportionate restrictions on their right. It is difficult to understand why the Veterinary Officer, who has the necessary technical knowledge, cannot be trusted to give the certificate and why it should be necessary to resort to a complicated procedure to resolve a possible difference of opinion between two officers, later followed by a still more expensive appeal. We, therefore, hold r. 3 also to be bad in so far as it imposes disproportionate restrictions indicated above, on the right of the petitioners. (2) We now proceed to consider the Uttar Pradesh Prevention of Cow Slaughter (Amendment) Act, 1958. After the decision of this Court in Md. Hanif Quareshi vs The State of Bihar (1) an Ordinance was passed called the Uttar Pradesh Prevention of Cow Slaughter (Amendment) Ordinance, 1958. This Ordinance was later repealed and replaced by the Act. The petitioners say that in the Bill as originally drafted the age limit below which slaughter was not permissible was put at 15 years; but the Select Committee increased it to 20 years. It will probably be best, for clearness sake, to set forth not the whole provisions of the Act, for that would be too lengthy, but those which form most directly the subject matter on which the controversy turns. Section 3 of the Act reads (omitting portions not relevant for our purpose) "section 3(1) Except as hereinafter provided, no person shall slaughter or cause to be slaughtered or offer or cause to be offered for slaughter (a). . . . . . . (1) ; 625 (b) a bull or bullock, unless he has obtained in respect thereof a certificate in writing, from the competent authority of the area in which the bull or bullock is to be slaughtered, certifying that it is fit for slaughter. (2) No bull or bullock, in respect of which a certificate has been issued under sub section (1)(b) shall be ' slaughtered at any place other than the place indicated in the certificate or within twenty days of the date of issue of the certificate. (3) A certificate under sub section (1)(b) shall be issued by the competent authority, only after it has, for reasons to be recorded in writing, certified that(a) the bull or bullock is over the age of twenty years; and (b) in the case of a bull, it has become permanently unfit and unserviceable for the purpose of breeding and, in the case of a bullock, it has become permanently unfit and unserviceable for the purposes of draught and any kind of agricultural operation: Provided that the permanent unfitness or unserviceability has not been caused deliberately. (4) The competent authority shall, before issuing the certificate under sub section (3) or refusing to issue the same, record its order in writing. Any person aggrieved by the order of the competent authority, under this section, may, within twenty days of the date of the order, appeal against it to the State Government, which may pass such orders thereon as it may deem fit. (5) The State Government may, at any time, for the purposes of satisfying itself as to the legality or propriety of the action taken under this section, call for and examine the record of any case and may pass such orders thereon as it may deem fit. (6) Subject to the provisions herein contained any action taken under this section, shall be final and conclusive and shall not be called in question. " On behalf of the petitioners it has been argued that section 3 imposes a number of unreasonable restrictions. Firstly, it is urged that the age limit with regard to bulls or bullocks is put too high, viz. at 20 years. This is an 626 aspect which we have already considered in relation to the Bihar Act. What we have said about the age s limit in that connexion applies equally to the Uttar Pradesh Act. The 8th Live stock Census, 1956 shows that in Uttar Pradesh bulls and bullocks over 3 years of age, not in use for breeding or work, numbered as many as 126,201 in 1956 as compared to 162,746 in 1951. The Municipal Manual, Uttar Pradesh, Vol. 1, contains a direction that for slaughter of animals, bullocks and male buffaloes in good state of health below ten years of age should be included. Secondly, it is pointed out that not being content with fixing an unreasonably high age limit, the impugned provision imposes a double restriction. It says that the animal must be over twenty years in age and must also be permanently unfit and unserviceable; and in the case of a bullock, the unfitness must be for "any kind of agricultural operation" and not merely for draught purposes. The result of this double restriction, it is stated, is that even if the animal is permanently unserviceable and unfit at an earlier age, it cannot be slaughtered unless it is over twenty years in age. Before a certificate can be given, the animal must fulfil two conditions as to (1) age and (2) permanent unfitness. We consider this to be a demonstrably unreasonable restriction. In Md. Hanif Quareshi 's case (1) this Court had said that a total ban on the slaughter of bulls and bullocks after they had ceased to be capable of breeding or working as draught animals was not in the interests of the general public. Yet this is exactly what the impugned provision does by imposing a double restriction. It lays down that even if the animal is permanently unserviceable, no certificate can be given unless it is more than 20 years in age. The restriction will in effect put an end to the trade of the petitioners. Thirdly, the impugned provision provides (1) that the animal shall not be slaughtered within 20 days of the date of the issue of the certificate and (2) that any person aggrieved by the order of the competent authority may appeal to the State Government within 20 days. It is to be noted that the right of appeal is not (1) 627 confined to a refusal to grant a certificate as in the Bihar Act, but the right is given to any person aggrieved by the order of the competent authority. In other words, even when a certificate is given, any person, even a member of the public, who feels aggrieved by it may prefer an appeal and hold up the slaughter of the animal for a long time. From the practical point of view these restrictions really put a total ban on the slaughter of bulls and bullocks even after they have ceased to be useful, and we must hold, following our decision in Md. Hanif Quareshi 's case (1) that section 3 of the Uttar Pradesh Act in so far as it imposes unreasonable restrictions on the right of the petitioners as to slaughter of bulls and bullocks infringes the fundamental right of the petitioners and is to that extent void. (3) Now, we come to the Madhya Pradesh Act. Several provisions of this Act have been challenged before us as imposing unreasonable restrictions on the fundamental right of the petitioners. Section 4 deals with prohibition of slaughter of agricultural cattle. The expression 'agricultural cattle ' means an animal specified in the schedule: it means cows of all ages; calves of cows and of she buffaloes; bulls; bullocks; and male and female buffaloes. As we have stated earlier, we are concerned in these cases with the validity of the restrictions placed on the slaughter of bulls, bullocks and buffaloes. Now, section 4 is in these terms: "section 4(1) Notwithstanding anything contained in any other law for the time being in force or in any usage or custom to the contrary, no person shall slaughter or cause to be slaughtered or offer or cause to be offered, for slaughter (a) cows, calves of cows, or calves of she buffaloes, or (b) any other agricultural cattle unless he has obtained in respect of such cattle a certificate in writing issued by the Competent Authority for the area in which the cattle is to be slaughtered that the cattle is fit for slaughter. (1) [1959] S.C.R.29. 628 (2) No certificate under clause (b) of sub section (1) shall be issued by the Competent Authority .unless the Veterinary Officer after examining the cattle certifies that (a) the cattle is over twenty years of age and is unfit for work or breeding or has become permanently incapacitated from work or breeding due to age, injury, deformity or an incurable disease; and (b) the cattle is not suffering from any disease which makes its meat unwholesome for human consumption. (3) The Competent Authority shall, before issuing or refusing to issue a certificate under this section, record its order in writing. Any person aggrieved by the order of the Competent Authority under this section, may, within ten days of the date of the order, prefer an appeal against such order to the Collector of the district or such other officer as may, by notification, be authorised in this behalf by the State Government, and the Collector or such other officer may pass such orders thereon as he thinks fit. (4) Subject to the orders passed in appeal, if any, under sub section (3), the order of the Competent Authority shall be final and shall not be called in question in any Court. " Section 5 places a restriction as to the place and time for slaughter and the objection taken before us relates to the time rather than to the place of slaughter. It says in effect that no cattle in respect of which a certificate has been issued under section 4 shall be slaughtered within ten days of the date of issue of the certificate and where an appeal is preferred against the grant of such certificate, till the time such appeal is disposed of. The provision of appeal is contained in sub section (3) of section 4 of the Act which we have quoted earlier. That sub section lays down that any person aggrieved by the order of the Competent Authority, may, within ten days of the date of the order, prefer an appeal against the order to the Collector of the district or such other officer as may, by notification, be authorised in this behalf by the State Government. 629 Section 6 imposes a restriction on the transport of agricultural cattle for slaughter and reads: "section 6. No person shall transport or offer for transport or cause to be transported any agricultural cattle from any place within the State to any place outside the State, for the purpose of its slaughter in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be, so slaughtered. " Section 7 prohibits the sale, purchase or disposal otherwise of certain kinds of animals. It reads . "section 7. No person shall purchase, sell or otherwise dispose of or offer to purchase, sell or otherwise dispose of or cause to be purchased, sold or otherwise disposed of cows, calves of cows or calves of shebuffaloes for slaughter or knowing or having reason to believe that such cattle shall be slaughtered. " Section 8 relates to possession of flesh of agricultural cattle and is in these terms: "section 8. Notwithstanding anything contained in any other law for the time being in force, no person shall have in his possession flesh of any agricultural cattle slaughtered in contravention of the provisions of this Act. " Section 10 imposes a penalty for a contravention of section 4(1)(a) and section 11 imposes penalty for a contravention of any of the other provisions of the Act. On behalf of the petitioners it has been pointed out, and rightly in our opinion, that cl. (a) of sub section (2) of section 4 of the Act imposes an unreasonable restriction on the right of the petitioners. That clause in its first part lays down that the cattle (other than cows and calves) must be over 20 years of age and must also be unfit for work or breeding; and in the second part it says, "or has become permanently incapacitated from work or breeding due to age, injury, deformity or an incurable disease. " It is a little difficult to understand why the two parts are juxtaposed in the section. In any view the restriction that the animal must be over 20 years of age and also unfit for work or breeding is an excessive or unreasonable restriction as we have 80 630 pointed out with regard to a similar provision in the Uttar Pradesh Act. The second part of the clause would not be open to any objection, if it stood by itself. If, however, it has to be combined with the agelimit mentioned in the first part of the clause, it will again be open to the same objection; if the animal is to be over 20 years of age and also permanently incapacitated from work or breeding etc. ,then the agelimit is really meaningless. Then, the expression 'due to age ' in the second part of the clause also loses its meaning. It seems to us that cl. (a) of sub section (2) of section 4 of the Act as drafted is bad because it imposes a disproportionate restriction on the slaughter of bulls, bullocks and buffaloes it is a restriction excessive in nature and not in the interests of the general public. The test laid down is not merely permanent incapacity or unfitness for work or breeding but the test is something more than that, a combination of age and unfitness ' Learned Counsel for the petitioners has placed before us an observation contained in a reply made by the Deputy Minister in the course of the debate on the Bill in the Madhya Pradesh Assembly (see Madhya Pradesh Assembly Proceedings, Vol. 5 Serial No. 34 dated April 14, 1959, page 3201). He said that the age fixed was very much higher than the one to which any animal survived. This observation has been placed before us not with a view to an interpretation of the section, but to show what opinion was held by the Deputy Minister as to the proper agelimit. On behalf of the respondent State our attention has been drawn to a book called The Miracle of Life (Home Library Club) in which there is a statement that oxen, given good conditions, live about 40 years. Our attention has also been drawn to certain extracts from a Hindi book called Godhan by Girish Chandra Chakravarti in which there are statements to the effect that cows and bullocks may live up to 20 or 25 years. This is an aspect of the case with which we have already dealt. The question before us is not the maximum age upto which bulls, bullocks and buffaloes may live in rare cases. The question before us is what is their average longevity and at what age 631 they become useless. On this question we think that the opinion is almost unanimous, and the opinion which the Deputy Minister expressed was not wrong. Section 5 in so far as it imposes a restriction as to the time for slaughter is again open to the same objection as has been discussed by us with regard to a similar provision in the Uttar Pradesh Act. A right of appeal is given to any person aggrieved by the order. In other words, a member of the public, if he feels aggrieved by the order granting a certificate for slaughter, may prefer an appeal and hold up for a long time the slaughter of the animal. We have pointed out that for all practical purposes such a restriction will really put an end to the trade of the petitioners and we are unable to accept a restriction of this kind as a reasonable restriction within the meaning of cl. (6) of article 19 of the Constitution. Section 6 standing by itself, we think, is not open to any serious objection. It is ancillary in nature and tries to give effect to the provision of the Act prohibiting slaughter of cattle in contravention of the Act. Section 7 relates to the prohibition of sale, purchase etc., of cows and calves and inasmuch as a total ban on the slaughter of cows and calves is valid, no objection can be taken to section 7 of the Act. It merely seeks to effectuate the total ban on the slaughter of cows and calves (both of cows and she buffaloes). Section 8 is also ancillary in character and if the other provisions are valid no objection can be taken to the provisions of section 8. Sections 10 and 11 impose penalties and their validity cannot be seriously disputed. However, we must say a few words about section 12 of the Act which has also been challenged before us. Section 12 is in these terms: "section 12. In any trial for an offence punishable under section 11 for contravention of the provision of sections 5, 6 or 7 of this Act the burden of proving that the slaughter, transport or sale of agricultural cattle was not in contravention of the provisions of this Act shall be on the accused. " The argument is that section 12 infringes the fundamental 632 right of the petitioners inasmuch as it puts the burden of proof on an accused person not only for his own knowledge or intention but for the knowledge or intention of other persons. We do not think that this contention is correct. The accused person, so far as sections 5 and 7 are concerned, must be the person who has slaughtered the animal or who has purchased, sold or otherwise disposed of the animal etc. Therefore, the only question will be his knowledge and the legislature was competent to place the burden of proof on him. So far as section 6 is concerned, it specifically refers to the knowledge of the person who has transported or offered for transport or caused to be transported any agricultural cattles from any place within the State to any place outside the State. Therefore, when the section talks of knowledge, it talks of the knowledge of that person who has transported or offered for transport etc. The knowledge of no other person comes into the purview of section 6. We are, therefore, ' of the view that section 12 is not invalid on the ground sug gested by the petitioners. Therefore, the result of our examination of the various provisions of the Act is that the impugned provisions in cl. (a) of sub section (2) of section 4, in sub section (3) of section 4 relating to the right of appeal by any person aggrieved by the order, and in section 5 relating to the time of slaughter, impose unreasonable and disproportionate restrictions which must be held to be unconstitutional. As to the Madhya Pradesh Agricultural Cattle Preservation Rules, r. 3 says "that an application for a certificate under section 4 shall be made to the competent authority," and r. 4 says that on receipt of the application, the competent authority shall by an order direct the person keeping the animal to submit it for examination by the Veterinary Officer Rule 5 reproduces the provisions of cls. (a) and (b) of sub section (2) of section 4 and in so far as we have held that the provision in el. (a) of sub section (2) of section 4 is unconstitutional, the rule must also fall with it. There is one other aspect of these cases which has been emphasized before us, to which a reference must 633 now be made. It is open to the legislature to enact ancillary provisions to give effect to the main object of the Act, namely, the prevention of slaughter of animals like bulls, bullocks or buffaloes which are still useful for the purposes for which they are generally used. It is pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would be reasonable, if the same were necessary to secure efficient enforcement of valid provisions. For example, it is open to the legislature, if it feels it necessary, in order to reduce the possibilities of evasion to a minimum, to enact provisions which would give effect to the main object of the legislation. We have not ignored this aspect and have kept in mind the undisputed right of the legislature to decide what provisions are necessary to give effect to the main object of the legislation. In these cases the petitioners have complained that the main object of the impugned provisions is not the prohibition of slaughter of animals which are still useful; the impugned provisions as they are worded really put a total ban on the slaughter of bulls, bullocks and buffaloes and for all practical purposes they put a stop to the profession and trade of the petitioners. We have held that this complaint is justified in respect of the main provisions in the three Acts. We, therefore, allow the three writ petitions and direct, as we directed in Md. Hanif Quareshi 's case (1) the respondent States not to enforce the Acts or the rules made thereunder in so far as they have been declared void by us. The petitioners will be entitled to their costs of the hearing in this Court. Petitions allowed.

In order to put the sugar industry on a stable footing, for which it was necessary to develop the cane area, the Ruler of the erstwhile Gwalior State by an order dated 27 7 1946 sanctioned the levy of cess of one anna per maund on all sugar cane purchased by the respondent company. When the Government of Madhya Bharat, which was the successor state of the former Gwalior State, made a demand for payment of the cess, the respondent filed a petition before the High Court of Madhya ,Bharat challenging the legality of the levy on the grounds (1) that the order dated 27 7 1946 was only an executive order and not a law under article 265 of the Constitution of India and that, therefore, there was no authority for the imposition of the cess after January 26, 1950, and (2) that the levy was discriminatory and violated article 14 inasmuch as while the respondent was made liable to pay the cess the other sugar factories in the State were exempt. It was found that at the time when cess was first levied there was no sugar factory in existence in the Gwalior State other than that of the respondent. Held, that (i) the Ruler of an Indian State was an absolute monarch in which there was no constitutional limitation to act in any manner he liked, he being the supreme legislature, the supreme judiciary and the supreme head of the executive. I Consequently, the order dated 27 7 1946 issued by the Ruler of Gwalior State amounted to a law enacted by him and became an existing law under article 372 of the Constitution of India. The levy of cess was therefore by authority of law within the meaning of article 265; Madhaorao Phalke vs The State of Madhya Bharat, ; , followed. (2) the levy of cess did not contravene article 14 because (a) the object was cane development in the particular area and a geographical classification based upon historical factors was a permissible mode of classification, and (b) a tax could not be struck down as discriminatory unless it was found that it was imposed with a deliberate intention of differentiating between 620 (ii) where the order is passed by the Sub divisional Animal Husbandry Officer, under sub rule (5), to the District Animal Husbandry Officer and (iii) where the order is passed by the authority prescribed under sub rule (1) to the Sub divisional Animal Husbandry Officer, if there is one; if not, to the District Animal Husbandry Officer; (b) The appeal shall not be decided against the appellant unless he has been given a reasonable opportunity of being heard. " The argument on behalf of the petitioners is that they are "Kassais" by profession and they earn their living by slaughtering cattle only (not goats or sheep which are slaughtered by "Chiks"); that they have the fundamental right to carry on their profession and trade; and that section 3 of the Act read with r. 3 imposes unreasonable restrictions restrictions not in the interests of the general public on their fundamental right and therefore they are not saved by cl. (6) of article 19 of the Constitution. Some of these arguments were considered by this Court in Md. Hanif Quareshi vs The State of Bihar (1) and it was pointed out that the test of reasonableness should be applied to each individual statute impugned and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. It referred to the decision in State of Madras vs V. G. Row (2) and repeated what was said therein that "the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict." 'Another consideration which has to be kept in mind is that "the legislature is the best judge of what is good for the community,. by whose suffrage it comes into existence. . . . (See The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga (3)). But the ultimate responsibility for determining the validity of the law must rest with the (1) (2) ; (3) 621 Court and the Court must not shirk that solemn duty cast on it by the Constitution. We must, therefore, approach the problem before us in the light of the principles laid down by this Court. The most pertinent question is having regard to all the relevant circumstances, is the age of 25 years laid down in section 3 a reasonable restriction on the right of the petitioners in the interests of the general public ? We are unable to say that it is. Apart from the affidavits made on behalf of the petitioners and the respondent State, a large volume of authoritative and expert opinion has been placed before us which shows beyond any doubt that a bull, bullock or she buffalo does not remain useful after 14 or 15 years and only a few of them live up to the age of 25. In the Report of the Cattle Preservation and Development Committee, published by the Ministry of Agriculture, it is recommended by the Committee that the slaughter of animals over 14 years of age and unfit for work as also animals of any age permanently unable to work owing to injury or deformity, should be allowed. In the Report on the Marketing of Meat in India (published by the Ministry of Food and Agriculture) there is a reference to a draft Bill circulated by the Ministry of Agriculture (page 112 of the Report) which contains a clause that animals over 14 years of age and unfit for work may be slaughtered on a certificate from a Veterinary Officer. In the Report on the Marketing of Cattle in India, again published by the Ministry of Food and Agriculture, occurs the following passage as to the price of animals with reference to their age: "Young draught animals up to the age of 4 years being raw and untrained fetch comparatively low prices. Between 4 and 8 years of age, the animals are in the prime of their youth and tender best service, and fetch maximum prices. From the 8th year onwards old age sets in, and a graded decline is observed in their capacity to work and consequently prices depreciate considerably." . In a Food and Agricultural Organisation study of cattle in India and Pakistan (Zebu Cattle of India and 79 622 Pakistan, page 94) it is stated that the active breeding life of a bull is estimated to be about 10 years. In Black 's Veterinary Dictionary (edited by W. C. Miller and G. P. West, fifth edition) it is stated that pedigree ,bulls may reach 12 or 14 years of age before being discarded; and cattle seldom live longer than 15 or 16 years, and when they do, their age is usually of no immediate importance. In another publication of the Ministry of Agriculture called 'Problems of Cattle Insurance ' under Indian conditions, it is stated that the life of cattle is comparatively much shorter, the maximum age being only about 15 years. There is an interesting chart relating to the determination of age in cattle in a publication called 'Cattle Development in Uttar Pradesh ' by R. L. Kaura, Director of Animal Husbandry; that chart shows that at II years incisors appear smaller due to wearing out; at 12 years space appears between the teeth, and after 12 teeth wear out constantly and roots remain far apart from one another. As against all this expert opinion the respondent State has relied on the chart embodying some useful data about domestic animals, prepared by Major A. C. Aggarwala, Director of Veterinary Services, Punjab, and R. R. Gulati, Superintendent, Veterinary Department, Jullandur, which shows the sterility age of a buffalo at 15 and average age at 25, and of a cow sterility at 15 and 16 years and average life 22 years.

ivil Appeal No. 544 of 1975. From the Judgment and Order dated 20.8. 1973 of the Gujarat High Court in Special Civil Application No. 631 of 1970. C.M. Lodha and Miss Subhashini for the Appellant. The Judgment of the Court was delivered by RANGANATH MISRA, J. This is an appeal by the Revenue by special leave and is directed against the judgment of the Gujarat High Court dated August 20, 1973 in a writ petition. The High Court quashed the notice for reassessment issued under section 147(b) of the Income tax Act, 1961 (hereinaf ter referred to as 'the Act ') for the assessment year 1965 66. Inspite of service of notice, the assessee respondent has not appeared. The High Court has quashed the notice by accepting the assessee 's contention that the action of the Income tax Officer was barred by limitation prescribed by the Act. There is no dispute that the notice in this case under section 147(b) of the Act was issued by registered post on March 31, 1970, and was received by the assessee on April 3, 1970. To the facts of the case, section 147(b) of the Act applies. The two relevant provisions are in sections 148 and 149 of the Act which provide: "148(1) Before making the assessment, reas sessment or recomputation under section 147, the Income tax Officer shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 139; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section. 44 (2). . . . . . . "149(1) No notice under section 148 shall be issued, (a). . . . . . . (b) In cases falling under clause (b) of section 147, at any time after the expiry of four years from the end of the relevant as sessment year. (2) The provisions of sub section (1) as to the issue of notice shall be subject to the provisions of section 151." The High Court relied upon the decision of this Court in the case of Banarsi Debi & Anr. T. 0., District IV, Cal cutta & Ors., where the validity of a notice under section 34(1) of the Incometax, Act, 1922 and the scope of section 4 of the Income tax (Amendment) Act of 1959 by which sub section (4) was introduced into section 34 were considered. This Court indicated, keeping the provisions of section 34 in view, that there was really no distinction between "issue" and "service of notice". Section 34, sub section (1) as far as relevant provided thus: "34(1) If (a). . . . . . . (b) . . he may in cases falling under clause (a) at any time within 8 years and in cases falling under clause (b) at any time within four years at the end of that year, serve on the assessee, . . and may proceed to assess or reassess such income . . ." Section 34, conferred jurisdiction on the Income tax Officer to reopen an assessment subject to service of notice within the prescribed period. Therefore, service of notice within limitation was the foundation of jurisdiction. The same view has been taken by this Court in Janni vs Indu Prasad Bhat, as also in C.I.T. vs Robert, The High Court in our opinion went wrong in relying upon the ratio of in disposing of the case in hand. The scheme of the 1961 Act so far as notice for reassessment is concerned is quite different. What used to be contained in section 34 of the 1922 Act has been spread out into three sections, being sections 147, 148 and 149 in the 45 1961 Act. A clear distinction has been made out between 'issue of notice ' and 'service of notice ' under the 1961 Act. Section 149 prescribe the period of limitation. It categorically prescribes that no notice under section 149 shall be issued after the prescribed limitation has lapsed. Section 148(1) provides for service of notice as a condition precedent to making the order of assessment. Once a notice is issued within the period of limitations, jurisdiction becomes vested in the Income tax Officer to proceed to reassess. The mandate of section 148(1) is that reassessment shall not be made until there has been service. The require ment of issue of notice is satisfied when a notice is actu ally issued. In this case, admittedly, the notice was issued within the prescribed period of limitation as March 31, 1970, was the last day of that period. Service under the new Act is not a condition precedent to conferment of jurisdic tion in the Income tax Officer to deal with the matter but it is a condition precedent to making of the order of as sessment. The High Court in our opinion lost sight of the distinction and under a wrong basis felt bound by the judg ment in As the Income tax Officer had issued notice within limitations, the appeal is allowed and the order of the High Court is vacated. The Income tax Officer shall now proceed to complete the assessment after complying with the requirements of law. Since there has been no ap pearance on behalf of the respondents, we make no orders for costs. A.P.J. Appeal allowed.

The respondent challenged the notice for reasessment issued under section 147(b) of the Income Tax Act, 1961 for the assessment year 1965 66. The High Court quashed the notice holding that the action of the Income Tax Officer was barred by limitation prescribed by the Act. Allowing the appeal of the Revenue, HELD: 1. The scheme of the 1961 Act so tar as notice for reassessment is concerned is quite different. What used to be contained in section 34 of the 1922 Act has been spread out into three sections, being sections 147. 148 and 149 of the 1961 Act. A clear distinction has been made out between "issue of notice" and "service of notice" under the 1961 Act. Section 149 prescribes the period of limitation. It categor ically prescribes that no notice under section 148 shall be issued after the prescribed limitation has lapsed. Section 148(1) provides for service of notice as a condition prece dent to making the order of assessment. Once a notice is issued within the period of limitations, jurisdiction be comes vested in the Income Tax Officer to proceed to reas sess. The mandate of section 148(1) is that reassessment shall not be made until there has been service. The requirement of issue of notice is satisfied when a notice is actually issued. Banarsi Debi & Anr. vs L T.O. District IV, Calcutta & Ors., ; Janni vs Indu Prasad Bhat, and C.I.T. vs Robert, , distinguished. In the instant case, notice was issued within the prescribed period 43 of limitation as March 31, 1970 was the last day of that period. Service under the new Act is not a condition prece dent to conferment of jurisdiction in the Income Tax Officer to deal with the matter but it is a condition precedent to making of the order of assessment. The High Court lost sight of the distinction and under a wrong basis felt bound by the judgment in Banarsi Debi & Anr. T. 0., District IV, Calcutta & Ors., ( As the Income Tax Officer had issued notice within limitation the order of the High Court is vacated.

Appeal No. 72 of 1952. Appeal under articles 132 (1) and 133 (1) (b) of the Constitution of India from the Judgment and Order dated the 27th April, 1951, of the High Court of Judicature at Madras (Rajamannar C.J. and Satyanarayana Rao J.) in Civil Miscellaneous Petition No. 4697 of 1951. M.K. Nambiyar (U. Sethumadhava Rao, with him) for the appellant. M. Seshachalapathi for the respondent. V.K.T. Chari, Advocate General of Madras (Porus A. Mehta and V.V. Raghavan, with him) for fife Intervener (State of Madras). February 10. The Judgment of the Court was delivered by DAs J. This is an appeal arising out ' of a judgment delivered on the 27th April, 1951, by a Bench o15 the Madras High Court in C.M.P. No. 4697 of 1951 filed under article 226015 the Constitution for the issue of a writ of certiorari or other appropriate writ to call 780 for the records and quash the order of the Government passed under section 4(1) of the Madras Act XLIII of 1949 declaring the undertaking of the appellant company to vest in the Government. The appellant company was formed and registered under the Indian Companies Act in 1924 with the object, inter alia, of generating and supplying electrical ,energy to the public in Rajahmundry. In 1949 the Madras Legislature passed the Madras Electricity Supply Undertakings (Acquisition) Act, 1949. The Act received the assent of the Governor General on the 18th January, 1950, and was published in the Official Gazette on the 24th January, 1950. Upon the Constitution of India coming into force on the 26th January, 1950, the Act was submitted to the President for his certification and on the 12th April, 1950, the President certified that the Act should not be called in question m any court on the ground that it contravened the provisions of clause (2) of article 31 or it contravened the provisions of sub section (2) of section 299 of the Government of India Act, 1935. By an order in writing made on the 2nd September, 1950, the Government of Madras acting under section 4(1) of the Act declared that the undertaking of the appellant company should vest in the Government on the date specified therein. Under the proviso to section 4(1) the Government from time to time postponed the date of vesting and the 2nd April, 1951, was the last extended date fixed for such vesting. On the 29th March, 1951, the appellant company filed C.M.P. No. 4697 of 1951, under article 226 for quashing the order of the Government. Shortly stated the contentions of the. appellant before the High Court were that the Act was ultra vires in that (1) it was beyond the legislative competency of the Madras Legislature to enact it, (2) it was not enacted to subserve any public purpose, and (3) the compensation provided for was illusory. The High Court repelled each and all of the aforesaid contentions of the appellant company. It held that the legislation was with respect to electricity under entry 31 of the 781 concurrent list in the seventh Schedule to the Government of India Act, 1935, and was not a legislation with respect to corporations under entry 33 in list I as contended by the appellant and that, therefore, the Madras Legislature was competent to enact it. It further held that the Act having received the certificate of the President the challenge based on an alleged absence of public purpose or the illusory nature of the compensation was shut out and could not be raised. The High Court, however, held that certain sections and rule 19(2) of the Rules framed under the Act were invalid and subject thereto dismissed the application of the appellant company. The High Court granted leave to the appellant company to appeal before this court. The appeal has now come up for heating before us. Learned counsel appearing in support of the appeal has not pressed before us the contention raised in the High Court as to the absence of public purpose or the illusory nature of the compensation provided by the Act. He has confined his submissions to the question of the legislative competency of the Madras Legislature to enact this piece of legislation. In the High Court the contest centered round the question whether the Act was a law with respect to electricity under entry 31 of the concurrent list or with respect to corporations under entry 33 in list I. The High Court held that the Act was, in pith and substance, a law with respect to electricity and was, therefore, within the legislative competency of the Provincial Legislature. In his arguments before us learned counsel contended that the act is in substance and effect one for the acquisition of an electrical undertaking and, as such, is ultra vires because (a) the acquisition of an electrical undertaking was not a legislative item in any of the three lists in the seventh schedule to the Government of India Act, 1935, and (b) in so far as it relates to the acquisition of an electrical undertaking of a corporation it is a law with respect to corporations under entry 33 in list I. 782 In our opinion this appeal can be disposed of on the first of the two grounds mentioned above. Turning to the Act it will be noticed that the long title of the Act is "an Act to make provision for the acquisition of undertakings in the Province of Madras supplying electricity. " The preamble recites the expediency of making Provision "for the acquisition of undertakings in the Province of Madras engaged in supplying electricity. " Section 1 gives the short title, extent and commencement of the Act. Section 2 is a definition section. Section 3 provides that the Act shall apply to all undertakings of licensees including certain undertakings therein mentioned. Section 4 empowers the Government to take over any undertaking by making an order in writing declaring that such undertaking shall vest in the Government on a specified date. Section 5 provides for compensation payable to a licensee who is not a local authority. The section gives an option to the licensee to claim compensation on one of three bases therein specified. Section 6 deals with compensation payable where the licensee is a local authority. Section 7 specifies the properties or assets which will vest according aS compensation is claimed under one basis or another. Section 8 provides for the appointment of a sole representative to act as the sole and accredited representative of the licensee in connection with the handing over of the undertaking and performing on behalf of the licensee the functions thereinafter specified. The choice of basis of compensation is to be made within one month under section 9 and such choice once intimated to the Government is not to be open to revision except with the concurrence of the Government. Section 10 authorises the Government, in case the licensee has disposed of any of the assets otherwise than in the normal course of events causing loss to the Government as succeeding owners, to deduct from the compensation payable to the licensee an amount which they consider to be the loss sustained by them. Section 11 prescribes the various deductions which the Government shall be entitled to make from the compensation payable under the Act. The manner of 783 payment or deposit of compensation is laid down in section 12. Section 13 permits the Government to repay all loans, debentures, mortgages and the like outstanding on the vesting date at any time before the time fixed for repayment. Section 14 is the arbitration section. Section 15 provides for the termination of the managing agency. Section 16 authorises the Government to terminate the services of any person on the staff of the licensee immediately before the vesting 'date. Section 17 requires all licensees to prepare and hand over to the Government a complete inventory of all the assets. Section 18 gives power of entry to the Government or any officer authorised by the Government upon any land or premises in the possession of the licensee. Section 19 prescribes penalties for various defaults therein specified. Section 20 makes certain officers of a company liable for the offence committed by the company. Section 21 gives protection against suit or prosecution for anything done in good faith under any rule or order made under the Act. Section 22 confers rule making power on the Government. Section 23 provides that the provisions of certain Acts in so far as they are inconsistent with the provisions of this Act shall have no effect. Section 24 gives power to the Government to do anything which appears to them necessary for the purpose of removing any difficulty. From the above summary it will be noticed that the Act does not purport to make any provision for the granting of licenses or maintenance of works for generating or transmitting energy or for supplying electrical energy as one would expect to find in a law dealing with electricity nor does the Act purport to make any provision for the incorporation, regulation or winding up of trading corporations. On the contrary, it is abundantly clear from the long title, the preamble and the sections that it is, in pith and substance, nothing but an Act to provide for the acquisition of electrical undertakings. Section 299 (2) of the Government of India Act, 1935, provided that neither the Federal nor a Provincial Legislature would have power to make any law authorising the compulsory acquisition for public purposes 784 of any land or any commercial or industrial undertaking or any interest in or in any company owning any commercial or industrial undertaking unless the law provided for the payment of compensation for the property acquired. Compulsory acquisition of property is undoubtedly an important sovereign right of the State but this right has to be exercised under a law. The legislative power of the State was distributed by sections 99 and 100 amongst the Federal Legislature and the Provincial Legislatures in the manner provided ' in the several lists set forth in the Seventh Schedule to the Act. Section 100 read with entry 9 in list II authorised the Provincial Legislature to make a law with respect to compulsory acquisition of land. There was no entry in any of the three lists relating to compulsory acquisition of any commercial or industrial undertaking, although section 299 (2) clearly contemplated a law authorising compulsory acquisition for public purposes of a commercial or industrial undertaking. The acquisition of a commercial or industrial undertaking not being the subject matter of any entry in any of the three legislative lists, neither the Federal Legislature nor the Provincial Legislature could enact a law with respect to compulsory acquisition of a commercial or industrial undertaking. Under section 104, however, the Governor General, in his individual discretion, could, by public notification, empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the lists in the seventh schedule to the Act. It is, therefore, clear that although Parliament expressly entrusted the Provincial Legislature with power to make a law with respect to compulsory acquisition of land it did not straightaway grant any power, either to the Federal Legislature or the Provincial Legislature, to make a law with respect to compulsory acquisition of a commercial or industrial undertaking but left it to the discretion of the Governor General to empower either of the Legislatures to enact such a law. There is no suggestion that the Governor General had, in exercise of his discretionary powers under section 104, authorised the Madras 785 Legislature to enact the impugned Act and, therefore, the Act was, prima facie, beyond the legislative competency of the Madras Legislature. The learned Advocate General of Madras urges that there was implicit in every entry in the legislative lists in the Seventh Schedule to the Government of India Act, 1935, an inherent power to make a law with respect to a matter ancillary or incidental to the subject matter of each entry. His argument is that each entry in the list carried with it an inherent power to provide for the compulsory acquisition of any property, land or any commercial or industrial undertaking, while making a law under such entry. It is quite true that the powers of each Legislature to make laws with respect to the different subjects assigned to it by the, appropriate list were to be regarded as wide and plenary and also covering matters incidental or ancillary to such subject matter, but it is, nevertheless, clear from the provision of the Act that the power to make a law for compulsory acquisition was, under entry 9 in list II, given only to Provincial Legislatures and that such power of the Provincial Legislatures was, under that entry, limited to making a law for the compulsory acquisition of land only and that unless the Governor General made an .order under section 104 of the Act the Provincial Legislatures had no power to make a law for the compulsory acquisition of any property other than land ,and that the Federal Legislature had no power to make any law with respect to the compulsory acquisition of any property at all. If the argument of the learned Advocate General were correct then entry 9 in list II 'was wholly unnecessary for under entry 21 in list II the Provincial Legislatures could make a law for the compulsory acquisition of land. A similar argument was repelled by this court in the State of Bihar vs Maharajadhiraja Sir Kameshwar Singh( ). The matter is placed beyond any doubt or dispute by the provisions of section 127 of the Government of India Act, 1935, which provided that the Federal might, if it ,deemed it necessary to acquire any land situate in a (1) 786 Province for any purpose connected with a matter with respect to which the Federal Legislature had power to make laws, require the Province to acquire the land on behalf and at the expense of the Federation. If power ' inhered in the Federal Legislature to make a law for the acquisition of any property for any purpose connected with a matter with respect to which it had ' power to make laws then section 127 would not have ' been necessary at all. The absence of any entry empowering any Legislature to make laws with respect to compulsory acquisition of a commercial or industrial undertaking and the provisions of section 127 to, which reference has just been made make it abundantly clear that the contentions urged by the learned ' Advocate General cannot possibly be sustained. In our opinion, therefore, it must be held that the Madras Legislature had no legislative competency to enact the impugned law. This is sufficient to dispose of this appeal and it is not necessary to express any opinion, on the other points raised in the court below. The result, therefore, is that this appeal must be ' allowed with costs both in the High Court as well as in this court. Appeal allowed. Agent for the intervener: R.H. Dhebar.

The Madras Electricity Supply Undertakings (Acquisition) Act (Madras Act XLIII of 1949) was beyond the legislative competency of the Madras Legislature because there was no entry in ,any of the three Lists of the Seventh Schedule of the Government of India Act, 1935, relating to compulsory acquisition of any commercial or industrial undertaking although section 299 (2) clearly contemplated a law authorising compulsory acquisition for public purposes of a commercial or industrial undertaking. State of Bihar vs Maharajadhiraja Sir Kameshwar Singh ([1952] S.C.R. 889) referred to.

Appeal No. 136 of 1952. Appeal under articles 132(1) and 133(1)(c) of the Constitution of India from the Judgment and Order dated the 19th October, 1951, of the High Court of Judicature for Rajasthan at Jodhpur in D. B. Miscellaneous Writ Petition No. 3/1951. K. section Hajela, Advocate General of Rajasthan, for the appellant. K. N. Aggarwal and P. C. Agarwal for the respondents. M. C. Setalvad, Attorney General for India (Porus A. Mehta, with him) for the intervener (the Union of India). March 12. The Judgment of the Court was delivered by GHULAM HASAN J. The question involved in this appeal relates to the constitutional validity of clause 25 of the Rajasthan Foodgrains Control Order, 1949, hereinafter called the Control Order, and arises in the following circumstances : The respondents, who are grain merchants at Raniwara in Jodhpur Division, Rajasthan State, held 984 licences for dealing in foodgrains. They held considerable stocks of bajra in the ordinary course of business but on October 7, 1950, their stocks were frozen by the Deputy Commissioner, Civil Supplies, Jodhpur, through the Sub Divisional Officer. It is not disputed that the market price then prevailing was about Rs. 18 per maund. The State, however, requisitioned the stocks at the rate. of Rs. 9 per maund and sold them at Rs. 13 5 4 per maund. The respondents claimed that they had purchased the bajra at the prevailing market rate of Rs. 17 to Rs. 18 per maund. They filed a petition on January 23, 1951, for the issue of a writ under article 226 of the Constitution before the High Court of Rajasthan, contending that clause 25 of the Control Order was void under articles 14, 19 (1) (g) and 31 (2) of the Constitution. The High Court held that clause 25 was void inasmuch as it is a restriction upon the fundamental right of the respondents to carry on business under article 19 (1)(g) of the Constitution, that the restriction is not reasonable and is not saved by clause (6) of article 19. The High Court further held that clause 25 was also hit by article 31 (2) as fair compensation had not been fixed by the law for the acquisition of the foodgrains. As the grains had already been disposed of by the Government, the High Court holding that Rs. 17 a maund was fair compensation directed that the State of Rajasthan shall pay compensation at that rate. The State has preferred.the present appeal on a certificate granted by the High Court. The impugned clause 25 is as follows: " 25. Notwithstanding anything contained in this Order, the Commissioner, the Director, the Deputy Commissioner, the Nazim, the Assistant Commissioner, the Sub Divisional Officer, the Senior Officer of a jurisdictional Thikana, the enforcement officer 'or such other officer as may be authorized by the Commissioner in this behalf, may freeze any stocks of foodgrains held by any person, whether in his own behalf or not, and such person shall not dispose of any foodgrains out of the stock so freezed except with the permission of the said authority. Such stocks shall 985 also be liable to be requisitioned or disposed of under orders of the said authority at the rate fixed for purposes of Government procurement. " It is not disputed that bajra is an essential commodity within the meaning of the Essential Supplies Act (No. XXIV of 1946). The question that arises for consideration is how far and in what respects clause 25 can be said to be void as violating Part III of the Constitution. The clause authorises the Commissioner and various other authorities mentioned therein and such other officers as may be authorised by the Commissioner to freeze any stock of foodgrains held by a person. It is true that the authority of the Commissioner to delegate his powers to any other officer at his discretion is expressed in somewhat wide terms but we need not decide that per se would be sufficient to invalidate the clause. Admittedly that :power has not been exercised in the. present case. Nor do we think that the power to freeze the stocks of foodgrains is arbitrary or based on no reasonable basis. It is not disputed that the clause does not state in express terms the circumstances in or the grounds on which the stocks may be freezed but it should be read along with section 3 of the Essential Supplies Act which lays down the policy for controlling the production,, supply and distribution of essential commodities. Section 3 in so far as it is material says: " The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof Sub section (2) lays down: " Without prejudice to the generality of the powers conferred by sub section (1) an order made thereunder may provide. . . . (a). . . . . (b). . . . . (c). . . . . 986 (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity; (e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale; We are clear, therefore, that the freezing of stocks of foodgrains is reasonably related to the object which the Act was intended to achieve, namely, to secure the equitable distribution and availability at fair prices and to regulate transport, distribution, disposal and acquisition of an essential commodity such as foodgrains. We do not agree with the High Court that the first portion of clause 25 is void under article 19 (1) (g). The last portion of clause 25 to the effect that such stocks shall also be liable to be requisitioned or disposed of under orders of the said authority at the rate fixed for purposes of Government procurement ", however stands on a different footing. The clause, as it is worded, leaves it entirely to the Government to requisition the stocks at any rate fixed by it and to dispose of such stocks at any rate in its discretion. This obviously vests an unrestrained authority to requisition the stocks of foodgrains at an arbitrary price. In contrast with this provision we may refer to clauses 23 and 24 of the Control Order. They are as follows: " 23. The Commissioner or the Director, and the Deputy Commissioner or the Senior Officer of a jurisdictional Thikana with the approval of the Director, may fix the ceiling prices at which foodgrains in any area to which this order applies shall be sold, and may from time to time vary such prices." "24. The Commissioner, the Director, the Deputy Commissioner, the Nazim, the Assistant Commissioner, the Sub Divisional Officer, or the Senior Officer of the jurisdictional Thikana as the case may be, may direct any person or persons in possession, whether on his own behalf or not of any foodgrains to sell such foodgrains or part thereof to any person or persons at any 987 specified place and at such price as may be fixed under clause 23. " It appears from these clauses that while the authorities may fix the ceiling price at which foodgrains should be sold in the market by the dealers and may direct any person in possession of foodgrains to sell them to any other person at the price fixed under clause 23, there is no such limitation upon the power of the Government to acquire the stocks. In other words, it will be open to the Government to requisi tion the stocks at a price lower than the ceiling price thus causing loss to the persons whose stocks are freezed while at the same time the Government is free to sell the same stocks at a higher price and make a profit. It is obvious that the dealer whose stocks are thus freezed will stand to lose considerably and will be unable to carry on his trade or business at the prevailing market price. No dealer will be prepared to buy foodgrains at the market price when he knows that he is exposed to the risk of his stocks being freezed any moment and the same being requisitioned at the procurement rate. The present is a typical case which illustrates how the business of a grain dealer can be paralyzed, for it is admitted that while the Government procurement rate was Rs. 9 a maund, the market rate was Rs. 17 or Rs. 18 per maund, with the result that the stock holder suffered nearly cent. per cent. lose, while the Government made a profit of Rs. 4 5 4 per maund on the stock requisitioned. We hold, therefore, that the last portion of clause 25 places an unreasonable restriction upon the carrying on of trade or business and is thus an infringement of the respondent 's right under article 19(1)(g) of the Constitution and is, therefore, to that extent void. The same result follows if the impugned clause is examined in the light of article 31(2). The clause by vesting the power in the authority to acquire the stocks at any price fails to fix the amount of the compensation or ,specify the principles on which the compensation is to be determined. The clause leaves it entirely to the discretion of the executive authority to fix any compensation it likes. The High Court 988 rightly held that the clause offended against article 31(2). For the foregoing reasons we hold that the last portion of clause 25 is void and dismiss the appeal with costs. Appeal dismissed. Agent for the appellant and for the intervener: R. H. Dhebar.

Held, that the first portion of cl. 25 of the Rajasthan Foodgrains Control Order, 1949, relating to the freezing of stocks of foodgrains is not void under article 19(1)(f) of the Constitution because such freezing of stocks of foodgrains is reasonably related 983 to the object which the Act was intended to achieve, namely to secure the equitable distribution and availability at fair prices and to regulate transport, distribution, disposal and acquisition of an essential commodity such as foodgrains. Hold, that the last portion of cl. 25 to the effect that " such stocks shall also be liable to be requisitioned or disposed of under orders of the said authority at the rate fixed for purposes of Government procurement ", is void both under article 19(1)(f) and article 31(2) of the Constitution: (i)because the clause places an unreasonable restriction upon the carrying on of trade or business and is thus an infringement of the respondents ' right under article 19(1)(f) of the Constitution; (ii)because the clause by vesting the power in the authority to acquire the stocks at any price fails to fix the amount of compensation or specify the principles on which it is to be determined and leaves it entirely to the discretion of the executive authority to fix any compensation it likes and is thus hit by article 31(2) of the Constitution.

ivil Appeal No. 11991 of 1983. From the Judgment and Order dated the 27th April, 1983 of the High Court of Bombay in Writ Petition No.392 of 1982. AND Civil Appeal No.1810/81. From the Judgment and Order dated the 8th July, 1981 of the High Court of Bombay in Writ Petition No.1484 of 1981. V.M. Tarkunde, Mrs. M. Karanjawala and R. Karanjawala, for the appellant in C.A.No. 11991/83. M.N. Phadke, C.K. Ratnaparkhi and A.N. Sawant for the respondents in C.A.No. 11991/83. P.R. Mridul, P.N. Parekh and P. Mishra for the respondent No. 1 R.P. Bhatt, K. Rajendra Choudhary and K.S. Choudhary, for the appellant in C.A. No.1810/81. 770 Dr. N.M. Ghatate, S.V. Deshpande, V.B. Joshi and M.N. Shroff for the respondents in C.A. No. 1810/81. The Judgment of the Court was delivered by DESAI, J. Construction of Sec. 73B of the Maharashtra Cooperative Societies Act, 1960 ( 'Act ' for short) figures in these two appeals arising from the two decisions rendered by the Bombay High Court, covering the same point and reaching the same conclusion, but the latter one does not take note of the earlier decision. Re: S.L.P. (Civil) No. 773283: The Nasik Merchants Co operative Bank Ltd., the first respondent, is a co operative Bank deemed to be registered under the Act and is governed by the Act. It was registered on June 11, 1959. It is a specified society within the meaning of the expression in Sec. 73G(1)(vii) of the Act. Accordingly the election of the members of the Committee and the election of the office bearers by the Committee of the first respondent would be subject to the provisions of Chapter XI A and has to be conducted in the manner prescribed in the Chapter. The Committee in which management of the first respondent vests, is designated as Board of Directors. The term of the members of the Board of Directors is five years. The election to the Board of Directors for the period 1981 82 to 1985 86 became due. As required by Sec. 144 C, the Collector having jurisdiction in the matter notified the programme of election on October 29, 1981. At the relevant time, the strength of the Board of Directors was 15 in number. 14 Directors were to be elected by members and one was to be nominated by the Central Co operative Bank. It is not disputed but in fact conceded that the election programme notified by the Collector did not specify that the two seats on the Board of Directors of the first respondent would be reserved seats; one for the members belonging to the Scheduled Castes or Scheduled Tribes and one for the weaker section of the members who have been granted loans from the society of an amount not exceeding Rs. 200 during the year immediately preceding as required by Sec. 73B of the Act. Poll was held on December 14, 1981 and the counting of votes took place on December 14, 1981 and the result was declared on December 17, 1981. Respondents 3 to 16 were declared elected. Thereupon the present petitioner, a member of the first respondent Bank and belonging to the Joshi community which is recognised as a Scheduled Tribe moved an election petition under Sec. 144 before the Additional Commissioner, Nasik, calling in question the election of respondents 3 to 16 to the Board of 771 Directors of the firs respondent Bank inter alia on the ground that the whole of the election programme is vitiated on account of its non compliance with the mandatory statutory provision enacted in Sec. 73B which prescribes reservation of seats; one in favour of Scheduled Castes or Scheduled Tribes and another in favour of weaker section from the members who had borrowed loans not exceeding Rs. 200 in the year preceding the year of election ( 'reservation for weaker section ' for short). There were other grounds on which the election of respondents 3 to 16 was called in question but they are no more relevant and need not clutter the record here. The Additional Commissioner as per his judgment and order dated February 8, 1982 held that despite the failure of the first respondent Bank to amend bye law 41 (correct bye law appears to be 40) even after repeated reminders by the District Deputy Registrar, the mandate of Sec. 73B will have precedence overt he unamended bye law 40 and as the election process was set in motion in contravention of the mandatory provision contained in Sec. 73B and the relevant rules, the result of the election has been materially affected and accordingly declared the election of respondents Nos. 3 to 16 as void and ineffective and directed the Collector, Nasik to hold the election de novo. Respondents Nos. 3 to 7 and 9, 10 and 12 and 14 to 16 filed Writ Petition No. 392 of 1982 in the High Court of Judicature at Bombay under article 227 of the Constitution for a writ of certiorari. A Division Bench of the Bombay High Court granted the writ and made the rule absolute holding that it is not imperative that the reserved seats must be filled in only by election and the mandate of Sec. 73B would be adequately complied with if reserved seats are filled in by co option and therefore, there is no error in conducting the election. Accordingly, the order of the Additional Collector was quashed and set aside and the election petition was dismissed. When the petition for special leave to appeal came up before this Court, a direction was given that the matter will be disposed of at the stage of granting special leave as if it is an appeal. Hence this appeal by special leave. C.A. No. 1810/81: The Parbhani District Central Co operative bank Ltd., the second respondent is a co operative bank deemed to be registered under the Act. It is a specified society within the meaning of the expression in Sec. 73G. The term of members of the Board of Directors expired. Accordingly, the Collector of Parbhani, the first respondent notified programme of election commencing from March 30, 1981 and 772 ending with the counting of votes and declaration of result on April 24, 1981. The election was held and the result was announced and respondents No. 3 to 12 were declared elected. Thereafter the meeting of the elected members of the Board of Directors is to be convened to elect the office bearers. At that stage, the two appellants filed Writ Petition No. 1484 of 1981 in the Bombay High Court questioning the validity of the election of the respondents 3 to 12 inter alia on the ground that the election was held in violation of Sec. 73B of the Act. A Division Bench of the Bombay High Court held that there was some confusion between the procedure for election prescribed in the rules and the bye laws and the one prescribed in Sec. 73B and therefore, the Collector did not take steps to hold election to the reserved seats. The Court further held that the first petitioner did not take any objection until the whole election process was completed and at a later stage approached the Court to 'throttle down ' the election of the office bearers and that this might indicate a waiver of the right on the part of the petitioner and also it amounts to acquiescence and therefore, no interference is called for at the instance of the petitioner. The Court also observed that co option being an alternative to election to the reserved seats, the mandate of Sec. 73B would be satisfied if the Board of Directors co opts two members to provide representation to the two reserved seats. Approaching the matter from this angle, the writ petition was dismissed. Hence this appeal by special leave. The out come of these two appeals depends upon the construction to be put on Sec. 73B which must subserve the underlying intendment of that provision. 73B reads as under: "On the committee of such society or class of societies as the State Government may, by general or special order, direct, two seats shall be reserved, one for the members who belong to the Scheduled Castes or Scheduled tribes and one for the weaker section of the members who have been granted loans from the society of an amount not exceeding Rs. 200 during the year immediately preceding. If no such persons are elected or appointed, the committee shall co opt the required number of members on the committee from amongst the persons entitled to such representation. " 773 Section 73 provides that the management of every society shall vest in a committee, constituted in accordance with the Act, the rules and the bye laws. 73B mandates that two seats shall be reserved on the committee of such society or class of societies as the State Government may, by general or special order, direct, ( 'Specified society ' for short) one for the members who belong to the Scheduled Castes or Scheduled Tribes and one for the weaker section of the members who have been granted loans from the society of an amount not exceeding Rs. 200 during the year immediately preceding. 73B further provides that if no such persons are elected or appointed, the committee shall co opt the required number of members on the committee from amongst the persons entitled to such representation. We may now note the rival contentions. Appellants assert that the reservation in favour of the Scheduled Castes and Scheduled Tribes and weaker section of the members on the committee of the society manifests a statutory attempt giving effect to the provisions of the Constitution especially the one contained in Arts 43 and 46 and has to be given effect as if carrying out the constitutional mandate enshrined in articles 15 and 16 of the Constitution. Proceeding along this line, it was submitted that a democratic polity swears by setting up democratic institutions election, neither by appointment nor co option. It was submitted that the Legislature has clearly indicated its preference in favour of election failing which alone the reserved seats may be filled in by appointment or co option. They have called in aid the chronology of methodology set out in Sec. 73B. wherein it is stated that 'if no such persons are elected or appointed, ' the committee shall co opt the required number of members on the committee from amongst the persons entitled to such representation. ' Appellants assert that Sec. 73B proceeded to make a statutory reservation of two seats and declared its preference in favour of filling in the reserved seats by election and that is indicated by the expression; 'if no such persons are elected or appointed, ' the committee then in order not to defeat legislative intention of giving representation to the class in whose favour reservation is made, shall co opt the required number of members on the committee. The appellants say that co option can be availed of as the last resort and cannot be used to supplant election to defeat the legislative mandate according priority to election or appointment. They say that co option can only be resorted to, to effectuate the purpose underlying Sec. 73B if and only if an attempt having been made at first providing an 774 opportunity to fill in reserved seats by election, failing which appointment and thereafter co option, which cannot be equated with election or appointment so that anyone mode may be adopted for filling in the reserved seats at the whim or caprice or sweet will either of the statutory authority or the committee of members. The respondents excluding the statutory authority on the other hand contend that the object underlying Sec. 73B is to provide for giving an opportunity to persons belonging to the class in whose favour reservation is made such as members of the Scheduled Casts/Scheduled Tribes or the weaker section of the members of the Society to be on the committee. The primary importance is of filling in reserved seats and not the methodology because the legislature was aware that a class of persons in whose favour reservation is made may not be available for election and therefore, provision for appointment as also for co option has been simultaneously made in Sec. 73B. The respondents assert that the filling in of the reserved seats is a sine qua non to carry out the mandate of Sec. 73B and not the mode or method by which the reserved seats are filled. The rival contentions clearly bring to the fore the question of construction of Sec. 73B. The Act was enacted in 1960 and it repealed the Bombay Co operative Societies Act, provides for the vesting of the management of every society in a committee to be constituted in accordance with the Act, the rules and the bye laws. At the commencement of the Act, there was no provision for reservation of seats in favour of the members of the Scheduled Castes and the Scheduled Tribes and the weaker section of the members. 73B making reservation obligatory was introduced in the Act by Amending Act 27 of 1969. Why was this specific amendment made ? The working of the Act must have disclosed a sorry state of affairs that even though the cooperative movement was expanding by leaps and bounds, the members of Scheduled Castes and Schedule Tribes or the weaker section of the members of the society were not represented in the committee and had no opportunity to participate in the decision making process, laying down broad policies and management of the society. article 43 of the Constitution set the goal that the State shall endeavour to promote cottage industries on an individual or co operative basis in rural areas. In our onward march of economic 775 independence, India was destined to be a co operative commonwealth. Since independence, co operative movement proliferated in all directions, its activities were diversified, more especially in the rural areas; Every activity of a person devoted to agriculture in the rural area is considerably influenced by the co operative movement, such as seed distribution, credit, disposal of agricultural produce etc. The members of the Scheduled Castes and Scheduled Tribes predominantly in rural areas did not remain unaffected by the gigantic stride that the co operative movement took. They were directly and substantially affected by it. In order to avoid that those who are affected by the movement in their vital day to day existence enjoy a second class status by being denied the opportunity to be represented in the management council, and decision making bodies, a provision like Sec. 73B was introduced to ensure representation of such persons who in the absence of reservation may find it difficult to be elected to the committee in which the entire power of management vests. Absence of representation coupled with subjection to the dictates of the society would be antithesis of democratic process reducing such persons to serfdom. A co operative society is to be governed by a committee elected by democratic process. This democratic process must permeate in filling in reserved seats otherwise the committee would not enjoy a representative character. One can draw light from the provisions contained in Part XVI of the Constitution and especially articles 330 and 332 which provide for reservation of seats in the House of People and in the Legislative Assembly of every State for the Scheduled Castes and the Scheduled Tribes. The felt necessities of the time and the historical perspective of class domination led to the constitutional guarantee of reservation so that India can truly be a Sovereign Socialist Secular Democratic Republic. A republic is made up of men and institutions. That is why democratic institutions have to be set up by providing for election and to make the democratic institutions truly representative, reservation of seats for those who on account, of their backwardness, exploitation and unjust treatment both social and economic cannot obtain representation because of the class domination. This is the genesis of reservation. Therefore, any provision making for reservation must receive such construction as would advance the purpose and intendment underlying the provision making reservation and not thwart it. "In the past a method of construction was used to extend a remedial statute called proceeding upon the equity of the statute. In Hay vs Lord Provost of Perth Lord Westbury observed that the mode of 776 construction known as the equity of the statute ' was 'very common with regard to our earlier statutes, and very consistent with the principle and manner according to which Acts of Parliament were at that time framed. ' Undoubtedly, now a days this mode of construction has fallen into disuse: Even though the expression 'the equity of the statute ' has fallen into disuse, it is still in vogue in somewhat similar form in that if it is manifest that the principles of justice require something to be done which is not expressly provided for in an Act of Parliament, a court of justice will take into consideration the spirit and meaning of the Act apart from the words. In this context, one can recall the words of Jessel M.R. in Re Bethlem Hospital, that 'the equity of the statute ' may as well mean, such a thing as construing an Act according to its intent, though not according to its words. Alternatively, one can bring in Hydon 's test more often noticed by this Court that in order to arrive at true intendment of a statute, the Court should pose to itself the questions; (1) what was the situation prior to the provision under construction, (2) what mischief or defect was noticed before introducing the provision, (3) whether it was remedial and (4) the reason for the remedy. Applying this test, the same result would follow inasmuch as looking to the position and the plight of Scheduled Castes and Scheduled Tribes and the weaker section of the members of a society, though they would be subject to the dictate of the society they had no voice in the managerial councils and that to raise the stature and status of such persons so as to bring them on the footing of equality with other segments of the society, reservation was provided in the absence of which those in whose favour reservation was made could not get elected to the decision making bodies. While ascertaining the true canon of construction applicable to Sec. 73B, these aspects must stare into our face. Before going in search of any external aids of construction, let us look at the language employed by the Legislature because no canon of construction can be said to be more firmly established than this that the Legislature uses appropriate language to manifest its intention. No controversy was raised with regard to the power of Legislature to prescribe reservation of seats in the committee in which the management of the society vests. The use of the expression 'shall ' in Sec. 73B clearly mandates obligation to reserve. 777 The next question is how the reserved seats are to be filled in ? The section itself clearly manifests legislative intention when it says that 'if no such persons are elected or appointed, ' the reserved seats may be filled in by co option. Therefore, the pride of place is accorded to election of persons eligible to fill in reserved seats. Let there be no mistake that there is no reserved constituency which may divide the society or the electorate. The constituency is the general constituency. Only the seats are reserved. This would imply that the general body of members will elect persons eligible to fill in reserved seats. When statute requires a certain thing to be done in a certain manner, it can be done in that manner alone unless a contrary indication is to be found in the statute. If the Legislature uses expression 'if no such persons are elected ' it indubitably suggests that primarily the reserved seats are to be filled in by election. Failing the election, one can resort to appointment or co option. The chronology of the methodology by which seats are to be filled in as set out in Sec. 73B clearly manifests the legislative intention. The first and the foremost pride of place is accorded to election. It ought to be so because a representative institution ordinarily must be democratically elected. The section therefore, speaks 'if no such persons are elected ' which would mean the authorities charged with a duty to hold election must proceed to arrange for holding the election. If election is held giving out information that there are reserved seats and no candidate is forthcoming to contest for the reserved seats, the Legislature in its wisdom provided that the seats shall not remain vacant but can be filled in by two subsidiary methods such as appointment or co option which cannot be put on par or equated with election which is a universally recognised method by which representative institutions are set up. Therefore, the language and the chronology of the methodology of filling in reserved seats employed in Sec. 73B provide a clue to its correct construction and there should be no doubt that opportunity must be provided for filling in seats by election. It is the failure of the election machinery to fill in the seats which would enable the concerned authority to fill in the seats by appointment or co option. The condition precedent to filling in reserved seats by appointment or co option is holding of the election and failure to elect such persons would permit resort to other methods of filling in the reserved seats. It was submitted that the object underlying Sec. 73B can as well be fulfilled by co opting two persons eligible to fill in reserved seats. 778 The more vociferous submission was that such construction should be put on a statutory provision which accords with the main thrust of the section and not with peripheral requirements which would appear to be directory. It was urged that the fundamental requirement of Sec. 73B is to provide representation to specified classes therein mentioned and that must be held to be mandatory and not the method by which the representation is ensured. Further it was said that there is illuminating inter evidence in Sec. 73B itself which shows that the method of filling in seats is directory and therefore three alternative modes by which reserved seats could be filled in were provided in the provision itself. Proceeding along this line, it was said that co option can equally ensure representation to the qualified persons to fill in the reserved seats, and that therefore, the Court should not upset the entire election process on this account. If this approach is ever accepted, it would strike a death knell of the democratic principle of giving the constituency the right to elect its representatives and it would be usurped by a coterie of certain elected persons. From enjoying a direct representation, the constituency would move backwards and the process of regress would be that instead of direct election by the constituency which is the statutory right granted by Sec. 73B, the right to select would be usurped by the Board of Directors who would decide who should be co opted to fill in the reserved seats. Such a retrograde movement is undemocratic. The struggle to get direct representation cannot be thwarted in this manner. This becomes manifest from the fact that the power to co opt the members to fill in reserved seats is conferred on the members of the committee i.e. on the Board of Directors. To tersely put the issue in focus, the method of co option denudes the power of the constituency to elect members and is usurped by a small body like the Board of Directors. The outcome is not difficult to gauge. The committee will co opt members who would be their puppets, totally ignoring whom the constituency i.e. the general body of members would have elected. If it is the effect of co option, it could never be equated with election much less accorded precedence over election by the general body of the members that is the constituency. Therefore the submission that method of filling in reserved seats is directory and therefore any one of the three modes can be adopted to comply with the mandatory part of Sec. 73B viz. filling in reserved seats, does not commend to us. Mr. Phadke, learned counsel who appeared for the respondents in one of the appeals urged that the emphasis is on filling in reserved 779 seats and not the mode or method by which the seats are filled in. In this connection, he drew our attention to the unamended bye law No. 40 of the bye laws framed by Nasik Merchants Co operative Bank Ltd., the first respondent in the first matter. After referring to the unamended bye laws, it was urged that there was no provision for electing members to the reserved seats. He further urged that Sec. 72 requires that the election to the committee has to be held according to the Act, the rules and the bye laws. Reference was also made to the procedure for counting for votes set out in rule 61 of the Maharashtra Specified Co operative Societies Election to Committees Rules, 1971 ( 'Rules ' for short), which provide that the Returning Officer shall after the counting of votes declare the candidate to whom the highest number of valid votes has been given, as having been elected. It was pointed out that bye law No. 40 was amended as late as February 13, 1983, which was much later than the date of the impugned election. The amended bye law did make provision for election to reserved seats. The High Court has also noticed amendment of Rule 61 by Maharashtra Specified Co operative Societies Elections to Committee (Amendment) Rules, 1979. He further drew our attention to the circular dated Ist February, 1979, issued by the District Deputy Registrar of Co operative Societies at Nasik in which he pointed out that the committee should co opt required number of members on the committee from amongst the persons entitled to representation on the reserved seats. The specified societies were also requested to amend the bye laws as early as possible. He also drew our attention to a letter dated June 4, 1979 addressed to the Nasik Merchant Co operative Society Bank Ltd, by the District Deputy Registrar, Nasik pointing out therein that if the bye law is not amended the reserved seats should be filled in by co option and that the compliance should be reported before March 31, 1979. He again requested the Bank to amend the bye laws to bring them in conformity with the requirements of Sec. 73B. Relying on the unamended bye law, rule 61 and the aforementioned two documents, it was submitted that the Government itself did not consider election to be the only mode or method of filling in the reserved seats and persistently requested the Bank to co opt necessary number of members to fill in the reserved seats, and therefore, it is not proper to invalidate the whole process of election. We remain unconvinced. 73B provides a legislative mandate. Rule 61 has a status of subsidiary legislation or delegated legislation. Bye law of a co 780 operative society can at best have the status of an Article of Association of a company governed by the and as held by this Court in Co operative Central Bank Ltd. and others vs Additional Industrial Tribunal, Andhra Pradesh and Others the bye laws of a co operative society framed in pursuance of the provision of the relevant Act cannot be held to be law or to have the force of law. They are neither statutory in character nor they have statutory flavour so as to be raised to the status of law. Now if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to firmly state that the statute prevails over subordinate legislation and the bye law if not in conformity with the statute in order to give effect to the statutory provision the rule or bye law has to be ignored. The statutory provision has precedence and must be complied with. Further the opinion of the Deputy Registrar as expressed in his circular dated February 1, 1979 and his letter dated June 4, 1979 has no relevance because his lake of knowledge or misunderstanding of law as expressed in his opinion has no relevance. The High Court relying upon the aforementioned two documents observed as under: "There is no inconsistency between Section 73B and the bye laws because even the Government has construed Section 73B in such manner that even though the bye laws are not amended and reserved seats remain unfilled by election the same can be filled up by co option. " With respect, we find it difficult to subscribe to this untenable approach that a view of law or a legal provision expressed by a Government Officer can afford reliable basis or even guidance in the matter of construction of a legislative measure. It is the function of the Court to construe legislative measures and in reaching the correct meaning of a statutory provision, opinion of executive branch is hardly relevant. Nor can the Court abdicate in favour of such opinion. The provision contained in Chapter XI A applies to election to the committees of specified societies categorised in Sec. 73B. Sec. 144 C requires the Collector to draw an election programme and arrange for conducting the election or under his control by the Returning Officer according to the programme. Now the election 781 programme has to be published. The programme therefore, must in order to comply with legal formality show whether any of the seats to be filled in are reserved and specify the class in whose favour reservation has been made, so as to give notice to persons eligible for contesting election to reserved seats. This becomes manifestly clear from the form prescribed for filling in the nomination paper being Form No. 2 appended to the rules. In the case of reserved seats a further declaration has to be made in the nomination form that the candidate belongs to Scheduled Castes or Scheduled Tribes or Vimukta Jati or the weaker section candidate. And this declaration has to be signed by the candidate himself. Now therefore, the Collector, a statutory authority charged with a duty to hold election according to the Act, must specify in the election programme inter alia that there are reserved seats to be filled in by election and the class in whose favour reservation is made. This will be notice to the members eligible for contesting election to reserved seats so that they may fill in their nomination. There is not even a whisper in the election programme whether any of the seats were reserved. The omission is glaring and fatal. As pointed out earlier, election has to be held to form the committee. 73 requires the Collector to hold election in accordance with the Act including Sec. 73B. The failure to hold election in accordance with the Act including Sec. 73B would vitiate the whole election programme from commencement till the end. It would all the more be so because the failure to hold election according to the provisions of the Act which denies an opportunity to the persons who are eligible to get elected to the reserved seats would certainly vitiate the whole election programme. One can safely conclude that the election is held in violation of Sec. 73B. Therefore, in our opinion, the High Court was in error in upholding the election, which is ex facie illegal, invalid and contrary to law. Accordingly both these appeals succeed Civil Appeal arising from S.L.P. No. 7732/83 is allowed and the decision of the High Court is quashed and set aside and the one rendered by the Additional Commissioner is restored. Civil Appeal No. 1810/81 is allowed and the judgment and order of the High Court are set aside. A writ be issued quashing and setting aside the election of respondents 3 to 12 to the Board of Directors of the Parbhani District Co operative Bank Ltd. 782 The concerned statutory authority in both the cases should proceed to hold the election afresh as early as possible and should complete the process within a period of 3 months from today. In the meantime, the status quo as on today should continue. There will be no orders as to costs of hearing in this Court. H.S.K. Appeals allowed.

On expiry of the term of the committee known as Board of Directors of a specified society under the Maharashtra Cooperative Societies Act, 1960 the Collector notified the election programme without specifying that the two seats on the committee would be reserved seats; one for the members belonging to the Scheduled Castes or Scheduled Tribes and one for the weaker section of the members of the society. Pursuant to that election programme the poll was held and the result was declared. The said election was challenged by a member of the society belonging to Scheduled Tribe on the ground that the whole of the election programme is vitiated on account of its non compliance with the mandatory statutory provision enacted in sec. 73B which prescribed reservation of seats; one in favour of Scheduled Castes or Scheduled Tribes and another in favour of weaker section from the members of the society. The Additional Commissioner who heard the election petition declared the election of the elected members as void and ineffective. On a writ petition filed by some of the elected members the High Court held that it was not imperative that the reserved seats must be filled in only by election and the mandate of sec. 73B would be adequately complied with if reserved seats are filled in by co option and there was no error in conducting the election. In these appeals the appellants submitted that sec. 73B proceeded to make a statutory reservation of two seats and declared its preference in favour of filling in the reserved seats by 768 election failing which alone the reserved seats were to be filled in by appointment or co option. The respondent submitted that the filling of the reserved seats was a sine qua non; the method of filling reserved seats was directory and therefore any of the three modes could be adopted. Allowing the appeals, ^ HELD: The election in question is ex facie illegal, invalid and contrary to law. [781 F] Section 73 of the Act requires the Collector to hold election in accordance with the Act including sec. 73B. The failure to hold election in accordance with the Act including sec.73B would vitiate the whole election programme from commencement till the end. It would all the more be so because the failure to hold election according to the provisions of the Act which denies an opportunity to the persons who are eligible to get elected to the reserved seats would certainly vitiate the whole election programme. Therefore, the Collector must specify in the election programme inter alia that there are reserved seats to be filled in by election and the class in whose favour reservation is made. This will be notice to the members eligible for contesting election to reserved seats so that they may fill in their nomination. In the instant case there is not even a whisper in the election programme whether any of the seats were reserved. The omission is glaring and fatal. Therefore, it can be safely concluded that the election is held in violation of sec. 73B. [781 D F] Any provision making for reservation must receive such construction as would advance the purpose and intendment underlying the provision making reservation and not thwart it. In the past a method of construction was used to extend a remedial statute called proceeding upon 'the equity of the statute '. Now a days even though that method of construction has fallen into disuse, it is still in vogue in somewhat similar from in that if it is manifest that the principles of justice require something to be done which is not expressly provided for in an Act of Parliament, a court of justice will take into consideration the spirit and meaning of the Act apart from the words. [775 G H; 776 B] Hay vs Lord Provost of Perth, [1863] 3 Macq. H.L. (S.C.) 535 at 544; Re Bethlem Hospital [1875] L.R. 19 Eq. 457 and Craies Statute Law, Seventh Edition P. 101 103 referred to. No canon of construction can be said to be more firmly established than this that the legislature uses appropriate language to manifest its intention. In the instant case, the use of the expression 'shall ' in sec. 73B clearly mandates obligation to reserve. The section itself clearly manifests legislative intention when it says that 'if no such persons are elected or appointed, ' the reserved seats may be filled in by co option. The language and the chronology of the methodology of filling in reserved seats employed in sec. 73B provide a clue to its correct construction and there should be no doubt that opportunity must be provided for filling in seats by election. It is the failure of the election machinery to fill in the seats by election which would enable the concerned authority to fill in seats by appointment or co option. [776 G H; 777 A B] 769 The bye laws of a cooperative society framed in pursuance of the provision of the relevant Act cannot be held to be law or to have the force of law. They are neither statutory in character nor they have statutory flavour so as to be raised to the status of law. If there is any conflict between a statute and the subordinate legislation, the statute prevails over subordinate legislation and the bye law if not in conformity with the statute in order to give effect to the statutory provision the rule or bye law has to be ignored. The statutory provision has precedence and must be complied with. [780 B C] In the instant case sec. 73B provides a legislative mandate. Rule 61 has a status of subsidiary legislation or delegated legislation. [779 H] Co operative Central Bank Ltd. and Ors. vs Additional Industrial Tribunal, Andhra Pradesh and Ors. [1970] 1 S.C.R. 205 referred to. A view of law or a legal provision expressed by a Government Officer cannot afford reliable basis or even guidance in the matter of construction of a legislative measure. It is the function of the Court to construe legislative measures and in reaching the correct meaning of a statutory provision, opinion of executive branch is hardly relevant. Nor can the Court abdicate in favour of such opinion. In the instant case the opinion of the Deputy Registrar as expressed in his letter and circular has no relevance. [780 F G; D]

Civil Appeal No. 209 of 1973. (Appeal by Special leave from the Judgment and Order dated the 27th July 1972 of the Madhya Pradesh High Court in Misc. Petition No. 129 of 1970) AND Civil Appeal No. 1140 of 1974 (From the Judgment and order dated the 27th July, 1972 of the Madhya Pradesh High Court in Misc. Case No. 365 of 1970.) 363 F.N. Kaku and D.N. Misra for the Appellants in CA. No. 209 of 1973 & For the Respondent No.2 in CA. 1140/74. M.K. Ramamurthy, Vineet Kumar and Naresh K. Sharma, for the Respondent Nos.2 & 4 in CA.209/73 & for the Appellant in CA. No.1140 of 1974. The Judgment of the Court was delivered by TULZAPURKAR, J. The principal question raised for our determination in these appeals is: Whether on its proper construction the certified Standing Order 17 provides for second opportunity being given to a workman after conclusion of the inquiry into his misconduct and before inflicting on him the punishment of dismissal and if so whether the enquiry gets vitiated by not affording him such opportunity? Facts giving rise to the question may be stated. The Associated Cement Companies Limited (hereinafter called 'the Appellant ') has quarries worked by its department called Kymore & Bamangaon Lime stone Mines at Kymore, District Jabalpur, M.P. Workers employed in the said quarries have a union called Kymore Quarry Karamchari Sangh and the four concerned workmen Rama Shanker, Barmapradhan, Emmanual and Mohd. Rauf (hereinafter called the Respondents ') were at the material time the office bearers in the union. In connection with the implementation of the Recommendations of Second Central Wage Board for the cement industry, after serving a strike notice on the management of the Appellant on 13th September, 1968, the Karamchari Sangh and all its Members went on a strike for 24 hours commencing from the mid night of 19th September, 1968 which was accompanied by acts of intimidation, threats, ghearoes and unlawful obstruction. According to the management before the commencement of the strike two meetings were organized by the Respondents, one at 4 P.M. and the other at 11 P.M. on 19th September at which fiery speeches were made by them wherein they not only instigated the quarry workers to resort to strike but intimidated and prevented the willing workers from 364 going to their work and threatened the supervisory staff and officers with dire consequences if they tried to work the quarries and what is more from the mid night of 19th September till 4.30 A.M. on 20th September the quarry Manager and the supervisory staff were ghearoed and at 4.30 A.M. the Agent 's car stopped at the gate and he was unlawfully obstructed from visiting the querry premises. Since resorting to a strike without giving 14 days ' prior notice as also the aforesaid acts on the part of the Respondents amounted to serious mis conduct under the certified Standing Orders applicable to the quarries the Management served Charge sheets dated 3rd of October. 1968 on the Respondents in which four common charges were levelled against all of them; in addition a fifth charge was levelled against two of them Emmanual and Mohd. Rauf; and yet another 6th charge was levelled against Mohd. Rauf. The common charges were (a) themselves going on strike without 14 days ' prior notice, (b) inciting and instigating other workers to go on strike, (c) gheraoing the Quarry Manager and other supervisory staff between mid night and 4.30 A.M. on 20th September and inciting others to gherao the said staff and (d) forcibly and unauthorisedly occupying the area near the quarry canteen between 4 P.M. on 19th Sept. and 1 A.M. on 20th Sept. and installing and using loud speakers for inciting the workers. Shri Emmanual and Shri Rauf were further charged with threatening the gheraoed staff with dire consequences, if they moved out; and Mohd. Rauf was charged in addition for having restrained the Quarry Agent from entering the quarry premises. The respondents were called upon to submit their explanation in respect of the charges to the General Manager which they did; in their Explanations they by and large denied the charges levelled against them. A departmental enquiry was held against them by Shri H.S. Mathur during the course of which at one stage the Respondents withdrew from the enquiry on 24th October, 1968 on the plea that the Quarry Agent should be examined first which was not being done, whereafter the enquiry proceeded ex parte and on a consideration of the entire evidence led before him the Enquiry Officer came to the conclusion that the first three charges were fully proved and the fourth charge was partly proved against all the respondents while the additional charges against Emmanual and Mohd. Rauf were also proved. The Enquiry Report was forwarded to the General Manager who after considering the same and after taking into account the previous service record of the Respondents by his order dated 31st December, 1968 dismissed the Respondents from service. That order was served on the Respondents on 30th January, 1969. 365 A dispute having been raised with regard to their dismissal, by common consent, the same was referred to the arbitration of Shri T.C. Shrivastava, a retired Judge of M.P. High Court, under sec. 10 A of the on 14th 'April, 1969. The Arbitrator gave his Award on 9th February, 1970 whereby he came to the conclusion that the enquiry which was otherwise fair and valid was vitiated because no second opportunity was given to the Respondents of showing cause against the proposed punishment before the issuance of their dismissal order as required by the Standing Order No. 17; he further held that though before him the Management had by leading evidence proved their mis conduct by establishing the first three charges against all, the fifth charge against Emmanual and Mohd. Rauf (fourth charge being held not to have been proved) the punishment of dismissal in respect of Emmanual and Mohd. Rauf could be confirmed but set aside the dismissal in respect of Rama Shanker and Barmapradhan on the ground that while fomenting the strike the conduct of Emmanual and Mohd. Rauf was graver than that of Rama Shanker and Barmapradhan and instead ordered their reinstatement but without back wages. The Appellant challenged the Award in the High Court by means of a Writ Petition (Misc. Petition No. 129 of 1970) contending that the Arbitrator had misconstrued Standing Order No. 17 and that no second opportunity was required to be given to the Respondents and that in the alternative the interference with the punishment of dismissal in respect of Rama Shanker and Barmapradhan was erroneous while another writ petition (Misc. Petition No. 365 of 1970) was filed by the Respondents against the punishments that were awarded to each one of them the High Court by its judgment dated 27th July, 1972 confirmed the Award of the Arbitrator by dismissing both the writ petitions. The Appellant has come up in appeal (being Civil Appeal No. 209/73) by special leave challenging the interference with the dismissal of Rama Shanker and Burma Pradhan while the Respondents have preferred their appeal (being Civil Appeal No. 1140 of 1974) on a Certificate granted by the High Court challenging the punishments operating against each one of them. At this stage it may be stated that as regards Emmanual and Mohd. Rauf the matter has been compromised between the parties which has already been recorded by this Court with the result that Civil Appeal No. 1140 of 1974 in so far as their dismissal is concerned no longer survives and the same needs to be dealt with by us only as regards back wages that have been denied to Rama Shanker and Burmapradhan. 366 In support of civil Appeal No. 209 of 1973 Counsel for the Appellant raised three contentions before us. In the first place, he contended that the learned Arbitrator as well as the High Court have erroneously construed the certified Standing order No. 17 as requiring a second opportunity being given to a workman at the conclusion of the enquiry into his mis conduct and before inflicting upon him the punishment of dismissal; he urged that the concept of second opportunity being given to a delinquent which obtained under sec. 240(3) of the Government of India Act, 1935 or article 311 of the Constitution prior to the insertion of the Proviso to Article 311 (2) could not be invoked or applied to the instant case nor was such second opportunity any requirement of the ordinary law of the land or of Industrial law and in this behalf reliance was placed on two decisions of this Court in Hamdard Dawakhana case and in Saharanpur Light Rly, case. Counsel urged that on proper construction of the Standing order it should have been held that no second opportunity was contemplated thereunder and therefore the finding that the enquiry was vitiated deserved to be set aside and according to him if the enquiry was valid and was not vitiated the punishment of dismissal imposed on Rama Shanker and Barmapradhan could not be interfered with. In the alternative counsel contended that assuming that the enquiry was vitiated for the reason mentioned by the Arbitrator even than once serious mis conduct was proved by leading evidence before the learned Arbitrator it was not open to him to interfere with the punishment of dismissal unless the punishment was so harsh as to smack of victimisation. In the further alternative counsel contended that assuming that the Arbitrator had power to interfere with the punishment in the instant case having to the facts and circumstances he was not justified in setting aside the dismissal of Rama Shanker and Barmapradhan especially on the ground on which he did so namely, that the conduct of Shri Emmanual and Mohd. Rauf was more grave than that of Rama Shanker and Barmapradhan while fomenting the strike; counsel urged that passively taking part in the strike was distinguishable from the more serious mis conduct of fomenting or inciting the strike and all the respondents were found guilty by the learned Arbitrator of such serious mis conduct and as such no distinction on the distinction on the basis indicated between the two sets of workmen should have been made in the matter of punishment, on the other hand coun 367 sel for the Respondents urged that Standing order No. 17 had been properly construed by the Arbitrator and the High Court and that construction should be upheld and in any case if two constructions were reasonably possible no interference by this Court was called for and counsel in that behalf relied upon the decision Agani (W.M.) vs Badri Das and ors. Counsel further urged that once the enquiry got vitiated the entire field of determining the mis conduct as also the punishment therefor became open and the Arbitrator had jurisdiction and power to consider both the aspects and that the Arbitrator in the facts and circumstances of the case had justifiably interfered with the dismissal of Rama Shanker and Barmapradhan and had directed their reinstatement. From the rival contentions summarised above it will appear clear that the real question that arises in these appeals is, does the certified Standing order No. 17 provide for second opportunity being given to a workman to show cause against the proposed punishment of dismissal, for, it was not disputed before us that if no such second opportunity is contemplated by it then the only ground on which the inquiry has been held to be invalid by the learned Arbitrator and the High Court would disappear and the Arbitrator could not have entered into merits of the case or interfered with the punishment of dismissal inflicted upon Rama Shanker and Barmapradhan. The question obviously depends upon the proper construction to be placed on said S.O. 17. It may be stated that the certified S.O. 16 enlists several acts or omissions that constitute 'mis conduct ' and striking work either singly or with other workers without giving 14 days previous notice, inciting whilst on the premises and worker to strike work and indulging in a Gherao, which would amount to an 'act subversive of discipline or efficiency ' are obviously included therein. S.O. 17 which deals with punishments and procedure therefor runs thus: "17. A worker may be suspended for a period not exceeding 4 days or fined in accordance with the Payment of Wages Act or dismissed without notice or any compensation in lieu of notice it found guilty of misconduct defined in Standing order No. 16. 368 All orders of suspension and fines shall be in writing setting out the misconduct for which the punishment is awarded. No officer below the rank of the Head of Department shall award the above punishment All dismissal order shall be passed by the Manager or Acting , 'Manager who shall do so after giving accuse an opportunity to offer any explanation. Due consideration to the gravity of the misconduct and the previous record of the worker shall be given in awarding the maximum punishment. In the event of a discharge of dismissal, the worker shall be paid off within the second working day following the discharge or dismissal. " The question is whether when paragraph 3 of the S.O. says: "all dismissal orders shall be passed by the Manager or Acting Manager who shall do so after giving the accused an opportunity to offer any explanation", it contemplates giving of a second opportunity to the delinquent to show cause against the proposed punishment of dismissal after he has been found guilty or the opportunity spoken of is the opportunity to meet the charges in the domestic inquiry ? At the outset the legal position as has been clarified by this Court in the Saharanpur Light Railway Co. 's case (supra) may be stated. In the context of certain modification sought to be introduced in a Standing order requiring a second show cause notice this Court has observed thus: ' "As regards the modification requiring a second show cause notice, neither the ordinary law of the land nor the industrial law requires an employer to give such a notice. In none of the decisions given by the Courts or the Tribunals , such a second show cause notice in the case of removal has ever been demand or considered necessary. The only class of cases where such a notice has been held to be necessary are those arising under article 311. Even that has now been removed by the recent amendment of that Article. To import such a retirement from article 311 in industrial matters does not appear to be either necessary or proper and. would be equating industrial employees with civil servants. In our view, there is no justification or any principle for such equation. 369 Besides, such a requirement would unnecessarily prolong disciplinary enquiries which in the interest of industrial peace should be disposed of in short time as possible. In our view it is not possible to consider this modification as justifiable either on the ground of reasonableness of fairness and should therefore be set aside. " It is thus clear neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary. This, of course, does not mean that a Standing order may not provide for it but unless the Standing order provides for it. either expressly or by necessary implication no inquiry which is otherwise fair and valid will be vitiated by non affording of such second opportunity. The question is whether para 3 of the Standing order No. 17 provides for such second opportunity being given to the delinquent ? The relevant words are " all dismissal order shall be passed by the Manager alter giving the accused an opportunity to offer any explanation". The underlined words are wholly inappropriate to convey the idea of a second hearing on opportunity on the question of punishment but appropriate in the context of seeking an explanation in regard to the alleged misconduct charged against him. An explanation ' is to be called from the 'accused ' which suggests that the same is to be called for prior to the recording of finding that the delinquent is guilty of misconduct: it is the alleged misconduct that is to be explained by him and not the proposed punishment. On a plain reading of the relevant words no second opportunity of showing cause against the proposed punishment is contemplated either expressly or by necessary implication. In other words, it is clear to us that the opportunity spoken of by para 3 OE S.O. 17 is the opportunity to be given to the delinquent to meet the charge framed against him. In this connection it will be pertinent to mention that the concerned S.O. was framed and came into force on March 1, 1946 and was duly certified on October 16, 1954 under the Industrial employment (Standing orders) Act, 1946 i.e. prior to the enunciation of the law by Courts regarding the observance of the principles of natural justice such as issuance of a charge sheet, holding of an inquiry, opportunity to lead evidence, etc. and it is well known that after the enunciation of these principles model standing orders have been framed to provide for the detailed steps required to be undertaken during a domestic inquiry. Since the Instant Standing order was certified prior to the formulation of the above principles it merely 370 contains a bald provision for `giving the accused an opportunity to offer any explanation '. In other words, different stages in domestic inquiry were never in the contemplation of the framers of the S.O. That being the position it would be difficult to attribute any intention to the framers thereof to provide for a second opportunity being given to the delinquent of showing cause against the proposed punishment. The latter part of para 3 merely casts a unilateral obligation on concerned authority or the officer to give due consideration to the gravity of the misconduct and the previous record of the delinquent in awarding the maximum punishment. It is true that the Arbitrator has undoubtedly taken the view that the opportunity spoken of by para 3 does not refer to the opportunity to meet the charges but refers to the further opportunity being given to the delinquent to show cause against the graver punishment of dismissal that may be proposed to be inflicted on him. But for reaching such a conclusion he has resorted to some involved reasoning which is not warranted by the Standing order if read as a whole. According to him in the earlier paragraph which speaks of awarding lighter punishment there is no reference to any opportunity being given to meet the charges but no punishment not even lighter punishment can be inflicted without inquiry being held according to the principles of natural justice and if such an inquiry as implicit in cases of lighter punishments it would be so in cases of graver punishment like dismissal and since specific mention of opportunity as made in cases of graver punishment in the relevant sentence para 3 it must have a meaning and the words cannot be considered a surpulsage and, therefore, the opportunity mentioned in the relevant sentence of para 3 refers to the second opportunity being given to the delinquent at the stage of inflicting the punishment of dismissal. The High Court has confirmed the view of the basis that the first part of the Standing order deals with several punishments and requires finding of guilt in respect of each one of them and this procedure is, therefore, different from that which has been contemplated in the last part of the Standing order and that last part deals only with the punishment of dismissal and for that punishment alone makes a special provision that no order awarding that punishment will be passed unless the Manager gives an opportunity to a workman to offer his explanation. In our opinion, the view of the Arbitrator as also the view of the High Court proceed on an assumption that the Standing Order No. 17 deals with two different stages concerning disciplinary proceedings against a delinquent, first holding of a 371 departmental inquiry into the charges where principles of natural justice must be implied and second the infliction of graver punishment before awarding which opportunity to show cause has been provided for; but the plain reading of the Standing Order read as a whole does not warrant any such assumption and, therefore, we do not feel that the construction placed on Standing Order No. 17 by the Arbitrator or the High Court is possible much less reasonably possible. The ratio of this Court 's decision in Agnani (W.M.) vs Badri Das & Ors. (supra) is, therefore, not attracted. In view of the construction which we are placing on S.O. No. 17, it will be clear that the only ground on which inquiry was held to be invalid by the Arbitrator and by the High Court must disappear. Admittedly, opportunity to offer explanation in regard to the alleged misconduct was not only afforded but was availed of by the concerned four workers (including Rama Shankar and Burma) Pradhan) by submitting their written explanations to the Manager whereafter the departmental inquiry was held by H.S. Mathur. In other words S.O. 17 was fully complied with and what is more the Arbitrator has held that the inquiry was otherwise fair and valid. The solitary ground on which the inquiry was held to be invalid having disappeared it must follow that the Arbitrator had no Jurisdiction to enter into the merits of the case or interfere with the punishment of dismissal inflicted upon Rama Shankar and Burma Pradhan. That part of the Arbitrator 's award which has been confirmed by the High Court is, therefore, set aside. The alternative contentions raised by counsel for the Management in these appeals do not survive. C.A. No. 209 of 1973 (filed by the Management) is allowed and C.A. No. 1140 of 1974 (filed by the two workmen Rama Shankar and Burma pradhan) is dismissed. There will be no order as to costs. H.S.K. C.A. 209/72 allowed and CA. 1140/74 dismissed.

Four workmen of the appellant company in Civil Appeal No. 209/73 were charged for mis conduct as defined in Standing order No. 16. The enquiry officer found them guilty of the charges. On the basis of the Enquiry officer 's report and after looking into the previous record of the workmen, the General Manager dismissed them. On a dispute having been raised it was referred to the arbitrator, first respondent, under section 10A of the . The arbitrator held that the enquiry which was otherwise fair and valid was vitiated because no second opportunity was given to the workmen before dismissing them as required by the Standing order No. 17. The Arbitrator set aside the dismissal of two workmen and confirmed that of the other two. The management and the workman challenged the award in the High Court by two writ petitions. The High Court confirmed the award and dismissed both the writ petitions. Hence these appeals by management and the workmen. Allowing the appeal of the management and dismissing that of the workmen. ^ HELD: Under Standing order No. 17 no second opportunity of showing cause on the question of punishment is contemplated. [367D] Neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary. This of course, does not mean that the standing order may not provide for it but unless the Standing order provide for it either expressly or by necessary implication, no enquiry which is otherwise fair and valid will be vitiated by non affording of such opportunity. [369B D] Standing Order No. 17 provides that a worker may be suspended, fined or dismissed if found guilty of mis conduct as defined in Standing Order No. 16. Para 3 of Standing Order No. 17 says that "all dismissal orders shall be passed by the Manager or Acting Manager who shall do so after giving the accused an opportunity to offer any explanation. " The question is whether para 3 provides for such second opportunity being given to the delinquent ? The words "all dis 362 missal orders shall be passed by the Manager after giving, the accused an opportunity to any offer explanation" in para 3 of Standing Order No. 17 are wholly inappropriate to convey the idea of a second hearing or opportunity on the question of punishment but appropriate in the context of seeking an explanation ' in regard to the alleged mis conduct charged against him. An 'explanation ' is to be called from the 'accused ' which suggests that the same is to be called for prior to the recording of a finding that the delinquent is guilty of mis conduct; it is the alleged mis conduct that is to be explained by him and not the proposed punishment. On a plain reading of the relevant words no second opportunity of showing cause against the proposed punishment is contemplated either expressly or by necessary implication. In other word, it is clear that the opportunity spoken of by para 3 of Standing Order No. 17 is the opportunity to be given to the delinquent to meet the charges framed against him. Further, since the instant Standing Order was certified prior to the enunciation of the law by Courts regarding the observance of the principles of natural justice such as issuance of a charge sheet, holding of an inquiry, opportunity to lead evidence, etc. It merely contains a bald provision for 'giving the accrued an opportunity to offer any explanation '. In other words. different stages in domestic inquiry were never in the contemplation of the framers of the Standing Order. That being the position it would be difficult to attribute any intention to the framers thereof to provide for a second opportunity being given to the delinquent of showing cause against the proposed punishment. [368A E; 369C H; 370A B] The view of the Arbitrator as also the view of the High Court proceed on an assumption the Standing Order No. 17 deals with two different stages concerning disciplinary proceedings against a delinquent, first holding of a departmental inquiry into the charges where principles of natural justice must be implied and second the infliction of graver punishment before awarding which opportunity to show cause has been provided for; but the plain reading of the Standing Order read as a whole does not warrant any such assumption and, therefore, the construction placed on Standing order No. 17 by the Arbitrator or the High Court is not possible much less reasonably possible. [373H; 371A B] In the instant case, admittedly, opportunity to offer explanation in regard to the alleged mis conduct was not only afforded but was availed of by the concerned foul workers by submitting their written explanations to the Manager whereafter the departmental inquiry was held. In other words Standing Order No. 17 was fully complied with and what is more the Arbitrator has held that the inquiry was otherwise fair and valid. [371D]

Civil Appeal No. 318 of 1978. 41 From the judgment and order dated 8th November 1978 of the High Court of Delhi at New Delhi in C.W. No. 786 of 1978. Appellant in person P.A. Francis, Miss A. Subhashini and R.N.Poddar, for Respondent No. 1. R.N. Sharma, R. N. Poddar and N.N. Sharma, for Respondent Nos. 2 and 3. The Judgment of the Court was delivered by PATHAK, J. This appeal by special leave is directed against the judgment of the High Court of Delhi dismissing in limine the appellant 's writ petition against an order of the Indian Institute of Technology, Delhi terminating his services. The writ petition by the appellant was brought on the following allegations. The appellant, with a Master 's degree in Aeronautical Engineering, was commissioned in the Indian Air Force on March 1, 1958 and in due course was promoted to the rank of Squadron Leader. During the years 1972 to 1975 he was an Assistant Director in the Rockets and Missiles Department of the Defence Research and Development Organization, New Delhi. In January 1975, the appellant was tried by a General Court Martial on four charges and was convicted on two: (1) under section 45, for behaving in a manner unbecoming of the position and character expected of him as an officer in meeting secretly on several occasion a foreign national, contrary to the existing order on the subject and (2) under section 65, for improperly accepting a gift from a foreign national. He was found not guilty on the remaining two charges. On March 4, 1975, the General Court Martial directed that he be cashiered and suffer rigorous imprisonment for six months. The findings and sentence of the General Court Martial were confirmed by the Chief of the Air Staff on April 8, 1975 and he directed that the sentence of rigorous imprisonment be carried out by confinement in civil prison. Subsequently, by an order dated May 24, 1975, the Central Government remitted the unexpired portion of the punishment of rigorous imprisonment. The appellant was anxious to join the Indian Institute of Technology, Delhi and obtained a certificate to enable him to do so. The Air Headquarters, New Delhi issued the certificate reciting 42 that he was commissioned in the Indian Air Force and was posted to the Defence Research and Development Organization, Ministry of Defence. It also stated that he was tried by General Court Martial in January, 1975 and in the result he was cashiered from service and also sentenced to rigorous imprisonment for six months. The fact of remission of the imprisonment was also stated. On July 15, 1977, the appellant was offered appointment to the post of Senior Research Assistant in the Department of Applied Mechanics of the Indian Institute of Technology for the programme of writing a monograph on 'Large Deformation in Metallic materials ' undertaken by Professor B. Karunesh of the said Department, and it was specifically mentioned that the appointment was purely temporary, subject to verification of the appellant 's character and antecedents from the Government, and could be terminated on 24 hours notice in writing by either side. The appellant accepted the appointment and joined the Institute the next day. The appellant alleges that unknown to him the Institute communicated with the Ministry of Defence in regard to his employment, and in reply the Ministry informed the Institute by letter dated November 19, 1977 of the appellant 's conviction and sentence by a General Court Martial and also of the fact of remission of the unexpired period of his imprisonment. The letter also drew the attention of the Institute to an office memorandum dated May 14, 1965 of the Ministry of Home Affairs that persons who were dismissed from service were disqualified from future employment under the Government and added whether the same disability would apply in the case of the appellant should be decided by the Institute. Professor Karunesh, under whom the appellant was working, was apparently apprised of the Ministry 's letter but he recommended that the appellant be retained in service. On January 21, 1978, the Institute issued an order stating that the appellant 's services were no longer required and that they would stand terminated on the expiry of 24 hours. According to the appellant, the Chairman of the Board of Governors of the Institute noted that as the appellant had been dismissed for spying he should not be retained in service. The writ petition filed by the appellant was dismissed by the High Court of Delhi by an order dated November 8, 1978. In this appeal the appellant, who appears in person contends that the Institute had no ground for terminating his services as the effect of the order of remission passed by the Central Government was to acquit him of the charges on which he had been found guilty, 43 that the Institute did not apply its mind to the facts of the case when deciding to terminate his services, that there was no material to support the comment of the Chairman, Board of Governors, and in any event the appellant was entitled to an opportunity to be heard before his services were terminated. It was also contended that the Director of the Institute had abdicated his powers. Reference was also made to section 73, in support of the submission that the statute did not bar employment elsewhere. We are of opinion that we need not be detained by these contentions. The fundamental relief claimed by the appellant is reinstatement to his post in the Institute. For the reasons which follow that relief must be denied. It appears from the record before us that the appellant was appointed in the Institute in connection with the programme of writing a monograph on 'Large Deformation in Metallic materials ' undertaken by Prof. B. Karunesh. The appointment was temporary only and could be terminated on 24 hours ' notice. It is averred in the counter affidavit filed by the Institute that the post of Research Assistant, to which the appellant was appointed, was created for one year only. That was so, although according to the appellant the programme extended to two years. It has also been affirmed in the counter affidavit that on the death of Professor Karunesh in June, 1978 the project in which he was engaged has been dropped and finally closed, and the period for which the appellant 's post of Senior Research Assistant was created has also expired. There is no reason why these averments should not be accepted. In the circumstances, we do not see how the appellant can be granted the relief of reinstatement. We consider it unnecessary to interfere with the order terminating the appellant 's services in the Institute. The appeal is dismissed, but we make no order as to costs. S.R. Appeal dismissed.

The appellant, a commissioned officer in the Indian Air Force, on a General Court Martial was cashiered and sentenced to suffer rigorous imprisonment for six years. Later the Central Government remitted the unexpired portion of the punishment of rigorous imprisonment. Subsequently, he was appointed by the Indian Institute of Technology for a project work on a purely temporary basis and subject to verification of his character and antecedents from the Government and subject to the further condition that his services could be terminated on 24 hours notice in writing by either side. On a reference by the I.I.T., the Ministry of Defence by its letter dated November 19, 1977 invited attention to the Ministry of Home Affairs Memorandum dated May 14, 1965 to the effect that persons who were dismissed from service were disqualified from future employment under the Government but left it open to the I.I.T. whether it would follow that principle in the case of the appellant. The Professor under whom the appellant was working recommended the retention of the appellant in service. The I.I.T. did not accept the said recommendation and by its order dated January 21,1978 terminated the appellant 's services on the expiry of 24 hours. A writ petition filed by the appellant challenging the validity of the said order was dismissed in limine by the Delhi High Court and hence the appeal by special leave. Dismissing the appeal, the Court, ^ HELD: The relief claimed by the appellant for reinstatement to his post in the Institute must be denied for the reasons, namely, (a) the appointment was temporary only and could be terminated on 24 hours notice; (b) the Professor incharge of the project passed away subsequently in June 1978 and, therefore, the project in which he was engaged was finally closed and (c) the period for which the appellant 's post of Senior Research Assistant had been, created had come to an end. [43 D E]

Appeal No. 419 of 1958. Appeal by special leave from the judgment and order dated August 20, 1957, of the Calcutta High a Court in Income tax Reference No. 1 of 1956. Hardyal Hardy and D. Gupta, for the appellant. N. C. Chatterjee, Dipak Choudhri and B. N. Ghosh, for the respondent. November 28. The Judgment of the Court was delivered by KAPUR, J. This is an appeal by special leave against the judgment and order of the High Court of Judicature at Calcutta in a reference made by the Income tax Appellate Tribunal under section 66(1) of the Income tax Act. The following question was referred: "Whether in the facts and circumstances of this case, the Appellate Tribunal was right in holding that Rs. 61,818 spent by the assessee to train Indian boys as jockeys, did not constitute expenses of the business of the assessee allowable under section 10(2)(xv)?" which was answered in favour of the respondent. The Commissioner is the appellant before us and the assessee is the respondent. The respondent is an association of persons whose business is to hold race meetings in Calcutta on a commercial basis. It holds two series of race meetings during the two seasons of the year. The respondent does not own any horses and therefore does not employ jockeys but they are employed by owners and trainers of horses which are run in the races. It is a matter of some importance to the respondent that there should be jockeys available to the owners with sufficient skill and experience because the success of races to a considerable extent depends upon the experience and skill of a jockey who rides a horse in a race. Because it was of the opinion that there was a risk of the jockeys becoming unavailable and that such unavailability would seriously affect its business which might result in its closing 731 down the business, the respondent considered it expedient to remedy that defect. Therefore in 1948, it, established a school for the training of Indian boys as jockeys so that after their training they might be available for purposes of race meetings held under its auspices. The school, however, did not prove a success and after having been in existence for three years it was closed down. During the year ending March 31, 1949, the respondent spent a sum of Rs. 62,818 on the running of its school and claimed that amount as a deduction under section 10(2)(xv) of the Income tax Act and also in the assessment under the Business Profits Tax for the chargeable accounting period ending March 31, 1949. This claim was disallowed by the Income Tax Officer and on appeal by Appellate Assistant Commissioner and also by the Income tax Appellate Tribunal. At the instancc of the respondent the question already quoted was referred to the High Court and was answered in favour of the respondent. This appeal is brought by special leave against that judgment. The decision under the Business Profits Tax Act will be consequential upon the decision of the deduction under the Income tax Act. The Tribunal found that it was not the business of the respondent to provide jockeys to owners and trainers, that the jockeys trained in the respondent 's school were not bound to ride only in the races run by the respondent and that the benefit, if any, which accrued was of an enduring nature. It also found that the respondent had been conducting race meetings since long, that it was not the case of the assessee that if it did not train jockeys they would become unavailable and that the mere policy of producing efficient Indian jockeys was not a sufficient consideration for treating the expenditure as one incurred for the business of the respondent. For these reasons the expenditure was disallowed. Before the Appellate Assistant Commissioner, it was contended by the respondent, that the reason for incurring the expenditure was "to promote efficient Indian jockeys" and it was in the interest of the respondent to see that the races are not abandoned on 732 account of the scarcity of jockeys. In the order of the Tribunal it is stated that this was not the case of the respondent, and therefore when the respondent wanted paragraph 5 of the statement to be substituted by the following: "It was the case of the assessee that unless it trained Indian Jockeys, time may come when there may not be sufficient number of trained jockeys to ride horses in the races conducted by the assessee. " the Tribunal did not agree to do so. Counsel for the appellant raised three points before us; (1) The question as to whether an item of expenditure is wholly and exclusively laid out for the purposes of business or not is a question of fact; (2) the connection between an expenditure and profit earning of the assessee should be direct and substantial and not remote and (3) to be admissible as revenue expenditure it should not be in the nature of a capital expense, i.e., it should not bring into existence an asset of an enduring nature. As to the first question this court has held in Eastern Investments Ltd. vs Commissioner of Income tax, West Bengal (1) that "though the question must be decided on the facts of each case, the final conclusion is one of law". In Commissioner of Income Tax vs Chandulal Keshavlal & Co. (2), this Court said: "Another test is whether the transaction is properly entered into as a part of the assessee 's legitimate commercial undertaking in order to facilitate the carrying on of its business; and it is immaterial that a third party also benefits thereby. (Eastern Investment Ltd. vs Commissioner of Income Tax, (1951) 20 I.T.R. 1). But in every case it is a question of fact whether the expenditure was expended wholly and exclusively for the purpose of trade or business of the assessee. In the present case the finding is that it was laid out for the purpose of the assessee 's business and there is evidence to support this finding." But those observations must be read in the context. In that case the assessee firm was the Managing Agent of a Company and at the request of the Directors of (1) ; , 598. (2) , 610. 733 the latter agreed to accept a lesser commission for the year of account than it was entitled to. It was found, by the Appellate Tribunal there that the amount was expended for reasons of commercial expediency and was not given as a bounty but to strengthen the managed company so that if its financial position became strong the assessee would benefit thereby, and an the evidence the Tribunal came to the conclusion that the amount was wholly and exclusively for the purpose of such business. It was on this evidence that the expense was held to be wholly and exclusively laid out for the purpose of the assessee 's business and this was the finding referred to. In that case the Tribunal had not misdirected itself as to the true scope and meaning of the words "wholly and exclusively laid out for the purpose of the assessee 's business". In the present case the Income tax Appellate Tribunal had misdirected itself as to the true scope and meaning of these words. In our opinion, in the circumstances of this case, it cannot be said that the finding of the Tribunal was one of fact. The question as to whether the expenses of running the school for jockeys is deductible has to be decided taking into consideration the circumstances of this case. The business of the respondent was to run race meetings on a commercial scale for which it is necessary to have races of as high an order as possible. For the popularity of the races run by the respondent and to make its business profitable it was necessary that there were jockeys of requisite skill and experience in sufficient numbers who would be available to the owners and trainers because without such efficient jockeys the running of race meetings would not be commercially profitable. It was for this purpose that the respondent started the school for training Indian jockeys. , If there were not sufficient number of efficient Indian jockeys to ride horses its interest would have suffered, and it might have had to abandon its business if it did not take steps to make jockeys of the necessary calibre available. Therefore any expenditure which was incurred for preventing the extinction 93 734 of the respondent 's business would, in our opinion, be expenditure wholly and exclusively laid out for the purpose of the business of the assessee and would be an allowable deduction. This finds support from decided cases. In Commissioner of Income tax vs Chandulal Keshavlal & Co. (1), this Court held that in order to justify a deduction the disbursement must be for reasons of commercial expediency; it may be voluntary but incurred for the assessee 's business; and if the expense is incurred for the purpose of the business of the assessee it does not matter that the payment also enures to the benefit of a third party. Another test laid down was that if the transaction is properly entered into as a part of the assessee 's legitimate commercial undertaking in order to facilitate the carrying on of its business it is immaterial that a third party also benefits thereby. In British Insulated and Helsby Cables vs Atherton (2), Viscount Cave L. C. held that a Bum of money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the ground of commercial expediency and in order indirectly to facilitate the carrving on of the business may yet be expended wholly and exclusively for the purpose of the trade. In a case more recently decided Morgan vs Tate & Lyle Ltd. (3) the assessee company was engaged in sugar refining business and it incurred expenses in a propaganda campaign to oppose the threatened nationalisation of the industry. It was held by the House of Lords by a majority that the object of the expenditure being to preserve the assets of the company from seizure and so to enable it to carry on its business and earning profits, the expense was an admissible deduction being wholly and exclusively laid out for the purpose of the company 's trade. Lord Morton of Henryton said: "Looking simply at the words of the rule I would ask:"If money so spent is not spent for the purpose of the company 's trade, for what purpose is it spent?" If the assets are seized, the company can no longer (1) , 610. (2) (3) 735 carry on the trade which has been carried on by the use of these assets. Thus the money is spent to preserve the very existence of the company 's trade". See also Strong & Co. vs Woodifield(1), the observations of Lord Davey; and Smith vs Incorporated Council of Law Reporting (2). Counsel for the appellant relied upon the judgment of the Privy Council in Ward & Co. Ltd. vs Commissioner of Taxes (3 ), but that decision proceeds on a different statute where the words were of a very restrictive character, the words being: ". . . . Expenditure or loss of any kind not exclusively incurred in the production of the assessable income derived from that source. . . This case was distinguished in Morgan vs Tate & Lyle(4) on the ground that the language of the Now Zealand statute was much narrower than the language of r. 3A in England. Reference was also made by the appellant to Boarland vs Kramat Pulai Ltd. (5). In that case Directors of three Companies engaged in tin mining in Malaya incurred expenditure on printing. and circulating to shareholders a pamphlet containing remarks of the Chairman of the Company. The pamphlet was an attack on the policy and acts of the Socialist Government and it was held that the question whether the money was wholly and exclusively laid out or expended for the purpose of trade within the meaning of rules applicable to the question was one of law but on a consideration of the question it was held that the expenditure was not solely incurred with that object. It is not necessary to discuss that case at any length because what was held in that case was that the pamphlet was not wholly and exclusively for the purpose of the company 's trade. Applying the law, as laid down in those cases, to the present case the conclusion is that the amount in dispute was laid out wholly and exclusively for the purpose of the respondent 's business because if the (1) ; (2) [19I4] 3 K.B. 674. (3) [1923] A.C 145. (4) (5) 736 supply of jockeys of efficiency and skill failed the business of the respondent would no longer be possible. Thus the money was spent for the preservation of the respondent 's business. As to the third point there is no substance in the submission that the expenditure was in the nature of a capital expense because no asset of enduring nature was being created by this expense. In our opinion the High Court has rightly held that the expenditure claimed was one which was wholly and exclusively laid out for the purpose of the respondent 's business. It was to prevent the threatened extinction of the business of the respondent. In the result this appeal is dismissed with costs. Appeal dismissed.

The business of the respondent club was to run race meetings on a commercial scale. The club did not own any horse, and therefore did not employ jockeys. it was a matter of some importance to the club that there were jockeys of requisite skill and experience in sufficient numbers who would be available to the owners and trainers because otherwise the running of the race meetings would not be commercially profitable and its interest would suffer and it might have had to abandon its business if it did not take steps to make jockeys of the necessary calibre available. Therefore it established a school for the training of Indian boys as jockeys and claimed the sums spent on the running of the school as deductable amount under section 10 (2)(XV) of the Indian Income Tax Act. The question was whether in the circumstances of the case the expenditure claimed was one which was wholly and exclusively laid out for the purpose of the respondent 's business. Held, that any expenditure which was incurred for preventing the extinction of a business would be expenditure wholly and exclusively laid opt for the purpose of the business of the assessee and would be an allowable deduction. In the instant case the amount in dispute was laid out wholly and exclusively for the purpose of the respondent 's business, because if the supply of jockeys of requisite efficiency and skill failed, the business of the respondent would no longer be possible. Eastern Investments Ltd. vs Commissioner of Income tax, West Bengal, ; and Commissioner of Income tax vs Chandulal Keshavlal & Co., ; relied on, British Insulated and Helsby Cables vs Atherton, [1926] A. C. 205, Morgan vs Tate & Lyle Ltd., and Boarland vs Kramat Pulai Ltd., , discussed. Strong & Co. vs Woodifield, ; and Smith vs Incorporated Council of Law Reporting, , referred to. Ward & Co. Ltd. vs Commissioner of Taxes, [1923] A. C. 145, distinguished.

Appeal No. 597 of 1961. Appeal from the judgment and order dated July 3, 1959, of the Bombay High Court in 1. T. Reference No. 45 of 1958. A. V. Viswanatha Sastri, N. A. Palkhivala, J. B. Daduchanji, O. C. Mathur and Ravinder Narain, for the appellant. K.N. Rajagopal Sastri and R. N. Sachthey, for the respondent. December 4. The judgment of Das, Kapur and Hidayatullah, jj., was delivered by Das, J. The judgment of Sarkar and Dayal, jj., was delivered by Sarkar, J. 670 S.K. DAs, J. This is an appeal on a certificate of fitness granted by the High Court of Bombay under section 66.A(2) of the Indian Income tax Act, 1922. The short facts giving rise to the appeal are these. The original assessee was Purshottamdas Thakurdas, a well known businessman of Bombay. He died sometime after the proceedings in the High Court had terminated and the appellants herein are his legal representatives. As nothing turns upon the distinction between the assessee an& his legal representatives in this case, we shall ignore it for the purpose of this judgment. By a notice issued under section 18 A(1) of the Act the Income tax Officer concerned required the assessee to make advance payment of tax in respect of the assessment year 1947 1948. On September 15, 1946, the assessee submitted an estimate of his income under sub s, (2) of section 18 A. In this estimate the assessee showed his total income at Rs. 4,64,000/ . He deducted the sum of Rs. 3,64,000/ , stated to be his dividend income, on the ground that section 18 of the Act applied to such income. After claiming credit for Rs. 10,000/ on the ground of double taxation relief, the assessee estimated the advance tax payable by him at Rs. 2,67,752/ . The Income tax Officer took the view that under section 18 A(2) of the Act the assessee was bound to include in his estimate, and to pay advance super tax on, his dividend income. Since that was not done and the advance tax paid was less than eighty per cent of the tax determined on the basis of the regular assessment, he levied penal interest on the assessee under sub section (6) of section 18 A of the Act in respect of the super tax payable on the dividend income. There was an appeal to the Appellate Assistant Commissioner who confirmed the view of the Income tax Officer. On a further appeal, the Appellate Tribunal held by its order dated October 25, 1957, that sub section (6) of section 18 A did not apply to dividend income and the assessee was not 671 liable to pay penal interest in respect of the dividend income. The Commissioner of Income tax, Bombay City, respondent before us, moved the Appellate Tribunal to state a case to the High Court of Bombay on the following question of law which arose out of the Tribunal 's order : "Whether on the facts and circumstances of the case, the assessee is liable to pay interest in respect of dividend income as provided under section 18 A(6) of the Income tax Act The Tribunal stated a case on the aforesaid question and the reference made by the Tribunal was dealt with by a Division Bench of the High Court of Bombay by its judgment dated July 3, 1959. The question framed by the Tribunal was slightly altered by the High Court , but the alteration made is not material for our purpose. Mr. justice J. C. Shah came to the conclusion that dividend income was not income in respect of which section 18 made any provision " 'for deduction of income tax at the time of payment" within the meaning of sub section (1) of section 18 A and though the phraseology used in sub section (6) of s.18A was slightly different from the phraseology used in sub section (1) of section 18 A, the two sub sections substantially had the same meaning. Accordingly, he answered the question in the affirmative and against the assessee. Mr. justice section T. Desai also gave the same answer to the question, though he reached a somewhat different conclusion. He held that on a proper construction of sub section (6) of section 18 A an assessee was liable to pay interest in respect of tax on dividend income to the extent that sub section (5) of section 18 did not apply to the same. He said "An assessee who is called upon to make advance payment of tax under section 18 A (1) may under sub section (2) of that section pay such amount as accords with his own estimate, If he 672 excludes the amount of super tax on dividend income from his estimate he takes the risk of the application of the ratio of eighty per cent resulting in a shortfall and he would have to pay interest "upon the amount by which the tax so paid falls short of the said eighty per cent. " The eighty per cent would be of the amount of tax determined on the basis of the regular assessment. so far as such tax relates to income to which the provisions of section 18 do not apply. The provisions of section 18(5) as I have already pointed out do not apply to super tax and the amount of super tax on the dividend income must be included and taken into consideration in the computation necessary for the purpose of fixing the quantum of tax to which the ratio of eighty per cent is to be applied. I would, therefore, answer the question as framed by us in the affirmative. " The assessee then moved the High Court for a certificate of fitness and having obtained such certificate preferred this appeal to this court. On behalf of the assessee, the contention is that the answer given by the High Court to the question referred to it is not correct and this contention is based on two grounds. The first ground is that on a proper construction of sub section (2) of section 16, sub section (5) of section 18 and section 49 B of the Act, dividend income is income in respect of which provision is made under section 18 for " 'deduction of income tax at the time of payment" and therefore section 18 A is not attracted to it. The second ground which has been taken in the alternative is that sub section (6) of section 18 A clearly states that where in any year an assessee has paid tax under sub section (2) on the basis of his own estimate and the tax so paid is less than eighty per cent of the tax determined on the basis of the regular assessment, so far as such tax relates to income 673 to which the provisions of section 18 do not apply, simple interest at the rate of; six per cent per annum etc. shall be payable by the assessee upon the amount by which the tax so paid falls short of the said eighty per cent, It is submitted that thephraseology used in sub. section (6) of section 18 A is "to whichthe provisions of section 18 do not apply. Thealternative argument is that sub section (5) of section 18 is undoubtedly a provision which applies to dividend income and therefore under sub section (6) of section 18 A the assessee was not liable to pay penal interest by his failure to pay advance tax On that head of income. Put differently, the alternative argument is that sub section (6) of section 18 A refers to a category of income wider than what is referred to in sub section (1) of section 18 A and if there is some provision in section 18 relating to a head of income, namely, dividend income, (though that provision may not amount to deduction of income tax at the time of payment '), failure to pay advance tax on that head of account will not attract the penal provisions of sub section (6) of section 18 A. We proceed now to consider these two arguments advanced on behalf of the appellants and the replies thereto on behalf of the respondent. First as to the argument that on a, proper construction of sub section (2) of section 16, sub section (5) of section 1 8 and section 49 B of the Act, dividend income is income in respect of which provision is made under section 18 for "deduction of income tax at the time of payment. " To appreciate this argument it is necessary first to refer to the scheme of sections 18 and 18 A of the Act. Under the Indian Income tax Act 1922, tax is assessed and paid in the succeeding year upon the results of the previous year of account. The legislature has by enactings. 18 A, made a provision for imposing a liability uponthe tax payers who had been previously assessedand even upon those who had not been so assessedto make advance payment of 674 tax in respect of income, exceeding a certain amount, for which provision is not made under section 18 for deduction of tax at the time of payment. Sections 18 and 18 A between themselves exhaust all categories of taxable income. The Act provides for two modes of collecting taxes . direct levy and levy by deduction at the source. The ordinary method of collection is direct collection of the tax from the assessee which is dealt with by. sections ,19, 45 and 46. Deduction of tax at the source is provided for only in certain specified cases mentioned in section 18. Sub section (2) of section 18 relates to salaries and makes the, person responsible for paying any income chargeable under the head salaries" to make deduction of income tax and super tax on the amount payable at a rate representing the average of the rates applicable to the estimated total income of the assessee under that head. Sub section (3) relates to interest on securities and makes the person responsible for paying any income chargeableunder the head ",,interest on securities". unless otherwise prescribed in the case of any security of the Central Government, to deduct at the time of payment income tax but not super tax on the amount of interest payable at the maximum rate. Sub sections (3 A) to (3 E) relate to certain other cases which are not very material for our purpose. We need not therefore refer to those sub sections. section (4) of section 18 says that all sums deducted in accordance with the provisions of this section shall, for purposes of computing the income of an assessee, be deemed to be income received. Then there is sub section (5) which in so far as it is relevant for our purpose is in these terms "Any deduction made and paid to the account of the Central Government in accordance with the provisions of this section and any sum which a dividend has been increased under sub section (2) of section 16 shall be treated as a payment of income. tax or super tax on behalf 675 of the person from whose income the deduction was made, or of the owner of the security or of the shareholder, as the case may be, and credit shall be given to him therefor on the production of the certificate, furnished under subsection (9) or section 30, as the case may be in the assessment, if any, made for the following year under,this Act Provided that, if such person or such owner obtains, in accordance with the provisions of this Act, a refund of any portion of the tax so deducted, no credit shall be given for the amount of such refund: xx xx xx xx xx xx xx xx Put briefly, the scheme of section 18 is to provide for deduction of income tax at the source in respect of certain categories of income. With regard to two of the categories, namely, ""salaries" and "interest on securities, there is no difficult. The difficulty arises with regard to the category of income, referred. to in sub s.(5) of s.18,: namely, dividend income, and to this difficulty we shall come later. S.18 A which was inserted in 1944 deals with advance payment of tax. It was introduced as a war measure probably to combat inflation, but, like many other innovations in taxation legislation it has outlived the exigency which necessitated it. The section applies to those assessees whose total income in the latest assessment, and also to those hitherto unassessed whose total income of the previous year, exceeded by a certain sum the maximum amount not chargeable to tax. The section attempts to reconcile the principle of advance payment of tax with the ,scheme of the Act which is to tax the income of the previous year. The basis of the section is the 676 principle of ""pay as you earn that is, paying tax 'by instalments in respect of the income of the very year in which the tax is paid. Sub.s. (1) provides for the payment of tax in respect of the income of " the latest previous year" while under sub.s. (II) the tax so paid is treated as having been paid in respect of the income of the year of payment and credit therefore is given to the assessee in the regular assessment made in the next financial year. The 'advance" payment 'of taxis only provisional, and if after the regular assessment is made the tax paid in advance is found to be in excess of the tax payable, the assessee would be entitled to a refund of such excess. Further, it is worthy of note that the provision for advance payment of tax under section 18 A is only in respect of income from which the tax is not deductible at the source, under section 18. Where the tax is deductible at the source, that in itself amounts to advance payment of tax and therefore such income is left out of the purview of the section. Sub section (2) of section 18 A enables an assessee to make his own estimate if in his opinion, the income of the year is likely to be less than that on which he has been asked to make advance payment of tax ' in accordance with the provisions contained in sub section Sub section (6) of section 18 A so far as it is material for our purpose is in these terms "Where in any year an assessee has paid tax under sub section (2) or sub section (3) on the basis of his own estimate, and the tax so paid is less than eighty per cent of the tax determined on the basis of the regular assessment, so far as such tax relates to income to which the provisions of section 18 do not apply and so far as it it not due to variations in the rates of tax made by the Finance Act enacted for the year for which the regular assessment is made, simple interest at the rate of six per cent per annum from the 1st day of January in the financial 677 year in which the tax was paid up to the date of the said regular assessment shall be payable by the assessee upon the amount by which the tax so paid falls short of the said eighty per cent xx xx xx xx xx xx xx xx XX. It provides for cases where the assesee 's estimate turns out to be too low and it lays down inter alia that where an, assessee has paid advance tax under sub section (2) and the amount so paid is less than eighty per cent of the final assessment of his income for the particular year, he is liable to pay interest at six per cent. There is however the necessary qualification that this is in the context of "income to which the provisions of section 18 do not apply. " ' Having regard to the scheme of sections 18 and 18A explained above, the first question before us is this: can it be said that sub section (5) of section 18 in its true scope and effect treats dividend income as income from which a deduction of income tax has been made at the time of payment of the dividend ? The contention on behalf of the assessee is that sub section (5) of section 18 read with sub section (2) of section 16 and section 49 B has that 'effect. The argument on behalf of the respondent is that it has not that effect. In our opinion the contention urged on behalf of the assessee is correct. Sub.s. (2) of section 16 declares in the first part thereof that any dividend shall be deemed to be income of the year in which it is paid etc. regardless of the question as, to when the profits out of which the dividend is paid were earned. A shareholder 's right to dividend arises upon its declaration. Under the second part of the sub section, the net dividend paid to the shareholder is to be ",grossed up" before in. , clusion in the shareholder 's total income, by adding 678 thereto the amount of income tax paid by the company. In general law the company is chargeable to tax on its profits as a distinct taxable entity and it pays the tax in discharge of its own liability and not on behalf of or as agent for its shareholder . This aspect of the matter has been rightly emphasised by learned counsel for the respondent in his reply. While it is true that the company pays its own tax, a legal fiction is introduced by section 49 B of the Act. Under that section when a dividend is paid to a shareholder by a company which is assessed to tax, the income tax (but not super tax) in respect of such dividend is deemed to have been paid by the shareholder himself Since the income tax in respect of the dividend is deemed under section 49 B to have by been paid by the shareholder himself on his own income, though in reality it was tax paid by the company in discharge of its own liability, credit is given therefore to the share. holder in the assessment, under sub section (5) of section 18. He is not liable to pay income tax again in respect of the dividend and may claim a refund under section 48, if the maximum rate of income tax, which is applicable to companies, is not applicable to him The combined effect of sub section (2) of section 16, section 49B and sub section (5) of section 18 is that the tax free dividend is not really a dividend of the amount received, but a dividend of a larger sum less the tax thereon, and as in the case of tax free salaries and tax free securities, it is the gross amount which is included in the shareholder 's total income, because the income tax paid by the company remains part of the income derived from the shareholding. If this be the true effect of the section referred to above, then section 18 in sub section (5) does provide " 'for deduction of income tax at the time of payment" within the meaning of that clause in sub section (1) of section 18 A. Learned counsel for the respondent has, however, drawn our attention to that part of subs. (5) of section IS which refers to ',any deduction made and paid to 679 the account of the Central Government in accordance with the provisions of this section" and "any sum by which a dividend has been increased under sub section (2) of section 16. " His argument is that the sub section talks of two different matters : one is deduction of tax referred to in the earlier sub sections and the other is addition of a sum to the dividend. These two, according to learned counsel, stand on a different footing; one is in reality " 'deduction of income tax at the time of payment" and the other, namely, the sum added to dividend income under sub section (2) of section 16, is not really " 'deduction of income tax at the time of payment" but is included in the sub section merely for the purpose of giving credit to the shareholder for the amount which has been added to his dividend. We are of opinion that this line of argument does not give full effect to the legal fiction created by section 49 B under which the tax paid by the company is deemed to have been paid by the shareholder himself in respect of his dividend income grossed up under sub section (2) of section 16. If the shareholder is deemed to have paid the tax himself at the time when the company.paid the dividend, we do not see why this payment is not " 'deduction of income tax at the time of payment" within the meaning of that clause in sub section (1) of section 18A. Deduction at the source is only a mode of collecting tax from the person from whose income the deduction is made . The tax paid by the company at the time of payment of the dividend is treated as part of the income of the shareholder and the gross amount has to be included in his total income; on the same principle, the tax deducted at the source and paid to the Government is treated as having been paid by the shareholder himself. In this view of the matter, sub section (5) merely works out the principle of sub section (41 of section 18, namely, that all sums deducted in accordance with the provisions of the section shall, for the purpose of computing the income of an assessee, be deemed to be income received. 680 There was some argument before us as to the omission of the word "shareholder" in the first proviso to sub section (5) of section 18. The Amending Act of 1939 which added the reference to the " 'shareholder" in the substantive part of the sub section did not make similar addition to the first two provisos; whether this was an over sight, as one commentator has said, or not is not a matter which need be decided in this case. We have rested our conclusion on the substantive part of sub section In the view which we have taken on the main argument urged on behalf of the appellant, section 18 A is not attracted to the dividend income of the assessee in this case. The assessee was not therefore liable to penal interest under sub section (6) of section 18 A. It becomes unnecessary, therefore, to decide this case on the alternative argument presented on behalf of the appellant which is based on the phraseology of sub section We need only point out that sub section (6) uses the phraseology "income to which the provisions of section 18 do not apply. " It is difficult to see how it can be said that sub section (5) of section 18 does not "apply" to dividend income. It refers to dividend income in express terms. The argument on behalf of the respondent is that sub section (6) of section 18A will be unworkable in the matter of dividend income., unless it has the same meaning as in sub section (1). Learned counsel has relied on two decisions of this court : Commissioner of Income tax vs Teja Singh (1) and Gursahai Saigal vs The Commissioner of Income tax, Punjab (2). The first decision lays down that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which the fiction can operate. a decision which is really against the respondent on the main argument. The second decision related to sub section (8) of section 18 A and proceeded on the rule that it is proper to give a machinery provision an interpretation which makes it workable. We do not think that sub section (6) (1) [1959] Supp. 1 S.C.R. 394. (2) ; 681 of section 18 A will be unworkable, even if it refers to an income wider in category than that referred to in sub section It is unnecessary, however, to go into this point more elaborately. Our conclusion is that sub section (5) of section 18 read with sub section (2) of section 16 and section 49 B provides for " 'deduction of income tax at the time of payment" in respect of dividend income; therefore, section 18 A does not apply to such income. We would accordingly allow this appeal, set aside the judgment of the High Court, and answer the question referred to the High Court in the negative and in favour of the assessee: The appellants will be entitled to their costs of this court an in the High Court; SARKAR, J. Under.the Income tax Act, 1922, the usual rule is to charge tax for a year on the income of the previous year. Section 18A of the Act makes a departure from this usual rule and provides for advance payment of tax, that is, payment of tax on income during the year in which the income is earned. The question in this appeal is as to the interpretation of certain provisions in section 18A and of a few other sections of the Act. The contention advanced in this case can be appreciated only after these provisions have been referred to. Sub section (1) of section 18A states, "In the case of income in respect of which provision is not made under section 18 for deduction of income tax at the time of payment, the Income tax Officer may. . require an assessee to pay quarterly. . . . an amount equal to one quarter of the income tax and super tax payable on so much of such income as is included in his total income of the latest previous year in respect of which he has been assessed. " This liability to pay arises only however if the total income of the latest previous year exceeds a certain 682 amount mentioned in the subsection. Under this sub section, therefore, the amount demanded as payment of tax in advance is calculated on income found in a previous assessment. Now it may so happen that the assessee thinks that his income for the period for which the demand had been made would be less than his income in that previous assessment. Sub section (2) provides that in such a case the assessee may "send to the Income tax Officer an estimate of the tax payable by him. . . and shall pay such amount as accords with his estimate in equal instalments. . . . So under sub s.(2) the assessee is given the liberty to make his own estimate of the tax payable in advance instead of paying according to a previous regular assessment by the revenue authorities. As in the case of sub section (1), in making the estimate of the tax under sub section (2), the assessee is only to take into account income in respect of which provision is not made under section 18 for deduction of income tax at the time of payment. Sub section (3) provides for the case of an assessee who has never been assessed before but whose total income is likely to exceed the amount upon which tax is payable in advance under sub section it requires such an assessee to "send to the Income tax Officer an estimate of the tax payable by him on that art of his income to which the provisions of section 18 do not apply", and to pay that amount on certain specified dates. Here also the assessee makes his own assessment. Payment of tax in advance under sub sections (1), (2) or (3) is only provisional and the assessee would be entitled to a refund if on regular assessment after the year it is found that he had paid more than he is liable to pay; or he may be called upon to pay more if he had 'paid less than what is due from him. As the responsibility for making the assessments under sub sections (2) and (3) is on the assessee, sub section (6) is intended to provide a machinery whereby the 683 assessee is put under a certain disadvantage if it is found that his estimate is erroneous beyond a certain limit. This appeal turns largely on this sub section and, so far as relevant, it is in these terms "Where in any year an assessee has paid tax under sub section (2) or sub section (3) on the basis of his own estimate, and the tax so paid is less than eighty percent of the tax determined on the basis of the regular assessment, so far as such tax relates to income to which the provisions of section 18 do not apply. . . . simple interest at the rate of six percent per annum. . . shall be payable by the assessee upon the amount by which the tax so paid falls short of the said eighty per cent. " This sub section also prescribes the period for which the interest payable under it is to be calculated but it is not necessary to trouble ourselves with such period in this appeal. Now, Purshottamdas Thakurdas, the assessee in this case, sent an estimate under sub section (2) of, section 18A of the tax payable by him in advance in the year 1947 48. In that estimate he did not include the dividends received on shares held by him. Upon regular assessment it was found that the tax estimated by him was less than eighty per cent of the regular assessment and on this shortfall he was held liable to pay interest under sub section (6) of section 18A. The shortfall would not have arisen if the assessee had taken the dividends into account in making the estimate of the tax payable by him. Against this decision the assessee appealed to the Appellate Assistant Commissioner but his appeal failed. He then appealed to the Income tax Appellate Tribu nal and was successful there. Thereafter, at the instance of the respondent Commissioner of Income tax, the Tribunal referred under section 66 (1) of the Act 84 the following questions for the decision of the High Court. "Whether on the facts and circumstances of the case the assessee is liable to pay interest in respect of dividend income as provided under Section 18A(6) of the Income tax Act?. The High Court answered the question in the affirmative though the reasons upon which the learned judges constituting the bench deciding the case based themselves were somewhat different. The assessee has now come to this Court in further appeal. Pending the appeal here, the assessee died and his legal representatives have been substituted in his place and are the appellants now. The real question in, this appeal is whether in making an estimate under section 18A (2) of the tax payable by him, the assessee should have taken into account the dividends received by him. Now, it is not in dispute that in making this estimate only that income "in respect of which provision is not made under section 18 for deduction of income tax at the time of payment" is to be taken into account. Learned counsel for the appellants contends that dividend is income in respect of which provision is made under section 18 for deduction of income tax at the time of payment. If this contention is sound, then of course no interest is payable under section 18A (6). Now, the appellants ' contention was based on sub section (2) of section 16, sub section (5) of section 18 and section 49B of the Act. The first of these, that is, sub section (2) of section 16, says that for the purpose of inclusion in the total income of an assessee, a dividend shall be deemed to be income of the previous year in which it is paid and shall be increased in a certain manner, and without going into the question of the increase in great detail, which would be unnecessary for the 685 purposes of this case, it would perhaps be right to say that the increase is to be substantially by such amount as would be payable by the company as income tax on the amount of the dividend at the rate applicable to it in the financial year in which the dividend is paid. Sub section (5) of section 18 provides. "Any deduction made and paid to the account of the Central Government in accordance with the provisions of this section and any sum by which a dividend has been increased under sub section (2) of section 16 shall be treated as a payment of income tax or super tax on behalf of the person from whose income the deduction was made, or of the owner of the security or of the shareholder, as the case may be, and credit shall be given to him therefor on the production of the certificate furnished under sub section (9) or section 20, as the case may be, in the assessment, if any, made for the following year under this Act;" Lastly, section 49B states that "Where any dividend has been paid. . or deemed to have been paid. to any of the persons specified in Section 3 who is a shareholder. .such person shall, if the dividend is included in his total income, be deemed in respect of such dividend himself to have paid the income tax (exclusive of super tax) of an amount equal to the sum by which the dividend had been increased under sub section (2) of section 16. " Now, the contention of the learned counsel for the appellants is that as a result of the two provisions last referred to, there is a fictional deduction of tax on dividends which fiction must be given effect to and, therefore, in making an estimate of income under section 18A (2) dividends have to be excluded and 686 they have to be treated in view of the fiction, as income in respect of which tax has been deducted at the time of payment. We are wholly unable to accept this argument All that the provisions on which the learned counsel for the appellants relies, show is that a shareholder who received dividends on his shares is entitled in his assessment to have a certain sum. paid or payable as tax by the company, treated as paid as tax on his behalf and to require that sum to be deemed to have been paid as tax by himself. We are not concerned with payment of tax by or on behalf of the assessee. We are concerned with income, income tax on which has been deducted at the time of payment by the payer of it under section 18. Payment of tax by the assessee or on his behalf is not deduction of tax on the income by the payer of that income. We are wholly unable to agree that payment of tax by the assessee, fictional or otherwise, on income received by him is in any sense a deduction of tax under section 19 by the person who pays the income to the assessee. Clearly there is no deduction as contemplated by section 18. We do not see that sections 16 (2), 18(5), and 49B require any fiction of a deduction under section 18 to be raised. Indeed section 18(5) by mentioning expressly and separately "Any deduction made. . . in accordance with. . . . this section" and " 'any sum by which a dividend has been increased under sub section (2) of section 16" shows that these two are different, or, in other words, that the increased amount is not a deduction under section 18. It is important also to remember that for section 18A(1), (2) and (3) there has to be a deduction under section 18 to exclude a part of the income; deduction under other provisions will not do. Then again, under section 18(5) an assessee is entitled to credit for the amount to be added to the dividend under section 16(2) as tax paid on his behalf 687 but this only at the time of the assessment, if any. for the following year. Obviously, there is no question of giving any credit till assessment later, that is to say, later than the time of payment of the dividend to the assessee. This again shows that dividends are not income in respect of which tax is deducted under section 18 at the time of payment. We would also point out that if there is no assessment of the assessee, then no tax can be treated as having been paid by him. The position under section 49B is the same. If tax is deducted at the source under section 18, it would be deducted in all cases and the deduction would not depend on any assessment. This is a further reason for saying that dividends are not income on which tax is deducted at the time of payment under section 18. The appellants then contend that even if dividends are not income from which tax is deducted at the time of payment, still no interest is chargeable in this case under section 18A(6) for another reason. It was said that in finding out the shortfall under subs. (6) of section 18A you have to compare the amount of tax paid by an assessee on his own estimate with the amount of tax ascertained on the regular assessment taking into account only that part of the income " 'to which the provisions of section 18 do not apply. " Hence it is contended that in ascertaining for the purpose of this sub section the tax payable on regular assessment that part of the assessee 's income should be kept out of consideration to which the provisions of section 18 apply. Then it is pointed out that sub section (5) of that section applies to income received in the shape of dividends. Therefore, in finding out the amount of tax payable on regular assessment under sub section (6) of section 18A, dividends have to be kept out of account and if that is done, then the shortfall would disappear. It is true that if the dividends were excluded from the regular assessment as also the estimate, then there would be no shortfall. 688 Now, it seems to us that this argument is fallacious. The words are ""tax determined on the basis of the regular assessment, so far as such tax relates to income to which the provisions of section 18 do not apply". Obviously, these words refer to tax on income of a certain type, namely, income of any one of the different varieties mentioned in any of the provisions in section 18. Only income of such types is to be left out of consideration for the purpose of making the regular assessment under section 18A (6). Let us turn to section 18. It consists of a very large number of sub sections. Sub section (1) has been omitted. We may also leave out of consideration sub sections (2A), (2B), (4) and (6) to (9), for they do not deal with any particular kind of income which has not been dealt with in the other sections. Each of the rest of the sub sections, excepting sub section (5), deals with deduction of tax at the source from one particular kind of income. In some of the cases, both income tax and super tax are deducted while in others, only income tax is deducted. It is not necessary to discuss this distinction for the purpose of this judgment. We will now have to refer to the various sub sections dealing with deductions from different kinds of income. Sub section (2) deals with deduction from salaries, sub section (3 ) from interest on securities in the case of residents, sub section (3A) from interest on securities in the case of non residents, sub section (3B) from interest not being interest on securities or any other sum chargeable under the provisions of this Act in the case of non residents, sub section (30) from any sum chargeable under this Act other than interest payable to a non resident and sub section (3D) from dividends payable to nonresidents. As the section stood at the relevant time, there was no provision in it for deduction of income tax from dividends paid to a resident shareholder. Indeed, it is because of this that all this argument has arisen. Sub section (5), it would have been noticed, does not deal with any particular or individual type of income but it deals 689 with all the various kinds of income mentioned earlier as also with dividends payable to a resident. Therefore, it seems to us that this sub section is not one of those provisions in section 18 which is contemplated in section 18A (6). It does not particularise any kind of income which has to be kept out of account in considering the amount due on regular assessment under sub section (6) of section 18A. It seems to us, therefore, that the words in that subsection now under discussion refer to the provisions of section 18 which specify particular kinds of income and provide for deduction of tax from them. It is clear that any other view of the matter would produce anomalous results which could not have been intended. In the view that we have taken on the first contention of the appellants, it is obvious that under sub section (1) of section 18A dividend income cannot be left out of account for the purpose of calculating tax payable in advance. Under sub section (2) the position 'is the same. Now if sub section (2) requires dividend income to be taken into account in making an estimate, then how is that requirement to be enforced if interest under sub section (6) is not made payable on the failure to take dividends into account. Question of interest under sub section (6) arises only on regular assessment. The amount found due on regular assessment can be realised in the usual way but that would not enable the obligation imposed by sub section (2), namely, payment in advance, to be enforced. On such reading, there would be no effective provision for payment of tax in advance in a case where the assessee makes his own estimate. That could not have been intended. It is of interest to note that sub section (3) contains the same words " 'income to which the provisions of section 18 do not apply". Now if these words are interpreted in the way suggested by the appellants, then in a case under this sub section dividends need not 690 be included in the income for the purpose of computation of tax payable in advance. But clearly dividends would be liable to be included in cases where sub section (1) or (2) applies. It is impossible to imagine that the legislature could have intended to provide differently for a case coming under sub section As we have already said, the main purpose of section 18 is to provide for deduction of tax at the source. Therefore, it is correct to interpret the words " 'income to which provisions of section 18 do not apply" as referring to that type of income in respect of which section 18 provides for deduction of tax at the source. That fits in also with the scheme of section 18A. If once tax has been deducted, then no question of paying tax on it again in advance or otherwise would arise. For all these reasons, it seems to us that income contemplated in the words " 'income to which provisions of section 18 do not apply" does not include dividends payable to a resident assessee. For these reasons we would dismiss the appeal with costs. By COURT: In accordance with the opinion of the majority, this appeal is allowed with costs.

The assessee submitted his estimate of income for advance payment of tax under section 18 A, in which he did not include his dividend income. The Income tax Officer held that under section 18 A(2) the assessee was bound to include in his estimate, and to pay advance super tax, on his dividend income. Since that was not done and the advance tax paid was less than 800% of the tax determined on regular assessment, he levied penal interest under section 18 A(6) in respect of the super tax payable on the dividend income. The assessee contended (i) that the dividend income was income in respect of which provision was made under section 18 for "deduction of income tax at the time of payment" and as such section 18 A was not applicable to it, and (ii) that since section 18(5) was applicable to dividend income the penal provisions of section 18 A(6) were not attracted. Held, (per Das, Kapur and Hidayatullah, jj., Sarkar and Dayal,JJ., dissenting) that section 18(5) read with sections 16(2) and 49 B provided for the deduction 'of income tax at the time of payment" in respect of dividend income and therefore section 18.A did not apply to such income. A shareholder 's right to the dividend arises upon its declaration. Under the leg, Al fiction 669 introduced by section 49 B, when dividend is paid to a shareholder 'by a company which is assessed to tax, the income tax (but not super tax) in respect of such dividend is deemed to have been paid by the shareholder himself and credit is given therefore to him under section 18(5). If the shareholder was deemed to have paid the tax himself at the time when the company paid the dividend, the payment was "deduction of income tax at the time of payment" within the meaning of section 18 A(1). Per Sarkar and Dayal, JJ The dividend income should have been included in the estimate of income and the penal interest was properly levied on the assessee. Dividend income is not one on which tax was deducted at the time of payment under section 18. Payment of tax by the assessee, fictional or otherwise, on income received by him was not a deduction of tax under section 18 by the person who paid the income to the assessee. for purposes of section 18 A there had to be a deduction under s.18; deduction under other provisions was not relevant. Under section 18(5) credit for the tax paid by the company was to be given to the shareholder not at the time of payment of the dividend but later at the time of assessment, Further, the provisions of section 18 A(6 ) were applicable in respect of dividend income. The words "Income to which provisions of section 18 do not apply" in section 18,A(6) refer to that type of income in respect of which section 18 provides for deduction of tax at the source and they do not include dividend income.

Appeals Nos. 231 and 232 of 1958. Appeal by special leave from the judgment and order dated October 21, 1957, of the Madras High Court in Writ Petitions Nos. 675 and 676 of 1957. R. Ganapathy Iyer, section B. Adityan and G. Gopalakrishnan, for the appellant. A. N. Sinha and P. K. Mukherjee, for respondent No. 1. 1958. November 24. , J. These appeals raise a question of considerable importance as to the scope of an enquiry in an election petition wherein election is called in question under section 100(1)(c) of the Representation of the People Act, 1951 (43 of 1951), on the ground that a nomination paper had been improperly ' rejected. 625 The facts are that during the general elections which were held in 1957 six persons including the,, appellant, Veluswami Thevar, the second respondent ' Chellapandian, and the fourth respondent, Arunachalam, were nominated for election to the Legislative Assembly of the State of Madras from Alangulam Constituency in the District of Tirunelveli At the time of the scrutiny which was on February 1, 1957, Chellapandian raised an objection to the nomination of Arunachalam on the ground that he was the Head Master of the National Training School, Tiruchendur, which was a Government aided school, and that he was therefore disqualified under section 7, cls. (d) and (e) of the Representation of the People Act, 1951 (hereinafter referred to as the Act), as holding an office of profit under the Government. In upholding this objection, the returning officer observed: " Sri section Arunachalam is not present at the time of scrutiny of nominations nor any authorised agent of his could take notice of the objection and file a reply. ' In view of the objection which has not been cleared by Sri section Arunachalam by satisfying me that he is not holding an office of profit in a concern in which the State Government has financial interest, the objection is upheld and Sri section Arunachalam is disqualified under Sections 7(d) and (e) of Act 43 of 1951. Accordingly his nomination is rejected. " The five nomination papers were accepted; two of the candidates subsequently withdrew from the election; the other three went to the polls, and on March 10, 1957, the appellant who secured the largest number of votes was declared elected. On April 18, 1957, Raja Nainar, the first respondent, who was not a candidate but a voter filed E. P. No. 109 of 1957 praying that the election of the appellant be declared void on the ground that the rejection of the nomination paper of Arunachalam was improper, because he had ceased to be a Head Master at the time of his nomination, and that further the institution was a private one. The appellant filed a written statement in which he pleaded that Arunachalam was 79 626 not qualified to be chosen not merely on the ground put forward by Chellapandian before the returning officer but also on the grounds that he was interested as a partner in contracts for the execution of works for the Government, and that further he had entered into an agreement with the District Board, Chittoor, to serve as a teacher in that Board, and that his nomination paper was therefore rightly rejected. Raja Nainar then came out with the application, 1. A. No. 5 of 1957, out of which the present proceedings arise, to strike out the additional grounds of disquali fication raised in the statement of the appellant on the ground that the Tribunal had no jurisdiction to enquire into any ground of disqualification which was not taken before the returning officer, and that accordingly the new grounds put forward by the appellant should be struck out. By its order dated August 17, 1957, the Tribunal held that the question to be decided by it was whether there was a valid nomination paper, and that to decide that, it could go into grounds other than those which were put forward before the returning officer, and, in that view, dismissed the application. The correctness of this order was challenged by Raja Nainar in two Writ Petitions Nos. 675 and 676 of 1957, preferred under article 226. Therein, he repeated his contention that it was not competent to the Tribunal to enquire into any but the grounds which had been put forward before the returning officer, and prayed that a writ of certiorari be issued to quash the order in 1. A. No. 5 of 1957 and a writ of prohibition, to restrain the Tribunal from enquiring into the new grounds raised by the appellant. These applications were heard by a Bench of the Madras High Court consisting of Rajagopalan and Rajagopals Ayyangar, JJ., who upheld the contention of the petitioner, and stated their conclusion in these terms: " We are clearly of opinion that the enquiry before the Tribunal must be restricted to the objections which the returning officer had to consider and decide, but not necessarily to the material placed 627 before the returning officer at the stage of the summary enquiry. The Tribunal has jurisdiction to adjudicate upon the truth and validity of those objections on relevant material, even if that material be other than that placed before the returning officer. The Tribunal has no jurisdiction to investigate the truth or validity of the objections which were not put forward before the returning officer, and which he had therefore no occasion to consider. Once again we have to point out that we are discussing only the position of a candidate whose nomination was rejected, and not, for instance, that of a returned candidate." " A further objection was also taken before the learned judges that as the decision of the Election Tribunal was open to appeal under section 116A of the Act, the court should, in exercise of its discretion under article 226, decline to entertain writ petitions against interlocutory orders. But the learned judge held that as the Tribunal had no jurisdiction to entertain grounds other than those which were put forward before the returning officer, writs could issue under article 226. In the result, they quashed the order of the Election Tribunal in 1. A. No. 5 of 1957, and issued a writ of Mandamus directing it to dispose of the application afresh in accordance with law as laid down in the judgment. It is against this judgment that the present appeals have been preferred on leave granted by this Court under article 136, and the point that arises for decision is whether in an election petition questioning the propriety of the rejection of a nomination paper under section 100(1)(c) of the Act, it is open to the parties to raise grounds of disqualification other than those put forward before the returning officer. It will be convenient at this stage to refer to the provisions of the Act hearing on this question. Section 32 of the Act provides that, "Any person maybe nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act. " Under section 33(1), the candidate is to deliver to the returning officer a nomination paper completed in the 628 prescribed form and signed by the candidate and by an elector of the constituency as proposer. Section 33 (4) enacts that, " On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls: Provided that the returning officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral rolls; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked. " Section 35 provides inter alia that the returning officer shall cause to be affixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper both of the candidate and of the proposer. Section 36, omitting what is not material, is as follows: 36. (1) " On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33. (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds: (a) that the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may, be applicable, namely 629 Articles 84, 102, 173 and 191, Part 11 of this Act, or (b) that there has been a failure to comply With any of the provisions of section 33 or section 34; or (c) that the signature of the candidate or the pro. poser on the nomination paper is not genuine. . . . . . . . . . (5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control: Provided that in case an objection is made the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned. (6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same ania, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. " Then, we have section 100(1)(c), the construction of which is the main point for determination. It is as follows: 100. (1) " Subject to the provisions of subsection (2), if the Tribunal is of opinion (c) that any nomination has been improperly rejected ;. the Tribunal shall declare the election of the returned candidate to be void." Now, the whole controversy between the parties is as to what the expression " improperly rejected " in section 100(1)(c) means. According to the appellant, when the nomination paper of a candidate who is under no such disqualification as is mentioned in section 36(2) has been rejected, that is improper rejection within section 100(1)(c). Acoording to the respondent, when the 630 nomination paper of a candidate is rejected by the returning officer on the ground that he is subject to a specified disqualification, the rejection is improper, if it is found that that disqualification does not exist. If the former view is correct, then the scope of an enquiry before the Tribunal must extend to all matters which are mentioned in section 36(2), and if the latter, then it must be limited to determining whether the ground on which the returning officer has rejected the nomination is well founded. Now, to decide what the expression " improperly rejected " in section 100(1)(c) precisely imports, it is necessary to examine the relevant provisions of the Act bearing on the question and the setting of the above section therein. Under section 32 of the Act, any person may be nominated as a candidate for election if he is duly qualified under the provisions of the Constitution and the Act. Section 36(2) authorises the returning officer to reject any nomination paper on the ground that he is either not qualified, that is, under sections 3 to 7 of the Act, or is disqualified under the provisions referred to therein. If there are no grounds for rejecting a nomination paper under section 36(2), then it has to be accepted, and the name of the candidate is to be included in a list. Vide section 36(8). Then, we come to section 100(1)(c) and section 100(1)(d)(1), which provide a remedy to persons who are aggrieved by an order improperly rejecting or improperly accepting any nomination. In the context, it appears to us that the improper rejection or acceptance must have refer ence to section 36(2), and that the rejection of a nomination paper of a candidate who is qualified to be chosen for election and who does not suffer from any of the dis qualifications mentioned in section 36(2) would be improper within section 100(1)(c), and that, likewise, acceptance of a nomination paper of a candidate who is not qualified or who is disqualified will equally be improper under s.100(1)(d)(1).Section 32 confers a substantive right on a candidate to be chosen to the legislature subject only to the limitations enacted in articles 84, 102, 173 and 191 of the Constitution and sections 3 to 7 of the Act, and sections 36 and 100 provide the machinery for the exercise and enforcement of that right. It is a sound 631 rule of construction that procedural enactments should be construed liberally and in such manner as to render the enforcement of substantive rights effective. Readings section 100(1)(c) in the context of the whole enactment, we think that an enquiry before the Tribunal must embrace all the matters as to qualification and disqualification mentioned in section 36(2), and that it cannot be limited to the particular ground of disqualification which was taken before the returning officer. It was contended for the respondent that the proceedings before the Tribunal are really by way of appeal against the decision of the returning officer, and that, therefore, the scope of the enquiry in the election petition must be co extensive with that before the returning officer, and must be limited to the ground taken before him. It was argued that a decision could be said to be improper only with reference to a ground which was put forward and decided in a particular manner by the returning officer, and that therefore the expression " improperly rejected " would, in its true connotation, restrict the scope of the enquiry before the Tribunal to the ground taken before the returning officer. We are unable to agree with this contention. The jurisdiction which a Tribunal exercises in hearing an election petition even when it raises a question under section 100(1)(c) is not in the nature of an appeal against the decision of the returning officer. An election petition is an original proceeding instituted by the presentation of a petition under section 81 of the Act. The respondents have a right to file written statements by way of reply to it; issues have to be framed, and subject to the provisions of the Act, the provisions of the Code of Civil Procedure regulate the trial of the petition. All the parties have the right to adduce evidence, and that is of the essence of an original proceeding as contrasted with a proceeding by way of appeal. That being the character of the proceedings, the rule applicable is that which governs the trial of all original proceedings; that is, it is open to a party to put forward all grounds in support of or negation of the claim, subject only to such limitations as may be found in the Act. 632 It should be noted in this connection that if a petition to set aside an election on the ground of improper rejection of a nomination paper is in the nature of an appeal against the decision, of the returning officer, then logically speaking, the decision of the Tribunal must be based only on the materials placed before the returning officer given with respect to the ground which was urged before him, and no fresh evidence could be admitted before the Tribunal except in accordance with 0. 41, R. 27. The learned judges in the court below, however, observe that though the enquiry before the Tribunal is restricted to the particular ground put forward before the returning officer, it is not restricted to the material placed before him, and that all evidence bearing on that ground could be adduced before the Tribunal. This, in our view, is quite correct. The enquiry which a returning officer has to make under section 36 is summary in character. He may make " such summary enquiry, if any, as he thinks necessary "; he can act suo motu. Such being the nature of the enquiry, the right which is given to a party under section 100(1)(c) and section 100(1)(d)(1) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the returning officer. It was contended for the respondent that even with reference to the ground taken before the returning officer, no evidence other than what was placed before him could be brought before the Tribunal, and he relied on the following observations of the learned judges in Charanjit Lal vs Lehri Singh (1) : " Whether a nomination has been improperly rejected or not, has to be considered in relation to the state of evidence before the returning officer at the time of the scrutiny. The testimony of the returning officer shows that he rejected the nomination, because it did not appear to him that on the question of age the candidate Shri Pirthi was qualfied to stand for election ' " (1) A. I. R. 1958 punj. 633 There,, a nomination paper had been rejected by the returning officer on the ground that the candidate did,, not appear to possess the age qualification required by article 173. The correctness of this order was challenged in an election petition. Evidence was taken as to the age of the candidate in this petition, and eventually it was held that the order of the returning officer was right. In the order of rejection, the returning officer also stated: " The nomination is rejected as the age is not mentioned in the nomination paper. Neither the candidate nor the proposer or any person duly authorised on his behalf is present to testify to his age. " Now, the argument before the High Court was that the failure to mention the age in the nomination paper was a formal defect which should have been condoned under section 36(4) of the Act. The learned judges held that the defect was not merely one of failure to mention the age but of want of the requisite qualification in age, and that that could not be cured under section 36(4). In this context, the observations relied on could not be read as meaning that no evidence could be adduced even in respect of a ground which was urged before the returning officer, as, in fact, evidence was taken before the Tribunal and a finding given, and if they meant what the respondent suggests they do, we do not agree with them. It is to be noted that in many of the cases which came before this Court, as for example, Durga Shankar Mehta vs Thakur Raghuraj Singh and others (1), the finding of the Tribunal was based on fresh evidence admitted before it, and the propriety of such admission was never questioned. And if the true position is, as we have held it is, that it is open to the parties to adduce fresh evidence on the matter in issue, it is difficult to imagine how the proceedings before the Tribunal can be regarded as in the nature of appeal against the decision of the returning officer. In support of his contention that it is only the ground that is urged before the returning officer that (1) [1955] 1 S.C.R. 267. 80 634 can be raised before the Tribunal, Mr. Sinha, learned counsel for the respondent, relies on the provision in section 36(6) that when a nomination paper is rejected, the returning officer should record his reasons therefor. The object of this provision, it is argued, is to enable the Tribunal to decide whether the order of the returning officer is right or not, and by implication it confines the scope of the enquiry before the Tribunal to the ground put forward before the returning officer. This contention is, in our opinion, unsound. Now, when a nomination paper is accepted, section 36(6) does not require that any reason should be recorded therefor. If the contention of the respondent is right, it would follow that acceptance of a nomination paper can never be questioned. But that would be against section 100(1)(d)(1), and it must therefore be held that an acceptance can be questioned on all the grounds available under section 36(2). Section 100(1)(d)(1) deals with improper acceptance of a nomination paper, and if the word " improper " in that provision has reference to the matters mentioned in section 36(2), it must have the same connotation in section 100(1)(c) as well. The word " improper " which occurs in both section 100(1)(c) and section 100(1)(d)(1) must bear the same meaning in both the provisions, unless there is something in the context to the contrary, and none such has been shown. There is another difficulty in the way of accepting this argument of the respondent. A candidate may be subject to more than one disqualification, and his nomination paper may be questioned on all those grounds. Supposing that the returning officer upholds one objection and rejects the nomination paper on the basis of that objection without going into other objections, notwithstanding that under section 36(2) he has to decide all the objections, is it open to the respondents in the election petition to adduce evidence on those objections ? According to the respondent, it is not, so that if the decision of the returning officer on the objection on which he rejected the nomination paper is held to be bad, the Tribunal has no option but to set aside the election under section 100(1)(c), even though the candidate was, in fact, disqualified and his nomination paper was rightly rejected. Mr. Sinha for the respondent concedes that the result would be anomalous, but he says that the Law of Election is full of anomalies, and this is one of them, and that is no reason for not interpreting the law on its own terms. It is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other not, it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies. Anomalies will disappear, and the law will be found to be simple and logical, if it is understood that when a question is raised in an election petition as to the propriety of the rejection of a nomination paper, the point to be decided is about the propriety of the nomination and not the decision of the returning officer on the materials placed before him, and that decision must depend on whether the candidate is duly qualified and is not subject to any disqualifications as provided in section 36(2) It remains to deal with one more contention advanced on behalf of the respondent, and that is based on the following observations in Hari Vishnu Kamath vs Syed Ahmad Ishaque and others (1): " Under this provision R. 47(4), the Tribunal is constituted a court of appeal against the decision of the returning officer, and as such its jurisdiction must be co extensive with that of the returning officer and cannot extend further. " The argument is that if the jurisdiction of the Tribunal is co extensive with that of the returning officer, then the enquiry before it must be confined to the grounds which were urged before the returning officer. Now, the observations quoted above were made statedly with reference to R. 47, and assuming that they apply to an enquiry under section 100(1)(c), the question still remains, what is the jurisdiction of the returning officer in hearing objections to nomination papers? (31) ; , 1132. 636 His jurisdiction is defined in section 36(2), and the Tribunal must therefore have jurisdiction to decide all the questions which can be raised under that section. The fact that a particular ground which could have been raised was not, in fact, raised before the returning officer does not put an end to his jurisdiction to decide it, and what he could have decided if it had been raised, could be decided by the Tribunal, when raised. Mr. Ganapathy Iyer, learned counsel for the appellant, invited our attention to the decisions of the Election Tribunals on the question whether grounds other than those raised before the returning officer could be put forward in an enquiry in an election petition. They held, with one solitary exception, that it is permissible, and indeed, it is stated in Mengh Raj vs Bhimandas (1) as settled law that the rejection of a nomination paper can be sustained on grounds not raised before the returning officer. If the legislature which must be taken to have knowledge of the law as interpreted in those decisions wanted to make a departure from it, it would have said so in clear terms, and in the absence of such an expression, it would be right to interpret section 100(1)(c) as not intended to alter the law as laid down in those decisions. It is now necessary to refer to the decisions which have been cited before us. In Durga Shankar Mehta 's case (2), the election was to a double member constituency. The appellant who obtained the largest number of votes was declared elected to the general seat and one Vasantarao, to the reserved seat. The validity of the election was challenged on the ground that Vasantarao was below the age of 25 years, and was, therefore, disqualified to stand. The Election Tribunal upheld that objection, and set aside the entire election. The decision was taken in appeal to this Court, and the point for determination was whether the election of the appellant was liable to be set aside on account of the disqualification of Vasantarao. It was held that the matter fell within section 100(2)(c) as it then stood and not under section 100(1)(c), and that the election of the appellant could not be declared void. (1) , 31O. (2) [19551 1 S.C.R. 267. 637 This is not a direct pronouncement on the point now in controversy, and that is conceded. In Vashist Narain Sharma vs Dev Chandra and others (1), a question was raised as to what would be " improper acceptance " within the meaning of section 100; but in the view taken by this Court, no opinion was expressed thereon. The question now under consideration came up directly for decision before the High Court of Rajasthan in Tej Singh vs Election Tribunal, Jaipur (2), and it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one ground by the returning officer was defective on one or more of the other grounds mentioned in section 36(2) of the Act, and that such a plea, if taken, must be enquired into by the Election Tribunal. In Dhanraj Deshlehara vs Vishwanath Y. Tamaskar (3), it was observed by a Bench of the Madhya Pradesh High Court that in determining whether a nomination was improperly rejected, the Election Tribunal was not bound to confine its enquiry to the ground on which the returning officer rejected it, and that even if the ground on which the returning officer rejected the nomination could not be sustained, the rejection could not, be held to be improper if the Tribunal found other fatal defects in the nomination. An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti vs J. V. Narsing Rao (4) has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a nomination paper on grounds other than those which were put forward before the returning officer. We are in agreement with these decisions. As the question has also been raised as to the propriety of interfering in writ petitions under article 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon. The jurisdiction of the High Court to issue writs against orders of the Tribunal is (1) ; (2) [1954] 9 E.L.R.193 (3) (4) Special Appeal No. 1 Of 1957. 638 undoubted; but then, it is well settled that where there is another remedy provided, the court may properly exercise its discretion in declining to interfere under article 226. It should be remembered that under the election law as it stood prior to the amendment in1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under article 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the legislatures for which the election was held would have itself very nearly come to an end thus rendering the proceedings infructuous. A signal example of a case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi and another vs Brijlal Nandlal Biyani and others (1). It is to remedy this defect that the legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under section 116 A, and its intention is ' obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should be set right in an appeal under that section. In this view, it would be a proper exercise of discretion under article 226 to decline to interfere with interlocutory orders. In the result, we allow the appeals, set aside the orders of the court below, and dismiss the writ petitions. filed by the respondent, with costs here and in the court below. Appeal allowed (1) [1055] 2 S.C.R. 428.

The nomination paper of the fourth respondent who was one of the candidates for election to the Legislative Assembly of the State, was rejected by the returning officer on the ground that as he was the Headmaster of a Government aided school he was disqualified under section 7(d) and (e) of the Representation of the People Act, 1951, to be chosen for election. One of the voters of the constituency filed a petition praying that the election of the appellant be declared void under section 100(1)(c) of the Act on the ground that the rejection of the nomination paper of the fourth respondent was improper because the latter had ceased to be a Headmaster at the time of his nomination and that, further, the institution was a private one. The appellant, who was the second respondent in the petition, contended that the nomination paper of the fourth respondent was rightly rejected not only on the ground put forward before the returning officer but also for the reasons that he was interested in Government contracts and that he had agreed to serve as a, teacher under the District Board. The question was whether in an election petition challenging the validity of the rejection of a nomination paper under s: 100(1)(c) of the Act, it was open to the parties to raise grounds 624 of disqualification other 'than those put forward before the returning officer. It was contended for the respondent that the proceedings before the Election Tribunal were really by way of appeal against the decision of the returning officer and that, therefore, the scope of the enquiry in the election petition must be co extensive with that before the returning officer and must be limited to the grounds taken before him. Held, that an election petition is an original proceeding instituted by the presentation of a petition under section 81 of the Representation of the People Act, 1951, and that the jurisdiction which a Tribunal exercises in hearing an election petition even when it raises a question under section 100(1)(c) of the Act is not in the nature of an appeal against the decision of the returning officer. Held, further, that in considering whether a nomination paper was improperly rejected under section 100(1)(c), the real question for decision would be whether the candidate was duly qualified and was not subject to any disqualifications as provided in section 36(2) of the Act. The Tribunal would, consequently, be competent to entertain grounds of disqualification other than those put forward before the returning officer. The expression " improperly rejected " in section 100(1)(c) of the Act, explained. Mengh Raj vs Bhimandas, , Tej Singh vs Election Tribunal, JaiPur, and Dhanraj Deshlehara vs Vishwanath Y. Tamaskar, (1958) 15 E. L. R. 260, approved.

ition (Civil) No. 12847 of 1985 & 1081 of 1987. (Under Article 32 of the Constitution of India). R.B. Mehrotra, Amicus Curiae, Kishan Patnayak in person, and Ranjan Dwivedi for the Petitioners. G. Rath, Advocate General, Orissa, R.K. Mehta, Inderjit Roy, Ms. Mona Mehta, K.R. Nagaraja, and Ms. Madhu Moolchan dani for the Respondents. 60 The Judgment of the Court was delivered by DUTT, J. Writ Petition (Civil) No. 12847 of 1985 has its origin in a letter written by Shri Kishen Pattnayak and Shri Kapil Narayan Tiwary, two social and political workers, addressed to the Hon 'ble the Chief Justice of India. In this letter, they have brought to the notice of this Court the miserable condition of the inhabitants of the district of Kalahandi in the State of Orissa on account of extreme poverty. It is alleged that the people of Kalahandi, in order to save themselves from starvation deaths, are com pelled to subject themselves to distress sale of labour on a large scale resulting in exploitation of landless labours by the well to do landlords. It is alleged that in view of distress sale of labour and paddy, the small peasants are deprived of the legitimate price of paddy and they somehow eke out their daily existence. Further, their case is that being victims of 'chill penury ', the people of Kalahandi are sometimes forced to sell their children. It has been prayed that the State Government should be directed to take immedi ate steps for the purpose of ameliorating the misery of the people of the District of Kalahandi. On receipt of the said letter, this Court directed the same to be treated as a writ petition and it was registered as such. Another writ petition being Writ Petition (Civil) No. 1081 of 1987 has been filed by the Indian People 's Front. This writ petition not only relates to the misery of the people of Kalahandi, but also of the people of another district, namely, the district of Koraput. In this writ petition, it has been alleged that the starvation deaths of the inhabitants of the districts of Koraput and Kalahandi are due to utter negligence and callousness of the adminis tration and the Government of Orissa. It is alleged that the starvation deaths, drought diseases and famine have been the continuing phenomena in the said two districts since 1985. The Government of Orissa has been accused of utter failure to protect the lives of the people of the two districts. The State of Orissa appeared in both these writ peti tions and opposed the same by filing counter affidavits denying the allegations of the petitioners. The State of Orissa filed two statements one dated October 20, 1986 consisting of 160 pages and the other dated December 1, 1986 consisting of 181 pages. In these statements, it has been alleged by the State of Orissa that the State Government has implemented the social welfare measures in the district of Kalahandi. 61 In order to ascertain the correct state of affairs, this Court by its order dated January 16, 1987 requested the District Judge of Kalahandi to enquire as to whether the State Government has, in fact, implemented the social wel fare measures in the district of Kalahandi and whether such measures were adequate to meet the needs of the people there. The learned District Judge was asked to submit a report to this Court. It was further directed by this Court that the learned District Judge, while preparing his report, would consider the feasibility of the implementation of some suggestions made by the petitioners regarding the steps to be taken for the purpose of ameliorating the condition of the people in the said district. The learned District Judge has since submitted his report which runs into 36 1 pages. The petitioners are not at all satisfied with the said report of the learned Dis trict Judge. They have challenged the correctness of facts found by him, particularly with regard to the question of starvation deaths. It has been stated by the learned Dis trict Judge that there was hardly any case of starvation death; on the other hand, there has been implementation by the Government of the social welfare measures. We do not think it necessary to consider the report of the learned District Judge. It is agreed by the parties including Shri Pattnayak, the petitioner No. 1 in Writ Petition No. 12847 of 1985, who has appeared before us in person, that some steps should be taken for the purpose of alleviating the miseries and sorrows of the poor inhabitants of both the said districts. It is not disputed that the people of the districts of Kalahandi and Koraput are very poor and most of them have been living below the poverty line. Although the learned District Judge 's report is against the alleged starvation deaths, we are of the view that the happening of one or two cases of starvation deaths cannot altogether be ruled out. Shri Pattnayak laid much emphasis in his submissions on the duty of the Government to take immediate steps to prevent starvation deaths. He has submitted before us some suggestions in writing, So far as prevention of starvation deaths is concerned, his suggestion are inter alia that the Government should constitute a 11 Member Committee, of which the majority should be social workers, for the purpose of supervising matters arising out of drought and other natural calamities. This committee may be called the Kalahandi Relief Implementation Committee (KRIC). The nonofficial members should not be members of any political party and should belong to well known organisa tions of social work, such as, Sarvodaya Gandhi Peace Foun dation and registered voluntary agen 62 cies, as contained in the State approved list of voluntary agencies. He has also enumerated the duties of the Commit tee. The learned Advocate General of Orissa, appearing on behalf of the State of Orissa, has drawn our attention to paragraph 39 of the Orissa Relief Code which provides as follows: "39. Reports on starvation: (i) In spite of taking adequate precautions in providing relief works for able bodied persons, and gratuitous relief and feeding programmes for those who cannot under take physical labour and other relief meas ures, reports of starvation cases very often appear in the Press. Whenever a report of death due to starvation is published and it comes to the notice of the Collector, he shall immediately cause an enquiry into the allega tion. The enquiry shall be conducted by a gazetted officer in the presence of the Sar panch, Ward Member or some gentlemen of the village and the result of the enquiry reported in the Pro forma in Appendix VI within 48 hours, if possible. The Pro forma is not exhaustive. The Collector should include such other information which he considers necessary to give Government a complete picture of the situation in which the alleged death has taken place. If all the information cannot be col lected forthwith a preliminary report should be furnished immediately to be followed by a complete report soon. (ii) After the receipt of the enquiry report, the Collector shall review the relief measures undertaken in the area and also if he deems proper, may visit the area himself or depute a senior officer to take stock of the situation and be satisfied about the adequacy of labour employment, food position, and other relief arrangements. He should take further steps to alleviate distress in the area as far as possible. In case he considers necessary to further strengthen the relief measures, he shall furnish concrete proposals promptly with necessary justification through the Revenue Divisional Commissioner to the Board of Reve nue/Special Relief Commissioner. " In this connection, we may also refer to paragraph 40 relat ing to 63 verification of Press reports and issue of contradiction, if any. Paragraph 40 reads as follows: "40. Verification of Press reports and issue of contradiction, if any Besides alleging starvation deaths, reports on large scale migration of population on account of lack of work, scarcity of drinking water, outbreak of epidemics etc. appear in the Press very often. The Collector shall take steps to get such reports immediately verified by proper enquiry or otherwise and if found true should take immediate remedial action. Proper publicity relating to the relief measures undertaken should also be given. If on the other hand, the report is found inaccurate, exaggerated or incor rect a contradiction stating the correct facts may be issued by the Collector immediately. Copies of such contradictions should be made available to the higher author ities. " It is apparent from paragraph 39 that ample provision has been made for taking steps as soon as the report of starvation death is published or any starvation death comes to the notice of the Collector. It is also submitted by the learned Advocate General that there is a district level Natural Calamities Committee consisting of the Collector, other officials and the popular representatives like MPs and MLAs of the district, who are required to review the progress of relief work and the measures taken to meet the drought conditions from time to time. He submits that instead of constituting another Com mittee, the Natural Calamities Committee will serve the purpose. Shri Pattnayak also agrees that another separate Committee need not be constituted, but he submits that the Natural Calamities Committee should include at least five non official and non political members belonging to well known organisations of social work, such as, Sarvodaya Gandhi Peace Foundation and registered voluntary agencies, as already suggested by him. The learned Advocate General states that the Government has no objection to induct into the Committee non officials, such as, representatives of the recognised voluntary organisations as suggested by Shri Pattnayak. In the circumstances, we direct the Government of Orissa that it shall, within a month from date, nominate the names of at least five persons belonging to the recognised volun tary organisations like Sarvodaya Gandhi Peace Foundation, Ramakrishna Mission, Bharat Sewa Sangha and registered voluntary agencies as members of the said 64 Natural Calamities Committee of the district. We also accept the suggestion of Shri Pattnayak that the Committee shall hold at least one meeting every two months. The function of the Committee will not be confined only to the cases of starvation deaths, but it shall be responsible for looking after the welfare of the people of the district. We are given to understand that there is also such a dis trict level Natural Calamities committee in the district of Koraput. We make it clear that the Government will also nominate at least five such persons belonging to recognised voluntary organisations within a month from today and the Committee will also perform the same functions. So far as the district of Kalahandi is concerned, it has been urged by the learned Advocate General that the Govern ment of Orissa has already undertaken appropriate measures for mitigating the miseries of the people of that district. The steps which have been taken by the Government may be stated in brief. The State Government has allotted a sum of Rs.8054 lakhs for Kalahandi during the Sixth Plan. The State Government is fully aware of the situation in Kalahandi and constant vigilance is maintained under the direct supervi sion of the Chief Minister to redress the distress of the people. The labour intensive work has been undertaken by the government on a massive scale to provide employment opportu nity to the people of the district of Kalahandi. During the year 1984 85, in areas of acute distress, free feeding pro gramme has been undertaken on a massive scale. During 1987 88 the coverage under the Normal Feeding Programme was 2,12,800 persons. Besides, 1,20,000 persons were also cov ered under the Emergency Drought Feeding Programme covering all the drought affected areas of the district. In 128 Gram Panchayats where crop damage was more than 50%, 1,20,000 persons were covered under the Emergency Feeding Programme during 1987 88. During the current year, preliminary survey indicated that crop damage was likely to occur in 74 Gram Panchayats and, accordingly, 40,000 persons from the said affected areas have been covered under the Emergency Feeding Programme in addition to the Normal Feeding Programme for 2,12,800 persons. Under the Area Development Approach Pro gramme for Total Backwardness Scheme covering certain blocks, about 20,000 persons are being fed under the Feeding Programme. According to the Government, 2,72,000 persons are being covered by the Feeding Programme in Kalahandi district in 1988. Kalahandi is a drought prone district and Government has, according to the learned Attorney General, already taken a number of 65 major, medium and small Irrigation Projects in the said district to provide irrigation facilities for agricultur ists. 485 tube Wells are stated to have been dug as a major source of drinking water in Kalanandi. The Government has also started aforestation programme so as to prevent the recurrence of drought conditions. Much facilities are stated to have been given to the weavers of the district. Elaborate measures have also been taken for ensuring that poor cultivators are not coerced to sell their surplus paddy at a lower rate on account of their poverty. The Orissa Agricultural Produce Marketing Act is being strictly implemented. The entire procurement of paddy has been en trusted to the Food Corporation of India and the State Cooperative Marketing Federation. These two Organisations specialised in such purchases, are possessed of godowns and have their local centres throughout the State for purchase of surplus paddy. The FCI at the request of the State Gov ernment, has established purchase centres at Junagarh, Khariar Road and Kesinga in the district of Kalahandi. The FCI has also made arrangements for direct purchase of paddy at Dharmagarh, Junagarh and Narala. The State Cooperative Marketing Federation has also opened direct purchase centres at Boden and Sinapalli in the district of Kalahandi. Fur thermore, when surplus paddy comes to market, additional purchase centres are provided for purchase of the surplus paddy. The minimum purchase price for paddy is fixed by the Government of India. Adequate funds are provided to the purchasing agents to purchase the surplus paddy at the rates prescribed by the Government. State Government also ensures that unscrupulous traders do not coerce the farmers to sell paddy at a distress price. Assistance to agriculturists is also being given by the Government. Due to drought conditions, the Kharif crop was damaged in some areas of Kalahandi district in 1987 88. To enable cultivators to undertake resowing, Government is stated to have supplied seeds free of cost in mini bags. The measures which have been taken and are being taken, as stated in the written note submitted by the learned Advocate General, have been briefly mentioned. There is no reason not to accept the statements made on behalf of the State of Orissa that the measures, stated above, are being taken for the purpose of mitigating hunger, 66 poverty, starvation deaths, etc. of the people of Kalahandi. If such measures are taken, there can be no doubt that it will alleviate to a great extent the miseries of the people of Kalahandi. Such measures are also being taken in respect of the district of Koraput. The Natural Calamities Committee shall also keep a watch over the working of the social welfare measures which are being taken and may be taken in future. Shri Pattnayak also does not dispute that if such measures are continued to be taken, it will be a great relief to the people of Kalahandi and Koraput. We hope and trust that in view of the prompt action that has been taken by the Government, soon the miseries of the people of these two districts will be over. As prayed for by Shri Pattnayak, the petitioners are granted liberty to mention before this Court, if necessary. The Writ Petitions are disposed of as above. There will be no order as to costs. T.N.A. Petitions disposed of.

Two social workers addressed a letter to this Court bringing to its notice the miserable conditions of the people of the district of Kalahandi in the State of Orissa on account of extreme poverty. The said letter was treated as a writ petition. The petitioners in this petition alleged that in the district of Kalahandi on account of extreme poverty, there are starvation deaths and in order to save themselves from starvation deaths, people are compelled to subject themselves to distress sale of labour and paddy resulting in exploitation of landless labourers, deprivation of legitimate price of paddy to small peasants. It was also alleged that on account of 'chill penury ' people of Kala handi district are even forced to sell their children. In the other writ petition, Indian Peoples ' Front al leged miserable conditions of the people of Koraput district in addition to the Kalahandi district. It was alleged that the starvation deaths, drought diseases and famine have been the continuing phenomenon in the said two districts. The petitioners accused the Government of Orissa of its failure to 58 protect the lives of the people of the two districts of Kalahandi and Koraput and sought directions that the State of Orissa should be directed to take immediate steps to alleviate the miseries and sorrows of the people of the said two districts. With a view to ascertaining the correct state of affairs and to know whether the State has implemented the social welfare measures, and the adequacy of such measures to meet the needs of the people, the Court directed the District Judge of Kalahandi to submit a report. The learned District Judge in its report submitted that the State Government has implemented social welfare measures and there was hardly any case of starvation death. The correctness of the facts found by the District Judge in his report was challenged by the petitioners, particular ly the question of starvation deaths. The petitioners sug gested that for the purpose of supervising relief work, a Committee of 11 member should be constituted comprising members of well known social organisations. On behalf of the State it was stated by the Attorney General that district level Natural Calamities Committees consisting of Collector, Officials, MPs and MLAs are already existing and these Committees review the progress of relief work and the measures taken to meet the drought conditions. It was submitted that members of voluntary social organisa tions can be inducted in these existing Committees instead of constituting a new Committee as suggested by the peti tioners. The attention of the Court was also drawn to para 39 of the Orissa Relief Code dealing with enquiry in cases of starvation deaths and relief measures to be taken in such cases. It was stated that for the purpose of alleviating the miseries and sorrows of the people in the district of Kala handi, State has already undertaken appropriate social meas ures, namely, allocation of Rs.8054 lakhs for Kalahandi during the Sixth Plan, constant vigilance under the direct supervision of the Chief Minister for redressal of the distress of the people, undertaking of massive scale labour intensive work to provide employment, free feeding programme in areas of acute distress, Emergency Feeding Programme in drought affected areas and crop damage areas, undertaking of a number of major, medium and small irrigation projects, digging of tube wells for drinking water, starting affores tation programme to prevent recurrence of drought condi tions, fixation of minimum purchase price for paddy, provid ing adequate funds to purchasing agents to purchase surplus paddy at prescribed rates, direct procurement of entire paddy through Food Corporation of India and State Co opera tive 59 Marketing Federation, strict implementation of the Orissa Agricultural Produce Marketing Act and free supply of seeds to agriculturists in drought affected areas. Disposing these petitions, the Court, HELD: 1. It is not disputed that the people of Kalahandi and Koraput are very poor and most of them have been living below the poverty line. Though the report of the District Judge is against the starvation deaths the happening of one or two cases of starvation deaths cannot altogether be ruled out. [1E F] 2. Paragraph 39 of the Orissa Relief Code makes ample provision for taking steps in case of starvation deaths. [63D] 3. The State Government shall nominate at least S per sons belonging to the recognised voluntary social organisa tion like Sarvodaya Gandhi Peace Foundation, Ramakrishna Mission, Bharat Sewa Sangha and registered voluntary agen cies as contained in the State approved list of voluntary agencies as members of the said existing district level Natural Calamities Committees of the Districts of Kalahandi and Koraput. [64B C] 4. The said Committees shall hold one meeting every two mouths and shall be responsible for looking into the starva tion deaths and the welfare of the people of these dis tricts. These committees shall also keep a watch over the working of the social welfare measures taken and which are likely to be taken by the State Government. [66A, B] The social welfare measures and prompt action taken by Government of Orissa will help in ending the miseries of the people.

ivil Appeal Nos. 2925 26 of 1981 From the Judgment and Order dated 19th December, 1980 of the Delhi High Court in Letter Patent Appeal No. 6 of 1978. M.K. Ramamurthi and P.P. Singh for the Appellants. R.K. Garg, P.H. Parekh and C.V. Subba Rao for the Respondents. The Judgement of the Court was delivered by VENKATARAMIAH, J. Some of the officials who had been directly appointed as Assistants in the Intelligence Bureau of the Government of India in the year 1957 filed a writ petition in the year 1976 in Civil Writ Petition No. 638 of 1976 on the file of the High Court of Delhi questioning the validity of the appointments of certain other Assistants in the Intelligence Bureau of whom some had been appointed prior to 1.2.1954 and the remaining had been appointed or absorbed as Assistants prior to the induction of the writ petitioners into service as Assistants and also the assignment of seniority to them over and above the petitioners in the Writ Petition. The said Writ Petition was dismissed by the learned Single Judge. Aggrieved by the 996 decision of the learned Single Judge, the petitioners in the writ petition filed an appeal in the Letters Patent Appeal No. 6 of 1978 before a Division Bench of the High Court. The Division Bench allowed the appeal, set aside the judgment of the learned Single Judge and held that the posts of Assistants which existed on 1.2.1954 had to be filled by persons who were eligible in terms of Paragraph 15 of the reorganisation Scheme of 1955 effective from 1.2.1954 and that there was infringement of the terms of Paragraph 15 in their cases. The Division Bench also gave some other ancillary directions resulting in the disturbance of the seniority of the respondents who had been working in the Intelligence Bureau. By the date of the said judgment the said respondents had put in more than 25 years of service as Assistants in the Intelligence Bureau. Aggrieved by the decision of the Division Bench, the Union of India as well as the officials, who had been appointed prior to the date on which the writ petitioners were appointed have filed these two appeals by special leave. At the outset it should be stated that it is distressing to see that cases of this kind where the validity of the appointments of the officials who had been appointed more than 32 years age is questioned are still being agitated in courts of law. A Government servant who is appointed to any post ordinarily should at least after a period of 3 or 4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity. It is unfortunate that in this case the officials who are appellants before this Court have been put to the necessity of defending their appointments as well as their seniority after nearly three decades. This kind of fruitless and harmful litigation should be discouraged. The ministerial posts in the Intelligence Bureau were reorganised with effect from 1.2.1954 vide Ministry of Home Affairs Letter No. 40/154/49 P.III dated 17.9.1955. In accordance with the said Scheme the Ministerial Duty Posts were reorganised into following three categories: Category A Administrative Officer and the Assistant Director (Non Police) Category B Superintendents and Assistant Superintendents Categoty C Assistants. 997 All Duty Posts in Category 'C ' were required by that Scheme to be filled by Assistants or U.D.Cs placed in charge of such posts. The posts of Assistants were classified as belonging to Grade IV in the Intelligence Bureau Service. The mode of initial constitution of Grade IV, confirmation of the existing Assistants called 'departmental candidates ' at the initial stage and the future recruitment to Grade IV consisting of Assistants were regulated by Paragraphs 15 and 16 of the said Scheme. The principle of fixation of seniority as laid down in the Ministry of Home Affairs Office Memorandum No. 20/1/40 Ests(S) dated 14.5.1940 was that if a vacancy arose in the cycle meant for a direct recruit, the direct recruit would rank senior to the departmental candidate even though the direct recruit joined the post after the departmental candidates had been promoted and confirmed. This principle of fixation of seniority was subsequently superseded by the Ministry of Home Affairs Office Memorandum No. 30/44/48 Apptts, dated 22.6.1949 which provided that the seniority would be determined on the basis of the length of service. Prior to the reorganisation which came into force with effect from 1.2.1954 the seniority of Assistants in the Intelligence Bureau was fixed on the basis of the 1949 Office Memorandum. Before the reorganisation of the Intelligence Bureau the direct recruitment of Assistants in the Intelligence Bureau was made through the Employment Exchange, advertisements and by inviting applications of persons working in other Ministries etc. The Intelligence Bureau was exempted from making recruitment to its ministerial posts through the Union Public Service Commission in accordance with the Government orders issued from time to time. No direct recruitment was made through the Union Public Service Commission. It was only after the reorganisation of the ministerial posts in the Intelligence Bureau that the Union Government was required to make direct recruitment of Assistants in the ratio of 85% through the Union Public Service Commission and 15% by promotion of U.D.Cs in terms of the said Scheme. The Intelligence Bureau was again exempted from the purview of the Union Public Service Commission since 1969 and now we are told that it conducts its own examination for making recruitment of Assistants directly. The officials who were shown as Respondent Nos. 3 to 9, 12 to 31 and 42 to 49 in the Writ Petition were working as Assistants on 1.2.1954, i.e., the date of the reorganisation of the ministerial posts in the Intelligence Bureau. Respondent Nos. 10 and 11 in the Writ Peti 998 tion were appointed as direct recruits through other sources before the Intelligence Bureau Ministerial Reorganisation Scheme was issued on 17.8.1955. Respondent Nos. 32 to 41, 50 and 51 are those officers who were promoted from the posts of U.D.Cs to the posts of Assistants against 15% quota of promotees prescribed in the reorganisation scheme. The petitioners who had filed the Writ Petition were, however, recruited through the competitive examination held by the Union Public Service Commission in the year 1955 against the 85% quota of direct recruitment provided for in the Scheme and they joined service in 1957. The first draft seniority list of the Assistants was issued in 1958 on the basis of length of continuous service placing the officials who were respondents to the writ petition above the petitioners therein and was duly circulated . No objections were received from the writ petitioners against the seniority assigned to them in the said seniority list. Subsequently, the seniority lists in the Grade of Assistants were again issued in 1961 and 1965 but again no objections were raised by the writ petitioners except petitioner No. 6 who objected to the 1965 list. In 1959 the Ministry of Home Affairs issued another Office Memorandum No. 9/11/55/IPS dated 22.12.1959 in supersession of the 1949 Office Memorandum laying down the principles of fixation of seniority. According to this Memorandum, the seniority was to be fixed on the basis of the date of confirmation as against the 1949 Office Memorandum which laid down that the seniority should be fixed in accordance with the length of service. On the basis of the 1959 Office Memorandum the seniority list as maintained in the Intelligence Bureau up to 1965 was revised in March, 1968. In the revised seniority list the writ petitioners became seniors to many of the departmental Assistants (who had been impleaded as respondents) who had a longer length of service but for one reason or the other had not been confirmed in the said post or were confirmed after the confirmation of the writ petitioners. The 1959 Office Memorandum came up for consideration before the Supreme Court in Union of India & Ors. vs M. Ravi Varma & Ors. ; , In that decision this Court held that the Office Memorandum dated 22.12.1959 had expressly made it clear that the general principles embodied in the annexure thereto were not to have any retrospective effect and in order to put the matter beyond any pale of controversy it had been mentioned that 'hereafter the seniority of all persons appointed in the various Central Services after the date of these instructions should be, determined in accordance with the general principles annexed hereto '. In accordance with the above view this Court held that the seniority of two of the respondents in that case, whose seniority was in issue, had to be 999 determined on the basis of their length of service in accordance with Office Memorandum dated 22.6.1949 and not on the basis of the date of their confirmation because they had been appointed prior to 22.12.1959. Two of the respondents in the writ petition out of which these appeals arise, i.e., respondent Nos. 7 and 36 had also filed writ petitions in the High Court of Andhra Pradesh challenging the seniority list of Assistants in the Intelligence Bureau which had been issued in March, 1968. The Andhra Pradesh High Court by its judgment dated 11.11.1974 on the basis of the decision in Ravi Varma 's case (supra) held that the seniority of respondents 7 and 36 should be fixed on the basis of the 1949 Office Memorandum. On the basis of the judgment in Ravi Varma 's case (supra) and the decision of the High Court of Andhra Pradesh referred to above, the seniority list of the Assistants in the Intelligence Bureau was again revised for correcting the error committed earlier and a draft partial seniority list was issued on 16.6.1975 proposing to revive the earlier list dated 22.12.1958. In this seniority list the respondents in the writ petition, who were working as Assistants at the time of the reorganisation and were governed by the 1949 Office Memorandum were shown as seniors to the petitioners who had filed the writ petition in accordance with the position in the 1958 seniority list. The petitioners filed objections to the said seniority list. Their objections were not accepted and a seniority list was issued in January, 1976 showing the officials who had been impleaded as respondents in the writ petition as seniors to the petitioners in the writ petition. In the writ petition the petitioners questioned the validity of the above seniority list published in January, 1976. The respondents in the writ petition raised a preliminary objection to the writ petition stating that the writ petition was liable to be dismissed on the ground of laches. Although the learned Single Judge and the Division Bench have not disposed of the above writ petition on the ground of delay, we feel that in the circumstances of this case the writ petition should have been rejected on the ground of delay alone. The first draft seniority list of the Assistants was issued in the year 1958 and it was duly circulated amongst all the concerned officials. In that list the writ petitioners had been shown below the respondents. No objections were received from the petitioners against the seniority list. Subsequently, the seniority lists were again issued in 1961 and 1965 but again no objections were raised by the writ petitioners, to the seniority list of 1961, but only the petitioner No. 6 in the writ petition represented against the seniority list of 1965. We have already mentioned that the 1968 seniority list in which the writ petitioners had been 1000 shown above the respondents had been issued on a misunderstanding of the Office Memorandum of 1959 on the assumption that the 1949 Office Memorandum was not applicable to them. The June 1975 seniority list was prepared having regard to the decision in Ravi Varma 's case (supra) and the decision of the High Court of Andhra Pradesh in the writ petitions filed by respondent Nos. 7 and 36 and thus the mistake that had crept into the 1968 list was rectified. Thus the list was finalised in January, 1976. The petitioners who filed the writ petition should have in the ordinary course questioned the principle on the basis of which the seniority lists were being issued from time to time from the year 1958 and the promotions which were being made on the basis of the said lists within a reasonable time. For the first time they filed the writ petition in the High Court in the year 1976 nearly 18 years after the first draft seniority list was published in the year 1958. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the Government servants created by the writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the Government servants there would also be administrative complications and difficulties. Unfortunately in this case even after nearly 32 years the dispute regarding the appointement of some of the respondents to the writ petition is still lingering in this Court. In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches. The facts of this case are more or less similar to the facts in R.S. Makashi & Ors.v. I.M. Menon & Ors., ; In the said decision this Court observed at page 100 thus: "In these circumstances, we consider that the High Court was wrong in over ruling the preliminary objection raised by the respondents before it, that the writ petition should be dismissed on the preliminary ground of delay and laches, inasmuch as it seeks to disrupt the vested rights regarding the seniority, rank and promotions which had accrued to a large number of respondents during the period of eight years that had intervened between the passing of the impugned Resolution and the institution of the writ petition. We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 22, 1968 1001 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition in so far as it related to the prayer for quashing the said Government Resolution should have been dismissed. " We are in respectful agreement with the above observation. We may also refer here to the weighty observations made by a Constitution Bench of this Court in Maloon Lawrence Cecil D 'Souza vs Union of India & Ors., [1975] Supp. S.C.R. 409 at page 413 414 which are as follows: "Although security of service cannot be used as a shield against administrative action for lapse of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult to doubt to guarantee such security in all its varied aspects. It should at least be possible to ensure that matters like one 's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time. " We feel that in the circumstances of this case, we should not embark upon on and enquiry into the merits of the case and that the writ petition should be dismissed on the ground of laches alone. We accordingly allow these appeals, set aside the judgment of the Division Bench of the High Court and dismiss the writ petition filed in the High Court. We also direct that all the promotions made in the Intelligent Bureau shall be reviewed in accordance with the impugned seniority list dated January 28, 1976. There shall be no order as to costs. P.S.S. Appeals allowed.

The Ministry of Home Affairs by its Office Memorandum dated 14th May, 1940 laid down that if a vacancy arose in the cycle meant for a direct recruit, the direct recruit would rank senior to the departmental candidates even though the direct recruit joined the post after the departmental candidate had been promoted and confirmed. This principle of fixation of seniority was subsequently superseded by Office Memorandum dated 22nd June 1949, which provided that the seniority would be determined on the basis of the length of service. Another Office Memorandum issued on 22nd December, 1959, in supersession of the 1949 Office Memorandum laid down that the seniority was to be fixed on the basis of the date of confirmation. Some of the officials, who had been directly appointed as Assistants in a department of the Government of India in the year 1957, filed a writ petition in the High Court in the year 1976 questioning the validity of the appointments of certain other Assistants who had been appointed or absorbed as Assistants prior to the induction of the writ petitioners into service as Assistants, and also the assisgnment of seniority to them over and above the petitioners. The first draft seniority list of the Assistants in that department was issued in 1958 on the basis of length of continuous service placing the officials who were respondents to the writ petition above the petitioners, and was duly circulated. No objections were received from the writ petitioners against the seniority assigned to them in the said seniority list. Subsequently, the seniority lists in the Grade of Assistants were again issued in 1961 and 1965 but again no objections were raised by the writ petitioners. 994 On the basis of the 1959 Office Memorandum the seniroity list, as maintained in the department up to 1965, was revised in March, 1968. In the revised seniority list the writ petitioners became senior to many of the departmental Assistants, who had a longer length of service, but for one reason or the other had not been confirmed in the post or were confirmed after the confirmation of the writ petitioners. Consequent to the decision of this Court in Union of India vs M. Ravi Verma, ; , the said seniority list was again revised in the year 1976 resulting in the respondents in the writ petition, who were governed by the 1949 Office Memorandum, being shown as seniors to the petitioners. The petitioners questioned the validity of the seniority list published in 1976. The respondents in the writ petition raised a preliminary objection to the writ petition stating that it was liable to be dismissed on the ground of laches. The writ petition was dismissed by the Single Judge. The Letters Patent appeal filed by the petitoners was, however, allowed by the Division Bench, without adverting to the ground of delay. The ancillary directions given by the Court resulted in the disturbance of the seniority of the above said respondents, who had been working in the department and on the date of the judgment had put in more than twenty five years of service as Assistants. Allowing the appeals by special leave filed by the Union of India as well as the officials, who had been appointed prior to the date on which the writ petitioners were appointed, the Court, ^ HELD: The High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches. [1000E F] It is essential that any one who feels aggrieved by the seniority assigned to him should approach the court as early as possible, as otherwise in addition to the creation of a sense of insecurity in the minds of the Government servants there would also be administrative complications and difficulties. [1000D E] Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the Government servants created by the writ petitions filed after several years. A Government servant who is appointed to any post ordinarily should at least after a period of 3 or 4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity. [1000C; 996D E] 995 The respondent petitioners should have in the ordinary course questioned the principle on the basis of which the seniority lists were being issued from time to time from the year 1958 and the promotions which were being made on the basis of the said lists within a reasonable time. For the first time they filed the writ petition in the High Court in the year 1976 nearly 18 years after the first draft seniority list was published in the year 1958. The appellants have been put to the necessity of defending their appointments as well as their seniority after nearly three decades. This kind of fruitless and harmful litigation should be discouraged. [1000B C; 996 E F] All the promotions made in the department to be reviewed in accordance with the impugned seniority list of 1976. [1001G] R.S. Makashi & Ors. vs I.M. Menon & Ors., ; and Maloon Lawrence Cecil D 'Souza vs Union of India & Ors., [1975] Supp. SCR 409, referred to.

Appeals Nos. 1845 and 1846 of 1968. Appeals by special leave from the judgment and order dated January 10, 1968 and October 20, 1967 of the Mysore High Court in Writ PetitiOns Nos. 1519 of 1067 and 1216 of 1965 respectively. Jagdish Swarup, Solicitor General of India and section P. Nayar, for the appellants (in all the appeals). section section Javali and M. Veerappa, for respondent No. 1 (in C.As. 184 1 and 1946 of 1968 ). section L. Bhatia for respondents Nos. 1 and 2 (in C.A. No. 50 of 1969. 994 section K. Mehta, K. L. Mehta and K. R. Nagaraja, for the Intervener (in C.A. No. 1845 of 1968). The Judgment of the Court was delivered by Khanna, J. Whether the criterion to determine the seniority of R avi Varma and Ganapathi Kini respondents should be length of service in accordance with the Office Memorandum dated June 22, 1949 issued by the Ministry of Home Affairs, as claimed by the said respondents, or whether it should be the date of confirmation, as claimed by the appellants, is the main question which arises for decision in civil appeals Nos. 1845 and 1846 of 1968 which have been filed by the Union of India and two others by special leave against the judgment of Mysore High Court. Similar question arises in respect of the seniority of Suresh Kumar and Tara Chand Jain, respondents in civil appeal No. 50 of 1969 which has been filed by the Union of India and two others on a ,certificate granted by the Punjab and Haryana High Court against the judgment of that Court reversing in Letters Patent appeal the ,decision of the single judge and issuing a writ in favour of those respondents. The High Court held in all the cases that the seniority of the concerned respondents should be determined on the basis of the length of service in accordance with the above ,mentioned Office Memorandum. Before giving the facts of the three cases, it would be pertinent to refer to two Office Memoranda issued by the Ministry of Home Affairs. One of the memoranda is dated June 22, 1949. It was mentioned in this memorandum that the Government of India had under consideration the question of the fixation of seniority of ;displaced government servants and temporary employees in the various grades. Employees of the Central Government who were displaced from their offices in Pakistan, according to the memorandum, had been absorbed in offices under the control of the same administrative ministry or on nomination by the Transfer Bureau of the Ministry of Home Affairs in other offices. All those persons had been appointed, with a few exceptions, on tem porary basis. The Ministry of 'Home Affairs accordingly conveyed the following decision : "It has now been decided in consultation with the Federal Public Service Commission that the question of seniority in each grade should also be examined in the same context and specific rules suitable for each service prescribed in framing those instructions. The question of seniority of Assistants in the Secretariat was recently examined very carefully in consultation with all the Ministries and Federal Public Service Commis 995 sion and the decisions reached are incorporated in para 8 of the 'Instructions for the initial constitution of the grade of Assistants ' an extract of which is attached. It has been decided that this rule should generally be taken as the model in traming the rules of seniority for other services and in respect of persons employed in any particular grade seniority should, as a general rule, be determined on the basis of the length of service in that Grade irrespective of whether the latter was under the Central or Provincial Government of India or Pakistan. It has been found difficult to work on the basis of 'comparable ' posts or grades and it has there fore been decided that 'Service in an equivalent Grade ', should, generally be defined as service on a rate of pay higher than the minimum of the time scale of the grade concerned. The seniority of persons appoi nted on permanent or quasi permanent basis before the 1st January, 1944 should, however not be disturbed. " Direction was accordingly issued by the Ministry of Home Affairs that the principles given in the Memorandum be borne in mind in determining the seniority of 'Government servants of various categories employed under the Ministry of Finance, etc. ' On December 22, 1959 another Office Memorandum was issued by the Ministry of Home Affairs on the subject of the general principles for determining seniority of various categories of persons employed in Central services. Material part of this memorandum was as under: "The instructions contained in this Ministry 's Office Memorandum No. 30/44/48 Apptts, dated the 22nd June, 1949, were issued in order to safeguard the interests of displaced Government servants appointed to the Central Services after partition. As it was not possible to regulate the seniority of only displaced Government servants by giving them credit for previous service, the instructions were made applicable to all categories of persons appointed to Central Services. The principles contained in the 22nd June, 1949, orders were extended to (i) ex Government servants of Burma appointed to Central Services; and (ii) the employees of former part 'B ' States taken over to the Centre as a result of Federal Financial_ Integration. 996 The instructions contained in this Ministry 's Office Memorandum No. 32/10/49 CS dated the 31st March , 1950 and No. 32/49 CS(C), dated the 20.h September, 1952 similarly regulate the seniority of candidates with war service appointed to the Central Services. The question has been raised whether it is necessary to continue to apply the in structions contained in the Office Memoranda cited above. Displaced Government servants have by and large been absorbed in the various Central Services and their seniority has been fixed with reference to the previous service rend red by them. Similarly, the seniority of ex employees of the Government of Burma and of Part 'B ' States as we I as of candidates with war service has already been determined in accordance with the instructions cited above. As the specific objects underlying the instruction is cited above have been achieved, there is no longer any reason to apply those instructions in preference to the normal principles for determination of seniority. It has, therefore, been decided in consultation with the Union Public Se vice Commission, that hereafter the seniority of all persons appointed to the various Central Services after the date of these instructions should be determined in accordance with the General principles annexed hereto. The instructions contained in the various office memoranda cited in paragrah I above are hereby cancelled, except in regard to determination of seniority of persons appointed to the various Central Services prior to the date of this Office Memorandum. The revised General principles embodied in the Annexure will not apply with retrospective effect, but will come into force with effect from the date of issue of these 'orders, unless a different date in respect of any particulate service/ grade from which these revised principles are to be adopted for purposes of determining seniority has already been or is hereafter agreed to by this Ministry. ', Relevant parts of paragraphs 2, 3 and 4 of the Annexure to this Memorandum were as under : "2 Subject to the Provision of para 3 below, persons appointed in a substantive or officiating capacity to a grade prior to the issue of these general principles shall retain the relative seniority already assigned to them or such seniority as may hereafter be assigned to them under the existing orders applicable to their cases 997 and shall en bloc be senior to all others in that grade. Subject to the provisions of para 4 below, permanent officers of each grade shall be ranked senior to persons who are officiating in that grade. Direct Recruits : Notwithstanding the provisions of para 3 above, the relative seniority of all direct recruits shall be determined by the order of merit in which they are selected for such appointment, on the recomendations of the U.P.S.C. or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection. Ravi Varma, respondent No. 1 in civil appeal No. 1845 of 1968. was appointed as an Inspector in the Central Excise Collectors in Madras on 27 5 47 and was confirmed on 7 4 56. Ganapathi Kini respondent No. 1 in civil appeal No. 1846, was appointed as an inspector in the Central Excise Collectorate in Madras on 28 5 47. In view of the war service rendered by Ganapathi Kini, his service for purposes of seniority was computed with effect from 10 10 46 and he was confirmed on 7 4 56. Ganapathi Kini and Ravi Varma were shown at serial Nos. 115 and 141 in accordance with the length of service in seniority list of inspectors prepared in 1959. Subsequently on the directions of the Central Board of Revenue contained in letter dated October 19, 1962, a revised seniority list was prepared in 1963 by computing seniority from the date, of conifirmation. In the revised list Ganapathi Kini and Ravi Varma were shown at serial, Nos. 149 and 150, junior to persons to whom they had been shown senior in the earlier seniority list. Ganapathi Kini and Ravi Varma thereupon filed petitions under article 226 of the Constitution of India praying for quashing the revised seniority list prepared in 1963. The main ground taken in the writ petitions was that the seniority should be determined according to length of service in terms of Office Memorandum dated June 22, 1949 of the Ministry of Home Affairs. Impleaded in the writ petitions as respondents were the Union of India, the Central Board of Revenue and the Collector of Central Excise as also those inspectors of Central Excise who, according to the petitioners, were junior to them but who on account of being shown senior to the petitioners in the revised seniority list, had been appointed as Senior Grade Inspectors of Central Excise. The above mentioned writ petitions were resisted by the appellants. The learned judges of the Mysore High Court referred to the memoranda dated June 22, 1949 and December 22, 1959 L736SupCI/72 998 and held that the altered rule embodied in the Memorandum dated December 22, 1959 for the determination of seniority would be inapplicable to persons appointed before June 22, 1949 like Ganapathi Kini. Argument was advanced on behalf of the appellants that on July 3, 1957 the Central Board of Revenue had again adopted the rule that the date of the confirmation should form the basis for determination of seniority. This argument did not find favour with the learned judges,and it was observed "But what is however clear is that in the case of a person like the petitioner who was appointed before June 22, 1949 the rule made by the Ministry of Home Affairs on that date was what constituted the basis for the determination of seniority and not the rule which was revived by the Central Board of Revenue on July 3, 1957. " Direction was accordingly issued that Ganapathi Kini 's seniority should be determined on on basis of the formula contained in the Office Memorandum dated June 22, 1949 and the revised seniority list be rectified accordingly. In the petition filed Ravi Varma the High Court made a short order when, after 'referring the decision in the case of Ganapathi Kini, the learned judges granted similar relief to Ravi Varma. Suresh Kumar, respondent No. 1 and Tara Chand Jain, res pondent No ' 2 in civil appeal No. 50 of 1969 were appointed as Lower Division Clerks in the Medical Stores Depot, Karnal under the Directorate General of High Services on October 9, 1950 and November 26 1951 respectively. Both of them were con firmed on March 31, 1960. In the Seniority list which was Prepared in accordance with Office Memorandum dated June 22, 1949 Suresh Kumar and Tara Chand Jain, respondents, were shown at serial Nos. 32 and 34 in accordance with their length of Service. Subsequently Memorandum dated June 19, 1963 Was received from the Directorate General of Health Services in which there was a reference to the Ministry of Home Affairs office Memorandum date December 22, 1959. It was stated in the Memorandum from the Directorate General of Health Services that scheduled castes ' and scheduled tribes candidates who were confirmed in reserved vacancies would rank senior to temporary, including quasi permanent persons irrespective of their position in the seniority list. A revised seniority list was thereafter prepared and a number of scheduled castes candidates who had been recruited later but had been confirmed earlier than Suresh Kumar and Tara Chand Jain were shown senior. Suresh Kumar and 999 Tara Chand Jain were thus shown at serial Nos. 40 and 42 in the revised seniority list Suresh Kumar and Tara Chand Jain thereafter filed petition tinder article 226 and 227 of the Constitution of India for quashing the instructions contained in the Memorandum dated June 19, 1963 issued by the Directorate General of Health Services is well its the revised seniority list and other consequential reliefs. Impleaded is respondents in the petition were the Union or India, the Director General of Health Services, the Deputy Assistant Director General Medical Stores, as well astoother schedule castes employees of the Medical Stores Depot Karnal who had been shown senior to the petitioners in the revised seniority list. The above petitions were resisted by the appellants and were dismissed by the learned single judge. On Letters Patent appeal the judgment of the single judge was reversed and it was held thatSuresh Kumar and Tara Chand Jain having been appointed prior to December 22, 1959 were Governed by the rule of seniority contained in the Office Memorandum dated June 22, 1949 issued by the Ministry of Home Affairs. This position, in the opinionof the learned judges, was not affected by the subsequent OfficeMemorandum issued by the Ministry of Home Affairs. So far asthe Memorandum dated June 19, 1963 issued by the Directorate General of Health Services was concerned, it was found to be not in consonance with the Office Memoranda issued by the Ministry of Home Affairs on June 22, 1949 and December 22, 1959. Assuch the Memorandum issued by the Directorate General of Health Services, according to the learned judges, could not affect the seniority of Suresh Kumar and Tara Chalid Jain. In the result the revised seniority list was held to be invalid and theUnion of India and two other appellants were directed to prepare a revised seniority list in accordance with the original seniority of Suresh Kumar and Tara Chand Jain. The learned Solicitor General on behalf of the appellants has at the outset referred to Memoranda dated June 22, 1949 and December 22, 1959 issued by the Ministry of Home Affairs and has argued that after the issue of the latter Memorandum the seniority of all Central Government employees should be determined by the date of their confirmation and not oil the basis of the length of service. let this connection, we find, that the of a large number of Government employees After the partition of the country from areas now forming part of Pakisthan resulted in a situation wherein the Government had to review the Jules relating to seniority, As most of those displaced Government servants had been employed on temporary, basis and as it was felt that they should be given some weigh@age in the matter of seniority on compassionate grounds, the rule was evolved that the seniority 1000 should be determined on the basis of the length of service in equivalent grades. The seniority of persons appointed on permanent basis or quasi permanent basis before January 1, 1944 was, however, left undisturbed. Further, as it was not possible to regulate the seniority of only displaced Government servants by giving them credit for previous service, the instructions were made applicable to all categories of persons appointed to Central services. Office Memorandum dated June 22, 1949 was consequently issued. The above principles were also extended to other category of Government employees, including those with war service. The matter was reviewed thereafter in 1959. The Government then found that displaced Government servants had by and large been absorbed in the various Central services and their seniority had been fixed with reference to the previous service rendered by them. Same was found to be the position of other Government servants who had been given the benefit of the principles contained in Memorandum dated June 22,.1949. As the objects underlying the instructions of June 22, 1949 had been achieved and it was no longer considered necessary to apply those instructions in preference to the normal principle for determination of seniority, it was decided that the seniority of Central Government employees would henceforth be determined in accordance with the general principles contained in Annexure to the Office Memorandum issued by the Ministry of Home Affairs on December 22, 1959. One ,of those principles was that permanent officiating of each grade would I ranked senior to persons who were, officiating in that grade. The effect of that, as submitted by the learned Solicitor General, was that the seniority was to be determined by the date of confirmation and not on the basis of length of service as was the rule contained in the Office Memorandum dated June 22, 1949. The Office Memorandum dated December 22, 1959, however, expressly made it clear that the general principles embodied in the Annexure thereto were not to have retrospective, effect. In ,order to put the matter beyond any Pale of controversy, it was mentioned that 'hereafter the seniority of all persons appointed to the various Central Services after the date of these instructions should be determined in accor dance with the General principles annexed hereto '. It is, therefore, manifest that except in certain cases with which we are not concerned, the Office Memorandum dated December 22, 1959 and the provisions laid down in the Annexure thereto could not apply to persons appointed to the various Central services before the date of that Memorandum. It may also be mentioned that while dealing with the above Memorandum, this Court in the case of Mervyn Coutindo & Ors. 1001 vs Collector of Customs, Bombay & Ors. (1) observed that these principles were not to apply retrospectively but were given effect to form the date of their issue, subject to certain reservations with which we are not concerned. It has next been argued by the learned Solicitor General that whatever might be the positioned in respect of the employees in other Central services, so far as the clerks, supervisors and inspectors under the Central Board of Revenue were concerned, a decision was taken that for purposes of promotion, the permanent employees should have precedence before nonpermanent employees. Our attention in this connection has been invited to letter dated March 15, 1958 sent by the Central Board of Revenue to all Collectors of Central Excise. In this letter there was a reference to an earlier letter dated July 3, 1957 from the Board and it was mentioned that the instructions contained in the earlier letter that for purposes of promotion from ministerial grade to inspectors grade, permanent clerks would first be considered before considering persons who were non permanent, should be followed in respect of promotions to other grades also. The Solicitor General accordingly contends that the direction contained in the Memorandum dated December 22, 1959 that it could not apply to employees appointed before that date would not hold good in the case of clerks, supervisors and inspectors functioning under the Central Board of Revenue. It is, in our opinion, not necessary to go into this aspect of the matter because we find that the Central Board of Revenue as per letter dated August 27, 1971 addressed to all Collectors of Central Excise, gave fresh instructions regarding the principles of seniority. In this letter there was a reference to the Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs and it was stated : "In supersession of all previous orders on the subject, it has now been decided that in so far as the nongazetted staff in the Central Excise, Customs and Narcotics Departments and other subordinate offices are conceded, the seniority of persons appointed to various posts and services after receipt of these orders should be regulated in accordance with the Ministry of Home Affairs O.Ms. referred to above. " It would follow from the above that so far as the non gazetted staff 1 in the Central Excise, Customs and Narcotics Departments and other subordinate offices of the Central Board of Revenue are (1) [1966]3 S.C.R. 600. 1002 concerned, the question of seniority would have to be decided in accordance with the Office Memorandum dated 19 10 1959. As the said Office Memorandum has, except in certain cases with which we are not concerned, applied the rule of seniority contained in the Annexure thereto only to employees appointed after the date of that Memorandum, there is no escape from the conclusion that the seniority of Ganapathi Kini and Ravi Varma, respondents, who were appointed prior to December 22, 1959, would have to be determined on the basis of their length of service in accordance with Office Memorandum dated Julie 22, 1949 and not on the basis of the date of their confirmation. In civil appeal No. 50 of 1969 the learned Solicitor General has referred to Office Memoranda dated January 28, 1952, April 20, 1961 and March 27, 1963 issued by the Ministry of Home Affairs to show a departure from the rule of seniority for the benefit of members of scheduled castes and scheduled tribes. Office Memorandum dated January 28, 1952 makes provision for communal representation in services for candidates to scheduled castes and scheduled tribes as also the Anglo Indian community. The Memorandum gives a model roster which should be applied in filling the vacancies. Perusal of the Memorandum shows that it relates only to recruitment and has nothing to do with the rule of seniority. Office Memorandum dated April 20, 1961 deals with the ques tion of seniority of direct recruits who were confirmed in an order different from the original order of merit. According to the Memorandum, it often happens that a scheduled caste or scheduled tribe candidate occupying a lower position in the merit list is appointed permanently to a reserved vacancy, while candidates above him in the merit list are not appointed at that time. If such candidates are appointed in the following year, they are note entitled to a higher seniority on the ground that in the previous year they had obtained a higher position in the merit list. It is plain that the above Office Memorandum did not deal with the question of seniority on the basis of length of service as contained in Office Memorandum dated June 22, 1949 but with the question a, to what would be the effect if a direct recruit scheduled caste or scheduled tribe candidate though occupying a lower position in the merit list, is confirmed earlier in a reserved vacancy. We are in the present case not concerned with any merit list nor with any question of seniority based on such a list. As such, Office Memorandum dated April 20, 1961 is also of not any material help to the appellants. It may be stated that the counsel for the appellants in the High Court conceded that the above Memorandum had no direct relevance in the present controversy. 1003 The third Office Memorandum dated March 27, 1963 referred to by the learned solicitor General deals with the subject of maintenance of roster for giving effect to the reservations provided for scheduled castes and scheduled tribes ' in Central Government services. This Memorandum has a bearing only on the question of recruitment and provides no guidelines for determining seniority. We, thus, find that none of the three Office Memoranda relied upon by the Solicitor General is of any material assistance to the appellants. We may now advert to the Memorandum dated June 19, 1963 issued by the Directorate General of Health Services. As? mentioned earlier, it was after the receipt of this Memorandum that the seniority list of class III employees of the Government Medical Stores Depot, Karnal was revised and the seniority was determined on the basis of the date of confirmation and not on the basis of length of service. The above Memorandum from the Directorate General of Health Services expressly refers to the Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs and seeks implementation of that. It is no doubt true that a direction was given in the Memorandum of the Directorate General of Health Services that scheduled caste and scheduled tribe candidates confirmed in reserved vacancies should be ranked senior to temporary, including quasi permanent persons, irrespective of their position in the seniority list, but such a direction went beyond the rule of seniority contained in the, Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs in respect of employees appointed before that date. As mentioned earlier Office Memorandum dated December 22, 1959 did not disturb the, seniority of Central Government employees who had been appointed prior to the date of that Memorandum, except in certain cases with which we are not concerned. It is not disputed that according to the Government of India Allocation of Business Rules, 1961 general questions relating to recruitment, promotion and seniority in Central services like the one with Which we are concerned, have to be dealt with by the Ministry of Home Affiars. As Suresh Kumar and Tara Chand Jain, respondents, were appointed prior to December 22, 1959 their seniority was governed by the rule of length of service as contained in Office Memorandum 1004 dated June 22, 1949 and not by the rule based upon date of confirmation as contained in the Annexure to the Memorandum dated December 22, 1959. Reference was made by the learned Solicitor General to the case of Roshan Lal Tandon vs Union of India(1) wherein it has been laid down that the service rules may be framed and altered unilaterly by the Government. No occasion for invoking the above dictum arises in this case because the learned counsel for the contesting respondents have not questioned the right of the Government to frame and alter unilaterly the service rules. In the result, all the three appeals fail, and are dismissed with costs. One hearing fee. G.C. Appeals dismissed.

In order to provide for the seniority of Central Government servants displaced from Pakistan the Home Ministry by Office Memorandum dated June 22, 1949 laid down that the seniority of all Central Government servants in the same grade shall be governed by the length of their service in that grade. By 1959 the object underlying that memorandum had been achieved. Accordingly by another memorandum dated December 20, 1959 the Home Ministry decided that in respect of persons appointed after that date the general rules annexed to the memorandum shall apply, one of those being that seniority shall be governed by the date of confirmation and not length of service. In 1957 the Central Board of Revenue issued a circular whereby seniority in the offices under it was to be determined on the basis of date of confirmation. In 1962 a revised seniority list of employees under the Central Board of Revenue was prepared on the basis of date of confirma tion. As a result respondents G and R who were Inspectors of Central Excise lost several positions in the seniority. These respondents had been appointed in 1947 and confirmed in 1956. They filed writ petitions in the High Court of Mysore. The High Court held that the memorandum of 1949 applied to their case and their senority must be decided on the basis of length of service and not the date of confirmation. S and T were employees under the Directorate General of Health Services, Government of India. They had joined service in 1950 and 1951 respectively. In the seniority list, which had been prepared on the basis of length of service in accordance with the Office Memorandum ,of 1949 their positions were 32 and 34. Subsquently Memorandum dated June 19 1963 was issued by the Directorate General of Health Services in which it was stated that Scheduled Castes and Scheduled Tribes candidates who were confirmed in reserved vacancies would rank senior to temporary, including quasi permanent persons respective of their positions in the seniority list. As a result of the,application of this principle S and T lost seniority by several positions. They filed writ Petitions in the High Court of Punjab and Haryana. The Single Judge dismissed their petitions but the Division Bench allowed them on the ground that the Memorandum dated June 19, 1963 issued by the Directorate of Health Services was not in consonance with the Home Ministry 's Memoranda 1949 and 1959. Against the judgments of the High Courts the Union of India and others appealed to this Court. Dismissing the appeals, 993 HELD: (1) The office Memorandum dated December 22, 1959 expressly made it clear that the general principles embodied in the annexure thereto were not to have retrospective effect. In order to put the matter beyond any pale of controversy, it was mentioned that "hereafter the seniority of all persons appointed in the various Central Services. after the date of these instructions should be determined in accordance with the General principles annexed hereto". It was therefore, manifest. that except in certain cases with which the present appeals were not concerned laid down in the Annexure thereto could not apply to persons ap sions laid down in the Annexure thereto could not apply to persons appointed to the various central services before the date of that Memorandum. [1000 6] There was thus no escape from the conclusion that the seniority of G and respondents who were appointed prior to December 22, 1959 would have to be determined on the basis of their length of service in accordance with the Office Memorandum dated June 22, 1949 and not on the. basis of date of their confirmation. This position was confirmed by the Central Board of Revenue in its letter dated August 27, 1971 addressed, to all Collectors of Central Excise. [1002 D; 1001 E] Mervyn Coutindo & Ors. vs Collector of Customs, Bombay & Ors. ; , referred to. (ii) It was no doubt true that a direction was given in the Memoran and R respondents who were appointed prior to December 22, 1959 would and Scheduled Tribe candidates confirmed in reserved vacancies should be ranked senior to temporary, including quasi permanent persons irrespective of their position in the seniority list but such direction went beyond the rule of seniority contained in the office Memorandum dated. December 22, 1959 issued by the Ministry of Home Affairs in respect of employees appointed before the date. It was not disputed that according to the Government of India allocation of Business Rules, 1961 general questions relating to recruitment promotion and seniority in Central ' services had to be dealt with by the Ministry of Home Affairs. As S and. T respondents were appointed prior to December 22, 1959 their seniority was governed by the rule of length of service as contained in the Annexure to the Memorandum dated December 22, 1959. [1003 E H]

ivil Appeal Nos. 2635 38 of 1985. From the Judgment and Order dated 30.10.1984 of the Andhra Pradesh High Court in R.P. Nos. 1998, 2065, 2085 of 1980 and 624 of 1982. S.N. Kacker, A. Subba Rao, B. Sudharshan Reddy, Ramesh M. Keshwani and K. Ram Kumar for the Appellants. Chella Seetharamiah, M.K. Ramamurthy, Ms. C.K. Sucharita, K. Rajendra Choudhary and K. Shivraj Chowdhary for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. The appeals are by special leave and are directed against the judgment of the Andhra Pradesh Administrative Tribunal in a group of representation petitions while the writ petitions are under Article 32 of the Constitution, Writ Petition 72 of 1121 1987 being by promotee Deputy Tehsildars and Writ Petition 241 of 1987 being by another group of Deputy Tehsildars promoted by transfer. The background of the litigations may now be indicated. A set of rules regarding recruitment of Deputy Tehsildars was in force in the erstwhile State of Madras which continued to apply to Andhra Pradesh until in 1961 the Andhra Pradesh Revenue Subordinate Service Rules (hereinafter referred to as the 'Special Rules ') were brought into force. The cadre under the Special Rules consisted of Deputy Tehsildars only. Rule 3 provided: "3. Appointment: (a) Appointment to the category of Deputy Tehsildars in this service shall be made: i) by direct recruitment, or ii) by transfer from members of the Andhra Pradesh Ministerial Service employed in the Revenue Department including the Office of the Commissioner of Land Revenue, Revenue Settlement parties and the office of the Director of Settlements Survey and Land Records. (b) Substantive vacancies in the category of Deputy Tehsildars shall be filled or reserved to be filled by direct recruitment and recruitment by transfer in the porportion of 1:1". Some directly recruited Deputy Tehsildars during the years 1962 and 1963 moved the Andhra Pradesh High Court in Writ Petition No. 1502 of 1971 disputing the seniority over them assigned to a group of promotees. They alleged that though they had completed their probation long prior to the Upper Division Clerks who were appointed by transfer as Deputy Tehsildars and had become full members of the service upon confirmation in their posts while none of the Upper Division Clerks appointed by transfer had become full members, yet the directly recruited Deputy Tehsildars had been treated as junior and their claim to promotion as Tehsildars was being overlooked. A learned Single Judge of the High Court dismissed the writ petition by holding that there was no foundation for the grievance of the directly recruited Deputy Tehsildars and that they had no cause of action within the frame of the rules. The decision of the learned Single Judge was upheld in appeal by a Division Bench. Support for that position 1122 was derived from Rule 33(a) of the Andhra Pradesh State and Subordinate Services Rules, 1962 (hereinafter referred to as the 'General Rules '). A special leave petition was filed before this Court against the appellate decision of the High Court. On 9th October, 1980, the State Government amended Rule 4(e) of the Special Rules with retrospective effect from 12th of October, 1961 in the manner indicated below: "In sub rule (e) of Rule 4 of the said Rules, for the words 'The seniority of the Deputy Tehsildar shall be determined with reference to the date of allotment maintained and the ranking assigned to him by the Andhra Pradesh Public Service Commission in the merit list of that selection ', the following shall be substituted, namely, 'the inter se seniority between the direct recruits to the category of Deputy Tehsildars and the promotees to the category of Deputy Tehsildars shall be determined from the date of their confirmation in the substantive vacancy in that category in the proportion of 1:1 as provided in sub rule (b) of Rule 3. " A group of promotees who are appellants in the civil appeals went before the Andhra Pradesh Administrative Tribunal questioning the validity of the aforesaid amendment with particular emphasis on its retrospective application. The Tribunal referred the matter to a three Judge Bench thereof. Before the Tribunal, it was canvassed on behalf of the appellants that the prevailing rule regarding seniority was in Rule 33 of the General Rules and in the absence of any provision in the special Rules, the principle in Rule 33 was applicable for determining inter se seniority in the cadre of Deputy Tehsildars. The claim of the direct recruits had been negatived by the High Court and the dispute was pending decision of this Court. There was no scope for the State Government to amend the Rules in 1980 to the prejudice of the promotees. Even if Government wanted to change their policy regarding determination of inter se seniority, it should have been made applicable prospectively and that the seniority already determined on the basis of Rule 33 of the General Rules should not have been disturbed. The determination of seniority on the basis of the date of confirmation worked out prejudice for the promotees. The Tribunal examined the matter at length and came to the following conclusion: "As a quota rule has been provided in the Special 1123 Rules relating to the recruitment of Deputy Tehsildars from two sources, after recruitment there is an imperative need to integrate the aforesaid two sources. After integration necessity arises for fixing inter se seniority of persons who have come from the two different sources for facilitating promotions to the next higher posts. There being no rule of relative seniority between direct recruits and rank promotees, and the General Rule 33(a) being incapable to bring integration, Government have rightly felt to enact a rule for integration of the two sources in one cadre and fixation of inter se seniority among members drawn from the said two sources. Confirmation adopted as the formula for determination of inter se seniority is constitutionally valid. There is no question of any discrimination in laying down a rule of seniority based on the principle of confirmation. The promotee Deputy Tehsildars not having been recruited against the substantive vacancies have not acquired any vested interest so as to be protected against the impugned rule of seniority. Their inter se seniority in the class of temporary Duputy Tehsildars against the nonsubstantive posts, evidently, determined under General Rule 33(a) remains unaffected by the impugned seniority rule. Thus, the said rule does not offend Articles 14 and 16 of the Constitution. It is free from any vice what so ever and cannot therefore be assailed. The General Rule 33(a) is incapable of determination of inter se seniority between direct recruits and promotee Deputy Tehsildars despite the fact that the promotees belonging to the latter class are approved probationers and their recruitments are regular to the category of Deputy Tehsildars. Since their posts are outside the permanent cadre, they cannot bring their seniority in the category of Deputy Tehsildars into the permanent cadre and press it against the direct recruits who are members of the permanent cadre from the beginning. The seniority between them (after judgment) and the direct recruits shall be determined on the basis of the impugned rule of seniority, which, according to us is a valid enactment. The Government shall now proceed to determine the seniority accordingly. " These directions of the Tribunal are assailed in appeal before this Court. 1124 Writ Petition No. 72 of 1987 is by 17 promotees during the period 1966 to 1971 while Writ Petition No. 241 of 1987 is by 21 Deputy Tehsildars promoted by transfer from the posts of Upper Division Clerks also during the same period. The cadre does not have a prescribed strength and temporary appointments seem to have become the rule as the history of the service shows. Even though the ratio of 1:1 is prescribed in regard to the substantive vacancies, direct recruitments were made only in the years 1963, 1964, 1965 and 1966 and for a decade to follow there was no direct recruitment. When demand for more hands in the category of Deputy Tehsildars became pressing supernumerary posts were created from time to time and such posts were filled up by promotion. Rule 33(a) of the General Rules dealing with seniority, as far as relevant, provides: "The seniority of a person in service, class, category or grade shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade . . . " Relying upon this provision, seniority was being determined of promotees without taking into account the fact that there had been intervening reversions to the lower posts from which promotion to the post of deputy Tehsildar had been granted. The legal position is well settled that the State is entitled to prescribe the manner of computing inter se seniority and in the absence of such prescription length of service is the basis. A series of recent decision of this Court has made that position certain. Rule 33 of the General Rules contains prescription regarding seniority and has different provisions to meet varying situations. Sub rule (a) which provides that seniority of a person is to be determined "by the date of his first appointment to such service" has obviously been mis interpreted on account of the presence of the words 'unless he has been reduced to a lower rank as a punishment '. It could not be the intention of Rule 33(a) to compute seniority from the date of first appointment even though it was not a continuous one. For instance, a person is appointed to the post of Deputy Tehsildar on promotion on 1st of January, 1970 and is reverted to the lower post, not by way of punishment but on account of exigencies of service or otherwise, on 31st of March, 1970. He is again promoted to that post on 1st January, 1980 and continues 1125 to hold that promotional post. Another person is promoted to the post of Deputy Tehsildar on 1st April, 1970 and continues to hold that post without break. If the interpretation adopted by the State Government of Rule 33(a) is accepted, it would mean that the first person on account of having been first appointed on an earlier date to the promotional post would rank senior to the second person. This obviously could not have been the intention of the rule. It is appropriate to interpret that rule to mean that the date of first appointment is intended to refer to continuous appointment only and the words 'unless he has been reduced to a lower rank by way of punishment ' are really redundant. We are aware of the fact that this rule has been widely applied for determining inter se seniority and in case challenge to fixation of inter se seniority is permitted to be raised on what we have stated above, limitless litigation would crop up. We would, therefore, make it clear that the interpretation which we now give of this rule shall have prospective application and unless there be any litigation already pending challenging the interpretation of this rule no new litigation would be permitted on that score. We have already pointed out that the law is that it is open to the State to provide a rule for determining inter se seniority. Rule 4(e) of the Special Rules before amendment in 1980 had provided that the seniority of Deputy Tehsildars would be determined with reference to the date of allotment maintained and ranking assigned by the Andhra Pradesh Public Service Commmission in the merit list of the particular selection. That obviously was confined to inter se seniority of direct recruits and did not cover inter se seniority between recruits of the two sources. Therefore, the General Rules had been relied upon. In 1980, by the impugned amendment to Rule 4(e) of the Special Rules, the State Government prescribed the manner of providing inter se seniority among the recruits of the two categories. The amended rule provided the date of confirmation in the substantive vacancy as the basis. Rule 3(b) fixed the reservation of direct recruits with reference to substantive vacancies at 50% and Rule 4(e), therefore, made provision with reference to the seniority in the substantive vacancies with reference to the date of confirmation. The amendment in terms is within the competency of the State Government and is not open to challenge. This is a rule made under the proviso to Article 309 of the Constitution and as settled by this Court in exercise of that power the rule can be given retrospective operation. The impugned amendment has been given retrospective operation from 12th October, 1961. From the judgment of the Tribunal we find that the authority of the State Government to make a rule for future application was not seriously 1126 disputed but what was assailed was the retrospectivity given to the amendment. Indisputably many of the promotees on the basis of seniority already assigned to them have been holding posts of Tehsildars, Deputy Collectors and Special Grade Deputy Collectors. Many have retired from service having enjoyed those promotional benefits. Promotions between 1961 and 1971 on the basis of the seniority assigned under Rule 33(a) of the General Rules is under challenge. That period is a distant one from now varying between 17 to 27 years. To allow the amendment to have retrospective operation is bound to create problems. The State Government while amending the rule should have taken into consideration the practical problems which would arise as a consequence of retrospectivity. It should have taken into account the far reaching adverse effect which the rule, if given such retrospective effect, would bring about in regard to services of scores of employees and the disquiet it would result in by disturbing settled situations. We are, therefore, not of the view that the rules should be given retrospective effect from 1961. It would, however, be wholly justified and appropriate to give the rules prospective operation by fixing 9th October, 1980 as the date from which it should take effect. We accordingly direct that Rule 4(e) as amended on 9th October, 1980, shall not have any retrospective effect and would operate prospectively. Though Rule 3(b) fixes the ratio as 1:1 in respect of substantive vacancies, the recruitment has not been regular and systematic. We have come across several instances where the State Government do not take steps to give effect to their own rules and, therefore, though there is one mode of prescription, in action a different situation is brought about. Rules have binding effect and they bind the State and the citizens alike once they are in force. In order that law may regulate conduct, the State has to feel bound by its own laws and by willingly abiding by the law exhibit an ideal situation for the citizens to emulate. We disapprove of the callous conduct of the State and direct that the rule shall henceforth be followed scrupulously by effecting recruitment at regular intervals according to the scheme of the rule. The State shall within four months from today compute the substantive vacancies in the cadre and determine the quota of direct recruits to the rank of Deputy Tehsildars and after working out the vacancies available to be filled by the direct recruitment on the basis of 50 per cent of the total number, fill up the same by making direct recruitment within a period of four months thereafter. Once that is done and regular recruitment is effected, the impasse which has now been created would not continue. 1127 The State is directed to draw up the seniority list on the basis of rule 4(e) on or before 31st December, 1988. We have given a long time to eliminate the scope for making for an application for extension. The Civil Appeals are dismissed. The Writ Petitions shall have also the same fate except to the extent that Rule 4(e) as amended shall have prospective application. In the Civil Appeals we leave the parties to bear their own costs throughout. There would be no order for costs in the Writ Petitions. G.N. Appeals and Petitions dismissed.

% In 1961 the Andhra Pradesh Revenue Subordinate Services Rules were brought into force, the cadre under the rules being Deputy Tehsildars. Till then the rules in force in the erstwhile State of Madras were applicable to Andhra Pradesh. Rule 3 of the 1961 Rules provides for appointment of Deputy Tehsildars by direct recruitment or by transfer from members of the Andhra Pradesh Ministerial Service employed in the Revenue Department. It also provides that the substantive vacancies in the category of Deputy Tehsildars shall be filled or reserved to be filled by direct recruitment and recruitment by transfer in the proportion of 1:1 A writ petition was filed before the Andhra Pradesh High Court by some direct recruit Deputy Tehsildars disputing the seniority over them assigned to a group of promotees. The Single Judge dismissed the same holding that the petitioners had no casuse of action within the frame of the rules. This was upheld by the Division Bench, deriving support from Rule 33(a) of the Andhra Pradesh State and Subordinate Services Rules 1962. Against this a Special Leave Petition was filed before this Court. Meanwhile, the State Government amended Rule 4(e) of the Andhra Pradesh Revenue Subordinate Service Rules to the effect that the inter se seniority between direct recruits to the category of Deputy Tehsildars and promotees to the category of Deputy Tehsildars shall be 1119 determined from the date of confirmation in the substantive vancancies in that category in the proportion of 1:1 as provided in sub rule (b) of Rule 3. The validity of the amendment was questioned by a number of promotees (the appellants herein) before the State Administrative Tribunal with particular emphasis on its retrospective application. The Tribunal examined the matter at length and upheld the validity of the enactment. It also directed the State Government to proceed to determine the seniority accordingly. The said directions of the Tribunal are assailed in the appeals by Special Leave and the Writ Petition filed in this Court. Dismissing the appeals, and the writ petitions, this Court, ^ HELD: 1.1 The State is entitled to prescribe the manner of computing inter se seniority and in the absence of such prescription, length of service is the basis. Rule 33 of the Andhra Pradesh State and Subordinate Services Rules, 1962 contained prescription regarding seniority and has different provisions to meet varying situations. Sub rule (a) thereof which provides that seniority of a person is to be determined "by the date of his first appointment to such service" has obviously been misinterpreted on account of the presence of the words "unless he has been reduced to a lower rank as a punishment". It is appropriate to interpret that rule to mean that the date of first appointment is intended to refer to continuous appointment only and the words "unless he has been reduced to a lower rank by way of punishment" are really redundant. This interpretation will have prospective application, as otherwise limitless litigation would crop up. [1124F G; 1125C] 1.2 Rule 4(e) before amendment in 1980 provided that the seniority of Deputy Tehsildars would be determined with reference to the date of allotment maintained and ranking assigned by the Andhra Pradesh Public Service Commission in the merit list of the particular selection. That was confined to inter se seniority of direct recruits and did not cover inter se seniority between recruits of the two sources. In 1980, Rule 4(e) was amended and the State Government prescribed the manner of providing inter se seniority among the recruits of the two categories. The amended rule provided the date of confirmation in the substantive vacancy as the basis. Rule 3(b) thereof fixed the reservation of direct recruits with reference to substantive vancancies at 50% and Rule 4(e) made provision with reference to seniority in the substantive vancancies, with reference to the date of confirmation. The amendment is within the competency of the State Government and is not open to challenge. This is a rule made under the proviso to Article 309 of the 1120 Constitution and the rule can be given retrospective operation. But the State Government, while amending the rule, should have taken into consideration the practical problems which would arise as a consequence of retrospectivity. To allow the amendment to have retrospective operation is bound to create problems. Hence Rule 4(e) as amended on 9th October, 1980, shall not have retrospective effect and would operate prospectively. [1125D G; 1126A, E] 2. Though Rule 3(b) fixes the ratio as 1:1 in respect of substantive vacancies, the recruitment has not been regular and systematic. Rules have binding effect and they bind the State and the citizens alike once they are in force. In order that law may regulate conduct, the State has to feel bound by its own laws and by willingly abiding by the law, exhibit an ideal situation for the citizens to emulate. The rule shall henceforth be followed scrupulously by effecting recruitment at regular intervals according to the scheme of the rule.[1126E G] [The State Government has been directed to determine the vancancies available to be filled by direct recruitment within four months and to fill up the same within four months thereafter and to draw a seniority list on the basis of rule 4(e) on or before 31.12.88.]

Civil Appeal No. 924 of 1970. Appeal by special leave from the Judgment and order dated 19 10 1977 of the Punjab and Haryana High Court in Civil Writ Petition No. 3219/77. Appellant in person. H.S. Marwah, R.N. Sachthey and A. Sachthey for the Respondent. The Judgment of the Court was delivered by FAZAL ALI, J. This appeal by special leave is directed against the judgment of the Punjab & Haryana High Court dismissing the Writ Petition filed by the appellant against the order of his termination passed by the Senior Superintendent of Police. The appellant was appointed on 2 7 1973 as a temporary Assistant Sub Inspector of Police. On 26 9 1977, his services were terminated by the Senior Superintendent of Police. Against this order, the appellant moved the High Court of Punjab & Haryana but his petition was rejected. Thereafter, he came to this Court and after obtaining special leave from his Court, the appeal has been placed before us for hearing. The short point taken by the appellant in this appeal is that under Rule 12.8(1) of Punjab Police Rules, the petitioner must be considered to be on probation for a period of three years and as the appellant has crossed this period or three years, he must be deemed to have been confirmed and, therefore, his services could not be terminated. In support of this submission, reliance is placed by the appellant on a Division Bench Judgment of this Court in case of The Superintendent of Police, Ludhiana and Anr. vs Dwarka Das etc. Where Shinghal J. speaking for the Court observed as follows: "So if Rules 12.2(3) and 12.21 are read together, it will appear that the maximum period of probation in the case of a police officer of the rank of constable is three years, for the Superintendent of Police concerned has the power to discharge him within that period. lt follows that the power of discharge cannot be exercised under Rule 12.21 after the expiry of the period of three years. " It is true that the observations made by this Court support the contention of the appellant to all extent. But in our opinion, the 489 Division Bench decision was not correctly decided as it has not considered the Five Bench decision of this Court in case of State of Punjab vs Dharam Singh where after considering the number of cases, the Court observed thus: "This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the past after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. Tn such a case an express order of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified period or probation it is not possible to hold that he should be deemed to have been confirmed. The reason for this conclusion is that where on the completion of the specified period of probation the employee is allowed to continue in the post without an order of confirmation, the only possible view to take in the absence of anything to the contrary in the original order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication." In the instant case, the appellant was appointed purely on a temporary basis and not on probation and, therefore, Rule 12.8 which deals with officials who are appointed on probation does not apply to this case at all. It is well settled that a person is appointed on probation only if he is appointed against a substantive vacancy. In the instant case, it is not disputed that the appellant was appointed only against a temporary vacancy. Assuming, however, that Rule 12.8 of the Punjab Police Rules applies to the appellant 's case and he is governed by Rule 12.8 even after the probation of three years is over, the police officer shall not be deemed to be confirmed unless there is any rule which provides that in absence of an order of confirmation at the end of the probation? the employee must be presumed to be confirmed. There is no such provision in the present rules. In these circumstances, therefore, as held by this Court in the case of Dharam Singh, it must be held that if no express order of confirmation was 490 passed after the appellant completed three years, it must be presumed that his probation was extended. In this view of the matter, as the appellant was a temporary hand, the services could be terminated at any time. It appears that the attention of this Court is Dwarka Das 's Case was not drawn to the case of State of Punjab vs Dharam Singh (supra) which has been decided by a larger Bench and therefore, the later decision rendered by this Court in Dwarka Das is directly opposed to the view taken by the larger Bench and must, therefore, be overruled. For these reasons, therefore, we are unable to find any legal error in the order passed by the Senior Superintendent of Police in terminating the services of the appellant The appeal is accordingly dismissed. A request has been made by the appellant that he may be allowed to retain the Govt. quarter which has been allotted to him for some time so as to enable him to find alternative accommodation. Mr. Marwah, Counsel for the State, has no objection if a reasonable time is given to the appellant for this purpose. We, therefore, give three months ' time to the appellant to vacate the government quarter allotted to him on his furnishing an undertaking to the Sr. Supdt. of Police.

The services of the appellant, who was appointed as an Assistant Sub Inspector of Police on July 2, 1973 were terminated in September 1977. The High Court rejected his petition impugning the order of termination of his services. In appeal to this Court it was contended that on completion of the three year period of probation in accordance with r. 12.8(1) of the Punjab Police Rules the appellant should be deemed to have been confirmed in the post and that the order terminating his services was illegal. Dismissing the appeal, ^ HELD. : There is no legal error in the order passed by the Senior Superintendent of Police terminating the appellant 's services. [490C] 1. It is well settled that a person is appointed on probation only when he is appointed against a substantive post. The appellant, having been appointed against a temporary vacancy, was not on probation. Rule 12.8, which deals with officials appointed on probation, does not apply to this case. [489 F G] 2. Assuming that r. 12.8 was applicable, the officer could not be deemed to be confirmed unless there is any rule providing that, in the absence of an order of confirmation at the end of the probation, the employee must be presumed to be confirmed. There is no such provision in the present rules and hence the period of probation must be presumed to have been extended. in the State of Punjab vs Dharam Singh, ; this Court held that when a first appointment is made on probation for a specific period a and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation he should be deemed to continue in his post as a probationer only in the absence of any indication to the contrary in the original order of appointment or the Service Rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post. [489B C] In the instant case since no order of confirmation had been passed after the appellant completed three years, it must be presumed that his probation had been extended 488 State of Punjab vs Dharam Singh [1968] 3 SCR applied. Supdt. of Police Ludhiana and Anr. vs Dwarka Das etc. ; over ruled.

Civil Appeal No. 35 of 1982 Appeal by Special leave from the Judgment and order dated the 9th July, 1981 of the Gujarat High Court in Income Tax Reference No. 28 of 1980. P,H. Parekh, Harish Salva and Gatutam Philip for the Appellant. 495 S C. Manchanda Anil Dev Singh and Miss A. Subhashini for the Respondent. The Judgment of the Court was delivered by AMARENDRA NATH SEN, J. The principal question for decision 5 in this appeal by Special Leave is whether the father in exercise of his right as Patria Potestas or otherwise can effect a partial partition between himself and his minor sons of joint family properties of a Hindu joint family governed by the Mitakshara School of Hindu Law. The assessee, a Hindu undivided family (hereinafter referred to as H.U.F.), which consists of four members, namely,(l) Shri Apoorva Shantilal Shah, 2) his wife Smt. Karuna and their minor sons (3) Chintan and 4) Tejal, is the appellant before us. The members of the H.U.F. are governed by the Mitakshara School of Hindu Law. The D assessment year in question is the year 1975 76. During the assessment pertaining to the assessment year under consideration, Shri Apoorva who is the father of the minor sons and husband of Smt. Karuna and the Karta of the H.U.F. made an application to the Income Tax officer for recognising partial partition under section 171 of the Income Tax Act, 1961 (hereinafter referred to as the Act), claiming that two partial partitions bad taken place amongst the members of the said family, one on 24.12.1973 in respect of 200 shares of Gujarat Steel Tubes Ltd. and the other on 29.12.1973 in respect of 1777 shares of the same company. On enquiry the Income Tax officer (hereinafter for the sake of brevity referred to as I.T.O.) found that the partial partitions had been embodied in memoranda of agreements of partition. The I.T O. however, refused to record that there had been a partial partition of joint family properties, as he was of the view that partial partitions in question could not be recognised inasmuch as the remaining shares, after making certain allocations in favour of the two minor sons were not allotted in their entirety to the remaining third coparcener, namely, Shri Apoorva separately or to Shri Apoorva and his wife Karuna jointly, describing them as members of the H.U.F. The I.T.O. further held that the said partitions did not purport to have been made at the distance of the minor children, as this course would require the approval of the Court but the same had been purported to 496 have been made at the instance of Shri Apoorva. The I.T.O. hinted in the order that the distribution of the shares had not been made equally either amongst the three members including the two minor sons or amongst the four members of the H.U.P., as Apoorva 's wife Karuna also became entitled to an equal share on partition between the father and the sons. Against the order of the I.T.O. the assessee H.U.F. presented an appeal before the Appellate Assistant Commissioner (hereinafter referred to as A.A.C. for the sake of brevity). The A.A.C. allowed the appeal and held that there had been genuine partial partitions between the coparceners in respect of the said shares. The A.A.C. held that it was not necessary to obtain court 's sanction even in a case where some of the parties to the partition were minors. As regards the print that the distribution of shareholding had not been made on equal basis, the A. A.C., taking into consideration some earlier partitions, came to the ' conclusion that the distribution had been equally made. The A.A.C. further observed that even if the distribution had not been made on equal basis that would not affect the validity of the partitions in question and the minor sons, if they felt aggrieved in this regard, could on attainment of majority seek to avoid the said partitions. Aggrieved by the order of the A.A.C., the Revenue went up in appeal to the Income Tax Appellate Tribunal (referred to as tribunal hereinafter for the sake of brevity) to challenge the A.A.C 's recognition of the said partitions. The Tribunal held for reasons recorded in the order that partial partitions in the instant case were outside the framework of the Hindu Law and as such they could not be recognised as valid for the purposes of section 171 of the Act. In that view of the matter the Tribunal set aside the A.A.C 's order and restored the order of the I.T.O. Under section 256 (1) of the Act, the Tribunal referred the following question to the High Court: (1) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that Shri Apoorva Shanti1al could not himself have given consent on behalf of his minor sons to the partitions proposed by him in his individual capacity as father ? 497 (2) Whether on the facts and in the circumstances of A the case, the Tribunal was right in holding that the partial partitions were outside the framework of Hindu Law ? (3) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the partial partitions could not be recognized as valid for the purpose of section 171 of the Income tax Act, 1961 ? (4) Whether on the facts and circumstances of the case, the Tribunal was right in holding that partial partitions made by a Hindu father in exercise of his patria potestas cannot be recorded as a valid partitions under section 171 of the Income tax Act, 1961 ? (5) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the partial partition did not amount to a family arrangement in which the father acted as a natural guardian of the two minors sons after he had exercised his patria potestas ? (6) Whether the Income tax Department ;9 competent to challenge the exercise of patria potestas by a Hindu father in respect of coparcenery property, making a partial 1 partition ? For reasons recorded in the judgment the High Court answered all the questions in the affirmative and against the assessee. The High Court in its judgment has held that the father under the Hindu Law has no power or authority to effect any partial partition of Joint family properties between himself and his minor sons. The High Court has observed that apart from the decision of the Madhya Pradesh High Court in the case of Commissioner of Income tax vs Seth Gopaldas H.U.F (1) there was no decision of any court on the point. The High Court also considered other decisions and books and C ' treatises on Hindu Law. The High Court held that on a consideration of the authorities, the following propositions were established : 1. From the stand point of ancient Hindu Law, what was recognised was only a partition in respect of all the 498 properties of the H.U.F., upon disruption of the status of H.U.F. regardless of whether the properties were actually divided by metes and bounds or whether these were there after (after disruption of joint status) held as tenants in common. Partial partition in the sense of division in respect of part of the assets while continuing the status of HUF in respect of rest of the assets was not known to the ancient Hindu Law and was not recognised by ancient Hindu Law 3. Partial Partition in the sense of division of some of the properties whilst continuing the status of HUF in respect of other items of property originally belonging to the HUP came to be recognised only later on by evolution of custom and by judge made law. Such a partial partition was so recognised only if it was made by consent of all the coparceners. In other words, partial partitions in respect of only some items of property whilst continuing the status of HUF in respect of rest of the items of property could be effected only with the consent of all the coparceners. When there was a disruption of the status of the HUF only one or more of the coparceners could not insist for division of some items of the property without effecting division in respect of all the items of properties except by consent of all the coparceners. Tn respect of a joint family consisting of a father and his sons, the traditional Hindu Law recognised the right of a father in his capacity as patria protestas to exercise his extraordinary power to disrupt the status of HUF and to divide his sons inter se without their consent subject to the rider that 'all ' assets of the HUF were subjected to partition. The aforesaid extra ordinary power is subject to the qualification that he gives to his sons an equal share and division is not unfair (vide Gupte 's Hindu Law 2nd Edn., Page 259). "The Power of the father to sever the sons inter se is a survival of the patria potestas and may be exercised 499 by him without the consent of his sons '. "Again, in all A cases his power must be exercised by him bonafide and in accordance with law; the division must not be unfair and the allotment must be equal. He must give his sons equal share with himself " 7. There is nothing in (I) either ancient Hindu Law or (2) customary or judge made law which authorises the father in exercise of his extraordinary power to effect a partial partition of HUF consisting of himself and his minor sons by dividing some items of properties whilst continuing the joint status in respect of the rest of the properties. C The High Court observed: "The validity of the aforesaid propositions is incapable of being disputed and has not been disputed. What has been contended on behalf of the assessee is that whilst there is no express provision in so many words, either in the ancient Hindu texts or Judge made law, that the power of a Hindu father to effect partition of a HUF consisting of him self and his sons including minor sons in exercise of his power as patria protestas extends even to partition in respect of only some items of property it is required to be inferred by implication. In other words, it is argued that though there is no express reference to the power to effect that partial partition in the sense of division of some items of property while continuing the status of HUF in respect of the rest and though such power is not recognised in terms, it follows as a necessary corollary. " The High Court noted that this contention has been negatived by the Madhya Pradesh High Court in the case of Gopaldas (supra) and the High Court for reasons recorded in "the judgment rejected this contention. The High Court further held that the transaction in question was in any event invalid in the facts and in the circumstances of this case. Aggrieved by the judgment of the High Court, the assessee with special leave granted by this Court has preferred this appeal. 500 In this appeal before us, two main contentions have been urged on behalf of the appellant. The first contention urged is that the High Court went wrong in holding that the father cannot effect any valid partial partition between himself and his minor sons of joint family property belonging to Hindu undivided family consisting of himself, his wife and minor sons who are governed by the Mitakashra School of Hindu Law. The other contention raised is that the High Court erred in coming to the conclusion that in the facts and circumstances of this case, the partial partitions were invalid. Mr. Desai learned counsel appearing on behalf of the appellant has advanced the following arguments. According to the Mitaksbara School of Hindu Law, the father has a power to divide ancestral property among his sons and the partition made by him is binding on his sons provided that the power is exercised bonafide and in accordance with law which regulates and restricts it in the interests of his sons. This power on the part of the father is recognised in text books on Hindu Law and has been accepted in a number of decisions beginning with the case of Kondaswami vs Doraisamy Ayyar.(1) 2. A father in any such case of ancestral property has the power to separate from all or from even some of his sons remaining joint with the other sons or leaving them to continue as a joint family with each other. The consent of the sons is not necessary for the exercise of that power whether they are majors or minors. In this connection reference is made to para 323 of Hindu Law by D.F. Mulla and para 458 at p. 559 of Mayne 's Hindu Law (11 the Edn.). Para 323 of Mulla 's Hindu Law, 11th Edn. at page 443 and 444 reads as follows: "The father of a joint family has the power to divide the family property at any moment during his life, provided he gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation of the father from the sons, but a separation of the sons inter se. The consent of the sons is not necessary for the exercise 501 of that power. But a grandfather has no power to bring A about a separation among the grandsons. The right of a father to sever sons inter se is a part of the patria potestas still recognised by the Hindu Law. " Para 458 of Mayne 's Hindu Law and Usage, 11th Edn. at p.559 and 560 reads as follows: "Partition may be either total or partial. A partition may be partial either as regards the persons making it or the property divided. It is open to the members of a joint family to sever in interest in respect of a part of the joint estate while retaining their status of a joint family and holding the rest as the properties of an undivided family. Any one coparcener may separate from the others. but no coparcener except the father or grandfathers, can compel the others to become separate amongst themselves. A father may separate from all or from some of his sons, remaining joint with the other sons or leaving them to continue a joint family with each other. A separation between coparceners, for instance, between two brothers, does neither necessarily nor even ordinarily involve a separation between either of the coparceners and his own sons " 3. So extensive and wide is this patriarchal power of the father that it has been recognised even in cases where all the sons were minors or an only son was a lunatic. Reference is made to the decision of the Bombay High Court in the case of Bapu Hambira Patil vs Shankar Bahu Patil, (1) and to the decision of the Madras High Court in the case of Venkataswara Pattar vs K. Mankayammal.(2) 4. section 171 of the Income tax Act, 1971 and section 25A of the earlier Acc have been all along accepted as machinery provisions and not charging sections. In the earlier Act though there was no express reference to partial partitions, the preferable view expressed in deci 502 sions under that Act was that if there was a partial partition of an asset of the family or an asset of the family was divided and a partnership was constituted and the family continued joint as regards other properties, the assessment on the basis of undivided Hindu family would be confined to the income of the properties so remaining undivided and the income of the property partitioned would be excluded from the computation of the income for assessment. It was only income received from the properties not partitioned that would be considered to be the income of the joint family. Reliance has been placed on the decision in the case of Charandas Haridas vs C.l.T. Bombay. (1) 5. This power of the father has been described as his "superior power" or "peculiar power" or "patria potestas". There is neither principle nor authority for the proposition that the exercise of this independent and extensive power of the father even in the context of minor sons could not take into its purview the lesser power to partition only some of the family properties without disrupting the status of the members of the joint family as regards other properties even when it is a genuine exercise of the lesser power. At no time was there recognised any limitation or inhibition on the power of the father, though of course the partition effected by him had to be fair and equitable. There is no text of Hindu Law which prohibits partial partition whether as to person or as to property. The decision of the Privy Council in the case of Appovier vs Ram Subba Aiyan,(2) when it speaks of partial partition of the joint family by agreement of the coparcener cannot possibly be read as restricting the patriarchal and superior power of the father to effect division of the entire joint family properties and to exclude operation in case of exercise of the lesser right of division of only some of the family properties. Mr. Manchanda learned counsel appearing on behalf of the department, has advanced the following arguments: 503 1. Under ancient Hindu Law, partial partition was unknown. Severence of status disrupted the family. The joint family need not necessarily have any property. If it bas property, then its separation is only an incidence of the severence of status. Partial partition is judge made law and the earliest case where this was mooted was in 1846 in the case of Rewun Prashad vs Radha Beeby.(l) This was followed in Appovier 's case (supra) and then in certain decisions of Indian Courts. Reference is also made to paragraph 458 of Mayne 's Book on Hindu Law and Usage for contending that agreement between the parties is a sine qua non. 3. The powers of patria potestas are confined mainly to the power to sever the status of the joint family as a whole. Judge. made law which has recognised partial partition has attempted to extend the ancient, feudal archaic patriarchal powers of patria potestas to joint families so as to include the power of partial partition with the consent of the parties. There could be no justification for now extending it, particularly as the legislature itself, as per the Finance Act (2) 1980 w.e.f. 1,4.80 has de recognised partial partition altogether. Sub section (9) has been added to section 171 of the Act and by this provision partial partition of a HUF effected after 31.12.78 will be de recognised for income tax purposes and this sub section has been incorporated with the object of curbing the creation of multiple HUF by making partial partitions. Where a HUF is taxed in the status of HUF it will continue to be taxed as such unless there has been a total partition of the family properties by metes and bounds and an order to that effect is recorded by I.T.O. 4. The powers of patria potestas of a father have always been understood to be restricted and limited to a complete and whole partition. This power can only be exercised with regard to the entire property, provided the property is divided equally and fairly by the father. We may observe that in course of the hearing, reference was made to a number of decisions of various courts by the learned counsel for the parties. 504 We shall now proceed to consider the decisions which appear to us to leave a material bearing on the question involved in the appeal. We shall first refer to the decision of this Court in the case of Charandas Haridas (supra). This decision which appears to have clear bearing on the question and which considers an earlier decision of the Privy Council, does not appear to have been cited before the High Court. The material facts of this case may be briefly noted; Charandas Haridas was the Karta of a Hindu undivided family consisting of his wife, Shantaben, three sons and himself. He was a partner in six managing agency firms in six mills In previous years the income received by him as partner in these Managing Agencies was being assessed as the income of the Hindu undivided family. On December 11, 1945, Charandas Haridas acting for his three minor sons and himself and Shantaben his wife, entered into an oral agreement for partial partition. By that agreement Charandas Haridas gave one pie share to his daughter Pratibha in the managing agency commission from two of the six managing agencies held by the family. The balance together with the other shares in the other managing agencies was divided in five equal shares between Charandas Haridas, his wife and sons. This agreement was to come into effect from 1st January, 1946 which was the beginning of afresh accounting year. On 11th September, 1946 Charandas Haridas acting for himself and his minor sons and Shantaben executed a memorandum of partial partition in which the above facts were recited, the document purporting to be a record of what had taken place orally earlier. In the assessment year 1947 48 and 1948 49, Charandas Haridas claimed that the income should no longer be treated as income of Hindu undivided family but as separate income of the divided members. The Income tax officer declined to treat the income as any but of the Hindu undivided family, and assessed the income as before. An appeal to the Appellate Assistant Commissioner was unsuccessful and the matter was taken to the Income tax Appellate Tribunal. The Tribunal held that by the document in question, the division, if any, was of the income and not of the assets from which the income was derived inasmuch as "the agreements of the managing agency with the managed com panies did not undergo any chaoge whatever as a result of the alleged partition." The Tribunal, therefore, held that the arrangement to share the receipts from this source of income was not binding on 505 the department, if the assets themselves continued to remain joint. A It further held that the document was "a farce", and did not save the family from assessment as Hindu undivided family. The following question as directed by the High Court on the application of Charandas Haridas was referred to the High Court. : "Whether there were materials to justify the finding of the Tribunal that the income in the share of the com mission agency of the mills was the income of the Hindu undivided family ?" The High Court held that though the finding given by the Appellate Tribunal could not be construed as a finding that the document was not genuine, the method adopted by the family to partition the assets was insufficient to bring about the results intended by it. According to the High Court the Tribunal was right in holding that the document was ineffective and though the income might have been purported to be divided and might, in fact, have been so divided, the source of income still remained undivided as belonging to the Hindu undivided family. The High Court accordingly answered the question in the affirmative holding that there were materials before the Tribunal to enable the Tribunal to reach the conclusion that in so far as these income bearing assets were concerned, they still belonged to the Hindu undivided family. The assessee Charandas Haridas filed an appeal in this Court with special leave granted by this Court. This Court allowed the appeal. At page 207, this Court referred to the following observations of the Privy Council in Appovier vs Rama Subba Aiyan (supra). "Nothing can express mere definitely a conversion of the tenancy, and with that conversion a change of the status of the family quoad this property. The produce is no longer to be brought to the common chest, as representing the income of an undivided property, but the proceeds are to be enjoyed in six distinct equal shares by the members of the family, who are thenceforth to become entitled to those definite shares. " Thereafter this Court proceeded to hold at page 208: 506 "In our opinion, here there are three different branches of law to notice. There is the law of partnership, which takes no account of Hindu undivided family. There is also the Hindu Law which permits a partition of the family and also a partial partition binding upon the family. There is then the income tax law, under which a particular income may be treated as the income of the Hindu undivided family or as the income of the separated members enjoying separate shares by partition. The fact of a partition in the Hindu Law may have no effect upon the position of partner, in so far as the law of partnership is concerned, but it has full effect upon the family in so far as the Hindu Law is concerned. Just as the fact of a karta becoming a partner does not introduce the member of the undivided family into the partnership, the division of the family does not change the position of the partner vis a vis the other partner or partners. The Income tax law before the partition takes note, factually, of the position of the karta, and assessee not him qua partner but as representing the Hindu undivided family. In doing so, the Income tax law looks not to the provisions of the Partner ship Act, but to the provisions of Hindu Law. When once the family has disrupted, the position under the partnership continues as before, but the position under the Hindu Law changes. There is then no Hindu undivided family as a unit of assessment in point of fact, and the income which accrues cannot be said to be of a Hindu undivided family. There is nothing in the Indian Income tax law or the law of partnership which prevents the members of a Hindu joint family from dividing any asset. Such division must, of course, be effective so as to bind the members; but Hindu law does not further require that property must in every case be partitioned by metes and bounds, if separate enjoyment can otherwise be secured according to the shares of the members. For an asset of this kind, there was no other mode of partition open to the parties if they wished to retain the property and yet held it not jointly but in severalty, and the law does contemplate that a person should do the impossible. Indeed, the result would have been the same, even if the dividing members had said in so many words that they had partitioned 507 the assets, because in so far as the firms were concerned, A the step would have been wholly inconsequential." This Court further observed at p. 209: "No doubt, there were many modes of partition which might have been adopted; but the question remains that if the family desired to partition these assets only and no more, could they have acted in some other manner to achieve the same result ? No answer to the question was attempted; It is, therefore, manifest that the family took the fullest measure possible for dividing the joint interest into separate interests. There is no suggestion here that this division was a mere pretence nor has the Appellate Tribunal given such a finding. The document was fully effective between the members of the family, and there was actually no Hindu undivided family in respect of these particular assets. " In the case of Kalloomal Tapeswari Prasad (HUF) vs Commissioner of Income tax, Kanpur(l), this Court observed at p. 702: "Under Hindu Law partition may be either total or partial. A partial partition may be as regards persons who are members of the family or as regards properties which belong to it. Where there has been a partition, it is presumed that it was total one both as to the parties and property but when there is a partition between brothers, there is no presumption that there has been partition between one of them and his descendents. It is, however, open to a party who alleges that the partition has been partial either as to persons or as to property, to establish it. The decision on that question depends on proof of what the parties intended whether they intended the partition to be partial either as to persons or as to properties or as to both. When there is partial partition as to property, the family ceases to be undivided as regards properties in respect of which such partition has taken place but continues to be undivided with regard to the 508 remaining family property. After such partial partition the right of inheritance and alienation differ according as to property in question belongs to the members in their divided or undivided capacity. Partition can be brought about, (1) by a father during his life time between himself and his sons by dividing equally amongst them, (2) by agreement, or (3) by a suit or arbitration. " These two decisions of this Court clearly state that partial Partition under Hindu Law is permissible. We may mention that in the case of Moti Lal Shyam Sunder vs Commissioner of Income tax, U.P.(l) a division Bench of the Allahabad High Court also recognised the validity of partial partition. R.S. Pathak, J. (as his Lordship then was) who spoke for the Bench held for reasons stated in the judgment that the tribunal was in error in holding that there was no valid partial partition in law on 1st July, 1961. It may be noted that in the case of Charandas Haridas (supra) decided by this Court and in the case of Motilal Sham Sunder (supra) decided by the Allahabad High Court to which we have just referred, all the sons were minor. We have earlier quoted the relevant passages on the subject from Mulla 's Hindu Law and from Mayne 's Hindu Law and Usage. We may now qoute the following observations appearing at p. 18 in 'Mitacshare and Daya Bhaga Two Treatises on the Hindu Law of Inheritance translated by H.T. Colebrooke, Esq., ' in Ch. I, sec. II (2): "When a father wishes to make a partition, he may at his pleasure separate his children from himself, whether one. two or more sons". In 'History of Dharamshastra ' by Shri P.V. Kane (second Edition, 1973) Vol. III at p. 592, it has been stated: "The Manager is called Karta in modern times though the smritis and digests employ words like Kutumbin (Yaj II. 45), Grhin, Grhapali, Prabhupa Kat. 543) and not Karta. He has special powers of disposition (by mortgage, 509 sale or gift) of family property in a season of distress (for debts), for the purposes and benefit of the family (maintenance, education and marriages of members and other dependents) and particularly for religious purposes (Sradhas and the like). The father has the same powers as manager and certain other special powers, which no other coparcener has. The father can separate his sons from himself and also among themselves if he so desires, even if they do not desire to separate (Yaj. 114)". There are observations more or less to the similar effect in the other commentaries on Hindu Law by other learned authors. We do not, therefore, consider it necessary to refer to the comments of the other learned authors placed before us in course of the hearing of the appeal. The various commentaries on Hindu Law by the various learned 1 authors go to indicate that ancient Hindu Law speaks of complete severance of joint family and partition of joint family properties and does not mention partial partition either with regard to the joint family properties or with regard to some of the members of the joint family. The right of the father to bring about the disruption of the joint family properties in exercise of his superior right as father or of his rights as patria potestas is recongnised in ancient Hindu Law. It is, however, well settled by judicial decisions that partial partition of a joint Hindu family qua some joint family properties or qua some members of the joint family is permissible and valid in law. The High Court appears to have accepted this position but the High Court then proceeds to hold that the proposition laid down by judicial decisions with regard to partial partition will apply only when partial partition is effected with the consent of the members of the joint family and cannot be extended to a case where partial partition is sought to be brought about by father in exercise of his superior rights as father or his right, as patria potestas. On an anxious and careful consideration of the matter we are unable to agree with the view expressed by the High Court. 510 If the father in execise of his superior right or of his right. as patria potestas is entitled to bring about a complete disruption of the joint family and to effect a complete partition of joint family properties of a Hindu family consisting of himself and his minor sons even against the wishes of the minors and if partial partition be permissible with the consent of sons when they have all become major, we see no reason to limit the power or authority of tho father to effect the partition only to a case where the partition is total. The superior right or the right of patria potestas which a father enjoys is always expected to be exercised in the best interest of the members of the family and more particularly his minor sons. The father, undoubtedly, enjoys the right to bring about a complete disruption of the joint family consisting of himself and his minor sons and to effect a complete partition of The joint family properties even against the will of the minor sons. It is also now recognised that partial partition of joint family properties is permissible. When father can bring about a complete partition of joint family properties between himself and his minor sons even against the will of the minor sons and when partial partition under the Hindu Law is now accepted and recognised as valid by judicial decisions, we fail to appreciate on what logical grounds it can be said that the father who can bring about a complete partition of the joint family properties between himself and his minor sons will not be entitled to effect a partial partition of joint family properties between himself and his minor sons if the father in the interest of the joint family and its members feels that partial partition of the properties will be in the best interest of the joint family and its members including the minor sons. Even if the test of consent is to apply, the father as the natural guardian of the minor sons will normally be in a position to give such consent and it cannot be said as a matter of universal application that in all such cases of partition, partial or otherwise, there is bound to be a conflict of interest between the father and his sons. If the father does not act bona fide in the matter when he effects partition of joint family properties between himself and his minor sons, whether wholly or partially, the sons on attaining majority may challenge the partition and ask for appropriate reliefs including a proper partition. In appropriate cases even during minority, the minor sons through d proper guardian may impeach the validity of the partition brought about by the father either in entirety of the joint family properties or only in respect of part thereof, if the partition had been effected by the father to the detriment of the minor sons and to the prejudice of their interests. 511 We may point out that in the case of Charandas Haridas to which we have earlier referred and in which this Court recognised the validity of partial partition brought about by the father of some joint family properties, the sons were all minors. Also in the case of Motilal Shamsunder earlier quoted, where the Allahabad High Court recognised the validity of partial partition brought about by the father between himself and his sons, all the sons were minors. The decision of this Court in the case of Charandas Haridas and the observations of this Court in the case of Kalloomal Tapeswari Prasad (supra) which we have earlier quoted, in our opinion, clinch the decision of the question. We must, therefore, hold that partial partition of properties brought about by the father between himself and his minor sons cannot be said to be invalid under the Hindu Law and must be held to be valid and binding. We wish to make it clear that this right of the father to effect a partial partition of joint family properties between himself and his minor sons, whether in exercise of his superior right as father or in exercise of the right as patria potestas has necessarily to be exercised bona fide by the father and is subject to the right of the sons to challenge the partition if the partition is not fair and just. section 171 of the Income tax Act, 1971 provides as follows: (1) A Hindu family hitherto assessed as undivided shall be deemed for the purposes of this Act to continue to be a Hindu undivided family, except where and in as far as a finding of partition has been given under this section in respect of the Hindu undivided family. (2) Where, at the time of making an assessment under sec. 143 or section 144, it is claimed by or on behalf of any member of Hindu family assessed as undivided that a partition, whether total or partial, has taken place among the members of such family, the Income Income tax officer shall make an enquiry thereinto after giving notice of the enquiry to all the members of the family. 512 (3) On the completion of the enquiry, the Income tax officer shall record a finding as to whether there has been a total or partial partition of the joint family property, and, if there has been such a partition the date on which it has taken place. (4) Where a finding of total or partial partition has been recorded by Income tax officer under this section, and the partition took place during the previous year (a) the total income of the joint family in respect of the period up to the date of partition shall be assessed as if no partition had taken place; and (b) each member or group of members shall, in addition to any tax for which he or it may be separately liable and notwithstanding anything contained in clause (2) of section 10, be jointly and severally liable for the tax on the income so assessed. (5) Where a finding of total or partial partition has been recorded by the Income tax officer under this section, and the partition took place after the expiry of the previous year, the total income of the previous year of the joint family shall be assessed at as if no partition had taken place; and the provisions of clause (b) of sub section (4) shall, so far as may be, apply to the case. (6) Notwithstanding anything contained in this section if the Income tax officer finds, after completion of the assessment of a Hindu undivided family that the family has already effected a partition, whether total or partial the Income tax officer shall proceed to recover the tax from every person who was a member of the family before the partition, and every such person shall be jointly and severally liable for the tax on the income so assessed: (7) For the purposes of this section, the several liability of any member or group of members thereunder shall be computed according to the portion of the joint family property allotted to him or it at the partition, whether total or partial. 513 (8) The provisions of this section shall, so far as may be apply in relation to the levy and collection of any penalty, interest, fine or other sum in respect of any period up to the date of the partition, whether total or partial of a Hindu undivided family as they apply in relation to the levy and collection of tax in respect of any such period. . . . . . . . Explanation: In this section. (a) "partition" means (i) where the property admits of a physical division, a physical division of the property, but a physical division of the income without a physical division of the property producing the income shall not be deemed to be a partition; or (ii) where the property does not admit of a physical division then such division as the property admits of, but a mere sevence of status shall not be deemed to be a partition; (b) "partial partition" means a partition which is partial as regards the persons constituting the Hindu undivided family, or the properties belonging to the Hindu undivided family, or both. It may be noted that the following further provision was included in the said section as sub section (9) by the Finance (No. w. e. f. 1st April, 1980 : G (9) Notwithstanding anything contained in the foregoing provisions of this section, where a partial partition has taken place after the 31st day of December, 1978 among the members of a Hindu undivided family hitherto assessed as undivided: 514 (a) no claim that such partial partition has taken place shall be inquired into under sub section (2) and no finding shall be recorded under sub section (3) that such partial partition had taken place and any finding recorded under sub section (3) to that effect whether before or after the 18th day of June, 1980 being the date of introduction of the Finance (No 2) Bill 1980, shall be null and void; (b) such family shall continue to be liable to be assessed under this Act as if no such partial partition had taken place; (c) each member or group of members of such family immediately before such partial partition and the family, shall be jointly and severally liable for any tax, penalty, interest, fine or other sum payable under this Act by the family in respect of any period whether before or after such partial partition; (d) the several liability of any member or group of members aforesaid shall be computed according to the portion of the joint family property allotted to him or it at such partial partition: and the provisions of this Act shall apply accordingly. This sub section (9) was not in existence at the relevant time and has no retrospective operation and it is of no material consequence in deciding the present case. The aforesaid provisions of the Income tax Act, as they stood at the material time, clearly recognise partial partition. The definition of partial partition in explanation (b) makes it clear that partial partition as regards the persons constituting the Hindu undivided family or as regards properties belonging to the Hindu undivided family, or both, is recognised. In the present case, the partial partition of the shares belonging to the Hindu undivided family cannot, therefore, be said to 515 be bad either under the Hindu Law or under the Indian Income tax Act. We must, therefore, hold that the High Court went wrong in deciding that partial partition of the joint family properties of the Hindu joint family by the father was invalid and could not be recognised under the Income tax Act. The subsequent amendment of section 171 by the inclusion of sub section (9) does not require any consideration as the said, sub section was not in existence in the relevant assessment year and is only operative from 1st April, 1980. The other question which falls for determination is whether the partition can be said to be bad at the time of the partition there was no equal division of the shares by the father amongst himself and his minor sons and a part of the share holding had not been distributed to the father or to the father and mother jointly. We may point out that the A.A.C. has found that at the time of division of the shares, the shares had been distributed equally taking into consideration the shares which had earlier been distributed amongst the parties. In our opinion, a partial partition of any joint family property by the father between himself and his sons does not become invalid on the ground that there has been no equal distribution amongst the co sharers. It is expected that the father who seeks to bring about a partial partition of joint family properties will act bonafide in the interest of the joint family and 13 its members, bearing in mind in particular the interests of the minor sons. If however, any such partial partition causes any prejudice to any of the minor sons and if any minor son feels aggrieved by any such partial partition, he can always challenge the validity of such partial partition in an appropriate proceeding and the validity of such partition will necessarily have to be adjudicated upon in the proceeding on a proper consideration of all the facts and circumstances of the case. Till such partial partition has been held to be invalid by any competent court, the partial partition must be held to be valid. It is not open to the Income tax Authorities to consider a partial partition to be invalid on tho ground that shares have not been equally divided and to refuse to recognise the same. It is undoubtedly open to the Income tax officer before recognising the partition to come to a conclusion on proper enquiry whether tho partition is genuine or not. If the Income tax officer on enquiry comes to a finding that the partition is sham or fictious, he will be perfectly within his right to refuse to recognise the same. In the instant case, there is no finding that the partial partition is sham or 516 fictitious or that the partial partition is not a genuine one and has not been acted upon. As there is no finding that the partial partition is sham or fictitious or not a genuine one, on enquiries made by the Income tax officer, and as the partial partition is otherwise valid under the Hindu Law, the partial partition has necessarily to be recognised under the provisions of section 171 of the Income tax Act and the assessment must be necessarily made on the basis that there is Partial partition of the said shares. In the result, the appeal succeeds. The judgment and order of the High Court are hereby set aside. The partial partition is held to be valid and the Income tax Officer is directed to recognise the same and to proceed to make the assessment on the basis that there has been a partial partition of the said shares between the parties. In the facts and circumstances of this case, we do not propose to make any order as to costs. S.R. Appeal allowed.

The assessee is a Hind undivided Family consisting of four members, namely, Sri Apoorva Shantilal Shah, his wife Smt. Karuna and their minor sons Chintan and Tejal. During the assessment pertaining to the assessment year 1975 76. Shri Apoorva as a Karta of the H.U.F. made an application to the Income Tax officer for recognising partial partition under section 171 of the Income Tax Act, 1961 (hereinafter referred to as the Act) claiming that two partial partitions had taken place amongst the members of the said family, one on 24.12.1973 in respect of 200 shares of Gujarat Steel Tubes Ltd. and the other on 29.12.1973 in respect of 1?77 shares of the same Company. The Income Tax officer refused to record them for three reasons, namely (i) the partitions have not been made at the instance of the minor sons; (ii) after making certain allocations in favour of the two minor sons. he remaining shares were not allotted in their entirety to tho remaining third coparcener, normally Apoorva separately or Apoorva and Smt. Karuna jointly describing them as U P. and (iii) the distribution of shares had not been made equally either amongst the three members including the two minor sons or amongst the four members of the U.P, as Apoorva s wife Karuna also became entitled to an equal share on partition between the father and sons. The appeal preferred before the Assistant Appellate Commissioner was accepted. The further appeal, by Revenue to the Income Tax Appellate Tribunal was allowed since the Tribunal was of the opinion that the partial partitions in the instant case, beings outside the framework at the Hindu Law could not be recognised as valid for the purposes of Section 171 of the Income Tax Act. All the questions refferd to in the reference under Section 256 (1) to the High Court were answered against the assessee. The High Court held that under Hindu Law the father has no power or authority to effect any partial partition of joint family properties between himself and this minor sons. Hence the appeal by special leave. Allowing the appeal, the Court 493 ^ HELD: 1.1. Partial Partition of the shares belonging to the Hindu A undivided Family cannot be said to be bad either under the Hindu Law or under the Indian Income Tax Act. [514 H, 515 A] 1.2. Partial partition of properties brought about by the father between himself and his minor sons is valid and binding under the Hindu Law. This right of the father to effect a partial partition of joint family properties between himself and his minor sons, whether in exercise of his superior right as father or in exercise of the right as patria potestas has necessarily to be exercised bonafide by the father and is subject to the right of the sons to challenge the partition, if the partition is not fair and just. [511 C E] 1.3. The right of the father to bring about the disruption of the joint family properties in exercise of his superior right, as father or of his rights as patria potestas is recognised in ancient Hindu Law. [509 D E] 1.4. The stand taken by the High Court to the effect that the proportion laid down by judicial decisions to the effect that partial partition of a joint Hindu family qua some joint family properties or qua some members of the joint family is permissible and valid in law, will apply only when partial partition is effected with the consent of the members of joint family and cannot be extended to a case when partial partition is sought to be brought by father in exercise of his superior rights as father or his right as patria potestas is incorrect. [509 F H] If the father in exercise of his superior right or of his right as patria potestas in entitled lo bring about a complete disruption of the joint family and to effect a complete partition of joint family properties of a Hindu joint family consisting of himself and his minor sons even against The wishes of the minors and if partial partition be permissible with the consent of sons when they have all become major, the power or authority of the father to effect the partition of properties cannot be limited only to a case where the partition is total. Even if the test of consent is to apply, the father as the natural guardian of the minor sons will normally be in a position to give such consent and it cannot be said as matter of universal application that in all such cases of partition, partial or otherwise, there is bound to be a conflict of interest between the father and his sons. If the father does Dot act bonafide in the matter when he effects partition of joint family properties between himself and his minor sons, whether wholly or partially the sons on attaining majority may challenge the partition and ask for appropriate reliefs including a proper partition. In appropriate cases even during minority the minor sons through a proper guardian may impeach the validity of the partition brought about by the father either in entirety of the joint family properties or only in respect of part thereof, if the partition had been effected by the father to the detriment of the minor sons and to the prejudice of their interest. [510 A H] Charandas Haridas vs Commissioner of Income Tax, Bombay Kalloomal Tapeswari Prasad (HUF) vs Commissioner of Income J. J Tax. Kanpur (1982)133 I.T.R. 690 (S.C.) followed: 494 1.5. The provisions of the Income Tax Act, 1961 before the amendment by Finance Act (No. 2 of 1980) also clearly recognise partial partition. The definition of partial partition in Explanation (b) makes it clear that partial partition as regards the persons constituting the Hindu undivided family or as regards proper ties belonging to the Hindu Undivided family, or both, is recognised. [514 P G] 2.1. A partial partition of any joint family property by the father between himself and his sons does not become invalid on the ground that there has been Do equal distribution amongst the co sharers It is expected that the father who seeks to bring about a partial partition of joint family properties will act bonafide in the interest of the joint family and its members bearing in mind in particular the interest of the minor sons. If, however, any such partial revision causes any prejudice to any of the minor sons and if any minor son feels aggrieved by any such partial partition, he can always challenge the validity of such partial partition in an appropriate proceeding and the validity of such partial partition will necessarily have to be adjudicated upon in the proceeding on a proper consideration of all the facts and circumstances of the case till such partial partition has been held to be invalid by any competent court, the partial partition must he held to be valid. [515 D F] 2.2. It is not open to the Income tax Authorities to consider a partial partition to be invalid on the ground that shares have not been equally divided and to refuse to recognise the same. It is undoubtedly open to the Income tax officer before recognizing the partition to come to a conclusion on proper enquiry whether the partition is genuine or not. If the Income tax officer on enquiry comes to a finding that the partition is sham or fictitious, he will be perfectly within his right to refuse to recognise the same. [515 F G] 2.3. In the instant case, there is no finding that the partial partition is sham or fictitious or that the partial partition is not a genuine one and has not been acted upon. As there is no finding that the partial partition is sham or fictitious or not a genuine one, on enquiries made by the Income tax officer, and as the partial partition is otherwise valid under the Hindu Law, the partial partition has necessarily to be recognised under the provisions of section 171 of the Income Tax Act and the assessment must be necessarily made on the basis that there is partial partition of the said shares. [515 H,. 516 A B]

Civil Appeals No.1472 77 of 1987. From the Judgment and Order dated 4.12.1986 of the Delhi High Court in Civil Writ Petition Nos. 2148 of 1986, 2417, 2173, 2174, 2175 and 2166 of 1986. 1017 S.C. Mohanta, Ravinder Bana and Mahabir Singh for the Appellant. A.K. Sen, P.P. Rao, Rajinder Sachhar, K.B. Rohatgi, S.K. Dhingra, Praveen Jain, Shashank Shekhar, C.M. Nayar, P.N. Duda and Randhir Jain for the Respondents. The Judgment of the Court was delivered by SHARMA, J. The present appeals by the State of Haryana and the Haryana Minerals Limited are directed against the common judgment of the Delhi High Court disposing of 6 writ applications filed by different petitioners impleaded as respondent No. 1 herein. Separate mining leases were executed on behalf of the State of Haryana with respect to Silica sand and ordinary sand in favour of the writ petitioners for a period of 10 years, in accordance with the provisions of the Mines & Minerals (Regulation & Development) Act, 1957, hereinafter referred to as the Act. The State of Haryana, in purported exercise of powers under Section 4A of the Act prematurely terminated the leases by its order dated 1st October, 1986 which is quoted in the judgment of the High Court, stating that it was proper to do so as the Haryana Minerals Limited, respondent No. 4 (appellant No. 2 herein) a public sector undertaking had informed that it had fully equipped itself to undertake the mining operation and that necessary permission in terms of the Section had been obtained from the Central Government to prematurely terminate the leases. Admittedly no prior notice to the writ petitioners or any opportunity to them to place their case was given. The lessees contended before the High Court that essential conditions for exercises of the powers under Section 4A are not satisfied in the present cases and further, the impugned decision is violative of the principles of natural justice. It was also urged that so far as the lease in respect of ordinary sand which is a minor mineral under the Act, is concerned, Section 4A being excluded by the provisions of Section 14 is not applicable. It was also averred that forcible possession of the mining areas was taken even before communicating the impugned order. The High Court agreed with these contentions and allowed the writ petitions. The State of Haryana and the Haryana Minerals Limited, respondents No. 2 and 4, respectively, in the writ cases were allowed special leave to appeal under Article 136. Hence these appeals. 1018 4. Section 4A as it stood at the relevant time read as follows: "4A.(1) Where the Central Government, after consultation with the State Government, is of opinion that it is expedient in the interest of regulation of mines and mineral development so to do, it may request the State Government to make a premature termination of a mining lease in respect of any mineral, other than minor mineral, and, on receipt of such request, the State Government shall make an order making a premature termination of such mining lease and granting a fresh mining lease in favour of such Government company or corporation owned or controlled by Government as it may think fit. (2) Where the State Government, after consultation with the Central Government, is of opinion that it is expedient in the interest of regulation of mines and mineral development so to do, it may, by an order, make premature termination of a mining lease in respect of any minor mineral and grant a fresh lease in respect of such mineral in favour of such Government company or corporation owned or controlled by Government as it may think fit. Silica sand being a major mineral is governed by Sub section (1) of Section 4A and ordinary sand by Sub section (2). According to the appellant, full and necessary consultation between the two Governments i.e. the Central Government and the State Government was held and it was considered expedient in the interest of regulation of mines and mineral development to take the impugned decision. Reference in this regard was made by the learned counsel to the report of the Indian Bureau of Mines referred to in the letters of the Director, Department of Mines, Central Government to the Chief Secretary, Government of Haryana, dated 20th April, 1985, 8th July, 1985 and 10th July, 1985 and the State 's letters dated 14th July, 1986, 17th September, 1986 and 29th September, 1986. It has been contended that since a decision was jointly taken by the two Governments to grant mining lease of the entire area to the Haryana Minerals Limited, this by itself fulfilled the necessary conditions under Section 4A and as the writ petitioners lessees had no locus standi to place their point of view with respect to this aspect, it was not necessary to give them a notice. The argument is that in the circumstances there is no question of violation of principles of natural justice. It was also claimed that the State was the final authority to take a decision under Section 4A with respect to both major and minor minerals. 1019 6. Mr. B. Datta, Additional Solicitor General, stated on behalf of the Union of India, respondent No. 2 that the respondent is ready to reconsider the matter after hearing the parties concerned. He refuted the claim of the appellant that the State is the ultimate authority to take a decision under Section 4A with respect to major minerals and he appears to be right. Sub section (1) which deals with major minerals empowers the Central Government to consider the matter and, after having consultation with the State Government, to take a decision in this regard and once it does so and makes a request to the State Government for prematurely terminating a lease, the State Government shall be under an obligation to act. The use of "shall" in this context indicates the binding nature of the request. The language of Section 4A clearly indicates that the Section by itself does not prematurely terminate any mining lease. A decision in this regard has to be taken by the Central Government after considering the circumstances of each case separately. For exercise of power it is necessary that the essential condition mentioned therein is fulfilled, namely, that the proposed action would be in the interest of regulation of mines and mineral development. The question of the State Government granting a fresh mining lease in favour of a Government Company or a Corporation arises only after a decision to terminate the existing mining lease is arrived at and given effect to. The Section does not direct termination of all mining leases, merely for the reason that a Government Company or Corporation has equipped itself for the purpose. The Section was enacted with a view to improve the efficiency in this regard and with this view directs consulation between the Central Government and the State Government to be held. The two Governments have to consider whether premature termination of a particulare mining lease shall advance the object or not, and must, therefore, take into account all considerations relevant to the issue, with reference to the lease in question. It is not correct to say that an existing mining lease can be terminated merely for the reason that a Government Company or Corporation is ready to undertake the work. Considered in this light, the Section must be interpreted to imply that the person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development. Not to do so will be violative of the principles of natural justice. Since there is no suggestion in the Section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right. Reference may be made to the observations of this Court 1020 in Baldev Singh and others vs State of Himachal Pradesh and others, , that where exercise of a power results in civil consequences to citizens, unless the statute specifically out the application of natural justice, such rules would apply. The cases, Union of India and another vs Cynamide India Ltd. and another, AIR 1987 SC 1802; D.C. Saxena vs State of Haryana, AIR 1987 1463 and State of Tamil Nadu vs Hind Stone etc. ; , , relied upon by Mr. Mohanta do not help the appellant. The learned counsel placed reliance on the observations in paragraphs 5 to 7 of the judgment in Union of India vs Cynamide Ltd. which were made in connection with legislative activity which is not subject to the rule of audi alteram partem. The principles of natural justice have no application to legislative activities, but that is not the position here. It has already been pointed out earlier that the existing mining leases were not brought to their and directly by Section 4A itself. They had to be terminated by the exercise of the executive authority of the State Government. Somewhat similar was the situation with regard to Section 4A of Haryana Board of School Education Act, 1969 which was under Consideration in D. C. Saxena vs State of Haryana, AIR 1987 SC 1463. A matter of policy was adopted and included by the legislature in the impugned section. Besides, the validity of the Section was not under challenge there, as was expressly stated in paragraph 6 of the judgment. So far as the case, State of Tamil Nadu vs Hind Stone is concerned, the learned counsel for the appellant cited it only with a view to emphasise the importance of the mineral wealth of the nation which nobody denies. We, therefore, held that a final decision to prematurely terminate a lease can be taken only after notice to the leassee. Coming to the facts of the present case it will be observed that the question of terminating the mining leases in question before us was introduced for the first time under the letter dated 14.7.1986 (page 80) of the State of Haryana. The earlier letter dated 20.4.1985 and 8.7.1985, of the Department of Mines, Union of India sent to the State Government discussed the general question about the desired improvement in the mining field and referred to the report of the Indian Bureau of Mines on silica sand mining in Haryana. The report had highlighted various aspects of silica sand mining in the State and made several positive suggestions. It was stated in the letter dated 20th April, 1985 that if the lessees did not comply with the requirements mentioned therein, their leases "deserve to be terminated in accordance with the procedure established under law. " In the letter dated 8th July, 1985, further emphasis was laid on ensuring scientific mining of optimum utilisation of natural resources, ensuring safety in operation 1021 and ensuring payment of fair wages to the mine workers. In this letter the desirability of entrusting mining operations to the public sector was mentioned but it was also stated that the representatives of the Government of Haryana had in the earlier meetings expressed their inability to entrust the Haryana Minerals Ltd. (appellant No. 2 before us) with the mining operations in the entire State immediately. Additional terms and conditions were also suggested to be imposed in the future mining leases to be granted in favour of private parties. Later on, it appears that the Haryana Minerals Ltd. became ready to take over the mining operations and intimated its preparedness by letter dated 10.7.1986 and thereupon the State of Haryana wrote on 14.7.1986 to the Union of India that it was appropriate to prematurely terminate the 6 leases mentioned in the letter of the date. It will be significant to note that the State Government did not take a decision to terminate all the mining leases; on the countrary, fresh mining leases in favour of private individuals were in contemplation of the State authorities, as indicated by the aforementioned letters and by Annexure P 5 (page 273) to the Writ Petition of Ram Kishan in the High Court. The State 's letter dated the 14th July, 1986 was followed by another letter dated 5.9.1986 and in reply to it, the Central Government asked for a report on several specific points mentioned in their letter which is at page 85 of the paper book. In place of sending the required information, the State Government, in its letter dated 17.9.1986, took the erroneous stand that the information sought for was not relevant. Instead of pointing out that the information demanded was very pertinent in the context of the proposed termination of the mining lease, the Central Government by its letter dated 26th November, 1986 agreed to the proposal, but took care to advice that while taking any action for premature termination of the leases the authority should "ensure that the provisions of Section 4A of the Act are complied with". As has been mentioned earlier, the Union of India does not deny the right of hearing to the affected lessees and is ready, even now, to give an opportunity to them. Admittedly, the writ petitioners who are respondents before us were never given any such opportunity and according to their assertion if such an opportunity had been afforded, they would have shown that the standard of their mining operation was very high and favourably measured against the expected standard suggested in the report of the Indian Bureau of Mines and mentioned in the letter of the Mines Department of the Central Government and that it was definitely superior to that of Haryana Minerals Limited. On a consideration of the facts and circumstances of the 1022 present case, we are of the opinion that there was no effective consultation between the Union of India and the State Government, and the Central Government did not form any opinion as required under Section 4A of the Act. We are further of the view that the lessees, the respondents before us, were entitled to be heard before a decision to prematurely terminate their leases was taken but they were not given any opportunity to place their case. Mr. Sen, the learned counsel for the respondents, very fairly stated that he could not support the plea that leases in respect of minor minerals are saved from the application of Section 4A altogether by reason of Section 14. This Court in State of Tamil Nadu vs Hind Stone, ; (at pages 746H and 747A) pointed out that perhaps since Section 4A(1) is inapplicable to minor minerals because of the provisions of Section 14, Section 4A(2) has been specially enacted making somewhat similar provision. It must, therefore, be held that leases in respect of minor minerals also can be prematurely terminated in appropriate cases. However, in view of our earlier finding the respondents must succeed. We accordingly dismiss these appeals with costs. S.L. Appeals dismissed.

These appeals were directed against the common judgment of the High Court in Writ applications filed by different petitioners, challenging the termination of the mining leases granted to them. The State of Haryana which had executed the mining leases in favour of the writ petitioners for ten years under the provisions of the Mines & Minerals (Regulation & Development) Act (the Act), terminated the said leases prematurely in the purported exercise of powers under Section 4A of the Act without prior notice to the writ petitioners or any opportunity to them to defend their cases. The leases were so terminated on the ground that the Haryana Minerals limited a public sector undertaking had fully equipped itself to undertake the mining operations. The High Court allowed the writ petitions. The State of Haryana and Haryana Minerals Limited appealed to this Court by Special leave against the decision of the High Court. According to the appellant, the necessary consultation between the Central Government and the State Government was held, fulfilling the conditions under Section 4A of the Act and the decision impugned was taken. The appellant contended that the writ petitioners lessees had no locus standi to place their view point and it was not necessary to give them notice, and that there was no violation of the principles of natural justice. Dismissing the appeals, the Court, ^ HELD: The language of Section 4A indicates that the Section by itself does not permaturely terminate any mining lease. A decision in this regard has to be taken by the Central Government. The question of the State Government granting a fresh mining lease in favour of a 1016 Government Company or a Corporation arises only after the existing mining lease is terminated, the section does not direct termination of all mining leases merely for the reason that a Government Company or a Corporation has equipped itself for the purpose. It is not correct to say that an existing mining lease can be terminated for the reason that a Government Company or a Corporation is ready to undertake the work. Viewed thus, the section must be interpreted to imply that a person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development. Not to do so will be violative of the principles of natural justice. Since there is no suggestion in the section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right. A final decision to prematurely terminate a lease can be taken only after notice to the lessee.[1019C H;1020E] The Writ Petitioners respondents before the Court were never given an opportunity to be heard. If such an opportunity had been afforded, they would have shown that their standard of mining operations was very high and favourably measured against the expected standard and was superior to that of the Haryana Minerals Limited. [1021G] There was no effective consultation between the Union of India and the State Government, and the Central Government did not form any opinion as required under Section 4A of the Act. The respondents before the Court were entitled to be heard before a decision to prematurely terminate their leases was taken but they were not given any opportunity to place their cases. The respondents must succeed. [1022A B] Baldev Singh and others vs State of Himachal Pradesh and others, ; Union of India and another vs Cynamide India Ltd. and another, AIR 1987 SC 1802; D. C. Saxena vs State of Haryana, AIR 1987 SC 1463 and State of Tamil Nadu vs Hind Stone, etc. ; , , referred to.

Appeals Nos. 333 334 of 1962. Appeals by special leave from the preliminary order dated June 3, 1961 and Order dated September 29, '1961 of the Second Labour Court, Bombay in Applications (I.D.A.) Nos. 447 to 462 of 1958. R.J. Kolah, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. section V. Gupte, Additional Solicitor General of India, K. T. Sule, M. C. Bhandare, M. Rajagopalas and K. B. Chaudhuri, for the respondents. May 9. The judgment of the Court was delivered by GAJENDRAGADKAR.J. These 16 appeals arise out of petitions filed by the 16 respondents who arc the employees of the appellant, the Bombay Gas Co. Ltd., under section 33C (2) of the Industrial Disputes Act (No. 14 of 1947) (hereinafter called the Act). These respondents are the District Siphon Pumpers and Heat Appliances Repairers Inspectors, and in their applications made before the Second Labour Court, Bombay, they alleged that as a result of the award made by the Industrial Tribunal in reference (I. T.) No. 54 of 1949 published in the Bombay Government Gazette on May 11, 1950, they were entitled to a certain benefit 712 and they moved the Labour Court to compute that benefit in terms of money and to direct the appellant to pay the same to them. The direction in the earlier award on which this claim was based was made in these terms "The demand in respect of the workers of the Mains, Services and District Fittings Departments and Lamp Repairers and others who were till 1948 required to work on Sundays and in respect of whom a weekly day off was enforced thereafter without any corresponding increase in wages is granted. In respect of the rest, the demand is rejected. This demand was resisted by the appellant on several preliminary grounds which formed the subject matter of several preliminery issues framed by the Labour Court. The principal contentions raised by the appellant by way of preliminary objections were. that the applications made by the respondents were not maintainable under section 33C (2) of the Act and that the said applications were barred by res judicata by reason of awards made in other proceedings between the same parties. It was also urged by the appellant that if the claim made by the respondents was held to be justified by the direction of the award on which the respondents relied, then the said direction was given by the earlier Tribunal without jurisdiction and as such, was incapable of enforcement. On the construction, the appellant urged that the said direction did not cover the cases of the respondents, and it was argued that even if the said direction was held to be valid and it was also held that it gave the respondents the right to make the present claim, the conditions precedent prescribed by the said direction had not been satisfied by any of the respondents, and so, on the merits, their claim could not be sustained. 713 The Labour Court took up for trial 10 prcliminary issues in the first instance and by its judgment delivered on June 3, 1961, it rejected all the preliminary pleas raised by the appellant. In other words, the preliminary issues framed by the Labour Court were found in favour of the respondents. Thereafter, the applications were set down for hearing on the merits and evidence was led by both the parties in support of their respective claims. On considering the evidence, the Labour Court came to the conclusion that the respondents had established their claims, and so, it has directed the appellant to pay to the respondents the respective amounts specified against their names in the award. The plea raised by the appellant that the whole of the: claim made by the respondents should not be allowed on the ground of belatedness and laches, was, according to, the Labour Court, not sustainable under section 33C (2). That is why the Labour Court computed the benefits claimed by the respondents in terms of money from the date when the earlier award became enforceable until the date of the present applications filed before it. The appellant has come to this Court by special leave against the preliminary decision and the final order passed by the Labour Court in favour of the respondents. Before dealing with the points raised in the present appeals by the appellant, it is necessary to set out briefly the terms of the earlier award on which the respondents ' claims are based. In the previous industrial dispute, the employees of the appellant had made several demands. In the present case, we are concerned with demand No. 11. This demand was made in these terms "(a) Workers should get a paid weekly off. (b) Weorkers of Mains, Services and District Fitting Departments and Lamp Repairers, 714 who have been adversely affected in the matter of their earnings on account of closing down of the overtime and Sunday Work, should be compensated for the loss suffered by them; compensation being the amount lost by them since the scheme was introduced. " The Tribunal which dealt with this demand observed that demand No. 11 (a) had been badly worded. There was, however, no doubt that what the employees claimed against the appellant was, in substance, a demand for paid weekly off only for those workers who were actually getting a weekly off, though without pay. In dealing with this demand, the Tribunal noticed the fact that all the monthly paid staff employed by by the appellant got a paid weekly off,and so,it thought that there was no reason to dicriminate between the said staff and the daily rated workers. In regard to the daily rated workers usually, their mothly income would be determined on the basis of a month consisting of 26 working days. From the Statement of claim 'filed by the Union before the Tribunal, it appeared that prior to 1946, most of the workers used to work for all the seven days of the week. By about August, 1946, however, weekly offs were enforced upon the major section of the workmen. In June 1946, the appellant and the Union had entered into an agreement as regards wage scales of various categories of workers, and the Tribunal assumed that in respect of most of the daily rated workers, the wages must have been fixed on the basis of what their monthly income would be for 26 working days. It is in the light of this. background that the Tribunal proceeded to examine demand No. 11 (a). The Tribunal noticed that in the case of the four categories of workers specified in demand No. 11 (b), difference had to be made because it could not be said in their case that their daily rates of 715 wages were fixed with reference to a month of 26 working days. The result was that with the introduction of the weekly off, the wages of those workers were reduced. Naturally, the Tribunal observed that in such a case, the concession of a weekly off would be a very doubtful benefit if as a result, the monthly income of the workers was to go down. That is why the Tribunal gave the direction on which the respondents ' present claim is based. This direction we have already quoted at the beginning of the judgment. Having thus dealt with demand No. 11 (a), the Tribunal proceeded to examine, demand No, 11 (b), and it ordered that the workers of Mains, Services and District Fittings Departments and Lamp Repairers who had been adversely affected in the matter of their earnings on account of closing down of Sunday work, should be compensated for the loss suffered by them, by payment of their wages and dearness allowance for the weekly off given to them from June 1, 1949 onwards till the date of the publication of the award. The question about the scope and effect of the provisions of section 33C (2) of the Act and the extent of the jurisdiction conferred on the Labour Court by it have been recently considered by us in the case of The Central Bank of India Ltd. vs P. section RajagopaIan (1). That decision shows that the applications made by ' the respondents were competent and the Labour Court had jurisdiction to deal with the question as to the computation of the benefit conferred on the respondents in terms of money. Mr. Kolah for the appellant contends that though the applications made by the respondents may be competent and the claim made by them may be examined under section 33C (2), it would, nevertheless, be open to the appellant to contend that the award on which the said claim is based is without jurisdiction and if he succeeds in (1) , 716 establishing his plea, the Labour Court would be justified in refusing to give effect to the said Award. In our opinion, this contention is well founded. The proceedings contemplated by section 330 (2) are, in many cases, analogous to execution proceedings, and the labour Court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing court; like the executing court in execution proceedings governed by the Code of Civil Procedure the Labour Court under section 33C (2) would be competent to interpret the award on which the claim is based, and it would also be open to it to consider the plea that the award sought to be enforced is a nullity. There is no doubt that if a decree put in execution is shown to be a nullity the executing court can refuse to execute it. The same principle would apply to proceedings taken under s 33C (2) and the jurisdiction of the labour court before which the said proceedings are commenced. Industrial Tribunals which deal with industrial disputes referred to them under section 10 (1) (d) of the Act are, in a sense, Tribunals with limited jurisdiction. They are entitled to deal the disputes referred to them, but they cannot I outside the terms of reference and deal with matters not included in the reference, subject, of course, to incidental matters which fall within their jurisdiction. Therefore, on principle, Mr. Kolah is right when he contends that the Labour Court would have been justified in refusing to implement the award, if it was satisfied that the direction in the award on which the respondents ' claim is based is without jurisdiction. That takes us to the question about the merits of the plea raised. by Mr. Kolah. Mr. Kolah contends that the direction in question on which the respondent 's claim is based, is invalid for the reason that the Tribunal travelled outside the terms of reference when it added the words " 'and others" in the 717 said direction. His argument is that the said direction has really been issued under demand No. 11 (b) and since the said demand was confined to the four categories of workmen specified in it, the Tribunal had no jurisdiction to extend the relief to any workers outside the said four categories by adding the words " and others". Thus presented, the argument is no doubt attractive, but on a careful examination of the scheme of the award in so far as it relates to demand No. 11, it would be clear that the impugned direction has relation not to demand No. 11 (6), but to demand No. 11(a), and it is obvious that demand referred to all workers and was not confine to any specified categories of workers. It is true that in dealing with the said demand, the Tribunal prominently referred to the four categories of employees specified in demand No. 11 (b), but that is not to say that it was confining the said demand to the said four categories. The said four categories were mentioned specifically because they clearly brought out the cases of workmen to whom relief was due under demand No. 11 (a). Having thus dealt with the said four categories by name, the Tribunal thought it necessary, and we think, rightly, to add the words "and others", because if there were other workmen who were till 1948 required to work on Sundays and in respect of whom a weekly day off was introduced thereafter without any corresponding increase in their wages, there was no reason why they should not have been given the benefit which was given to the workmen of the four categories specifically discussed. it is significant that having thus comprehensively described the workmen who were entitled to the said benefit, the Tribunal has added that in respect of the remaining workmen, demand No. 11 (a) was rejected. Therefore, we are satisfied that the relief granted by the Tribunal in paragraph 115 of its award has reference. to demand No. 11 (a) and the use of the words "and others" is not only not outside the terms of reference, but is quite appropriate and justified. 718 That being so, it is difficult to sustain the plea that the impugned direction was without jurisdiction. Mr. Kolah no doubt relied on the fact that the present respondents never thought that they were entiteld to the benefit conferred by the impugned direction and in support of this plea, he referred us to the fact that in ' 1952, a demand was made on their behalf for a similar benefit. If the respondents had felt that the benefit conferred by the impugned direction was available to them, it is very unlikely says Mr. Kolah, that they would have made the same demand in 1952 on the basis that it had not been granted to them by the earlier award. It does appear that this demand was made on behalf of the respondents and the Government of Bombay took the view that the said demand had already been considered by the Tribunal and that it was too late to reopen it in regard to other categories of employees; that is why the Government refused to make a reference. In our opinion, this fact cannot materially assist Mr. Kolah, because on a fair and reasonable construction of the material direction in the award, we are satisfied that the said clause applies to all workers of the appellant who satisfy the test prescribed by it. If the respondents did not understand the true scope and effect of the said clause, that cannot affect the construction of the clause. Therefore, we do not think that the failure of the respondents to take advantage of the said clause soon after the earlier award was pronounced can have any bearing on the construction of the clause. Then, Mr. Kolah has suggested that on the merits the respondents are not entitled to make the claim, because, it is not shown by them that they were required to work on all Sundays in the relevant years. He argues that the test prescribed by the direction is that the benefit should be available to 719 workmen who were, till 1948, required to work on Sundays and that, it is suggested, must mean "who were required to work on all Sundays in the year". This argument has been examined by the Labour Court and it has found that the respondents were required to work on Sundays before 1948, though they might not have attended on all Sundays. In support of this finding, the Labour Court has referred to Ext. 32 and has drawn the inference from the said document that the workers in the Syphon Department were required to work on all Sundays before September, 1948, and it has added that the fact that they did not work on some Sundays may be attributed to some casual circumstances, such as the workers having voluntarily remained absent, or there not being sufficient work for all, some might have been sent home. Mr. Kolah has invited our attention to the chart (Ext. 32) and has shown that in some cases, the employees were not required to work even half the number of Sundays during that year. In our opinion, this argument proceeds on a misconstruction of the relevant clause in the award. The said clause does not provide that before getting the benefit in question, the workers must show that they actually worked on all Sundays in the year. The test which has to be satisfied by the workers is that they could have been required to work on Sundays in that year. In other words, what the Tribunal decided was that if there were workers employed by the appellant whom the appellant could require to work on Sundays during the relevant year, they would be entitled to the benefit. In other words, the test is : did the terms and conditions of service impose an obligation on the workers to attend duties on Sundays if called upon to do so? That is very different from saying that the benefit would be available only if the workers in question worked on all Sundays. Therefore, we do not think there is any substance in the argument that since the respondents had not been actually required to work on all Sundays in the 720 relevant year, they were not entitled to the benefit of the relevant clause in the award. That leaves one more question to be considered. Mr. Kolah has strenuously argued that the Labour Court should not have allowed the claim of the respondents for such a long period when they made the present applications nearly 8 years after the award was pronounced. It is true that the earlier award was pronounced on May 11, 1950 and the present applications were made in 1958. In support of his argument that the delay made by the respondents should be taken into account, Mr. Kolah has referred to the fact that under the Payment of Wages Act (No. 4 of 1936) a claim for wages has to be made within six months from the date on which the cause of action accrues to the employees. In the State of Maharashtra, by local modification, this period is prescribed as one year. The argument is that the present claim made by the respondents under section 33 C(2) is a claim for wages within the meaning of the Payment of Wages Act. If the respondents had made such a claim before the authority under the said Act, they could not have got relief for more than a year. It would be anomalous, says Mr. Kolah. that by merely changing the forum, the respondents should be permitted to make a claim for as many as 8. years under section 33C (2). In this connection, Mr. Kolah also contends that by virtue of section 22 of the Payment of wages Act, a claim for wages cannot be made by an industrial employee in a civil court after a lapse of one year, because though the period for such a., suit may be 3 years under article 102, a civil suit is barred by section 22. The jurisdiction conferred on the payment authority is exclusive and so far as the said Act goes, all claims must be made within one year. Prima facie, there is some force in this argument. It does appear to be somewhat anomalous that a claim which would be rejected as barred by 721 time if made under the Payment of Wages Act., should be entertained under section 33C (2) of the Act; but does this apparent anomaly justify the introduction of considerations of limitation in proceedings under section 33C (2)? Mr. Kolah suggests that it would be open to this Court to treat leaches on the part of the employees as a relevant factor even in dealing with case under section 33C (2) and he has relied one fact that this Court has on several occasions discouraged belated claims in the matter of bonus. in appreciating the validity of this I argument, we do not propose to consider whether the jurisdiction conferred on the authority under the Payment of Wages Act is exclusive in the sense that a claim for wages cannot be made by an industrial employee in a civil court within 3 years as permitted by article 102; that is a question which may have to be decided on the merits when it directly arises. For the purpose of the present appeal, the only point which we have to consider is : does the fact that for recovery of wages limitation has been prescribed by the payment of Wages Act. Justify the introduction of considerations of limitation in regard to proceedings taken under section 33C (2) of the Act ? In dealing with this question, it is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting section 33C (2). The failure of the legislature to make any provision for limitation cannot, in our opinion, be deemed to be an accidental omission. In the circumstances, it would be legitimate to infer that legislature deliberately did not provide for any limitation under section 33C (2). It may have been thought that the employees who are entitled to take the benefit of section 330 (2) may not always be conscious of their rights and it would not be right to put the restriction 722 of limitation in respect of claims which they may have to make under the said provision. Besides, even if the analogy of execution proceedings is treated as relevant, it is well known that a decree passed under the Code of Civil Procedure is capable of execution within 12 years, provided, of course, it is kept alive by taking steps in aid of execution from time to time as required by article 182 of the Limitation Act, so that the test of one year or six months ' limitation prescribed by the Payment of Wages Act cannot be treated as a uniform and universal test in respect of all kinds of execution claims. It seems to us that where the legislature has made no provision for limitation, it would not be open to the courts to introduce any such limitation on grounds of fairness or justice. The words of section 33C (2) are plain and unambiguous and it would be the duty of the Labour Court to give effect to the said provision without any considerations of limitation. Mr. Kolah no doubt emphasised the fact that such belated claims made on a large scale may cause considerable inconvenience to the employer, but that is a consideration which the legislature may take into account, and if the legislature feels thatch play and justice require that some limitations be prescribed, it 'may proceed to do so. In the absence of any provision,however, the Labour Court cannot import any such consideration in dealing with the applications made under section 33C (2). Mr. Kolah then attempted to suggest that article 181 in the First Schedule of the Limitation Act may apply to the present applications, and a period of 3 years ' limitation should, therefore, be held to govern them. Article 181 provides 3 years ' limitation for applications for which no period of limitation is provided elsewhere in Schedule 1, or by section 48 of the Code of Civil Procedure, and the said period starts when the right to apply accrues. In our opion, this argument is one of desperation. It is well settled 723 that article 181 applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under section 33C (2) of the Act would not be justified. As early as 1880, the Bombay High Court had held in Rai Manekbai vs Manekji Kavasji (1), that article 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescribed for the application, and the consensus of judicial opinion on this point had been noticed by the Privy Council in Hansraj Gupta vs Official Liquidator8, Dehra Dun Mussoorie Electric Tramway Company Ltd. (2) An attempt was no doubt made in the case of Sha Vulchand & Co. Ltd. vs Jawahar Mills Ltd. (3), to suggest that the amendment of articles 158 and 178 ipso facto altered the meaning which had been attached to the words in article 181 by judicial decisions, but this attempt failed, because this Court held " 'that the long catenate of decisions under article 181 may well be said to have, as it were, added the words "under the Code" in the first column of that Article. " Therefore it is not possible to accede to the argument that the limitation prescribed by article 181 can be invoked in dealing with applications under section 33C (2) of the Act. It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under section 33C (2). A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provision. In such a case,, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government nay refuse to make reference in that behalf. But these considerations would (1)[1880] I.L R. (2) [1932] L.R. 60 I.A. 13, 20. (3) ; , 371 , 724 be irrelevant when claims are made under section 33C (2), where these claims are, as in the present case, based on an award and are intended 'merely to execute the award. In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice. It can be introduced, if at all, by the legislature. Therefore, we think, that the Labour Court was right in rejecting the appellant 's contention that since the present claim was belated, it should not be awarded. In the result, the appeals fail and are dismissed with costs. Appeals dismissed.

Petitions were filed by sixteen respondents under section 33C(2) of the , claiming certain benefits under an award made by an Industrial Tribunal. The prayer was to compute the benefits in terms of money and direct the appellant to pay the same to them. Many objections were raised by the appellant but these were rejected by the Labour Court which accepted the claim of the respondents and directed the appellant to pay to the respondents the respective amounts specified against their names in the award. The appellant came to this Court by special leave. The contentions raised by the appellant before this Court were that the award, on which the claim was based, was without jurisdiction and hence the Labour Court should have refused to implement it; that in order to get benefit, the workers must show that they actually worked on all Sundays in the year before September, 1948; and that as the claims of the respondents were belated, those should not have been awarded. Held that the Labour Court would have been justified In refusing to implement the award if it was satisfied that the 710 direction in the award on which the respondents ' claim was based, was without jurisdiction, but as that was not actually so, the impugned direction was according to law. The applications made by respondents were competent and the Labour Court had jurisdiction to deal with the question as to the computation of the benefit conferred on the respon dents in terms of money. The proceedings contemplated by section 330 (2) were, in many cases, analogous to execution proceed ings and the Labour Court which was called upon to compute in terms of money the benefit claimed by an industrial employee, was in the position of an executing court and was competent to interpret the award on which the claim was based and also consider the plea that the award, sought to be enforced, was a nullity. Held also, that there was no substance in the argument that since the respondents had not been actually required to work on all Sundays in the relevant year, they were not entitled to the benefit given in the award. The test which had to be satisfied by the workers was that they could have been required to work on Sundays in that year and not that they actually so worked. Held also, that the legislature has not made any provision for limitation for applications under section 33C (2) and it was not open to the Courts to introduce any such limitation on grounds of fairness or justice, The words of section 33 C (2) were plain and unambiguous and it was the duty of the Labour Court to give effect to the said provisions without any considerations of limitation. The employees who are entitled to take the benefit of section 33C (2) may not always be conscious of their right and it would not be right to put the restriction of limitation in respect of claims which they may have to make under the said provision. There was no justification for applying the provisions of the Payment of Wages Act and article 181 of the Limitation Act to the proceeding under section 33C (2). Claims like bonus arc distinguishable from claims made under section 33C (2). A claim for bonus is entertained on grounds of social justice and is not based on any statutory provision and in such a case, it is open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim or Government may refuse to make the reference in that , behalf. 711 However, those considerations are irrelevant when claims we made under section 330 (2). In such cases limitation cannot be introduced by industrial adjudication on academic grounds of social justice. Central Bank of India Ltd. vs P. section Rajagopalan, [1964] Vol. 3 S.C.R. 140; Rai Manekbai vs Manekji Kavasji, (1883) 7 Bom. 213; Hansral Gupta vs Official Liquidators, Dehra Dun Musoorie Electric Tramway Co. Ltd., (1932) L.R. 60 I.A. 13 and Sha Mulchand & Co. Ltd. vs Jawahar Millar Ltd. ; , referred to.

minal Appeal No. 253 of 1968. Appeal by special leave from the judgment and Order dated April 12, 1968 of the Allahabad High Court in Criminal Govt. Appeal No. 13 of 1965 and Criminal Govt. Appeal No. 10 of 1966. B. P. Maheshwari and Sobhagmal Jain, for the appellant. O. P. Rana, for the respondent. The Judgment of the Court was delivered by Mathew, J. This appeal , by special leave, is against a judgment of the High Court of Allahabad by which it restored the order of the Magistrate convicting the appellant of an offence under section 16 read with section 7. of the (Act 37 of 1954), hereinafter called the 'Act, and sentencing him to undergo one year 's rigorous imprisonment and pay a fine of Rs. 1,000/ and in default of payment of fine to undergo rigorous imprisonment for a further period of six months, after reversing the order passed by the Sessions Judge in appeal acquitting him of the offence. On June 13, 1963, Head Constable Baboo Khan was on patrol duty. He happened to come to the Chakki of one Abdul Razaaq. There he found a heap of Shakkar and some labourers mixing Shelkhari in it with spades. He went to the police station to inform the Station Officer about it but the Station Officer ' was not there. He then met the Sanitary Inspector and informed him about what he, saw at the Chakki. The Sanitary Inspector accompanied by the Food Inspector proceeded to the Chakki and there, they found the labourers mixing Shelkhari with Shakkar. The stock of Shakkar belonged to the appellant. The Food Inspector purchased 1 1/2 seers of Shakkar from the appellant by way of sample after paying its price. He divided the sample into three parts, gave one to the appellant and retained the other two with him. One of the samples retained was sent to the Public Analyst for examination. The Analyst found, in his report dated July 11, 1963, that the Shakkar contained 2.4% moisture, 72.7% total sugar, 64.7% sucrose, 17% extraneous matter insoluble in water. According to him the extraneous matter insoluble in water, total ash and ash insoluble in Hydrochloric acid exceeded by 15,O%, 10.1% and 13.3% respectively as against the maximum prescribed standards of 2.0%, 6.0% and O.5% respectively. On the basis of a complaint filed by the Food Inspector of the Municipal Board, Saharanpur, the Magistrate who tried the ap 352 pellant for an offence under section 16 read with section 7 of the Act came to the conclusion that the appellant had stored the Shakkar for sale, that it was adulterated and that he was guilty of the offence and convicted and sentenced him as aforesaid. The appellant filed an appeal against the order before the Sessions Judge. The Sessions Judge acquitted him of the offence for the reason that the prosecution had notproved 'that the Shakkar stored by the appellant was for sale. He said that the appellant was mixing extraneous matter with the Shakkar for converting it into Rab and as such it cannotbe said that the Shakkar was stored for sale by the appellant. He also said that no standard of quality was prescribed by therules framed under the Act for Shakkar, that as an article of food, Shakkar was neither 'gur ' nor 'Jaggery ' and that the sale of Shakkar to the Food Inspector by the appellant was under duress and was not a sale in the eye of the law. The Municipal Board filed an appeal against the order to the High Court. The High Court held that Shakkar is same as 'jaggery ', that standard 'of quality has been prescribed by the rules framed under the Act for jaggery, that the Shakkar in question was adulterated, that the sample purchased by the Food Inspector for the purpose of analysis amounted to sale within the meaning of section 2 (xiii) of the Act, that Food Inspector had power under the Act to get the sample even if the Shakkar was stored for being manufactured into Rab and not for sale and restored the order of the Magistrate convicting and sentencing the appellant as aforesaid. The first contention on behalf of the appellant was that Shakkar is not 'jaggery ', and since no standard of quality has been prescribed for Shakkar under the rules formed under the Act, the Shakkar was not adulterated. We find it difficult to accept the contention that Shakkar is not Jaggery. Para A.07.05 of Appendix B of the Rules reads "Gur or jaggery means the product obtained by boiling or processing juice pressed out of sugar cane or extracted from palmyra palm, date palm or coconut palm. It shall be free from substances deleterious to health and shall conform to the following analytical standards on dry weight basis (i)total sugars not less than 90 per cent and sucrose not less than 70 per cent. (ii) extraneous matter insoluble in water not more than 2 per cent. 3 5 3 (iii)total ash not more than 6 per cent. (iv) ash insoluble in hydrochloric acid (HCI) not more than O.5 per cent. Gur or jaggery other than that of the liquid or semi liquid variety shall not contain more than 10 per cent moisture. " It is not disputed that Shakkar is a product obtained by boiling or processing _juice pressed from out of sugarcane, and therefore, it is clear that Shakkar is jaggery. But counsel for the appellant submitted that Appendix B of the Rules does not define jaggery but only gives the description of what 'jaggery ' is and it cannot, therefore, be said that jaggery would comprehend all the varieties of products obtained by boiling or processing _juice pressed out of sugarcane. In other words, counsel said that Appendix B to the Rules only describes what jaggery or gur is and that it does not define what jaggery or gur is. We are unable to accept the contention for the reason that jaggery or gur is defined as any product obtained by boiling or processing juice pressed out of sugarcane and so any product so obtained would be comprehend within the definition. Quite apart from this, we find in Chambers Twentieth Century Dictionary (Revised Edition) the meaning of 'jaggery ' as : "A coarse dark sugar made from palm sap or otherwise. (Hindi Shakkar; Sanskrit Sarkara). " It is, therefore, clear that Shakkar is 'jaggery '; and the finding of the High Court, on the basis of the report of the Analyst, that the Shakkar has not conformed to the standard of quality prescribed for jaggery and, therefore, the food was adulterated, was correct and has to be maintained. The second contention on behalf of the appellant was that he had kept the Shakkar for manufacturing Rab out of it. The contention, in other words, is that he had not kept the Shakkar for sale but kept it for manufacturing Rab out of it and, therefore, the conviction under section 16 read with section 7 of the Act was bad. We do not think that there is any substance in this contention either. Section 7 of the Act, in so far as it is material, Provides "No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute 354 (i) any adulterated food;" Section 16, which imposes the punishment, in so far as it is relevant, says : " 16 (1) If any person (a)whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health;" The finding of the High Court is that the Shakkar was kept by the appellant for the purpose of sale and not for the purpose of manufacturing Rab out of it and that the attempt of the appellant was to sell the Shakkar as an article, of food after mixing Shelkhari with it. We see no reason to think that the finding was wrong. But assuming that the finding was wrong and that the appellant kept the Shakkar was for sale but for manufacturing Rab out of it, what follows ? If Shakkar is an article of food, it does not matter whether the appellant kept it for sale, or for manufacturing Rab out of it, provided the appellant has sold it. Arid a sale to the Food Inspector is a sale for the purpose of section 16 of the Act. In The Food Inspector, Calicut Corporation vs Charukattil Gapalan and another(), this Court held that, if any articles of food are sold by any person, whether he be a dealer in them or not, and if the food is adulterated, he is liable to be convicted under section 16 read with section 7 of the Act. The respondents before this Court in that case were the manager and owner of a tea stall. The case against them was that they sold 600 grains of sugar to the appellant, the Food Inspector, for analysis and that the sugar was adulterated. The respondents pleaded that the sugar was not sold 'as such ' in the tea stall and was only used for preparing tea which alone was sold. The plea was accepted by the District Magistrate and the respondents were acquitted. The acquittal was confirmed by the High Court. In appeal to this Court by the Food Inspector, one of the arguments for the respondents, was that they were not dealers in sugar and the sugar was not kept for sale and so they cannot be convicted under section 16 read with section 7 of the Act. The Court held, inter alia, that sale to a Food Inspector is a sale for the purpose of section 16 of the Act, that the article of food sold to the Food Inspector need not have been taken from a larger quantity kept for sale, and that the person by whom the article of food was sold to the Food Inspector need not be a dealer as such in the article. (1) [1971] 2 S.C.C.322. 355 In that case it was assumed by this Court that the sugar was adulterated. Whether it was adulterated or not as a matter of fact, this _Court proceeded on the assumption that it was adulterated. it that be so, we see no reason to doubt the correctness of the ratio of the case. We think the High Court was right in its conclusion. We dismiss the appeal. G.C. Appeal dismissed.

The Food Inspector purchased 1 1/2 seers of Shakkar from the appellant after paying its price. He divided the sample into three parts, gave one to the appellant and retained the other two with him. One of the samples retained ' was sent to the Public Analyst for examination. The Public Analyst found it to be adulterated because of excess of extraneous matter. The food Inspector filed a complaint before the Magistrate who convicted the appellant 'for an offence under section 16 read with section 7 of the . In appeal the Sessions Judge acquitted the appellant but in further appeal to High Court the appellant was again convicted. He appealed to this Court by special leave. The contentions on behalf of the appellant were : (i) that Shakkar is not jaggery and since no standard of quality has been prescribed for Shakkar under the rules framed under the Act the Shakkar was not adulterated; (ii) that he had not kept the Shakkar for sale but for manufacturing Rab out of it and therefore the convicion under section 16 read with section 7 of The Act was bad. HELD : (i) Shakkar is a product obtained by following processing juce pressed from out of sugar cane and therefore in view of the definition of jaggery in para A.07.05 of Appendix B of the rules framed under the Act Shakkar is jaggery. In Chambers 20th Century Dictionary (revised edition) also the Hindi equivalent of jaggery given as Shakkar. Therefore the finding of the High Court on the basis of the report of the Analyst that the Shakkar did not conform to the standard of quality prescribed for jaggery and was thus adulterated was correct and had to be maintained. [353 B F] (2) The finding of the High Court was that the Shakkar was kept by the appellant for the purpose of sale and not for the purpose of manufacturing Rab out of it and that the attempt of the appellant was to sell the Shakkar as an article of food after mixing Shelkhari in it. There was no reason to think that the finding was wrong. But assuming that the finding was wrong and that the appellant kept the Shakkar not for sale, but for manufacturing Rab out of it, the appellant would still be guilty. If Shakkar is an article of food, it does not matter whether the appellant kept it, for sale or for manufacturing Rab out of it provided the appellant bad sold it. And a sale to the Food Inspector is a sale for the purpose of 16(1) of the Act. [C D] The Food Inspector, Calicut Corporation v, Charukanttil Gopalan and another, , followed and applied. The appeal must accordingly be dismissed.

ivil Appeal No. 2294 1968. Appeal from the Judgment and Order dated 25 9 1967 of the Madhya Pradesh High Court in Misc. Petition No. 595/66. L.N. Sinha, Sol. Genl, B. Datta and Girish Chandra for the Appellants. 906 S.K. Gambhir, amicus curiae, for the Respondent. The Judgment of the Court was delivered by KRISHNA IYER, J. If the jurisprudence of remedies were understood and applied from the perspective of social effi caciousness, the problem raised in this appeal would not have ended the erroneous way it did in the High Court. Judges must never forget that every law has a social pur pose and engineering process without appreciating which justice to the law cannot be done. Here, the socio legal situation we are faced with is a colliery, an explosive, an accident, luckily not lethal, caused by violation of a regulation and consequential cancellation of the certificate of the delinquent shot firer, eventually quashed by the High Court, for processual solecisms, by a writ of certiorari. We may state at the outset that the learned Solicitor General agreed that the appellant, the Board of Mining Examination, would be satisfied if the law, wrongly laid down by the High Court, were set aside and declared a right and he was not insisting on the formal reversal of the order affecting the respondent (who is unrepresented before us). We proceed on that footing. The few necessary facts may be narrated to bring up the legal issue in its real setting. The respondent was a shot firer in a colliery and being a risky, technical job, had to possess a certificate for it. He handed over an explosive to an unskilled hand who fired it, an accident occurred and one Bhadu, employed in the mine, was injured. The Regional Inspector of Mines imme diately enquired into the cause of the accident and found, on the respondent 's virtual admission, qualified by some prevarication, that the shots were fired not by himself but by a cutter, an unauthorised person for shot firing to whom the respondent had wrongfully entrusted the work. Thereby he contravened the relevant Coal Mines Regulations. The Regional Inspector gave him an opportunity for explana tion and, after considering the materials before him, for warded the papers to the Chairman of the Board together with a recommendation for cancellation of the certificate under Reg. 26. The Board bestowed its judgment on the materials gathered by the Regional Inspector at the enquiry, which included the delinquent 's admission, and cancelled the shot firing certificate. The said cancellation was shot down by a writ of the Court on the ground of violation of Reg. 26. Was Regulation 26, in the context and set. g of the Mines Act, misinterpreted by the High Court at all? This is the short question canvassed before .us. We permit our selves a few observations Which serve as perspective set ters. Law is meant to serve the living and does not beat its abstract wings in the jural void. Its functional fulfilment as social engineering depends or its sensitized response to situation, subject matter and the complex of realities which require 907 ordered control. A holistic understanding is simple justice to the meaning of all legislations. Fragmentary grasp of rules can misfire or even backfire, as in this case. It is a notorious fact that collieries Indian collieries, both before and after nationalisation are strategic sources of the nation 's fuel and, operationally, areas of tragic human hazards. We need coal, we want miners to bring it from the bowels of the earth. The dangerous technology is not yet so perfect in India as to ensure risk free extraction. And, after many lives have been lost by the neglect of operatives or supervisors or supine bosses, follows the scenario of tears and torn down homes, a little monetary compensation, a flutter in Parliament, a longdrawn out Commission, a routine Report about lapses and recipes and the little man 's life or death lot continuing to receive callous considera tion at the hands of the law, law matter, law enforcer this sombre colliery disaster sequence must educate and inform the jurisprudence of high risk opera tions. In short, the Mines Act (and Regulations) must receive its judicial construction in the total setting, teleclogically approached, not fragmentarily dissected. The relevant regulation is only a tiny inset in the larger justice of the statute. The Mines Act has a scheme designed to avoid accidents and ensure safety. A system of certificates, supervisions and penalties is part of this scheme. The broad responsi bility for due enforcement of the Act rests on the Board and the relevant regulation casts liabilities on the lesser men. Any sensitive jurisprudence of colliery management must make it cardinal to punish the Board vicariously for any major violations and dreadful disasters, on macro considerations of responsibility to the community. The Board must quit, as a legal penalty, if any dreadful deviation, deficiency, default or negligence anywhere in the mine occurs. In the present case a microbreach is being punished, but when major mishaps occur the top echelons, on account of inadequacies in colliery codes, escape and make others the scapegoats. Although, in this ease, only injury, not death, has oc curred, there is a good case for new principles of liabil ity, based on wider rules of sociological jurisprudence, to tighten up the law of omission and commission, at the highest levels. Responsibility and penalty must be the concomitants of highly paid power vested in the top brass. Back to the pedestrian statement of facts. The re spondent 's curious contention, accepted by the learned Judge, is best understood after reading Regulation 26: "26. Suspension of an Overman 's, Sir dar 's, EngineDriver 's, shot firer 's, or Gas testing Certificate (1) If, in the opinion of the Regionl Inspector, a person to whom an Overman 's, Sirdar 's, Engine driver 's, Shot firer 's, or Gas testing Certificate has been granted ii incompetent or is guilty of negligence or misconduct in the performance of his duties, the Regional Inspector may, after giving the person an opportunity to give a written expla nation, suspend his certificate by an order in writing. 10 206SC1/77 908 (2) Where the Regional Inspector has suspended a certificate under sub regulation (1) he shall within a week of such suspen sion report the fact to the Board together with all connected papers including the expla nation if any received from the person concerned. (3) The Board may, after such inquiry as it thinks fit, either confirm or modify or reduce the period of suspension of the certif icate, or cancel the certificate. " The plain purpose of the regulation is to pre empt further harm by suspending the certificate of the shot firer 'if in the opinion of the Regional Inspector ' he 'is incompetent or is guilty of negligence or misconduct in the performance of his duties. after giving the person an opportunity to give a written explanation '. This suspension is itself a punishment liable to confirmation, modification, reduction of the period of suspension or, by way of enhancement, can cellation of the certificate by the Board. Before taking such action by way of cessation, as it were, the Board gets a report from the Regional Inspector of the fact of suspension and makes 'such enquiry as it thinks fit '. In the present case, the Board had an explanation (styled an appeal) from the respondent, and also a recommendation by the Regional Inspector for cancellation of the certificate. The latter had not suspended the delinquent but had merely hold an enquiry, reached the prima facie view of guilt and and instead of suspension at once, only made a recommenda tion to the Board for cancellation. The Regional Inspector has, among his statutory duties, the supervision of the observance of the safety rules and the holding of enquiries (see sections 7 & 14). He has to report to the Board on breaches of regulations and condi tions. The Board, in its turn, has the over all charge of the safe management of the mine. Derelictions and viola tions must reach its vigilant eye and be visited with prompt action. Jurisprudentially speaking, there is need to cast an obligation on the Board and the higher inspectorate not to be negligent, indifferent or insoucient in the discharge of its overall responsibility which includes anticipation of likely mishaps and introduction of the latest measures to promote safety for the men working in the dark depths at the mercy of the wicked mood of Yama. Any deviance on the part of these high powered authorities must be visited with tortious or criminal liability. Such is the price which high position must pay for the consequences of calamitous failures. Sensitive occupations demand stern juristic principles to reach at scapegraces, high and low, and not mere long grown out commissions whose verdicts often prove dilatory 'shelter ' for the men in whom Parliament has entrusted plenary management. We emphasize this matter to awaken the law makers to evolve a code of strict liability calling to utmost care not only the crowd of workers and others but the few who shall care or quit so that subterra nean occupations necessary for the nation are made as risk proof as technology and human vigilance permit. 909 Unfortunately, the High Court surrendered to nar rowness of interpretation of Regulation 26 by accepting the submission of the respondent. To be literal in meaning is to see the skin and miss the soul of the Regulation. The judicial key to construction is the composite perception of the deha and the dehi of the provision. So viewed, Reg. 26 is easy of comprehension. The High Court held that the order of cancellation was illegal for a few reasons which strike us as untenable. The argument runs thus. Without first suspending the cer tificate, the Regional Inspector cannot report to the Board and without such a report following upon a suspension the latter cannot take seisin of the matter. Since the Region al Inspector did not suspend the respondent, the Board had no jurisdiction. Secondly, the Regional Inspector had no power to recommend, but only to report and so the Board 's order, influenced by the recommendation, was bad in law. Thirdly, the Board should have given a fresh opportunity to be heard before cancellation of the certificate and its absence in the present case violated natural justice, void ing the order. All the three points serve to warn the courts how over judicialisation can be subversive of the justice of the law. Now, how can the cancellation order by the Board be bad for failure to suspend the certificate by the Regional Inspector ? The Board 's power is independent and is ignited by the report of the Regional Inspector. Such a report exists here. There is an overall duty of over sight vested in the Board to enforce observance of rules of safety. To invalidate the Board 's order because the Regional Inspector did not suspend the certificate is a fallacy. Now to the next point. The vice that vitiates the Board 's order is stated to be the recommendation contained in the Regional Inspector 's report. Had he suspended and reported, he would have been in order. But suspension, on an enquiry, predicates a prior prima facie finding of guilt and to make that known to the Board implicity conveys a recommendation. The difference between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee. And to set aside an order on such a ground is to enthrone a processual nicety to dethrone plain justice. The last violation regarded as a lethal objection is that Board did not enquire of the respondent, independently of the one done by the Regional Inspector. Assuming it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board. He has thus been heard and compliance with Reg. 26, in the circum stances, is complete. Natural justice. is no unruly horse, no lurking land mine, nor a judicial cure all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. 'Unnatural expansion 910 of natural justice, without reference to the administra tive realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt that is the conscience of the matter. Shri Gambir, who appeared as amicus curiae and indus triously helped the Court by citing several decisions bear ing on natural justice, could not convince us to reach a contrary conclusion. It is true that in the context of article 311 of the Constitution this Court has interpreted the quality and amplitude of the opportunity to be extended to an affected public servant. Certainly we agree with 'the principles expounded therein. But then we cannot look at law in the abstract or natural justice as a mere artifact. Nor can we fit into a rigid mould the concept of reasonable opportunity. Shri Gambhir cited before us the decisions in Teredesai(1); Management of DTU(2) and Tandon(3); and one or two other rulings. The ratio therein hardly mili tates against the realism which must inform reasonable opportunity ' or the rule against bias. If the authority which takes the final decision acts mechanically and without applying its own mind, the order may be bad, but if the decision making body, after fair and independent considera tion, reaches a conclusion which tallies with the recommen dations of the subordinate authority which held the prelim inary enquiry, there is no error in law. Recommendations are not binding but are merely raw material for considera tion. Where there is no surrender of judgment by the Board to the recommending Regional Inspector, there is no contra vention of the canons" of natural justice. We agree with Shri Gambhir that the adjudicating agency must indicate in the order, at least briefly why it takes the decision it does unless the circumstances are so clear that the conclud ing or decretal part of the order speaks for itself even regarding the reasons which have led to it. It is desirable also to communicate the report of the Inquiry Officer, including that part which relates to the recommendation in the matter of punishment, so that the representation of the delinquent may be pointed and meaningful. These general observations must be tested on the con crete facts of each case and every miniscule violation does ,not spell illegality. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. We are satisfied that the order of the Board cannot be anathematised as condemning the man without being heard. The appeal, on the point of law, must be allowed but, in the light of the concession made, as stated earlier, we leave the formal order of the High Court undisturbed. No costs. S.R. High Court orders main tained.

Under regulation 26(1) if, in the opinion of the Regional Inspector, a person to whom an Overman 's, Sirdar 's, Engine driver 's, Shot firer 's, or Gastesting Certificate has been granted is incompetent or is guilty of negligence or misconduct in the performance of his duties, he may, after giving the person an opportunity to give a written explana tion, suspend his certificate by an order in writing. U/r 26(2) he shall within a week of such suspension report the fact to the Board together with all connected papers includ ing the explanation, if any received from the person con cerned. U/r 26(3) the Board may, after such inquiry as it thinks fit, either confirm or modify or reduce the period of suspension of the certificate, or cancel the certificate. The respondent, a shot firer in a colliery, violated the provisions of the Coal Mines Regulations by entrusting his risky, technical work to an unauthorised person which re sulted in an accident injuring one Bhadu. The Regional Inspector u/r 26(1) gave him an opportunity for an explana tion in writing and after considering the materials before him forwarded the papers to the Chairman of the Board together with a recommendation for cancellation of the cer tificate under Regulation 26(3). The Board bestowed its judgment on the materials gathered which included the delin quent 's admission, and cancelled the shot firing certifi cate. The High Court allowed the writ petition assailing the orders of cancellation of the licence and held: (1) The Board had no jurisdiction since the Regional Inspector did not suspend the certificate first before reporting (2) The Regional Inspector had no power to recommend but only to report and so the Board 's order influenced by the recommen dation was bad in law and (iii) the Board should have given a fresh opportunity to be heard before cancellation of the certificate and its absence violated natural justice, void ing the order. Accepting the Court, HELD: (1 ) Law is meant to serve the living and does not beat its abstract wings in the jural void. Its functional fulfilment as 'social engineering ' depends on its scruti nized response to situation, subject matter and the complex of realities which require ordered control. A holistic understanding is simple justice to the meaning of all legis lations. Fragmentary grasp of rules can, n misfire or even backfire, as in this case. [906 H, 907 A] (2) The judicial key to construction is the composite perception of the daha and the dahi of the provision. To be literal in meaning is to see the skin and miss the soul of the Regulation. [909 A B] (3) Over judicialisation can be subversive of the justice of the law. To invalidate the Board 's order because the Regional. Inspector did not suspend the certificate is a fallacy. The Board 's power is independent and is ignited by 905 the report, which exists in this case, of the Regional Inspector. There is an overall duty of oversight vested in the board to enforce observance of rules of safety. [909 D] (4) To set aside the order on the ground that the Re gional Inspector had no power to recommend but only to suspend and report that his recommendation influenced the Board 's order is to enthrone a processual nicety do dethrone plain justice. Suspension, on a.n enquiry, predicates a prior prima facie finding of guilt and to make that known to the Board implicitly conveys a recommendation. The differ ence between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee Recommendations are not binding but are merely raw materials for consideration. Where there is no surrender. of judge ment by the Board to the recommending Regional Inspector, there is no contravention of the cannons of natural justice. [909 E F, 910D E] (5) Natural justice is no unruly horse, no lurking land mine, nor a judicial cure all. If fairness is shown by the decision maker to the man proceeded against, the form features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation. no breach of natural justice can be complained of. Unnatural expansion of natural justice. without reference to the administrative realities and other factors of a given case, can be exasperating. Courts cannot look at law in the abstract or natural justice as a mere artifact. Nor can the), fit into a rigid mould the concept of reasonable opportunity. If the totality of cir cumstances satisfies the Court that the party visited with gelverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. In the instant case, the Board cannot be anath ematised as condemning the man without being heard. The respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board. He has thus been heard dad compli ance with Regulation 26 in the circumstances is complete. [909G H, 910 A G] Tereaesai 's case ; ; Management of DTU ; Tandon 's case referred to. Observations: Sensitive occupations demand stern juristic principles to reach at scapegraces, high and low, and not mere long drawn out commissions whose verdicts often prove dilatory 'shelter ' for the men in whom Parliament his en trusted plenary management. Any sensitive jurisprudence of colliery management must make it cardinal to pt nish the Board vicariously for any major violations and dreadful disasters, on macro:considerations of responsibility to the community. The Board must quit, as a legal pendry, if any dreadful deviation. deficiency, default or negligence anywhere in the mine occurs. This is a good case for new principles of liability, based on wider rules of sociologi cal jurisprudence to tighten up the law of omission and commission at the highest levels. Responsibility and penal ty must be the concomitants of highly paid power vested in the top brass. Any deviance on the part of these high powered authorities must be visited with tortious or criminal liabilities. [908 F H, 907 D FI (The Court emphasised the need for evolving a code of strict liability calling to utmost care not only the crowd of workers and others but the few shall care or quit so that subterranean occupations necessary for the nation are made as risk proof as technology and human vigilance permit).

Civil Appeal No 3244 of 1988. From the Judgement and Order dated 8.7.1988 of the Karnataka High Court in W.A. No.560 of 1983. K.N. Bhat S.K. Kulkarni and Ms. Kiran Suri for the Appellant S.N Bhat M.Veerappa and K.H Nobin Singh for the respondents. The Judgment of the Court was delivered by N.P. SINGH, J. This appeal has been filed against an order passed by the High Court, on a writ application filed by the petitioner respondent (hereinafter referred to as "the respondent") quashing the order of termination of the service of the respondent. The respondent was appointed as a Lecturer in Surgical Oncology on 3rd July, 1981. He was to be on probation for a period of one year from the date of his appointment which period could have been extended at the discretion of the competent authority. One of the conditions provided is as follows : "Failure to complete the period of probation to the satisfaction of the competent authority will render you liable to be discharged from service. " Before the expiry of one year, the impugned order of termination was issued on 30th January, 1982 saying: "In accordance with the decision of the Governing Council at its meeting held on 28th January, 1982 the services of Dr. Pandurang Godwalkar, Lecturer in Surgical Oncology (on probation), Kidwai Memorial Institute of Oncology, Bangalore are terminated with effect from the afternoon of 30 January, 1982, as per Rule 4 of the Conditions of Service Rules (Annexure 2 Chapter I) of the Institute. He is paid one month 's salary in lieu of one month 's notice required as per rules." Although the order under challenge was order of termination simpliciter, the validity thereof was questioned by the respondent on the ground that an order of dismissal had been passed in the garb of an order of termination. According to the respondent, some complaints had been made against him to the Director of the Institute who instead of initiating a departmental proceeding on basis of charges levelled against the respondent, put up the matter before the Governing Council of the Institute for termination of the service of the respondent during the period of probation. The learned Judge in view of the assertions made on behalf of the respondent directed the institute to produce the original records including certain documents and papers which had been marked as confidential. From the note of the Director it appeared that complaints had been made in respect of performance of the duties by the respondent. In that note it was also mentioned that the respondent was unsympathetic towards the patients. It had also brought to the notice of the Governing Council that the respondent had attempted to obtain the signatures. of some of the patients on the petitions stating that he was a good doctor. On one occasion it was reported that the respondent had taken away a girl on his scooter and brought her back late in the night. The said girl was an attendant to a patient in the hospital. The learned Judge came to the conclusion that as the service of the petitioner had been terminated because of the complaints made against him it really amounted to his removal for the misconduct alleged in the note of the Director. According to the learned Judge the Institute should have initiated a departmental proceeding in respect of the alleged charges and only after due enquiry any action should have been taken. There is no dispute that the service of the respondent had been terminated during the period of probation The appointment of the respondent was with a clear condition that failure to complete the period of probation to the satisfaction of the competent authority shall render him liable to be discharged from the service. Relevant part of Rule 4 of the Conditions of Service Rules is as follows : "4. TERMlNATION : 1. All appointments shall be terminable on a notice in writing either by the appointing authority or the employee without assigning any reason as set below : a) During the period . one month of probation. b) After completion of the period 1 of probation. months. c) The notice referred to in rule (1) above shall not be necessary if in lieu thereof an amount equal to the pay and allowance for the period of notice is paid. . . . " Generally in connection with an order of termination, a question is raised before the court as to what is the motive behind the termination of the service of the employee concerned whether the reason mentioned in the order of termination has to be accepted on its face value or the background in which such order of termination simpliciter has been passed should be examined to find out as to whether an officer on probation or holding a temporary appointment has been, in fact, dismissed from the service without initiating any departmental enquiry. If an employee who is on probation or holding an appointment on temporary basis is removed from the service with stigma because of some specific charge, then a plea cannot be taken that as his service was temporary or his appointment was on probation, there was no requirement of holding any enquiry, affording such an employee an opportunity to show that the charge levelled against him is either not true or it is without any basis. But whenever the service of an employee is terminated during the period of probation or while his appointment is on temporary basis, by an order of termination simpliciter alter some preliminary enquiry it cannot he held that as some enquiry had been made against him before the issuance of order of the termination it really amounted to his removal from service on a charge as such penal in nature When an appointment is made on probation, it presupposes that the conduct, performance, ability and the capacity of the employee concerned have to be watched and examined during the period of probation. He is to be confirmed after the expiry of probation only when his service during the period of probation is found to be satisfactory and he is considered suitable for the post against which he has been appointed. The principle of tearing of the veil for finding out the real nature of the order shall be applicable only in a case where the Court is satisfied that there is a direct nexus between the charge so levelled and the action taken. If the decision is taken, to terminate the service of an employee during the period of probation, after taking into consideration the overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment. It need not be said that the appointing authority at the stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee. Even it such employee while questioning the validity of an order of termination simpliciter brings on the record that some preliminary enquiry or examination of some allegations had been made that will not vitiate the order of termination. Reference in this connection may be made to the case of Oil and Natural Gas Commission vs Dr. Mohd. section Iskender Ali; , where it was pointed out that a temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained" . It was also said that even if misconduct negligence inefficiency may be the motive or the influencing factor which induced the employer to terminate the service of the employee which such employe admittedly had under the terms of the appointment such termination cannot be held to be penalty or punishment. Same view has been reiterated in connection with appointment on temporary or ad hoc basis in the cases of Ravindra Kumar Misra vs U.P. State Handloom Corpn. Ltd, ; State of Uttar Pradesh vs Kaushal Kishore Shukla, ; and Triveni Shankar Saxena vs State of U.P., Judgements Today On behalf of the respondent reliance was placed on the case of Anoop Jaiswal vs Government of India, ; In that case the service of the appellant had been terminated during the period of probation. On the materials on record it was held by this Court that the order of termination really amounted to punishment because the real foundation of the action against the appellant was the act of misconduct on June 22, 1981. The aforesaid judgment is of no help to who respondent because in that case a clear finding was recorded by this Court that the service of the appellant had been terminated because of a particular misconduct alleged against him which had never been enquired into. So far the facts of the present case are concerned the Governing Council examined the different reports in respect of the respondent during the period of probation and considered the question as to whether he should be allowed to continue in the service of the Institute. The decision appears to have been taken by the Governing Council on the total and overall assessment of the performance of the respondent, in terms of the condition of the appointment and Rule aforesaid. Accordingly the appeal is allowed and the judgment of the High Court is set aside. However, in the circumstances of the case, there will be no order as to costs. G.N Appeal allowed.

The respondent was appointed as a Lecturer in the appellant Institute and was put on probation for one year. During the probation period his services were terminated. The respondent challenged the same before the High Court by way of a Writ Petition contending that actually order of dismissal has been passed in the garb of an order of termination; and that the Director of the institute instead of initiating a departmental proceeding on the basis of some charges levelled against him, placed the matter before the governing council of the Institute termination of his services. The High Court gave its finding that since the service of the petitioner had been terminated because of the complaints made against him, it really amounted to his removal for alleged misconduct and so the institute should have initiated a departmental proceeding and only after due enquiry any action should have been taken. Being aggrieved by the High Courts order, the appellant Institute has preferred the present appeal. Allowing the appeal, this Court, HELD: 1.1. When an appointment is made on probation, it pre supposes that the conduct, performance, ability and the capacity of the employee concerned have to be watched and examined during the period of probation. He is to be confirmed after the expiry of probation only when his service during the period of probation is found to be satisfactory and he is considered suitable for the post against which he has been appointed. The principle of tearing of the veil for finding out the real nature of the order shall be applicable only in a case where the Court is satisfied that there is a direct nexus between the charge so levelled and the action taken. If the decision is taken to terminate the service of an employee during the period of probation, after taking into consideration the overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment. The appointing authority at the stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation, is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee. [254 E H; 255 A] 1.2. Even if such employee while questioning the validity of an order of termination simpliciter brings on the record that some preliminary inquiry or examination of some allegations had been made, that will not vitiate the order of termination. [255 B] Oil and Natural Gas Commission vs Dr. Mohd section Iskender Ali ; ; Ravindra Kumar Misra vs U.P. State Handloom Corpn. Ltd., [1987] suppl. SCC 739; State of Uttar Pradesh vs Kaushal Kishore Shukla, ; and Triveni Shankar Saxena vs State of U.P., J.T. 1992 (1) S.C. 37, relied on. Anoop Jaiswal vs Government of India, ; distinguished.

Appeal No. 432 of 1961. Appeal by special leave form the judgment and order dated May 15 1959 of the Madhya Pradesh High Court in Miscellaneous Petition Nos. 301 of 1958 and 83 of 1959. B. Sen and section N. Mukerji for the Appellant. B. R. L. Iyengar and A. G. Ratnaparkhi for Respondent No. 1. I. N. Shroff, for Respondents Nos. 2 and 4. 1962. July 27. The Judgment of the Court was delivererd by DAS GUPTA, J. When under the Standing Orders of a Company the Company is empowered to take disciplinary action against an employee by proceeding in the prescribed manner can that power be legally delegated by the Company to any of its officers ? That is the principal question raised in this appeal. The appellant is Company incorporated under the Indian Companies Act having its registered office at 12, Mission Row, Calcutta. It is ' engaged in the generation and distribution of electricity at Jabalpur. The Company 's office at Jabalpur is in charge of a Resident Engineer. By a power of attorney given by the appellant company on June 26, 1957, Mr. Leonard Shell Macleod, the Company 's Resident Engineer at Jabalpur, was appointed "the company 's true and lawful attorney for and in the name of the Company to do exercise and perform all or any of the acts, matters, 455 discretions and things" set out in 11 clauses. The 10 th clause provided that "subject to the Standing Orders from time to time given by the Company to appoint, dismiss, suspend or terminate the services of any of the employees of the Company at Jabalpur. " On November 12, 1957, the respon dent Sambhu Prasad Srivastava was served with a charge sheet under the signature of Mr. Macleod in which it was alleged that he had substituted 13 coils of V.I.R. cable in the stores of the Company for the same quantity of cable of various makes from the local market, Sambhu Srivastava 's reply to this charge was that when the shortage of 13 coils came to his notice on the eve of the audit he remonstrated with his subordinates who actually handled these articles and that what he did was done in the best interests of the Company and that he never acted with any dishonest intention. An enquiry was then held by the Resident Engineer and ultimately on January 16, 1958, the Resident Engineer issued a letter to him in these terms : "With reference to charge sheet dated 12th November, 1957, and the subsequent investigations in the case against you,, please note that the matter has been very carefully considered, and in accordance with the interview which you had with our Chief Engineer, Mr. J. W. Fawcett, on the morning of the 15 th January, 1958, we ;hereby notify you that the Company does not find it possible to. retain yo ur services. Therefore, you are hereby discharged from the service of the Company, with immediate effect. Please call at the Company 's office on the 17th instant,to receive final settlement of your dues from the Company. " 456 Srivastava then applied to the Assistant Labour Commissioner, Jabalpur, alleging that this order was in contravention of the provision of the C. P. & Berar Industrial Tribunal Settlement Act and of the Standing Orders as the powers of the Company under the Standing Orders to hold the enquiry can be exercised only the Managing Director. It was also alleged that the order though in from an order for discharge was really an order of dismissal and that cls. 14, 18 19 and 20 of the Standing Orders had been violated. The Company pleaded in its reply that under the 'power of attorney the Resident Engineer had the power to hold an enquiry and take disciplinary action against an employee and the action by him should be considered in law to amount to an action by the Company. It was pleaded that the provisions of the Standing Orders had not been violated. The Assistant Labour Commissioner made an order on September 10, 1958, ordering reinstatement of the respondent without break in his service but without payment of back wages. The State Industrial Court which was moved both by the Company and by the employee held that the order of discharge was in substance an order of dismissal, and that misconduct alleged was not proved, and that in any case the Resident Engineer was not empowered to hold an enquiry and to issue an order of discharge. It refused to interfere with the order passed by the Assistant Labour Commissioner and rejected both the revisional applications. Both parties then moved the Madhya Pradesh High Court for relief under article 226 of the Constitution. The High Court held that the powers. under cl.19 of the Standing Orders could not be delegated to the Resident Engineer and also that th 457 general right reserved to the Company under cl. 20 of the Standing Orders was meant to be exercised by it and was not covered by the delegation under cl. 10 of the power of attorney. The High Court seems to have thought also that the order made by the Resident Engineer was not Under el. 20 of the Standing Orders. Accordingly, the High Court refused to interfere with the order of reinstatement and dismissed the Company 's application under article 226. It allowed the employee 's application under article 226, being of opinion that the Assistant Labour Commissioner had no discretion in the matter of back wages and was bound to order payment of back wages as soon an order of reinstatement was made. Before considering the question whether the Company could delegate its power to take disciplinary action against its employees it will be proper to clear the ground on the question whether the order was made under cl.19 or cl. 20 of the Standing Orders. Clause 18 of the Standing Orders mentions inter as that theft, fraud, or dishonesty in connection with the Company 's business or property will be treated as misconduct. Clause 19 provides various penalties for misconduct. The substance of these provisions is: that an employee who is adjudged by the Company on examination of the employee and of facts to be guilty of misconduct is liable to be summarily dismissed without notice or compensation in lieu of notice or alternatively to be suspended for a period not exceeding fourteen days; that the order of dismissal or suspension shall be in writing over the signature of an officer duly authorised for this pur pose, and shall also briefly mention the reason on. which it is based, and that no order for dismissal or suspension under this Standing Order shall be made unless the employee is informed in writing of 458 the misconduct alleged against him and that he shall be given an opportunity to produce evidence in his defence. Clause 20 does not deal with dismissal or suspension but provides that "the Company has at all times a general right to discharge an employee from service not only for proved misconduct but also when the employer has lost confidence in the employee. " Clause 21 provides for notice of censure to be given for certain acts or omissions. An examination of these provisions shows that for an order of dismissal under cl. 19 to be made a special procedure is to be followed and when it is made the employee is not entitled to any compensation. Examining now the order made on January 16, 1958, we find that while cl. 20 has not been mentioned it does not say that the employee has been found guilty of misconduct but merely states that " 'the Company does not find it possible to retain (this employee 's) services" and reference is made to the investigations in the case against him and to an interview he had with the chief Engineer, Mr. J. W. Fawcett, on the morning of the 15th January, 1958. The only reasonable view to take of this order, in our opinion, is that this order was being made under cl. 20 on the ground that the employer had lost con fidence in the employee and was in fact and in law an order of discharge as distinct from an order of dismissal or suspension. It appears to us that while the Resident Engineer who held the enquiry may, have been satisfied that an act of misconduct 'for which the employee was liable to dismissal had been proved he took a merciful view of has conduct in view of his previous clean record, and proceeded accordingly to act under cl. 20 of the Standing Orders instead of proceeding under cl. 19. This is a case in which the employer has acted, fairly and even generously in terminating the cases of the employee under el. 459 The question remains whether the Resident Engineer could take action under cl. 20. The employee 's argument, which found favour with the High Court was that it was the Company alone which could take action under clause 20 and the Resident Engineer in his capacity as the Resident Engineer apart from anything else, was not competent to take action under el. 20 For, cl. 20 empowers the Company and not the Resident Engineer as such to discharge an employee on the ground that the employer had lost confidence in him, In the present case, however, it was not the Resident Engineer in his capacity as the Resident Engineer that made the order of discharge. Clearly in making the order of discharge he was acting on the basis of the power of attorney executed in h0is favour on June 26, 1957. Under cl. 10 of the power of attorney he had power "subject to the Standing Orders from time to time given by the Company to appoint, dismiss, suspend or terminate the services of any of the employees of the Company at Jabalpur. " The power of the Company under el. 19 of the Standing Orders to dismiss or suspend and its power under el. 20 to discharge an employee are both covered by cl.10 of the power of attorney, If there be nothing in law to prevent these powers being delegated to the Resident Engineer there could be no escape from the conclusion that the exercise of the power cl. 20 in the present case by the Resident Engineer amounted in law to an exercise of the power by the Company itself, Is there anything in law which bars such delegation? We are unable to find any. It is obvious. and admitted that when a Company has to exercise its powers in connection with the management of its business it is not all the share holders of the Company that have to meet to exercise the power. How the Company will regulate its business is prescribed in its Articles of Association. It is nobody 's 460 case that in the Articles of Association of the Jabalpur Electric Supply Co., there is anything barring the delegation of the disciplinary powers of the Company to any of its officers. In law therefore delegation of the functions of the Company may properly be made having regard to the exigencies. of the business and the Articles of Association. It cannot be reasonably disputed that where the Head Office of the Company is at Calcutta and the main business is to be carried on at Jabalpur the exigencies of the business do require delegation of the Company 's power to take disciplinary action against its employees to a responsible Official like the Resident Engineer, But whether or not the Company might have done without such delegation is a matter which it is unnecessary for us to enquire into. The delegation was made and, neither on principle nor on authority is it possible to say that the delegation was against the provisions of law. Nor can we see that the words 'subject to the Standing Orders from time to time given by the Company" with which cl. 10 of the power of attorney opens affects the delegation. On a proper interpretation of these words their only effect is that in exercising the power to appoint, dismiss, suspend or terminate the services of the employees at Jabalpur the delegate cannot do anything beyond what the company itself can do under the Standing Orders. On no reasonable construction of the words can they mean that the delegate cannot exercise these powers at all, because under the Standing Orders the Company itself is given these powers. Whether it is the power to take action under cl.19 or under cl.20 of the Standing Orders the delegate can exercise these powers under cl. 10 of the power of attorney in the same way as if the delegate was the Company itself. 461 We therefore hold, disagreeing with the High Court, and the Courts below$ that the order of discharge made by the Resident Engineer was in exercise of the power validly delegated to him and that there, has been no breach of the Standing Orders by such action, We therefore allow the appeal, set aside the order passed by the High Court and direct that the appellant 's application under article 226 of the Constitution be allowed and the order made by the Assistant Labour Commissioner dated September 10, 1958, ordering, reinstatement of the respondent, Sambhu Prasad Srivastava be set aside. There will be no order as to costs. Appeal allowed.

The appellant company had its Head Office in Calcutta generated electricity for distribution at Jabalpur. By cl. 10 of the power of attorney executed by it, it authorised its Resident Engineer at Jabalpur, "subject to the Standing Orders from, time to time, given by the Company to appoint, dismiss, suspend or terminate the services of any of the employees of the Company at jabalpur". The respondent was charge sheeted and after enquiry discharged by the Resident Engineer. He made an application to the Assistant Labour Commissioner who ordered his reinstatement without break in his service by without payment of back wages. The State Industrial Court, on revision applications by both the parties held that the Resident Engineer was not empowered to hold the enquiry and to issue an order of discharge and refused to interfere. Both the parties moved the High Court under article 226 of the Constitution. The High Court took the view that the powers of dismissal and suspension under cl. 19 of the Standing Orders and the general right to discharge an employee under cl. 20 of the Standing Orders could not be, and latter powers had not actually been, delegated to the Resident Engineer and allowed the respondent 's application with back wages. Held, that the delegation of power by the power of attorney was vailed in law and covered powers both under cl. 19 and cl. 20 of the Standing Orders. There was nothing in law, or in the Articles of the Association of the Company that forbade such delegation and the. company therefore, could, delegate the powers to meet the exigencies of its business . The opening words of cl. 10 of the power of attorney did not mean that the delegate could not at all exercise the powers since under the Standing Orders the company alone 454 could do so. Their effect is that in exercising these powers the delegate cannot do anything that the company could not do under the Standing orders.

ax Reference Case No. 15 of 1975. Tax Reference under Section 257 of the Income Tax Act, 1961 made by the Income Tax Appellate Tribunal Delhi Bench R.A. No. 508 of 1971 72 arising out of I.T.A. No. 3410 of 70 71 for assessment year 1964 65. section L. Aneja and K. L. Taneja for the Appellant. section C. Manchanda, G. A. Shah and Miss A. Subhashini for the Respondent. The Judgment of the Court was delivered by PATHAK, J. Is an assessee, who has concealed the particulars of his income, liable to penalty under clause (iii) of sub section (1) of section 271 of the Income Tax Act, 1961 as it stood on the date of the concealment or as it stand during the assessment year relevant to the previous year in which the income was earned ? That is the question in this reference made by the Income Tax Appellate Tribunal under section 257 of the Income Tax Act. The assessee is a partner in two firms, Messrs. Hindustan Pottery Agency and Messrs. New Crockery House. He filed a return of his total income for the assessment year 1964 65 on April 201 24, 1968. He disclosed an income of Rs. 460/ from his share in the profits of Messrs. Hindustan Pottery Agency. He did not disclose the income from his share in Messrs. New Crockery House. In the course of the assessment proceedings, the Income Tax officer found that the assessee had received income from Messrs. New Crockery House also. Because of non compliance by the assessee with a notice issued under section 143 (2) of the Act, the Income Tax officer made a best judgment assessment under Section 144 of the Act on a total income of Rs. 12,118/ . This included a share income of Rs. 1,462/ from Messrs. Hindustan Pottery Agency and a share income of Rs. 3,456/ from Messrs. New Crockery House. Certain other items of income were also included. On appeal by the assessee, the Appellate Assistant Commissioner reduced the income from Messrs. New Crockery House to Rs. 2,955/ and taking into account certain other items determined the figure of concealed income at Rs. 7,357. The Income Tax officer instituted penalty proceedings, and applied clause (iii) of sub section (1) of section 271 of the Act, as it stand after amendment by the Finance Act, 1968. Having regard to the minimum penalty which, in his opinion, was leviable, he referred the case to the Inspecting Assistant Commissioner. The Inspecting Assistant Commissioner examined the matter, and on the basis that the concealed income was Rs. 7,357/ he imposed a 13 penalty in the like sum, in view of the amended clause (iii) of subsection (1) of section 271 of the Act. The assessee appealed to the Income Tax Appellate Tribunal, and contended that the amended provision could not be invoked and what came into operation was the law as it stood in the assessment year 1964 65. The Tribunal rejected the contention. But it reduced the penalty to Rs. 2,955/ taking the view that the assessee was guilty of concealing the share income from Messrs. New Crockery House only. The assessee then applied for a reference. The Tribunal saw a conflict of opinion on the point raised by the assessee between the Kerala High Court in Hajee K. Asseinar vs Commissioner of Income Tax, Kerala and the Punjab and Haryana High Court in Income Tax Reference No. 45 of 1971 (decided on April, 26, 1972) which had followed Saeed Ahmed vs Inspecting Assistant Commissioner of Income tax, Range ll, Lucknow(2) decided by the Allahabad High Court . In the circumstances, it made the present reference directly to this Court on the following question of law: 202 "Whether the Tribunal was, in law, right in sustaining the penalty of Rs. 2,955/ by applying the provisions of section 271(1)(c) (iii) of the Income Tax Act, 1961 as amended with effect from 1 4 1968 ?" Section 271 of the Income Tax Act provides for penalties in certain cases. Clause (c) of sub section (1) of section 271 speaks of a case where the Income Tax officer is satisfied that a person has concealed the particulars of his income or furnished inaccurate particulars of such income. The measure of the penalty is specified in clause (iii) of the sub section. During the assessment year 1964 65, clause (iii) read "(iii) in the cases referred to in clause (c), in addition to any tax payable by him, a sum which shall not be less than twenty per cent but which shall not exceed one and a half times the amount of the tax, if any, which would have been avoided if the income as returned by such person had been accepted as the correct income." That clause was substituted with effect from April 1, 1968 by the Finance Act, 1968 by the following: "(iii) in the cases referred to in clause (c), in addition to any tax payable by him, a sum which shall not be less than, but which shall not exceed twice, the amount of the income in respect of which the particulars have been concealed or inaccurate particulars have been furnished. ' It is evident that the quantum of tax which is levied under the substituted clause (iii) can be greater than that imposable in terms of the original clause (iii). The case of the assessee is that an assessment proceeding for the determination of the total income and the computation of the tax liability must ordinarily be made on the basis of the law prevailing during the assessment year, and inasmuch as concealment of income is concerned with the income relevant for assessment during the assessment year any penalty imposed in respect of concealment of such income must also be governed by the law pertaining to that assessment year. We are unable to accept the contention. In our opinion, the assessment of the total income and the computation of tax liability is a proceeding which for that purpose, is governed by entirely different considerations from a proceeding for penalty imposed for concealment of income And this is so notwithstanding that the income concealed is the income assessed to tax. 203 In the case of the assessment of income and the determination of the consequent tax liability, the relevant law is the law which rules during the assessment year in respect of which the total income is assessed and the tax liability determined. The rate of tax is determined by the relevant Finance Act. In the case of a penalty, however, we must remember that a penalty is imposed on account of the commission of a wrongful act, and plainly it is the law operating on the date on which the wrongful act is committed which determines the penalty. Where penalty is imposed for concealment of particulars of income, it is the law ruling on the date when the act of concealment takes place which is relevant. It is wholly immaterial that the income concealed was to be assessed in relation to an assessment year in the past. We do not think that the cases to which the Tribunal has referred can be said to differ on this. The concealment of the particulars of his income was effected by the assessee when he filed a return of total income on April 24, 196$,. Accordingly, it is the substituted clause (iii), brought in by the Finance Act. 1968, which governs the case. That clause came into effect from April 1, 1968. Another contention raised by the assessee may be noticed. It is urged that under section 139 of the Income Tax Act, as it stood during the assessment year 1964 65 the return of income should have been filed by the end of September, 1964 and inasmuch as the return, although filed as late as April 24, 1968, was accepted by the Income Tax officer it should be deemed that the return was treated as filed within time or, in other words, that the return had been filed by September 3(), 1964. In that event, the submission continues, the concealment of the particulars of income must be deemed to have taken place when the original clause (iii) of section (1) of section 271 of the Act was in operation. This contention is also without force. Under section 139 of the Act, although the statute itself prescribes the date by which a return of income must be filed, power has been conferred on the Income Tax officer to extend the date of furnishing the return. A return filed within the extended period is a good return in the sense that the Income Tax officer is bound to take it into consideration. But nowhere does section 13 declare that where a return is filed within the extended period it will be deemed to have been filed within the period originally prescribed by the statute. On the contrary, the section contains a provision for payment of interest where the return is filed beyond the 204 prescribed date even though within the extended period. That is evidence of the fact that the return filed during the extended period is not regarded by the statute as filed within the time originally prescribed. Accordingly, we are of opinion that clause (iii) substituted in sub section (1) of section 271 of the Income Tax Act, 1961 by the Finance Act, 1968, governs the case before us and, therefore, the penalty imposed on the assessee in the instant case is covered by that provision. We answer the question in the affirmative, in favour of the Revenue and against the assessee. The Revenue is entitled to its costs of this Reference.

Section 271(1)(c)(iii) provided that where the Income Tax officer had reason to believe that the assessee had concealed particulars of his income or furnished inaccurate particulars of such income he may impose a penalty of a sum in addition to any tax payable by the assessee which shall not be less than twenty per cent but which shall not exceed one and a half times the amount of the tax. The Finance Act 1968, which came into effect from April 1, 1968, enhanced the penalty to a sum which shall not be less than 7 but which shall not exceed twice. the amount of income in respect of which the particulars have been concealed or inaccurate particulars have been furnished. The assessee filed a return of his total income for the assessment year 1964 65 on 24th April, 1968. In the course of assessment proceedings, the Income Tax officer found that the assessee had concealed the income earned from one of his two firms. Having regard to the minimum penalty which he considered was leviable, he referred the case to the Inspecting Assistant Commissioner. The Inspecting Assistant Commissioner imposed a penalty in respect of the concealed income in accordance with section 271 (1) (c) (iii) as amended by the Finance Act 1968. It was argued on behalf of the assessee that (i) assessment proceeding for the determination of total income and computation of tax liability must ordinarily he made on the basis of the law prevailing during the assessment year, and inasmuch an concealment of income is concerned with the income relevant for assessment during the assessment year any penalty Imposed in respect of concealment of such income must also be governed by the law pertaining to that assessment year, (ii) under section 139 of the Act as it stood during the assessment year 1964 65, the return of income should have been filed by the end of September 1964 and as the return although filed on April 24, 1968 was accepted by the Income Tax officer and therefore should be deemed to have been filed within time i.e. by September 30, 1964 the penalty would be governed by the section as it originally stood then. ^ HELD: 1. Clause (iii) substituted in sub section (1) of section 271 of the Income Tax Act, 1961 by the Finance Act, 1968, governs the case. Therefore, the penalty imposed on the assessee in the instant case is covered by that provision [204B] 2. The assessment of the total income and the computation of tax liability is a proceeding which for that purpose, is governed by entirely different considerations from a proceeding for penalty imposed for concealment of income. And this is so notwithstanding that the income concealed is the income assessed 200 to tax. In the case of the assessment of income and the determination of the consequent tax liability, the relevant law is the law which rules during the 1 assessment year in respect of which the total income is assessed and the tax liability determined. The rate of tax is determined by the relevant Finance Act. In the case of a penalty, however, it is imposed on account of the commission of a wrongful act. It is the law operating on the date on which the wrongful act is committed which determines the penalty. Where penalty is imposed for concealment of particulars of income, it is the law ruling on the date when the act of concealment takes place which is relevant. It is wholly immaterial that the income concealed was to be assessed in relation to an assessment Year in the past. [202G H, 203A C] 3. Under section 139 of the Act, although the statute itself prescribes the date by which a return of income must be filed, power has been conferred on the Income Tax Officer to extend the date of furnishing the return. A return filed within the extended period is a good return in the sense that the Income Tax officer is bound to take it into consideration. But nowhere does section 139 declare that where a return is filed within the extended period it will be deemed to have been filed within the period originally prescribed by the statute. On the contrary, the section contains a provision for payment of interest where the return filed beyond the prescribed date even though within the extended period. That is evidence of the fact that the return filed during the extended period is not regarded by the statute as filed within the time originally prescribed. [203 F H, 204A]

Civil Appeal No. 811 of 1979. Appeal by special leave from the Judgment and Order dated 18 12 1970 of the Allahabad High Court in Crl. Revision No. 170 of 1975. O. P. Rana and M. Ramachandran for the Appellant. Nemo for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The Officer who was investigating into offences under Section 120 B, 420, 468 and 471 Indian Penal Code alleged against the respondent, Ram Babu Misra, moved the Chief Judicial Magistrate, Lucknow, to direct the accused to give his specimen writing for the purpose of comparison with certain disputed writings. The learned Magistrate held that he had no power to do so when the case was still under investigation. His view has been upheld by the High Court. The State has preferred this appeal by Special Leave of this Court. Shri O. P. Rana, learned Counsel for the appellant, contended that Section 73 of the Evidence Act conferred ample power on the Magistrate to direct the accused to give his specimen writing even during the course of investigation. He also urged that it would be generally in the interests of the administration of justice for the Magistrate to direct the accused to give his specimen writing when the case was still under investigation, since that would enable the investigating agency not to place the accused before the Magistrate for trial or enquiry, if the disputed writing, as a result of comparison with the specimen writing, was found not to have been made by the accused. While we agree with Mr. Rana that a direction by the Magistrate to the accused to give his specimen writing when the case is still under investigation would surely be in the interests of the administration of justice, we find ourselves unable to agree with his submission that section 73 of the Evidence Act enables the Magistrate to give such a direction even when the case is still under investigation. 1069 Section 73 of the Evidence Act is as follows: "73. In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications to finger impressions". The second paragraph of section 73 enables the Court to direct any person present in Court to give specimen writings "for the purpose of enabling the Court to compare" such writings with writings alleged to have been written by such person. The clear implication of the words "for the purpose of enabling the Court to compare" is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare ' and not for the purpose of enabling the investigating or other agency 'to compare '. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not ? Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the Court under section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings ? 1070 We may also refer here to Section 5 of the , which provides: "5. If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer: Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class: Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding". Section 2(a) of the Act defines "measurements" as including "finger impressions and foot print impressions". There are two things to be noticed here. First, signature and writing are excluded from the range of section 5 of the and, second, 'finger impression ' are included in both section 73 of the Evidence Act and section 5 of the . A possible view is that it was thought that section 73 of the Evidence Act would not take in the stage of investigation and so section 5 of the made special provision for that stage and even while making such provision, signature and writings were deliberately excluded. As we said, this is a possible view but not one on which we desire to rest our conclusion. Our conclusion rests on the language of section 73 of the Evidence Act. Section 73 of the Evidence Act was considered by us in State (Delhi Administration) vs Pali Ram(1), where we held that a Court holding an enquiry under the Criminal Procedure Code was entitled under section 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the Court by which he may be tried to compare it with disputed writings. The present question whether such a direction, under section 73 of the Evidence Act, can be given when the matter is still under investigation and there is no proceeding before the Court was expressly left open. The question was also not considered in State of Bombay vs Kathi Kalu Oghad,(2) 1071 where the question which was actually decided was that no testimonial compulsion under article 20(3) of the Constitution was involved in a direction to give specimen signature and hand writing for the purpose of comparison. The view expressed by us in the earlier paragraphs, on the construction of section 73, Evidence Act was the view taken by the Madras High Court in T. Subbiah vs section K. D. Ramaswamy Nadar(1), the Calcutta High Court in Farid Ahmed vs the State(2) (Mitter J., at page 32). and Priti Ranjan Ghosh & Ors. vs The State(3), the High Court of Punjab and Haryana in Dharamvir Singh vs State(4), the High Court of Madhya Pradesh in Brij Bhushan Raghunandan Prasad vs The State(5), the Orissa High Court in Srikant Rout vs State of Orissa(6) and the Allahabad High Court in the judgment under appeal. A contrary view was taken by the Patna High Court in Gulzar Khan & Ors. vs State(7) and the High Court of Andhra Pradesh in B. Rami Reddy & Ors. vs State of Andhra Pradesh.(8) We do not agree with the latter view. We accordingly dismiss the appeal and while doing so we would suggest the suitable legislation may be made on the analogy of section 5 of the , to provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings. section R. Appeal dismissed.

Dismissing the appeal by special leave, the Court: ^ HELD: Though a direction by the Magistrate to the accused to give his specimen writing when the case is still under investigation would surely be in the interests of the administration of justice, Section 73 of the Evidence Act does not enable the Magistrate to give such a direction when the case is still under investigation. [1068G H] The second paragraph of Section 73 enables the Court to direct any person present in Court to give specimen writings "for the purpose of enabling the Court to compare" such writings with writings alleged to have been written by such person. The clear implication of the words "for the purpose of enabling the Court to compare" is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare ' and not for the purpose of enabling the investigating or other agency 'to compare '. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. [1069D F] (ii) Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. It would not be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not. That being the position, it should not make any difference if the investigating agency seeks the assistance of the court under section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings. [1069G H] State (Delhi Admn.) vs Pali Ram, ; and State of Bombay vs Kathi Kalu Oghad, ; ; distinguished. State of Bombay vs Kathi Kalu Oghad, ; ; T. Subbaiah vs section K. D. Ramaswamy Nadar, AIR 1970 Mad. 85; Farid Ahmed vs The State, AIR 1960 Cal. 32; Priti Ranjan Ghosh and others vs The State, 77 C.W.N. 1068 865; Dharamvir Singh vs State, & Haryana); Brij Bhushan Raghunandan Pd. vs The State, AIR 1957 M.P. 106; and Srikant Rout vs State of Orissa, 1972 (2) Cuttack Weekly Reporter 1332; approved. Gulzar Khan and Ors. vs State, AIR 1962 Patna 255 and B. Rami Reddy and Ors. vs State of A.P., ; over ruled. [The Court suggested that suitable legislation may be made on the analogy of section 5 of the Identification of Prisoners Act, to provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings.]

ivil Appeal Nos. 259 to 261 (NT)/77 etc. From the Judgment and Order dated 21.10.76 and 24.12.76 of the Andhra Pradesh High Court in W.P. Nos. 439 and 287 of 1975 and 4144 of 1976 and W. P. No.8905 of 1987 A.S. Nambiar, B. Parthasarthi and B. Kanta Rao for the Appellants. P.A. Choudhary, T.V.S.N. Chari, Badridas and Ms. V. Grover for the Respondents. PG NO 1090 The Judgment of the Court was delivered by RANGANATHAN, J. A common question is involved in all these matters which are, therefore, being disposed of by this common judgment. The question is whether tobacco seed oil and tobacco seed cake are entitled to exemption under the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as the `Act '). The question arises in the following circumstances. Section 8 of the Act confers an exemption from sales tax in respect of certain goods. It provides that: `Subject to such restrictions and conditions as may be prescribed including conditions as to licence fees, a dealer who deals in the goods specified in the fourth schedule shall be exempt from tax under this Act in respect of such goods. ' Entry 7 in the Fourth Schedule was `tobacco and all its products. ' 3. The Andhra Pradesh High Court in Amara Purushotham Mamidi Obaiah & Co. vs State of A.P., [1962] 29 STC 654, was called upon to consider whether tobacco seed, tobacco seed oil and tobacco seed cake were exempt from sales tax under the above provision. The Bench held that tobacco seeds could be said to be tobacco only so long as they remain attached to the plant. They, however, ceased to be tobacco the moment they are removed from the plant. Thereafter, they may be considered to be a product of tobacco. But they constitute a separate and a distinct class of goods with independent properties and potentialities not the same as those of the parent plant. Products manufactured out of tobacco seed could not be said to be products of tobacco. The Court, in this context, referred to the analogy of cotton seeds, which have been considered to be distinct from cotton. The above Bench decision was rendered in spite of the wide words of the exemption, which covered not only tobacco in its comprehensive sense but also all products of tobacco. The Act was amended by Amendment Act 9 of 1970. There was a slight amendment, which is not material for our present purpose, in section 8 which substituted the words "licences and licence fees" in place of words "licence fees" alone which had been mentioned in the section previously. Tobacco continued to be the item in entry 7 of the Fourth Schedule but this entry now referred only to "tobacco". The words "and all its products", which had been used earlier, were omitted. An explanation was added to the PG NO 1091 Fourth Schedule to the following effect: "Explanation Expressions in items 5, 6 and 7 have the same meanings assigned to them in Additional Duties of Excise (Goods of Special Importance) Act of 1957 (Central Act 58 of 1957.)" 5. The new explanation to Schedule IV makes it necessary for us to consider the provisions of Central Act 58 of 1957. This is an Act which provides for the levy and collection of additional duties of excise in respect of certain goods, over and above the duties of excise levied and collected in respect of such goods under the Central Excise and Salt Act, 1944 (hereinafter referred to as the `1944 Act '). The statement of objects and reasons of Act 58 of 1957 has been referred to before us and its short contents may be extracted here: "The object of the bill is to impose additional duties of excise in replacement of the sales taxes levied by the Union and States on sugar, tobacco and millmade textiles and to distribute the net proceeds of these taxes, except the proceeds attributable to Union Territories, to the States. The distribution of proceeds of the additional duties broadly follows the pattern recommended by the Second Finance Commission. Provision has been made that the States which levy a tax on the sale or purchase of these commodities after the 1st April, 1958 do not participate in the distribution of the net proceeds. Provision is also being made in the Bill for including these three goods in the category of goods declared to be of special importance in inter State trade or commerce so that, following the imposition of uniform duties of excise on them, the rates of sales tax, if levied by any State are subject from 1st April, 1958 to the restrictions in section 15 of the . " In short, the object of the Act was to substitute additional duties of excise in place of sales tax so far as these goods were concerned. Since the State Legislature were at liberty, if they wished, to levy taxes on the sale or purchase of these commodities, the Act provided that the additional excise duties will be distributed only among such States as did not levy a tax on the sale or purchase of these commodities. Also, by including these goods in the category of goods declared to be of special importance in inter State PG NO 1092 trade or commerce, the legislation ensured that, if any State levied sales tax in respect of these commodities, such levy was subject to the restrictions contained in the . 6. Apparently, the intention of the Andhra State Legislature when the Amendment Act of 1970 was introduced was to exempt certain goods from the purview of sales tax because they also came within the purview of the levy of additional duties of excise under Act 58 of 1957. This is the reason why the Explanation to the entries in the Fourth Schedule to the Act incorporated the definition of these goods as contained in Act 58 of 1957. Turning then to Act 58 of 1957, section 2(c) of that Act provided that the words and expressions "sugar", "tobacco", "cotton fabrics" and "woollen fabrics" to mention only four of the items referred to in the definition section shall have the same meanings respectively as have been assigned to them in Item Nos. 1, 4, 19 and 21 of the First Schedule to the 1944 Act. The above definition takes us to the 1944 Act. There the definition of the word `tobacco ' is contained in item No. 4 of the First Schedule. The definition reads: "Tobacco means any form of tobacco, whether cured or uncured and whether manufactured or not and includes the leaf, stalks and stems of the tobacco plant, but does not include any part of a tobacco plant while still attached to the earth." The Schedule thereafter proceeds to set out two broad categories, namely, unmanufactured tobacco and manufactured tobacco. The former is divided into eight sub categories in respect of each of which a separate duty of excise is prescribed. Three of the entries mentioned are: (3) if flue cured and not otherwise specified. (6) if other than flue cured and not otherwise specified. (8) Stalks The second category of manufactured tobacco is classified into various items like cigars and cheroots, cigarettes, PG NO 1093 biris, smoking mixtures for pipes and cigarettes and chewing tobacco of various kinds, snuff and hookah tobacco. The question whether tobacco seed oil and tobacco cake fall within entry 7 of Schedule IV to the Act, as amended, came up for consideration before a Division Bench of the same High Court (1977 40 S.T.C. 572). This Bench agreed with the conclusion of the earlier Division Bench, though not with its line of reasoning. It was of the view that the definition clause, properly interpreted in the light of the decision of the House of Lords in Dilworth vs Commissioners of Stamps, [1899] A.C. 99 and C.I. T. vs Taj Mahal Hotel, , justified the inference that "tobacco seed" was not "tobacco" and that only leaf, stalks and stems of the tobacco plant could be said to be "tobacco" within the meaning of the definition in item 4 of the Schedule to the 1944 Act. The Bench concluded: "Under these circumstances, it is obvious that the definition of the word "tobacco" according to item 4 of Schedule I to the Central Excises and Salt Act of 1944 does not bring "tobacco seed" within its purview, and therefore, tobacco seed is not exempted from the levy of sales tax under the A.P. General Sales Tax Act, since tobacco seed does not fall within the meaning of the word "tobacco" as defined in the Fourth Schedule to the A.P. General Sales Tax Act. It is clear in view of this conclusion of ours that since tobacco seed is not "tobacco" for purposes of exemption under section 8 of the Act, much less can tobacco seed oil or tobacco seed oil cake or tobacco seed cake can be said to be tobacco for the purposes of this exemption. " The Bench, therefore, denied the exemption to the appellants/petitioners before us and hence these petitions/appeals. Before us, it is urged on behalf of the asessees that the word "tobacco", in its ordinary connotation, takes in the tobacco plant and every part of it, including the seed. The definition also make it clear that it takes in every form of tobacco, manufactured or unmanufactured. Thus tobacco seeds, not only when they are in their raw unmanufactured state but also when, on manufacture, they manifest themselves in the form of tobacco seed oil or tobacco seed cake will fall within the definition. On the other hand. on behalf of the State it is submitted that the PG NO 1094 definition, which covers both what the expression means as well as what it includes, is exhaustive. Tobacco seed does not come within the first part of the definition, for the expression "tobacco, cured or uncured, manufactured or unmanufactured" has to be read as a whole and will not take in tobacco seed. It will not come under the second part because it specifically mentions leaves, stalks and stems but leaves out seeds. Since tobacco seeds do not fall within the definition, the oil and cake produced by the crushing of the seeds will not also be covered by the definition or eligible for the consequent exemption. We are inclined to accept the contention urged on behalf of the State that the definition under consideration which consists of two separate parts which specify what the expression means and also what it includes is obviously meant to be exhaustive. As Lord Watson observed in Dilworth vs Commissioner of Stamps, [1899] AC 99 the joint use of the words "mean and include" can have this effect. He said, in a passage quoted with approval in earlier decisions of this Court: Sect. 2 is, beyond all question, an interpretation clauses, and must have been intended by the Legislature to be taken into account in construing the expression "charitable device or bequest," as it occurs in section 3. It is not said in terms that "charitable bequest" shall mean one or other of the things which are enumerated, but that it shall "include" them. The word "include" is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used 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. 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." (Underlining ours) PG NO 1095 13. Looking, therefore, at the terms of the definition more closely, it is quite clear that tobacco seeds do not fall within the second or inclusive part of the definition. This part of the definition is important. It specifically excludes from the definition any part of the tobacco plant so long as it is still attached to the earth. It makes mention only of parts of the plant after it is severed from the earth. It is common knowledge that when a plant is severed from the earth, its parts will comprise of not only the leaves, stalks and stems but also the seeds. Yet the inclusive part of the definition enumerates only the leaves, stalks and stems and, deliberately one should think, avoids mention of seeds. Can then the words `tobacco ' and `any form of tobacco ' in the first part of the definition be given a wider meaning and read as including the seeds also, particularly as it talks of tobacco in any form, cured or uncured, manufactured or unmanufactured? We do not think they can be for several reasons. In the first place, tobacco seeds hardly answer to the description of either the expression `manufactured tobacco ' or the expression `unmanufactured tobacco ' in their ordinary connotation; and the expression `cured or uncured ' cannot also be associated with tobacco seeds. The expression used in the first part of the definition, though very wide, is, therefore, singularly inappropriate to take within its purview tobacco seeds as well. Secondly, the definition occurs in a statute levying excise duty which is concerned not with the parts of a plant grown on the field but with the use to which those parts are put or can be put after severance. The legislature could not but have been aware that if the leaves, stalk and stem of the tobacco plant are used for manufacturing cured tobacco, biris, cigarettes and so on, the seed is also used to produce oil and cake. It takes care to mention the first three items which are used in the manufacture of some forms of tobacco consumption which are also enumerated but refrains from referring to seeds which it would have done had it been intended to include the oil and cake also for purposes of the levy. The categories of unmanufactured tobacco enumerated in the entry in the Schedule include `stalks ' but not `seeds '. This also indicates that seeds are not intended to be included. In other words, the omission of the word `seeds ' from the second part of the definition casts its shadow on the first part as well. Indeed it rather looks as if the second part of the definition is intended to restrict rather than expand the scope of the first part. Thirdly, it is to be noticed that the first part of definition is somewhat restrictively worded. It could have said, for instance, that `tobacco ' means any part of the tobacco plant and includes its leaves, and stems after the plant is severed from the earth. What it does say is, PG NO 1096 however, different. The present definition, when it says that tobacco means any form of tobacco lays emphasis that the item under consideration should be tobacco inform. The leaves, stalks and stems, even after drying, curing and other processes and even `manufacture ' retain the form of tobacco, as understood in common parlance. But it is otherwise with the seeds. They are not tobacco in form. They do not have the properties of tobacco. They are not used to exploit the narcotic qualities of tobacco. Apart from their use for seeding purposes, the seeds are only used for the manufacture of oil and cake. We are told that the oil is used as an ingredient in the manufacture of scents and the cake as manure. Having regard to all this, we agree with the High Court that tobacco seed once it is separated from the plant, is an item entirely different from tobacco and does not fall within the expression `tobacco or any form of tobacco '. We would like to add that, even if by stretching the language somewhat, tobacco seeds can be brought within the first part of the definition, the oil and cake we are concerned with here cannot. This again, we say, for two reasons. In the first place, as discussed earlier, tobacco seed oil or cake can hardly be said to be a form of the tobacco seed. It is true that one can say that it is the contents of the seed that have manifested themselves, on being crushed, into two forms the oil and the cake. But this is not enough. The definition requires that the item in question should be a form of the tobacco seeds that is manufactured. While, as already pointed out, the leaves, stalks and stems even after manufacture retain the form of tobacco, the complete metamorphosis of the seed on its manufacture renders it impossible to describe the oil and cake as a form of the tobacco seed. Secondly, in our view, we should take note of the circumstance that earlier the item in Schedule IV covered not only tobacco but all its products. Never theless. it was held not to include the oil and cake. The legislature has subsequently amended the provision by deleting the reference to "all products of tobacco". In this context of an abridgement of the definition, it will not be correct, in our view, to construe the item so as to bring tobacco seed oil and cake within the scope of the exemption. Sri Choudhary points out that, if the contention of the assessees were accepted, they would be only jumping, as it were, from the frying pan into the fire. Since the item of exemption under the Act is worded identically with the item of the levy under the 1944 and 1957 Acts, the effect of accepting the assessees ' claim for exemption would be to automatically catapult them into the levy of excise and additional excise duties as well as into the rigours of the restrictions and regulations prescribed under those PG NO 1097 enactments. True, the consideration that if the oil and cake fall under item 7, such consequences as have been mentioned will follow cannot really guide or deter us in construing the definition. However the fact that the oil and cake have not been considered to be excisable commodities for the past several years is an indication as to how the legislature and the administration have understood and applied these provisions all along. Certain other judicial decisions were cited by both parties but we are not discussing them. They neither directly deal with the point before us nor do they deal with definitions or situations which furnish a useful analogy for comparison. For the reasons discussed above, we affirm the view taken by the High Court and dismiss these appeals and petitions. We, however, make no orders as to costs. R. section section Appeals dismissed.

The appellant assessee had claimed before the Andhra Pradesh High Court that tobacco seed oil and tobacco seed cake, being forms of tobacco, were entitled to exemption under section 8, read with entry 7 of the Fourth Schedule, of the Andhra Pradesh General Sales Tax Act, 1957, which confers exemption from sales tax in respect of certain goods including `tobacco '. The petitioners in the writ petitions have claimed the same relief directly in this Court. The High Court held that "tobacco seed" was not tobacco and that only leaf, stalks and stems of the tobacco plant could he said to be "tobacco" within the meaning of its definition. Before this Court it is urged on behalf of the Assessees that: (i) the word `tobacco ', in its ordinary connotation. takes in the tobacco plant and every part of it, including the seed (ii) the definition of `tobacco ' makes it clear that it takes in every form of tobacco, manufactured or unmanufactured; and (iii) tobacco seeds, not only when they are in their raw unmanufactured state but also when. on manufacture, they manifest themselves in the form of tobacco seed oil or tobacco seed cake will fall within the definition. On the other hand, on behalf of the state it is submitted that the definition, which covers both what the expression means as well as what it includes, is exhaustive, and tobacco seed does not come within either the first part or the second part of the definition. Dismissing the appeals and the petitions, it was, HELD: (1) The definition consists of two separate parts which specify what the expression means and also what it includes. The joint use of the words "mean and include" makes the definition exhaustive. [lO94C] PG NO 1089 Dilworth vs Commissioner of Stamps, [1899] AC 99 referred to. (2) Tobacco seed does not come within the first part of the definition, for the expression "tobacco cured or uncured, manufactured or unmanfactured" has to be read as a whole and will not take in tobacco seed. It will not come under the second part because it specifically mentions leaves, stalks and stems but leaves out seeds. [1094A B] (3) The definition, when it says that tobacco means any form of tobacco, lays emphasis that the item under consideration should be tobacco in form. [1096A] (4) Tobacco seed, once it is separated from the plant, is an item entirely different from tobacco and does not fall within the expression `tobacco or any form of tobacco '. [1096C] (5) Since tobacco seed does not fall within the definition, the oil and cake produced by the crushing of the seeds will not also be covered by the definition or eligible for the consequent exemption. [1094B] (6) The effect of accepting the assessee 's claim for exemption would be to automatically catapult them into the levy of excise and additional excise duties, but the fact that tobacco oil and cake have not been considered to be excisable commodities for the past several years is as indication as to how the legislature and administration understood and applied these provisions all along. [1096H; 1097B] C.I.T. vs Taj Mahal Hotel, S.C. Amara Purushotham Mamidi Obaiah vs State of A.P., [1962] 29 S.T.C. 654; and 1977 40 S.T.C. referred to.

Civil Appeal No. 1897 of 1976 . Appeal by Special Leave from the Judgment and order dated 24 10 1975 of the Kerala High Court in T.R.C. No. 86/74. Dr. V. A. Seyid Muhammed and K. R. Nambiar for the Appellant. Dr. Y. section Chitale and Mrs. Sunanda Bhandare for the Respondent. The assessee is a private limited company carrying on business as sole selling agent for a certain brand of welding electrodes. For the goods supplied to retailers, it charged them the catalogue price less trade discount. The catalogue price is the price which the retailer is entitled to charge the consumer. For the assessment year 1971 72, the returns filed under the showed a taxable turnover of inter State sales amounting to Rs. 8,71,624. This figure was derived by deducting from the catalogue price the amount of Rs. 1,06,708 paid as trade discount by the assessee to retailers. The 933 Sales Tax Officer refused to allow the deduction and computed the taxable turnover at Rs. 9,78,332. The Sales Tax Officer was of the view that the amount paid by way of trade discount could not be excluded from the catalogue price. The assessee appealed, and the Appellate Assistant Commissioner upheld its claim that trade discount did not form part of the turnover, and it could not therefore attract sales tax. A second appeal filed by the Revenue was dismissed by the Appellate Tribunal. The Revenue applied in revision to the High Court of Kerala and the revision application has been dismissed. The Revenue appeals. It is contended before us by the Revenue that the High Court has erred in affirming that an amount paid by way of trade discount cannot be included in the taxable turnover for the purpose of assessment. It is pointed out that the definition of "sale price" in section 2(h) of the permits the deduction of sums allowed as cash discount only and makes no reference to sums allowed by way of trade discount. It is contended that in effect the assessee enters into two distinct contracts with the retailer, the first contract relates to the sale of goods at the catalogue price and the second contract stipulates that notwithstanding the liability of the retailer under the first contract to pay the entire sale price, he may actually pay the sale price less trade discount. On that submission, it is sought to be urged that since the sale is effected under the first contract, the entire amount treated as consideration for the sale under that contract has to be included in the taxable turnover. We have considered the matter carefully and in our judgment the appeal must fail. At the outset, it is appropriate that we set forth the two relevant definitions contained in the . Section 2(j) defines "turnover" to mean "the aggregate of the sale prices received and receivable by him (the dealer) in respect of sales of any goods in the course of inter State trade or commerce . . . ". And section 2(h) of the Act defines the expression "sale price" to mean "the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade . . . ". It is true that a deduction on account of cash discount is alone specifically contemplated from the sale consideration in the definition of "sale price" by section 2(h), and there is no doubt that cash discount cannot be confused with trade discount. The two concepts are wholly distinct and separate. Cash discount is allowed when the purchaser makes payment 934 promptly or within the period of credit allowed. It is a discount granted in consideration of expeditious payment. A trade discount is a deduction from the catalogue price of goods allowed by wholesalers to retailers engaged in the trade. The allowance enables the retailer to sell the goods at the catalogue price and yet make a reasonable margin of profit after taking into account his business expense. The outward invoice sent by a wholesale dealer to a retailer shows the catalogue price and against that a deduction of the trade discount is shown. The net amount is the sale price, and it is that net amount which is entered in the books of the respective parties as the amount realisable. Orient Paper Mills Ltd. vs State of Orissa. Under the , the sale price which enters into the computation of the turnover is the consideration for which the goods are sold by the assessee. In a case where trade discount is allowed on the catalogue price, the sale price is the amount determined after deducting the trade discount. The trade discount does not enter into the composition of the sale price, but exists apart from and outside it and prior to it. It is immaterial that the definition of "sale price" in section 2(h) of the Act does not expressly provide for the deduction of trade discount from the sale price. Indeed, having regard to the circumstance that the sale price is arrived at after deducting the trade discount, no question arises of deducting from the sale price any sum by way of trade discount. Nor is there any question here of two successive agreements between the parties, one providing for sale of the goods at the catalogue price and the other providing for an allowance by way of trade discount. Having regard to the nature of a trade discount, there is only one sale price between the dealer and the retailer, and that is the price payable by the retailer calculated as the difference between the catalogue price and the trade discount. There is only one contract between the parties, the contract being that the goods will be sold by the dealer to the retailer at the aforesaid sale price. We have been referred to Ambica Mills Ltd. & Ors. vs The State of Gujarat & Anr. Where the Gujarat High Court rejected the claim of the manufacturer to a deduction of the remission allowed from the sale price to the purchaser on account of a general fall in prices when delivery of the goods was effected. In our opinion, the case supports the view we are taking. The sale price remained the stipulated price in the contract between the parties. The fail in prices 935 occurred after the contract of sale had been finalised, and with a view to relieving the purchaser to some extent of the loss which could have been occasioned thereby, the manufacturer sought to bear part of the loss by granting a rebate or remission to the purchaser. The Revenue relies on India Pistons Limited vs State of Tamil Nadu. In that case, the bonus of which deduction was sought by the assessee from the turnover was paid under a bonus discount scheme, not to all customers but only to distributors whose net purchases from the assessee exceeded the target figure agreed to between the parties. The amount of rebate allowed was credited to the customer 's account and treated as a reserve from which the distributors could make future purchases. The rebate of bonus discount was not allowed as a deduction by the Madras High Court and, in our opinion, rightly so. It was in the nature of an incentive bonus paid to distributors whose net purchases exceeded the target figure. It did not, and could not, affect the sale value of the goods sold by the assessee. The sale price remained undisturbed in the contract between the parties. In our judgment, the sale price which enters into the computation of the assessee 's turnover for the purpose of assessment under the is obtained after deducting the trade discount from the catalogue price. The trade discount allowed by the assessee cannot be included in the turnover. In the result, the appeal fails and is dismissed with costs. N.K.A Appeal dismissed.

The respondent assessee is a private limited company carrying on business as sole selling agents for a certain brand of Welding Electrodes. It charged the catalogue price less trade discount from retailers for the goods supplied. The catalogue price is the price which the retailer is entitled to charge the consumer. The returns field under the , showed a taxable turnover of inter state sales amounting to Rs. 8,71,624/ for the assessment year 1971 72. This figure was derived by deducting Rs. 1,06,708/ from the catalogue price paid as trade discount by the assessee to the retailers. The Sales Tax officer, refused to allow the deduction and computed the taxable turnover at Rs. 9,78,332/ . On appeal, the Appellate Assistant Commissioner upheld the assessee 's claim that trade discount did not form part of the turn over and could not, therefore, attract sales tax. A second appeal was dismissed by the Appellate Tribunal. A revision application by the Revenue to the High Court was also dismissed. It was contended (i) that the High Court erred in affirming that an amount paid by way of trade discount, could not be included in the taxable turnover for the purpose of assessment, (ii) that in effect the assessee entered into two distinct contracts with the retailer, the first contract related to the sale of goods at the catalogue price and the second contract stipulated that the retailer could actually pay the sale price less trade discount and that since the sale was effected under the first contract the entire amount treated as consideration for the sale under that contract had to be included in the taxable turn over. Dismissing the appeal, ^ HELD: It is true that a deduction on account of cash discount is alone specifically contemplated from the sale consideration in the definition of "Sale price" by section 2(h) and that cash discount cannot be confused with trade discount. They are two separate and distinct concepts. Cash discount is allowed when the purchaser makes payment promptly or within the period of credit allowed. It is a discount granted in consideration of expeditious payment. A trade discount is a deduction from the catalogue price of goods allowed by wholesalers to retailers engaged in the trade. The allowance enables the retailer to sell the goods at the catalogue price and yet make a reasonable margin of profit after taking into account his business expense. The outward invoice sent by a wholesale dealer to a retailer shows the catalogue price and against that a deduction of the trade discount is shown. The net amount is the sale price, and it is that net amount which is entered in the book 's of the respective parties as the amount realisable. [933 G H,934A C] 932 Orient Paper Mills Ltd. vs State of Orissa (1975) 35 S.T.C. 34 referred to. Under the Sales Tax Act. the sale price which enters into the computation of the turnover is the consideration for which the goods are sold by the assessee Where trade discount if allowed on the catalogue price, the sale price is the amount determined after deducting the trade discount. It is immaterial that the definition of "Sale Price" in section 2(h) of the Act does not expressly provide for the deduction of trade discount from the sale price. Having regard to the circumstance that the sale price is arrived at after deducting the trade discount, no question arises of deducting from the sale price any sum by way of trade discount. Nor is there any question here of two successive agreements between the parties, one providing for sale of the goods at the catalogue price and the other providing for an allowance by way of trade discount. Having regard to the nature of trade discount, there is only one sale price between the dealer and the retailer and that is the price payable by the retailer calculated at the difference between the catalogue price and the trade Discount. There is only one contract between the parties, the contract being that the goods will be sold by the dealer to the retailer at the aforesaid sale price. The sale price which enters into the computation of the assessee 's turnover for the purpose of assessment under the Sales Tax Act, is obtained after deducting the trade discount from the catalogue price. The trade discount allowed by the assessee cannot be included in the turnover. [934 C E, F, 935] Orient Paper Mills Ltd. vs State of Orissa (1975) 35 STC 84, Ambica Mills Ltd. vs The State of Gujarat and another (1964) 15 STC 367, affirmed. India Pistons Ltd. vs State of Tamil Nadu (1974) 33 STC 472, distinguished.

Appeals Nos.253 to 255 of 1955. Appeals from the judgment and decree dated November 30, 1954, of the former Nagpur High Court in Misc. Petitions Nos. 245, 279 and 308 of 1954. N. C. Chatterjee and G. C. Mathur, for the appellant in C. A. No. 253 of 1955. G. C. Mathur, for the appellant in C. A. Nos. 254 and 255 of 1955. B. Sen, section B. Sen and 1. N. Shroff, for the respondents in C. A. Nos. 253 and 254 of 1950 and for the State of Madhya Pradesh (Intervener). C. K. Daphtary, Solicitor General of India and R. H. Dhebar, for the respondents in C. A. No. 255 of 1955 and for the State of Bombay (Intervener). N. section Bindra and T. M. Sen, for the State of Punjab (Intervener). April 3. The judgment of section R. Das C. J., Venkatarama Aiyar, section K. Das and A. K. Sarkar JJ. was delivered by Venkatarama Aiyar J. Bose J. delivered a separate judgment. VENKATARAMA AIYAR J. These are appeals against the judgment of the High Court of Nagpur in writ applications filed by the appellants impugning the validity of certain provisions of the Central Provinces and Berar Sales Tax Act, 1947 (C. P. & Berar 21 of 1947), hereinafter referred to as the Act, imposing sales tax on materials used in construction works. It will be convenient to refer to these provisions at this stage. Section 2(b) of the Act defines " contract " as including " any agreement for carrying out for cash or deferred payment or other valuable consideration the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property or the installation or repair of any machinery 430 affixed to a building or other immovable property ". Section 2(c) of the Act defines " dealer " as including a person who carries on the business of supplying goods. In section 2 (d), " goods " are defined as including " all materials, articles and commodities whether or not to be used in the construction, fitting out, improvement or repair of immovable property ". Section 2(g) defines sale " as follows: " " Sale " with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods made in course of the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge; and the word 'purchase ' shall be construed accordingly. " Section 2(h) defines " sale price " as including the amount payable to a dealer as valuable consideration for the carrying out of any contract, less such portion, representing the proportion of the cost of labour to the cost of materials, used in carrying out such contract, as may be prescribed. " Turnover " is defined in section 2(j) as including the aggregate amount of the sale price received or receivable by a dealer in respect of the supply of goods in the carrying out of any contract. The charging section is section 4(a), and it provides that dealers whose turnover exceeded certain limits shall be liable to pay tax in accordance with the provisions of the Act on all sales effected after the commencement of the Act. Rule 4 of the Sales Tax Rules, 1947, provides that " in calculating the sale price for the purpose of sub cl. (ii) of cl. (h) of section 2, a dealer may be permitted to deduct from the amounts payable to him as valuable consideration for carrying out a contract, a sum not exceeding such percentages as may be fixed by the Commissioner for different areas subject to the following maximum percentages ", and then follows a scale of percentages to be allowed in respect of different classes of contracts. Acting on these provisions, the authorities constituted under the Act called upon the contractors within the State to furnish returns in respect of their receipts 431 from contract works for the purpose of assessment of sales tax, to which the appellants replied by instituting the proceedings, out of which the present appeals arise. The appellant in Civil Appeal No. 253 of 1955 is a contractor doing business in the construction of buildings and roads for the Military and Public Works Department in the State of Madhya Pradesh, and he filed M. P. No. 245 of 1954 challenging the validity of the assessment which the respondents proposed to make, on two grounds. He contended firstly that the Provincial Legislature had authority under Entry 48 of List 11, Sch. VII of the Government of India Act, 1935, to impose tax only on sale of goods, that the supply of materials in works contracts was not a sale within that Entry, and that the provisions of the Act, which sought to impose a tax thereon treating it as a sale, were therefore ultra vires; and secondly that he was entitled to exemption under item 33 in Sch. 11 to the Act as enacted by Act XVI of 1949, and that the notification of the Government dated September 18, 1950, withdrawing that exemption was unconstitutional and void. To appreciate this contention, it is necessary to refer to section 6 of the Act, which is as follows: 6 (1) " No tax shall be payable under this Act on the sale of goods specified in the second column of Schedule 11, subject to the conditions and exceptions, if any, set out in the corresponding entry in the third column thereof. (2) The State Government may, after giving by notification not less than one month 's notice of their intention so to do, by a notification after the expiry of the period of notice mentioned in the first notification amend either Schedule, and thereupon such Schedule shall be deemed to be amended accordingly. " Item 33 in Sch. 11 as originally enacted was " Goods sold by the Crown ". This was amended by Act XVI of 1949 by substituting for the above words " Goods sold to or by the Crown ". By an Adaptation Order of 1950, the words "State Government" were substituted for "Crown", and item 33 became "Goods sold to or by the State Government " In exercise of 432 the power conferred by section 6 (2) of the Act, the State issued a notification on September 18, 1950, amending item 33 by substituting for the words " Goods sold to or by the State Government " the words " Goods sold by the State Government ". The resultant position is that the appellant who was entitled to exemption under Act XVI of 1949 in respect of goods sold to the Government could no longer claim it by reason of the notification aforesaid. Now, the ground of his attack was that it was not open to the Government in exercise of the authority delegated to it under section 6 (2) of the Act to modify or alter what the Legislature had enacted. The appellant accordingly claimed that the proceedings which the respondents proposed to take for assessment of sales tax were incompetent, and prayed that an appropriate writ might be issued restraining them from proceeding with the same. In Civil Appeal No. 254 of 1955, the appellants are the Jabalpur Contractors ' Association, which is a registered body and certain contractors, and they filed M. P. No. 279 of 1954 questioning the validity of the proposed assessment on the same grounds as in M. P. No. 245 of 1954. The appellant in Civil Appeal No. 255 of 1955, is the Madhya Pradesh Contractors ' Association, Nagpur, which is again a registered body, and it filed M. P. No. 305 of 1954, challenging the legality of the proceedings for assessment on the same grounds as in M. P. No. 245 of 1954. All these three petitions were heard together, and by their judgment dated November 30, 1954, the learned Judges held that the expression " sale of goods" in Entry 48 was wide enough to coverall transactions in which property in the moveables passed from one person to another for money, and that, accordingly, in a building contract there was a sale within Entry 48 of the materials used therein, and that the provisions of the Act imposing tax thereon were valid. But the learned Judges also held that the tax could be levied only on the actual value of the materials to be determined on an enquiry into the matter, and that the definition of " price " in section 2 (h) (ii) and r. 4 framed pursuant thereto were ultra vires 433 in that they laid down artificial rules for fixing the same by deducting certain percentages from out of the total receipts on account of labour. As regards the notification dated September 18, 1950, the learned Judges held that it was within the authority conferred by the statute and was valid. In the result, the impugned provisions of the Act were held to be valid except as to the definition of " price " in section 2 (h) (ii) and r. 4 of the Sales Tax Rules, 1947. It is against this judgment that the above appeals have been preferred on a certificate granted by the High Court under article 132(1) of the Constitution. Two contentions have been urged in support of the appeals : (1) that the Provincial Legislature has no authority in exercise of its power under Entry 48 to impose a tax on the supply of materials in works contracts as such supply cannot be said to be also of those materials within that Entry ; and (2) that the notification dated September 18, 1950, is bad as being an constitutional delegation of legislative authority. As regards the first contention, the question is now concluded by the decision of this Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1) in which it has been held that the expression " sale of goods " in Entry 48 has the same meaning which it has in the Indian , that in a building contract there is no sale of materials as such, and that it is therefore ultra vires the powers of the Provincial Legislature to impose tax on the supply of materials. Mr. B. Sen appearing for the respondents has argued that even if the expression " sale of goods " in Entry 48 is construed in the sense which it has in the , that might render the impugned provisions of the Act ultra vires only in respect of a building contract which is one and indivisible, that there might be contracts which might consist of two distinct agreements, one for the sale of materials and another, for work and labour, and that in such a case, it would be competent to the State to impose tax on the sale of materials even construing that word in its (1) ; 55 434 narrow sense, and that these are matters which must be left to be investigated by the appropriate authorities. That undoubtedly is the correct legal position as observed in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1), and accordingly, when a question arises as to whether a particular works contract could be charged to sales tax, it will be for the authorities under the Act to determine whether the agreement in question is, on its true construction, a combination of an agreement to sell and an agreement to work, and if they come to the conclusion that such is its character, then it will be open to them to pro ceed against that part of it which is a contract for the sale of goods, and impose tax thereon. (2) We have next to consider the contention that the notification dated September 18, 1950, is bad as constituting an unconstitutional delegation of legislative power. In the view which we have expressed above that there is in a works contract no sale of materials as such, it might seem academic to enter into a discussion of this question ; but as there may be building contracts in which it is possible to spell out agreements for the sale of materials as distinct from contracts for work and labour, it becomes necessary to express our decision thereon. Mr. Chatterjee appearing for the appellant in Civil Appeal No. 253 of 1955 contends that the notification in question is ultra vires because it is a matter of policy whether exemption should be granted under the Act or not, and a decision on that question must be taken only by the Legis lature, and cannot be left to the determination of an outside authority. While a power to execute a law, it was argued, could be delegated to the executive, the power to make it must be exercised by the Legislature itself, and reliance was placed on the observations in Hampton J R & Co. vs United States (2), Panama Refining Co. vs Ryan (3), and Schechter vs United States (4), as supporting this position. It was also contended that the grant of a power to an outside authority to (1) ; (2) ; ; , 629. (3) ; ; , 458. (4) ; ; 435 repeal or modify a provision in a statute passed by the legislature was unconstitutional, and that, in consequence, the impugned notification was bad in that, in reversal of the policy laid down by the legislature in Act XVI of 1949 that sales to Government should be excluded from the operation of the Act, it withdrew the exemption which had been granted thereunder, and the observations in re The etc. (1), and the decision in Rajnarain Singh vs The Chairman, Patna Administration Committee, Patna and another (2), were strongly relied on as establishing this contention. Mr. N. C. Chatterjee particularly relied on the following observations of Bose J. at p. 301 in Rajnarain Singh 's case (2) : " In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above; it cannot include a change of policy. " On these observations, the point for determination is whether the impugned notification relates to what may be said to be an essential feature of the law, and whether it involves any change of policy. Now, the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like. In Powell vs Appollo Candle Company Limited the question arose as to whether section 133 of the Customs Regulation Act of 1879 of New South Wales which conferred a power on the Governor to impose tax on certain articles of import was an unconstitutional delegation of legislative powers. In holding that it was not, the Privy Council observed: "It is argued that the tax in question has been (1) ; , 787, 982, 984 (3) (2) ; 436 imposed by the Governor and not by the Legislature who alone had power to impose it. But the duties levied under the Order in Council are really levied by the authority of the Act under which the Order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him. In these circumstances, their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring Section 133 of the Customs Regulation Act of 1879 to be beyond the power of the Legislature. " In Syed Mohamed & Co. vs The State of Madras (1), the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act. Section 5 (vi) of that Act had left it to the rule making authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins. The validity of the rules was attacked on the ground that it was only the legislature that "as competent to decide who shall be taxed, and that the determination of that question by the rule making authorities was ultra vires. The Madras High Court rejected this conntetion, and held on a review of the authorities that the delegation of authority under section 5 (vi) war, within permissible constitutional limits. In Hampton J. R. & Co. vs United States (2), which was cited on behalf of the appellant, the question arose whether section 315(b) of the Tariff Act, 1922, under which the President had been empowered to make such increases and decreases in the rates of duty as were found necessary for carrying out the policies declared in the statute was an unconstitutional delegation, and the decision was that such delegation was not unconstitutional. We are therefore of the opinion that the power conferred on the State Government by section 6(2) to amend the schedule relating to exemption is in consonance with the accepted legislative practice relating to the topic, and is not unconstitutional. (1) (1952) 3 S.T.C. 367 (2) ; ; , 629. 437 The contention of the appellant that the notification in question is ultra vires must, in our opinion, fail on another ground. The basic assumption on which the argument of the appellant proceeds is that the power to amend the schedule conferred on the Government under section 6(2) is wholly independent of the grant of exemption under section 6(1) of the Act, and that, in consequence, while an exemption under section 6(1) would stand, an amendment thereof by a notification under section 6(2) might be bad. But that, in our opinion, is not the correct interpretation of the section. The two sub sections together form integral parts of a single enactment, the object of which is to grant exemption from taxation in respect of such goods and to such extent as may from time to time be determined by the State Government. Section 6(1), therefore, cannot have an operation independent of section 6(2), and an exemption granted thereunder is conditional and sub ject to any modification that might be issued under section 6(2). In this view, the impugned notification is intra vires and not open to challenge. But on our finding on the first question that the impugned provisions of the Act are ultra vires the powers of the Provincial Legislature under Entry 48 in List 11 in the seventh Schedule, we should set aside the orders of the Court below, and direct that the respondents be restrained from enforcing the provisions of the Central Provinces and Berar Sales Tax Act, 1947, in so far as they seek to impose a tax on construction works. It should be made clear, however, in accordance with what we have already stated, that the prohibition against imposition of tax is only in respect of contracts which are single and indivisible and not of contracts which are a combination of distinct contracts for sale of materials and for work, and that nothing that we have said in this judgment shall bar the sales tax authorities from deciding "whether a particular contract falls within one category or the other and imposing a tax on the agreement of sale of materials, where the contract belongs to the latter category. The parties will bear their own costs throughout, 438 BOSE J. I agree except that I prefer not to express an opinion about the validity of the power conferred on the State Government by section 6(2) of the Central Provinces and Berar Sales Tax Act, 1947, to amend the schedule in the way in which it has been amended here. I would leave that open for future decision. Appeals allowed.

section 4(a) of the Central Provinces and Berar Sales Tax Act; 1947, provided that every dealer whose turnover exceeded certain limits shall be liable to pay tax in accordance with the provisions of the Act on all sales effected after the commencement 428 of the Act ; and by section 2(g) Of the Act, " sale . means any transfer of property in goods . including a transfer of property in goods made in course of the execution of a contract. Under section 6(1) of the Act no tax was payable on the sale of goods specified in Sch. 11 to the Act and section 6(2) enabled the State Government by notification to amend the schedule. Item 33 in Sch. 11 as amended by Act XVl of 1949 and as adapted by the Adaptation Order of 195o, was " Goods sold to or by the State Government ". In exercise of the power conferred by section 6(2) of the Act, the Government issued a notification on September 18, 1950, amending item 33 by substituting the words " Goods sold by the State Government ". The appellant, a contractor doing business in the construction of buildings and roads for the Military and Public Works Department in the State of Madhya Pradesh, challenged the validity of the assessment which the respondent proposed to make on the appellant under the provisions of the Central Provinces and Berar Sales Tax Act, 1947, on the grounds (1) that the Provincial Legislature had no authority under Entry 48 Of List II, Sch. VII of the Government of India Act, 1935, to impose a tax on the supply of materials in works contracts and that the provisions of that Central Provinces and Berar Sales Tax Act which sought to impose a tax thereon treating it as a sale were ultra vires, and (2) that he was entitled to exemption under item 33 in Sch. 11, to tile Act and that the notification of the Government dated September 18, 1950, withdrawing that exemption was bad as being an unconstitutional delegation of legislative authority : Held, that the expression "sales of goods" in Entry 48 has the same meaning which it had in the Indian , that in a building contract there is no sale of materials as such, and that it is therefore ultra vires the powers of the Provincial Legislature to impose tax on the supply of materials. The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd., ; , followed. Per Das C. J., Venkatarama Aiyar, section K. Das and A. K. Sarkar JJ It is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like. The power conferred on the State Government by section 6(2) of the Act to amend the Schedule relating to exemption is in consonance with the accepted legislative practice relating to the topic, and is not unconstitutional. Sub sections (1) and (2) of section 6 together form integral part of a single enactment the object of which is to grant exemption from taxation in respect of such goods and to such extent as may from time to time be determined by the State Government, and an 429 exemption granted under section 6(1) is conditional and subject to any notification that might be issued under section 6(2). The notification dated September 18, 1950, is therefore intra vires.

Appeal No. 216 of 1956. Appeal by special leave from the judgment and decree dated August 28, 1950, of the Punjab High Court in Civil Regular First Appeal No. 343 of 1944. L.K. Jha, K. P. Bhandari and Harbans Singh, for the appellants. Darya Datt Chawla for respondent Nos. 1(i) to (iii). February 9. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal by special leave arises from a partition suit filed by Baij Nath against his other coparceners. Baij Nath is the son of Behari Lal and he had four brothers Kidar Nath, Raghunath Sahai, Jagan Nath and Badri Nath. Kidar Nath was dead at the time of the suit, and his branch was represented by his five sons Ghansham Lal, Shri Ram, Hari Ram, Tirath Ram and Murari Lal, who were impleaded as defendants 1 to 5 respectively. On the death of Ghansham Lal pending the Suit his two minor sons Jai Pal and Chandar Mohan were brought on the record as his legal representatives and their mother Mst. Kaushalya was appointed guardian ad item. The two minors are the appellants before us. Chuni Lal, the son of Raghunath Sahai was defendant 6, Bal Kishan and Hari Kishan the two sons of Jagan Nath were defendants 7 and 8, and Badri Nath was defend. ant 9. Baij Nath 's case was that the family was undivided and he wanted a partition of his share in the family properties, and so in his plaint he claimed appropriate reliefs in that behalf. The several defendants made out pleas in respect of the claims made by Baij Nath, but for the purpose of this appeal it is unnecessary to refer to the said pleas. The suit wail instituted on Juno 11, 1941, 771 It appears that by consent of parties a preliminary decree was drawn by the trial court on October 30, 1941, but the validity of this decree was successfully challenged by an appeal to the Lahore High Court. It was held by the High Court that all parties had not joined in the compromise and so the preliminary decree could not be sustained. In the result the said decree was set aside and the case was remanded for trial. It further appears that after remand parties again came together and by consent requested the court to pass a preliminary decree once again. This was done on October 15, 1943. This preliminary decree specified the shares of the respective parties and left three outstanding issues to be determined by Chuni Lal, defendant 6, who it was agreed should be appointed Commissioner in that behalf. Pursuant to this preliminary decree the Commissioner submitted his interim report on November 19,1943, and his final report on November 29, 1943. On receipt of the reports the trial court gave time to the parties to consider the said report which had been explained to them. Parties wanted time and so the case was adjourned. Since the property in dispute was valuable and the parties were unable to make up their minds about the said reports further time was granted to them by the court to consider the matter. Ultimately, when parties did not appear to come to any settlement about the reports the case was adjourned to December 17, 1943, for objections to be filed by the parties. Tirath Ram, defend ant 4 alone filed objections; nobody else did. The said objections were considered by the court in the light of the evidence which had been led and a final decree was drawn on June 21, 1944. Against this decree an appeal was preferred by the appellants before the High Court of Punjab, and it was urged on their behalf that the preliminary decree was invalid in that at the time of passing the said decree the court had failed to comply with the mandatory provisions of 0. 32, r. 7 of the Code of Civil Procedure. The High Court did not allow the appellants to raise, this point because it held that their 99 772 failure to make an appeal against the preliminary decree precluded them from challenging its correctness or validity under section 97 of the Code. Certain other minor objections were raised by the appellants on the merits but they were also rejected. In the result the appeal failed and was dismissed, but in view of the circumstances of the case the parties were directed to bear their own costs. It is this decree that is challenged by the appellants in their present appeal by special leave; and the only point which has been urged by Mr. Jha on their behalf is that the High Court was in error in disallowing the appellants to challenge the validity of the preliminary decree in their appeal before it. Mr. Jha contends that in dealing with the question about the competence of the plea raised by the appellants the High Court has misjudged the effect of the provisions of 0. 32, r. 7. It is common ground that at the time when the preliminary decree was passed by consent and the appellants ' guardian Kaushalya Devi agreed to the passing of such a preliminary decree and to the appointment of Chuni Lal as Commissioner the appellants were minors and that leave had not been obtained as required by 0. 32, r. 7. Order 32, r. 7(1) provides that no next friend or guardian for the suit shall without the leave of the court expressly recorded in the proceedings enter into any agreement or compromise on behalf of the minor with reference to the suit in which he acts as next friend or guardian. It is also not disputed that the agreement which resulted in the drawing up of the preliminary decree and the appointment of Chuni Lal as Commissioner fell within the scope of this rule and that sanction required by the rule had not been recorded in the proceedings. The argument is that the failure to comply with this mandatory provision of the rule makes the agreement and the preliminary decree void, and if that is so section 97 of the Code of Civil Procedure would be no bar in the way of the appellants challenging the validity of the decree at the appellate stage. The effect of the failure to comply with 0. 32, r. 7(1) is specifically provided by 0, 32, r. 7(2) which says 773 that any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor. Mr. Jha reads this provision as meaning that the impugned agreement is voidable against the parties to it who are major and is void in respect of the minor; in other words, he contends that the effect of this provision is that the major parties to it can avoid it and the minor need not avoid it at all because it is a nullity so far as he is concerned. In our opinion this contention is clearly inconsistent with the plain meaning of the rule. What the rule really means is that the impugned agreement can be avoided by the minor against the parties who are major, and that it cannot be avoided by the parties who are major against the minor. It is voidable and not void. It is voidable at the instance of the minor and not at the instance of any other party. It is voidable against the parties that are major but not against a minor. This provision has been made for the protection of minors, and it means nothing more than this that the failure to comply with the requirements of 0. 32, r. 7(1) will entitle a minor to avoid the agreement and its consequences. If he avoids the said agreement it would be set aside but in no case can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest. The protection of the minors ' interest requires that he should be given liberty to avoid it. No such consideration arises in respect of the other parties to the agreement and they can make no grievance or complaint against the agreement on the ground that it has not complied with 0. 32, r. 7(1). The non observance of the condition laid down by r. 1 does not make the agreement or decree void for it does not affect the jurisdiction of the court at all. The non observance of the said condition makes the agreement or decree only voidable at the instance of the minor. That, in our opinion, is the effect of the provision of 0. 32, r. 7(1) and (2). The question as to the procedure which the minor should adopt in avoiding such an agreement or decree has been the subject matter of several decisions, and 774 it has been held that a compromise decree may be avoided by the minor either by a regular suit or by an application for review by the court which passed the said decree. The decision in Manohar Lal vs Jadu Nath Singh (1), is an illustration of a suit filed by the minor for declaration that the impugned decree did not bind him. It is, however, not necessary for us to deal with this aspect of the matter in the present appeal any further. In support of his argument that the failure to comply with the requirements of 0. 32, r. 7(1) makes the decree a nullity Mr. Jha has very strongly relied on the decision of the Privy Council in Chhabba Lal vs Kallu Lal (2). In that case an objection to the validity of a reference to arbitration was taken by a party in an appeal against the decree passed on an award; and one of the points raised for the decision before the Privy Council was whether an appeal lay against the decree in question. Under Schedule 2, paragraph 16(2) of the Code which was then in force it was provided that upon the judgment pronounced according to the award a decree shall follow and no appeal shall lie from such decree except in so far as it is in excess of or not in accordance with the award. The argument urged against the competence of the appeal was that the objection against the validity of the reference and the award could and should have been raised under paragraph 15(1)(c) of the said Sche dule, and since such an objection had not been so raised and a decree was drawn in accordance with the award under paragraph 16, r. 1 no contention could be raised against the validity of the decree outside the terms of paragraph 16(2). This argument was repelled by the Privy Council. It was held that the objection against the validity of the reference based on the ground that the requirements of 0. 32, r. 7(1) had not been complied with did not fall within the purview of paragraph 15(1)(c). The said paragraph specified the grounds on which an award could be challenged. It provided that the award could be set aside if it was made after the issue of an order by the (1) (1906) L.R. 33 I A. 128. (2) (1946) L.R. 73 I.A. 52. 775 court superseding arbitration and proceeding with the suit or if it was made after the expiration of the period allowed by the court, or if it was otherwise invalid. It is on the last clause in paragraph 15(1)(c) that reliance was placed in support of the contention that the challenge to the validity of the reference should have been made under the said clause. The Privy Council did not uphold this argument. " In their opinion," observed Sir John Beaumont, who spoke for the Board, " all the powers conferred on the court in relation to an award on a reference made in a suit presuppose a valid reference on which an award has been made which may be open to question. If there is no valid reference the purported award is a nullity, and can be challenged in any appropriate proceeding. " It is on this last observation that Mr. Jha has naturally relied; but, in our opinion, the observation in question does not purport to be a decision on the interpretation of 0. 32, r. 7(2). The context shows that the said observation was made in support of the decision that the challenge to the validity of the arbitration and the award could not have been made under paragraph 15(1)(c) and nothing more. We are not prepared to extend this observation to cases like the present where the point in dispute is in regard to the interpretation of 0. 32, r. 7. It is significant that while describing the award as a nullity the Privy Council has also added that it can be challenged in any appropriate proceeding which postulates the adoption of necessary proceedings to avoid the award. The point for consideration by the Privy Council was whether a proceeding under paragraph 15(1)(c) was indicated or whether an appeal could be regarded as an appropriate proceeding; but it was assumed that a proceeding had to be adopted to challenge the award. The decision of the Privy Council was that the validity of the award could be challenged by an appeal because it could not have been challenged under paragraph 15(1)(c). Since it could not be challenged under paragraph 15(1)(c), according to the Privy Council paragraph 16(2) could not be invoked against the competence of the appeal. It is unnecessary 776 for us to examine the merits of the said decision in the present appeal. All that we are concerned to point out is that the observation in the judgment on which Mr. Jha relies cannot be treated as a decision on the interpretation of 0. 32, r. 7(2). That question did not directly arise before the Privy Council and should not be treated as concluded by the observation in question. As we have already pointed out, the words used in 0. 32, r. 7(2) are plain and unambiguous and they do not lend any support to the argument that non compliance with 0. 32, r. 7(1) would make the impugned decree a nullity. Mr. Jha has also relied upon another decision of the Privy Council in Jamna Bai vs Vasanta Rao (1). In that case two defendants of whom one was a minor compromised a suit pending against them, and in doing so entered into a bond by which they jointly agreed to pay a certain sum to the plaintiff at a future date. The leave of the court was Dot obtained on behalf of the minor as required by section 462 of the Code of Civil Procedure, 1882, which was then in force. When a claim was made on the said bond it was held that the bond was not enforceable against the minor but it was enforceable for the full amount against the joint contractor. We do not see how this case assists the appellants. It appears that Jamna Bai who was the joint contractor on the bond advanced the plea that one of the two promisers can plead the minority and consequent immunity of the other as a bar to the promise 's claim against him. This plea was rejected by the Privy Council, and that would show that the bond which was executed in pursuance of a compro mise agreement was not treated as null and void but as being unenforceable against the minor ' alone. In ,that connection the Privy Council observed that the minor 's liability could not be enforced in view of the fact that the requirements of section 462 of the Code had not been complied with. Indeed, in the judgment an observation has been made that the Privy Council was not expressing any opinion as to whether the bond could be enforceable against a minor even if section 462 had (1) (1916) L.R.43 I.A.99. 777 been complied with. Thus this decision is of no assistance to the appellants. Similarly, the decision of the Privy Council in Khiarajmal vs Daim (1), can also be of no help to the appellants, because in that case all that the Privy Council decided was that a court has no jurisdiction to sell an equity of redemption unless the mortgagors are parties to the decree or the proceedings which lead to it, or are properly represented on the record. In other words, if a minor is not properly represented on the record no order passed in the proceedings can bind him. We are unable to see how this proposition has any relevance to the point which we are called upon to decide in the present appeal. If the preliminary decree passed in the present proceedings without Complying with the provisions of 0.32, r. 7(1) is not a nullity but is only voidable at the instance of the appellants, the question is: can they seek to avoid it by preferring an appeal against the final decree ? It is in dealing with this point that the bar of section 97 of the Code is urged against the appellants. Section 97, which has been added in the Code of Civil Procedure, 1908, for the first time provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. It is urged for the appellants that an appeal is a continuation of the suit and so the appellants would be entitled to challenge the impugned preliminary decree as much by an application made in the suit itself as by an appeal preferred against the final decree passed in the said suit. It is true that the proceedings in appeal can be regarded as a continuation of the proceedings in suit; but the decision of the question as to whether the appellants can challenge the said preliminary decree in their appeal against the final decree must in the present case be governed by the provisions of section 97 of the Code. The whole object of enacting section 97 was to make it clear that any party (1) (1904) L.R. 32 I.A. 23. 778 feeling aggrieved by a preliminary decree must appeal against that decree; if he fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of an appeal against the final decree, which means that the preliminary decree would be taken to have been correctly passed. When section 97 provides that the correctness of the preliminary decree cannot be challenged if no appeal is preferred against it, it clearly provides that if it is not challenged in appeal it would be treated as correct and binding on the parties. In such a case an appeal against the final decree would inevitably be limited to the points arising from proceedings taken subsequent to the preliminary decree and the same would be dealt with on the basis that the preliminary decree was correct and is beyond challenge. It would be idle to contend that what is prohibited is a challenge to the factual correctness of the decree on the merits, because if the said decree is voidable, as in the present case, the very point as to its voidable character is a part of the merits of the dispute between the parties. Whether or not 0. 32, r. 7(1) applies to the case would certainly be a matter of dispute in such a case and the object of section 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal. The whole object which section 97 intends to achieve would be frustrated if it is held that only the factual correctness of the decree cannot be challenged but its legal validity can be even though an appeal against the preliminary decree has not been filed. Therefore, in our opinion, the High Court was right in coming to the conclusion that it was not open to the appellants to challenge the validity of the preliminary decree in the appeal which they had preferred against the final decree before the said High Court.

Order 32, r. 7(2) of the Code of Civil Procedure, which is intended to protect the interest of the minor, really means that an agreement or compromise entered into on behalf of the minor in contravention of 0. 32, r. 7(1) is voidable only at the instance of the minor and not at the instance of any other party to it. Such contravention does not render the agreement or decree a nullity and the same has to be avoided in an appropriate proceeding. Manohar Lal vs jadu Nath Singh (1906) L.R. 33 I.A. 128, referred to. Chhabba Lal vs Kallu Lal (1946) L.R. 73 I.A. 52, jamna Bai vs Vasanta Rao (1916) L.R. 43 I.A. 99 and Khiarajmal vs Daim (1904) L.R. 32 I.A. 23, held inapplicable. Where a preliminary decree is passed in non compliance with the provision of 0. 32, r. 7(1), the remedy of the minor is by way of an appeal against that decree and not against the final decree since section 97 of the Code is a bar to the challenging of the preliminary decree in an appeal against the final decree. Consequently, in a suit for the partition where preliminary decree by consent was passed against the minor in contravention of 0. 32, r. 7(i) and that decree having been sought to be set aside in an appeal from the final decree the High Court held that section 97 of the Code precluded the appellant from doing so. Held, that the decision of the High Court was correct and must be ashamed, 770 Held, further, that the object section 97 of the Code was intended to achieve would be wholly frustrated if it were to be held that the section merely prohibited a challenge to the factual correctness of the decree and not its legal validity.

Civil Appeal No. 321 (N) of 1970. From the judgment and order dated the 30th July, 1968 of the Assam & Nagaland High Court at Gauhati in Civil Rule No. 420 of 1966. S.K. Nandy and Krishna Prosad for the Appellants. S.N. Choudhary for the Respondents. The Judgment of the Court was delivered by VARADARAJAN, J. This appeal by special leave is by the respondents in Civil Rule 420 of 1966 against the Judgment and order dated 30th July, 1968 passed by the Division Bench of the 556 High Court of Assam and Nagaland, allowing the Writ petition with no order as to costs. That writ petition was filed under article 226 of the Constitution for quashing the order of requisition issued by the Deputy Commissioner, Lakhmipur Dibrugarh, the second appellant in this appeal and the first respondent in the writ petition under Memo No. LA/27511 15/R dated 25.10.1966. The Memo was issued in exercise of the powers conferred by section 29 (i) of the Defence of India Act, 1962 (51 of 1962) read with the Notification of the Government of India, Ministry of Home Affairs No. S.O. 1888 dated 10th June, 1965 in respect of the properties described in the schedule attached thereto viz. Sookerating Tea Estate and Budla Beta Tea Estates, situate in Dum Duma, Mauza Lakhmipur District on the ground that the lands were necessary for securing the defence of the country and efficient conduct of military operations. During the Second World War, in 1940 the Government of India acquired for defence purposes a part of Sookerating Tea Estate with its adjoining lands measuring in all 769.20 acres for constructing an air field. The air field was constructed over an area of 469 acres and on the remaining 300.20 acres there were tea bushes which were growing wild and overgrown with thick jungles. After the war was over, the area on which the air field had been constructed viz. 469 acres was transferred to the State Government for its use. In the writ petition it was stated that area was still Lying unused. The Government of India wanted to lease out the said 300.20 acres to some established tea planters with a view to earn foreign exchange. The respondent, a registered partnership firm owning the Bagrodia Tea Estate negotiated with the Estates Military officer, Assam Circle at Shillong and the Ministry of . Defence, Government of India and entered into an agreement of lease dated 2.3.1962 in respect of the land on a rent of Rs. 6304.20 per annum for a term of one year renewable for a period of one year at a time if the land was not required by the lessor. The respondent took possession of the land on 10.3.1962 after paying the annual rent in advance on 2.3.1962. It was alleged in the writ petition that the respondent thereafter improved the land at a cost of Rs. 1,75,000/ and made it into a well managed tea garden. The Military Estates officer was putting off the execution of the lease deed on some pretext or the other, though the respondent had deposited the requisite stamp papers for the execution of the lease deed. When the respondent approached the Government of India through a Member of Parliament, the Deputy Minister for Defence 557 informed the Member of Parliament by his letter dated 20.12.1962 that the land was required for defence purposes and that it would not be possible to extend the current lease. Subsequently the Defence Minister informed the Member of Parliament by his letter dated 1.4.1963 that as several tea planters have evinced interest in the estate it was decided to auction the leasehold right in the land on an annual basis subject to the condition that the land might be resumed for defence purposes at short notice. No action was taken on the respondent 's request made on 25 1.1963 for renewal of the lease. But the Military Estate officer, Jorhat Circle, the 4th appellant, issued a notice on 20.3.1963 for leasing the land for one year by public auction. The respondent filed a writ petition in the High Court and obtained rule nisi as well as an interim order restraining the appellants from giving effect to the said notice dated 20.3.1963. The petition filed by the appellants on 28.5.1963 for restraining the respondent from plucking tea leaves was rejected. The respondent filed Title Suit No. 30 of 1963 in the Court of the Subordinate Judge, Upper Assam Districts, Dibrugarh on 18.7.1963 for certain reliefs including confirmation of possession of the land and specific performance of the agreement to lease and obtained an interim. injunction restraining the appellants from interfering with the possession of the land. The writ petition was not pressed in view of the institution of Title Suit No. 30 of 1963 by the respondent. The respondent filed Title Suits Nos. 6 of 1964 and 13 of 1965 in the same Court praying for the same reliefs in respect of the years 1964 and 1965 and obtained temporary injunction. The respondent filed Title Suit No. 4 of 1966 in the same court for the same relief. All those suits were pending on the date of institution of the present writ petition. The respondent received the impugned order of requisition on 26.10.1966 from the second appellant and Subsequently filed the present writ petition for the aforesaid reliefs on several grounds. The appellants in this appeal and other respondents in the writ petition filed counter affidavits opposing the petition and contending inter alia that the question of requisition of the land for defence purposes has been decided upon by the Government of India and the impugned order is bonafide and has been made by the competent authority under the Defence of India Act. Two contentions were urged before the Division Bench of the High Court on behalf of the respondent. The first was that the second appellant, the Deputy Commissioner, Dibrugarh, who has 558 issued the impugned order has stated in the order that in his opinion it was necessary to requisition the property, and it was urged before the learned Judges of the High Court that the Deputy Commissioner was not competent to form the opinion. Section 29 (I) of the Defence of India Act, 1962 (Sl of 1962) reads: (1) "Notwithstanding anything contained in any other law for the time being in force, 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, civil defence, public safety, maintenance of public order or efficient conduct of Military operations, or for maintaining supplies and services essential to the life of the Community that Government may by order in writing requisition any immovable property and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning: Provided that no property or part thereof which is exclusively used by the public for religious worship shall be requisitioned. " Clauses (a), (b) and (c) of Section 40(I) of the Defence of India Act provide for delegation of the power or duty under the Act or by any rule made thereunder and read: Section 40 Power to delegate: (i) The Central Government may by order, direct that any power or duty which by this Act or by any rule made under this Act is conferred or imposed upon the Central Government shall, in such circumstances and under such conditions, if any, as may be specified in the direction be exercised or discharged also, (a) by any officer or authority subordinate to the Central Government, or (b) whether or not the power or duty relates to a matter with respect to which a State Legislature has power to make laws, by any State 559 Government or by any officer or authority subordinate to such Government, or (c) by any other authority. " The opinion that the land is necessary for defence purposes can be formed in view of section 40(I) (c) of the Defcnce of India Act by any authority to whom the power to requisition under section 29 (1) of that Act has been delegated by the Government of India. The Ministry of Home Affairs had, by Notification No. S.O. 1888 dated 10.6.1965 published in the Gazette of India (Extraordinary) dated 11.6.1965, delegated the power conferred by section 29 of the Act to all Collectors, District Magistrates, Additional District Magistrates and Deputy Commissioners in the States and all Political officers in the North Eastern Front Area. The learned Judges of the High Court have held that the Notification is valid and that the delegation can be unrestricted and found the first contention to be untenable. No argument was advanced before us by learned counsel for the respondent in regard to that contention. The first contention has, therefore, to be held to be untenable. The second contention urged before the High Court successfully on behalf of the respondent was that the impugned order of requisition is malafide. There can be no doubt that if any authority exercised any power conferred on him by law in bad faith or for collateral purpose, it is an abuse of power and a fraud on the statute. In such a case there can be no difficulty in striking down that act of the authority by the issue of an appropriate writ under article 226 of the Constitution. It is true that the Deputy Minister for Defence informed the Member of Parliament who appears to have been pleading for the respondent by his letter dated 20.12.1962 (annexure 'C ' to the writ petition) that the current lease of the land could not be extended because the land was required for defence purposes and that in the subsequent letter dated 1.4.1963 (annexure 'D ' to the writ petition) the then Minister for Defence had informed the said Member of Parliament that since several tea planters have evinced interest in the land it would be in the public interest to auction the leasehold right only on an yearly basis subject to the condition that the land can be resumed at short notice for defence purposes. In his affidavit the Deputy Commissioner, Lakhimpur, the second appellant has stated that the land was not required for defence purposes until 1964 and that the need for defence purposes arose thereafter and the impugned order was issued. 560 It must be noted in this connection that it was not disputed before us that the war with Pakistan started in June 1965. This Court could even take judicial notice of that fact The impugned requisition order was passed on 25.10.1966. Therefore, it cannot be stated that there was no need of the land for defence purposes in October 1966 from the mere fact that Deputy Minister for Defence had stated in his letter dated 20 12.1962 referred to above that the current lease could not be extended because the land was required for defence purposes and the Minister for Defence had stated in his letter dated 1.4.1963, referred to above, that as several tea planters have evinced interest in the land it would be in the public interest to auction the leasehold right in the land on a yearly basis alone subject to the condition that it can be resumed at a short notice for defence purposes. That letter of the Minister for Defence does not altogether rule out the possibility of the land being required for defence purposes at any time and being made available for those purposes at short notice. Defence requirements may change from time to time depending upon various factors including intelligence reports about the enemy 's movements and preparations for war. The High Court has held in favour of the respondent on the question of want of bonafides on the part of the appellants on the basis that in the aforesaid title suits filed by the respondent it was not pleaded by the appellants that the land was required for defence purposes. The learned Judges of the High Court appear to have accepted the submission made before them on behalf of the respondent in this appeal that no such plea had been raised in the pleadings in the title suits filed by the respondent. That submission is incorrect, and it is unfortunate that the attention of the learned Judges had not been invited to the material on record to ., show that such a contention was in fact put forward by the 4th appellant in his pleading in the title suits. In the auction notice (annexure 'E ') dated 20.3.1963 itself it was stated that the lease will be subject to the condition that whenever the Government needs the land for defence purposes it will be determined by issue of notice giving 30 days time without payment of any compensation. In the written statement dated 17.7.1965 filed by the 4th appellant in the Title Suit No. 6 of 1965, it was stated in respect of the allegation made in para 26 of the plaint in that suit that since the land is required for defence purposes the defendant was not bound to renew the lease and that even in Title Suit No. 6 of 1964 the defendants have filed written statement contesting the claim of the respondent/plaintiff. It was also stated in that written statement in regard to the allegations made in para 11 of the plaint that the 561 land is required for defence purposes. In regard to the allegations in paragraph 26 of the plaint it was contended in the written statement that the land is required for defence purposes and that any lease under the present emergency would be detrimental to the interests of the defence of the country. Even in the counter affidavit dated 17.7.1965 filed in the application for interim injunction moved in the Title Suit No. 15 of 1965 the 4th appellant had stated that the land is required for defence purposes, and there is no question of holding any auction for lease of the land, that if the order of interim injunction is not vacated the defence preparation of the country will be hampered as the land is urgently needed for defence purposes and the interest of the nation will suffer, that no irreparable loss or damage which cannot be compensated in money would result from vacating the injunction and that on the other hand denying the use of the land for defence purposes at this critical juncture would cause irreparable loss to the Government and the nation as a whole. In the written statement dated 22.6.1965 filed in Title Suit No. 4 of 1966 the 4th appellant had stated with regard to allegations made in para 11 of the plaint that it is asserted that the land is bonafide required for defence purposes. Thus it is seen from the materials on record that at least in Title Suits Nos. 15 of 1965 and 4 of 1966, the plea that the land was required urgently for defence purposes was taken by the 4th appellant who appears to have put forward the defence of the appellants in this appeal as a whole. The learned judges of the High Court were, therefore, not right in observing in their judgment that the intention of the Government is to lease the land to the highest bidder in the hope of getting a large amount of money because the land had been developed into a working tea garden, that the purpose cannot be said to be bonafide and that it must be held that the land is being requisitioned only for collateral purposes. The only basis for this inference of the learned Judges of the High Court is the supposed failure of the defendants in the title suits filed by the respondent to take the plea that the land is required for defence purposes. That basis being found to be wrong and unavailable. it is not possible to agree with the learned Judges of the High Court that the requirement of the land for defence purposes was not bonafide. The Government of India whose case the 4th appellant had put forward in the respondent 's title suits as mentioned above is the most competent authority to know when the need for defence purposes will arise or has arisen, and there is no material on record to hold in this case that the land was not required on the date of impugned requisition bonafide for defence purposes and that the appellants were putting forward such 562 a case in the impugned order only as a ruse to auction the land for larger amount of rent. Under these circumstances we find ourselves unable to uphold the judgment of the learned Judges of the High Court. We accordingly allow the appeal with costs and dismiss the writ petition. P.B.R. Appeal allowed.

On a part of a large area of land acquired by the Government during World War II an aerodrome was constructed and on the remaining 300 odd acres which remained unused a thick jungle grew over the years. Pursuant to the decision of the Government of India to lease out the unused portion of the land, the respondent entered into an agreement with the Government and took possession of the land after paying one year s rent in advance. The respondent alleged that, after taking possession of the land, he had spent a large sum of money in clearing the jungle and making it a well managed tea garden. He also alleged that the concerned Government officials were putting off execution of the lease deed on some pretext or the other. Having had no satisfactory reply from the Government, the respondent moved the Government of India through a Member of Parliament who was informed that the land was required for defence purposes and that it would not be possible to extend the lease. A few months later the Defence Minister informed the Member of Parliament that the Government had decided to auction the lease hold right on an annual basis in order that possession of the land could be resumed for defence purposes at short notice. A notice for public auction was thereafter issued . The respondent filed a writ petition in the High Court and obtained an order restraining the appellants from auctioning the land. In the meantime the respondent filed title suits against the Government. The respondent contended that the auction notice was malafide because having found that the jungle had been cleared and the land had been developed into a workable tea garden, the Government wished to lease the land to the highest bidder for getting a large amount of money and that this was for a collateral purpose. ' The High Court upheld this contention. 555 Allowing the appeal, ^ HELD: If any authority exercised in bad faith or for collateral purpose power conferred on it by law such action would be struck down as an abuse of power and a fraud on the statute. [559 E F] In the present case however there is much evidence on record to establish that there was no lack of bona fides OD the part of the Government and that the action sought to be taken by it was not for a collateral purpose. Had the attention of the High Court been drawn to the material on record, there was no possibility of the High Court coming to the conclusion that it did. Although in 1962 the Deputy Minister for Defence in the first instance informed the member of Parliament, who interceded on behalf of the respondent that the land was required for defence purposes and for that reason it would not be possible to extend the then current lease but later stated that it was decided to lease out the land to the highest bidder by way of public auction on a yearly basis and the Deputy Commissioner in the affidavit had stated that the land was not required for defence purposes until 1964, the need for defence purposes did arise when the war with Pakistan broke out in 1965. It could not, therefore, h said that the Government did not need the land for defence purposes in 1966 when the order was issued. Defence requirements depend on many unforeseeable factors. [559 F H] That apart, the appellants did state right from the beginning that the lease was subject to the condition that whenever the Government needed the land for defence purposes it would be determined by notice without payment of compensation and that the Government was not bound to renew the lease. [560 F G] There is, therefore, nothing to support the Finding of the High Court that the Government had never put forward the plea that the land would be required for defence purposes at any stage in the title suits and that it was putting forward such a case only as a ruse to auction the land for a larger amount of rent. [561H]

Appeal No. 9 of 1952. Appeal from the Judgment and Order dated 2nd January, 1950, of the High Court of Judicature at Madras (Satyanarayana Rao and Viswanatha Sastri JJ.) in Case Referred No. 68 of 1946. M. C. Setalvad, Attorney General for India, (P. A. Mehta, with him) for the appellant. K. section Krishnaswami Aiyangar (M. Subbaraya Aiyar, with him) for the respondents. December 22. The Judgment of the Court was delivered by MAHAJAN J. This is an appeal from,the judgment of the High Court of Judicature at 'Madras in a reference made by the Income tax Appellate Tribunal under section 66 (1) of the Indian Income tax Act, XI of 1922. 488 For several years prior to 1939 40 the respondents, .who are. brothers, had been carrying on in partnership the business of " The Hindu," a daily newspaper of Madras. The profits of this business had been charged to income tax in the hands of the respondents under the Indian Income tax Act of 1918. The firm 's year of account was a period of twelve months ending with 30th June each year. In respect of the profits of the year of account ending 30th June, 1938, assessment was made in the year 1939 40 and the firm was charged to income tax for that assessment year. On 1st March, 1940, the respondents transferred their business as a going concern to a private limited company called " Kasturi and Co. Ltd." For the assessment year 1940 41 the respondents claimed that the firm was not liable to pay any income tax on the income of its business from the end of the accounting year ending 30th June, 1938, to 29th February, 1940, the date on which the limited company succeeded to the business of the firm (i.e., for a period of 20 months) under section 25 (4) of the Act, as it had been assessed under the Indian Incometax Act, 1918. The Income tax Officer disallowed the claim and held that since the assessment pertained to the year 1940 41 the previous year with reference to that assessment would be the year ending 30th June, 1939, and the period for which exemption could be claimed under section 25(4) of the Act was the interval from the end of that previous year, i.e., 1st July, 1939, upto to the date of succession, i.e., 29th February, 1940, i.e, a period of eight months. This order was confirmed on appeal by the Appellate Assistant Commissioner. On further appeal the Tribunal held that on a proper construction of section 25(4) of the Act, tax was not payable by the firm in respect of the profits and accounts of the business for the whole of the period from 1st July, 1938, to 29th February, 1940, (a period of 20 months). At the instance of the Commissioner of Income tax (the appellant) the Tribunal stated a case to the High Court and referred to it the following question for its opinion: 489 " Whether on the facts of this case, the Appellate Tribunal was right in holding that the period the profits of which were entitled to exemption from the payment of tax under section 25(4). of the Indian .Income tax Act, 1939, was the period commencing from 1st July, 1938, and ending. With 29th February, 1940. " The reference was heard by Satyanarayana Rao and Viswanatha Sastri JJ. and they delivered divergent opinions on the question referred. Satyanarayana Rao J. agreed with the conclusion of the Tribunal and answered the question in the affirmative, while Viswanatha Sastri J. answered the question in the negative, with the result that under the provisions of the law the Tribunal 's order was confirmed, it being in accordance with the opinion delivered by the senior Judge. Leave to appeal to this Court was granted and this appeal is before us on a certificate given by the High Court. The principal question to decide in this appeal is whether on a true construction of section 25(4) of the Act, and on the facts stated the period the profits of which were entitled to exemption from the payment of tax is the period between 1st July, 1939, to 29th February, 1940, (a period of eight months) or the period commencing from 1st July, 1938, and ending with 29th February, 1940 (a period of 20 months). To decide this question it is necessary to set out the relevant provisions of the Act. Section 2(11), which defines " previous year " in so far as it is relevant for purposes of this appeal is : " (11) (a) the twelve months ending on the 31st day of March next preceding the year for which the assessment is to be made, or, if the accounts of the assessee have been made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of March, then at the option of the assessee the year ending on the day, to which his accounts have so been made up." 490 Section 3 of the Act provides: Where any Central Act enacts that income tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually. " This is the charging section. Section 25 of the Act makes different provisions to cover some special cases. The parts of the section relevant to this appeal pro vide as follows: (1)Where any business, profession or vocation to which sub section (3) is not applicable, is discontinued in any year, an assessment may be made in that year on the basis of the income, profits or gains of the period between the end of the previous year and the date of such discontinuance in addition to the assessment, if any, made on the basis of the income, profits or gains of the previous year. (3) Where any business, profession or vocation on which tax was at any time charged under the provisions of the Indian Income tax Act, 1918 (VII of 1918), is discontinued, then, unless there has been a succession by virtue of which the provisions of sub section (4) have been rendered applicable no tax shall be payable in respect of the income, profits and gains of the period between the end of the previous year and the date of such discontinuance, and the assessee may further claim that the income, profits and gains of the previous year shall be deemed to have been the income, profits and gains of the said period. Where any such claim is made, an assessment shall be made on the basis of the income, profits and gains of the said period, and if an amount of tax has already been paid in respect of the income, profits and gains of the previous year exceeding the amount payable on 491 the basis of such assessment, a refund shall be given of the difference. (4) Where the person who was at the commencement of the Indian Income tax (Amendment) Act, 1939 (VII of 1939), carrying on any business, profession or vocation on which tax was at any times charged under the provisions of the Indian Incometax Act, 1918, is succeeded in such capacity by another person, the change not being merely a change in the constitution of a partnership, no tax shall be payable by the first mentioned person in respect of the income, profits and gains of the period between the end of the previous year and the date of such succession, and such person may further claim that the income, profits and gains of the previous year shall be deemed to have been the income, profits and gains of the said period. Where any such claim is made, an assessment shall be made on the basis of the income, profits and gains of the said period, and, if an amount of tax has already been paid in respect of the income, profits and gains of the previous year exceeding the amount payable on the basis of such assessment, a refund shall be given of the difference. (6) Where an assessment is to be made under subsection (1), sub section (3), or sub section (4) the Income tax Officer may serve on the person whose income, profits and gains are to be assessed, or, in the case of a firm, on any person who was a member of such firm at the time of its discontinuance, or, in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 22, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section. " For a proper construction of section 25 it is also necessary to set out the history and object of this enactment. Under the Act of 1918 income tax was levied on the income of the current year, i.e., the year of 492 assessment but as the income of that year could not be known till after the expiry of the year, the assessment was made on the basis of the income of the " previous year" but after the close of the assessment year an ,adjustment used to be made on the basis of the income of the assessment year. The Act of 1922 introduced a change in this respect. Under section 3 of the Act, 'the income of the previous year is made the subject of the charge and tax is levied on the income of the previous year though it is a tax for the assessment year. On the passing of the Act of 1922, the previous system of assessment was kept alive for one year. The result was that for the year 1922 23, there were two assessments, one under the Act of 1922 on the income of 1921 22 and another under the old system byway of assessment on the income of the same year 1921 22. In other words, the income of the year 1921 22 was assessed twice, once under the Act of 1918, and again under the Act of 1922. To remove this anomaly and in order to make the number of assessments tally with the number of years during which the business existed, section 25(3) of the Act of 1922 was enacted exempting from tax the profits for the period between the end of the previous year and the date of discontinuance in the case of a business whose profits had been assessed to tax under the Act of 1918. There was no provision in section 25 as enacted in 1922 for giving any relief in cases of succession to a business which was taxed under the Act of 1918. In 1939 a provision was made to extend similar relief to cases of succession and with this object section 26(2) of the Act was amended and section 25(4) was added by the amending Act of 1939. The result of the amendment of section 26(2) and the insertion of section 25(4) is that upon a transfer of business the transferor, i.e., the person who was succeeded in the business, would get the same relief as if the business had been discontinued by him. The scheme of the Act is that by the charging section, i.e., section 3, income tax is levied for a financial year at the rate prescribed by the annual Finance Act 493 on the total income of the previous year of every in dividual, etc. Each previous year 's income is the, subject of separate assessment in the relative assessment year. Though the year of assessment is the financial year, the previous year of an assessee need not necessarily be the previous financial year, for this expression is to be understood as defined by section# 2(11) (a) of the Act. The respondents were duly assessed to tax for the year of assessment, i.e. the financial year 1939 40, on the income of the previous year ending on 30th June, 1938. Their income of the accounting year ending 30th June, 1939, would in the ordinary course be liable to assessment in the financial year 1940 41, and the profits of the year ending 30th June, 1940, would be assessable in the financial year 1941 42. Succession took place in the accounting year 1939 40. Under sub section (2) of section 26, as it stood before its amendment in 1939, the person succeeding to a business was liable to tax for the year of succession, as if he had been carrying on business throughout that year and had received the profits of the whole of that year. Thus Kasturi and Company Limited would have been liable to be assessed on the profits earned during the year ending 30th June, 1940, irrespective of the fact that actually they would have only received profits in that year for a period of four months. After the amendment in 1939 sub section (2) of section 26 provides that the person succeeded and the person succeeding " each be assessed in respect of his actual share, if any, of the income, profits and gains of that year. " Thus the profits of the year in which the succession occurs are to be apportioned between the predecessor and the successor according to the actual share of each in the year 's profits, the predecessor and the successor are each liable to tax at the rate applicable to each and the profits of each have to be computed separately in accordance with the provisions of section 10 and other sections and each has to be granted the deductions and allowances appropriate to his case, and 494 assessment on each has to be separate and distinct. If the business was charged under the Indian Incometax Act, 1918, and the person succeeded is exempt from tax under section 25 (4) he would not charged in respect of the profits of the period from the end of the previous year up to the date of succession, while the person succeeding would be liable under sub section (2) of section 26 in respect of the profits earned by him after the date of succession. The proviso to sub section (2) lays down two exceptions to the general rule that the successor is not liable to tax in respect of the profits of the period prior to the date of succession. In two cages, namely, (1) when the predecessor cannot be found, or (2) when the tax assessed on the predecessor cannot be recovered from him, the successor is liable to pay the tax in respect of the profits of the year in which the succession took place up to the date of succession as well and further for the profits earned during the year preceding that year. In this case if either of those contingencies arose, Kasturi and Company Limited would have been liable to pay tax on profits of the whole accounting year ending 30th June, 1939, as well as of the whole of the accounting year ending 30th June, 1940, and end of the preceding year in this context would be 30th June, 1939. It is a question whether in this situation they would be entitled to the relief provided in section 25(4). On behalf of the Commissioner of Income tax, Madras, the learned Attorney General contended that Satyanarayana Rao J. was in error in granting exemption to the firm from tax in respect of the profits earned during a period of 20 months and that under section 25, sub section (4), the only relief permissible was in respect of profits earned during the period of 8 months from 1st July, 1939, to 1st March, 1940. It was said that the profits of the year of succession were liable to assessment in the usual course in the financial year 1941 42 and the Income tax Officer had no power to make an accelerated assessment in order to give relief to the persons succeeded in the business 495 and that being so, it was not right to hold that the expression " previous year" in section 25, sub section (4), was co related to the assessment year 1939 40, i.e the year in which,the succession took place or to the assessment year 1941 42 in which in the ordinary course assessment for those profits would have been made but that on a true construction of this sub section and having regard to the history of its enactment and the object for which it was inserted in section 25, the assessee firm was entitled to exemption from the payment of tax, only for the period between 1st July, 1939, and 29th February, 1940, and to no more. It seems to us that there is force in this contention, Section 25 (4) was inserted in the Act of 1922 in the year 1939 at the same time as section 26(2) was amended. On a plain reading of these two sections together, it is quite clear that the Income tax Officer is not empowered to make an accelerated assessment in the year in which succession occurs on the ' profits of that year, and prematurely assess the person succeeding to a business so that he may able to give ' relief to the person succeeded. The exemption provided for its section 25 (4) and the apportionment mentioned in section 26 (2) have to be made in the assessment year in which the profits of the year of succession fall to be assessed under sections of the Act, and in this situation the end of the 'previous year in this case can, in no circumstance, be the end of the accounting year beginning 1st of July, 1937, and ending 30th of June, 1938, because the income, profits and gains of the accounting year of succession (i.e., year beginning 1st July, 1939, and ending 30th June, 1940) which have to be apportioned between the predecessor and successor of the business under section 26(2) and for which the successor becomes liable in case the predecessor commits a default, could only be assessed in the assessment year 1941 42. The income, ' profits and gains of the accounting year beginning 1st July, 1938, and ending 30th June, 1939, for which the predecessor alone is liable in the first instance to 496 tax fall for assessment in the assessment year 1940 41. The successor in business, in case of default by the predecessor, is also liable to pay the tax on the profits of that year as well. What subjection (4) of section 25 provides is that when the profits of the year of succession fall to be assessed, the predecessor of a business can claim exemption from liability to pay tax on the profit earned from the end of the previous year to the date of succession, the "Previous year" here meaning the completed accounting year immediately preceding the date of succession (in this case year ending 30th June, 1939). He can further claim that the profits earned between 1st July, 1939, to 29th February, 1940, be deemed the profits of the accounting year 1st July, 1938, to 30th June, 1939, and if on those profits in assessment year 1940 41 tax in excess of what is chargeable on the profits of this broken period has been paid, be given refund for the excess. Truly speaking, the firm was entitled to the relief provided for in section 25(4) in the assessment year 1941 42 but the Income tax Officer was prepared to give him that in the assessment year 1940 41,and on that score the assessee can have no grievance. Satyanarayana Rao J. held that the words " previous year " in sub . section (1) of section 25 refer to the year of account relevant to the year of assessment in which the discontinuance occurs, that the section authorises the Income tax Officer to make a cumulative assessment in respect of the profits of the period between the end of the last accounting year of which the profits have been assessed before the date of discontinuance and that date, that " sub section (3) of section 25 is an exception to the general rule contained in sub section (1) of that section, and that, though the language employed in sub section (3) does not correspond to the language employed in sub section (1) indicating that in this Sub section also the assessment year should be taken to be the year in which the discontinuance occurs, all the same there is no reason 497 to depart and to place a different interpretation on the expression 'previous year ' in this sub section$ from the one placed on sub section (1). " On the same line of reasoning the learned Judge gave the same meaning to the expression " previous year " in subsection (4) of section 25 and as a result held that the firm was 'entitled to exemption from tax for profits earned between the 1st July, 1938, and 29th February, 1940, a period of 20 months. Mr. Krishnaswami Aiyangar appearing for the respondents, was not prepared to support the whole of the reasoning of Satyanarayana Rao J. but he contended strenuously that the conclusion reached by the learned Judge was the only one that could be reached on a true construction of the phraseology employed in the various sub sections of section 25. In short, his argument was that sub section (1) of section 25 confers an option on the Income tax Officer, in case of discontinuance of a business which was not assessed under the Act of 1918, to make an accelerated assessment in the year of discontinuance itself on the income, profits and gains earned up to the period of discontinuance and not assessed before in any preceding assessment year; that the expression " previous year" in the context of this sub sec tion means the end of the accounting year the profits of which have been last assessed to tax, which in this case means the year ending 30 th June, 1938. It was further contended that any other meaning given to these words would create a hiatus and would lead to the result that on the date of discontinuance the Income tax Officer would be entitled to assess the profits of the broken period without being entitled to assess the profits of a whole previous year that had expired, the profits of which in the usual course could not be assessed in the year of discontinuance and that such a construction would defeat the very purpose of the power given by the sub section. On a parity of reasoning it was suggested that the words "between the end of the previous year and the date of such discontinuance" in subsections (3) and (4) 498 should be given the same meaning as in sub section (1), and that the assessee should be given exemption in respect of profits earned between the 1st July, 1938, and 29th February, 1940. It was said that the two terminals fixed for the purposes of assessment under section 25(1) were the terminals fixed for exemption from tax in section 25(3) and (4) and it would be wrong to hold that the assessment under section 25(1) could be made for a period different from that for which relief could be given under section 25 (3) and (4). It was urged that the scope of the charge authorised by section 25 (1) was co extensive with the extent of the relief provided for in subsections (3) and (4). Before proceeding further it is convenient to make a few observations regarding the proposition stated by Satyanarayaua Rao J. that section 25 (1) provides for cumulative assessment in cases of discontinuance of business. The words of the section do not justify this conclusion. They do not empower the Incometax Officer to make a cumulative assessment in respect of profits earned in two different accounting periods or entitle him to merge the profits of two years into one total sum and apply to them the rate of one of the financial years. All that the section authorises the Income tax Officer to do is that it gives him an option to make a premature assessment on the profits earned up to the date of discontinuance in the year of discontinuance itself instead of in the usual financial year. This assessment he is entitled to make in addition to the normal assessment for the financial year of discontinuance. Mr. Aiyangar very rightly conceded that the construction placed on subsection(1) of section 25 by the learned Judge in this respect was not right. As regards the main contention of Mr. Aiyangar based on the analogy of the language employed in sub section (1) of section 25, we are of the opinion that this contention is based on a fallacy and cannot be sustained. As above pointed out, sub section (1) of section 25 merely empowers the Income tax Officer, 499 if he so chooses to do, to make an accelerated assessment in case of discontinuance of business at the time of discontinuance to save loss of revenue by the disappearance of an assessee. In other words, the subsection imposes a liability of premature assessment on the assessee. It confers no benefit on him. Sub sections (3) and (4) of section 25 have a different end in ' view and are not in pari materia with sub section (1). They are in the nature of substantive provisions intended to give relief from tax charged in certain cases. The mere circumstance of their being grouped together with sub section (1) in section 25 cannot lead to the conclusion that the provisions therein contained are of the same nature and character as the provi sions contained in sub section (1). Satyanarayana Rao J. was clearly in error when he held these two subsections were in the nature of exceptions to the rule laid down in sub section(1). The truth of the matter is that it is sub section(1) itself which is an exception to the general rule laid down in the charging section of the Act, namely, section 3. The object of sub sections (3) and (4) is to provide relief to a business for the double assessment suffered by it in the financial year 1922 23 and it is entitled to this relief in the year of assessment in which the income and profits of the accounting period in which discontinuance or succession takes place fall to be assessed. The Income tax Officer is not authorised to accelerate the relief by making a premature assessment on these profits. Not only is the language of these two sub sections different from the language of sub section (1), but they deal with two different categories of assessees. Sub 'section (1) deals with a category of assessees who were never subjected to double tax, while sub sections (3) and (4) deal with that class who suffered assessment under the Act of 191.8 and paid double tax. The liability for premature assessment imposed under section 25 (1) on the former class of assessees has feed imposed on considerations entirely different from those on which provision has been made for exemption to tax in sub sections 65 500 (3) and (4) for the other class. In, these circumstances, such relief cannot be said to be co extensive with the liability imposed. Moreover, the provisions of the Income tax Act in respect to exemptions and deductions cannot be construed on the 'analogy of the provisions contained in the charging sections of the Act even if the language of these provisions is similar. Mr. Aiyangar 's contention that sub section (1) crystallizes the rights of the assessee on the date of discontinuance and that not only does it relieve him from being taxed after the date of discontinuance, but that it entitles him to further relief provided for in sub section (3) does not seem to be well founded. Sub section (1) of section 25 confers no right of any kind on an assessee which can crystallize on the date of discontinuance and which cannot be varied subsequently to his disadvantage. On the other hand, as already said it imposes a premature burden on the assessee which but for this sub section he could not be called upon to bear till the appropriate year of assessment was reached. The learned Attorney General was not prepared to accept the construction placed on Sub section (1) of section 25 by Mr. Aiyangar and contended that sub section did not authorise the Income tax Officer to make an assessment in the year of discontinuance on the profits of an accounting year which had come to a close before the date of discontinuance, and that those profits had to be assessed in the usual way in the appropriate financial year, and that authority given to make an accelerated assessment only related to the broken period beginning with the end of the completed accounting year immediately preceding the date of discontinuance and ending with the date of discontinuance. In our opinion, it is not necessary for the purposes of deciding this case to finally express an opinion as to the true meaning of the words " between the end of the previous year to the date of discontinuance " used in section 25 (1) of the Act. After a careful consideration of the different provisions of the Act relevant to this enquiry, we have 501 reached the conclusion that the expression "end of the previous year " in sub sections (3) and (4) of section 25 in the context of those sub sections means the end of an accounting year (a period of full 12 months) expiring immediately preceding the date of discontinuance or succession, (in this case 30th. June, 1939). We are satisfied that Viswanatha Sastri J.". was right when he held that having regard to the object of the legislature in enacting sub sections (3) and (4) of section 25 and having regard to the plain language of these sub sections, the assessee 's contentions could not be upheld. We are, however, unable to subscribe to the conclusion reached by the learned Judge that the expression " previous year " in subsections (3) and (4) of section 25 was co related to the year of assessment 1940 41. The profits of the year of discontinuance could not, according to the scheme of the Act, be taxed till the financial year 1941 42 and the previous year co related to that assessment year would be the accounting year ending 30th June, 1940. It is obvious that the 'end of the accounting year falling after the date of discontinuance could not appositely be said to be the end of the previous year preceding that date. The expression ((previous year" substantially means an accounting year comprised of a full period of twelve months and usually corresponding to a financial year preceding the financial year of assessment. It also means an accounting year comprised of a full period of twelve months adopted by the assessee for maintaining his accounts but different from the financial year and preceding a financial year. For purposes of the charging sections of the Act unless otherwise provided for it is co related to a year of assessment immediately following it, but it is not necessarily wedded to an assessment year in all cases and it cannot be said that the expression "previous year" has no meaning unless it is used in relation to a financial year. In a certain context it may well mean a completed accounting year immediately preceding the happening of a contingency. The construction we have placed on 502 this expression in sub sections (3) and (4) of section 25 is in accord with the substance of the definition given in section 2 (1 1) of the Act. Any other construction of the section is bound to lead to a number of anomalies, the most glaring being that in case of persons whose year of account is the financial year, exemption from tax under section 25 (3) or (4) could never be given for a period of more than twelve months, while in case of persons who adopt different accounting year, exemption would become available for a period extending up to 24 months. Such could never have been the intention of the framers of the Act. That the "previous year" in the context of section 25(3) and (4) means a completed accounting year immediately preceding the discontinuance or succession is borne out by the provisions as regards nonliability for tax for the broken period and the 'claim to be made by the assessee that the income, profits and gains of the previous year shall be deemed to have been the income, profits or gains of the broken period. The intention of the legislature being to give relief against double assessment for the year 1922 23, the assessee in the case of discontinuance or succession would be entitled to claim exemption from payment of tax for the broken period and also claim that the income, profits or gains of the previous year, i.e.) the year preceding the broken period, should be treated as the income, profits or gains of the broken period. Reference was made in the judgment of the Appellate Tribunal to the views of the Select Committee when clause (1) of section 25 was considered at the time of the draft Bill No. XXVI of 1921 in support of its conclusion, but it was rightly held by the High Court that it was not a permissible consideration in interpreting a statute and Mr. Aiyangar did not seriously press this matter before us. He, however, drew our attention to the directions contained in the Income tax Manual in force for a number of years and contended that the department itself placed on sub sections (3) and (4) of section 25 the same construction as was 503 placed on them by the senior Judge in the High Court and that was the true construction of these two sub sections. This argument, in our opinion, has no ' validity. The department changed its view subsequently and amended the manual. The interpretation placed by the department on these sub sections cannot be considered to be a proper guide in a matter like this when the construction of a statute is involved. The result is that we allow the appeal and hold that the answer given by the senior Judge to the question referred was wrong and that the answer given by Viswanatha Sastri J. was the correct one. In the circumstances of this case we would make no order as to costs throughout. Appeal allowed. Agent for the respondent : M. section K. Aiyangar.

Two brothers who had been carrying on in partnership a business, which had been assessed to income tax under the Indian Income tax Act of 1918 and the accounting year of which was a period of 12 months ending on the 30th June each year, transferred the business to a limited company on the 1st March, 1940, and claimed in the assessment for the year 1940 41 that under section 25 (4) of the Income tax Act, 1922, they were not liable to pay income tax on the income of their business from 1st July, 1938, up to 29th February, 1940, a period of 20 months. The Income tax authorities were of the view that exemption could be claimed only 487 for the period from 1st July, 1939, to 29th February, 1940, a period of 8 months: Held, that the expression "end of the previous year" in sub sections (3) and (4) of section 25 in the context of those sub sections means the end of the accounting year (a period of full 12 months) expiring immediately preceding the date of discontinuance or succession and the assessee firm was entitled to claim exemption from tax only in respect of the period from the 1st July, 1939, to the 29th 'February,1940, On a true construction of sections 25 and 26, the Income tax Officer is not empowered to make an accelerated assessment in the year in which succession occurs on the profits of that year and prematurely assess the successor so that he , may be able to give relief to the person succeeded. The exemption provided for in section 25 (4) and the apportionment mentioned in section 26 (2) have to be made in the assessment year in which the profits of the year of succession fall to be assessed under section 3 of the Act. For the purposes of the charging sections of the Act the ex pression "previous year" is co related to a year of assessment immediately following it, but it is not necessarily wedded to an assessment year in all cases and it cannot be said that the expression "previous year" has no meaning unless it is used in relation to a financial year. In a certain context it may well mean a completed accounting year immediately preceding the happening of a contingency.

ivil Appeal Nos. 768 769 of 1978. Appeals by Special Leave from the Judgment and order dated 28.1.1977 of the Punjab and Haryana High Court in Income Tax Reference No. 29 of 1975. B.B. Ahuja and Miss A. Subhashini for the Appellant. G.C. Sharma, E.D. Helms, R.S. Sharma and K.B. Rohtagi for the Respondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. The Commissioner of Wealth Tax, Amritsar has filed the above appeals by special leave against the judgment of the High Court of Punjab and Haryana in a reference made under section 27(1) of the (hereinafter 422 referred to as 'the Act ') answering in favour of the assessee the following two questions: "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the offence relating to the omission to file the Wealth tax returns was a continuing offence ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law upholding the penalties of Rs. 5382/ and Rs. 7759/ levied by the department on the assessee under section 18(1)(a) of the , for the assessment years 1964 65 and 1965 66 respectively ?" The assessee, the respondent in these appeals filed his wealth tax returns for the assessment years 1964 65 and 1965 66 on March 18, 1971 while he was required by section 14(1) of the Act to file the return for the assessment year 1964 65 on or before June 30, 1964 and the return for the assessment year 1965 66 on or before June 30, 1965. The Wealth tax Officer completed the assessments for the aforementioned years on March 22, 1971 determining the total wealth at Rs. 1,45,800/ for the assessment year 1964 65 as against the declared wealth of Rs. 1,38,550/ and at Rs. 1,65,200/ for the assessment year 1965 66 as against the declared wealth of Rs. 1,59,127/ and also commenced proceedings for the levying penalty under section 18(1)(a) of the Act for late submission of returns. Ultimately the penalties were levied as follows: "Assessment year 1964 65: (i) For the period from 1.7.64 to 31.3.69: Penalty at 2% p.m. subject to maximum of 50% of the wealth tax payable under section 18(1)(a) before its amendments on 1.4.69 by the Finance Act, 1969: Rs. 115/ (ii) For the period from 1.4.69 to 18.3.71: Penalty at 1/2% of the net wealth for each month of the default under section 18(1)(a) as amended by the Finance Act, 1969: Rs. 5,267/ Rs. 5,382/ 423 Assessment year 1965 66: (i) For the period from 1.7.65 to 30.3.69: Penalty at 2% p.m. subject to maximum of 50% of the wealth tax payable under section 18(1)(a) before its amendment on 1.4.69 by the Finance Act, 1969: Rs.163/ (ii) For the period from 1.4.69 to 18.3.71: Penalty at 1/2% of the net wealth for each month of default under section 8(1)(a) as amended on 1.4.69 by the Finance Act, 1969: Rs. 7,596/ Rs. 7,759/ The above orders levying penalties were upheld in appeal by the Appellate Assistant Commissioner and the Income tax Appellate Tribunal, Amritsar Bench, Amritsar. At the instance of the assessee a consolidated reference was made by the Income tax Appellate 'Tribunal to the High Court referring the above two questions for its opinion. The High Court answered the said questions in favour of the assessee after rejecting the contention of the department that the default or failure to file the return in time was a continuing default and that the penalty had to be computed for the period prior to April 1, 1965 in accordance with section 18 as it stood prior to its amendment by the Wealth tax (Amendment) Act, 1964, for the period between April 1, 1965 to March 3], 1969 in accordance with section 18 of the Act as amended by the Wealth tax (Amendment) Act, 1964 and for the period between April 1, ]969 to March 18, 1971 (on which date the returns were filed) in accordance with sec. 18 of the Act as amended by the Finance Act, 1966. Aggrieved by the decision of the High Court, the Department has filed these appeals under Article 136 of the Constitution . Before dealing with the contentions of the parties, it is appropriate to set out the provisions of the Act which have a bearing on the question involved in the present appeals as they stood during the relevant periods: Prior to April 1, 1965, sub sections (1) and (3) of section 14 of the Act stood as follows: 424 "14. Return of wealth (1) Every person whose net wealth on the valuation date was of such amount as to render him liable to wealth tax under this Act shall, before the thirtieth day of June of the corresponding assessment year, furnish to the Wealth tax officer a return in the prescribed form and verified in the prescribed manner setting forth his net wealth as on the valuation date; (2). . . (3) The Wealth tax officer may, if he is satisfied that it is necessary so to do, extend the date for the delivery of return under this section. " After April 1, 1965: "14. (1) Every person, if his net wealth or the net wealth of any other person in respect of which he is assessable under this Act on the valuation date was of such an amount as to render him liable to wealth tax under this Act, shall, before the thirtieth day of June of the corresponding assessment year, furnish to the Wealth tax officer a return in the prescribed form and verified in the prescribed manner setting forth the net wealth as on the valuation date. (2). . . (3) The Wealth tax officer may, if he is satisfied that it is necessary so to do, extend the date for the delivery of the return under this section. " Section 15 of the Act which has not undergone any change since the commencement of the Act reads: "15. Return after due date and amendment of return If any person has not furnished a return within the time allowed under section 14 or having furnished a return under that section discovers any omission or a 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. " The relevant parts of section 18 of the Act as they stood during the three periods referred to above read as follows: 425 Prior to April 1, 1965 "18. (1) If the Wealth tax officer, Appellate Assistant Commissioner, Commissioner or Appellate Tribunal in the course of any proceedings under this Act is satisfied that any person (a) has without reasonable cause failed to furnish the return of his net wealth which he is required to furnish under sub section (1) or sub section (2) of section 14 or section 17 or has without reasonable cause failed to furnish it within the time allowed and in the manner required; or (b) . (c) . . he or it may, by order in writing, direct that such person shall pay by way of penalty (i) in the case referred to in clause (a), in addition to the amount of wealth tax payable by him, a sum not exceeding one and a half times the amount of such tax, and . " Between April 1, 1965 and March 31, 1969 "18. (1) If the Wealth tax officer, Appellate Assistant Commissioner, Commissioner or Appellate Tribunal in the course of any proceedings under this Act is satisfied that any person (a) has without reasonable cause failed to furnish the return of his net wealth which he is required to furnish under sub section (a) of section 14 or by notice given under sub section (2) of section 14 or section 17 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by sub section (1) of section 14 or by such notice, as the case may be; or (b) . . (c) . . 426 he or it may, by order in writing, direct that such person shall pay by way of penalty (i) in the cases referred to in clause (a), in addition to the amount of wealth tax, if any, payable by him, a sum equal to two per cent of the tax for every month during which the default continued, but not exceeding in the aggregate fifty per cent of the tax; After April 1, 1969 and as on March 18, 1971 on which date the returns were filed "18. (1) If the Wealth tax officer, Appellate Assistant Commissioner, Commissioner or Appellate Tribunal in the course of any proceedings under this Act is satisfied that any person (a) has without reasonable cause failed to furnish the return which he is required to furnish under sub section (1) of section 14 or by notice given under sub section (2) of section 14 or section 17, or has without reason able cause failed to furnish within the time allowed and in the manner required by sub section (1) of section 14 or by such notice, as the case may be; or (b) . . (c) . . he or it may, by order in writing, direct that such person shall pay by way of penalty (i) in the cases referred to in clause (a), in addition to the amount of wealth tax, if any, payable by him, a sum, for every month during which the default continued, equal to one half per cent of (A) the net wealth assessed under section 16, as reduced by the amount of net wealth on which in accordance with the rates of wealth tax specified in Paragraph A of Part I of the Schedule or Part II of the Schedule, the wealth tax chargeable is nil; or (B) the net wealth assessed under section 17, where assessment has been made under that section, as reduced by 427 (1) the net wealth, if any, assessed previously under section 16 or section 17 or (2) the amount of net wealth on which in accordance with the rates of wealth tax specified in Paragraph A of Part I of the Schedule or Part II of the Schedule, the wealth tax chargeable is nil, whichever is greater, but not exceeding, in the aggregate, an amount equal to the net wealth assessed under section 16, or, as the case may be, the net wealth assessed under section 17, as reduced in either case in the manner aforesaid;. . " Now let us analyse the above provisions of law. Section 14 of the Act which has not undergone any material change from the commencement of the Act in so far as the question involved in these appeals is concerned requires a person the value of whose wealth is such as would attract the liability to pay tax to file a return of his wealth as on the valuation date in the prescribed manner before the Wealth tax Officer on or before the thirtieth of June of the assessment year or on or before any date upto which the Wealth tax officer has extended the time to file the return. Section 15 of the Act, however, enables such a person to file a return at any time before the assessment is made. The distinction between section 14 and section 15 of the Act lies in the fact that whereas under section 14 a duty is imposed on the assessee to file a return within the prescribed date, section 15 enables him to file a return before the assessment is made even though the last date prescribed by section 14(1) is over. Section 18 of the Act deals with three types of penalties for certain specified acts or omissions on the part of the assessee referred to in clauses (a), (b) and (c) of sub section (1) thereof. We are concerned in this case with the question of levy of penalty in respect of omissions referred to in clause (a) of section 18(1) of the Act. There are four kinds of omissions referred to in that clause (i) failure to furnish the return which the assessee is required to furnish under sub section (i) of section 14; (ii) failure to furnish the return as required by a notice issued under section 14(2) or section 17, (iii) failure to furnish the return as required by section 14(1) within the time allowed and in the prescribed manner and (iv) failure to furnish the return as required by a notice issued under section 14(2) or section 17 within the time allowed and in the prescribed manner. Each one of these omissions expose the assessee to the levy of penalty unless reasonable cause is shown for not performing 428 the duty. In clause (i) of section 18(1) of the Act, the penalty leviable for any of the omissions referred to in section 18(1)(a) is set out but the measure of penalty imposable has varied from time to time. Prior to April 1, 1965 the penalty imposable was a sum not exceeding one and a half times the amount of wealth tax payable by the assessee during the assessment year in question. Within the outer limit referred to above, The officer concerned or the Tribunal as the case may be could impose any amount as penalty having regard to all the relevant circumstances of the case including perhaps the time that had elapsed from the last day allowed to file the return. Between April 1, 1965 and March 31, 1969 the measure of penalty was regulated by section 18 of the Act as amended in 1964. During that period the penalty imposable was a sum equivalent to two per cent of the tax for every month during which the default continued but not exceeding in the aggregate fifty per cent of the tax. The penalty leviable during this period was less onerous than it was before April 1, 1965. Then came the amendment made by the Finance Act of 1969. After April 1, 1969 by reason of the amendment introduced by the Finance Act of 1969 the penalty imposable was altered to a sum for every month during which the default continued equal to one half per cent of the net wealth calculated in accordance with the amended provisions in section 18. The penalty leviable during this period was more drastic than what it was before. One significant difference between the law as it existed prior to April 1, 1965 and the law as it existed during the subsequent two periods is that whereas during the period prior to April I, 1965 there was no specific reference in clause (i) of section 18 (a) to the time lag between the last date on which the return had to be filed and the date on which it was actually filed, the said factor was expressly required to be taken into consideration after April 1, 1965 while determining the penalty payable by the assessee. Another significant factor which requires to be borne in mind is that neither the Wealth tax (Amendment) Act, 1964 nor the Finance Act, 1969 by which section 18 of the Act was amended expressly stated that the amended provisions of section 18 would be applicable to an assessee who had failed to file the return in respect of any preceding assessment year and the said default had continued after the amendment came into force except using the phrase "for every month during which the default continued", in that part of section 18 which prescribed the measure of penalty. The contention of the Department is that whatever may have been the position of law before April 1, 1965, on and after that date 429 the default committed by an assessee in not filing a return as required by section 14(1) of the Act amounted to a continuing wrong which attracted the penalty as provided by the law in force at the time when such default continued. In other words it is contended that in this case since the assessee who had to file a return after April 1, 1965 for assessment year 1965 66 had not f led the same till March 13, 1971 penalty had to be computed for the period upto April 1, 1969 under the provisions of section 18 of the Act as it stood during that period and for the subsequent period additional penalty should be levied in accordance with section 18 as amended by the Finance Act, 1969. Relying upon the decision of the Kerala High Court in Commissioner of Wealth tax, Kerala vs Smt. V. Pathummabi it is argued that amendments made in 1964 and 1969 brought about a qualitative change in the nature of the default contemplated under section 18 and that what could have been a completed default before April 1, 1965 became a continuing default. Even assuming that this argument is correct it has to be held that the decision of the High Court in so far as the default committed by the assessee in not filing the return in respect of the assessment year 1964 65 is concerned is not erroneous. What remains to be considered is whether the decision in respect of the default committed by the assessee in not filing the return due on June 31), 1955 for the assessment year 1965 66 is liable to be interfered with. To repeat, the relevant part of section 18 of the Act can be divided into two parts the first part contained in clause (a) of section 18(1) setting out the gist of the default and the second part prescribing the measure of penalty. The former part has more or less remained the same from the commencement of the Act and it is only the latter part which has undergone changes. The question is whether by reason of the changes in the latter pari, there has been a change in the nature of the wrong referred to in section 18 (1) (a) of the Act. A liability in law ordinarily arises out of an act of commission or an act of omission. When a person does an act which law prohibits him from doing it and attaches a penalty for doing it, he is stated to have committed an act of commission which amounts to a wrong in the eye of law. Similarly when a person omits to do an act which is required by law to be performed by him and attaches a penalty for such omission, he is said to have 430 committed an act of omission which is also a wrong in the eye of law. Ordinarily a wrongful act or failure to perform an act required by law to be done becomes a completed act of commission or omission, as the case may be, as soon as the wrongful act is committed in the former case and when the time prescribed by law to perform an act expires in the latter case and the liability arising therefrom gets fastened as soon as the act of commission or of omission is completed. The extent of that liability is ordinarily measured according to the law in force at the time of such completion. In the case of acts amounting to crimes the punishment to be imposed cannot be enhanced at all under our Constitution by any subsequent legislation by reason of Article 20 (I) of the Constitution which declares that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. In other cases, however, even though the liability may be enhanced it can only be done by a subsequent law (of course subject to the Constitution) which either by express words or by necessary implication provides for such enhancement. In the instant case the contention is that the wrong or the default in question has been altered into a continuing wrong or default giving rise to a liability de die in diem, that is, from day to day. The distinctive nature of a continuing wrong is that the law that is violated makes the wrong doer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case whenever the question of levying penalty arises what has to be first considered is whether the assessee has failed without reasonable cause to file the return as required by law and if it is held that he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of a delayed return the penalty may be correlated to the time lag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not, however, give rise to a fresh cause of action every day. Explaining the expression 431 'a continuing cause of action ' Lord Lindley in Hole vs Chard Union observed: "What is a continuing cause of action ? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought." In the same decision, Lord Justice A. L. Smith who concurred with the above view said: "If once a cause of action arises, and the acts com plained of are continuously repeated, the cause of action continues and goes on de die in diem. It seems to me that there was a connection in the present case between the series of acts before and after the action was brought; they were repeated in succession, and became a continuing cause of action. They were an assertion of the same claim namely, a claim to continue to pour sewage into the stream and a continuance of the same alleged right. In my opinion, there was here a continuing cause of action within the meaning of the rule. " The distinction between a continuing offence and an offence which is not a continuing one is well brought out in the decision of the High Court of Bombay in State vs A. H. Bhiwandiwalla. In that case, the accused respondent had been charged with two offences namely, (a) failure to apply for registration of his factory and to give notice of occupation and (b) running the factory without a licence issued under the . The accused had a plea of limitation against the prosecution. In that context the High Court observed: "In civil law, we often refer to a continuing or recurring cause of action. Similarly, even in criminal law the expression "continuing offence" is frequently used. As observed by Beaumount C. J. in 'Emperor vs Chhotalal Amarchand ', AIR 1937 Bom 1 (FB) the expression "continuing offence" is not a very happy expression. It assumes, says the learned Chief Justice 432 ". that you can have a continuing offence in the sense in which you can have a continuing tort, or a continuing breach of contract, and I doubt, myself whether the assumption is well founded, having regard to the provisions of the Criminal Procedure Code as to the framing of charges and as to the charges which can be tried at one and the same trial. It is quite clear that you could not charge a man with committing an offence 'de die in diem ' over a substantial period. " Even so, this expression has acquired a well recognised meaning in criminal law. If an act committed by an accused person constitutes an offence and if that act continues from day to day, then from day to day a fresh offence is committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But we may have offences which can be committed from day to day and it is offences falling in this latter category that are described as continuing offences. " Accordingly the High Court of Bombay held in Bhiwandiwalla 's case (supra) that the failure to apply for registration of the factory under the and to give notice of occupation thereof was not a continuing offence but the running of the factory without a licence issued thereunder was a continuing offence. Section 39 of the Indian Mines Act, 1923 which came up for consideration before the Patna High Court in The State vs Kunja Behari Chandra & Ors. on which reliance was placed by the Revenue is a case of continuing offence. Section 39 provided: "39. Whoever contravenes any provision of this Act or of any regulation, rule or bye law or of any order made thereunder for the contravention of which no penalty is hereinafter provided shall be punishable with fine which may extend to one thousand rupees, and in the case of a continuing contravention, with a further fine which may extend to one hundred rupees for every day on which the offender is proved to have persisted in the contravention after the date of the first conviction. " 433 In this case the language of the section itself made it obvious that its violation resulted in a continuing offence. The true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that act. Breach of a covenant to keep the premises in good repair, breach of a continuing guarantee, obstruction to a right of the way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children whom he ii bound to maintain under law and the carrying on of mining operations or the running of a factory without complying with the measures intended for the safety and well being of workmen may be illustrations of continuing breaches or wrongs giving rise to civil or criminal liability. as the case my be, de die in diem. In Balkrishna Savalram Pujari & Ors. vs Shree Dayaneshwar Maharaj Sansthan & Ors. Gajendragadkar, J. (as he then was) observed: "It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continue, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described at the effect of the said injury. " Section 18 of the Act with which we are concerned in this case, however, does not require the assessee to file a return during every month after the last day to file it is over. Non performance of any of the acts mentioned in section 18(1)(a) of Act gives rise to a single default and to a single penalty, the measure of which, 434 however, is geared up to the time lag between the last date on which the return has to be fled and the date on which it is filed. The default, if any committed is committed on the last date allowed to file the return. The default cannot be one committed every month thereafter. The words for every month during which the default continued ' indicate only the multiplier to be adopted in determining the quantum of penalty and do not have the effect of making the default in question a continuing one. Nor do they make the amended provisions modifying the penalty applicable to earlier defaults in the absence of necessary provisions in the amending Acts. The principle underlying section 6 of the General Clauses Act is clearly applicable to these cases. It may be stated here that the majority of the High Courts in India have also taken the same view. In the result we hold that where the default complained of is one falling under section(l)(a) of the Act, the penalty has to be computed in accordance with the law in force on the last day on which the return in question had to be filed. Neither the amendment made in 1964 nor the amendment made in 1969 has retrospective effect. The appeals therefore fail and are dismissed with costs. Hearing fee one set. S.R. Appeals dismissed.

The assessee respondent filed his Wealth Tax returns for the assessment years 1964 65 and 1965 66 on March 18, 1971, while he was required by section D 14(1) of the Act to file the return for the assessment year 1964 65 on or before June 30, 1964 and the return for the assessment year 1965 66 on or before June 30, 1965. The Wealth Tax officer completed the assessment for the said years on March 22, 1971 and also commenced proceedings for levying penalty under section 18(1) (a) of the Act for the late submission of returns. The Wealth Tax officer levied the penalties for different periods at different rates, as provided by the 1964 and 1969 Amendments. treating the failure to file the return in time as a "continuing offence". The orders levying penalties were upheld in appeal by the Appellate Assistant Commissioner and the Income Tax Appellate Tribunal, Amritsar Bench, Amritsar. A consolidated reference made by the Tribunal at the instance of the assessee was answered by the High Court of Punjab in favour of the assessee after rejecting the contention of the department that the default or failure to file the return in time was a continuing default and that the penalty had to be computed for the period prior to April 1, 1965 in accordance with section 18 as it stood prior to its amendment by the Wealth tax (Amendment) Act, 1964, for the period between April 1, 1965 to March 31, 1969 in accordance with section 18 of the Act as amended by the Wealth tax (Amendment) Act, 1964 and for the period between April 1, 1969 to March 18, 1971 (on which date the returns were filed) in accordance with section 18 of the Act as amended by the Finance Act, 1969. Aggrieved by the decision of the High Court, the Department has filed these appeals under Article 136 of the Constitution. G Dismissing the appeals, the Court ^ HELD 1:1. Where the default complained of is one falling under section 18(1) (a) of the Wealth Tax Act, the penalty has to be computed m accordance with the law in force on the last day on which the return in question had to be filed. Neither the amendment made in 1964 nor the amendment made in 1969 has retrospective effect. [434 C D] 420 1:2. Section 18 of the Wealth Tax Act does not require the assessee to file a return during every month after the last day to file it is over. Non performance of any of the acts mentioned in section 18(1) (a) of the Act gives rise to a single default and to a single penalty, the measure of which, however, is geared up to the time lag between the last date on which the return has to be filed and the date on which it is filed. The default, if any committed is committed on the last date allowed to file the return. The default cannot be one committed every month thereafter. [433 G H, 434 A] 1:3. The words "for every month during which the default continued" indicate only the multiplier to be adopted in determining the quantum of penalty and do not have the effect of making the default in question a continuing one. Nor do they make the amended provisions modifying the penalty applicable to earlier defaults in the absence of necessary provisions in the amending Acts. The principle underlying section 6 of the General Clauses Act is clearly applicable to these cases. [434 B C] 2:1. A liability in law ordinarily arises out of an act of commission or an act of omission. When a person does an act which law prohibits him from doing it and attaches a penalty for doing it, he is stated to have committed an act of commission which amounts to a wrong in the eye of law. Similarly when a person omits to do an act which is required by law to be performed by him and attaches a penalty for such omission, he is said to have committed an act of omission which is also a wrong in the eye of law. Ordinarily a wrongful act or failure to perform an act required by law to be done becomes a completed act of commission or of omission, as the case may be, as soon as the wrongful act is committed in the former case and when the time prescribed by law to perform an act expires in the latter case and the liability arising therefore gets fastened as soon as the act of commission or of omission is completed. The extent of that liability is ordinarily measured according to the law in force at the time of such completion. In the case of acts amounting to crimes the punishment to be imposed cannot be enhanced at all under our Constitution by any subsequent legislation by reason of Article 20(I) of the Constitution which declares that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. In other cases, however, even though the liability may be enhanced it can only be a subsequent law (of course subject to the Constitution which either by express words or by necessary implication provides for such enhancement. [429 G H, 430 A D] 2:2. The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. [430 D E] 2:3. The court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case when ever the question of levying penalty arises what has to be first considered is whether the assessee has failed without reasonable cause to file the return as re 421 quired by law and if it is held that he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of a delayed return the penalty may be correlated to the time lag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not, however, give rise to a fresh cause of action every day. [430 E H] 2:4. Where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that act. Breach or a covenant to keep the premises in good repair, breach of a continuing guarantee obstruction to a right of way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children whom he is bound to maintain under law and the carrying on of mining operations or the running of a factory without complying with the measures intended for the safety and well being of workmen may be illustrations of continuing breaches or wrongs giving rise to civil or criminal liability, as the case may be, de die in diem. [433 A D] Hole vs Chard Union, , quoted with approval. State vs A. Bhiwandiwalla, A. I. R. ; The State vs Kunja Behari Chandra and Ors. A.I.R. 1954 Patna 371, approved, Balkrishna Savalram Pujari and Ors. vs Shree Dayaneshwar Maharaj Sansthan and Ors., [1959] Supp. 2 S.C.R. 476, referred to.

Appeal No. 1533 of 1971. Appeal by special leave from the judgment dated September 18, 1971 of the S.D.O./Arbitrator, Muzaffarnagar in Election Petition No. 140 of 1970. AND Civil Appeals Nos. 1797 and 1798 of 1971. , Appeals by spe cial leave from the judgments dated September 18, 1971 of the District Magistrate/Registrar, Co operative Societies, Saharanpur in Appeals Nos. 6 and 8 of 1971 under section 98 (i) (h) U.P. Co Societies Act. AND Special Leave Petition (Civil) No. 3254 of 1971 From the judgment dated September 16, 1971 of the Registrar, Co operative Societies/District Magistrate Saharanpur in Appeal 'No. 5 of 1971 under section 98 (i) (h) Co operative Societies Act.) J. P. Goyal and V. C. Parashar, for the appellants (in C.As. 1533 and 1797 of 1971) and the petitioners (in S.L.P. No. 3268 of 1971) R. K. Garg, S.C. Agrawal and R. K. Jain, for the appellants ,(in C.A. No. 1798 of 1971) and the Petitioners (in S.L.P. No. 3254 of 1971) C. B. Agarwal and P. P. Juneja, for respondents Nos. 7, 8 and 1 to 13 (in C.A. 1533 of 1971) 151 O. P. Rana, for respondents Nos. 7 and 12 (in C.A. No. 1797 of 1972) and respondent No. 7 (in C.A. No. 1798 of 1971). M. C. Setalvad, R. K. Garg, section C. Agarwal and R. K. Jain, for the intervener. The Judgment of the Court was delivered by Ray, J. These three appeals are by special leave. Civil Appeal No. 1533(N) of 1971 is by special leave against the judgment dated 18 September, 1971 of the Arbitrator setting aside the election of the Management Committee of the Co operative Cane Development Union, Shamli in an election petition filed under rule 229(2) of the Co operative Societies Rules, 1967 framed under the Uttar Pradesh Co operative Societies Act, 1965. Civil Appeal No. 1797 of 1971 is by special leave against the order of the District Magistrate and Registrar, Co operative Societies Sharanpur dismissing an appeal filed under section 98(i)(h) of the U.P. Cooperative Societies Act, 1965 against an order of the Arbitrator under section 70 and 71 of the U.P. Co operative Societies Act. 1965 setting aside the election of the Sahkari Ganna Vikas Samiti Ltd., Iqbalpur, District Saharanpur. Civil Appeal No. 1798 of 1971 is against the order and judgment dated 16 September, 1971 of the District Magistrate, Saharanpur dismissing an appeal under section 98(i)(h) of the U.P. Co operative Societies Act, 1965 against the order of the Arbitrator under sections 70 and 71 of the U.P. Co operative Societies Act, 1965 setting aside the election of ,the Sahkari Ganna Vikas Samiti Ltd., Lhaksar, District Saharanpur. Special Leave Petition (Civil) No. 3254 of 1971 is for leave to appeal against the order of the Registrar, Co operative Societies in appeal under section 98(i)(h) against the order of the Arbitrator under sections 70 and 71 of the U.P. Co operative Societies Act, 1965 setting aside the election of Sahkari Ganna Vikas Samiti, Sarsawa. Special Leave Petition (Civil) No. 3268 of 1971 is for leave to appeal against the order of the District Authority, Bulandsbahr setting aside the election of the Committee of Management of the Co operative Cane Development Union Ltd. on an application under rule 229 of the U.P. Co operative Societies Rules, 1968. These matters raise a common question. These Co operative 'Societies held their annual general meeting under the provisions of section 32 of the Uttar Pradesh Co operative Societies Act, 1965 (hereinafter called the Act). At the general meetings the members of the Committee of Management of the Society were elected by members of the Society. The, Registrar of the U.P. Co operative Societies issued a circular dated 5 November, 1969 interpreting rule 409 of the U.P. Co operative Societies Rules, 1968 (hereinafter called the Rules) and laid down the principle that all the members of the general body "of the Co operative 152 Society would" exercise their right of vote in filling all the seats of elected Directors. " The question in the present appeals is whether the Registrar had power to issue the circular interpreting rule 409 and secondly whether that interpretation is correct in terms of the Act and the Rules. The Act deals with Co operative Societies and inter alia their members and their Committee of Management. The relevant sections for the purpose of present appeals and special leave petitions are sections 20, 29 and 32 of the Act. Section 20 of the Act speaks of vote of members. Under that section, a member of a Co operative Society shall notwithstanding the quantum of his interest in the capital of the Society have one vote in the affairs or the Society. There are four provisos to section 20. Proviso (a) deals with nominal or associate members who have no right of vote. Proviso (b) deals with a co operative society, the State Warehousing Corporation or a body corporate being a member of such society in which case each delegate of such co operative society, State Warehousing Corporation or body corporate shall have one vote. Proviso (c) deals with the State Government or the Central Government being a member of such society in which case a nominee of the State Government or the Central Government shall have one vote. Proviso (d) deals with a group of members or any class of members partaking in the affairs of the society through a delegate or delegates each delegate having one vote. Section 29 of the Act deals with the Committee of Manage ment. The management of every co operative society shall vest in a committee of management. The term of the election members of the committee of management shall be such as may be provided in the rules and the bye laws of the society. After the expiry of the term the co operative society shall at the annual general meeting elect members for the committee of management as provided in section 32(i)(b) of the Act. If a society fails to elect members for the committee of management the Registrar shall call upon the society by order in writing to elect such members within three months from the date of the communication of the order. If the society still fails to elect the members for the committee of management, the Registrar may himself nominate such persons as under the rules and the bye laws are qualified for being elected as members of the committee of management. Within six months from the date of nomination made by the Registrar, the Registrar shall call a general meeting for electing members of the committee of management. Section 32 of the Act speaks of annual general meeting which shall be held once in 'a co operative year. A co operative year means the year commencing the first day of July and ending on the 30th June of next following. One of the purposes of the annual 153 general meeting is election of the members of the committee of management in accordance with the provisions of the rules and of the bye laws of the society. Rule 409 is as follows "For the purposes of election to the membership of the committee of management a co operative society may, with the previous sanction of the Registrar (a) divide its membership into different groups on territorial or any other rational basis, and (b) also specify the number or proportion of the member of the committee of management in such a manner that different areas or interests, as the case may be, in the society may, as far as may be, get suitable representation on the committee or management." In order to appreciate as to how rule 409 comes up for consideration in the present case it is necessary to refer to facts in Civil Appeal No. 1533 (N) of 1971 as a typical case. The Shamli Cane Development Union Ltd., Shammli, U.P. was registered under the . It was deemed to be registered under the Act. The society had its bye laws with regard to the formation of the committee of management and its election including the election of the Chairman and the Vice Chairman. The bye laws provided for a committee of management consisting of 14 members. The committee of management elects a Chairman and a Vice Chairman. The delegates constituting the general body of the society are divided into 14 constituencies. Each constituency elects one Director. The delegates of the members of the society in a constituency elect a member of each single member constituency. The 14 members of the committee are elected on that basis whereby each delegate of each constituency exercises one vote for electing a member of that constituency. The Secretary of the society fixed 13 October, 1970 as the date for filing the nomination for the office of the committee of management. 17 October, 1970 was the date for scrutiny of nomination papers. 19 October, 1970 was the date for withdrawal of nomination papers. 28 October, 1970 was the date of poll. By a letter dated 14 October, 1970 the Registrar, Cooperative Societies directed that "the election of the members of the managing committee shall be done by all the representatives of the area of the society and not by the representatives of the related constituencies alone. This means that every representative L864Sup. CT/72 154 shall have as many votes as the members are to be elected". In short, the Registrar 's interpretation of rule 409 as well as the letter stated that each delegate would vote for 14 members of the committee of management and thus each delegate would exercise 14 votes. The rival contentions which fall for determination are whether the right of vote for election of a member of the committee of management is confined to the delegates of the members of that particular constituency or whether a delegate would have the right to vote for all the constituencies constituting the committee of management. As to the power of the Registrar to interpret rule 409 it win appear that the rule does not confer any power on the Registrar to interpret or to express views to guide the rights of members to vote at the annual general meeting for the purposes of election of the committee of management. On the contrary, under rule 409 the Co operative Society may with the previous sanction of the Registrar (i) divide its membership into different groups on territorial or any other rational basis and (ii) also specify the number or proportion of the members of the committee of management in such a manner that different areas or interests, as the case may be, in the society may, as far as may be, get suitable representation on the committee of management. Therefore, under rule 409 a co operative society can divide its membership into different groups on territorial or any other rational basis for the purposes of election of the members of the committee. The rule also empowers the society to apportion the membership of the committee of management amongst different groups into which the membership is divided. The number or proportion of members of the com mittee of management will have to be apportioned in such a manner that the different areas or interests into which the membership of the society are divided may obtain suitable representation on the committee of management. The entire purpose of division of membership into different groups and specifying suitable representation of such group on the committee of management is to emphasise the, right of the particular group to send its representative to the committee. To illustrate if a society is divided into 14 separate groups on a territorial. basis and one member of the committee of management is allotted to each group and if delegates of one group have the right to cast 14 votes two consequences will follow. First, the right of choosing a representative of the constituency will be not confined to that constituency but will be enlarged to outsiders in other constituencies. Secondly, a member of the committee from one constituency may be elected by a majority of votes from delegates of other constituencies. If delegates residing outside a territorial constituency 155 take part at the election for member of a committee from territorial constituency within which he is not a resident it will not only amount to enlarging the right of representation beyond ones territorial basis but also deny the delegates within the constituency the right of electing their own representative. It was said on behalf of the appellants that section 20 of the Act speaks of a member of the co operative society having one vote in the affairs of the society with the result that each member is entitled to exercise as many votes as the members of the committee of management. Accent was placed on the words 'affairs of the society ' and it was said that the constitution of the committee of management was one of the principal affairs of the society and therefore each member would entitled to cast as many votes as the strength of the committee of management. The fallacy lies in overlooking the significant words in section 20 of the Act that a member shall have one vote. It may also be noticed that if each member exercises by way of illustration 14 votes in regard to 14 members of the committee each member shall be "exercising 14 votes in the affairs of the society. Under rule 409 the principal matters to be kept in the fore front are these. First, the society will divide the constituencies on territorial basis or any other rational basis. By territorial basis is meant territory where the member will reside. Residence is therefore the relative requirement of territorial basis. If any other rational basis like occupation or vocation is determined to be the basis of a constituency the persons falling within the cons tituency will satisfy that test. Secondly, the society will specify the proportion of members of the committee in such a manner that different areas or interests may get suitable representation. The inherent idea is that such areas or interests will obtain representation. If membership is on territorial basis, the different areas will get representation according to the interest of such territories. Again, if occupational or vocational or professional tests are created for dividing groups such interests will have to be given suitable representation Representation is therefore with reference to areas or interests. Judged by these principles the impeached circular of the Registrar suffers from the vice of giving the members the right of 'casting vote in constituencies to which they do not belong. This strikes at the basic root of right of representation. This also reads as under the principle of one member one vote which is made into a rule of law in the Act. [155 E G] The words 'affairs of the society ' cannot be equated with the Constituencies to give each member a right to vote for each constituency. That would defeat the purpose of section 20 and rule 409. The basic idea of a representative for each constituency 156 depends on the mandate of the respective constituency and not of other constituencies. That is why section 20 of the Act speaks of, one member having one vote irrespective of shareholding. It means equality of votes, of members. The constitution of the committee of management is indisput ably one of the affairs of the society. If each member exercises franchise with respect to the representation from his constituency he is not in any manner prevented from having a right to partake in the affairs of the society through a member elected from the constituency. Some reliance was placed by counsel for the appellants on rule 105 in support of the contention that every member would have one vote for each member of the committee of management. Rule 105 occurs in Chapter VII relating to meetings and speaks of matters before a committee being decided by a majority of votes of the members present. That rule obviously has no reference to election but only to passing of resolution by majority at meetings. It is obvious that members of the committee of management will have the right to vote at all matters at the meeting and matters will be decided by a majority of votes. The impeached circular of the Registrar is illegal and unwarranted Registrar has no power to interpret rule 409. The Registrar has equally no power to express view with regard to conduct of the election and regulate the voting rights by giving the members more than one vote. The society is to frame rules for elections. Rules require the sanction of the Registrar. The rules and the bye laws cannot be in derogation of the statute and statutory rules. At an election of members of the committee of management one member will have only One vote for the constituency to which he belongs. The result is that the elections which were held following the circular of the Registrar are bad. For these reasons the three appeals fail and are dismissed. The two special leave petitions are also dismissed. Parties will pay and bear their own costs. G.C. Appeals dismissed.

Under section 32 of the U.P. Cooperative Societies Act, 1965 the business to be conducted at the annual general meeting of a society includes inter alia election of the committee of management of the society. Under Rule 409 of the Act namely the Cooperative Societies Rules, 1967 a Cooperative society may, for the purpose of the election of the Committee of management, with the previous sanction of the Registrar of Cooperative Societies (a) divide its membership into different groups on territorial or any other rational basis, and (b) also specify the number or proportion of the members of the committee of management in such a manner that different arm or interests, as the case may be, in the society may, as far as may be, get suitable representation on the committee of management. On 5 November 1969 the Registrar issued a circular interpreting Rule 409 and laid down the principle that "all the members of the general body" of the cooperative society would "exercise their right of vote in filling all the seats of elected Directors". The elections in the cooperative societies concerned in the present appeals were held according to the aforesaid directions given by the Registrar. The elections were challenged and set aside in proceedings under the Act. On the question whether the circular interpreting Rule 409 issued by the Registrar was valid, this Court, HELD : Under rule 409 the principal matters to be kept in the forefront are these. First, the society will divide the constituencies on territorial basis or any other rational basis. By territorial basis is meant territory where the member will reside. Residence is therefore the relative re quirement of territorial basis. If any other rational basis like occupation or vocation is determined to be the basis of a constituency the persons falling within the constituency will satisfy that test. Secondly, the society will specify the proportion of members of the committee in such a manner that different areas or interests may get suitable representation. The inherent idea is that such areas or interest will obtain representation. If membership is on territorial basis the different areas will get representation according to the interest of such territories. Again, if occupational or professional tests are created for dividing groups such interests will have to be given suitable representation. Representation is therefore with reference to areas or interests. Judged by these principles the impeached circular of the Registrar suffered from the vice of giving the members the right of casting vote in constituencies to which they did not belong. This strikes at the basic root of the fight of representation. This also reads as under the principle of one member one vote which is made a role of law in the Act. [155 E G] 150 The words 'affairs of the society ' in section 20 cannot be equated with the constituencies to give each member a right to vote for each constituency. That would defeat the purpose of section 20 and rule 409. The basic idea of representation for each constituency depends on the mandate of the respective constituency and not of other constituencies. That is why section 20 of the Act speaks of one member having one vote irrespective of shareholding. It means equality of votes of members. [155 H] The impeached circular of the Registrar was illegal and unwarranted. The Registrar has no power to interpret rule 409. The Registrar has equally no power to express view with regard to the conduct of the election and regulate the voting rights by giving members more than one vote. The society is to frame rules for elections. The rules and the bye laws cannot be in derogation of the statute and statutory rules. At an election of members of the committee of management one member will have only one vote for the constituency to which he belongs. [156 E] The result was that the elections which were held following the circular of the Registrar were bad.

Appeals Nos. 47 to 50 of 1952. Appeals from the Judgment and Decree dated the 11th May,1950, of the High Court of Judicature at Allahabad (Malik C. J. and Bhargava J.) in Miscellaneous Case No. 134 of 1949 connected with Miscellaneous Case No. 197 of 1948. G.S. Pathak (G. C. Mathur, with him) for the appellant. M.C. Setalvad, Attorney General for India, (G. N. Joshi, with him) for the respondent. September 23. The Judgment of the Court was delivered by PATANJALI SASTRI C. J. This batch of appeals arises out of a reference made to the High Court at Allahabad by the Income tax Appellate Tribunal, Allahabad Bench, under section 26 of the Excess Profits Tax Act, hereinafter referred to as " the Act. " The assessments challenged in these appeals relate to different chargeable accounting periods but the questions raised are the same in all the cases. The appellants constitute a Hindu undivided family consisting of four branches representing the four sons of one Sohan Pathak deceased. The family carried on business at Banaras in money lending and Banaras brocade under the name and style of Sohan Pathak & Sons. In the assessment relating to the chargeable accounting period ending on October 8, 1943, the appellants alleged that there was a partial partition among the members of the family on July 16, 1943, whereby the Banaras brocade business was divided in equal shares among the four branches and that, on the next day, the adult members of the family formed two partnerships admitting the minors to the benefits thereof, and thereafter carried on business in Banaras 160 brocade under the respective firm names of Sohan Pathak Girdhar Pathak and G. M. Pathak & Co. The appellants claimed that the family as such ceased to carry on business in Banaras brocade after July 16, 1943, though they continued to remain joint in status and that the profits derived by the two partnerships aforesaid after July 17, 1943, could not be assessed as profits of the original joint family business, as the businesses carried on by the two partnerships were distinct and newly started businesses and could neither in law nor in fact be regarded as continuation of the old brocade business. In support of this claim the appellants strongly relied on the circumstance that the Income tax Officer treated the old business as discontinued by the family after the partial partition and granted relief on that footing under section 25(3) of the Indian Income tax Act in the assessment to income tax of the appellants as a Hindu undivided family. The Excess Profits Tax Officer, however, rejected the claim as he was of opinion that the main purpose of the partial partition and the creation of the two partnerships was to avoid or reduce the liability of the appellants to excess profits tax, and he made adjustments under section 10 A of the Act by adding to the profits made by the appellants as a joint Hindu family till the date of the partition the profits made by the two firms during the chargeable accounting periods. The Appellate Assistant Commissioner and the Appellate Tribunal confirmed the finding and order of the Excess Profits Tax Officer, but, at the instance of the appellants, the Tribunal referred the following questions to the High Court for its decision: 1.Whether in view of the fact that the partial partition bad been accepted by the Income tax Officer and the business was treated as having been discontinued for the purpose of assessment under the Income tax Act, the same business could legally be treated as having continued unbroken in respect of the same chargeable accounting period for the purpose of section 10 A of the Excess Profits Tax Act read with sections 4 and 5 of the same Act ? 161 2.Whether in the circumstances of the case the effect of the partial partition of the Hindu undivided family on July 16, 1943, and the formation of two different firms was a transaction within the meaning of section 10 A of the Excess Profits Tax Act ? 3.Whether on the facts found by the Tribunal as stated in para. 7 of the statement of the case, it was justified to draw the inference that the main purpose behind the partial partition was the avoidance or reduction of liability to excess profits tax ? The court answered these questions against the appellants but granted leave to appeal to this court. At a previous hearing of these appeals this court was of opinion that the material facts relating to the partial partition and the formation of the partnership and the findings of the Tribunal in regard thereto had not been clearly stated by the Tribunal in the original statement of the case. The court said: " While it is true that in one place in the statement of case the Tribunal speaks of the old family brocade business as continuing without a break after the partial partition, reference is made in another place to the assets of that business having been equally divided among the four branches forming the family. There is thus no clear finding as to how the partition of the brocade business was actually effected whether by a division in shares, each branch holding its share in severalty and the business being carried on as before on a partnership basis, or whether by an actual distribution and allotment of specific assets and liabilities among the branches resulting in the disruption of that business." The court accordingly by its order of January 12, 1953, called for a further and clearer statement of the facts on the points indicated. The Tribunal has since submitted a supplementary statement of the case fully setting out the details of the partition arrangement and the constitution of the two firms by the members of the family after the partition. The statement reveals that the bulk of the 162 capital as well as all " the stock in trade, the cash in hand, the cash in banks, all outstandings as on that date as also the sundry liabilities up to that day " were divided amongst each of the 14 coparceners each branch being allotted a four anna share as stated in the schedule filed by the assessees and annexed to the statement, showing that the partition was by specific distribution of the assets and liabilities and not by a division of shares merely. With the assets and liabilities thus distributed, the two partnerships separately carried on brocade businesses similar to the one carried on by the joint family before the partial partition. The names of the partners of the two firms are mentioned and it appears that each firm consisted of members representing all the four branches, some of them being adults and some minors, the minors in each case being only admitted to the benefits of the partnerships. On these facts it was contended by Mr. Pathak on behalf of the appellants that the finding of the Excess Profits Tax Officer that the main purpose of the partial partition and the formation of the new partnerships was to avoid or reduce the liability of the appellants to excess profits tax was not supported by any material on record. Secondly, assuming that there was material on which the officer could have come to such a finding, the old family business in Banaras brocade having been actually closed down, the officer had no power in assessing the profits of that business to make adjustments under section 10 A of the Act by adding the profits made by the two firms after July 17, 1943. And lastly, and alternatively, there was undoubtedly a change in the persons carrying on the old business after July 16, 1943, even if it were regarded as still continuing, the Hindu undivided family being a "person" [section 2(17)] distinct from the individuals Composing it, and such business ' must, under section 8(1), be deemed for all the purposes of the Act (except for one not material here) to have been discontinued and a new business to have been commenced, and the same consequences followed. Mr. Patbak did not argue 163 that the partial partition and the constitution of the two partnerships were not "transactions" within the meaning of section 10 A. Nor did he insist that the acceptance of the partition and allowance of relief by the Income tax Officer under section 25(4) of the Income tax Act concluded the matter for purposes of section 10 A of the Act, as appears to have been contended in the earlier stages of these proceedings. The first contention can be disposed of in a few words. It appears from the facts found by the tax authorities as well as by the Appellate Tribunal that the partial partition and the formation of the partnerships were brought about at a time when the profits of the Banaras brocade business showed a definitely upward trend. If the main purpose of these transactions was not to evade liability to excess profits tax, the appellants were asked to explain what the purpose was, and they said that they wanted to protect the interests of the minor members whose shares in the partnership assets would not be liable for the losses, if any, of the firms, while the entire family properties would be liable for any loss incurred in the family business. This explanation was not acceptable because such protection was not thought of when the family business was earning smaller profits and also because, according to the constitution of the partnerships, while each branch was given the same 4as. interest, the responsibility for losses falling on the branch which had no minor members would be heavier than what would be borne by the branch which had no adult members, a disparity which the purpose put forward by the appellants failed to explain. In these circumstances we agree with the High Court in holding that there was sufficient material to support the inference drawn by the Appellate Tribunal that the main purpose behind the partial partition and the formation of the partnerships was the avoidance or reduction of liability of the family business to excess profits tax. The real and substantial question in the appeals is whether in view of the finding of fact that the old family business was wound up, its assets and liabilities 164 having been actually distributed among the coparceners, and was no longer carried on by the joint family as such during the relevant chargeable accounting periods, ' section 10 A has any application to the case. Question No. 1, which is supposed to have raised this point, was not happily framed. As already stated, Mr. Pathak did not argue that the Income tax Officer 's finding as to the discontinuance of the old family business precluded the Excess Profits Tax Officer from considering the issue. It is now well settled that, for the purposes of the Act, a business is a unit of assess ment, and the charging section 4 provides for the tax being levied in respect of the profits of " any business to which this Act applies. " Section 5 specifies the businesses to which the Act applies, and they are businesses " of which any part of the profits made during the chargeable accounting period is chargeable to income tax " by virtue of certain specified provisions of the Indian Income tax Act, 1922. There are some provisos to this section, one of which excludes the application of the Act to " any business the whole of the profits of which accrue or arise in a Part B State. " It is thus manifest that the Act can have no application to a business which did not make any profits during the relevant chargeable accounting period. In other words, if a business, having been discontinued, earned no profit during the chargeable accounting period in question, no excess profits tax can be charged in respect of such business, and that being the position here as respects the old joint family business in Banaras brocade, the appellants are not liable to be taxed as a Hindu undivided family in respect of that business. But, argues the learned Attorney General, that result cannot follow by reason of section 10 A of the Act which runs as follows: 10 A. Transactions designed to avoid or reduce liability to exces profits tax. (1) Where the Excess Profits Tax Officer is of the opinion that the main purpose for which any transaction or transactions was or were effected (whether before or after the passing of the 165 Excess Profits Tax (Second Amendment) Act, 1941) was the avoidance or reduction of liability to excess profits tax, he may, with the previous approval of the Inspecting Assistant Commissioner, make such adjustments as respects liability to excess profits tax as he considers appropriate so as to counteract the avoidance or reduction of liability to excess profits tax which would otherwise be effected by the transaction or transactions. This provision, it is claimed, empowers the Excess Profits Tax Officer to ignore any transaction (s) the main purpose of which was the avoidance or reduction of liability to excess profits tax and to proceed on the footing that such transactions) had not been effected, and, in the present case, the partial partition as well as the subsequent formation of the partnerships having been found to be transactions the main purpose of which was the avoidance or reduction of liability to excess profits tax, the officer had authority to assess the appellants ' old family business in Banaras brocade on the basis of its continued existence during the relevant chargeable accounting periods. We are unable to accept this contention. If, under section 4 of the Act read with section 5, the old joint family business cannot be regarded as one " to which this Act applies," section 10 A, one of the provisions of the Act, can have no application to such business. The learned Attorney General 's argument that sections 4 and 5 must be read along with section 10 A in determining whether the Act applies to any particular business or not involves the fallacy that, in determining the initial issue whether the Act does or does not apply to a given business, you have to look not merely at the provision which defines the scope and application of the Act but other provisions also which presuppose its application. We are of opinion that the issue whether the Act applies or not to a particular business must be determined solely with reference to section 5, and section 10 A must be construed as 23 166 applicable only to cases where, the business being found to be one to which the Act applies, a transaction of the kind referred to in the section has been effected. The learned Attorney General conceded that, if a person who had been paying excess profits tax transferred the business to a Part B State, it would not be competent for the Excess Profits Tax Officer to take action under section 10 A to make adjustments on the footing that the assessee continued to carry on his business in the same place as before such transfer, even if it was found that the transfer was effected for the main purpose of avoiding or reducing his liability to excess profits tax. In that case, the Attorney General admitted, the Officer would be running counter to the express prohibition contained in the proviso to section 5 to which reference has been made and he did not challenge the correctness of a decision to that effect by the Bombay High Court, (Commissioner of Excess Profits Tax, Bombay City vs Moholal Maganlal) (1). But we fail to appreciate the distinction in principle between that case and the present, for, to both alike the Act is made inapplicable by section 5. The reasoning of the learned Judges in the Bombay case, namely, that if the Act is inapplicable to a particular business and there would thus be no liability to excess profits tax in respect of that business, no question could arise of avoiding or reducing any liability to excess profits tax under section 10 A, would equally apply to the present case and must lead to the same result. Reference was made by the Attorney General in the course of his argument to the proviso to section 2(5) which says that " all businesses to which this Act applies carried on by the same person shall be treated as one business for the purposes of this Act. " We find it difficult to appreciate the bearing of this section on the point at issue. It is clear that the proviso can operate in respect of businessess to which the Act applies and not otherwise, and it carries the, matter no further. (1) [1953] 23 167 In the view we have expressed above, it is unnecessary to deal with the alternative contention based on section 8(1) of the Act. We allow the appeals, set aside the answer made by the High Court to question No. 1 and answer it as follows: In view of the finding of fact that the old joint family business in Banaras brocade was wound up and was no longer carried on by the joint family as such during the relevant chargeable accounting periods, the same business could not legally be treated as having continued unbroken in respect of such periods for the purpose of section 10 A of the Excess Profits Tax Act read with sections 4 and 5 of the same Act. The judgment of the High Court will stand in other respects. The appellants will have their costs of the appeals. Advocates ' fee one set. Appeals allowed.

A Hindu undivided family carried on business in money lend ing and brocade. On the 16th July, 1943, there was a partial partition amongst the members by which the brocade business was divided and its assets and liabilities were partitioned in equal shares between the members of the family. On the next day the adult members of the family formed two partnerships admitting minors to the benefit thereof, and carried on the brocade business under two separate firm names though they continued to remain joint in status. The Income tax Officer accepted the partial parti tion and treated the brocade business of the family as having been discontinued, but the Excess Profits Tax Officer held that as the main purpose of the partial partition was avoidance of tax, it was an artificial transaction, and, treating the business as unbroken, made adjustments under section 10 A of the Excess Profits Tax Act, by adding to the profits made by the assessees as a joint family till the date of the partition, the profits made by the two firms after partition during the chargeable accounting period : Held, (i) under sections 4 and 5 of the Excess Profits Tax Act, the Act can have no application to a business which did not make any profits during the relevant chargeable accounting period, and, as the old joint family business in brocade was discontinued and earned no profit during the chargeable accounting period in question, the appellants were not liable to be taxed as a Hindu undivided family in respect of that business; (ii)that the issue whether the Excess Profits Tax Act applies to a particular business must be determined solely with reference to section 5 of the Act, and section 10 A must be construed as applicable only to cases where, the business being found to be one to which the Act applies, a transaction of the kind referred to in the section has been effected; and in view of the finding that the old joint family business in brocade was wound up and was no longer carried on by the joint family as such during the relevant chargeable accounting periods, the same business could not be 159 legally treated as having continued unbroken in respect of such periods for the purpose of section 10 A of the Excess Profits Tax Act read with sections 4 and 5 of the same Act.

vil Appeal No. 1314 (NT) of 1976. From the Judgment and Order dated 15.11.1975 of the Gujarat High Court in Income Tax Reference No. 160 of 1974. Dr. V. Gauri Shankar, Manoj Arora and Ms. A. Subhashini for the Appellant. J. Vellapaly, Ms. A.K. Verma and J.B. Dadachanji for the Respondent. The Judgment of the Court was delivered by OJHA, J. This appeal has been preferred on the basis of a certificate granted by the High 'Court of Gujarat under Section 261 of the Income Tax Act, 1961 (hereinafter re ferred to as the Act). The judgment appealed against is reported in Cellulose Products of India Ltd. vs Commissioner of Income Tax, Gujarat, [1977] 110, I.T.R. page 15 1. The respondent is a public limited company incorporated on April 14, 1989 mainly for the purpose of carrying on business of manufacturing chemical products. The Memorandum of Associa tion of the respondent company, as is apparent from the order of the Appellate Assistant Commissioner of Income Tax, inter alia contains the following clause: "to carry on the business of manufacture of and dealer and importers and exporters in chemical products of any nature and kind whatsoever and particulary of Carboxy Methyl Cellulose (CMC), Cellulose Pulps and other chemical products. " The respondent was granted an industrial licence by the Central Government for the manufacture of Sodium Carboxy Methyl Cellulose (for short CMC). In pursuance of the said licence the respondent installed a Cellulose plant, in which was manufactured Cellulose pulp which in its turn was meant to be used as a raw material for manufacture of CMC. This fact does not appear to have been in dispute that the re spondent began production of Cellulose pulp from March 18, 1961 in the said plant while the production of CMC was started from June 15,1961. 891 In the assessment year in question namely 1966 67, the previous year of account being the financial year 1965 66 ending on March 31, 1966, the respondent claimed relief contemplated by Section 84 of the Act (as it stood prior to its being deleted with effect from April 1, 1968 by Finance (No. The Income Tax Officer took the view that since the respondent had started production of Cellu lose pulp from March 18, 1961 it had begun to manufacture or produce finished articles or goods in the year ending on March 31, 1961 and consequently the assessment year 1961 62 was the first year in which the assessee was entitled to relief under Section 84. According to him, the relief con templated by Section. 84 being available only for five years namely the assessment year 1961 62 and the four assessment years immediately succeeding as contemplated by Sub section (7) of Section 84 of the Act, the respondent was not enti tled to the relief claimed in the assessment year 1966 67 which fell beyond the aforesaid period. This finding of the Income Tax Officer was affirmed in appeal by the Appellate Assistant Commissioner. The matter was taken by the respond ent in further appeal before the Income Tax Appellate Tribu nal. The respondent 's contention that the production of Cellulose pulp during the month of March 1961 was a trial production was repelled by the Tribunal and a categorical finding was recorded by it that Cellulose pulp manufactured by the respondent during the month of March 1961 was a finished product which was a marketable commodity. On this view the Tribunal held that the respondent having begun production or manufacture of finished product which was capable of being sold in the market in the year of account relevant to the assessment year 1961 62, the last year in which the respondent was entitled to get relief under sec tion 84 of the Act was the assessment year 1965 66 and the claim made by it for the said relief in the assessment year in question namely 1966 67 was not maintainable. The Tribu nal, however, on an application made in this behalf by the respondent referred the following question to the High Court of Gujarat for its opinion: "Whether on the facts and in the circumstances of the case, the Tribunal was right in reject ing the assessee 's claim for relief under section 84 of the Act for the assessment year 1966 67?" The High Court by the judgment under appeal answered the question aforesaid in the negative, that is, in favour of the assessee and against the revenue. It held that even though the word "article" used in Subsection (7) of section 84 of the Act was undoubtedly an ordinary word employed by the legislature but in the context in which it was used and 892 looking to the object with which it was enacted it was obvious that it could only refer to the end product of the industrial undertaking as a whole where there was no phased programme of installation and construction. On this view the High Court found that the mere fact that the respondent started the production of Cellulose pulp which was an in termediate product on March 18, 1961 did not mean that the company had begun to produce or manufacture "articles" in the assessment year 1961 62. It has been urged by learned counsel for the appellant that the finding recorded by the Tribunal referred to above was essentially a finding of fact based on appraisal of evidence and it was not open to the High Court in its advi sory jurisdiction to take a contrary view. For the respond ent, on the other hand, in support of the judgment appealed against, it was urged by its learned counsel that inasmuch as section 84 of the Act contemplated grant of relief to a new undertaking, it should be construed liberally so as to effectuate the object thereof. He maintained that since the undertaking established by the respondent was to manufacture CMC and the industrial licence had also been granted to it for the said purpose, exemption under section 84 of the Act could be claimed by it only in the year during which CMC was actually manufactured and since it was so done during the assessment year 1962 63 exemption could not be claimed in the assessment year 1961 62, notwithstanding the fact that Cellulose pulp for captive consumption was manufactured in that year. According to him, therefore, the period of five years contemplated by sub section (7) of section 84 of the Act would represent the assessment year 1962 63 and the four assessment years immediately succeeding and in this view of the matter the High Court was right in allowing the relief claimed by the respondent during the assessment year in question, namely 1966 67. In the alternative, he submitted that if ultimately the view of the Tribunal prevailed that the production had started in the assessment year 1961 62 then the disallowance of the relief in the 5th year namely in the assessment year in question should be restricted to the investment of the pulp factory and the respondent should not be denied the relief in respect of the investment exclu sively related to the CMC plant. Having given our anxious consideration to the respective submissions made by the learned counsel for the parties, we are inclined to agree with the contention of the learned counsel for the appellant that the High Court on the facts and in the circumstances of the instant case committed an error in interfering with the conclusion of the tribunal. It 893 is settled law that a High Court hearing a reference under the Act does not exercise any appellate or revisional or supervisory jurisdiction over the Tribunal and that it acts purely in an advisory capacity. If the Tribunal after con sidering the evidence produced before it on a question of fact records its finding it cannot be interfered with in a reference by the High Court unless of course such finding was not supported by any evidence, was perverse or patently unreasonable. In our opinion, the finding of the Tribunal in the instant case did not suffer from any of these infirmi ties. The finding that the production of Cellulose pulp during the month of March 1961 was not a trial production and that Cellulose pulp as manufactured by the respondent was a finished product which was a marketable commodity was essentially a finding of fact based on appraisal of evi dence. It is true that Cellulose pulp constitutes raw material for manufacture of CMC but it has not been disputed before us by the learned counsel for the respondent that it was even by itself a finished marketable commodity. The circumstance that the industrial licence granted to the respondent was for the manufacture of CMC and not of Cellu lose pulp is, in our opinion, keeping in view the nature of the two articles, not of much significance. In the same manner as a licence, for instance, for the manufacture of cloth includes the manufacture of cotton yarn, an intermedi ate product necessary for manufacturing cloth, the licence granted to the respondent for the manufacture of CMC includ ed the manufacture of Cellulose pulp which was an intermedi ate product to be used in its turn as a raw material for the manufacture of CMC. The relevant clause of the Memorandum of Association of the respondent company, already quoted above, is obviously wide in its amplitude, It contemplates manufac ture of "chemical products of any nature and kind whatsoever and particularly of CMC, Cellulose pulp and other chemical products". Manufacture of Cellulose pulp was thus indeed one of the objects of the company. The question involved had to be considered in this background and the Tribunal having done so and recorded the finding of fact referred to above the High Court obviously committed an error in holding that manufacture of Cellulose pulps during March 1961 was of no consequence and that the first year of production would be the assessment year 1962 63 when CMC was actually manufac tured. The decision of the Madras High Court relied on by the learned counsel for the respondent reported in Madras Machine Tools Manufacturers Ltd. vs Commissioner of Income Tax, Madras, , in view of what has been observed above on the facts of the instant case does not advance the case of the respondent any further than the reasons recorded in the judgment under appeal. 894 As regards the alternative submission made by the learned counsel for the respondent suffice it to say that the case on the basis of which this alternative submission is sought to be made was not set up before the Tribunal nor any such question was sought to be referred on the basis of which this alternative submission could be made. It cannot, as such, be permitted to be made in the present appeal. The submission that the provisions of section 84 of the Act should be construed liberally so as to effectuate the object thereof need detain us for long. It is only when there is any genuine doubt about the interpretation of a fiscal statute or where two opinions are capable of being formed that the rule of interpretation canvassed by learned counsel for the respondent may be taken to. In the instant case a plain reading of sub section (7) of section 84 of the Act makes it clear without any doubt that the period of five years was to start from the assessment year relevant to the previous year in which the undertaking began to manufacture or produce "articles". Since the language of the sub section is plain and admits of no ambiguity there is no scope of applying the aforesaid rule of interpretation. The question as to in which assessment year "the undertaking begins to manufacture or produce articles" is essentially a question to be decided on the facts of each case and on the basis of the evidence placed on record. In view of the foregoing discussion, this appeal suc ceeds and is allowed with costs and the judgment of the High Court under appeal is set aside. S.B. Appeal allowed.

The respondent is a Public Limited Company incorporat ed on April 14, 1989 for carrying on business of manufac turing chemical products particularly of Carboxy Methyl Cellulose (CMC) and Cellulose Pulps. The respondent was also granted an industrial licence by the Central Government for the manufacture of Carboxy Methyl Cellulose. The respondent had installed a cellulose plant in which cellulose pulp, the raw material for Carboxy Methyl Cellulose was manufactured. The plant had begun production from March 1961 while the production of Carboxy Methyl Cellulose was started from June 15, 1961. The respondent claimed relief under section 84 of Income Tax Act as it stood prior to its being deleted with effect from April 1, 1968 by Finance Act (2) 1967, for the assessment year 1966 67, the previous year of accounting being the financial year 1965 66. The Income Tax Officer took the view that since the respondent had started production of cellulose pulp from March, 18 1961, it had begun to manufacture or produce finished articles or goods in the year ending March 31, 1961 and consequently the assessment year 1961 62 was the first year in which the assessee was entitled to relief under section 84 Sub section (7) of the Income Tax Act under which the relief contemplated was to be available only for live assessment years. So the respondent was not entitled to relief in the assessment year 1966 67 which fell beyond the aforesaid period. The above view the Income Tax Officer was affirmed in appeal by the Appellate Assistant Commissioner. Even the Income Tax Appellate Tribunal held that the respondent having begun production or manufacture of finished product which was capable of being sold in the market in the year of accounting relevant to the assessment year 1961 62 the last year in which the respondent was entitled to get relief under section 84 of the Act was the assessment year 1965 66 and the claim for 889 the relief in the assessment year 1966 67 was not maintain able. The High Court on reference, held that the mere fact that the respondent started production of Cellulose Pulp which was an intermediate product on March 18, 1961 did not mean that the company had begun to produce or manufacture "articles" in the assessment year 1961 62 because the word "articles" used in Sub section (7) of section 84 in the context, could be only the end product of the industrial undertaking as a whole where there was no phased programme of installation and construction. Allowing the appeal of the Revenue with costs, the Court, HELD: The High Court on the facts and circumstances of the instant case committed an error in interfering with the conclusion of the Tribunal. It is settled law that a High Court while hearing a reference under the Act does not exercise any appellate or revisional or supervisory juris diction over the Tribunal and it acts purely in an advisory capacity. Further in the instant case the finding of the Tribunal did not suffer from any infirmities such as not being supported by any evidence or being perverse or patent ly unreasonable. The production of Cellulose Pulp during the month of March, 1961 was a finished product which was a marketable commodity. It is true that Cellulose Pulp also constitutes raw material for manufacture of Carboxy Methyl Cellulose and the circumstances that the industrial licence granted to the respondent was for the manufacture of Carboxy Methyl Cellulose which also included the manufacture of Cellulose Pulp which was intermediate product to be used in its turn as a raw material for the manufacture of Carboxy Methyl Cellulose. The relevent clause of the Memorandum of Association of the respondent company is obviously wide in its amplitude and as such comtemplates "manufacture of chemical products of any nature and kind whatsoever and particularly of Carboxy Methyl Cellulose, Cellulose Pulp and other chemical products. " So the High Court obviously com mitted an error in holding that the manufacture of Cellulose Pulp during March 1961 was of no consequence and that the first year of production would be the assessment year 1962 63 when Carboxy Methyl Cellulose was actually manufactured. The provisions of section 84 of the Act could be coustrued liberally only, when there is any genuine doubt about the interpretation. [892H 893G, 894B] In the instant case, a plain reading of Sub section (7) of the section 84 of the Act makes it clear without any doubt that the period of assessment year relevant to the previous year in which the undertaking began to manufacture or produce "articles" was 1961 62. The question as to the assessment year in which the undertaking begins to manufac ture or 890 produce articles is essentially a question to be decided on the facts of each case and on the basis of evidence placed on record. [894C D]

: Criminal Appeal No.106 of 1980. From the Judgment and Order dated 8.1.1980 of the Delhi High Court in Crl. A. No. 137 of 1978. Ms. Neeraja Mehra and I.K. Wadera for the Appellants. Anil Dev Singh, R.N. Poddar and G.D. Gupta for the Respondent . The Judgment of the Court was delivered by FAZAL ALI, J. The appellant in this case was convicted under section 302 IPC and sentenced to imprisonment for life by the High Court. m e case depends purely on circumstantial evidence and the trial court after considering the evidence was of the opinion that the prosecution case was not proved beyond reasonable doubt and accordingly acquitted the appellant of the charges framed against him. The State filed an appeal before the High Court which reversed the decision of the trial court and came to the conclusion that the appellant had killed his wife by strangulation. Hence, this appeal before this Court under section 379 of the Code of Criminal Procedure. At the very outset we might mention that circumstantial evidence must be complete and conclusive before an accused can be convicted thereon. This, however, does not mean that there is any particular or special method of proof of circumstantial evidence. We must, however, guard against the danger of not considering circumstantial evidence in its proper perspective, e.g., where there is a chain of circumstances linked up with one another, lt 511 is not possible for the court to truncate and break the chain of circumstances. In other words where a series of circumstances are dependent on one another they should be read as one integrated whole and not considered separately, otherwise the very concept of proof of circumstantial evidence would be defeated. The learned Sessions Judge seems to have fallen into this very error. In the instant case, instead of taking all the circumstances together, which are undoubtedly circumstantial and closely linked up with one another, the learned Sessions Judge has completely misdirected himself by separately dealing with each circumstance thereby making a wrong approach while appreciating the circumstantial evidence produced in the case. Let us now recount the circumstances relied upon by the appellant by giving first a brief summary of the same. The marriage of the accused and the deceased took place on December 6, 1975, i.e., hardly a year before the date of the occurrence. After about six months of the marriage, the relations between the two spouses started becoming strained. The evidence clearly shows that the accused neglected the deceased, abused her, teased her, waxed her and even beat her. All these things were reported to the relatives of both sides as a result of which a panchayat had to be called to bring the two parties together which also was of no avail. There is further evidence to show that on the night of the occurrence, i.e., between the night of 16th and 17th November 1976, the accused was last seen by some of the witnesses whose evidence we shall refer hereafter. Secondly, it is also proved that the accused left his house in the morning of 17th November 1976 and went to Muzaffar Nagar and stayed at his sister 's house there and came back to Delhi in the evening of 17th November 1976 but instead of staying in his own house he stayed in Venus Hotel in Paharganj in Delhi under a false and assumed name of Vinod Kumar which, according to the evidence, was written by him while making the entries in the Hotel register. Furthermore, it appears that there are some letters written by the deceased which show the callous and cruel nature of the accused and his treatment towards her. He appears to have been completely indifferent towards her and the deceased prayed to her parents for taking her with them immediately. It is true that despite the conduct of the appellant, the parents in law of the deceased were very kind to her and tried their best to save the situation but the appellant was made of such a stern stuff and stubborn nature that he would not listen to anyone. 512 Moreover, the evidence further shows that certain broken bangles and one pair of cufflinks were recovered from the room where the deceased was strangulated. The medical evidence also supports that the deceased had died of manual strangulation. There are some other circumstances which show the role played by the accused and if we take the circumstances together the irresistible inference is that the prosecution has completely proved its case. We might observe there that the circumstances which have been narrated above are so interlinked in the chain of circumstantial evidence that lt is difficult to truncate them and the learned Sessions Judge ought not to have rejected the circumstances one by one and then acquit the accused. It is here that the learned Sessions Judge has committed a serious error of law. If we read the evidence as an integral whole, the inescapable conclusion is that excepting the appellant nobody else could have committed the murder. With this preface, we now proceed to deal with the chain of circumstances relied upon by the High Court in reversing the judgment of the trial court and convicting the accused. To begin with, as we have said, within one year of her marriage the deceased died during the night of 16th and 17th November 1976. A number of prosecution witnesses (PWs 5,6,7,8 and 9) whose evidence has been fully considered by the High Court deposed that the appellant had been ill treating the deceased and their relations were extremely strained. This is buttressed by the further circumstance that a panchayat had been called to resolve the differences between the two spouses. In this connection, the prosecution witnesses have spoken thus: The accused had always been maltreating Madhu and used to say that he will not like to keep Madhu with him. After about 6 months of the marriage a Panchayat was held in Bakhtamal Dharamshala, Delhi for bringing about conciliation. Before the panchayat the father of the accused had assured that he will ask the accused to behave better. But there was no change in the attitude of the accused towards the deceased and the accused was bent upon leaving the girl." (PW 5, Ramesh Chand) About 5 or six months prior to the murder of Madhu, her father had complained to me that the accused used 513 to beat her and wanted to leave her. After 2 or 3 days A of that, a panchayat was held in Bagtamal Dharamshala, Kucha Pati Ram. . Before the Panchayat, father of the accused had assured that he will make him under stand and see that the accused behaved properly in future with Madhu. (PW 6, Ram Kishan Dalaya) Accused used to beat Madhu and we were receiving many complaints in this respect. Myself, Ramesh Chand, Ganga Prasad and Madan Lal had been coming to Delhi and requesting the accused not to do so. However, the behaviour of the accused towards Madhu did not change. (PW 7, Chhanu Lal) She was married to Ram Avtar(accused) present in the court. Madan Lal had started saying after about 20 or 25 days after the marriage that the deceased was being beaten and ill treated by the accused. . A panchayat was organised. Radhey Lal was also called and he attended the panchayat. ( PW 8, Ram Pal Singh) There were strained relations between them for a long time. (PW 9, Gulab Chand) Right from the beginning, accused had been ill treating my daughter. She had been writing letters to me from which I had come to know that she was not happy and so I came to Delhi. I beseeched the accused and with folded hands requested him to behave better with my daughter in the presence of his father. Both of them had assured that nothing will happen in future. (PW 12, Madan Lal) I had gone to attend its conference at Lucknow from G 5th to 7th Oct. 1976. There, Chhanu Lal, elder brother of Madan Lal had complained to me that Ram Avtar accused was ill treating Madhu and that I should look into this matter. Then I told him that in that case Chhanu Lal would not have complained to me. Then he assured me that he will ask the accused to behave properly and there will be no complaint in future. (PW 13, Sohan Lal Verma) 514 The above extracts from the evidence of various prosecution witnesses show that the relatives of the two sides tried their best to bring harmony in the relations of the accused and the deceased and the father of the accused had been promised that his son will behave in future in a proper manner. One outstanding feature of this case is that while the deceased was fully satisfied with the treatment received by her from her parents in law, yet so adamant was the accused that he would hardly listen or pay any heed to the advice of his parents. Another circumstance which almost conclusively proves the case of the prosecution is the evidence of PW 1, Shri Krishan Avtar, according to which, the accused was seen by him on the fateful night between 9 or 9.30 p.m. in his house and in this connection he says thus: When I returned at about 9 or 9.30 p.m. I saw the accused in his house. He was alone in the house at that time. The room of the accused is situated on the ground floor while mine is situated on the first floor. When I saw him he was coming down stairs from the first floor and entered his room on the ground floor. . . . Then I entered the room of the accused where he and his wife used to sleep together and saw the dead body of Madhu. " PW 1 further testifies to the articles found from the scene of occurrence "exhibit P8 is the pair of cufflink. exhibit P 14 are the broken pieces of bangles collected from the floor of the room. F PW 2, Nathi Lal, another independent witness, says that at about 12.30 in the night while he was coming from Lal Darwaza to his house, he saw the accused passing that side and the accused told him that he had told the chowkidar that he (appellant) was going away and the door of his house was open. Another witness (PW 3) though declared hostile, yet so far as the relations between the spouses are concerned, categorically states that the relations between the spouses were extremely strained. Another circumstance which is of great importance and which seems to have been ignored by the learned Sessions Judge is that after returning from Muzaffar Nagar in the evening of 17th November 1976, the accused instead of staying in his house, stayed in 515 Venus Hotel in Paharganj, New Delhi under a false and assumed name of Vinod Kumar and made the entries in the Hotel register in his own hand. m is shows the guilty conscience of the accused. This is proved by exhibit PW 14/A where it has been stated thus: The aforesaid register contains one entry against serial No.518 dated 18.11.76 recorded at 1.00 a.m. relating to Vinod Kumar, Indian 23/3, Sarafa Bazar, Muzaffar Nagar, for business Muzaffar Nagar, stated to have been made and initialled by accused Ram Avtar S/o Radhey Lal, r/o 2721, Chhatta Girdhar Lal, Gali Arya Samaj, Bazar Sita Ram, Delhi. Another intrinsic evidence which proves the case against the accused consists of two letters (Ext. PW 12A and 12B) written by the deceased to her parents wherein she had requested her father to take her away as her husband was ill treating her. In these letters she had written thus: You (father) take me away from here. . (He) is not on speaking terms with me. PW 12A) There is always a quarrel in the house about me. Papa and Mummy have been trying to make him understand. (He) does not eat and drink anything from my hand and even does not speak to me. Whenever, I come across him, he scolds me. Today, he gave me beating and was about to turn me out of the house but Mummy and Pappa pacified him. . He further said 'I do not want to see the face of this mean girl. Furthermore that whatever Khurjawallas have done in my interest is good (Taunt). He says that when I become a widow then at least they (parents) will come to take me away. . He says that even if God comes, he will not agree and will not keep me with him at any cost. . You treat this letter as a telegram and please reach here immediately. I keep weeping here day and night and Mummy also continuous weeping. He would not keep me with him at any cost and I also do not want to live here any more. . I am weeping while writing this letter. Dear Pappa, please come as early as possible. (exhibit PW 12 B) In addition to Ext. PW 12 A and 12 B, one more letter was found from the house where the murder took place but which she could not post. 516 In his statement PW 18, Kanshi Ram, S.I., stated that from the personal search of the accused, Rs. 5.50 one ticket from Meerut to Delhi were recovered and the accused was also made to put off his shirt and banian, and that he (PW 18) took into police custody the banian of the accused which had blood stains on the front side. The last piece of evidence which is also important and which has been completely glossed over by the trial court is the recovery of broken bangles and a pair of cufflinks which show that during the course of strangulation the deceased must have put in stiff resistance. In view of the circumstances discussed above, it cannot be said that the case against the accused has not been proved. It is not possible for us to consider the various chains of circumstances, mentioned above, in isolation by divorcing them from the other circumstances which are closely interlinked with them. This is where the trial court has gone wrong and has made a fundamentally wrong approach. Having regard to the circumstances mentioned above, we are clearly of the opinion that the judgment of the trial court is not only legally erroneous but also absolutely perverse. In view of the circumstances and the admissions of the witnesses extracted, the case against the accused is proved beyond reasonable doubt and this is not a case where two views are reasonably Possible. Before concluding we might observe that where circumstantial evidence consists of a chain of continuous circumstances linked up with one another, the court has to take the cumulative effect of the entire evidence led by the prosecution before acquitting or convicting an accused. For the reasons given above, we find ourselves in complete agreement with the view taken by the High Court and we see no reason to interfere with the same. The appeal is accordingly dismissed. In case the appellant is on bail, he shall now surrender and be taken into custody and sent to prison to serve out the remaining part of the sentence. N.V.K. Appeal dismissed.

The prosecution alleged that the appellant had killed his wife by strangulation. The marriage of the appellant and the deceased took place about a year before the date of occurrence. After about six months of the marriage the relations between the two spouses started becoming strained. The accused neglected the deceased, abused her, teased her, waxed her, and even beat her. All these were reported to the relatives of both sides as result of which a panchayat had to be called to bring the two parties together which also was of no avail. The Sessions Court after considering the evidence WAS of the opinion that the prosecution case was not proved beyond reasonable doubt and accordingly acquitted the appellant of the charges framed against him under Section 302 IPC. The State filed an appeal before the High Court which reversed the aforesaid decision and came to the conclusion that the appellant had killed his wife by strangulation. Dismissing this appellant 's Appeal to this Court ^ HELD: 1. The view taken by the High Court is correct and there is no reason to interfere with the same. The trial court has gone wrong, and has made a fundamentally wrong approach. The 509 judgment of the trial court is not only legally erroneous but A absolutely perverse. In view of the circumstances of the case and the admissions of the witnesses, the case against the accused has been proved beyond reasonable doubt. This is not a case where two views are possible. [516 G,D E] 2. Circumstantial evidence must be complete and conclusive before an accused can be convicted thereon. This, however, does not mean that there is any particular or special method of proof of circumstantial evidence. One must, however, guard against the danger of not considering circumstantial evidence in its proper perspective, e.g. where there 18 a chain of circumstances linked up with one another, it is not possible for the court to truncate and break the chain of circumstances. In other words, where a series of circumstances are dependent on one another they should be read as one integrated whole and not considered separately, otherwise the very concept of proof of circumstantial evidence would be defeated. [510 G 511 A] 3. Where circumstantial evidence consists of a chain of continuous circumstances linked up with one another, the court has to take the cumulative effect of the entire evidence before acquitting or convicting an accused. 1516 F] In the instant case, the Sessions Judge had committed an error. Instead of taking all the circumstance . together which are undoubtedly circumstantial and closely linked up with one another, he has completely misdirected himself by separately dealing with each circumstance thereby making a wrong approach while appreciating the circumstantial evidence produced in the case. Some letters written by the deceased show the callous and cruel nature of the accused and his treatment. He appears to have been completely indifferent. The deceased prayed to her parents for taking her with them immediately. Despite the conduct of the appellant, the parents in law of the deceased were very kind to her, but the appellant was made of such a stern nature that he would not listen to anybody. The recovery of certain broken bangles and one pair of cufflinks show that during the course of strangulation, the deceased put up stiff resistance. The medical evidence also supports that the deceased had died of manual strangulation. A number of prosecution witnesses PWs 5,6,7,8 & 9 deposed that the appellant had been ill treating the deceased and their relations were extremely strained, and that the relatives of the two sides tried their best to bring harmony in the relations of the accused and the deceased. Another circumstance 510 of great importance is that after the incident, the accused went to Muzaffar Nagar stayed in his sister 's house came back the same evening, stayed in a Hotel under a false and assumed name written in the hotel register in his own hand. This shows the guilty conscience of the accused. another intrinsic evidence which proves the case against the accused consists of two letters(Ext. PW 12 A and B) written be the deceased to her parents wherein the had requested her father to take her away as her husband was ill treating her. The statement of the S.I., PW 18 reveals that from the personal search of the accused, Rs.5.50 one ticket from Meerut to Delhi were recovered and that the banian of the accused had blood stains. A,C D, 516 A B]

Civil Appeal No. 1321 of 1980. From the Judgment and Order dated the 15th February, 1976 of the High Court of Rajasthan at Jodhpur in section B. Civil Revision No. 320 of 1978. P. G. Gokhale and Mr. B. R. Agarwala for the Appellant. Dalveer Bhandari for the Respondents. The Judgment of the Court was delivered by CHANDRACHUD, C.J. The appellant, the Bank of Baroda, agreed through its Banswara Branch to sanction a demand loan facility in the sum of Rs.36,000 in favour of respondent l. In consideration thereof, respondent I executed a demand promissory note in favour of the Bank on June 18, 1973. He also executed a bond hypothecating the standing Crop of his lands situated at Khandu and 786 Surjipada in Rajasthan Respondents 2 and 3 are the guarantors for the repayment of the loan. In order to further secure the repayment of the loan, respondent 1 executed a deed of simple mortgage in favour of the Bank, ill respect of the lands at Khandu and Surjipada. The respondents having failed to repay the loan, the appellant filed against them a suit in the court of the learned District Judge, Banswara, for recovering a sum of Rs. 52,000 and odd which was due ` on the loan transaction. Respondents raised a preliminary objection to the maintainability of the suit on the ground that the claim in the suit was essentially one for enforcing the mortgage executed by them in favour of the Bank and, therefore, the Revenue court had the exclusive jurisdiction to entertain the suit, by reason of the provisions contained in the Rajasthan Tenancy Act 3 of 1955, (hereinafter called "the Act"). That objection was overruled by the learned District Judge but, in a civil revision application filed by the respondents, the High Court upheld it. According to the High Court, "the execution of the mortgage deed by defendant No. l in favour of the plaintiff in respect of his tenancy rights in agricultural land also forms the essential part of the cause of action of the plaintiff and as such, the suit is triable by a revenue court". The correctness of this view is questioned by the plaintiff in this appeal by special leave. Section 207 of the Act reads thus; 207. Suit and applications cognizable by revenue court only. (1) All suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court. (2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. Explanation: If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than, or additional to, or is not identical with, that which the revenue court could have granted. Section 256 of the Act, which is complementary to section 207, reads thus; 787 "256. Bar to Jurisdiction of civil courts. (1) Save as otherwise provided specifically by or under this Act, no suit or proceeding shall lie in any civil court with respect to any matter arising under this Act or the Rules made thereunder, for which a remedy by way of suit, application, appeal or otherwise is provided therein. (2) Save as aforesaid, no order passed by the State Government or by any revenue court or officer in exercise of the powers conferred by this Act or the Rules made there under shall be liable to be questioned in any civil court". A combined reading of these two sections would show that the Jurisdiction of civil courts is barred only in respect of suits and applications of the nature specified in the Third Schedule to the Act and in respect of suits or applications based on a cause of action in respect of which any relief could be obtained by means of a suit or application of the nature specified in the Third Schedule. The civil court has no jurisdiction to entertain a suit or proceeding with respect to any matter arising under the Act or the Rules made thereunder provided that a remedy by way of a suit, application or appeal or otherwise is provided in the Act. The legal position on the question of jurisdiction which is stated above requires examination of the various entries in the Third Schedule. That Schedule is divided into three parts, the first of which is called "Suits", the second is called "Applications", and the third is called "Appeals". We are concerned in this appeal with the 35 entries which are comprehended in the first part which deals with suits. It is common ground, and the High Court has not held to the contrary, that none of the specific entries I to 34 is applicable to the suit filed by the appellant Bank. The argument is that the residuary Entry 35 would govern the suit and, therefore, by reason of sections 207 and 256 of the Act, the Revenue court alone could entertain it. Entry 35 is described in the Third Schedule as a "General" entry, that is to say, not relatable to any particular section of the Act. The description of the entry as "General" is given in Column 2 of the Third Schedule which is headed "Section of Act. " the third column of the Schedule carries the heading "Description of suit, application or appeal". Under that column, the relevant description runs thus: "Any other suit in respect of any matter arising under this Act, not specifically provided for elsewhere in this Schedule". 788 We are unable to appreciate how the suit filed by the Bank can fall under this "General" or residuary entry. The suit of the Bank to recover the loan is not in respect of any matter arising under the Act. The long title of the Act shows that it was passed in order "to consolidate and amend the law relating to tenancies of agricultural lands, and to provide for certain measures of land reforms and matters connected therewith". A loan given by a Bank to an agriculturist, which is in the nature of a commercial transaction, is outside the contemplation, of the Act and can, by no stretch of imagination be said to be in respect of any matter arising under the Act. The High Court has relied on section 43 of the Act in order to come to the conclusion that the deed of mortgage was executed by respondent 1 in favour of the Bank in accordance with that section and, therefore, the suit for the sale of the tenancy rights of the mortgagee by enforcement of the mortgage is a suit in respect of a matter arising under the Act. The High Court holds that such a suit would attract the residuary entry since the matter to which it relates has not been specifically provided for elsewhere in the Third Schedule. With respect, we are unable to accept this line of reasoning. Section 43 (1) of the Act, which is relevant for this purpose, reads thus: "43. Mortgage: (1) Khateder tenant, or, with the general or special permission of the State Government or any officer authorised by it in this behalf, a Ghair Khatedar tenant, may hypothecate or mortgage his interest in the whole or part of his holding for the purpose of obtaining loan from the State Government or a Land Development Bank as defined in the Rajasthan Co operative Societies Act, 1965 (Act 13 of 1965) or a Co operative Society registered or deemed to be registered as such under the said Act or any Scheduled Bank or any other institution notified by the State Government in that behalf" The High Court is in error in saying that `it cannot be disputed ' that the mortgage was executed by respondent 1 in pursuance of section 43. The business of the Bank, in so far as lending transactions are concerned, is not to lend moneys on mortgages but the business is to lend moneys. In this particular case, the Bank lent a certain sum of money to respondent 1 in the usual course of its commercial business and nothing could be further removed from the contemplation of the Act than such a transaction. It is only by way of a collateral security that the Bank obtained a hypothecation bond and 789 a deed of mortgage from respondent 1 find a letter of guarantee from A respondents 2 and 3. The entire judgment of the High Court is based on the assumption that the mortgage was executed in pursuance of section 43 of the Act and, therefore, residuary Entry 35 of the Third Schedule is attracted. Once it is appreciated that the mortgage executed by respondent I is outside the scope of the Act, the reasoning of the High Court has to be rejected. On the question of jurisdiction, one must always have regard to the substance of the matter and not to the form of the suit. If the matter is approached from that point of view, it would be clear that primarily and basically, the suit filed by the Bank is one for recovering the amount which is due to it from the respondents on the basis of the promissory note executed by respondent 1 and the guarantee given by respondents 2 and 3. The relief sought by the Bank is that the suit should be decreed for the repayment of the amount due from the respondents. By the second prayer, the Bank has asked that "in case of non payment of the decretal amount" the mortgaged property should be brought to sale and if the proceeds of that sale are not enough to meet the decretal liability, the other movable and immovable properties of the respondents should be put at sale. The suit is not one to enforce the mortgage and, even assuming for the purpose of argument that it is, the mortgage not having been executed under Section 43 of the Act, nor being one relatable to `that section, the residuary Entry 35 can have no application. If that entry is out of way, there is no other provision in the Act, which would apply to the instant suit. The civil court has therefore, jurisdiction to entertain the suit filed by the appellant Bank. For these reasons, we set aside the judgment of the High Court and restore that of the District Court. The suit shall be disposed of expeditiously. The appellant will be entitled to its costs of this appeal from the respondents. section R. Appeal allowed.

The appellant Bank filed a suit for the recovery of the amount of loan together with interest thereon granted to Respondent No. I who had not only executed a promissory note but also a bond hypothecating the standing crop of his lands situated at Khandu and Surjipada in Rajasthan. Respondents 2 and 3 being guarantors for the repayment of the loan were also proceeded against. The Trial Court overruled the preliminary objection raised by the Respondents as to the maintainability of the Suit, in view of sections 207 and 256 of the Rajasthan Tenancy Act, 1955. But the High Court, while allowing the Civil Revision Application set aside the judgment of the Trial Court and dismissed the suit. Hence the appeal by special leave of the Court. Allowing the appeal, the Court. ^ HELD: 1.1 A combined reading of sections 207 and 256 of the Rajasthan Tenancy Act, 1955 would show that the jurisdiction of the civil courts is barred only in respect of suits and applications of the nature specified in the Third Schedule to the Act and in respect of suits or applications based on a cause of action in respect of which any relief could be obtained by means of a suit or application of the nature specified in the Third Schedule. The civil court has no jurisdiction to entertain a suit or proceeding with respect to any matter arising under the Act or the Rules made thereunder, provided that a remedy by way of a suit, application or appeal or otherwise is provided in the Act. the long title of which shows that it was passed in order "to consolidate" and amend the law relating to tenancies of agricultural lands and to provide for certain measures of land reforms and matters connected therewith. [787C D; 788A] 1.2. Entry 35 is described in the Third Schedule as a "General" entry, that is to say, not relatable to any particular section of the Act. The 785 suit filed by the Bank cannot fall under this "General" or "residuary" entry. A loan given by a Bank to an agriculturist, which is in the nature of a commercial transaction, is outside the contemplation of the Act and cannot be said to be in respect of any matter arising under the Act. [787G; 788A B] 1.3. The business of the Bank, in so far as lending transactions are concerned, is not to lend moneys on mortgages but the business is to lend moneys. In this particular case, the Bank lent a certain sum of money to respondent 1 in the usual course of its commercial business and nothing could be further removed from the contemplation of the Act than such a transaction. It is only by way of a collateral security that the Bank obtained a hypothecation bond and a deed of mortgage from respondent 1 and a letter of guarantee from respondents 2 and 3. The assumption that the mortgage has executed in pursuance of section 43 of the Act and, therefore, residuary Entry 35 of the Third Schedule is attracted, is not correct. [788G H; 789A] 2. On the question of jurisdiction, one must always have regard to the substance of the matter and not to the form of the suit. Approaching the matter from that point of view, primarily and basically the suit filed by the Bank is one for recovering the amount which is due to it from the respondents on the basis of the promissory note executed by respondent No. I and the guarantee given by respondents 2 and 3. The reliefs sought for also make it clear that the suit is not one to enforce the mortgage and, even assuming that it is, the mortgage not having been executed under section 43 of the Act, nor being one relatable to that section, the residuary Entry 35 can have no application. If that entry is out of way, there is no other provision in the Act which would apply to the instant suit and therefore, the civil court has jurisdiction to entertain the suit filed by the appellant Bank. [789C E]

vil Appeal No. 211 of 1964. Appeal from the judgment and order dated February ,22, 1961 of the Bombay High Court in Miscellaneous Application No. 352 of 1959. Niren De, Additional Solicitor General, R. Ganapathy lyer and R.N. Sachthey, for the appellants. A.V. Viswanatha Sastri, T.A. Ramachandran, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the respondents. The Judgment of the Court was delivered by Sikri, J. This appeal is in pursuant to a certificate of fitness granted by the High Court of Maharashtra at Bombay under article 133(1)(c)of the Constitution is directed against the judgment of the said High Court in a petition under article 226 of the Constitution filed by the respondent. The India Fisheries (P) Ltd. hereinafter called the respondent was a private limited company and was directed to be wound up by an order of the Bombay High Court, dated October 11, 1950, and a Court Liquidator was appointed as the Official Liquidator thereof with all powers under section 179 of the Indian Companies Act. 1913 (VII of 1913) to be exercised by him under section 180 without sanction or intervention of the Court save and except in case of sales of immovable property belonging to the respondent. For the assessment year 1948 49, the respondent was assessed on December 8. 1950, the tax being assessed at Rs. 8,737/15/ . On or about March 15. 1951, the Income Tax Officer lodged a claim in respect of this tax with the Official Liquidator. That claim was adjudged and allowed as an ordinary claim and certified as such on April 2 1952. in August, 1954, the Official Liquidator declared a dividend of 9 1/2 annas in a rupee and paid to the Income Tax Department a sum of Rs. 5,188/3/ against the claim made by the Income Tax Officer as an ordinary creditor. Thus a balance of Rs. 3,549/12 still remained payable to the Income Tax Department from the assets of the respondent. For the year 1955 56, the Department made a demand from the respondent on June 22, 1954, for a sum of Rs. 2,565/6/ as advance tax. This was paid by the Official Liquidator. On a 681 regular assessment being made for the said year, only Rs. 1,1 26/12/was assessed as payable by the respondent. After adjusting this sum against the advance payment of Rs. 2,565/6/ , Rs. 1,460/1/became refundable to the respondent, inclusive of interest. Instead refunding the said balance to the respondent, the Income Tax Officer set off the said amount against the balance of Rs. 3,549/12/which was still outstanding in respect of the Income tax demand for the year 1948 49. The respondent filed a revision petition to the Commissioner of Income tax, but the said petition was rejected by the Commissioner on September 21. holding that the action of the Income Tax Officer was perfectly justified under the provision of section 49E of the Income Tax Act. On November 25, 1959, the respondent filed a petition under article 226 of the Constitution and prayed for a writ, direction or order for setting aside the orders of the Income Tax Officer and the Income Tax Commissioner. He further prayed for any further writ, direction or order restraining the Department from setting off the refund against the tax dues and directing them to hand over the balance to the Official Liquidator. The High Court held that the demand of Rs. 8.737/12/ in respect of the assessment year 1948 49. being adjudged and certified, came to have all the incidents and character of an unsecured debt payable by the Official Liquidator to the Department. The High Court observed that "this claim thereafter was governed by the provisions of the Company law and could be paid to the creditor only in accordance with the provisions of the Company law. No other remedy nor any other method of obtaining satisfaction of this claim was available to the creditor thereafter. It was no longer the amount of tax remaining payable by a person to whom the refund was due within the meaning of Section 49E of the Income Tax Act. In our opinion, therefore. the provision of Section 49E was not available to the Department for setting off the amount of the excess towards the balance of its claim of Rs. 8,737/15/ which the department had proved in the insolvency of the company and was being dealt with in the Insolvency." The High Court accordingly set aside the orders passed by the Department in so far as they set off the amount of the refund towards the tax remaining payable, and directed the Income Tax Officer to deal with and dispose of the claim of the present respondent for the refund and pass appropriate orders in respect of the said amount of refund under the provisions of section 48 of the Income Tax Act. The learned Additional Solicitor General on behalf of the appellant. contends that s, 49E gives statutory power to the Income tax Officer. inter alia, to set off the amount to be refunded or any part of that amount against the tax remaining payable by the person to whom the refund is due, and this statutory power is not subject to any provision of any other law. He says that the Companies Act 682 does not take away this power. Section 49E is in the following terms: "Where under any of the provisions of this Act, a refund is found to be due to any person, the Income tax Officer, Appellate Assistant Commissioner or Commissioner, as the case may be, may, in lieu of payment of the refund, set off the amount to be refunded, or any part of that amount against the tax, interest or penalty, if any, remaining payable by the person to whom the refund is due. " On the face of this provision, there is no doubt that this section is not subject to any other provision of law. But it will be surprising if this power can be exercised in such a way as to defeat the provisions of the Indian Companies Act. It is not denied by the learned Additional Solicitor General that the State has no priority in respect of this claim. The question then arises whether section 49E is subject to the Insolvency Rules contained in the Companies Act. Section 228 of the Companies Act, 1913, provides: "228. Debts of all descriptions to be proved. In every winding up (subject in the case of insolvent companies to the application in accordance with the provisions of this Act of the law of insolvency) all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, shall be admissible to proof against the company, a just estimate being made, so far as possible, of the value of such debts or claims as may be subject to any contingency or for some other reason do not bear a certain value. " Section 229 provides: "Application of insolvency rules in winding up of insolvent companies. In the winding up of an insolvent company the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and to debate provable and to the valuation of annuities and future and contingent liabilities as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent; and all persons who in any such case, would be entitled to prove for and receive dividends out of the assets of the company may come in under the winding up, and make such claims against the company as they respectively are entitled to by virtue of this section. " The effect of these statutory provisions is, inter alia, that an unsecured creditor must prove his debts and all unsecured debts 683 are to be paid pari passu. Therefore, once the claim of the Department has to be proved and is proved in the liquidation proceedings, the Department cannot by exercising the right under section 49E of the Income Tax Act get priority over the other unsecured creditors. If we were to read section 49E in the way suggested by the learned Additional Solicitor General, it would be defeating the very object underlying sections 228 and 229 of the Companies Act, 1913. If there is an apparent conflict between two independant provisions of law, the special provision must prevail. Section 49E is a general provision applicable to all assessees and in all circumstances; sections 228 and 229 deal with the proof of debts and their payment in liquidation. In our opinion, section 49E can be reconciled with sections 228 and 229 by holding that section 49E applies when insolvency rules do not apply. Accordingly, agreeing with the High Court, we hold that the Income Tax Officer was in error in applying section 49E and setting off the refund due. The Commissioner was equally in error in affirming this order. The learned Additional Solicitor General also urged that the application under article 226 was misconceived because the Income Tax Officer had jurisdiction. But if we interpret section 49E as we have done, it is a clear case of lack of jurisdiction. At any rate, there is an error apparent on the face of the orders and the High Court was quite right in exercising its jurisdiction under article 226. The appeal is accordingly dismissed with costs. Appeal dismissed.

The respondent company was directed to be wound up and an official liquidator appointed by an order of the High Court in October, 1950. In December, 1950, the respondent was assessed to tax amounting to Rs. 3737/ for the year 1948 49. A claim made for this tax on the official liquidator was adjudged and allowed as an ordinary claim and certified as such in April, 1952. The Liquidator declared a dividend of 91/2 annas in the Rupee in August, 1954 and paid a sum of Rs. 5188 to the Department, leaving a balance of Rs. 3549. In June, 1954. the Department made a demand from the respondent and was paid Rs. 2565 as advance tax for the year 1955 56. On a regular assessment being made for that year, only Rs. 1126 was assessed as payable, so that a sum of Rs. 1460, inclusive of interest, became refundable to the respondent. However, the Income Tax Officer, purporting to exercise the power available to him under section 49E of the Income Tax Act, 1922, set off this amount against the balance of Rs. 3549 due for the year 194849. A revision petition filed by respondent in respect of this set off was rejected by the Commissioner of Income Tax. Thereafter, a petition under article 226 filed by the respondent to set aside the orders of the Income Tax Officer and the Commissioner was allowed by the High Court, mainly on the ground that the demand for Rs. 8737 in respect of 1948 49, being adjudged and certified came to have all the incidents and character of an unsecured debt payable by the liquidator to the Department; it was therefore governed by the provisions of Company Law and no other remedy or method to obtain satisfaction of the claim was available to the creditor. In the appeal to this Court it was contended on behalf of the appellant that section 49E gave statutory power to Income tax Officer to set off a refundable amount against any tax remaining payable and that this power was not subject to any provision of any other law. HELD:The Income Tax Officer was in error in applying section 49E and setting off the refund due to the respondent. [683C D] The effect of sections 228 and 229 of the Companies Act, 1913, is, inter alia, that an unsecured creditor must prove his debts and all unsecured debts are to be paid part passu. Once the claim of the Department has to be proved and is proved in liquidation proceedings, it 680 cannot, by exercising the right under section 49E get priority over the other unsecured creditors and thus defeat the very object of sections 228 and 229 of the Companies Act. Furthermore, if there is an apparent conflict between two independant provisions of law, the special provision must prevail. Section 49E is a general provision applicable to all assessees in all circumstances; sections 228 and 229 deal with proof of does and their payment in liquidation. Section 49E can be reconciled with sections 228 and 229 by holding that section 49E applies when insolpency rules do not apply. [682H 683D]

Appeal No. 869 of 1987. From the Judgment and Order dated 22.12.1981 of the Orissa High Court in Original Judicature Case No. 412 of 1976. WITH CA No. 870 of 1987 R.K. Garg and A.K. Panda for the Appellants. C.S. Srinivasa Rao for the Respondent. The Judgment of the Court was delivered by B.P. JEEVAN REDDY,J. 1. These appeals raise the question whether it is permissible to the government to order compulsory retirement of a government servant on the basis of material which includes uncommunicated adverse remarks. While the appellants (government servants, compulsory retired) rely upon the decisions of this court in Brij Mohan Singh Chopra, and Baidyanath Mahapatra; , , in support of their contention that it is not permissible, the respondent government relies upon the decision in M.E. Reddy. ; to contend that it is permissible to the government to take into consideration uncommunicated adverse remarks also while taking a decision to retire a government servant compulsorily. The appellants in both the appeals have been compulsorily retired by the government of Orissa in exercise of the power conferred upon it by the first proviso to Rule 71 (a) of the Orissa Service Code. Since the relevant facts in both the appeals are similar, it would be sufficient if we set out the facts in Civil Appeal No. 869 of 1987. 841 3. The appellant, Sri Baikuntha Nath Das was appointed as a Pharmacist (then designated as Compounder) by the Civil Surgeon, Mayurbhanj on 15.3.1951. By an order dated 13.2.1976 the government of Orissa retired him compulsorily under the first proviso to sub rule of Rule 71 of the Orissa Service Code. The order reads as follows: ``In exercise of the powers conferred under the first proviso to sub rule (a) of rule 71 of Orissa Service Code, the Government of Orissa is pleased to order the retirement of Sri Baikunthanath Das, Pharmacist now working under the Chief District Medical Officer, Mayurbhanj on the expiry of three months from the date of service of this order on him. By order of the Governor. ' ' 4. The petitioner challenged the same in the High Court of Orissa by way of a writ petition, being O.J.C.No. 412 of 1976. His case was that the order was based on no material and that it was the result of ill will and malice the Chief District Medical Officer bore towards him. The petitioner was transferred by the said officer from place to place and was also placed under suspension at one stage. He submitted that his entire service has been spot less and that at no time were any adverse entries in his confidential character rolls communicated to him. In the counter affidavit filed on behalf of the government, it was submitted that the decision to retire the petitioner compulsorily was taken by the Review Committee and not by the Chief Medical Officer. It was submitted that besides the remarks made in the confidential character rolls, other material was also taken into consideration by the Review Committee and that it arrived at its decision bonafide and in public interest which decision was accepted and approved by the government. The allegation of malafides was denied. The High Court looked into the proceedings of the Review Committee and the confidential character rolls of the petitioner and dismissed the writ petition on the following reasoning: An order of compulsory retirement after putting in the prescribed qualifying period of service does not amount to punishment as has been repeatedly held by this court. The order in question was passed by the State Government and not by the Chief Medical Officer. It is true that the confidential character roll of the petitioner contained several remarks adverse to him which were, no doubt, not communicated to him, but the decision of this court in Union of India 842 vs M.E.Reddy; , , holds that uncommunicated adverse remarks can also be relied upon while passing an order of compulsory retirement. The said adverse remarks have been made by successive Civil Surgeons and not by the particular Chief District Medical Officer against whom the petitioner has alleged malafides. It is unlikely that all the Chief District Medical Officers were prejudiced against the petitioner. In particular, the court observed, "the materials placed before us do not justify a conclusion that the remarks in the confidential character rolls had not duly and properly been recorded." The decision to retire has been taken by the Review Committee on proper material and there are no grounds to interfere with its decision, it opined. 6. The adverse remarks made against the petitioner in the words of the High Court are to the following effect: ". most insincere, irregular in habits and negligent and besides being a person of doubtful integrity, he had been quarrelsome with his colleagues and superior officers and had been creating problems for the administration. Rule 71 (a) alongwith the first proviso appended thereto which alone is relevant for our purpose reads thus: "71. (a) Except as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, except a ministerial servant who was in Government service on the 31st March, 1939 and Class IV Government servant, is the date on which he or she attains the age of 58 years subject to the condition that a review shall be conducted in respect of the Government servant in the 55th year of age in order to determine whether he/she should be allowed to remain in service upto the date of the completion of the age of 58 years or retired on completing the age of 55 years in the public interest: Provided that a Government servant may retire from service any time after completing thirty years qualifying service or on attaining the age of fifty years, by giving a notice in writing to the appropriate authority at least three months before the date on which he wishes to retire or by giving the said notice to the 843 said authority before such shorter period as Government may allow in any case. It shall be open to the appropriate authority to withhold permission to a Government servant who seeks to retire under this rule, if he is under suspension or if inquires against him are in progress. The appropriate authority may also require any officer to retire in public interest any time after he has completed thirty years qualifying service or attained the age of fifty years, by giving a notice in writing to the Government servant at least three months before the date on which he is required to retire or by giving three months pay and allowances in lieu of such notice. xx xx xx" 8. It is evident that the latter half of the proviso which empowers the government to retire a government servant in public interest after he completes 30 years of qualifying service or after attaining the age of 50 years is in pari materia with the Fundamental Rule 56(j). The Government of Orissa had issued certain instructions in this behalf. According to these instructions, the Review Committee, if it is of the opinion that a particular government servant should be retired compulsorily, must make a proposal recording its full reasons therefor. The administrative department controlling the services to which the particular government servant belongs, will then process the proposal and put it up to the government for final orders. In Shyam Lal vs State of Uttar Pradesh, ; , a Constitution Bench of this court held that an order of compulsory retirement is not a punishment nor is there any stigma attached to it. It said: "There is no such element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory retirement are that the officer has completed twenty five years ' service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence of Note 1 to Article 465 A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. 844 In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity. In Shivacharana vs State of Mysore, A.I.R. 1965 S.C. 280, another Constitution Bench reaffirmed the said principle and held that "Whether or not the petitioner 's retirement was in the public interest, is a matter for the State Government to consider and as to the plea that the order is arbitrary and illegal, it is impossible to hold on the material placed by the petitioner before us that the said order suffers from the vice of malafides. As far back as 1970, a Division Bench of this court comprising J.C. Shah and K.S. Hegde, JJ. held in Union of India vs J.N Sinha, [1971] 1 S.C.R. 791, that an order of compulsory retirement made under F.R. 56 (j) does not involve any civil consequences, that the employee retired thereunder does not lose any of the rights acquired by him before retirement and that the said rule is not intended for taking any penal action against the government servant. It was pointed out that the said rule embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution and that the rule holds the balance between the rights of the individual Government servant and the interest of the public. The rule is intended it was explained, to enable the Government to energise its machinery and to make it efficient by compulsory retiring those who in its opinion should not be there in public interest. It was also held that rules of natural justice are not attracted in such a case. If the appropriate authority forms the requisite opinion bonafide, it was held, its opinion cannot be challenged before the courts though it is open to an aggrieved party to contend that the requisite opinion has not been formed or that it is based on collateral grounds or that it is an arbitrary decision. It is significant to notice that this decision was rendered after the decisions of this court in State of Orissa vs Dr. Binapani Devi; , and A.K.Kraipak vs Union of India, A.I.R. 1970 S.C. 150.Indeed, the said decisions were relied upon to contend that even in such a case the principles of natural justice required an opportunity to be given to the government servant to show cause against the proposed action. The contention, was not accepted as stated above. The principles enunciated in the decision have been accepted and followed in many a later decision. There has never been a dissent not until 1987. In R.L. Butial vs Union of India, relied upon by the appellant 's 845 counsel, the Constitution Bench considered a case where the government servant was denied the promotion and later retired compulsorily under F.R. 56(j) on the basis of adverse entries in his confidential records. The appellant, an electrical engineer, entered the service of Simla Electricity Board in 1934. In 1940, he was transferred to Central Electricity Commission later designated as Central Water and Power Commission (Power Wing). In 1955 he was promoted to the post of Director wherein he was confirmed in the year 1960. In his confidential reports relating to the years 1964 and 1965, certain adverse remarks were made. They were communicated to him. He made a representation asking for specific instances on the basis of which the said adverse remarks were made. These representations were rejected. Meanwhile, a vacancy arose in the higher post. The appellant was overlooked both in the year 1964 as well as in 1965 by the Departmental Promotion Committee and the U.P.S.C. On August 15, 1967, on his completing 55 years of age, he was compulsorily retired under F.R. 56(j). Thereupon he filed three writ petitions in the High Court challenging the said adverse entries as also the order of compulsory retirement. The writ petitions were dismissed whereupon the matters were brought to this court on the basis of a certificate. The Constitution Bench enunciated the following propositions: 1. The rules framed by the Central Water and Power Commission on the subject of maintenance of confidential reports show that a confidential report is intended to be a general assessment of work performed by the government servant and that the said reports are maintained to serve as a data of operative merit when question of promotion, confirmation etc. arose. Ordinarily, they are not to contain specific instances except where a specific instance has led to a censure or a warning. In such situation alone, a reasonable opportunity has to be afforded to the government servant to present his case. No opportunity need be given before the entries are made. Making of an adverse entry does not amount to inflicting a penalty. When the petitioner was overlooked for promotion his representations against the adverse remarks were still pending. But inasmuch as the said representations were rejected later there was no occasion for reviewing the decision not to promote the appellant. Withholding a promotion is not a penalty under the Central Service Rules. Hence, no enquiry was required to be held before deciding not to promote the 846 appellant more so, when the promotion was on the basis of selection and not on the basis of seniority alone. So far as the order of compulsory retirement was concerned, it was based upon a consideration of his entire service record including his confidential reports. The adverse remarks in such reports, were communicated from time to time and the representations made by the appellant were rejected. It is only thereafter that the decision to retire him compulsorily was taken and, therefore, there was no ground to interfere with the said order. It is evident that in this case, the question arising for our consideration viz, whether uncommunicated adverse remarks can be taken into consideration alongwith other material for compulsorily retiring a government servant did not arise for consideration. That question arose directly in Union of India vs M.E.Reddy. 15. The respondent, M.E. Reddy belonged to Indian Police Services. He was retired compulsorily under Rule 16 (3) of All India Service (Death cum Retirement Rules) 1958 corresponding to F.R. 56 (j). The contention of the respondent was that the order was passed on non existing material inasmuch as at no time were any adverse remarks communicated to him. His contention was that had there been any adverse entries they ought to have been communicated to him under the rules. The said contention was dealt with in the following words: ". This argument, in our opinion, appears to be based on a serious misconception. In the first place, under the various rules on the subject it is not every adverse entry or remarks that has to be communicated to the officer concerned. The superior officer may make certain remarks while assessing the work and conduct of subordinate officer based on his personal supervision or contract. Some of these remarks may be purely innocuous, or may be connected with general reputation of honesty or integrity that a particular officer enjoys. It will indeed be difficult if not impossible to prove by positive evidence that a particular officer is dishonest but those who have had the opportunity to watch the performance of the said officer from close quarters are in a position to know the nature and character not only of his performance but also of the 847 reputation that he enjoys". The Learned Judges referred to the decisions in R.L.Butail,J.N.Sinha and several other decisions of this court and held that the confidential reports, even though not communicated to the officer concerned, can certainly be considered by the appointing authority while passing the order of compulsory retirement. in this connection, they relied upon the principle in J.N. Sinha that principles of natural justices are not attracted in the case of compulsory retirement since it is neither a punishment nor does it involve any civil consequences. the principle of the above decision was followed in Dr. N.V.Puttabhatta vs State of Mysore; , , a decision rendered by A.N.Grover and G.K.Mitter , J.J. Indeed, the contention of the appellant in this case was that since an order of compulsory retirement has adverse effects upon the career and prospects of the government servant, the order must be passed in accordance with principles of natural justice. It was contended that before passing the order, a notice to show cause against the order proposed must be given to the government servant . Reliance was placed upon the decisions in Binapani Devi and Kraipak. This contention was negatived following the decision in J.N.Sinha. It was also pointed out, applying the principles of Shivacharana that an order of compulsory retirement is not a punishment nor does it involve any stigma or implication or misbehaviour. Another contention urged in this case was that the order of compulsory retirement was based upon uncommunicated adverse remarks and that the appellant was also not afforded an opportunity to make a representation against the same. At the relevant time, no appeal lay against the orders passed upon the representation. Dealing with the said contention, the court observed: "as the confidential reports rules stood at the relevant time, the appellant could not have appealed against the adverse remarks and if the opinion of the government to retire him compulsorily was based primarily on the said report, he could only challange the order if he was in a position to show that the remarks were arbitrary and malafide." 18. Yet another contention which is relevant to the present case is this : the retirement of the appellant therein was ordered under Rule 235 of Mysore Civil Services Rules. The language of the said rule corresponded to 848 F.R.56(j) but it did not contain the word "absolute" as is found in F.R.56(j). An argument was sought to be built up on the said difference in language but the same was rejected holding that even in the absence of the word "absolute" the position remains the same. We are refering to the said aspect in as much as the proviso to Rule 71 (a) of the Orissa Service Code, concerned in the appeals before us, also does not contain the word "absolute". In (A.I.R.1980 S.C.1894) Gian Singh Mann vs Punjab and Haryana High Court, a Bench consisting of Krishna Iyer and Pathak, JJ. reiterated the principle that an order of compulsory retirement does not amount to punishment and that no stigma or implication of misbehaviour is intended or attached to such an order. In O.N.G.C vs Iskandar Ali, a probationer was terminated on the basis of adverse remarks made in his assessment roll. A Bench comprising three learned Judges (Fazal Ali, A.C. Gupta and Kailasam, JJ.) held that the order of termination in that case was an order of termination simpliciter without involving any stigma or any civil consequences. Since the respondent was a probationer, he had no right to the post. The remarks in his assessment roll disclosed that the respondent was not found suitable for being retained in service and even though some sort of enquiry was commenced, it was not proceeded with. The appointing authority considered it expedient to terminate the service of the respondent in the circumstances and such an order was beyond challenge on the ground of violation of Article 311. This court has taken the view in certain cases that while taking a decision to retire a government servant under Rule 56(j), more importance should be attached to the confidential records of the later years and that much importance should not be attached to the record relating to earlier years or to the early years of service. In Brij Bihari Lal Agarwal vs High Court of Madhya Pradesh, , upon which strong reliance is placed by the appellant 's counsel a Bench comprising Pathak and Chinappa Reddy,JJ. observed thus: ". .What we would like to add is that when considering the question of compulsory retirement, while it is not doubt desirable to make an overall assessment of the Government servant 's record, more than ordinary value should be attached to the confidential reports pertaining to the years immediately 849 preceding such consideration. It is possible that a Government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service up to the statutory age of superannuation. Whatever value the confidential reports of earlier years may possess, those pertaining to the later years are not only of direct relevance but also of utmost importance. We may mention that the order of compulsory retirement in the above case is dated 28th September, 1979. The High Court took into account the confidential reports relating to the period prior to 1966 which were also not communicated to the concerned officer. However, the decision is based not upon the non communication of adverse remarks but on the ground that they were too far in the past. It was observed that reliance on such record has the effect of denying an opportunity of improvement to the officer concerned. The decision in Baldev Raj Chaddha vs Union of India, ; , is to the same effect. In J.D. Srivastava vs State of Madhya Pradesh, ; , it was held by a Bench of three learned Judges that adverse reports prior to the promotion of the officer cannot reasonably form a basis for forming an opinion to retire him. The reports relied upon for retiring the appellant were more than 20 years old and there was no other material upon which the said decision could be based. It was held that reliance on such stale entries cannot be placed for retiring a person compulsorily, particularly when the officer concerned was promoted subsequent to such entries. We now come to the decision in Brij Mohan Singh Chopra vs State of Punjab, relied upon by the learned counsel for the petitioner. In this case, there were no adverse entries in the confidential records of the appellant for a period of five years prior to the impugned order. Within five years, there were two adverse entries. In neither of them, however, was his integrity doubted. These adverse remarks were not communicated to him. The Bench consisting of E.S. Venkataramiah and K.N. Singh JJ. quashed it on two grounds viz., 1. It would not be reasonable and just to consider adverse entries of remote past and to ignore good entries of recent past. If entries for a period of more than 10 years past are taken into account it would be an act of 850 digging out past to get some material to make an order against the employee. In Gurdyal Singh Fiji vs State of Punjab, and Amarkant Chaudhary vs State of Bihar, ; , it was held that unless an adverse report is communicated and representation, if any, made by the employee is considered, it may not be acted upon to deny the promotion. The same consideration applies where the adverse entries are taken into account in retiring an employee pre maturely from service. K.N. Singh, J. speaking for the Bench observed: "it would be unjust and unfair and contrary to principles of natural justice to retire pre maturely a government employee on the basis of adverse entries which are either not communicated to him or if communicated, representations made against those entries are not considered and disposed of". This is the first case in which the principles of natural justice were imported in the case of compulsory retirement even though it was held expressly in J.N. Sinha that the said principles are not attracted. This view was reiterated by K.N. Singh, J. again in ; Baidyanath Mahapatra vs State of Orissa, (Bench comprising of K.N. Singh and M.H. Kania, JJ.). In this case, the Review Committee took into account the entire service record of the employee including the adverse remarks relating to the year 1969 to 1982 (barring certain intervening years for which no adverse remarks were made). The employee had joined the Orissa Government service as an Assistant Engineer in 1955. In 1961 he was promoted to the post of Executive Engineer and in 1976 to the post of Superintending Engineer. In 1979 he was allowed to cross the efficiency bar with effect from 1.1.1979. He was compulsorily retired by an order dated 10.11.1983. The Bench held in the first instance that the adverse entries for the period prior to his promotion as Superintending Engineer cannot be taken into account. It was held that if the officer was promoted to a higher post, and that too a selection post, notwithstanding such adverse entries, it must be presumed that the said entries lost their significance and cannot be revived to retire the officer compulsorily. Regarding the adverse entries for the subsequent years and in particular relating to the years 1981 82 and 1982 83 it was found that though the said adverse remarks were communicated, the period prescribed for making a representation had not expired. The Bench observed: ". .These facts make it amply clear that the appellant 's 851 representation against the aforesaid adverse remarks for the years 1981 82 and 1982 83 was pending and the same had not been considered or disposed of on the date of impugned order was issued. It is settled view that it is not permissible to prematurely retire a government servant on the basis of adverse entries, representations against which are not considered and disposed of. See Brij Mohan Singh Chopra vs State of Punjab. On the above basis, it was held that the Review Committee ought to have waited till the expiry of the period prescribed for making representation against the said remarks and if any representation was made it should have been considered and disposed of before they could be taken into consideration for forming the requisite opinion. In other words, it was held that it was not open to the Review Committee and the government to rely upon the said adverse entries relating to the years 1981 82 and 1982 83, in the circumstances. Unfortunately, the decision in J.N. Sinha was not brought to the notice of the learned Judges when deciding the above two cases. The basis of the decisions in Brij Mohan Singh Chopra and Baidyanath Mahapatra, it appears, is that while passing an order of compulsory retirement, the authority must act consistent with the principles of natural justice. It is said to expressly in Brij Mohan Singh Chopra. This premise, if carried to its logical end, would also mean affording an opportunity to the concerned government servant to show cause against the action proposed and all that it involves. It is true that these decisions do not go to that extent but limit their holding to only one facet of the rule viz., `acting upon undisclosed material to the prejudice of a man is a violation of the principle of natural justice. ' This holding is in direct conflict with the decision in J.N.Sinha which excludes application of principles of natural justice. As pointed out above, J.N. Sinha was decided after, and expressly refers to the decisions in, Binapani Devi and Kraipak and yet holds that principles of natural justice are not attracted in a case of compulsory retirement. The question is which of the two views is the correct one. While answering this question, it is necessary to keep the following factors in mind: (a) Compulsory retirement provided by F.R. 56 (j) or other corresponding rules, is not a punishment. It does not involve any stigma nor any implication of misbehaviour or incapacity. Three Constitution Benches have said so vide Shyam Lal Shivacharana and R.L. 852 Butail. (b) F.R. 56 (j) as also the first proviso to Rule 71(a) of the Orissa Service Code, empower the government to order compulsory retirement of a government servant if in their "opinion", it is in the public interest so to do. This means that the action has to be taken on the subjective satisfaction of the government. In R.L. Butail, the Constitution Bench observed: ". In Union of India vs Col J.N. Sinha this Court stated that F.R. 56(j) in express terms confers on the appropriate authority an absolute right to retire a Government servant on his attaining the age of 55 years if such authority is of the opinion that it is in public interest so to do. The decision further states: "If that authority, bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The law on the subjective satisfaction has been dealt with elaborately in Barium Chemicals vs Company Law Board, ; At page 323, Shelat, J., after referring to several decisions dealing with action taken on subjective satisfaction, observed thus: "Bearing in mind these principles the provisions of section 237 (b) may now be examined. The clause empowers the Central Government and by reason of delegation of its powers the Board to appoint inspectors to investigate the affairs of the company, if "in the opinion of the Central Government" (now the Board) there are circumstances "suggesting" what is stated in the three sub clauses. The power is executive and the opinion requisite before an order can be made is of the Central Government or the Board as the case may be and not of a Court. Therefore, the Court cannot substitute its own opinion for the opinion of the authority. But the question is, whether the entire action under the section is subjective?" 27. The learned Judges then referred to certain other decisions including the decision in Vallukunnel vs Reserve Bank of India, ; and concluded as follows: 853 "Therefore, the words, "reason to believe" or "in the opinion of"do not always lead to the construction that the process of entertaining "reason to believe" or "the opinion" is an altogether subjective process not lending itself even to a limited scrutiny by the court that such "reason to believe" or "opinion" was not formed on relevant facts or within the limits or as Lord Radcliffe and Lord Reid called the restraints of the statute as an alternative safeguard to rule of natural justice where the function is administrative. The blurring of the dividing line between a quasi judicial order and an administrative order, pointed out in Kraipak has no effect upon the above position, more so when compulsory retirement is not a punishment nor does it imply any stigma. Kraipak or for that matter, Maneka Gandhi cannot be understood as doing away with the concept of subjective satisfaction. On the above premises, it follows, in our respectful opinion that the view taken in J.N. Sinha is the correct one viz., principles of natural justice are not attracted in a case of compulsory retirement under F.R. 56(j) or a rule corresponding to it. In this context, we may point out a practical difficulty arising from the simultaneous operation of two rules enunciated in Brij Mohan Singh Chopra. On one hand, it is stated that only the entries of last ten years should be seen and on the other hand, it is stated that if there are any adverse remarks therein, they must not only be communicated but the representations made against them should be considered and disposed of before they can be taken into consideration. Where do we draw the line in the matter of disposal of representation. Does it mean, disposal by the appropriate authority alone or does it include appeal as well. Even if the appeal is dismissed, the government servant may file a revision or make a representation to a still higher authority. He may also approach a court or Tribunal for expunging those remarks. Should the government wait until all these stages are over. All that would naturally take a long time by which time, these reports would also have become stale. A government servant so minded can adopt one or the other proceeding to keep the matter alive. This is an additional reason for holding that the principle of M.E. Reddy should be preferred over Brij Mohan Singh Chopra and Baidyanath Mahapatra, on the question of taking into consideration uncommunicated adverse remarks. 854 30. Another factor to be borne in mind is this: most often, the authority which made the adverse remarks and the authority competent to retire him compulsorily are not the same. There is no reason to presume that the authority competent to retire him will not act bonafide or will not consider the entire record dispassionately. As the decided cases show, very often, a Review Committee consisting of more than one responsible official is constituted to examine the cases and make their recommendation to the government. The Review Committee, or the government, would not naturally be swayed by one or two remarks, favourable or adverse. They would form an opinion on a totality of consideration of the entire record including representations, if any, made by the government servant against the above remarks of course attaching more importance to later period of his service. Another circumstance to be borne in mind is the unlikelihood of succession of officers making unfounded remarks against a government servant. We may not be understood as saying either that adverse remarks need not be communicated or that the representations, if any, submitted by the government servant (against such remarks) need not be considered or disposed of. The adverse remarks ought to be communicated in the normal course, as required by the Rules/orders in that behalf. Any representations made against them would and should also be dealt with in the normal course, with reasonable promptitude. All that we are saying is that the action under F.R.56(j) (or the Rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F.R.56(j) need not be held back. There is reason to presume that the Review Committee or the government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any representation made by the government servant is there, it shall also be taken into consideration. We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in government alone and not in a minor official. It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation if indeed present, may be indicative of malice in law. We may 855 mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action. At this stage, we think it appropriate to append a note of clarification. What is normally required to be communicated is adverse remarks not every remark, comment or observation made in the confidential rolls. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(j) or a Rule corresponding to it. The object and purposes for which this power is to be exercised are well stated in J.N. Sinha and other decisions referred supra. The following principles emerge from the above discussion: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be perverse order. (iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their 856 sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interfere. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 29 to 31 above. Before parting with the case, we must refer to an argument urged by Sri R.K. Garg. He stressed what is called, the new concept of Article 14 as adumberated in Maneka Gandhi (A.I.R. 1978 S.C. 579) and submitted on that basis that any and every arbitrary action is open to judicial scrutiny. The general principle evolved in the said decision is not in issue here. We are concerned mainly with the question whether a facet of principle of natural justice audi alteram partem is attracted in the case of compulsory retirement. In other words, the question is whether acting upon undisclosed material is a ground for quashing the order of compulsory retirement. Since we have held that the nature of the function is not quasi judicial in nature and because the action has to be taken on the subjective satisfaction of the Government, there is no room for importing the said facet of natural justice in such a case, more particularly when an order of compulsory retirement is not a punishment nor does it involve any stigma. So far as the appeals before us are concerned, the High Court which has looked into the relevant record and confidential records has opined that the order of compulsory retirement was based not merely upon the said adverse remarks but other material as well. Secondly, it has also found that the material placed before them does not justify the conclusion that the said remarks were not recorded duly or properly. In the circumstances, it cannot be said that the order of compulsory retirement suffers from mala fides or that it is based on no evidence or that it is arbitrary. For the above reason, both the appeals are dismissed but in circumstances of the case, we make no order as to costs. V.P.R. Appeals dismissed.

C.A.No.869 of 1987 On 15.3.1951, the appellant was appointed as a Pharmacist, which was then designated as compounder. On 13.2.1976 he was retired compulsorily by the Government under the first proviso to Sub rule of Rule 71 of the Orissa Service Code. The appellant challenged the order by way of a writ petition in the High Court contending that the order was the result of ill will and malice the Chief District Medical Officer bore towards him; that his entire service was spot less and that at no time were any adverse entries in his confidential character rolls communicated to him. The respondent Government submitted that the decision to retire 837 the petitioner compulsorily was taken by the Review Committee and not by the Chief Medical Officer; that besides the remarks made in the confidential character rolls, other material was also taken into consideration by the Review Committee that it arrived at its decision bonafide and in public interest which decision was accepted and approved by the Government. The allegation of malafides was denied. The High Court looked into the proceedings of the Review Committee and the confidential character rolls of the appellant and dismissed the writ petition on the reasoning, that an order of compulsory retirement after putting in the prescribed qualifying period of service did not amount to punishment; that the order was passed by the state Government and not by the Chief Medical Officer and that the petitioner has failed to establish that remarks in the confidential character rolls were not duly and properly recorded. It held that the adverse remarks though not communicated, can yet be relied upon. Accordingly it held that the decision to retire was taken by the Review Committee on proper material and there were no grounds to interfere with its decision. The present appeal by special leave was filed by the government servant against the decision of the High Court on the question, whether acting upon undisclosed material was a ground for quashing the order of compulsory retirement C.A. No. 870 of 1987 was also filed on similar facts. It was contended by the appellant that since an order of compulsory retirement had adverse effects upon the career and prospects of the government servant, the order should be passed in accordance with principles of natural justice; that before passing the order, a notice to show cause against the order proposed should be given to the government servant; that the order of compulsory retirement was based upon uncommunicated adverse remarks and that the appellant was also not afforded an opportunity to make a representation against the same; and that as per the new concept of Article 14 adumbrated Maneka Gandhi case, AIR 1978 SC 579, any and every arbitrary action was open to judicial scrutiny. Dismissing the appeals, this Court, HELD: 1.01. What is normally required to be communicated is adverse remarks not every remark, comment or observation made in the confidential rolls. There may be any number of remarks, observations and 838 comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(j) or a Rule corresponding to it. [855B C] 1.02. The adverse remarks ought to be communicated in the normal course, as required by the Rules/ orders in that behalf. Any representations made against them would and should also be dealt with in the normal course, with reasonable promptitude. [854D E] 1.03. The action under F.R.56(j) (or the Rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F.R.56(j) need not be held back. [854E F] 1.04. There is no reason to presume that the Review Committee or the government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any representation made by the government servant is there, it shall also be taken into consideration. [854F G] 1.05. Not only the Review Committee is generally composed of high and responsible officers, the power is vested in government alone and not in a minor official. It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation, if indeed present, may be indicative of malice in law. [854G H] 2.01. An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. [855D] 2.02. The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government. [855D E] 2.03. Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny 839 is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. [855E F] 2.04. The remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action. [855A] 2.05. An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it, uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. [856B] 2.06. The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter, of course, attaching more importance to the record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. [855G 856A] 2.07. The nature of the function is not quasi judicial in nature and because the action has to be taken on the subjective satisfaction of the Government, there is no room for importing any facet of natural justice particularly because an order of compulsory retirement is not a punishment nor does it involve any stigma. [856E] Union Of India vs M.E.Reddy, ; ; Union of India vs J.N.Sinha, [1971] 1 SCR 791, Applied. Shyam Lal vs State of Uttar Pradesh, ; ; Shivacharana vs State of Mysore, AIR (1965) SC 280; State of Orissa vs Dr. Binapani Devi, ; ; A.K. kraipak vs Union of India, AIR 1970 SC 150; R.L. Butail vs Union of India, ; Dr. N.V. Puttabhatta vs State of Mysore; , ; Gian Singh Mann vs Punjab and Haryana 840 High Court; , ; O.N.G.C. vs Iskandar Ali, Brij Bihari Lal Agarwal vs High Court Of Madhya Pradesh, ; Baldev Raj Chaddha vs Union Of India, ; ; J.D. Srivastava vs State of Madhya Pradesh, ; ; Brij Mohan Singh Chopra vs State of Punjab, ; Gurdyal Singh Fiji vs State of Punjab, ;m Amarkant Chaudhary vs State of Bihar, ; ; Baidyanath Mahapatra vs State of Orissa, ; ; Barium Chemicals vs Company Law Board, ; ; Vallukunnel vs Reserve Bank of India, ; ; Maneka Gandhi 's case, AIR 1978 SC 579, Referred to.

ivil Appeal Nos. 2309 & 2310 of 1989 etc etc. From the Judgment and Order dated 23.9.1988 of the Jammu & Kashmir High Court in Writ Petition No. 87/81 and C.M.P. No. 2519 of 1988. K. Parasaran, D.D. Thakur, M.H. Beg, Raja Ram Agrawal, M.L. Verma, Prashant K. Goswami, Anil B. Divan, Pramod Kohli, P.H. Parekh, Hari Khanna, J.P.Pathak, Sandeep Thakral, S.M.Thakral, B.V. Desai, Ms. Vinita Ghorpade, E.C. Aggarwala, N.N. Bhatt, Dhiraj Singh and Ashok Mathur for the appearing parties. The Judgment of the Court was delivered by V. RAMASWAMI, J. Civil Appeal No. 2309 of 1989 arises out of an order made by the High Court of Jammu & kashmir in Writ Petition No.87 of 1981 dismissing the Writ Petition filed by M/s. Pine Chemicals Ltd., which is a public limited company manufacturing Rosin, Turpentine and Rosin Derivatives and carrying on business at Bari Brahmana, Jammu Tawi. The appellants had prayed in the writ petition for quashing the order of assessment dated 20th January, 1981 made by the Assessing Authority, Incharge Sales Tax Circle, Jammu under the for the year ending 30.6.1980 and the penalty order made on February 2, 1981 under Section 10 of the in respect of the same period. They had also prayed for a declaration that they are entitled to exemption from payment of tax under the and the Jammu & Kashmir General Sales Tax Act, 1962, on the finished goods produced by them for a period of five years commencing from 8th November, 1979, when the Company went into commercial production. This main relief had been prayed for on the grounds that the appellant were exempt from payment of sales tax in terms of the Government Orders No. 159 Ind. dated 25.3.1971 as amended by Government Order No. 414 Ind. dated 25th August, 1971 read with section 8(2A) of the . Their further case was that the Government represented and announced a package of incentive for large and medium scale industries including grant of exemption from sales tax both on the raw materials purchased by the industries and the scale of their finished products, that acting upon such representation and assurances, appellants set up their factory at Bari Brahmana on the land allotted by the State Industrial Development Corporation and that therefore the Government is estopped from charging sales tax on the doctrine of promissory estoppel. The High Court was of the view that 190 the two Government orders referred to above were only declarations of an intention to exempt from payment of sales tax and that they are not exemption notifications under sections 5 of the General Sales Tax Act. The High Court was also of the view that the appellant have failed to prove the necessary factual foundation for invoking the principle of promissory estoppel and that, therefore, they are not entitled to any relief under that doctrine. In that view the writ Petition was dismissed. It may be mentioned that Civil Appeal No. 2310 of 1985 is against an order made in a Civil Misc. Petition No. 2519 of 1988 which was also dismissed on 23.9.1988 along with the writ petition. This miscellaneous petition was filed after the judgment in the writ petition was reserved for permission to file reply affidavit on the ground that the assessment files produced at the time of hearing contained certain documents needing certain explanation by the appellants. Both on the ground that it was belated and on the ground that the judgment in the writ petition was delivered only relying on the material placed on record and therefore there was no need for giving an opportunity to the writ petitioners to file a reply statement, the learned judgment dismissed this miscellaneous petition also. Civil appeals 3140 50 of 1989 have been filed by M/s. K.C. Vanaspati, a firm of partnership manufacturing Vanaspati Ghee at Bari Brahmana, Jammu Tawi. They filed writ petition 52 of 1982 praying to quash a sales tax assessment order dated 16.1.1982 assessing them to sales tax for the period from 2nd September, 1981 till the end of the month under the Jammu & Kashmir General Sales Tax Act. They also prayed for a mandamus directing the Government and the Assessing officer not to assess them to sales tax or recover any amount on account of sales tax from them for a period of five years from 2nd September, 1981 when their industry started commercial production. This relief was prayed again on the ground that Government Order 159 Ind. dated 26.3.1971 as amended by Government Order 414 Ind. dated 25.8.1971 exempted the sales of their finished product of Vanaspati Ghee from sales tax and also on the ground that in any case the Government is estopped from collecting tax on the principle of promissory estoppel. When this writ petition was pending as assessment order was made on 14.11.1984 for the assessment year ending 30th September 1982 including the period 2nd September to 30th September, 1981 which was the subject matter of the earlier assessment order and which was questioned in writ petition No. 52 of 1982. The validity of this assessment order was the subject matter of writ petition No. 822 of 1984 filed by the appellants. The relief prayed for and the grounds on which the relief prayed for were almost identical as that in writ petition No. 52 of 1982 except that 191 on the question of promissory estoppel, more detailed facts were mentioned in this writ petition. The respondents filed their counter affidavits contending that the said Government orders were not exemption orders under Section 5 of the General Sales Tax Act and that there is no factual foundation for the plea of promissory estoppel. Since we will be dealing with contentions in detail at the appropriate place we are not setting out contentions of the petitioners and the replies of the Government in the writ petitions in details. During the pendency of the writ petitions certain other Government orders came to be passed and certain assessment orders for the subsequent periods were also sought to be made and questioning these actions M/s. K.C. Vanaspati filed Writ petition No. 711 of 1987 for a writ of prohibition restraining the Assessment Officer and Government from recovering any sales tax at any point of sale in the series of sales in respect of Vanaspati Ghee manufactured by them for a period of 10 years from 2nd September, 1981 when their factory went into commercial production and also for a declaration that SRO 448 dated 22nd October, 1982 issued by the Government of Jammu & Kashmir (which will be referred to later) was illegal and unconstitutional. They had also prayed for a mandamus directing the respondents to refund the sales tax already recovered from them with interest and damages. In this writ petition also they contended that Government Order No. 159 Ind. dated 26.3.1971 and Government Order 414 Ind. dated 25.8.1971 were exemption orders referable to section 5 of the General Sales Tax Act. They have also referred elaborately to the representations, declarations and promises of the Government in support of the plea of promissory estoppel. The respondents had filed a counter affidavit refuting these contentions of the appellants. The High Court dismissed all these three writ petitions by a common order dated 22nd February, 1989. Civil Appeals 3148 50 of 1989 have been filed against this common order. Civil Appeal No. 3151 of 1989 has been filed by M/s. Kashmir Vanaspati Ltd. against the judgement of the High Court in Writ Petition No.5 of 1989 in which they had prayed for the writ of certiorari to quash certain notices issued to the appellants, their selling agents and the owner of the premises where they have their sale depots, issued under section 17 of the General Sales Tax Act and for a declaration that the Vanaspati Ghee manufactured by the appellants is exempt from payment of tax at all stages upto January, 1992 i.e. for a period of 10 years from the date from which they have started their commercial production. In this writ petition also the appellants had relied on Government Order 159 Ind. dated 26.3.1971 and Government Order No. 414 Ind. dated 25th August, 1971 as orders exempting their goods from sales tax under Section 5 of the General Sales Tax Act. They have also relied on certain statement of Government as commitments 192 to continue the incentives and exemptions from sales tax for a period of 10 years on the principle of promissory estoppel. The respondents had filed their counter affidavit. This writ petition was also dismissed on 17th March, 1989 almost on the same grounds as in earlier two cases. The first common question that arises for consideration in all these appeals therefore is whether Government Order No. 159 Ind. dated 26.3.1971 and the amending Government Order No. 414 Ind. dated 25.8.1971 are orders of exemption referable to section 5 of the General Sales Tax Act, 1962. The said Government Orders are extracted below : GOVERNMENT OF JAMMU AND KASHMIR INDUSTRIES AND COMMERCE DEPARTMENT Sub: Grant of incentives to large and Medium Scale industries in the Jammu & Kashmir State Ref: Cabinet Decision No. 101 dated 26.3.1971 Government Order No. 149 Ind. of 1971 dated 26.3.1971 Sanction is accorded to the grant of the following incentives and facilities to Large and Medium Scale Industries in the State of Jammu & Kashmir : 1. Land: As provided in Government Order No. 206 Ind. of 1968 dated 5.7.1968. However, such land. include a reasonable amount of land for the establishment of residential colonies required to house the workers of Large and medium scale Industries and would be granted on the terms and conditions defined in the Government Order No. 206 Ind. of 1968 dated 5.7.1968. Grant of exemption from the State Sales Tax both on raw materials and finished products for the period of five years from the date the unit goes into production. Grant of exemption from levy of additional surcharge on Toll Tax for an initial period of five years from the date the unit goes into commercial production with respect to raw materials and finished goods. The question of grant of exemption from this levy for further periods would be reviewed thereafter in every 193 individual case and further grant of this concession would only be considered in deserving individual cases. Grant of exemption from the levy of Urban Immovable Property Tax on the lands and buildings belonging to such industries would be available as admissible under the Urban Immovable Property Taxation Rules. By order of the Government of Jammu and Kashmir. Sd/ G.R.Renzu, Secretary to Government" This order was partially modified in G.O. 414 Ind. dated 25.8.1971 which read as follows: " GOVERNMENT OF JAMMU AND KASHMIR INDUSTRIES AND COMMERCE DEPARTMENT Sub: Grant of incentives to the Large and Medium Scale Industries in the Jammu & Kashmir State Ref: Director Industries and Commerce 's letter No. SSI J/455/2251 52 dated 22 7 1971 Government Order No. 414 Ind. of 1971 dated 25.8.1971 In partial modification of Government Order No. 159 Ind. of 1971 dated 26.3.1971, item 2 may be read as under: 2. Grant of exemption from the sales tax both on raw materials and finished products. The State Sale Tax paid by Large and Medium Scale Industries on the raw materials procured by them for the initial 5 years of the production would be refunded to such industries. Similarly such industries will be granted exemption from the payment of any state sales tax on their finished products for a period of five years from the date the unit goes into production. 194 By order of the Government of Jammu and Kashmir. Sd/ Secretary to Government". It may be noted at this stage itself that the amending Order G.O. 414 Ind. dated 25th August, 1971 was also published in the Government Gazette. Section 5 of the General Sales Tax Act, 1962 empowers the State Government to grant exemption from taxation and that section reads as follows: "Exemption from taxation: The Government may subject to such restrictions and conditions as may be prescribed, including conditions as to licence and licence fees, by order exempt in whole or in part from payment of tax any class of dealers or any goods or class or description of goods. " The Government orders were made implementing the Cabinet decision No. 101 of the same date. There is no ambiguity about the class of persons or dealers to whom the Government orders apply, no ambiguity about the class or description of goods and the transactions of sale which are exempt from tax. It has been duly authenticated in terms of Section 45 of the Constitution of Jammu and Kashmir. It is well settled that if power to do an act or pass an order can be traced to an enabling statutory provision, then even if that provision is not specifically referred to, the act or order shall be deemed to have been done or made under the enabling provision. Thus the Government orders satisfy all the requirements of the provisions of Section 5 of local Act. The section also does not talk of any notification: it only talks of a Government order exempting in whole or in part from payment of tax. This is very insignificant, if contrasted with Section 4(1) and 4(5) of the local Act relating to the fixation of the taxable point refers to a notification by the Government. The Act itself thus makes a distinction requiring a notification to be made for certain purposes and the making of a Government order in respect of certain other purposes. Moreover, since there is no form prescribed in this behalf if the particular order in effect is an exemption order, whether it takes the form of an order or notification makes no difference. But we may note from the various orders produced before us that normally in the case of grant of tax exemptions as an incentive to industry the exemption orders have generally taken the form of Government order rather than a notification. But in the 195 case of other exemptions though they are also under section 5 of the local Act they have taken the form of notification. Thus the pattern followed in Jammu & Kashmir seems to be that in respect of exemptions from payment of taxes following Cabinet decision on policy matters and incentive they have taken the form of Government order. It is necessary to refer this aspect because in later modifications while superseding the earlier order or notifications, the Government have followed the specific pattern and have used the word `orders ' in cases of grant of incentive and the word `notifications ' in the other cases. It may also be pointed out that the Government orders 159 and 414 were also understood and treated as such exemption orders as seen from the publicity given them by the Government while inviting entrepreneurs to establish industries in Jammu & Kashmir and certain other communications to the parties. The booklet published by the Government in December, 1975 under the heading "Incentives to Development of Industries in Jammu & Kashmir" contained incentives available for small scale industries as also large and medium scale industries. The above said two Government Orders were reproduced in this booklet as the orders relating to incentives available to large and medium scale industries. Another brochure issued in March, 1978 under the heading `The State Marches Towards Industrial Development ' after noting the efforts made by the Government to invite industrial enterprises from outside the State to locate the industries in Jammu & Kashmir and the response by the industrialist, listed the package of incentives under the heading `Incentives Available to help you establish your beautiful industrial ventures in the J & K State '. Item 5 of this list related to `exemption from certain taxes '. This was followed by the Finance Minister 's Budget Speech for the year 1978 79 in which the Finance Minister stated: "We have to continue a consistent policy of support and protection to industry and attract as many new units as we can, both in order to increase the employment opportunity and to achieve better economic growth. It is as such proposed to continue the grant of exemption from payment of sales tax on the goods manufactured by new units for a period of ten years from the date the unit goes into production. " Subsequent to this speech of the Finance Minister another Brochure was published by the Government on the 7th September, 1978 which referred to the sustained efforts made by the Government to involve successful and experienced entrepreneurs from all over the country in 196 setting up the industries in J & K and incentives available to the industries. In page 14 of this Brochure "Exemption from Sales Tax and toll tax for 10 years and exemption from CST" is listed as one of the incentives available in the State. Obviously these announcements, references and statements relating to exemption from sales tax refer to G.O. 159 Ind. dated 26.3.1971 and G.O. 414 Ind. dated 25.8.1971. No other Government order of notification relating to exemption from payment of sales tax by large and medium industries were bought to our notice as relating to these references in the Brochures and speeches. Thus on a plain reading there could be no doubt that the two Government orders are referable to the power of the Government under Section 5 of the General Sales Tax Act and are exemption orders falling within the scope of that provision. In this connection, we may also refer to three decisions of this Court cited at the Bar wherein similar orders of Government without specifying the source of power under which they were made and also not in the form of a notification, were considered to be orders granting exemption. In Pournami Oil Mills & Ors. vs State of Kerala & Anr., [1986], Supp. SCC 728, this Court had occasion to consider almost identical Government orders as those we are concerned with in these appeals. The first was a Government Order dated 11th April, 1979 and the relevant portion of the same reads as follows: "The Government has considered the recommendations and suggestions of the Committee in detail and they are pleased to approve the following package of measures for promoting industrial development in Kerala: SMALL SCALE INDUSTRIES: Sales Tax Concessions: New industrial units under small scale industries set up after April, 1979, will be exempted from the payment of sales tax for a period of five years from the date of production. The second was a notification dated 21st October, 1980 made under Section 10 of the Kerala General Sales Tax Act which read as follows: "In exercise of the power conferred by Section 10 of the Kerala 197 General Sales Tax (15 of 1963) the Government of Kerala have considered it necessary in the public interest so to do, hereby make an exemption in respect of the tax payable under the said Act on the turnover of the sale of goods produced and sold by the new industrial units under the small industries for a period of five years from the date of commencement of sale of such goods by any such units by way of tax on their sales shall be paid over to Government and that the sales tax, if any, already paid by such units to Government shall not be refunded. Provided that such units shall produce proceedings of the General Manager, District Industries Centre, declaring the eligibility of the units for claiming exemption from sales tax. Provided further that the cumulative sales tax concessions granted to a unit at any point of time within this period shall not exceed 90 per cent of the cumulative gross fixed capital investment of the unit. Explanation For the purpose of this notification new industrial unit under the Small scale Industries shall mean undertakings set up on or after April 1, 1979 and registered with the Department of Industries and Commerce as a small scale industrial unit. This notification shall be deemed to have come into force with effect from April 1, 1979. " Section 10 of the Kerala General Sales Tax Act empowered the Government if they consider it necessary in the public interest, by notification in the Gazette, to make an exemption or reduction in rate either prospectively or retrospectively in respect of any tax payable under the Act. It may be seen that the first Government Order dated 11th April, 1979 did not refer to any statutory power under which that order was made and it was generally in the nature of an order approving package of measures and incentives for promoting industrial development in Kerala and not in the form of a notification, while the second notification was made specifically in exercise of the statutory powers under section 10 of the Kerala Act. It may also be seen that the first Government Order gave more tax exemption while the second notification did not give any exemption relating to purchase tax and also confined the exemption from sales tax to the limits specified in the proviso to the notification. Two main questions were 198 considered by this Court. The first was whether the first Government Order dated 11th April, 1979 was an exemption order referable to the powers of the Government under section 10 of the Kerala Act. On this issue this Court held that it was an exemption order and that since there was an enabling provision in the statute empowering the Government to give exemption, though the Government Order did not refer to the statutory provision conferring such powers the order should be deemed to have been made under the said enabling provision and that therefore both the orders were made in exercise of the powers under section 10 of the Kerala Act. The second important point that was decided was that the second notification was prospective in operation and that industries set up on or after Ist April, 1979 and before the 21st October, 1980 would be entitled to the benefit of the whole exemption under the first Government order for the full period of five years from the date they started production and that right could not have been curtailed by the second notification dated 21st October, 1980. As the Govt. was bound by the rule of estoppel from taking away the right which had accrued to them under the first Government order. Only new industries set up after the 21st October, 1980 would have the restricted benefit as provided in the second notification. In Bakul Oil Industries & Anr. vs State of Gujarat & Anr. , ; , the effect of two exemption notifications made in exercise of the Government 's power under section 49(2) of the Gujarat Sales Tax Act, 1960 was considered. Under the first notification dated 29.4.1970 certain exemption from payment of sales tax or purchase tax was given in respect of certain specified classes of sales and purchases described in the Schedule to that notification without any specification of period. The second notification dated 11.11.1970 amended the first notification by adding a new entry in the Schedule exempting a manufacturer who established a new industry from the whole of purchase tax and sale tax for a period of five years from the date of commissioning of the industry . This second notification stated that for the benefit of claiming the exemption the industry shall have been commissioned at any time during the period from Ist April, 1970 to 31st March, 1975. The assessee in that case had commissioned his plant on the 17th May, 1970 and when the Industries Commissioners refused to give him the eligibility certificate for claiming exemption he filed a writ petition under Article 226 before the Gujarat High Court. During the pendency of the writ petition the State Government issued another notification dated 17th July, 1971 amending the definition of `new industry ' and excluding among others decorticating, expelling, crushing, roasting, parching, frying of oil, seeds and colouring, decolouring and scenting of oil, from the purview of the exemption notification. This Court 199 held that under the first notification dated 9.4.1990 the exemption granted was general and did not stipulate as to how long the exemption would remain in operation and that would mean that the exemption granted under the notification was to have operative force till such time that exemption was allowed to remain before being withdrawn by a subsequent notification. Though the second notification dated 11.11.1970 gave exemption for a period of five years from the date of commissioning of the industry this Court was of the view that, that exemption cannot be invoked by the assessee in that case for claiming the benefit of tax exemption for five years because the second notification was prospective in operation and would apply only to those new industries which were commissioned subsequent to the issue of that notification and since the assessee in that case commissioned the Mill on 17.5.1970 before the second notification he was not eligible for the benefit of second notification. However, the learned counsel for the respondents relied on the observation in the first paragraph at page 192 of the Bakul Oil Industries case (supra) wherein the learned Judges have held that the State Government was under no obligation in any manner known to law to grant exemption and that it was fully within its powers to revoke the exemption by means of a subsequent notification. These observations will have to be understood in the light of the earlier statement that the second notification dated 11.11.1970 was prospective; that is to say if the industry had been commissioned subsequent to 11.11.1970 the assessee would have been entitled to the exemption for the full period of five years. These observations are apposite only to the notification dated 9.4.1970 which was the one which the assessee was entitled to. In correctly understanding the ratio of this judgment we have to keep in mind that the date of commissioning of the industry was the relevant factor to the entitlement of the relief. Therefore this is an authority only for the proposition that if the exemption notification did not stipulate as to how long the exemption would remain in operation it would be open to the Government to withdraw the same at any time by a subsequent notification. But the learned Judges did not stop with that but make a further observation that if the exemption notification gave exemption from payment of tax for a particular period and an industry was commissioned after the date of the exemption order but before the exemption was withdrawn, the said industry would be entitled to the benefit of exemption for the period specified in the exemption order though the exemption was withdrawn before the expiry of that period if the industry could rely on any estoppel. This is also clear as the learned Judges themselves have observed that the industry commissioned subsequent to the notification could also plead estoppel and observed: "We must, however, observe that the power of revocation or 200 withdrawal would be subject to one limitation viz. the power cannot be exercised in violation of the rule of Promissory Estoppel. In other words, the Government can withdraw an exemption granted by it earlier if such withdrawal could be done without offending the rule of Primissory Estoppel and depriving an industry entitled to claim exemption from payment of tax under the said rule. If the Government grants exemption to a new industry and if on the basis of the representation made by the Government an industry is established in order to avail the benefit of exemption, it may then follow that the new industry can legitimately raise a grievance that the exemption could not be withdrawn except by means of legislation having regard to the fact that Primissory Estoppel cannot be claimed against a statute. " The Government Order which was considered by this Court in Assistant Commissioner of Commercial Taxes (Asstt.). Dharwar & Ors. vs Dharmendra Trading Company and Ors., ; read as follows: "Consequently, the Governor of Mysore is pleased to sanction the following incentives and concessions to the entrepreneurs for starting new industries in Mysore State: (1) Sales Tax A cash refund will be allowed on all sales tax paid by a new industry on raw material purchased by it for the first (five) years from the date the industry goes into production, eligibility to the concessions being determined on the basis of a certificate to be issued by the Department of Industries and Commerce. " Though this again was in the form of a Government order giving incentives and concessions, this Court held that since there is a power to grant an exemption or concessions under the Statue the mere fact that it did not specify the power under which it was issued will make no difference and that the assessee would be entitled to the benefit of this order. The High Court was of the view that the Government orders are, as such, not exemption orders but only a policy decision. The learned Judges observed that Section 5 of the General Sales Tax Act "does not speak of general order of exemption as the power to grant exemption is related to 201 a class of dealers or goods and that too subject to restrictions and conditions as may be prescribed. So there could no general order of exemption and hence the need for specific order in favour of the petitioner is quite obvious. " On this interpretation the High Court held that the appellant has to first establish that he had set up an industry in the State which conforms to the intent of 1971 order and thereafter ask for an exemption and that on being satisfied the Government will have to make an order of exemption under section 5 of the General Sales Tax Act. We are unable to agree with this reasoning of the learned Judges on the interpretation of section 5 of the General Sales Tax Act. We are of the view that the High Court was in error in thinking that the exemption order should be specific in favour of the appellant. The exemption as can be seen from the provisions of section 5 of the General Sales Tax Act could be in respect of any class of dealers of any goods or class or description of goods. There could be an exemption in an individual also but the power of exemption is not restricted to such cases alone. It may refer to transactions of sale of a particular type of goods or class or description of goods or in respect of any class of dealers or a combination of both. Of course even as an order of exemption the appellant will have to show that he had set up the industry in conformity with the intent of 1971 order and entitled in terms thereof to the exemption in respect of the goods manufactured by him. But that is not to say that after he establishes those facts the Government will have to make a separate order of exemption in relation to him. When the appellants sought to rely on the decision of this Court in Pournami Oil Mills case (supra) the learned Judges of the High Court sought to distinguish the same on the ground that the Government order in Pournami Oil Mills case (supra) used the words `will be exempted ' whereas in the Government orders now under consideration the words used are `will be granted exemption. ' According to the learned Judges there is a vast difference between the two expressions. Whereas the expression `will be exempted ' is in the nature of an order the expression `will be granted exemption ' clearly implies a declaration of intention which could result in an order of exemption being issued by taking further follow up action. We have carefully considered this reasoning of the learned Judges. The Government orders follow an earlier Cabinet decision to give incentives to large medium scale industries. The intention was clear that they wanted to attract entrepreneurs from all over the country to come and establish industries in the State of Jammu and Kashmir. It is not with reference to any particular industrialist or industry that the order was intended to be operative. The subject in both the Government orders show that it is grant of incentives. In the light of the context in which expressions came to be used we are 202 of the view that `will be granted exemption ' has the same meaning as `will be exempted ' and does not in any way show that it requires a further follow up action. Even in Pournami Oils Mills case (supra) under the Government order dated 11th April, 1979 the industries which are to be benefited are those which are to be set up on or after 1st of April, 1979. The exemption is thus with are to be set up on or after 1st of April, 1979. The exemption is thus with reference to an industry which is to be established subsequent to the Government order. Therefore in that sense both expression mean the same. It was then pointed out by the learned Judges of the High Court that this Government Order No. 159 dated 26.3.1971 dealt with to grant four different types of facilities and incentives and three out of them are covered by different legislative enactments and, therefore, it was futile to contend that without any follow up action the said order can be treated as notification of exemption under the different statutes. We are unable to agree with this reasoning of the learned Judges also. As we have already pointed out there is no prescribed form for granting exemption under section 5 of the General Sales Tax Act. There is also no prohibition against reference to any other matter or matter in exemption orders under section 5 of the General Sales Tax Act. If the incentives related also to other benefits or rights merely because they are included in the same Government Order does not make it any the less an exemption order so far as the exemption related to payment of Sales Tax. In fact it appears to be that factually the submission of the learned counsel for the State that follow up action was taken in pursuance of the Government order in respect of exemption from the levy of Urban immovable property tax and the exemption from levy of an additional surcharge on toll tax is not correct. Mr. Verma, learned senior counsel appearing for the State of Jammu & Kashmir in two of the appeals referred to what he called as a follow up action in relation to the exemption from payment of tax under the Urban Immovable Property Act, a notification issued on the 3rd of June 1971 in SRO 214 of that date, in exercise of the powers conferred by section 23 of the Jammu and Kashmir Urban Immovable Property Tax Act, 1962 amending the Immovable Property Tax Rules, 1962 by inserting Rule 20A. The relevant portion of this Rule 20A stated that under the provisions of clause (f) of sub section (1) of section 4 of the Act "all buildings and lands owned by proprietors of a factory and used by him for the purposes thereof shall be exempted from the levy of tax etc. ". It is true that this notification was subsequent to GO 159 Ind. dated 26.3.1971. But it is seen from the notification itself that the same was previously published on 25.3.1971 in the Government Gazette under section 23(1) for information of all persons likely to be affected thereby informing that notice is given thereby that it 203 will be taken up for consideration on 7.4.1971 and any objection or suggestion which may be received in the Finance Department from any person with respect to the said draft before the said date will be considered by the Government. It is by reason of the fact that this draft rule has been published calling for objection the GO 159 Ind. itself stated that the grant of immovable property tax exemption would be available "as admissible under the Urban Immovable Property Taxation Rules." Thus on the day when the Government order was made there was already the draft amendment rules, and therefore, it could not be stated that the amendment was a follow up action in pursuance of the Government order. Rather the Government order refers to the draft and says as per the amendment they will be entitled to the exemption. So far as the toll tax is concerned the notification dated 18.7.1977 relied on by the learned counsel for the respondents only extended the benefit of exemption to large and medium scale industries in respect of additional toll leviable `till the construction phase is completed ' that is in respect of tax on construction materials and it did not relate to the grant of exemption of additional surcharge on toll tax. But it is significant to note that this notification itself stated that `the raw materials brought into the stage for the purpose of manufacturing and finished products marketed outside the State by the said industries shall remain exempt from payment of additional toll for a period of ten years in respect of all the units from the date of commencement of production by them." (emphasis supplied). This definitely shows that there is already an exemption from payment of additional toll in respect of raw materials brought and finished product marketed and the Government order related only to an extension of exemption benefit in respect of the construction phase as well. These notifications under the Immovable Property Tax Act and Toll tax act rather reinforce thus contention of the learned counsel for the appellant that the Government orders themselves are exemption orders under section 5 of the General Sales Tax Act and no follow up action was intended under those orders and the said orders operate as exemption orders. Thus there could be no doubt the Government Order 159 Ind. dated 26.3.1971 and the amending Government Order 414 dated 25.8.1971 are orders of exemption from payment of sales tax issued under section 5 of the General Sales Tax Act. Though the learned counsel for M/s Kashmir Vanaspati Limited and the learned counsel appearing tr M/s K.C. Vanaspati strenuously argued that the exemption from payment of tax was extended from 5 years to 10 years and the Government was bound to give the exemption for 10 years on the ground of promissory estoppel. We think there is absolutely no factual foundation for such a plea. The only reference to 10 years was in 204 the Finance Minister 's speech and in the Brochure dated September, 1978. The Brochure only lists the concessions and incentives available generally. It does not refer to any Government decision or Cabinet decision or any order of the Government. No decision of the Government, let alone a Cabinet decision, or any Government order extending the period of exemption was produced before us. It is not clear on what basis the Brochure mentioned 10 years. Further the reference in the Brochure is not for sales tax alone, but also refers to toll tax and central sales tax. It is noticed that so far as toll tax is concerned there are Government orders exempting the industries covered by the notifications for a period of 10 years. The Finance Minister 's statement made in March, 1978 only refers to a proposal to continue the grant of exemption from payment of sales tax for a period of 10 years. This statement also is not unambiguous. It may mean that the benefits under the Government Orders 159 and 414 may be continued for another 10 years without withdrawing the same. This is merely a budget proposal which could give rise to no right to the appellants. As no decision order or notification is produced extending the period of exemption in relation to sales tax it is not possible to consider the claim of the appellants for exemption for 10 years on the ground of promissory estoppel. In exercise of the powers under section 4(7) of the General Sales Tax Act the Government notified that "In supersession of all the previous notifications on the subject, the Government hereby specify, in column 3 of the Schedule appended thereto, the point of tax on the turnover in the series of sales of goods specified in column 2 of the said schedule. "This was notified and published as SRO 195 dated 31.3.1978. The schedule in column 2 gave the description of the goods and the column 3 point of tax. This schedule was amended by SRO 448 dated 22nd October, 1982 the relevant portion of which read as follows: "SRO 448 . In exercise of the powers conferred by sub section (7) of section 4 of the Jammu & Kashmir General Sales Tax Act, 1962 (XX of 1962), the Government hereby direct that in notification SRO 195 dated 31.3.1978, the following amendments shall be made namely : (1) Sub item (C) in column 2 under the heading "Goods manufactured in the State" appearing against serial No. 2 shall be numbered as sub item (d) and before sub item (d) as so numbered the following shall be inserted as sub item (c) (c) Vanaspati and edible Oils. 205 (i) When sale is made by 2nd sale in the State manufacturer to another i.e. Sale is made by dealer in the State for such dealer who purchases re sale. goods from the manufact urer. (ii) When sale is made by Ist sale in the State i.e. manufacturer to when sale is made by the consumer direct. manufacturer. By order of the Government of Jammu & Kashmir. " Before the High Court the vires of SRO 448 was questioned on various grounds. However, the High Court rejected all those contentions and held that it is valid and that it has superseded the exemption, if any, granted under G.O. 159 and 414. Mr. Thakur, the learned counsel for M/s Kashmir Vanaspati and Mr. Beg, learned senior counsel for M/s. K.C. Vanaspati, apart from contending that SRO 448 was ultra vires also contended on merits that this had no effect of superseding exemption granted under the said orders. Since we are agreeing with the learned counsel that this SRO did not and could not supersede the exemption granted under the said Government orders we are not going into the question of vires of the same. As may be seen from SRO 195 dated 31.3.1978 the notification was made by the Government in exercise of the power under section 4(7) of the State Act which related to the power to fix a point of sale for purposes of taxation in the series of sales of goods. In fact the notification specifically stated that it is made in supersession of all previous notifications on the subject and specified the point of tax on the turnover in the series of sales of goods specified in column 2 of the Schedule (emphasis supplied). The said notification therefore could not have and did not supersede the exemption notification SRO 448 dated 22nd October, 1982 that vanaspati and edible oils are taxable at the point specified therein it only means that those vanaspati and edible oils which are not exempted are taxable at the points specified in the Schedule. It may be noted that the Government order gave exemption only for five years from the date of commencement of the industry and those industries who had been manufacturing for more than that period and also those industries who were not entitled to the benefit of the said Government order would be liable to pay sales tax on the vanaspati manufactured by them and the said goods were 206 liable to tax at the point specified in the Schedule. In the Scheme of levy of single point taxation, there could be no doubt, the Government could fix and point in the series of sales for the Government have fixed the sale by the dealer, that if the second sale, as the taxable point no exception can be taken. In that sense no question of vires on the ground of lack of power would arise. Under Section 4(1) of Jammu & Kashmir General Sales Tax Act the goods are taxable only once, that is it could be taxed only at one point of sale. We have already held that the Government Orders 159 and 414 are exemption orders and exempt the sale by appellants of their manufactured products. The exemption would not arise unless the goods are taxable at the point of their sale. Thus the effect of exempting their sale is that the said goods manufactured by them could not be taxed at the second or subsequent sales also as that would offend section 4(1) which provides for single point levy. In case where there are no exemption orders and the state fixed the second or subsequent sale as point of taxation the first or prior or subsequent sales are not exempted sales but are not taxable sales. Therefore, SRO 448 fixing the sale of vanaspati ghee by a dealer would not be applicable to vanaspati ghee manufactured by the appellant which are exempt under the said Government orders. No question of vires of SRO 448 thus arises in these cases. Thus we are not called upon to decide the vires of SRO 448 on the ground of discrimination as in our view the goods manufactured by the appellants are exempt under Government Orders 159 and 414 and that exemption covers entire series of sales of that very goods. As already noticed in the case of Pine Chemicals the assessment orders related to their liability for tax under the in respect of their interstate sales. The High Court has not considered their claim for exemption under section 8 (2 A) of the . They seem to have proceeded on the assumption that if Government orders 159 and 414 above referred to are exemption orders or if the dealers were entitled to exemption under the State Act on the principle of promissory estoppel they would automatically be entitled to the benefit of section 8 (2 A) of the . However, probably since the High Court was of the view that the said Government orders are not exemption orders and that the appellant had not laid the factual foundation for claiming the benefit of promissory estoppel, the question of consideration of the applicability of section 8 (2 A) of the did not arise and was not considered. In fact the appellants in the special leave petition after claiming that the Government orders above referred to are exemption orders 207 and that in any case on facts they have established their case of promissory estoppel and the Government is bound to give exemption, stated as a ground that in the High Court the Advocate General made a concession to the effect that "he was not disputing that if the appellants were entitled to exemption in respect of finished goods under section 5 of the Jammu & Kashmir Sales Tax Act they would automatically be exempted under section 8 (2 A) of the in respect of interstate transaction. " On the basis of this concession it appears that the appellants have also filed a review petition against certain observations made in the judgment of the High Court. However, in the reply filed by the State in the special leave petition in this Court of the Government have denied that any concession was made by the Advocate General of the State in the High Court and that in any case the concession referred to related to a question of Law and that the State is entitled to press that point in this Court. In these circumstances we have permitted the State to raise the question that even if the said Government orders were exemption orders under section 5 of the General Sales Tax Act the appellants are not eligible for exemption in respect of their interstate sales under section 8 (2 A) of the . Under section 6(1) of the every dealer who sells goods in the course of interstate trade or commerce shall be liable to pay tax under that Act. A sale of goods shall be deemed to take place in the course of interstate trade or commerce if the sale occasions the movement of goods from one state to another or if effected by a transfer of documents of title to the goods during their movement from one State to another. The rate of tax on sales in the course of inter state trade of commerce is fixed under section 8 of the . The tax payable by any dealer under the Act shall be collected in the State from which the movement of the goods commenced by the assessment officers of that State on behalf of the Government of India in accordance with the provisions of section 9(2) of the . The learned Advocate General of Jammu & Kashmir contended that even if the sale of a particular commodity is exempted from payment of tax under the local Act the dealer selling the same in interstate trade or commerce would be liable to pay central sales tax under the provisions of section 6(1A) of the . His further submission was that if section 6(1A) of the is applicable to a particular transaction of sale section 8 (2A) of the would not be applicable to that transaction. Section 6(1A) of the Act reads as follows: 208 "(1 A) A dealer shall be liable to pay tax under this Act on a sale of any goods effected by him in the course of inter state trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State. " In other words the liability of a dealer to pay Central Sales Tax on his interstate transactions of sale will not be affected merely on the ground that if the same dealer had sold the goods locally he would not have been liable to pay tax under the local Sales Tax Act. This is part of the general provisions of Section 6 of the making a dealer liable to tax on inter state sales. The rate of tax payable on inter state sale is fixed at 4% in the case of sales to a registered dealer of goods of the description coming under section 8 (2) of the or where the sale is to a Government and at 10% under Section 8 (2) (b) of the in the case of goods other than declared goods. In respect of declared goods under section 8(2) (a) of the shall be payable at twice the rate applicable to sale or purchase of such goods inside the appropriate State. In view of the provisions of Section 15 the State law can impose tax on sale of declared goods only at a rate not exceeding four per cent of the sale price and such tax also shall not be levied at more than one stage. If the tax has been levied under the State Law on declared goods and such goods are sold in the course of inter state trade and tax has been paid under the Central Sales Tax the tax levied under the State law shall be reimbursed to the person making such sale in the course of inter state trade. Section 8 (2A) of the is in the nature of an exception to these general provisions. That sub section reads as follows: "8(2 A) Notwithstanding anything contained in sub section (1 A) of section 6 or in sub section (1) of this section, tax payable under this Act by a dealer on this turnover in so far as the turnover or any part thereof relates to the sale of any goods, the sale of, as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than four per cent (whether called a tax or fee or by any other name), shall be nil or, as the case may be, shall be calculated at the lower rate. Explanation For the purpose of this sub section a sale or 209 Purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate State if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods". It may be seen from these provisions that Section 8 (2 A) of the does not have any overriding affect on the scheme of taxation relating to inter state sale of declared goods. There is also scope for the applicability of Section 6 (1 A) of the when the inter state sale takes place when the goods are in transit and is effected by transfer of documents of title to the goods during their movement from one State to another. There may be other instances also which may not affect the levy under section 6(1A) of the as in case where Section 8(2 A) of the was not applicable though the transaction was not taxable under the State law. Suffice it to say that only certain cases which would have been covered by Section 6(1 A) of the have been carved out for the purpose of exemption subject to the applicability of section 8 (2 A) of the . Section 6 (1 A) of the has not become otiose by reason of inclusion of that section in the non obstante clause in section 8(2 A). Both provisions, therefore, operate and they should not be read so as to nullify the effect of one another. On a plain reading of section 8(2 A) of the it deals with the liability of a dealer to pay tax under the Act on his inter state sales turnover relating to any goods on the turnover relating to such goods if the sale had taken place inside the State is exempt from payment of sales tax under the sales tax law of the appropriate State. It provides that if an intra state sale or purchase of a commodity by the dealer is exempted from tax generally or subject to tax generally at a rate which is lower than 4 per cent then his liability to tax under the when such commodity is sold on inter state trade would be either nil or as the case may be shall be calculated at the lower rate. Explanation states as to when the sale or purchase shall not be deemed to be exempt from tax generally under the sales tax law. That is to say an intra state sale or purchase of a commodity shall not be deemed as exempt from State tax generally if the exemption is given only (1) in specified circumstances or under specified conditions or (2) the tax is leviable on the sale or purchase of such goods at specified stages or (3) otherwise than with reference to the turnover of 210 the goods. These conditions or limitations are therefore with reference to the transaction of sale or purchase. The main clause deals with the turnover of `a dealer ' which the term would include `any dealer ' or `any class of dealers '. The existence or otherwise of the three limitations under the explanation above referred to on claiming exemption under section 8(2 A) of the will therefore, have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intra state sale of purchase of the same goods. Thus the specified circumstances and the specified conditions referred to in the explanation should be with reference to the local turnover of the same dealer who claims exemption under section 8(2 A) of the . The learned Advocate General for the state contended that the conditions that the industry should have been set up and commissioned subsequent to the Government orders 159 and 414 above referred to and the commodity sold by him in order to claim the exemption under the said Government order, shall be those manufactured by that industry are conditions or specified circumstances within the meaning of the explanation and, therefore, the dealer (Pine Chemicals) is not entitled to any exemption under section 8 (2 A) of the . We are unable to agree with this submission of the learned counsel for the state. The facts which the dealer has to prove to get the benefit of the Government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of those provisions. The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of which the exemption is claimed. These conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale. We have already held that not only sale by the manufacturer to dealer that is exempt under the Government orders but since the General Sales Tax Act had adopted only a single point levy, even the subsequent sales would be covered by the exemption order. Therefore, the question whether the tax is leviable on the sale or purchase at "specified stages" does not arise for consideration. This is not also a case where the exemption is with reference to some thing other than the turnover of the goods. In this connection we may refer to two decisions of this Court reported as Indian Aluminium Cables Ltd. & Anr. vs State of Haryana (38 211 STC 108) and Industrial Cables India Ltd. vs Assessing Authority. [1986] sup. SCC 695. The question for consideration in this case was whether the transaction of sale which would be covered by section 5 (2)(a) (iv) of the Punjab Sales Tax Act could be said to be exempt from tax generally within the meaning of section 8(2)(a) of the . Section 5 (2A) in effect provided that in determining the taxable turnover of a dealer his turnover on "(iv) sales to any undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the Indian Electricity Act, 1910(IX of 1910), of goods for use by it in the generation or distribution of such energy" is to be deducted. That is to say that the transaction covered by this clause are exempt from Punjab Sales Tax Act. As may be seen from the provision the two conditions relate to the purchaser company being a licensed undertaking supplying electrical energy to the public and the goods sold are for use by the said undertaking in generation or distribution of such energy. This court rejected the contention of the dealer that they are descriptive of the goods and not conditions and held that they are conditions under which exemption is granted and that therefore section 8(2A) of the was not attracted. As may be seen, the two conditions are attached to the sale of the dealer who is liable to pay sales tax. The description of the person who is to be the purchaser is not intended to identify the seller but relate to a condition of the sale being to a person of that description. The condition that the goods sold are for use by the licensed undertaking in the generation or distribution of electrical energy is again a condition attached to the sale and not identification of the goods . The goods are already identified. If the same goods had been sold to a person who is not a licensed undertaking and/or not for purposes of use in the generation or distribution of electrical energy the transaction would be liable to levy of tax under local Sales Tax Law. If the conditions specified are satisfied then that transaction which would have otherwise formed part of the taxable turnover is allowed to be deducted from the total taxable turnover. Clearly, therefore, they are specified circumstances or specified conditions within the meaning of the explanation to section 8(2A) of the and therefore cannot be treated as exempted from tax generally. There is also another judgment of this Court, namely, International Cotton Corporation (P) Ltd. vs Commercial Tax Officer & Ors., (35 STC 1) wherein they have generally considered the scope of section 8 (2A) of the . After a consideration of the arguments the learned Judges observed: 212 "Reading section 6(1 A) and section 8(2A) together along with the explanation the conclusion deducible would be this: Where the intra state sales of certain goods are liable to tax, even though only at one point, whether of purchase or of sale, a subsequent inter state sale of the same commodity is liable to tax, but where that commodity is not liable to tax at all if it were an intra state sale the inter state sale of a particular commodity is taxable at a lower rate than 3 per cent then the tax on the inter state sale of tax commodity will be at that lower rate. A sale or purchase of any goods shall not be exempt from tax in respect of inter state sales of those commodities if as an inter state sale the purchase or sale of those commodities is exempt only in specific circumstances or under specified conditions or is leviable on the sale or purchase at specified stages. On this interpretation section 6(A) as well as section 8 (2A) can stand together." In view of the pronouncement of this Court in above decisions and on our interpretation we do not consider it necessary to refer to the decisions of the High Courts cited at the bar. In the result we hold that the dealer "Pine Chemicals" is entitled to claim the benefit of exemption under G.O. 159 dated 26.3.1971 and G.O. 414 Ind. dated 25.8.1971 in respect of his turnover on inter state sales and the benefit of exemption is available for a period of five years from the commencement of commercial production. Mr. Verma learned counsel appearing for the State Government then contended that the said Government orders were superseded by SRO 80 dated 12.3.1982 (hereinafter referred to as SRO 80/82) and Vanaspati Ghee has been made liable to tax at the rate of eight per cent. The goods manufactured by M/s. Pine Chemicals are also made taxable as falling under the residuary item at the rate of 8 per cent. S.R.O. 80 dated 12th March, 1982 reads as follows: "In exercise of the powers conferred by sub section (1) of section 4 of the Jammu & Kashmir General Sales Tax Act, 1962 (XX of 1962) and in supersession of all the previous notifications issued on the subject, the Government hereby direct that the tax on the taxable turnover shall be payable at the rates specified in schedule A 1 to A XI annexed hereto : Further the Government, in exercise of the powers conferred by section 5 of the said Act and in supersession of all the previous notifications issued on the subject, hereby direct that the goods, 213 persons and classes of persons as specified in Schedule "B" annexed hereto shall be exempt from payment of tax leviable under said Act. Explanation: Nothing contained in schedule `B ' shall be deemed to exempt any goods specified in Schedule A I to A XI (both inclusive). This notification shall come into force with effect from 1 4 1982. By order of the Government of Jammu & Kashmir. " It then sets out the description of the goods and the rates at which they are taxable in Schedule A, Annexures I to XI. Items 1 to 3 schedule "A" Annexures IV, reads: SCHEDULE A IV Goods chargeable to tax at 8% 1. Hydrogenated vegetable oil (Vanaspati) and palm oil of all sorts. Lubricants. All goods other than items (1) & (2) above and those specified in other Schedules. x x x" In Schedule B goods except under section 5 of the General Sales Tax Act are set out. Vanaspati Ghee is not one of the items of goods exempted under Schedule B. The learned counsel for the appellants contended that the second paragraph in the SRO only superseded the `notification ' under Section 5 of the General Sales Tax Act made earlier and did not supersede and did not have the effect of superseding the Government orders made, in pursuance of policy decisions taken by the Cabinet, exempting from payment of tax as an incentive to the industries. In any case the exemption for five years granted under the said Government orders could not be withdrawn so far as the appellants are concerned both on the ground that SRO 80/82 was prospective in operation and also on the ground of promissory estoppel. 214 There could be no doubt that SRO 80/82 was prospective in operation. We have noticed in the earlier part of this judgment that the Government seems to have been following as a pattern that is in the case of incentives to industries the exemption orders had taken the form of a Government order. Government order 159 and 414 were also in pursuance of a Cabinet decision. SRO 80/82 though a Government notification under the Business Rules it is issued by the Ministry concerned. In the circumstances we have also a serious doubt whether the said incentives could have been superseded by the said SRO 80/82. In this connection we may also refer to Government order No. 54 Ind. of 1983 dated 26.2.1983 again an order made in pursuance of Cabinet decision which reads as follows: "CIVIL SECRETARIAT INDUSTRIES & COMMERCE DEPARTMENT GOVERNMENT OF JAMMU AND KASHMIR Incentives for development of Large/Medium/Small Scale and Tiny Sector Industries in Jammu & Kashmir. Cabinet Decision No. 57 dated 5.2.1983 GOVERNMENT ORDER NO. 54 IND OF 1983 Dated 26 2 1983 In supersession of all previous orders it is ordered that the package of incentives as per Annexure to this order will now be applicable to the existing and new Large Medium/Small Scale and Tiny Industrial Units. Such of the Industrial Units which have partly availed of the package of incentives, sanctioned under Government Order No. 391 Ind. of 1972 dated 21.6.1972 and subsequent orders issued in amplification thereof, as well as such units which have become entitled to the availment of the earlier package of incentives, shall have the option to get benefit under the new package of incentives, sanctioned hereunder, for the remaining period of their entitlement. 215 3. X X X 4. X X X 5. X X X 6. X X X By order of the Government of Jammu & Kashmir. J.A. Khan Secretary to Government Industries and Commerce Department. " The annexures to this order contain the incentives, benefits privileges and priorities given to large, medium and small scale industries and tiny industries. So far as sales tax payable by large and medium scale industries which is relevant for our purpose paragraph XII/XIII states as follows: "XII/XIII. GST/CST/Additional Toll Tax on SSI Units and Medium/Large Units: (i) No GST shall be charged on any raw material purchased by any industrial units except on items brought on a negative list. (ii) X X X (iii) X X X (iv) An equivalent amount of loan would be granted interest free to Medium and Large Units for a period of 10 years against GST/CST paid in the State, each installment of loan shall be recoverable in 7 years after a moratorium of 3 years, the total amount of tax loan at any point of time not to exceed 33% of capital investment or Rs. 25 Lakhs whichever is less. Penal rate of interest may be prescribed for delay in repayment of loan. (v) X X X (vi) X X X" 216 It may be seen that paragraph I of this order refers to `supersession of all previous orders ' and then speaks of package of incentives and then states as applicable to existing large and medium scale industries also. If SRO 80/82 had superseded G.O. 159 and 414 does it mean that this Government order has superseded SRO 80/82 and if that is so what are incentives available after SRO 80/82 to the existing industries? This Government order is thus consistent with the pattern followed and deals only with incentives to industries. In the second paragraph an option has been given to the industry which has not utilised the full benefit of the earlier exemption either to continue to enjoy the earlier exemption given by way of incentive or to opt for the scheme of incentive under the new Government order. Thus all, these provisions are consistent with the case of the appellants that neither SRO 80/82 superseded GO 159 and 414 nor Government order 54 dated 26.2.1983 took their right to continue to enjoy the exemption benefit for the total period of five years as provided in the said Government orders. The learned counsel for the appellants also contended that they are entitled to enjoy the benefit for the full period of five years both on law as also on the ground of estoppel. We have already noticed that in Bakhul Oil case (supra) this Court held that in the case of a grant of exemption without specifying any period for which the exemption is available the Government could withdraw the same at any time. Though in that case on facts no further question can arise since it was held that the dealer was not entitled to the benefit of the subsequent notification giving the exemption for a period of five years on the ground that the notification was prospective in operation and therefore not applicable to the dealer in that case, this Court made certain further observations to the effect that even in the case of exemption for a particular period it could be withdrawn at any time subject of course to the plea of estoppel. In Pournami Oil Mills case also the learned Judges appear to have given the benefit of exemptions for the full period even after the withdrawal on the basis that the industry was set up in pursuance of some representation made by the Government amounting to estoppel. In the present appeals also there are lot of materials to show that the Government made representations to industry that they would give tax exemptions and other incentives and invited entrepreneurs to establish their industries in J. & K. Relying on those representations each of these appellants have set up their industries. It is not necessary to set out these factual details in the judgment. Suffice it to say that we have carefully considered all the materials and are of the view that the appellants acting on the representations had set up their industries. Therefore they are entitled to claim the benefit of the exemption for the entire period of five years calculated 217 as per the terms of the Government orders, even if it were to be held that SRO 80/82 superseded the earlier exemption orders. It was then contended by Mr. Verma learned counsel appearing for the State that in the assessment order relating to Assessment Year 1981 82 for the period from 1.9.1981 to 30.8.1982 in the case of K.C. Vanaspati there is a finding that the assessee had collected sales tax in respect of their sales turnover for which the exemption is now claimed and that under section 8 B of the J&K General Sales Tax Act the said amount is refundable to the Government. As has already been seen there was an assessment order for the period covering from 2nd September, 1981 to 30th September, 1981 which was the subject matter of Writ Petition No. 52 of 1982. The same period merged in the assessment order 1.9.1981 to 30.8.1982 and consolidated assessment order was made and that was subject matter of Writ Petition No. 882 of 1984. Both these assessment orders were regular assessment orders and they are not section 8 B orders of the Local Act. They were made on the findings that Government Orders 159 and 414 above referred to are not exemption orders and the assessee could not be said to have acted upon any representation by the Government that they are exemption orders on the ground that if they had relied on those orders as exemption orders they would not have collected any tax in respect of their sales and that therefore the Government was not precluded by any principle of promissory estoppel from assessing their sales turnover. The assessees had challenged these assessment orders mainly on the ground that the Government orders were exemption orders and that in any case the State is precluded from levying any sales tax on the ground of promissory estoppel. The learned Judges of the High Court held, as already stated that, the said Government orders were not exemption orders but were only in the nature of declaration of intention to exempt the said industries from payment of sales tax and that the assessee had also not established any right for non payment of tax on any ground of promissory estoppel. For holding that the assessees could not be said to have relied on any representation from the Government that they would be exempted from payment of tax the learned Judges relied on the facts that the assessees had collected sales tax or the sales tax element had gone into the fixation of price of Vanaspati Ghee showing thereby that the appellants had not relied on any representation from the Government that their sales are exempt from payment of tax. Since the assessment orders were regular assessment orders on the ground that their sales are taxable sales the question of applicability of section 8 B of the local Act does not arise. That question arises in view of our finding that their sales turnover are exempt but still under section 8 B of the Local Tax they are liable to refund any money collected "by way of a tax". Since 218 neither the High Court had any occasion to decide this question of applicability of section 8 B of the Local Act on the basis that the sales turnover were exempt from payment of tax nor the assessing authorities had any opportunity to decide or made any order under section 8 B of the Local Act separately, we think that the entire question relating to the applicability of section 8 B of the Local Act and even the question whether there was any collection of sales tax will have to be left open. The learned counsel Mr. Verma strenuously contended that there is a finding in the assessment orders that the appellants had collected tax and that finding had not been either challenged or set a side by the High Court and that therefore they should be directed to refund the amount collected. We are not able to agree with this contention of the learned counsel. As already stated the assessment order itself was questioned in the writ petitions filed by the assessees. The High Court had proceeded on the basis that the Government orders are not exemption orders and that the Government also was not precluded from collecting tax on any ground of promissory estoppel and that therefore the question of applicability of section 8B of the Local Act did not arise before the High Court. It may be mentioned it is not the case of the State that they had collected any amount in excess of the percentage of sales tax i.e. collectable in respect of taxable Vanaspati sales. In the light of our findings that the sales were exempt the question now arises whether the assessees had collected any tax and whether the amount was collected by way of tax and whether any element of sales tax has merged in the fixation of the price and that amounts to collection of sales tax. These questions will have to be decided if the State considers that the assessees had collected sales tax, in separate proceedings that may have to be initiated under Section 8 B of the Local Act or when the State demands payment of the money under section 8 B of the Local Act. Suffice it so say that we are unable to agree with the observations of the learned Judges of the High Court that merely because in the balance sheet a reserve fund is made for payment of sales tax or on basis of a letter of Kashmir Vanaspati giving a break up of the sales price of Rs. 238 it can be said to be conclusively established that sales tax had been collected. Any way we do not want to say anything because the matter will have to be considered by the authorities concerned in case they want to invoke Section 8 B of the Local Act on the basis that the said government orders gave exemption from payment of sales tax in respect of these assessees for a period of five years as we have held. In this view we are also not going into the question as to the validity of section 8 B of the Local Act and we leave open that question which was outlined before us. Thus interpretation of section 8 B of the Local Act and the question of fact of collection and the liability to refund all have to wait till a demand is made by the competent authority for refund of the amounts 219 in exercise of their power under section 8 B of the Local Act. The assessees have made some deposits in pursuance of interim orders made by this Court pending the appeals. It is also stated that during the pendency some other amounts were also paid by the assessees in addition to the amounts paid as per the directions given by the Court. The refunds of this money and the liability of the State Government to pay any interest while refunding the deposits will all have to await the demand, if any, that may be made by the Government under section 8 B of the Local Act. However, we make it clear that the stay of refund of money collected as aforesaid will be only for a period of six months by which time the Department should initiate proceedings, if any, under Section 8 B of the Local Act, if so advised. To sum up : G.O. 159 Ind dated 26.3.1971 and G.O. 414 dated 25.8.1971 are exemption from payment of sales tax orders referable to the powers of the Government under Section 5 of the J & K General Sales Tax Act and that exemption covers the entire series was available only for a period of five years from the date of commissioning of the industries and not for ten years. The benefit of the exemption under the said Government orders are also available in respect of the inter State sales of the same commodities for a period of five years from the commencement of the commercial production. The appeals are accordingly allowed to the extent mentioned above. However, there will be no order as to costs. V.P.R. Appeal allowed.

The appellant a public limited company was manufacturing Rosin, Turpentine and Rosin Derivatives and was carrying on business at Bari Brahmana and Jammu Tawi. On 20.1.1981, the Assessing Authority assessed the appellant company under the , for the year ending 30.6.80. On 22.2.1981 an assessment order under section 10 of the Act was made. A penalty order was also made. The appellants challenged the order of the Assessing Authority before the High Court filing Writ Petition No. 87 of 1987, contending that they were exempt from payment of sales tax under the and the Jammu & Kashmir General Sales Tax Act, 1962, on the finished goods produced by them for a period of five years commencing from 8th November, 1979, in terms of the Government Orders No. 159 Ind. dated 26.3.1971 as amended by Government Order No. 414 Ind. dated 25th August, 1971 read with Section 8(2A) of the ; that the Government represented and announced a package of incentives for large and medium scale industries grant of exemption from sales tax both on the raw materials purchased by the industries and the sale of their finished products; and that the Government was estopped from charging sales tax. The High Court dismissed the Writ Petition holding that the two Government Orders were only declarations of an intention to exempt 181 from payment of sales tax and that they were not exemption notifications under section 5 of the General Sales Tax Act and that the appellants failed to prove the factual foundation for invoking the principle of promissory estoppel. Against the High Court 's decision by special leave C.A. No. 2309 of 1989 was filed by the appellant company. C.A. No. 2310 of 1989 The appellant company had filed a miscellaneous petition, after the judgement in the W.P.No. 87 of 1987 (the writ petition of the High Court against which C.A.No. 2309 of 1989 was filed) for permission to file reply affidavit on the ground of that the documents produced at the time of hearing needed explanation. The High Court dismissed the Misc. Petition as it was belated and the judgement in the writ petition was delivered relying on the materials placed on record. C.C.No. 3148 50 of 1989 The appellant partnership firm was manufacturing Vanaspati Ghee. It was assessed for the period from 2.9.1981 till 30.9.1981 under the Jammu & Kashmir General Sales Tax Act. The appellants moved the High Court in a writ petition (W.P.No. 52 of 1982) to quash the assessment order, contending that the Government order 159 Ind. dated 26.3.1971 as amended by Government Order 414 Ind. dated 25.8.1971 exempted the sales of the finished product of Vanaspati Ghee from sales tax and that the Government was estopped from collecting tax. When the Writ Petition (W.P.No. 52 of 1982) was pending an assessment order was made on 14.11.1984 for the assessment year ending 30th September, 1982, including the period 2nd September to 30th September, 1981 (which was questioned in W.P.No. 52 of 1982). The assessment order dated 14.11.1984 was challenged by the assessees appellants in the writ Petition No. 822 of 1984. During the pendency of the writ petitions certain other Government Orders were passed and certain assessment orders for the subse 182 quent periods were passed and those were questioned in the Writ Petition No. 711 of 1987. The assessees contended that Government Order No. 159 Ind. dated 26.3.1971 and Government Order 414 Ind. dated 25.8.1971 were exemption orders referable to section 5 of the Jammu & Kashmir General Sales Tax Act. The respondents contended that the said Government orders were not exemption orders section 5 of the General Sales Tax Act and that there was not factual foundation for the plea of promissory estoppel. The High Court dismissed all the three writ petitions by a common order, against which Civil Appeals 3148 50 of 1989 were filed. C.A.No. 3151 of 1989 : The appellant assessee filed a writ petition praying to quash certain notices issued under section 14 of the and for a declaration that the Vanaspati Ghee manufactured by them was exempt from payment of tax upto January, 1992, i.e., for a period of 10 years from the date from which they started their commercial production as per the Government Order 159 Ind. dated 26.3.1971 and Government Order No. 414 Ind. dated 25th August 1971 as orders exempting their goods from sales tax under Section 5 of the Jammu & Kashmir General Sales Tax Act. The Writ Petition was also dismissed against which C.A.No. 3151 of 1989 was filed by special leave. The assessee contended that the exemption from payment of tax was extended from 5 years to 10 years and the Government was bound to give the exemption for 10 years on the ground of promissory estoppel; that SRO 448 which superseded the exemption granted under the Govt. Orders was ultra vires and that the SRO 448 had no effect of superseding exemption granted under the G.O. 159 and 414; and that the exemption for 5 years granted under the Government Orders could not be withdrawn on the ground that SRO 80/82 was prospective in operation and also on the ground of promissory estoppel. The State contended that even if the sale of a particular commod 183 ity was exempted from payment of tax under the local Act, the dealer selling the same in inter state trade or commerce would be liable to pay Central Sales Tax under the provisions of Section 6(1A) of the ; that if Section 6(1A) of the was applicable to a particular transaction of sale, Section 8(2 A) of the General Sales Tax Act would not be applicable to that transaction; that the conditions that the industry should have been set up and commissioned subsequent to the Government Orders 159 and 414 and the commodity sold in order to claim the exemption under the Government Orders, should be those manufactured by that industry were the conditions or specified circumstances within the meaning of the Explanation and, therefore, the appellants in C.A.Nos. 2309, 2310/89 were not entitled to any exemption under Section 8(2 A) of the ; that the Government Orders were superseded by SRO 80/82 and Vanaspati Ghee was made liable to tax at the rate of 8 per cent; that the goods manufactured by the appellants in C.A.Nos. 2309, 2310/89 were also made taxable as falling under the residuary item at the rate of 8 per cent; that in the assessment order relating to Assessment Year 1981 82 for the period from 1.9.1981 to 30.8.1982 in the case of appellants in C.A. Nos. 3148 3150 of 1989 there was a finding that the assesses collected sales tax in respect of their sales turnover for which the exemption was now claimed and that under Section 8 B of the J&K General Sales Tax Act the said amount was refundable to the Government. As the questions, arose in these appeals were common, appeals were heard together and allowing the appeals of the assessees by a common judgment, this court, HELD :1. If power to do an act or act or pass an order can be traced to an enabling statutory provision, then often if that provisions is not specifically referred to, the act or order shall be deemed to have been done or made under the enabling provision. [194D] 2.1 Normally in the case of grant of tax exemption as an incentive to industry the exemption orders have generally taken the form of Government Order rather than a notification. But in the case of other exemptions though they are also under section 5 of the local Act (J&K General Sales Tax Act, 1962) they have taken the form of notification. [194G H] 2.2 The pattern followed in Jammu & Kashmir is that in respect 184 of exemptions from payment of taxes following Cabinet decision on Policy matters and incentive they have taken the form of a Government order. [194H 195A] 2.3 The Jammu & Kashmir General Sales Tax Act, 1962 itself makes a distinction requiring a notification to be made for certain purposes and the making of a Government order in respect of certain other purposes. Since there is no form prescribed in this behalf, if the particular order in effect is an exemption order, whether it takes the form of an order or notification makes no difference. [194F G] 2.4 From the publicity given to the Government Orders 159 and 414 by the Government, while inviting entrepreneurs to establish industries in Jammu & Kashmir and certain other communications to the parties, it is be understood that the Government orders 159 and 414 were treated as exemption orders satisfy all the requirements of the provisions of section 5 of the local Act. [195B C, 194E] 2.5 Even as an order of exemption the appellant will have to show that he had set up the industry in conformity with the intent of 1971 order and entitled in terms thereof to the exemption in respect of the goods manufactured by him. But that is not to say that after he establishes those facts the Government will have to make a separate order of exemption in relation to him. [201C D] 2.6 There is no prescribed form for granting exemption under section 5 of the Jammu & Kashmir General Sales Tax Act. There is also no prohibition against reference to any other matter or matters in exemption orders under section 5 of the General Sales Tax Act. If the incentives related also to other benefits or rights merely because they are included in the same Government Order does not make it any the less an exemption order so far as the exemption related to payment of sales tax. [202C D] 2.7 The High Court was in error in thinking that the exemption order should be specific in favour of the appellant. The exemption as can be seen from the provisions of section 5 of the Jammu & Kashmir General Sales Tax Act could be in respect of any class of dealers or any goods or class or description of goods. There could be an exemption to an individual also but the power of exemption is not restricted to such cases alone. It may refer to transactions of sale of a particular type of goods or class or description of goods or in respect of any class of 185 dealers or a combination of both. [201B] 3.1 `Will be granted exemption ' has the same meaning as `will be exempted ' and does not in any way show that it requires a further follow up action. [201G H] 3.2 The exemption is with reference to an industry which is to be established subsequent to the Government order. Therefore in that sense both expressions mean the same. [202A] 4. The notification issued on the 3rd of June 1971 in SRO 214 under section 23 of the Jammu & Kashmir Urban Immovable Property Tax Act, 1962, amending the Immovable Property Tax Rules, 1962 by inserting Rules 20 A was subsequent to GO 159 Ind. dated 26.3.1971. It was published on 25.3.1971 in the Government Gazette under section 23(1) for information of all persons likely to be affected thereby and any objection or suggestion which may be received in the Finance Department from any person with respect to the said draft before the said date will be considered by the Government. It is by reason of the fact that this draft rule has been published calling for objection the GO 159 Ind. itself stated that the grant of immovable property tax exemption would be available "as admissible under the Urban Immovable Property Taxation Rules". Thus on the day when the Government Order was made there was already the draft amendment rules, and, therefore, it could not be stated that the amendment was a follow up action in pursuance of the Government order. The Government order refers to the draft and says as per the amendment they will be entitled to the exemption. [202E 203B] 5.1 The only reference to 10 years was in the Finance Minister 's speech and in the Brochure dated September 1978. The Brochure only lists the concession and incentives available generally. It does not refer to any Government decision or Cabinet decision or any order of the Government. [203G H] 5.2 The Finance Minister 's statement made in March 1978 only refers to a proposal to continue the grant of exemption from payment of sales tax for a period of 10 years. This statement also is not unambiguous. It may mean that the benefits under the Government Orders 159 and 414 may be continued for another 10 years without withdrawing the same. This is merely a budget proposal which could 186 give rise to no right to the appellants. As no decision order or notifications is produced extending the period of exemption in relation to sales tax it is not possible to consider the claim of the appellants for exemption for 10 years on the ground of promissory estoppel. [204 B C] 6.1 The SRO No. 195 dated 31.3.1978 did not and could not supersede the exemption granted under the Government orders 159, 414. [205D] 6.2 When it stated in the amending notification SRO 448 dated 22nd October, 1982 that vanaspati and edible oils are taxable at the point specified therein it only means that those vanaspati and edible oils which are not exempted are taxable at the points specified in the Schedule. The Government order gave exemption only for five years from the date of commencement of the industry and those industries who had been manufacturing for more than that period and also those industries who were not entitled to the benefit of the said Government order would be liable to pay sales tax on the vanaspati manufactured by them and the said goods were liable to tax at the point specified in the Schedule. [205F G] 7.1 In the scheme of levy of single point taxation, the Government could fix any point in the series of sales for the Government have fixed the sale by the dealer, that if the second sale, as the taxable point no exception can be taken. In that sense no question of vires on the ground of lack of power would arise. [205H 206A] 7.2 Under section 4(1) of Jammu & Kashmir General Sales Tax Act the goods are taxable only once, that is it could be taxed only at one point of sale. The government orders 159 and 414 are exemption orders and exempt the sale by appellants of their manufactured products. The exemption would not arise unless the goods are taxable at the point of their sale. Thus the effect of exempting their sale is that the said goods manufactured by them could not be taxed at the second or subsequent sales also as that would offend section 4(1) which provides for single point levy. In cases where there are no exemption orders and the State fixed the second or subsequnt sale as point of taxation the first or prior or subsequent sales are not exempted sales but are not taxable sales. Therefore SRO 448 fixing he sale of vanaspati ghee by a dealer would not be applicable to vanaspati ghee manufactured by the appellants which are exempt under the Government orders. [206B D] 187 7.3 The goods manufactured by the Appellants are exempt under Government Orders 159 and 414 and that exemption covers entire series of sales of that very goods. [206D] 8.1 Under section 6(1) of the every dealer who sells goods in the course or inter state trade or commerce shall be liable to pay tax under that Act. A sale of goods shall be deemed to take place in the course of inter state trade or commerce if the sale occasions the movement of goods from one state to another or if effected by a transfer of documents of title to the goods during their movement from one State to another. [207D E] 8.2 In view of the provisions of Section 15 the State Law can impose tax on sale of declared goods only at a rate not exceeding four per cent of the sale price and such tax also shall not be levied at more than one stage. If the tax has been levied under the State Law on declared goods and such goods are sold in the course of inter state trade and tax has been paid under the Central Sales Tax the Law levied under the State law shall be reimbursed to the person making such sale in the course of inter state trade. [208C E] 8.3 Section 8(2 A) of the does not have any over riding effect on the scheme of taxation relating to inter State sale of declared goods. There is also scope for the applicability of section 6(1 A) of the when the inter state sale takes place when the goods are in transit and is effected by transfer of documents of title to the goods during their movement from one State to another. [209B C] 8.4 Only certain cases which would have been covered by section 6(1 A) of the have been carved out for the purpose of exemption subject to the applicability of section 8(2 A) of the . Section 6(1 A) of the has not become otiose by reason of inclusion of that section in the non obstante clause in section 8(2 A). Both provisions, therefore, operate and they should not be read so as to nullify the effect of one another. [209C E] 9. The facts which the dealer had to prove to get the benefit of the Government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought 188 to be exempted from payment of tax within the meaning of those provisions. The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of which the exemption is claimed. The conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale. [210D F] 10.1. SRO 80/82 was prospective in operation. The Government seems to have been following as a pattern that is in the case of incentives to industries the exemption orders had taken the form of a Government order. Government orders 159 and 414 were also in pursuance of a Cabinet decision. SRO 80/82 though a Government notification under the Business Rules it is issued by the Ministry concerned. In the circumstances there is also a serious doubt whether the said incentives could have been superseded by the SRO 80/82. [213H 214B] 10.2. In the case of a grant of exemption without specifying any period for which the exemption is available the Government could withdraw the same at any time. The appellants acting on the representations of the Government had set up their industries. Therefore they are entitled to claim the benefit of the exemption for the entire period of five years calculated as per the terms of the Government orders, even if it were to be held that SRO 80/82 superseded the earlier exemption orders. [216D E, 216G 217A] 11. Since the assessment orders were regular assessment orders on the ground that their sales are taxable sales the question of applicability of Section 8B of the local Act does not arise. That question arises in view of the finding that their sales turnover are exempt but still under section 8B of the Local Act, they are liable to refund any money collected "by way of tax". [217G H] Pournami Oil Mills & Ors. vs State of Kerala & Anr. , [1986] Supp. SCC 728; Bakul Oil Industries & Anr. vs State of Gujrat & Anr. , ; ; Assistant Commissioner of Commercial Taxes (Asstt), Dharwar & Ors. vs Dharmendra Trading Company and Ors., ; ; Indian Aluminium Cables Ltd. & Anr. vs State of Haryana, 38 STC 108; Industrial Cables India Ltd. vs Assessing Authority, [1986] Supp. SCC 695; International Cotton Corporation (P) Ltd. vs Commercial Tax Officer & Ors., 35 STC 1; referred to. 189

Civil Appeals Nos. 2221 2225, and 2524 of 1972. From the Judgment and orders dated the 18 11 71, 29 3 1972 and 5 2 1972 of the Delhi High Court in L.P. No. 53/71 and Civil Writ Petitions Nos. 612, 640, 643 and 649/71, 281/72 and 1052 of 1971 respectively. A.K. Sen, Sarjoo Prasad Balram Senghal and C. P. Lal for the Appellants in CAs 2221 2225/72 B. Sen, S.P. Nayar and M.N. Shroff for Respondents 2 3, (In CAs. 2221 2225/72) for Respondents 1 4 in.C.A. 1801). S.V. Gupte, Mrs. Leila Sait and U. K. Kaithan for Interveners (In CAs.2221 2225/72) and Appellants (In CAs.2524/72). M. C. Bhandare, Sardar Bahadur Saharya, B. N. Kirpal and V. B. Saharya for the Appellant in CA 1801/72. The Judgment of the Court was delivered by SARKARIA, J. Whether the Notification No. SRO 2908, dated December 7, 1957 issued by the Central Government in purported exercise of its powers under section 2 of the Union Territories (Laws) , is ultra vires the Central Government is the principal question that arises in these appeals which will be disposed of by a common judgment. The question has arisen in these circumstances: Section 2 of the Part States (Laws) Act, 1950, empowered the Central Government to extend by notification in the official Gazette to any Part State, or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State. In exercise of this power, the Central Government by a Notification No. SRO 615 dated the 28th April 1951, extended to the then Part State of Delhi, the Bengal Finance (Sales Tax) Act, 1941 (for short, the Bengal Act), with, inter alia, these modifications: "In sub section (2) of Section 6, (a)(b) for the words "add to the Schedule", the words "add to or omit or otherwise amend the Schedule" shall be substituted " For the Schedule of the Bengal Act, this Notification substituted a modified Schedule of goods exempted under section 6. The relevant items in the modified Schedule were as follows: "8.Fruits, fresh and dried (except when sold in sealed containers) Pepper, tamarind and chillies.Turmeric. Cloth of such description as may from time to time be specified by notification in the Gazette costing less per yard than Rs. 3/ or such other sum as may be specified. 21A. Knitting wool. " Section 6 of the Bengal Act after its extension to Delhi, as modified by the said Notification, reads thus : "6(1)No tax shall be payable under this Act on the sale of goods specified in the first column of the Schedule subject to the conditions and exceptions if any set out in the corresponding entry in the second column thereof. (2) The State Government after giving by Notification in the official Gazette not less than 3 months ' notice of its intention so to do may by like notification 790 add to or omit from or otherwise amend the Schedule and thereupon the Schedule shall be deemed to be amended accordingly." (emphasis supplied) By a Notification, dated 1 1 1951, in sub section (1) of section 6, the words "the first column of" were omitted and for the words "in the corresponding entry in the second column thereof" the word "therein" was substituted. By a notification country liquor was included in the Schedule as item No. 40 of exempted goods with effect from 19 1 1952. On 1 11 1956, as a result of the coming into force of the States Reorganization Act, 1956, and the Constitution (Seventh Amendment) Act, 1956, Part States were abolished. Part State of Delhi became a Union Territory and the Delhi Legislative Assembly, was also abolished. In 1956, Part State (Laws) Act, 1950 (hereinafter referred to as Laws Act) also became me , with necessary adaptations. On 1 12 1956, Parliament passed the Bengal Finance (Sales Tax) (Delhi Amendment) Act 1956 which introduced amendments in different sections of the Bengal Act as applicable to Delhi. It made only two changes in section 6 Firstly, the word 'Schedule ', wherever it occurred, was replaced by the words "Second Schedule". Secondly the words "Central Government" were substituted for the words "State Government". On December 7, 1951, in the Gazette of India Extraordinary there appeared a notifications which reads as below: "S.R.O. 3908 In exercise of the powers conferred by section 2 of the (30 of 1950), the Central Government hereby makes the following amendment in the notification of the Government of India in the Ministry of Home Affairs No. S.R.O. 615, dated the 28th April, 1951 (extending to the Union Territory of Delhi and the Bengal Finance (Sales Tax) Act, 1941, subject to certain modifications) namely : In the said notification, in the modifications to the Bengal Act aforesaid, in item 6 (relating to sub section (2) of section (6), after sub item (a), the following sub item shall be inserted, namely : "(aa) for the words "not less than three months ' notice," the words "such previous notice as it considers reasonable" shall be substituted". The vires of this notification dated 7 12 1957, is me subject of primary challenge in these appeals (hereinafter it will be referred to as the impugned notification). 791 Item 17 in the Second Schedule of the Bengal Act was amended with effect from December 14, 1957 by Notification No. SRO 3958, as under : "17. All varieties of cotton, woollen, rayon or artificial silk fabric but not including real silk fabrics". "Conditions subject to which tax shall not be payable: In respect of tobacco cotton fabrics, rayon or artificial silk fabrics and woollen fabrics as defined in item 9, 12, 12A, 12B at the First Schedule to the (I of 1944) included in entries (a) and (c) above, no tax under the Bengal Finance (Sales Tax) Act 1941, shall be payable in the Union Territory of Delhi only if additional duties of excise have been levied on them under the Additional Duties of Excise (Goods of Special Importance) Act 1957". The aforesaid condition was withdrawn by Notification No. GSR 203, dated 1 4 1958. By Notification No. GSR 202, dated 1 4 1958, the Central Government withdrew the exemption of country liquor from tax by omitting item No. 40 from the Second Schedule. By Notification No. GSR 1076 dated 19 9 1959, the Central Government withdrew the exemption from tax of Items, 8, 11, 14 and 21A by omitting them from the Second Schedule with effect from 1 10 1959. On 1 10 1959, the Bengal (Sales Tax Delhi Amendment) Act, 1959 (Act XX of 1959) came into force whereby Parliament made some amendments in different sections of the Bengal Act but left section 6 untouched. By a Notification No. GSR 964 dated 16 6 1966, notice was given that item 17 of the Second Schedule would be substituted with effect from 1 7 1966, as follows: "Item 17 All varieties, cotton, woollen, nylon, rayon, pure silk or artificial silk fabrics but excluding Durries, Druggets and carpets". The proposed amendment was given effect to from 1 7 1966, by Notification No. GSR 1061 dated 29 6 66. One result of this amendment was that exemption of Durries from tax was withdrawn, while, such exemption was among others, extended to 'pure silk '. By a Notification GSR 1038, dated 14 7 1970, notice was given that item 17 in the Second Schedule would be substituted with effect from 1 8 1970, as follows: "17.All varieties of cotton fabrics, rayon, or artificial silk fabrics and woollen fabrics but not including Durries, Druggets and carpets". 792 Such substitution of item 17 was made with effect from 1 8 70 by Notification GSR 1119 dated 31 7 1970. one result of this notification was that the exemption of 'pure silk ' from tax was withdrawn. The appellants in Civil Appeal No. 2221 of 1972 are dealers in durries. They feel aggrieved by the Notification GSR 1061 dated 29 6 1966 whereby exemption of Durries from sales tax was withdrawn. The appellants in Civil Appeals 2222, 2223 and 2225 of 1972 deal in knitting wool. Their cause of action arose when exemption of knitting wool was withdrawn by Notification dated 19 9 1959, w.e.f. 1 10 1959. The appellants in Civil Appeals 2524 of 1972 deal inter alia in pure silk. They are aggrieved by Notification, dated 31 7 1970 by which exemption of 'pure silk ' was withdrawn w.e.f. 1 8 1970. The appellants in Civil Appeal No. 2224 of 1972 is a Kiryana dealer. He feels aggrieved by the Notification dated 19 9 1959 whereby items 8, 11 and 14 were deleted from the Second Schedule with effect from 1 10 1959. The appellants in Civil Appeal No. 1801 of 1972 are licensed vendors of country liquor. They feel adversely affected by Notification GSR 1076, dated 19 9 1959 whereby exemption of country liquor from tax was withdrawn with effect from 1 10 1959. Several writ petitions were filed in the High Court to question the validity of the Government action withdrawing the exemptions with notice far less than three months. A learned Judge of the High Court allowed eight of these petitions by a common judgment recorded in Civil Writ 574 D of 1966, Lachmi Narain vs Union of India and others. Against that judgment, the Revenue carried appeals under Clause 10 of the. , to a Bench of the High Court. In the meanwhile more writ petitions (C. Ws.593 to 652, 792 to 806 of 1971) were instituted in which the same question was involved. The Division Bench, by a common judgment, allowed the appeals and dismissed the writ petitions. The writ petitioners have now come in appeal to this Court on the basis of a certificate granted by the High Court under Article 133 (1) (a) and (c) of the Constitution. In the High Court the validity of the withdrawal of the exemptions was challenged on these grounds : (I) The power given by section 2 of the Laws Act to the Central Government to extend enactments in force in a State to a Union Territory with such restrictions and modifications as it thinks fit, could be exercised only to make such modifications in the enactment as were necessary in view of the peculiar local conditions. The modification in section 6(2) of the BengaI Act made by SRO 3908, dated 793 7 10 1957, was not necessitated by this reason. It was therefore, ultra vires section 2 of the Laws Act; (2) Such a modification could be made only once when the Bengal Act was extended to Delhi in 1951. No modification could be made after such extension. (3) The modification could not change the policy of the legislature reflected in the Bengal Act. The impugned modification was contrary to it, and (4) The modifications giving notice to withdraw the exemptions and the notifications issued pursuant thereto withdrawing the exemptions from sales tax with respect to Durries, Ghee, (and other items relevant to these petitions) were void as the statutory notice of not less than three months as required by section 6(2) prior to its modification by the impugned notification of 7th December, 1957 had not been given. Finding on all the four grounds in favour of the writ petitioners, lie learned Single Judge declared "that the purported modification of section 6(2) of the Bengal Finance (Sales Tax) Act 1941 by the Government of India 's notification No. SRO 3908, dated 7th December, 1957, was ineffective and section 6(2) continues to be the same as before as if it was not so modified at all." In consequence he quashed the Government notifications GSR 964, dated 16 6 1966 and GSR 1061 dated 29 6 1966 because they were not in compliance with the requirement of section 6(2) of the Bengal Act. The contentions canvassed before the learned Single Judge were repeated before the appellate Bench of the High Court. The Bench did not pointedly examine the scope of the power of modification given to the Central Government by section 2 of the Laws Act with specific reference to the purpose for which it was conferred and its precise limitations. It did not squarely dispel the reasoning of the learned Single Judge that the power of modification is an integral part of the power of extension and "cannot therefore be exercised except for the purpose of the extension". It refused to accept that reasoning with the summary remark "from the extracts quoted by the learned Single Judge from the judgment of the Supreme Court in Re: Delhi Laws Act and from the Judgment in Rajnarain Singh vs The Chairman Patna Administration Committee Patna and Anr, the principle deduced by the learned Judge does not appear to follow. We are therefore not inclined, as at present advised to support the above observations". The Bench however hastened to add : "However, since the matter was not argued at great length and the appellants ' Counsel rested his submissions on the other aspects of the case, we would not like to express 794 any definite opinion on the question as to whether the power of making any modifications or restrictions in the Act can only be exercised at the time of extending the Act and that it cannot be done subsequently by the Central Government in exercise of its power." " Seeking support from the observations of this Court in Raza Buland Sugar Co. Ltd. vs Municipal Board, Rampur,(1) the Bench held that what is mandatory in section 6(2) is the requirement as to the giving of reasonable notice of the Government 's intention t(! amend the second Schedule, for the information of the public, and that "no special significance or sanctity is attached to the span of time of three months provided in subsection (2) of section 6." The Bench found that since the withdrawals of the exemptions in question, had been made after reasonable notice, the same were not invalid. However, the main ground on which the decision of the Bench rests is that the infirmity, if any, in the impugned notification dated 7 12 1957, had been cured and rectified when "Parliament while enacting the Amendment Act, 1959 (Act No. '70 of 1959) put its seal of approval to the curtailed period of notice. As such the curtailed period of notice shall be taken to have been provided by Parliament on the ratio of Supreme Court 's decision in Venkatrao Esajirao limberkar 's case". Apart from the grounds taken in their writ petitions, the learned Counsel for the appellants have tried to raise before us another ground under the garb of what they styled. as merely an additional argument". They now seek to challenge the vires of the Notification SRO 615, dated the 28th April, 1951 in so far as it relates to the insertion in sub section (2) of section 6 of that Act, between the words "add to" and "the Schedule", of the words "or omit or otherwise amend". It is argued that this insertion was beyond the power of modification conferred on the Central Government by section 2 of the Laws Act. The point sought to be made out is that if the insertion made by the Notification dated 28 4 1951, in sec.6(2) was ineffective and non est in the eye of law, the Central Government would have no power to "omit" anything from the exempted goods itemised in the Schedule. It is argued that under section 6(2) sans this insertion, the Central Government was empowered only to "add to" and not "omit" from the exempted items enumerated in the Schedule, and consequently, the withdrawal of the exemptions in question was ultra vires the Central Government. The entertainment of this Plea at this stage is stoutly opposed by Shri B. Sen, learned Counsel for the Revenue. We are not inclined to permit the appellants to add to the list of impugned Notifications, now in section appeal. In their writ petitions, the appellants did not challenge the validity of the Notification dated 28 4 51. They never raised this point before the learned 795 Single Judge. Of course, before the appellate Bench, an argument was addressed on this point, but it does not appear to have been pressed. The Bench noted: "In the present appeal, the Bengal Act as extended by SRO 615, dated the 28th April 1951, did not suffer from any infirmity. It is conceded by the learned Counsel for the respondent that the Central Government at the time it extended e the Bengal Act, was competent to introduce such modification and restrictions as it thought fit. The certificate under article 133 of the Constitution was neither sought, nor granted on any ground touching the validity of the Notification, dated 28 4 1951. In the face of all this, it is now too late for the appellants to commit a volte face. Accordingly, we decline to entertain this new ground of challenge. The learned Counsel for the parties have, more or less, reiterated the same contentions which they had advanced in the High Court. On behalf of the appellants, it is contended that the power of modification conferred on the Central Government by section 2 of the Laws Act is not an unfettered power of delegated legislation but a subsidiary power conferred for the limited purpose of extension and application to a Union Territory, an enactment in force in a State. It is maintained that only such modifications are permissible in the exercise of that power which are necessary to adapt and adjust such enactment to local conditions. According to Shri Ashok Sen, the power given by section 2 is a power of conditional legislation which is different from the power of delegated legislation. It is submitted that it is not a recurring power; it exhausts itself on extension, and in no case this power can be used to change the basic scheme and structure of the enactment or the legislative policy ingrained in it. The submission is that the impugned notification, dated 7 12 1957, is bad because it has been issued more than 61 years after the extension of Bengal Act, and it attempts to change the re rquirement of section 6(2) as to "not less than three months notice" which P is the essence of the whole provision. Reference has been made to this Court 's opinion in Re: Delhi Laws Act (supra) and the decision in Raj Narain Singh case (supra). Shri Ashok Sen further submits that by the amending Act 20 of 1959, parliament did not put its seal of approval on the impugned notification or the changes sought to be made by it in section 6 of the Bengal Act. It is stressed that the amending Act of 1959, did not touch section 6 at all and therefore it could not be said with any stretch of imagination, that Parliament had referentially or impliedly incorporated or approved the purported change made by the impugned notification, in the Bengal Act. As against the above, Shri B. Sen, the learned Counsel for the Revenue submits that the impugned notification does not change the essential structure or the policy embodied in section 6(2) of the Bengal Act. 796 According to Counsel, the policy underlying section 6(2) is that reasonable notice of the Government 's intention to add to or omit anything from the Second Schedule must be given by publication in the official Gazette. It is maintained that the requirement as to "not less than three months ' notice" in the section was not a matter of policy but one of detail or expedience; it was only directory, and the modification made by the impugned notification did not go beyond adjusting and adapting it to the local conditions of Delhi. Bengal, it is pointed out, is a big, far flung State while the Territory of Delhi is a small, compact area and therefore, it would not be necessary or unreasonable to give a notice of less than three months for every amendment of the Schedule. Reliance has been placed on this Court 's dictum in Raza Buland Sugar Co. 's case (supra). It is argued that the power to add or omit from the Second Schedule conferred on the Government is in consonance with the accepted practice of the Legislature; that it is usual for the legislature to leave a discretion to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be levied or rates at which it is to be charged in respect of different classes of goods and the like. Reference has been made to the observations of this Court in Pt.Benarsi Das Bhanot vs State of Madhya Pradesh in the context of section 6(2) of the Central Provinces and Berar Sales Tax Act 1947. Shri B. Sen further contends that the power of modification given by section 2 of the Laws Act, does not exhaust itself on first exercise; it can be exercised even subsequently if through oversight or otherwise, at the time of extension of the enactment the Central Government fails to adapt or modify certain provisions of the extended enactment for bringing it in accord with local conditions. In this connection support has been sought from the observations of Fazal Ali J. at p. 850 of the Report in Re: Delhi Laws Act (supra). Our attention has also been invited to section 21 of the General Clauses Act which according to Counsel, gives power to the Central Government to add to, amend, vary or rescind any notification etc if the power to do so does not run counter to the policy of the legislature or affect any change in its essential features. Learned Counsel has further tried to support the reasoning of the appellate Bench of the High Court, that whatever infirmity may have existed in the impugned notification and the modification made there by in section 6(2), it was rectified and cured by Parliament when it passed the Amendment Act 20 of 1959. It is urged that the Bengal Act together with the modifications made by notifications, dated 28 4 51, and 7 12 1957, must have been before Parliament when it considered and passed the Amendment Act of 1959. Our attention has been invited to its preamble which is to the effect: "An Act further to amend the Bengal Finance (Sales Tax) Act, 1941, as in force in the Union Territory of Delhi," and also to the words "as in forcer in the Union Territory of Delhi" in section 2 of the amending Act. :Reference has been made to this Court 's decisions in Venkatrao Esajirao 's case (supra), and Gwalior Rayon Silk Mfg.(Wvg.) Co. Ltd. The Assistant Commissioner of Sales tax and ors. 797 An alternative argument advanced by Shri B. Sen is that if in section 6(2) the requirement as to "not less than three months ' notice" was mandatory and a matter of legislative policy, then the exemptions from tax granted to Durries, pure silk etc.after the issue o the impugned notification must be treated non est and void ab initio, inasmuch as the amendments of the Second Schedule whereby those exemptions were granted, were made without complying with the requirement of not less than three months ' notice". It is argued that if this requirement was a sine qua non for amendment of the Second Schedule, it could not be treated mandatory in one situation and directory in another. If it was mandatory then compliance with it would be absolutely necessary both for granting an exemption and withdrawing an exemption from tax. In this view of the matter, according to Shri B. Sen, the withdrawal of the exemption through the impugned notification was a mere formality; the notifications simply declared the withdrawal of something which did not exist in the eye of law. Appellants cannot therefore have any cause of grievance if the invalid and still born exemptions were withdrawn by the questioned notifications. In reply to this last argument, learned Counsel for the appellants submit that this ground of defence was not pleaded by the Revenue in its affidavit before the learned Single Judge. This, according to the Counsel, was a question of fact which required evidence for its determination, and was therefore required to be pleaded. Since the Respondents did not do so, they should not have been allowed to take it for the first time at the time of arguments. Even otherwise proceeds the argument the Respondents are not competent to take this stand which is violative of the basic canon of natural justice, according to which no party can be allowed to take advantage of its own wrong. It is stressed that the object of the requirement of not less than three months ' notice, was to afford an opportunity to persons likely to be adversely affected to raise objections against the proposed withdrawal or curtailment of an exemption from tax. That being the case, only the persons aggrieved could have the necessary locus standi to complain of a non compliance with this requirement. In Re: Delhi Laws (supra) this Court inter alia examined the constitutional validity of section 2 of the Laws Act in the light of general principles relating to the nature, scope and limits of delegated legislation. Section 2 as it then stood, was as follows: "The Central Government may, by notification in the official Gazette, extend to any Part State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State with such restrictions and modifications as it thinks fit any enactment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendments of any corresponding law (other than a Central Act) which is for the time being applicable to that Part State. " The Court by a majority held that the first part of this section which empowers the Central Government to extend to any Part State or to any part of such State with such modifications and restrictions as it 798 thinks fit any enactment which is in force in a Part A State, is intra vires, and that the latter part of this section which empowers the Central Government to make provision in any enactment extended to a Part State, for repeal or amendment of any law (other than a Central Act) which is for the time being applicable to that Part State, is ultra vires. Consequent upon this opinion, the latter part of the section was deleted by section 3 of the Repealing and Amending Act, 195 (Act XLVIlI of 1952) with effect from 2 8 1951. The majority opinion in upholding the validity of the first portion of section 2 of the Laws Act drew a good deal from the observations of the Privy Council in Queen vs Burah wherein it was said: "If what has been done is legislation within the general scope of the affirmative words which give the power and if it violates no express condition or restrictions by which that power is limited. it is not for any court of justice to enquire further or to enlarge constructively those conditions and restrictions". "Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships judgment) be well exercised, either absolutely or conditionally. Legislation conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the legislature to persons in whom it places confidence, is no uncommon thing; and, in any circumstances it may be highly convenient." (emphasis supplies) Before proceeding further, it will be proper to say a few words in regard to the argument that the power conferred by section 2 of the Laws Act is a power of conditional legislation and not a power of delegated legislation. In our opinion, no useful purpose will be served to pursue this line of argument because the distinction propounded between the two categories of legislative powers makes no difference, in principle. In either case, the person to whom the power is entrusted can do nothing beyond the limits which circumscribe the power; he has to act to use the words of Lord Selborne "within the general scope of the affirmative words which give the power" and without violating any "express conditions or restrictions by which that power is limited". There is no magic in a name. Whether you call it the power of "conditional legislation" as Privy Council called it in Burah 's case (supra) or 'ancillary legislation ' as the Federal Court termed it in Choitram vs Commissioner of Income tax, Bihar or 'subsidiary legislation ' as Kania C.J. styled, it or whether you camouflage it under the veiling name of 'administrative or quasi legislative power ' as Professor Cushman and other authorities have done it necessary for 799 bringing into operation and effect an enactment, the fact remains that it has a content, howsoever small and restricted of the law making power itself. There is ample authority in support of the proposition that the power to extend and carry into operation an enactment with necessary modifications and adaptations is in truth and reality in the nature of a power of delegated legislation. In Re: Delhi Laws Act (supra) S.R. Das J. said that on strict analysis it was "nothing but a delegation of a fractional legislative power". Anglin J. in Grays case regarded this what is called conditional legislation ' as "a very common instance of limited delegation. More or less to the same effect is the view taken by Evatt J. of Australia in Dignams case. Prof. Kennedy (vide his treatise 'Constitution of Canada ', 2nd Edn.p. 463), is also of opinion that 'conditional legislation ' is "a form of delegation". We do not want to multiply authorities nor wish to carry this academic discussion to a final conclusion because it is not necessary for solution of the problem in hand. In the instant case, the precise question with which we are faced is whether the purported substitution of the words "such previous notice as is considers reasonable" for the words "not less than three months notice" in section 6(2) by the impugned notification dated 7th December, 1957, was in excess of the power of 'modification ' conferred on the Central Government by section 2 of the Laws Act. This question has to be answered in the light of the principles enunciated by this Court in Re: Delhi Laws Act relating to the nature and scope of this power. Out of the majority who upheld the validity of this provision of section 2 of the Laws Act, with which we are concerned, Fazal Ali J. explained the scope of the words "much modifications as it thinks fit" in section 2, thus: "These are not unfamiliar words and they are often used by careful draftsmen to enable laws which are applicable to one place or object to be so adapted as to apply to another. The power of introducing necessary restrictions and modifications is incidental to the power to apply or adapt the law, and in the context in which the provision as to modification occurs it cannot bear the sinister sense attributed to it. The modifications are to be made within the framework of the Act and they cannot be such as to affect its identity or structure or the essential purposes to be served by it. The power to modify certainly involves a discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes." Vivian Bose J. also observed in a similar strain, at p. 1124; 800 "The power to "restrict and modify" does not import the power to make essential changes. It is confined to alterations of a minor character such as are necessary to make an Act intended for one area applicable to another and to bring it into harmony with laws already in being in the State, or to delete portions which are meant solely for another area. To alter the essential character of an Act or to change it in material particulars is to legislate, and that, namely, the power to legislate, all authorities are agreed, cannot be delegated by a legislature which is not unfettered." Mukherjea J. was of the view that the "essential legislative function" which consists in the determination or choosing of the legislative policy and of formally enacting that policy into a "binding rule of conduct" cannot be delegated. Dealing with the construction of the words "restrictions" and "modification" in the Laws Act, the learned Judge said" at pages 1004 10O6: "The word "restrictions" . connotes limitation imposed on a particular provision so as to restrain its application or limit its scope, it does not by any means involve any change in the principle. It seems to me that in the context and used alongwith the word "restriction" the word " 'modification" has been employed also in a cognate sense, and it does not involve any material or substantial alteration. The dictionary meaning of the expression "to modify" is to "tone down" or to "soften true rigidity, of the thing" or "to make partial changes without any radical alteration". It would be quite reasonable to hold that the word "modification" in section 7 of the Delhi Laws Act (which is almost identical with the present section 2, Laws Act) means and signifies changes of such character as are necessary to make the statute which is sought to be extended able to the local conditions of the province. I do not think that the executive Government is entitled to change the whole nature or policy underlying any particular Act or to take different portions from different statutes and prepare what has been described before us as "amalgam" of several laws. these things would be beyond the scope of the section itself." (emphasis supplied). S.R. Das J. (as he then was) delineated the scope of the power of "modification" given under section 7 of the (for short the Delhi Act) at p. 1089 as follows: "It may well be argued that the intention of section 7 of the was that the permissible modifications were to be such as would, after modification, leave the general character of the enactment intact. One of the meanings of the word "modify" is given in the oxford Dictionary Vol.I, page 1269 as "to alter without radical transformation". If this meaning is given to the word "modification" in section 7 of the then the modifications contemplated 801 thereby were nothing more than adaptations which were included in the expressions mutatis mutandis and the "restrictions, limitations or proviso" mentioned in the several instances of conditional legislation referred to by the Privy Council (in Burah 's case). It is to be noted that the language of s.7 of the Delhi Act was substantially the same as that of the first portion of section 2 of the Part C State Laws Act, as it then stood. What Das J. said about the scope of "restrictions and modifications" in the context of section 7 of the Delhi Act substantially applies to the ambit and meaning of these words occurring in section 2 of the Laws Act. Again, in Rajnarainsingh 's case (supra), Vivian Bose J. speaking for the Court, summed up the majority view in regard to the nature and scope of delegated legislation in Re: Delhi Laws (supra), thus: "In our opinion the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above: it cannot include a change of policy". Bearing in mind the principles and the scope and meaning of the expression "restrictions and modifications" explained in , let us now have a close look at section 2. It will be clear that the primary power bestowed by the section on the Central Government, is one of extension, that is, bringing into operation and effect, in a Union Territory, an enactment already in force in a State. The discretion conferred by the Section to make 'restrictions and modifications ' in the enactment sought to be extended, is not a separate and independent power. It is an integral constituent of the powers of extension. It cannot be exercised apart from the power of extension. This is indubitably clear from the preposition "with" which immediately precedes the phrase "such restrictions and modifications" and conjoins it to the principal clause of the section which gives the power of extension. According to the Shorter Oxford Dictionary, one meaning of the word "with", (which accords here with the context), is "part of the same whole". The power given by section 2 exhausts itself on extension of the enactment; it cannot be exercised repeatedly or subsequently to such extension. It can be exercised only once, simultaneously with the extension of the enactment. This is one dimension of the statutory limits which circumscribe the power. The second is that the power cannot be used for a purpose other than that of extension. In the exercise of this power, only such "restrictions and modifications" can be validly engrafted in the enactment sought to be extended, which are necessary to bring it into operation and effect in the Union Territory. "Modifications" which are not necessary for, or ancillary and subservient to the purpose 802 of extension, are not permissible. And, only such "modifications" can be legitimately necessary for such purpose as are required to adjust, adapt and make the enactment suitable to the peculiar local conditions of the Union Territory for carrying it into operation and effect. In the context of the section, the words "restrictions and modifications" do not cover such alterations as involve a change in any essential feature, of the enactment or the legislative policy built into it. This is the third dimension of the limits that circumscribe the power. It is true that the word "such restrictions and modifications as it thinks fit", if construed literally and in isolation, appear to give unfettered power of amending and modifying the enactment sought to be extended. Such a wide construction must be eschewed lest the very validity of the section becomes vulnerable on account of the vice of excessive delegation. Moreover, such a construction would be repugnant to the context and the content of the section, read as a whole, and the statutory limits and conditions attaching to the exercise of the power. We must, therefore, confine the scope of the words "restrictions and modifications" to alterations of such a character which keep the inbuilt policy, essence and substance of the enactment sought to be extended, intact, and introduce only such peripheral or insubstantial changes which are appropriate and necessary to adapt and adjust it to the local conditions of the Union Territory. The impugned notification, dated 7 12 1957, transgresses the limits which circumscribe the scope and exercise of the power conferred by section 2 of the Laws Act, at least, in two respects. Firstly, the power has not been exercised contemporaneously with the extension or for the purposes of the extension of the Bengal Act to Delhi. The power given by section 2 of the Laws Act had exhausted itself when the Bengal Act was extended, with some alterations, to Delhi by Notification dated 28 4 1951. The impugned notification has been issued on 7 12 1957, more than 6 1/2 years after the extension. There is nothing in the opinion of this Court rendered in Re: (supra) to support Mr. B. Sen 's contention that the power given by section 2 could be validly exercised within one year after the extension. What appears in the opinion of Fazl Ali J. at page 850, is merely a quotation from the report of the Committee on Minister 's Powers which considered the propriety of the legislative practice of inserting a "Removal of Difficulty Clause" in Acts of British Parliament, empowering the executive to modify the Act itself so far as necessary for bringing it into operation. This device was adversely commented upon. While some critics conceded that this device is "partly a draftsman 's insurance policy, in case he has overlooked something" (e.g. Sir Thomas Carr, page 44 of his book "Concerning English Administrative Law"), others frowned upon it, and nicknamed it as "Henry VIII Clause" after the British Monarch who was a notorious personification of absolute despotism. It was in this perspective that the Committee on Minister 's Powers examined this practice and recommended: 803 ". first, that the adoption of such a clause ought on each occasion when it is, on the initiative of the Minister in charge of the Bill, proposed to Parliament to be justified by him upto the essential. It can only be essential for the limited purpose of bringing an Act into operation and it should accordingly be in most precise language restricted to those purely machinery arrangements vitally requisite for that purpose; and the clause should always contain a maximum time limit of one year after which the power should lapse". It may be seen that the time limit of one year within which the power under a Henry VIII Clause should be exercisable, was only a recommendation, and is not an inherent attribute of such power. In one sense, the power of extension cum modification given under section 2 of the Laws Act and the power of modification and adaptation conferred under a usual 'Henry VIII Clause, ' are kindred powers of fractional legislation, delegated by the legislature within narrow circumscribed limits. But there is one significant difference between the two. While the power under section 2 can be exercised only once when the Act is extended, that under a 'Henry VIII Clause ' can be invoked, if there is nothing to the contrary in the clause more than once, on the arising of a difficulty when the Act is operative. That is to say, the power under such a Clause can be exercised whenever a difficulty arises in the working of the Act after its enforcement, subject of course to the time limit, if any, for its exercise specified in the statute. Thus, anything said in Re: (supra), in regard to the time limit for the exercise of power under a 'Henry VIII Clause ', does not hold good in the case of the power given by section 2 of the Laws Act. Fazl Ali J., did not say anything indicating that the power in question can be exercised within one year of the extension. On the contrary, the learned Judge expressed in unequivocal terms, at page 849: "Once the Act became operative any defect in its provision cannot be removed until amending legislation is passed." Secondly, the alteration sought to be introduced by this Notification (7 12 1957) in section 6(2), goes beyond the scope of the 'restrictions and modifications ' permissible under section 2 of the Laws Act; it purports to change the essential features of sub section (2) of section 6. and the legislative policy inherent therein. Section 6(2), as it stood immediately before the impugned notification, requires the State Government to give by Notification in the Official Gazette "not less than 3 months notice" of its intention to add to or omit from or otherwise amend the Second Schedule. The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law maker as expressed in the law, itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of 'must ' instead of "shall", that will itself be sufficient to hold 804 the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory (Crawford, the Construction of Statutes pp.523 24). Here the language of sub section (2) of section 6 is emphatically prohibitive, it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than three months. In fixing this period of notice in mandatory terms, the legislature had, it seems taken into consideration several factors. According to the scheme of the Bengal Act, the tax is quantified and assessed on the quarterly turnover. The period of not less than three months notice conforms to that scheme and is intended to ensure that imposition of a new burden or exemption from tax causes least dislocation and inconvenience to the dealer in collecting the tax for the Government, keeping accounts and filing a proper return, and to the Revenue in assessing and collecting the same. Another object of this provision is that the public at large and the purchasers on whom the incidence of the tax really falls, should have adequate notice of taxable items. The third object seems to be that the dealers and others likely to be affected by an amendment of the Second Schedule may get sufficient time and opportunity for making representations, objections or suggestions in respect of the intended amendment. The dealers have also been ensured adequate time to arrange their sales adjust their affairs and to get themselves registered or get their licenses amended and brought in accord with the new imposition or exemption. Taking into consideration all these matters, the legislature has in its judgment solemnly incorporated in the statute, fixed the period of the requisite notice as "not less than three months" and willed this obligation to be absolute. The span of notice was thus the essence of the legislative mandate. The necessity of notice and the span of notice both are integral to the scheme of the provision. The sub section cannot therefore be split up into essential and non essential components, the whole of it being mandatory. The rule in Raza Buland Sugar Co. 's case (supra) has therefore no application. Thus section 6(2) embodies a determination of legislative policy and its formulation as an absolute rule of conduct which could be diluted, changed or amended only by the legislature in the exercise of its essential legislative function which could not, as held in Re: (supra) and Rajnarainsingh 's case (supra) be delegated to the Government. For these reasons we are of opinion that the learned single Judge of the High Court was right in holding that the impugned notification was outside the authority of the Central Government as a delegate under section 2 of the Laws Act. Before proceeding further, we may mention here in passing that the point for decision in Benarsi Das Bhanot 's case (supra) relied on by the Division Bench of the High Court, was different from the one 805 before us. There, the constitutional validity of section 6(2) of the Central Provinces and Berar Sales Tax Act, 1947, was questioned on the ground of excessive delegation. In the instant case the validity of section 6(2) of the Bengal Act, as such is not being impeached. There is yet another facet of the matter. By the impugned notification, the Central Government did not directly seek to amend section 6(2). Perhaps it was not sure of its competence to do so more than 6 1/2 years after the extension of Bengal Act to Delhi. It therefore chose to amend section 6(2) indirectly through the amendment of its earlier notification dated 28 4 51, which was only a vehicle or instrument meant for extension of the Bengal Act to Delhi. On such extension, the notification had exhausted its purpose and had spent its force. It had lost its utility altogether as an instrument for modification of the Bengal Act. Therefore, the issue of the impugned notification which purported to amend section 6(2) through the medium of a "dead" notification, was an exercise in futility. In any case, an amendment which was not directly permissible could not be indirectly smuggled in through the back door. We now turn to the main ground on which the judgment of the appellate Bench of the High Court rests. The question is, was the invalidity from which the impugned notification, dated 7 12 1957, suffered cured by the Amendment Act of 1959 ? The Bench seems to think that by passing this Amendment Act, Parliament had put its seal of approval on the Bengal Act as it stood extended and amended by the Notifications of 1957 and 1957. We find no basis for this surmise. This Amendment Act leaves section 6(2) untouched; it does not even indirectly, refer to the impugned notification or the amendment purportedly made by it in section 6(2). Nor does it re enact or validate what was sought to be achieved by the impugned Notification. No indication of referential incorporation or validation of the impugned notification or the amendment sought to be made by it, is available either in the preamble or in any other provision of the Amendment Act. In Krishna Chandra vs Union of India,(1) relied upon by the learned Counsel for the Respondents, the central issue for consideration was, whether R. 20(2) framed by the Bihar Government under section 15 of the and the second proviso to section 10(2) of the Bihar Land Reforms Act, 1950 were constitutionally valid. By the combined operation of these statutory provisions, the petitioners therein were called upon to pay certain rent and royalties in respect of mining operations. Those demands were challenged in Baijnath Kedia vs State of Bihar(2) wherein this Court held that the Bihar legislature had no jurisdiction to enact the second proviso to section 10(2) of the Bihar Act because section 15 of the Central Act, read with section 2 thereof, had appropriated the whole field relating to mining minerals for Parliamentary legislation. The upshot of that decision was, that the action taken by the 806 Bihar Government in modifying the terms and conditions of the leases which were in existence anterior to the Rules and the levy sought to be made on the strength of the amended Bihar Act and Rule, were unsustainable. Thereupon the State persuaded Parliament to enact the Validation Act of 1969 with a view to remove the road blocks which resulted in the decision in Kedia 's case (supra). Section 2 of the Validation Act runs thus: "Validation of certain Bihar State laws and action taken and things done connected therewith. (1) The laws specified in the Schedule shall be and shall be deemed always to have been, as valid as if the provisions contained therein had been enacted by Parliament. (2) Notwithstanding any judgment, decree or order of any court, all actions taken, things done, rules made, notification issued or purported to have been taken, done, made or issued and rents or royalties realised under any such laws shall be deemed to have been validly taken, done, made, issued or realised, as the case may be, as if this section had been in force at all material times when such action was taken, things were done, rules were made, notifications were issued, or rents or royalties were realised, and no suit or other proceeding shall be maintained or continued in any court for the refund of rents or royalties realised under any such laws. (3) For the removal of doubts, it is hereby declared that nothing in sub section (2) shall be construed as preventing any person from claiming refund of any rents or royalties paid by him in excess of the amount due from him under any such laws. " The precise question before the Court was, whether a statute or a rule earlier declared by the Court to be unconstitutional or otherwise invalid can be retroactive through fresh validating legislation enacted by the competent legislature. Answering this question in the affirmative, this Court, speaking through Krishna Iyer, J. observed: "where Parliament having power to enact on a topic actually legislates within its competence but, as an abbreviation of drafting, borrows into the statute by reference the words of a State Act not qua State Act but as a convenient shorthand, as against a longhand writing of all the sections into the Central Act, such legislation stands or falls on Parliament 's legislative power, vis a vis the subject viz., mines and minerals. The distinction between the two legal lines may sometimes be fine but always is real. 807 If Parliament has the power to legislative on the topic, it can make an Act on the topic by any drafting means, including by referential legislation." "Taking a total view of the circumstances of the Validation Act Parliament did more than simply validate an invalid law passed by the Bihar Legislature but did reenact it with retrospective effect in its own right adding an amending Central Act to the statute book. " The position in the instant case is entirely different. Here, Parliament despite its presumed awareness of the impugned Notification, has said nothing in the Amending Act of 1959, indicating that it (Parliament) has by 'longhand ' or 'shorthand ' method incorporated, re enacted or validated the impugned notification or the amendment sought to be made thereby, while passing the Amendment Act, 1959. The appellate Bench was therefore in error in holding that Parliament had validated or re enacted referentially with retrospective effect what was sought to be done by the impugned notification, when it passed the Amending Act, 1959. The High Court has tried with the aid of this Court 's decision in Venkatrao vs State of Bombay (supra) to spell out the proposition that mere amendment of an Act by a competent legislature, amounts to re enactment of the parent Act. We find nothing in this Court 's decision in Venkatrao 's case which warrants the enunciation of such a sweeping rule. All that was decided in Venkatrao 's case was that the assent given by the President to the Amending Act would be deemed to be an assent accorded to the parent Act, also. The decision in Venkatrao 's case therefore does not advance the case of Shri B. Sen. Shri B. Sen 's alternative argument that the notifications whereby the exemptions from tax have been withdrawn in regard to Durries, pure silk, country liquor etc. are not assailable because those exemptions were earlier granted without giving three months ' notice, is manifestly unsustainable. Firstly, so far as fruits, fresh and dried (item 8), Pepper, tamarind and chillies (item 11), Turmeric (item 14), ghee (item 16), and knitting wool, (item 21A) are concerned, they were exempted goods in the Schedule of the Bengal Act, as modified and extended by the Notification, dated 28 4 1951, to Delhi. No question of giving notice for granting these exemptions therefore arose. Secondly, the validity of the notifications whereby exemptions were granted to pure silk, liquor etc.after the extension of the Bengal Act to Delhi is not in issue. This plea was not set up by the Respondents in their affidavits. Whether or not notice for the requisite period was given before issuing the exemption notifications, was a question of fact depending on evidence. Thirdly, to allow the Respondents to take their stand on such a plea would be violative of the fundamental principle of natural justice, according to which, a party cannot be allowed to take advantage of its own lapse or wrong. The statute 808 has imposed a peremptory duty on the Government to issue notice of not less than three months, of its intention to amend the Second Schedule. It therefore cannot be allowed to urge that since it had disobeyed this mandate on an earlier occasion when it granted the exemptions it can withdraw the exemptions in the same unlawful mode. Two wrongs never make a right. Nor could the Respondents derive any authority or validity from section 21 of the General Clauses Act, for the notifications withdrawing the exemptions. The source from which the power to amend the Second Schedule, comes is section 6(2) of the Bengal Act and not section 21 of the General Clauses Act. Section 21, as pointed out by this Court in Gopichand vs Delhi Administration(1) embodies only a rule of construction and the nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification. The power therefore had to be exercised within the limits circumscribed by section 6(2) and for the purpose for which it was conferred. For all the foregoing reasons, we are of opinion that the impugned notification, dated 7 12 1957, purporting to substitute the words "such previous notice as it considers reasonable" for the words "not less than three months notice" in section 6(2) of the Bengal Act is beyond the powers of the Central Government, conferred on it by section 2 of the Laws Act. In consequence, the notification dated 1 4 1958, 19 9 1959, 29 6 1966 and 31 7 1970 in so far as they withdrew the exemptions from tax in the case of Durries, pure silk, country liquor, kirayana articles etc.were withdrawn without complying with the mandatory requirement of not less than three months notice enjoined by section 6(2) of the Bengal Act, are also invalid and ineffective. In the result we allow these appeals, set aside the judgment of the appellate Bench of the High Court and declare the Notification dated 7 12 1957, and the subsequent notifications in so far as they withdrew the exemptions from tax, mentioned above, to be unconstitutional. In the circumstances of the case, we leave the parties to bear their own costs. V.P.S. Appeals allowed.

Section 2 of the Part States (Laws) Act, 1950, empowered the Central Government to extend by notification in the official gazette, to any Part C State, or to any part of it, with such restrictions and modifications as it thinks fit, any enactment in force in a Part A State. In 1951, the Central Government, in exercise of this power, extended by a Notification the Bengal Finance (Sales Tax) Act, 1941, to the then Part State of Delhi with certain modifications in section 6. The section, after such extension with modifications, provided: 6(1) No tax shall be payable under this Act on the sale of goods specified in the first column of the Schedule subject to the conditions etc: and (2) The State Government [Amended as Central Government in 1956] after giving by notification in the official gazette not less than 3 months notice of its intention to do so, may by like notification add to or omit from or otherwise amend the Schedule and thereupon the Schedule shall he amended accordingly A modified Schedule of goods exempted from tax under section 6 was also substituted for the original Schedule in the Bengal Act, by the Notification. After the passing of the , the Part States (Laws) Act became . with necessary adaptations. In 1957, the Central Government issued a Notification in purported exercise of the powers under section 2 of the 1950 Act, amending the 1951 Notification. By the 1957 Notification an additional modification of section 6 of the Bengal Act was introduced in the 1951 Notification, namely the words "such previous notice as it considers reasonable" were substituted for the words "not less than 3 months ' notice" in section 6(2). In 1959, Parliament passed the Bengal (Sales Tax) (Delhi Amendment) Act, 1959, making some amendments in various sections of the Bengal Act but left section 6 untouched. By various notifications, exemption from sales tax was granted to several commodities. but subsequently, the exemption was withdrawn by other notifications after giving notice of less than 3 months. Dealers in those commodities, who were aggrieved by the withdrawal of the exemption, challenged the validity of ' the withdrawal. The High Court dismissed their petitions. On the main ground that Parliament, while enacting the Amending Act of 1959, had put its seal of approval to the curtailed period of notice in section 6(2) and as such, it should be taken to have keen provided by Parliament itself in the Bengal Act. 786 Allowing the appeals to this Court, ^ HELD: The 1957 Notification purporting to substitute the words "such previous notice as it considers reasonable" for the words 'not less than 3 months ' notice" in section 6(2) of the Bengal Act, is beyond the powers of the Central Government, conferred on it, by section 2 of the ; and in consequence, the various notifications, in so far as they with drew exemptions from tax with respect to the several commodities, are invalid and ineffective, as the exemption was withdrawn without complying with the mandatory requirement of not less than 3 months ' notice enjoined by the section. [808 D E] (1) (a) The primary power bestowed by section 2 of the , on the Central Government is one of extension, that is, bringing into operation and effect, in a Union Territory, an enactment already in force in a State. The discretion conferred by the section to make "restrictions and modifications" in the enactment sought to be extended, is not a separate and independent power, which can be exercised apart from the power of extension, but is an integral constituent of the power of extension. This is made clear by the use of the preposition "with" one meaning of which (which accords with the context) is "part of the same whole". [801 E F] (b) There are 3 limits on the power given by section 2. (i) The power exhausts itself on extension of the enactment. It can be exercised only once, simultaneously with the extension of the enactment, but cannot be exercised repeatedly or subsequently to such extension. (ii) The power cannot be used for a purpose other than that of extension. In the exercise of the power, only such restrictions and modifications can be validly engrafted in the enactment sought to be extended, which are necessary to bring it into operation and effect in the Union Territory. Modifications which are not necessary for, or ancillary and subservient to the purpose of extension, are not permissible. Only such modifications can be legitimately necessary for such purpose, as are required to adjust, adapt, and make the enactment suitable to the peculiar local conditions of the Union Territory for carrying it into operation and effect. (iii) The words "restrictions and modifications" do not cover such alterations as involve a change in any essential feature of the enactment or the legislative policy built into it. [801G H, 802A] (c) If the words "such restrictions and modifications as it thinks fit" are given the wide construction of giving an unfettered power of amending and modifying the enactment sought to be extended, as contended by the respondent, the validity of the section itself becomes vulnerable on account of the vice of excessive delegation. Moreover. such a construction would be repugnant to the context and content of the section, read as a whole. [802 B C] Rajnarain Singh vs The Chairman Patna Administration Committee Patna and Re: Delhi Laws Act; , , referred to. (2) The 1957 Notification transgresses these limits in two respects : (a) The power has not been exercised contemporaneously with the extension or for the purposes of the extension of the Bengal Act to Delhi but 6.6 years thereafter. The power of extension with restrictions and modifications had exhausted itself when the Bengal Act was extended to Delhi with some alterations by the 1951 Notification. [802D E] The power given under section 2 of the 1950 Act, cannot be equated to the "Henry VIII clause" of the Acts of the British Parliament because while the power under section 2 can be exercised only once when the Act is extended, the power under a "Henry VIII clause" can be invoked, if there is nothing contrary in the clause, more than once on the arising of a difficulty when the Act is operative [802F H] Observations of Fazal Ali, J. at p. 850 in Re: Delhi Laws Act case explained. 787 (b) The alteration sought to be introduced in section 6(2) by the 1957 Notification goes beyond the scope of the "restrictions and modifications" permissible under section 2 of the 1950 Act, because, it purports to change the essential features of section 6(2) and the legislative policy inherent therein. [803F] Section 6(2) before the issue of the 1957 Notification, requiring the Government to give "not less than 3 months ' notice" of its intention to add to or omit from or otherwise amend the Schedule to the 1950 Act, embodies a determination of legislative policy and its formulation as an absolute rule of ' conduct could be diluted, changed or amended only by the legislature, in the exercise of its essential legislative function, which could not be delegated to the Government. [803G 804E, F, G] (i) The language of the sub section as it stood is emphatically prohibitive and it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than 3 months, showing that the provision was mandatory and not directory. [804 A B] (ii) The scheme of the Bengal Act is that the tax is to be quantified and assessed on the quarterly turnover. and the period of not less than 3 months, notice conforms to the scheme and ensures that the imposition of a new tax of exemption does not cause dislocation or inconvenience either to the dealer or the Revenue. [804B] (iii) By fixing the period at not less than 3 months, purchasers on whom the incidence of tax really falls have adequate notice of taxable items. [804 C] (iv) Dealers and others likely to be affected by an amendment of the Schedule get sufficient time to make representations and adjust their affairs. [804 D] The span of notice was thus the essence of the legislative mandate. The necessity of notice and the span of notice both are integral to the scheme of the provision and it cannot be split up into essential and non essential components, the whole of it being mandatory. [804 E F] Raza Buland Sugar Co. Ltd. vs Municipal Board, Rampur, ; , distinguished. (3)(a) Pt. Benarsi Das Bhanot vs State of Madhya Pradesh does not assist the respondent. That was a case where the contention that 5. 6(2) of the C.P. & Bihar Sales Tax Act, 1947, was invalid on the ground of excessive delegation, was rejected, by the Court. In the present case, it is the validity of a Notification purported to be issued under section 2 of the 1950 Act that is impeached as beyond the powers of modification conferred by the section. [804H, 805A] (b) In the present case, the Central Government did not directly amend section 6(2). More than 6 years after the extension of the Act by the 1951 Notification, it amended the sub section indirectly by amending the 1951 Notification. But on the extension of the Act to Delhi, the 1951 Notification had exhausted its purpose, and the purported amendment, through the medium of such a "dead" Notification is an exercise in utility. Further, an amendment which was not directly permissible could not be done indirectly. [805 B, C] (4) The High Court was in error in holding that Parliament had validated or re enacted referentially, with retroactive effect, what was sought to be done by the 1957 Notification when it passed the Amending Act, 1959. [807C] The Amending Act leaves section 6(2) untouched. It does not even indirectly refer to the 1957 Notification or the amendment purportedly made by it in section 6(2). Nor does it re enact or validate what was sought to be achieved by that notification. No indication of referential incorporation or validation of the 1957 Notification or the amendment sought to be made by it, is available either in the Preamble or in any other provision of the Amending Act. Parliament despite its presumed awareness of the 1957 Notification, has said nothing in the Amending Act indicating that it has in any manner incorporated, re enacted or 788 validated the 1957 Notification or the amendment sought to be made thereby, while passing the Amending Act, 1959. [805 E F, 807 B C] Krishna Chandra vs Union of India, A.I.R. 1975 S.C. 1389, referred to, (5) A mere amendment of an Act by a competent legislature does not amount to re enactment of the parent Act. [807D] Venkatarao Esajirao Limberkar 's case [1970] 1 S.C.R. 317, explained. (6) The respondent cannot contend that if the withdrawal of exemption without giving 3 months" notice was illegal, then the grant of exemption without giving 3 months ' notice was also void. [808 A] (a) Some of the goods were granted exemption by the 1951 Notification itself and, hence, there is no question of giving notice for giving those exemptions. [807 G] (b) The validity of the notifications granting exemptions after the extension of the Act to Delhi is not in issue in the writ petitions. and whether or not the requisite notice was given before granting exemption is a question of fact depending on evidence. [807G] (c) To allow the respondent to take such a plea would be violative of the fundamental principle of natural justice, according to which a party cannot be allowed to take advantage of his own lapse or wrong. [807 H] (7) The respondent cannot also rely on section 21 of the General Clauses Act, because, the source of the power to amend the Schedule to the 1950 Act. is section 6(2) of the Bengal Act and not section 21 of the General Clauses Act, and the power has to be exercised within the limits of section 6(2) and for the purpose for which it we conferred. [808 B] Gopichand vs Delhi Administration, [1959] Suppl. 2 S.C.R. 87, referred to.

RISDICTION: Criminal Appeal No. 47 of 1992. From the Judgment and Order dated 13/14.8.1991 of the Bombay High Court in Crl. W.P.No. 597 of 1991. WITH Writ Petition (CRL.) No. 1247 of 1991. 238 (Under Article 32 of the Constitution of India) Dr. Y.S. Chitale and V.B. Joshi for the appellants/Petitioners. Altaf Ahmed, Addl. Solicitor General, S.M. Jadhav and A.S. Bhasme for the Respondents. The Judgment of the Court was delivered by Dr. A.S. ANAND, J. Leave is granted in SLP(Crl) No. 3227 of 1991. Writ Petition No. 1247 of 1991 filed under Article 32 of the Constitution of India is also taken up for disposal along with the aforesaid appeal, which is directed against the judgment of the Division Bench of the Bombay High Court in Criminal Writ Petition No. 597 of 1991, since it is the same order of detention which has been called in question in both the cases. Both the appeal and the Writ Petition have been filed by the wife of on Harvinder Singh @ Kukku, who has been detained vide order of detention, dated 26th February 1991, issued under the provisions of Section 3(1)n of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 (hereinafter referred to as the `Act ', The appellant had questioned the detention of her husband through Criminal Writ Petition No. 597 of 1991 before the Bombay High Court on carious grounds. The High Court, however, did not find any merit in the challenge and being of the opinion that there was no infirmity in the order of detention dismissed the Writ Petition. Appellant has filed an appeal by Special Leave against the High Court judgment and has also questioned the order of detention through a petition under Article 32 of the Constitution. The facts leading to the detention of the detenu as reflected in the grounds of detention are as follows: 3. The Police personnel, attached to Matunga Police Station, where maintaining a watch on vehicles passing near the fish market with a view to check transportation of illicit liquor. On 9th September 1991, a black Fiat Car, bearing registration No. BLD 1674, was seen coming from the direction of Chembur at about 0845 hrs. The police party signalled the driver to a stop. Instead of stopping the car, the detenu, who was driving the car, accelerated the car and drove it straight towards the police party that they were likely to be run over and to save themselves they jumped on the foot path. While so driving the car towards the police party, the detenu also hurled abuses at them and shouted that he would kill them. The detenu kept driving the car recklessly 239 and then dashed against a pedestrian causing him injury and even at that time instead of stopping the car shouted that whosoever would come in his way would be killed. The detenu kept on driving the car recklessly and dashed the car against a stationery taxi damaging it. As a result of the collision the car came to a stop. As soon as the car stopped, the police party, with a view to apprehend the detenu and the other persons sitting in the car rushed towards them. The detenu and two other persons sitting inside the car jumped out and escaped. A police case came to be registered with the Matunga Police Station against the detenu and two unknown persons for offences under Section 307, 324 read with Section 34 of the Indian Penal Code. The detenu made himself scarce and could not be immediately arrested. He was eventually traced and arrested on 13th September, 1990, when he made a statement admitting that he was engaged in transporting illicit liquor on 9.9.1990 and also admitted his escape after hitting the pedestrian and the stationery taxi after driving the car towards the police party which signalled to stop him. The detenu was produced before the Metropolitan Magistrate on 14.9.1990. and was released on bail on the condition that he should attend the police station between 6.00 to 8.00 p.m. everyday till 24.9.1990. However, the detenu failed to carry out the condition which led to the cancellation of his bail on 24.9.1990 and he was taken into custody. The detenu then moved the Sessions Court against cancellation of his bail. His application was accepted and he was admitted to bail. The motor car of the detenu,bearing registration No. BLD 1674, was seized by the police and from the dicky of the car, 12 rubber tubes and from the rear seat of the car 13 rubber tubes, each containing about 40 litres of illicit liquor were recovered. Samples of the seized illicit liquor were sent to the Chemical Analyst whose report, dated 10th of January 1991, indicated that the samples contained ethyl alcohol 34% v/v in water. During the investigation of the case, the police recorded statements of four witnesses who were, however, willing to make statements only on the condition of anonymity, fearing retaliation from the detenu in case they deposed against him. Keeping in view the activities of the detenu and the fact that he had been enlarged on bail, the detaining authority on being satisfied that unless an order of detention was made against the detenu, he was likely to indulge in activities prejudicial to the maintenance of `public order ' in future also, made an order of detention on 26th February 1991. The grounds of detention were served on the detenu. The order of the detention was confirmed by the State Government after considering the report of the Advisory Board constituted under 240 Section 12(1) of the Act. The order of detention was questioned before the High Court, as already noticed through Criminal Writ Petition No. 597 of 1991, unsuccessfully. Two basic arguments have been raised by Dr. Chitale before us to question the order of detention. The thrust of the first argument is that the activities of the detenu could be said to be prejudicial only to the maintenance of "law and order" and not prejudicial to the maintenance of "public Order". Learned counsel stressed that the activities, which had been attributed to the detenu, howsoever reprehensible they may be, had no impact on the general members of the community and therefore could not be said to disturb the even tempo of the society and as such his detention for acting in a manner prejudicial to `public order ' was unjustified. The second argument of the learned counsel is based on the proviso to Section 3(2) of the Act, which according to the learned counsel, prohibited the State Government to make an order of detention, in the first instance exceeding three months and since the order of detention in the instant case was for a period exceeding three months, it was categorised as bad in law and invalid. No other contention was pressed. "Public Order" or "Law and Order" are two different and distinct concepts and there is abundance of authority of this Court drawing a clear distinction between the two. With a view to determining the validity or otherwise of the order of detention, it would be necessary to notice the difference between the two concepts. In Ram Manohar Lohia vs State of Bihar, ; speaking for the majority, Hidayatullah J. pointed out the distinction in the following words: "One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. In Arun Ghosh vs State of West Bengal, [1970] 1SCC 98 again Hidayatullah J. speaking for the Court, pointed out that what in a given 241 situation may be a matter covered by law and order, on account of its impact on the society may really turn out to be one of `public order '. It was observed: "Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chambermaids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquility there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. " [p.100] 9. A Constitution Bench in Madhu Limaye vs Ved Murti, again dealt with the question and it was observed: "In our judgment, the expression `in the interest of public order ' in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or act within order publique as described but also certain acts which disturb public transquillity or are breaches of the peace. It is not necessary to give the expression a narrow meaning because, as has been observed, the expression `in the interest of public order ' is very wide." [p. 756] 10. In Kanu Biswas vs State of West Bengal, [1972] 3 SCC [p.756] 831, this Court opined: "The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order,. is a question of degree and the extent of the reach of the act upon the society . Public order is what the French 242 call "ordre publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of society undisturbed?" [p. 834] 11. In Ashok Kumar vs Delhi Administration, this Court re examined the question and observed: "The true distinction between the areas of `public order ' and `law and order ' lies not in the nature of quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of `law and order ' and `public order ' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order." [pp. 409 10] 12. In Subhash Bhandari vs District Magistrate, Lucknow, ; , a Division Bench of this Court has held: "A solitary act of omission or commission can be taken into consideration for being subjectively satisfied, by the detaining authority to pass an order of detention if the reach, effect and potentiality of the act is such that it disturbs public tranquility by creating terror and panic in the society or a considerable number of the people in a specified locality where the act is alleged to have been committed. Thus it is the degree and extent of the reach of the act upon the society which is vital for considering the question whether a man has committed only a breach of law and order or has acted in a manner likely to cause disturbance to public order." [pp. 686 87] 243 13. It is not necessary to multiply the authorities on this point. From the law laid by this Court, as noticed above, it follows that it is the degree and extent of the each of the objectionable activity upon the society which is vital for considering the question whether a man has committed only a breach of `law and order ' or has acted in a manner likely to cause disturbance to `public order '. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of `public order '. Whenever an order of detention is questioned, the courts apply these tests to find out whether the objectionable activities upon which the order of detention is grounded fall under the classification of being prejudicial to "public order" or belong to the category of being prejudicial only to `law and order '. An order of detention under the Act would be valid if the activities of a detenu affect `public order ' but would not be so where the same affect only the maintenance of `law and order '. Facts of each case have, therefore, to be carefully scrutinised to test the validity of an order of detention. Dr. Chitale did not dispute that if the activities of the detenu have the potential of disturbing the even tempo of the society or community, those activities would be prejudicial to maintenance of `public order ', he however, relied upon certain judgment to urge that "bootlegging" activity of the detenu in the instant case, could not affect public tranquillity and did not have any potential of affecting public order to justify his detention. Reliance was placed on Om Prakash vs Commissioner of Police & Ors., [1989] Supp. 2 SCC 576; Rashidmiya vs Police Commissioner, Ahmedabad & Anr., [1989] 3 SCC 321 and Piyush Kantilal Mehta vs Commissioner of Police, Ahmedabad City and Anr., [1989] Supp. 1 SCC 322 and it was urged that in these cases an activity of "bootlegging" was not held to fall within the mischief of being prejudicial to `public order '. Indeed, in Piyush Kantilal Mehta, Om Prakash and Rashidmiya cases (supra), the Court found that the activities of the detenu, a bootlegger in those cases, as detailed in the grounds of detention, were of a general and vague nature and those activities did not adversely affect the maintenance of `public order ' under Section 3(4) of the Gujarat Prevention of Anti Social Activities ' Act, 1985. The Bench in Rashidmiya and Om Prakash 's cases (supra) relied upon the judgment in Piyush Kantilal Mehta 's case and on the facts of those cases quashed the order of detention. In Piyush Kantilal Mehta 's case (supra), the allegations, in the ground of detention, were that the detenu was a bootlegger, who was indulging in the 244 sale of foreign liquor and that he and his associates were also using force and violence and beating innocent citizens creating a sense of terror. The detenu was caught possessing English liquor with foreign markings as well as foreign liquor. The Court found that the detenu was only a bootlegger and he could not be preventively detained under the provisions of the Gujarat Prevention of Anti Social Activities ' Act, 1985 unless as laid down in sub Section (4) of Section 3 of that Act, his activities as a bootlegger had the potential of affecting adversely or were likely to affect adversely, the maintenance of `public order ' and on the peculiar facts of the case, it was found that the alleged activities of the detenu did not affect `public order ' but created only a law and order problem. Dr. Chitale then placed reliance on State of U.P. vs Hari Shankar Tewari; , ; Ahmedhussain Shaikhhussain vs Commissioner of Police, Ahmedabad and Anr. ; ; T. Devaki vs Government of Tamil Nadu & Ors., ; ; Ashok Kumar vs Delhi Administration and Ors. , ; but none of these judgments lay down tests different than the ones which we have culled out from the judgments of this court referred to earlier. Those cases were decided on their peculiar facts. The courts were very much alive to the conceptual difference between activities prejudicial to law and order and those prejudicial to public order and since on facts it was found that the activities of the detenu were not prejudicial to `public order ', the orders of detention were quashed. Crime is a revolt against the whole society and an attack on the civilization of the day. Order is the basic need of any organised civilized society and any attempt to disturb that order affects the society and the community. The distinction between breach of `law and order ' and disturbance of `public order ' is one of degree and the extent of reach of the activity in question upon the society. In their essential quality, the activities which affects `law and order ' and those which disturb `public order ' may not be different but in their potentiality and effect upon even tempo of the society and public tranquility there is a vast difference. In each case, therefore, the courts have to see the length, magnitude and intensity of questionable activities of a person to find out whether his activities are prejudicial to maintenance of `public order ' or only `law and order '. There is no gain saying that in the present state of law, a criminal can be punished only when the prosecution is able to lead evidence and prove the case against an accused person beyond a reasonable doubt. Where the prosecution is unable to lead evidence to prove its case, the case fails, though that failure does not imply that no crime had been committed. Where the 245 prosecution case fails, because witnesses are reluctant on account of fear of retaliation to come forward to depose against an accused, obviously, the crime would go unpunished and the criminal would be encouraged. In the ultimate analysis, it is the society which suffers. Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it. The objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstances to find out whether those activities have any prejudicial affect on the society as a whole or not. If the society, and not only an individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of `public order ' and are not merely prejudicial to the maintenance of `law and order '. The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 was enacted to provide for preventive detention of slumlords, bootleggers and drug offenders for preventing their dangerous activities prejudicial to the maintenance of `public order '. Section 2(a) defines the meaning of the expression "acting in any manner prejudicial to the maintenance of public order" and reads as follows: "acting in any manner prejudicial to the maintenance of public order" means (i) in the case of a slumlord, when he is engaged, or is making preparations for engaging, in any of his activities as a slumlord, which affect adversely, or are likely to affect adversely, the maintenance of public order; (ii) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order; (iii) in the case of drug offender, when he is engaged or is making preparations for engaging, in any of his activities as drug offender, which affect adversely, or are likely to affect adversely, the maintenance of public order; Explanation: For the purpose of this clause (a), public order shall be deemed to have been affected adversely, or shall be deemed 246 likely to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this clause, directly or indirectly, is causing or calculated to cause any harm, danger or alarm of a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health;" 20. The explanation to Section 2(a) (supra) brings into effect a legal fiction as to the adverse affect on `public order '. It provides that if any of the activities of a person referred to in clause [ (i) (iii) ] of Section 2(a) directly or indirectly causes or is calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any Section thereof or a grave or a wide spread danger to life or public health, then public order shall be deemed to have been adversely affected. Thus, it is the fall out of the activity of the "bootlegger" which determines whether `public order ' has been affected within the meaning of this deeming provision or not. This legislative intent has to be kept in view while dealing with detentions under the Act. Let us now consider the facts of the instant case. The substance of the grounds on which detention has been ordered is that the detenu is bootlegger and in furtherance of his activities and to escape from the clutches of law, he even tried to run over, by his speeding vehicle, the police party, which tried to signal him to a stop, exhorting all the time that he would kill anyone who would come in his way. He continued to drive in a reckless speed and dashed against a pedestrian causing injuries to him, where again he had exhorted that anyone who would come in his way would meet his death. Four witnesses A,B,C,D, who agreed to give statements to the police on conditions of anonymity, clearly stated that they would not depose against the detenu for fear of retaliation as the detenu had threatened to do away with anyone who would depose against him. The evidence of these witnesses show that the detenu was indulging in transporting of illicit liquor and distributing the same in the locality and was keeping arms with him while transporting liquor. The activities of the detenue, therefore, were not merely "bootlegging" as was the position in Om Prakash, Rashidmiya and Piyush Kantilal Mehta 's cases (supra) but went further to adversely affect the even tempo of the society by creating a feeling of insecurity among those who were likely to depose against him as also the law enforcement agencies. The fear psychosis created by the detenu in the witnesses was aimed at letting the crime go unpunished which has the potential of the society, and not merely some individual, to suffer. The activities of the detenu, therefore, squarely fall within the deeming provision enacted in the explanation of Section 2(a) of the Act, and it therefore, follows as a logical consequence that the activities of 247 the detenu were not merely prejudicial to the maintenance of `law and order ' but were prejudicial to the maintenance of "public order". The first argument raised by Dr. Chitale against the order of detention, therefore, fails. Coming now to the second argument of Dr. Chitale to the effect that proviso to Section 3(2) of the Act, prohibited the State Government to make an order of detention in the first instance, exceeding three months, and since the order of detention in the instant case had been made for a period exceeding three months, it was vitiated. Section 3 reads as follows: "Power to make orders detaining certain persons. (1) 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 maintenance of public order, it is necessary so to do, make an order directing that such person is detained. (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub section (1), exercise the powers conferred by the said sub section: Provided that the period specified in the order made by the State Government under this sub section shall not, in the first instance, exceed three months but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (3) When any order is made under this section by an officer mentioned in sub section (2), he shall forthwith report that fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless in the meantime, it has been approved by the State Government." 248 A plain reading of the Section shows that the State Government under Section 3(1), if satisfied, with respect to any person that with a view to preventing him from acting in a manner prejudicial to the maintenance of "public order", it is necessary so to do , make an order of detention against the person concerned. Sub section (2) of Section 3 deals with the delegation of powers by the State Government and provides that if the State Government is satisfied, having regard to the circumstances prevailing in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, it is necessary to empower District Magistrate or the Commissioner of Police, as the case may be to exercise the powers of the State Government to order detention of a person as provided by sub Section (1), then the State Government may, by an order in writing direct that during such period as may be specified in the order, the District Magistrate or the Commissioner of Police may also if satisfied as provided in sub section (1), exercise the powers of the State Government as conferred by sub Section (1). The proviso to sub Section (2), only lays down that the period of delegation of powers, specified in the order to be made by the State Government under sub section (2), delegating to the District Magistrate or the Commissioner of Police the powers under sub section (1) shall not in the first instance exceed three months. The proviso, therefore, has nothing to do with the period of detention of a detenu. The maximum period of detention is prescribed under Section 13 of the Act which lays down that a person may be detained in pursuance of any detention order made under the Act, which has been confirmed under Section 12 of the Act. It is, therefore, futile to contend that the order of detention in the instant case was vitiated because it was for a period of more than three months. The second argument, therefore, also fails. We are, in the facts and circumstances of the case, satisfied that the Division Bench of the Bombay High Court rightly dismissed the Criminal Writ Petition No. 597 of 1991 and that order does not call for any interference. The Appeal fails and is dismissed. Writ Petition No. 1247 of 1991 also fails and is hereby dismissed since the order of detention does not suffer from any infirmity. G.N. Appeal/Petition dismissed.

With a view to check transportation of illicit liquor, the Police were maintaining a watch and the speeding car driven by the detenu, husband of the appellant/petitioner was signalled to stop. Instead,the detenu accelerated the car and drove straight towards the Police party. They had to jump on to the foot path to save themselves. The detenu hurled abuses and threatened to kill the Police officers. He kept on driving the car recklessly, dashed against a pedestrian thereby injuring him. Ultimately the car collided with a stationary taxi and stopped. The Police rushed to apprehend the detenu and two others in the car, but they jumped out of the car and escaped. Police seized the motor car and recovered illicit liquor therefrom. A police case was registered against the detenu and two other unknown persons for offences under Sections 307,324 read with Section 34 IPC. The detenu made himself scarce and could not be arrested immediately. However, after a few days he was arrested and he admitted the incident including his escape. He was produced before the Magistrate and was released on bail on the condition that he should report to the police daily. Since the detenu failed to carry out the condition, bail was cancelled and he was taken into custody. The detenu then moved the Sessions Court against the cancellation of his bail, which was admitted and he was granted bail. During the investigation of the case, Police could record statements 235 from four witnesses, who deposed only on condition of anonymity as they feared retaliation from the detenu. The detaining authority on being satisfied that the detenu was likely to indulge in activities prejudicial to the maintenance of "public order" passed an order of detention and the grounds of detention were served on the detenu. The said order was confirmed by the State Government on the report of the Advisory Board. The wife of the detenu challenged the detention order before the High Court. The High Court having dismissed the Writ Petition she has filed the present appeal by special leave, as also a Writ Petition before this Court, challenging the detention order passed against her husband. On behalf of the appellant/petitioner, it was argued that the activities of the detenu had no impact on the public and therefore could not be said to have disturbed the even tempo of the society and as such his detention for acting in a manner prejudicial to the "public order" was unjustified. It was further contended that Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 prohibited the State Government to make an order of detention in the first instance, exceeding three months, and since in the present case the detention order was for more than three months, it was invalid. Dismissing the matters, this Court, HELD: 1.1. Crime is a revolt against the whole society and an attack on the civilization of the day. Order is the basic need of any organised civilized society and any attempt to disturb that order affects the society and the community. The distinction between breach of `law and order ' and disturbance of 'public order ' is one of degree and the extent of reach of the activity in question upon the society. In their essential quality, the activities which affect "law and order" and those which disturb "public order" may not be different but in their potentiality and effect upon even tempo of the society and public tranquility there is a vast difference. In each case, therefore, the courts have to see the length, magnitude and intensity of the questionable activities of a person to find out whether his activities are prejudicial to maintenance of "public order" or only "law and order". [244E G] 1.2 Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it. The 236 objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstance to find out whether those activities have any prejudicial affect on the society as a whole or not. If the society. and not only and individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of "public order" and are not merely prejudicial to the maintenance of "law and order". An order of detention would be valid if the activities of a detenu affect "public order" but would not be so where the same affect only the maintenance of "law and order".[245B C] Ram Manohar Lohia vs State of Bihar. ; ; Arun Ghosh vs State of West Bengal, ; Madhu Limaye vs Ved Murti, [1970]3 SCC 738; Kanu Biswas v State of West Bengal, ; ; Ashok Kumar vs Delhi Administration, ; Subhash Bhandari vs District Magistrate, Lucknow; , , relied on. State of U.P vs Hari Shankar Tewari, [1987] 2SCC 490; Ahmedhussain Shaikhhussain vs Commissioner of Police, Ahmedabad & Anr, [1989]4 SCC 751; T.Devaki vs Government of Tamil Nadu & Ors. [1990] 2SCC 456; Referred to 2.1 The explanation to Section 2(a) of the Maharashtra Prevention of Dangerous Activities of Slumords, Bootleggers and Drug offenders Act, 1981 brings into effect a legal fiction as to the adverse affect on `public order '. It provides that if any of the activities of a person referred to in clauses ( (i) (iii) of Section 2(a) directly or indirectly causes or is calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave or a wide spread danger to life or public health, then public order shall be deemed to have been adversely affected. Thus, it is the fall out of the activity of the `bootlegger ' which determine whether `public order ' has been affected within the meaning of deeming provision or not. This legislative intent has to be kept in view while dealing with detentions under the act. [246 B, C] 2.2 In the instant case, the substance of the grounds on which detention has been ordered is that the detenu is a bootlegger and in furtherance of his activities and to escape from the clutches of law, he even tried to run over, by his speeding vehicle, the police party, which tried to signal him to a stop, exhorting all the time that he would kill anyone who would come in his way. He continued to drive in a reckless speed and dashed against a pedestrian causing injuries to him, where 237 again he had exhorted that anyone who would come in his way would meet his death. Four witnesses A, B, C, D, who agreed to give statements to the police on conditions of anonymity, clearly stated that they would not depose against the detenu for fear of retaliation as the detenu had threatened to do away with anyone who would depose against him. The evidence of witnesses shows that the detenu was indulging in transporting of illicit liquor and distributing the same in the locality and was keeping arms with him while transporting liquor. The activities of the detenu, therefore, were not merely `bootlegging ' but went further to adversely affect the even tempo of the society by creating a feeling of insecurity among those who were likely to depose against him as also the law enforcement agencies. The fear psychosis created by the detenu in the witnesses was aimed at letting the crime go unpunished which has the potential of the society, and not merely some individual, to suffer. The activities of the detenu, therefore, squarely fall within the deeming provision enacted in the explanation to Section 2(a) of the Act. It, therefore, follows that the activities of the detenu were not merely prejudicial to the maintenance of `law and order ' but were prejudicial to the maintenance of `public order '. [246D H, 247 A] Om Prakash vs Commissioner of Police & Ors., [1989] Supp. (2) SCC 576; Rashidmiya vs Police Commissioner, Ahmedabad & Anr., [1989] 3 SCC 321; Piyush Kantilal Mehta vs Commissioner of Police, Ahmedabad City and Anr., [1989] Supp. (1) SCC 322, referred to. The maximum period of detention is prescribed under Section 13 of the Act which lays down that a person may be detained in pursuance of any detention order made under the Act, which has been confirmed under Section 12 of the Act. Therefore, the order of detention in the instant case, though it was for a period of more than three months, is not vitiated since the order is in conformity with the said provisions. [248D, E]

il Appeal No. 1049 of 1968. 167 Appeal by special leave from the order, dated August 11, 1967 of the Delhi High Court in L.P.A. No. 85 of 1967. Niren De, Solicitor General, B.P. Maheshwari and R.K. Maheshwari, for the appellant. M.C. Chagla and Urmila Kapoor, for the respondents. The Judgment of the Court was delivered by Vaidialingam, J. This appeal, by the Municipal Corporation of Delhi, by special leave, is directed against the judgment and order, dated August 11, 1967 passed by the High Court of Delhi High Court, dated May 10, 1967 whereby a writ of manda Patent Bench had confirmed an order of the learned Chief Justice, Delhi High Court, dated May 10, 1967 whereby a writ of Mandamus had been issued to the appellant to approve the plans submitted by the respondents and grant the sanction asked for. The circumstances leading up to the issue of the writ of mandamus against the appellant may be briefly adverted to. The respondents are the owners and are. in possession of the building bearing municipal door Nos. 3766 to 3776, situated in the main Chawri Bazar, Delhi. As the building was an old construction and required urgent and extensive repairs, on October 16, 1965 the respondents submitted to the appellant plans for its sanction for execution of work consisting of repairs, additions as well as alterations to the said building. The Commissioner of the appellant Corporation, by letter, dated February 4, 1966 informed the respondents that their application for execution of construction work in respect of house Nos. 3766 to 3776 had been refused on the grounds "that the proposal was under acquisition and also effected in the ROW and the land was residential against proposal of commercial". A controversy appears to have been raised by the appellant before the High Court that the application, by the respondents, related also. to certain other municipal door numbers, but as that is not material for the present purpose, we do not refer to the same. Attempts made by the respondents to satisfy the Commissioner that their application was quite legal and that there was no violation of any law or rules having failed, they filed Civil Writ Petition No. 410 D of 1966 in the Circuit Bench of the Punjab High Court at Delhi, under article 226 of the Constitution praying for the issue of an order or direction in the nature of mandamus directing the appellant to accord sanction to the plan for execution of work in respect of the building. as per their application of October 16, 1965. According to the respondents it was. incumbent on the Commissioner of the appellant, under section 336 of the Delhi Municipal Corporation Act, 1957 (Act LXVI of 1957) (hereinafter referred to as the Corporation Act), to sanction the plans of a building or 168 execution of a work unless such a building or work contravened any of the provisions, of sub section (2) of section 336 or section 340 of the Corporation Act. It was further stated that the plan submitted by them did not contravene any of the provisions of sub section (2) of section 336 or section 340 of the Corporation Act. The reasons given for rejection, by the Commissioner, were also challenged as being vague and unintelligible apart from being extraneous to the provisions of the Act. The respondents further averred that the build Lags required extensive repairs. as was clear from the notice, dated March 3, 1966, issued by the Commissioner of the appellant stating that the building posed a danger to the residents of the area and that the necessary repairs had to be carried out immediately, after obtaining sanction from the building department, and threatening penal consequences if the respondents did not comply with the notice. On these grounds. they urged that the order, dated February 4, 1966 passed by the Commissioner refusing to accord sanction was illegal and ultra vires and in consequence they prayed for the issue of a writ of mandamus directing the appellant to accord sanction, as asked for by them. On behalf of the appellant, the Assistant Engineer had filed a counter affidavit. The material averments, relevant for the present purpose, are that the respondents are the owners of the premises and that the construction was old and required repairs; but the plans submitted by the respondents did not conform to bye laws and contravened section 336(2) (a) in respect of land use and section 340(2) with respect to requisitioning of land by the Delhi Development Authority for their Scheme and that the plans were also affected by road widening. In their reply affidavit the respondents controverted the averments of the Assistant Engineer that the plans did not conform to bye laws or the provisions of section 336(2) or any other law in respect of land use. They stated that according to. the Master Plan prepared under the Delhi Development Act, 1957 certain areas, including Chawri Bazar, would be the Central Business District of Delhi and that the proposed user, mentioned by them in the plan sent for sanction was not in contravention of the Master Plan. They also denied that the Delhi Development Authority had any scheme for road widening. They further referred to a letter, dated April 30, 1966 of the Delhi Development Authority stating that the Zonal Development Plan has not been prepared for the area in question. They finally reiterated the plea that the order refusing sanction was not based on any of the grounds envisaged by section 336(2) or section 340 or any other provision of the Corporation Act or of any other Act. The learned Chief Justice of the Delhi High Court, who heard the writ petition in the first instance, by his judgment and order 169 dated May 10, 1967 accepted the writ petition filed by the respondents and issued a mandamus to the appellant to approve the plans and grant the sanction asked for '. The learned Chief Justice has expressed the view that the Commissioner could decline the sanction only if there was a contravention of sub section (2) of section 336 or section 340 of the Corporation Act. In this case, according to the learned Chief Justice, there was no such contravention established by the appellant and if that were so the Commissioner had no power to refuse to accord the sanction asked for by the respondents. He was of the further view that the grounds on which the Commissioner refused sanction were wholly irrelevant and not germane to the sanction asked for. Taking the further view that the Commissioner had a statutory duty to grant the sanction asked for, the learned Chief Justice directed the issue of a writ of mandamus. This judgment of the learned Chief Justice as mentioned earlier, was affirmed by the judgment of the Letters Patent Bench of the Delhi High Court, dated August 11, 1967. The learned Solicitor General, on behalf of the Corporation, has urged that the order of the Commissioner refusing sanction is legal and is justified by the provisions, of cl. (a) of sub section (2) of section 336 of the Corporation Act. Even at the outset he has made it clear that he is relying upon only one of the grounds given in the order, dated February 4, 1966 of the Commissioner, viz., that the plan submitted was affected by the proposals contained in the Master Plan in respect of widening of the read in the area in question. The expression 'ROW ' used in the order refers to 'right of way ' which is with reference to the road proposed under the Master Plan. The Master Plan has been prepared under section 7 of the Delhi Development Act, 1957 (Act LXI of 1957 ) (hereinafter referred to as the Development Act) and it has come into operation, under section 11, in the area concerned. The building operation proposed by the respondents as per the plans submitted by the:m will be contrary to. the Master Plan and, as such, will be hit by section 14 of the Development Act. In short, the contention of the ]earned Solicitor General is that the Master Plan prepared by the Authority for Delhi, which has statutory force, has come into effect under the Development Act. Under section 336(2)(a) of the Corporation Act, the Commissioner is entitled to refuse sanction of a building or work if the building or work or use of the site for building or work would contravene 'any other law '. As the proposed construction would not be in conformity with the Master Plan, section 14 of the Development Act will be violated, in which case there will be a contravention of 'any other law '. Hence the order of rejection passed by the Commissioner is legal and valid. In this connection the learned Solicitor General referred us to the Master Plan wherein it is stated that the proposed road (in Chawri Bazar, which is the area with which we are concerned) CI 69 12 170 from Hauz Kazi to Jama Masjid is recommended to have a width of 60 feet. The width of the existing road is only 48 feet. The object of the Development Act is to freeze new building constructions which will be inconsistent with the Master Plan; and, if the Master Plan mentions the width of a proposed road and the width of an existing road is less, no new construction will be permissible on either side of the road till the excess area required for the road is found. The Solicitor General has further urged that though a Zonal Development Plan for each of the Zones in which Delhi will have to be divided will have also to be prepared and has not come into operation for the zone concerned, nevertheless, till such a Zonal Development Plan comes into operation, the Master Plan will hold the field. If a Zonal Development Plan comes into force and has made any alteration, the Zonal Development Plan will then have effect and the Master Plan will stand abridged or modified. At present, it is the Master Plan that holds the field and, as according to it an excess area of 12 feet for the proposed road will have to be found, all building operations on either side of the proposed road will have to come to a standstill. That is, the learned Solicitor General was prepared to take the stand that, so to say, there is a freezing of all building operations, on either side of the existing road which, according to him, is warranted by section 14 of the Development Act. In support of his contentions, the learned Solicitor General drew our attention to certain provisions contained in the Corporation Act and the Development Act. The stand taken by the learned Solicitor General has been very strenuously controverted by Mr. M.C. Chagla, learned counsel for the respondents. Mr. Chagla, apart from criticising the order, dated August 11, 1967 as laconic and unintelligible and not containing any valid reasons has urged that the Master Plan, so strongly relied on by the learned Solicitor General, does not, as such, refer to the survey numbers in respect of which the respondents had asked for sanction. Before the High Court the appellant has not relied upon the Master Plan nor did it place any material to show that any part of the proposed road shown in the Master Plan will pass through any of the properties of the respondents. The Master Plan prepared under the Development Act is nothing but a broad outline of what Delhi would look like, in future. The plan, which may probably give more accurately the lands in the area which are reserved for roads, is the Zonal Development Plan, the preparation of which is mandatory under section 8 of the Development Act. Admittedly no such plan has been prepared, much less has come into operation in the concerned zone. So long as the Master Plan does not state that any part of the property belonging to the respondents will be covered by the proposed road, it cannot be stated that when the respondents are attempting to renovate the building they are using the land in the zone otherwise than in conformity with the Master Plan. Mr. Chagla further points out 171 that if the contentions advanced on behalf of the appellant are accepted, the entire building operations in Delhi will have to come to a standstill for an indefinite number of years and, according to him, that position is not envisaged either by the Master Plan or the provisions of the Development Act. He finally urged that section 14 of the Development Act has no application at all. From the contentions of both the parties set out above, it will be noticed that according to the appellant ii building operations are allowed to be carried on, there will be a violation of the Master Plan, and in consequence of the provisions of section 14 of the Development Act; whereas, according to the respondent, there is no violation of either the Master Plan or any provisions of the Development Act or of any other law. A reference to the material provisions of the Corporation Act and the Development Act, which will be made by us presently, will clearly establish that the contentions of the learned Solicitor General cannot be accepted. We shall first take up the provisions of the Corporation Act. Section 332 prohibits the erection or commencement of the erection of any building, or execution of any of the works specified in section 334, except with the previous sanction of the Commissioner. Section 333 makes its mandatory on a person intending to erect a building to apply to the Commissioner in that behalf. Section 334 makes it obligatory on a person, who intends to execute any of the works mentioned therein, to apply for sanction to the Commissioner. Section 336 deals with sanction or refusal of building or work. It is only necessary to refer to sub section (1) and cl. (a) of sub section (2) of this section, because, as we have already stated, the order of rejection by the Commissioner is sought to be justified under this provision. These provisions are:, "336. ( 1 ) The Commisioner shall sanction the erection of a building or the execution of a work unless such building or work would contravene any of the provisions of sub section (2) of this section or the provisions of section 340. (2) The grounds on which the sanction of a building or work may be refused shall be the following, namely : (a) that the building or work or the use of the site for the building or work or any of the particulars comprised in the site plan, ground plan, elevation, section or specification would contravene the provisions of any byelaw made in this behalf or of any other law or rule, byelaw or order made under such other law; 172 Sub section (3) of section 336 provides for the Commissioner communicating the sanction to the person who has given the notice; and in cases where he refuses sanction on any of the grounds specified in subs. (2) of section 336 or under section 340, to record a brief statement of his reasons for such refusal and communication of the refusal along with the reasons to the party concerned. It will be clear, from a perusal of section 336, that the Commissioner has to give sanction for the erection of a building or the execution of a work, unless such building or work would contravene any of the provisions of sub section (2) of section 336 or the provisions of section 340. Therefore, in order to sustain the validity of the order of rejection passed by the Commissioner the appellant has to establish, as it seeks to, that the proposed building or the use of the site for the building, by the respondents, would contravene the provisions of 'any other law '. If the proposed building or use of the site for the building would contravene the provisions of any other law ', the Commissioner has ample powers under cl. (a) of section 336(2) to refuse sanction. Section 340 gives power to the Commissioner to refuse sanction for erection of any building on either side of a new street, under the circumstances mentioned therein. We shall now refer to some of the provisions of the Development Act in order to appreciate the scheme of that statute. The Development Act is an Act to provide for the development of Delhi according to plan and for matters ancillary thereto. Section 2, clauses (d) and (e), define the expressions 'development ' and 'development area ' respectively. Chapter II deals with the Delhi Development Authority and its objects. Section 3, therein, provides for the Central Government constituting for the purposes of the Act an authority to be called the Delhi Development Authority. It is referred to in the Act as the Authority. Section 5 provides for the Authority constituting an Advisory Council for the purpose of advising the Authority on the preparation of the Master Plan and the Zonal Development Plans and on such other matters in connection with the administration of the Act. Such Advisory Council also has been duly constituted. Section 6 provides that the object of the Authority shall be to promote and secure the development of Delhi according to plan and clothes the Authority with the various powers mentioned therein. Chapter III deals with Master Plan and Zonal Development Plans. Section 7, therein, provides for the Authority carrying out a civic survey of and preparing a Master Plan for Delhi. Under sub section (2), the Master Plan shall (a) define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed 173 to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and (b) serve as a basic pattern of frame work within which the zonal development plans of the various zones may be prepared '. Section 8 provides for the preparation by the Authority of a zonal development plan for each of the zones into which Delhi may be divided and also refers to the various matters which are to be indicated in the same. The material provisions of section 8 which, according to us, will have a vital bearing in considering the soundness of the stand taken by the appellant are as follows: "8. (1 ) Simultaneously with the preparation of the master plan or as soon as may be thereafter, the Authority shall proceed with the preparation of a zonal development plan for each of the zones into which Delhi may be divided. (2) A Zonal Development Plan may (a) contain a site plan and use plan for the development of the zone and show the approximate locations and extents of land uses proposed in the zone for such things as public buildings and other .public works and utilities, roads, housing, recreation, industry, business, markets, schools, hospitals and public and private open spaces and other categories of public and private uses; (d) in particular, contain provisions regarding all or any of the following matters, namely : (ii) the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes; Section 9 (1 ) states that the expression 'plan ' in that section and in sections 10, 11, 12 and 14 means the Master Plan as well as the Zonal Development Plan for a zone. Sub section (2) provides for the plan which means the Master Plan as well as the Zonal Development Plan being submitted after preparation by the Authority to the Central Government for approval and it also gives power to the Government to approve the plan, without modification or with such modifications as it may consider necessary, or reject the plan with directions to the Authority to prepare a fresh plan. 174 Section 10 provides for the procedure to be followed in the preparation and approval of plans. A perusal of that section shows that ample opportunity has to be provided for persons and every local authority to submit objections at the stage of the draft, and it also requires the authority to consider any objections, suggestions and representations that may have been made, before the final plan is prepared and submitted to the Central Government for its approval. It also empowers the Central Government to call for any information that it thinks necessary from the Authority for the purpose of approving any plan submitted to it. Section 11 provides for the date of operation of the plan. There is no controversy, in this case, that the Master Plan has been prepared under section 7 by the Authority on September 1, 1962 and it has also come into force, as contemplated by section 11. Though section 8 contemplates the preparation of a Zonal Development Plan simultaneously with the preparation of the Master Plan, or as soon as may be thereafter, no Zonal Development Plan for the zone concerned has been prepared up to now. It may also be pointed out that if and when such a Plan is prepared, containing the various matters referred to in sub section (2) of section 8, before it is finalized and sent to the Central Government for approval, parties and local authorities will have to be given an opportunity of sending their objections and suggestions and representations, which have all to be duly and properly considered by the Authority concerned. Chapter III A deals with modifications to the Master Plan and the Zonal Development Plan. Section 1 I A, therein, provides for the Authority and the Central Government making modifications in the Master Plan or the Zonal Development Plan under the circumstances and after following the procedure, mentioned therein. Chapter IV deals with development of lands. Sub section (1 ) of section 12 gives power to the Central Government, by notification in the Official Gazette, to declare any area in Delhi to be a development area for the purposes of the Act. Sub section (2) prohibits the Authority, except as otherwise provided for in the Act, to undertake or carry out any development of land in any area which is not a development area. Sub section (3) provides that after the commencement of the Act no development of land shall be undertaken or carried out in any area by any person or body (including a department of Government) except in the manner provided therein. Section 14, on which considerable reliance has been placed, on behalf of the appellant, is as follows: "14. After the coming into operation of any of the plans in a zone no person shall use or permit to be 175 used any land or building in that zone otherwise than in conformity with such plan: Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force. " A copy of the Master Plan for Delhi has been placed before us by the learned Solicitor General. Chapter I deals with the Land Use Plan under various sub heads. Chapter II deals with Zoning and Sub division Regulations. There are certain maps annexed to this Plan. Under the heading 'Proposed rights of way in Old City ', in paragraph 11 of Chapter I, item 7 refers to the area concerned, viz., Chawri Bazar. Against that it is stated that the road from Hauz Kazi to Jama Masjid, which is approximately 1,800 feet long is recommended to have a road width of 60 feet. There is no controversy that the existing .road is only 48 feet wide. Our attention has also been invited to two of the maps annexed to this Master Plan, viz. the Zonal Map and the Proposed Circulation Pattern of Walled City and it was stated that the area marked 'A ' in the Zonal Map refers to the Walled City which is divided into 27 zones. The second map viz. the Proposed Circulation Pattern of Walled City, is an enlargement of the area 'A ' shown in the Zonal Map and the Chawri Bazar is shown there. As stated earlier, considerable reliance has been placed by the learned Solicitor General on the statement in the Master Plan that the road in Chawri Bazar is to have a width of 60 feet and on the two maps annexed to the Master Plan which, according to him, will show the lay out of the proposed road. The Master Plan and the two maps relied on by the appellant do not give any indication that any part of the land belonging to the respondents will be covered by any portion of the proposed road. The provisions of section 7 of the Development Act clearly indicate and that is borne out by the various matters mentioned in the Master Plan that the Master Plan will only give a very broad outline of DeLhi as it will look in future. Though there is an obligation on the Authority to prepare the Zonal Development Plan simultaneously with the preparation of the Master Plan, or as soon as there may be thereafter, no such Zonal Development Plan has been prepared. That assumes considerable importance in this case because it is the Zonal Development Plan, under section 8(2)(a) which will show the approximate locations and extents of land uses proposed in a zone for roads; further, under sub cl. (ii) of cl. (d) of sub section (2) of section 8, the said Zonal Development Plan will also contain provision regarding the allotment or reservation of land for roads. It is only when such allotment or reservation of land for roads is made that it will be possible to know clearly as to which part of 176 a person 's land and what portion thereof is allotted or reserved for a road. If such an indication is made available by the Zonal Development Plan, then section 14 will quite naturally stand attracted, because any user of a land or building otherwise than in conformity with the Zonal Development Plan will be hit by that section. In the absence of any indication in the Master Plan, in this case, that any part of the land of the respondents will be covered by a road, or portion of a road it is not possible to accept the contention of the learned Solicitor General that there will be any violation of section 14 of the Development Act if the respondents be permitted to use the land, as. asked for by them. To attract section 14, the appellant will have to establish that any land or part of a land or a building in a Zone has been dealt with in a particular manner by the Master Plan and that it is proposed to be used in a different manner. If a Zonal Development Plan is prepared for the area, before it comes into operation in the Zone, the procedure indicated in section 10 will have to be followed and parties will have to be given an opportunity of placing any objections or making any representations or offering any suggestions. So far as we can see, it is certainly not the scheme of the Development Act that the moment a Master Plan has come into operation and if it contains a proposal regarding the width that a road should have, all use of land adjoining that road is prohibited for an indefinite period. The reasonable interpretation to be placed on section 14 will be that if any particular and definite use of land is indicated in a Master Plan, a different use of that land cannot be permitted. Similarly, if a Zonal Development Plan provides for a particular use of any land or any building in that zone, it cannot be put to a different use. If neither of the plans provide for the particular use of any land or building in the area or Zone, section 14 will have No. application whatsoever. We have already stated that the respondents ' lands are not in any manner indicated as being taken up by any part of the proposed road, mentioned in the Master Plan and, if that is so, there is no violation of section 14 of the Development Act. It .also follows that there is no violation of 'any law ' under cl. (a) of sub section (2) of section 316 of the Corporation Act. The High Court was perfectly justified, in the circumstances, in issuing the writ of mandamus. The result is that the appeal fails, and is dismissed. The appellant will pay the costs of the respondents. Appeal dismissed.

The Commissioner of the appellant (Municipal Corporation of Delhi) issued notice to the respondents stating that the building owned by them posed a danger to the residents of the area and that necessary repairs may be carried out immediately after obtaining sanction. The respondents thereupon submitted plans to the Corporation but the Commissioner of the Corporation refused the sanction on the ground that the land belonging to me respondents would be covered by a road proposed in the Master Plan prepared .by. the Delhi Development Authority. The respondents filed a writ petition in the High Court praying for a direction to the Corporation to accord the sanction. The High Court allowed the petition, holding that the Commissioner could decline the sanction only if there was a contravention of section 336(2) or section 340 of Delhi Municipal Corporation Act, 1957 and that in this case there was no such contravention. In appeal to this Court, the appellant contended that the Commissioner was, trader section 336(2) (a), entitled to refuse sanction of a building or work if the building or work or use of the site for building or work contravened any other law ', that the Master Plan prepared had come into effect under the Development Act and that as the proposed construction would not be in conformity with the Master Plan it would contravene section 14 of the Development Act. HELD: The appeal must fail. The provisions of section 7 of the Development Act indicate that the Master Plan will only give a very broad outline of the Development Act that the moment a Master Plan has come into operation and if it contains a proposal regarding the width that a road should have, all use of land adjoining that road is prohibited for an indefinite period. Under section 14, if any particular and definite use of land is indicated in a Master Plan, different use of that land cannot be permitted. Similarly, if a Zonal Development Plan, the preparation of which is mandatory under section 8, provides for a particular use of any land or any building in that Zone, it cannot be put to a different use; if neither of the plans provide for the particular use of any land or building in the area or Zone, section 14 will have no application whatsoever. The respondents ' lands were not in any manner indicated as being taken up by any part of the proposed road mentioned in the Master Plan, nor was a Zonal Development Plan prepared, in the present case. Therefore, there was no violation of section 14 of the Development Act and hence there was no violation of 'any other law ' under section 336(2)(a) of the Corporation Act. [175 F 176G]

Special Leave Petition (Civil) No. 16085 of 1986. From the Judgment and order dated 28.7.1986 of the Kerala High Court in M.F.A. No. 482 of 1981. G. Vishwanatha Iyer and P.K. Pillai for the Petitioners. Soli J. Sorabjee, M.N. Jha and K.L. John for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an application for leave to appeal under article 136 of the Constitution from the judgment and order of the High Court of Kerala dated 28th July, 1986. The question involved in this case is whether where Eucalyptus is planted in the Travancore area of Kerala is a private forest or not. Act 26 being Kerala Private Forests (Vesting and Assignment) Act, 1971 came into operation in 1971. On 24th June, 1981 by a common order, the Forest Tribunal, Palghat held in favour of the respondent company, the Nilgiri Estate Ltd. that certain areas of forest did not vest in the government under the said Act. The High Court affirmed that finding. The propriety and validity of that decision are sought to be challenged by this application under article 136 of the Constitution. The factual parameters have to be borne in mind in the background of the relevant provisions of the Act. The said Act 26 by section 2(f) provides, inter alia, as follows: "(f) "private forest" means (1) in relation to the Malabar district referred to in subsection (2) of section 5 of the (Central Act 37 of 1956) (i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied 446 immediately before the appointed day excluding (A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964): (B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamom and lands used for any purpose ancillary to the cultivation such crops or for the preparation of the same for the market. Explanation Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops; (C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings; (ii) any forest nor owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas. (2) in relation to the remaining areas in the State of Kerala any forest not owned by the Government including waste lands which are enclaves within wooded areas: Explanation For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs; The Forest Tribunal in this case held, inter alia, in its order as follows: "The entire property in O.A. 39/79 (26.90 hectares corresponding to 66.50 acres) admittedly contains eucalyptus 447 trees raised by the petitioner as also cardamom plants here and there. The Superintendent in charge of the petitioner estate had deposed to that effect. The Range officer examined as R.W. 1 has stated that the disputed land on O.A. 39/79 lie in two bits and in both the bits there are eucalyptus trees raised by the petitioner, that they are aged between 12 to 15 years and are having a height of about 30 ft. It is also stated by him that at present there are cardamom plants but they are raised after 1971. " The Tribunal went on to record as follows: "But, the respondents have conceded that those trees are not of natural growth but they have been grown there with human skill, expenses and labour. That these trees are planted for purposes of fuel necessary for the manufacture of tea also admits of no doubt. " The tribunal concluded by stating: "The question whether eucalyptus plantations raised in a tea estate would be a forest or not has no bearing to the extent of the cultivation. It should be remembered that eucalyptus trees were raised in the instant case not for raising a forest but for supply of fuel necessary for the manufacture of tea. Hence I have no hesitation to come to the conclusion that the areas planted with eucalyptus trees in a tea estate do not form part of a vested forest or a private forest and therefore it is excluded from the purview of Act 26/71. In other words, the entire lands involved in O.A. 39/79 and 20 acres out of the property shown as item 1 in O.A. 146/78 which are eucalyptus plantations are not private forest and they have not vested in the Government. " On this basis, the High Court came to conclusion that the Tribunal was right. The High Court in its order observed: "The question whether forest lands planted with eucalyptus by employing agricultural operations would be forest was considered by this court in the decision of a Division Bench reported in State of Kerala vs Anglo American Direct Tea Trading Co. Ltd., The same question was considered over again by a Full Bench 448 of this Court in the decision reported in State of Kerala.v. A Moosa Haji, In the former decision, it was held: "As we have indicated in the absence of a definition of the term 'forest ' in Act 26 of 1971 we should take notice of the general meaning of the term as used in common parlance. Whether one would understand a eucalyptus plantation within a Tea estate or adjoining a Tea estate as forest in common parlance would necessarily be the test. This calls for consideration of the scope of the term 'forest" In the contest in which the term "Private forests" has been used in Act 26 of 1971, it is evident that it ap plies to lands other than those on which human skill, labour and resources have been spent for agricultural operations. In the light of what we have adverted to we do not think that the State has succeeded in establishing that the land in which eucalyptus has been planted in the Tea plantations could be said to be forest land and if so we should agree with the decision of the Forest Tribunal that it would be outside the purview of the vesting provisions in Act 26 of 197 1. " We are of the opinion that in view of the Finding recorded by the Tribunal, the decision and judgment of the High Court cannot be impugned. It is instructive that in respect of proceedings initiated under the Land Reforms Act, this Court in Malankara Rubber and Product Co. & Ors. etc. vs State of Kerala & Ors. etc. ; , observed at page 426 as follows: "Lands under eucalyptus or teak which are the result of agricultural operations normally would be agricultural lands. They would certainly not be forests but the statements in the petitions seem to suggest that operations were carried hereon for the express purpose of growing these plants and trees. However, lands which are covered by eucalyptus or teak growing spontaneously as in a jungle or a forest, would be outside the purview of acquisition. " 449 It is true as noted above that this observation was made in the context A of Land Reforms Act but it was held that lands on which eucalyptus or teak are planted would be agricultural lands. In this case it has been found as noted before that eucalyptus trees in the area concerned under dispute were raised in the instant case not for a forest but for supply of fuel necessary for the manufacture of tea, which is the industry carried on by the respondent company. In view of the aforesaid facts and in the light of provisions of the Act 26 of 1971, we are of the opinion that the view of the High Court is right in the facts and circumstances of this case and as such calls for no interference. The application is accordingly dismissed with no order as to costs. We had in this matter advantage of the assistance of Shri Vishwanath Iyer, counsel for the petitioners and Shri Soli Sorabji, counsel for the respondent. N.P.V. Petition dismissed.

The Forest Tribunal, Palghat, found that Eucalyptus trees raised by the respondent in the lands in dispute were not for raising a forest, but for supply of fuel necessary for the manufacture of tea. It held that the question whether Eucalyptus plantations raised in a tea estate would be forest or not, had no bearing to the extent of the cultivation, that the area planted with the Eucalyptus trees in a tea estate did not form part of a vested forest or private forest and was, therefore, excluded from the purview of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act 26 of 1971) and that the Eucalyptus plantations in question were not private forest and did not vest in the Government under the Act. Relying on an earlier Division Bench decision that in the context in which the term 'private forest ' had been used in the Act, it applied to lands other than those on which human skill, labour and resources had been spent for agricultural operations, the High Court held that the State had not succeeded in establishing that the land in which Eucalyptus had been planted could be said to be forest land and agreed with the decision of the Tribunal. On the question whether land planted with Eucalyptus in tea estate in the Travancore area of Kerala was a 'private forest ' or not in terms of section 2(f) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. Dismissing the Special Leave Petition, ^ HELD: The Eucalyptus trees in the area concerned under dispute were raised not for forest but for supply of fuel necessary for the manufacture of tea which is the industry carried on by the respondent Company. The High Court was, therefore, right in the facts and 445 circumstances of the instant case, in holding that the land in question was outside the purview of the vesting provisions contained in the Kerala Private Forests (Vesting and Assignment) Act, 1971. [449B C] Malankara Rubber and Product Co. & ors etc. vs State of Kerala & Ors. etc. ; , , referred to.

N: Criminal Appeal No. 605 of 1981. Appeal by special leave from the Judgment and Order dated the 8th April, 1980 of the Ahmedabad High Court in Criminal Appeal No. 218 of 1978 with Crl. Appeal No. 603 of 1978. M.C. Bhandare, T. Sridharan, Mrs. section Bhandare and Miss C.K. Sauhantia for the Appellant. Miss Maya Rao for Respondent No. 1. J.L. Jain and R.N. Poddar for Respondent No. 2. The Judgment of the Court was delivered by MISRA, J. In this appeal by special leave the narrow question that this Court proposes to examine is whether the High Court was right in holding that churning of the curd of which a sample was taken, if done with hand, was done in a proper manner so as to make the sample homogeneous and representative. The few relevant facts are that Shri G.A. Parikh Food Inspector attached to Baroda Municipal Corporation visited the shop of the respondent No.1 accused Madanlal Ramlal Sharma on September 4, 1976 around 7.20 a.m. He purchased curd from a container having 2 1/2 Kg of curd for the purpose of analysis. There was a board hanging on the outer side of the container that 11 the curd is prepared from cow 's milk. The Food Inspector purchased 600 grams of curd and after churning the curd, he divided it in three equal parts and prepared three separate samples, each kept in a separate bottle. After various formalities including obtaining the sanction for prosecuting the respondent accused. a complaint was filed in the Court of the learned Judicial Magistrate, First Class (Municipality) at Baroda. In the course of trial at the request of the accused the third sample was sent to the Central Food Laboratory for analysis and report. It may also be mentioned that the Food Inspector himself had sent one sample to the public analyst attached to the laboratory set up by the Municipal Corporation, for analysis of article of food. The report of the public analyst shows that the sample of curd contained 3% milk fat and 11.7% milk solid non fat. On the other hand, the report of the Central Food Laboratory, Calcutta (exhibit 15) shows that milk fat was 2.95% and milk solid non fat 10.8%. It was opined that the sample of curd was adulterated. The learned Magistrate held that the curd in question was prepared out of cow 's milk, that it did not conform to the prescribed standard and reached the conclusion that the prosecution case was established beyond a shadow of reasonable doubt. Consequently, the learned Magistrate convicted the first respondent accused for an offence under section 7 (1) read with section 16 (1)(a)(1) of the and sentenced him to suffer rigorous imprisonment for four months and to pay fine of Rs. 500 in default to suffer further rigorous imprisonment for two months. The first respondent accused preferred Criminal Appeal No.46 of 1977 in the Court of Sessions at Baroda. The learned Additional Sessions Judge who heard the appeal, inter alia, held that proper churning of the sample having not been done, the sample cannot be said to be homogeneous and representative of the curd in question so as to arrive at a proper conclusion on analysis of the sample and on the short ground acquitted the accused. Two appeals were preferred against the judgment of the learned Sessions Judge. Criminal Appeal No. 218 of 1978 was preferred by the State of Gujarat and Criminal Appeal No. 603 of 1978 was preferred by the complainant Food Inspector. A division Bench of the Gujarat High Court disposed of both the appeals by a common judgment. The High Court affirmed the 12 acquittal observing that 'the conclusion is inescapable that the prosecution has failed to prove that the churning was done in a proper manner so as to make the entire curd one and all the samples would be identical in themselves. ' Hence this appeal by special leave by the complainant Food Inspector. The sample of curd was taken on September 4, 1976. Six years have passed and two courts have concurred in acquitting the accused, namely, the Sessions Judge and the High Court. We are, therefore, reluctant to interfere with the order of acquittal. But the learned counsel Mr. M. C. Bhandare for the appellant, Food Inspector and the learned counsel Mr. Nain appearing for the State of Gujarat second respondent supporting the appellant, urged that irregularity in churning the curd before sampling the same in bottles, as found by the High Court, if allowed to remain unquestioned, it would have an adverse effect on a large number of pending cases. We are, therefore, only inclined to examine the legal submission and we may make it absolutely clear that we are disinclined to interfere after six years in what is found to be marginal adulteration by the learned Magistrate so as to send the respondent to jail, though we must make it abundantly clear that we do not look upon with equanimity on offences under the because these offences have the deleterious effect playing havoc with the health and well being of a large segment of the Society. But the acquittal by two courts and delay of six years and coupled with the finding that there was marginal adulteration would certainly be a disincentive to interfere with the Order. It is indisputable that curd is an article of food. Rule 22 of the Prevention of Food Adulteration Rules, 1955 (Rules for short) provides that in the case of curd, a quantity of 200 grams has to be sent to the public analyst/Director of Central Food Laboratory for analysis. The Standard for cow 's milk for Gujarat as prescribed under the Rules is that it must contain 3.5% milk fat and 8.5% milk solids non fat. Further provision is that the curd obtained from any kind of milk shall have the same content as the milk fat and milk solids non fat as the milk from which it is prepared. Section 13 (3) of the Act, provides that the certificate issued by the Director of Central Food Laboratory under section 2 B shall supersede the report given by the public analyst under 13 sub section (1). The report of Central Food Laboratory shows that the sample contained 2.9% of milk fat. Therefore, the conclusion that the sample of curd was adulterated is unquestionable. The learned Sessions Judge found that after purchasing the curd in order to make the sample homogeneous and representative, churning was not done as required and therefore the sample was not both homogeneous and representative and therefore the accused could not be said to have sold or stored for sale adulterated curd. While affirming this conclusion the High Court has observed that the evidence of exhibit 49 Devsibhai Ramjibhai, a defence witness and the statement of the accused recorded under section 248 (2) Cr. P.C. would show that the churning was not done by an instrument but the complainant had done it with his hand and thereafter curd was divided into three parts and three sample bottles were filled. The High Court then observed that on this point Devsibhai Ramjibhai had not been cross examined. The High Court while proceeding to appreciable the evidence of Devsibhai Ramjibhai accepted it in preference to the other evidence of the complainant who had stated that the churning was done with a spoon. Then comes the observation of the High Court which clinches the matter. It reads as under: "But fortunately for the prosecution when the spoon aspect becomes doubtful, and when the defence version clearly found by us on record is that the allegation is that the churning was done by means of hand alone, it was quite necessary for the prosecution to challenge this version of the defence which has been given by the defence witness on oath. In the absence of that, unfortunately, we have come to the conclusion that the prosecution has failed to prove that the churning was done in a proper manner so as to make the entire curd one and all the samples would be identical in themselves. " The High Court held that on this short ground alone the acquittal must be affirmed. With respect, we find it very difficult to subscribe to the view taken by the High Court. Rule 14 provides that sample of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall 14 be closed sufficiently, tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. Rule 15 provides for labelling and addressing the bottles. Rule 16 provides for packing and sealing the samples. Rule 20 enables the Food Inspector to add prescribed preservative to the sample. Rule 22 prescribes quantity necessary for analysis. It may be recalled that section 11 prescribes procedure to be followed by Food Inspector, Our attention was not drawn to any provision in the Act or the Rules making it obligatory that churning should be done with some machine so as to make a sample homogeneous and representative sample. We are conscious of the fact that in milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. For this purpose churning is one of the methods of making the sample homogeneous and representative. But having said this, there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument, and that churning done by hand would not provide a homogeneous and representative sample. Commonsense dictates that articles of food like milk and curd when churned with hand would properly mix up from top to bottom. More so when the quantity is either 600 grams which was the quantity purchased or 2 1/2 kgs. which was the quantity in the container. There was evidence that the churning was done by spoon. But even if the High Court found that evidence unreliable and evidence of defence witness Devsibhai Ramjibhai so much, reliable that it was prepared to act upon it disagreeing with the other evidence, the evidence of Devsibhai Ramjibhal was that churning was done with hand, and he did not say that the churning was not effective. We therefore find it difficult to subscribe to the view of the High Court that the churning is required to be done by some instrument or that the churning done by hand would not meet with the requirements of making a sample homogeneous and representative. There has to be a finding that the churning done with hand was not adequate. There is no such finding. We are, therefore, of the 15 opinion that the High Court was not justified in confirming the acquittal on this ground. Having made the position in law clear, as we understand it, we decline to set aside the acquittal. Subject to above observation the appeal is dismissed. H.L.C. Appeal dismissed.

The respondent was convicted and sentenced for an offence under the on a complaint that a sample of curd purchased from his shop had been found not to conform to the standard prescribed. He preferred an appeal and the Sessions Judge acquitted his on the short ground that the sample was not homogeneous and representative of the curd purchased as the curd had not been churned properly before it was sent for analysis. The High Court affirmed this conclusion and dismissed the appeals filed against the order of acquittal. The High Court, in preference to the evidence of the complainant that the churning of the sample had been done with a spoon, placed reliance on the evidence led by the defence that the churning had not been done by any instrument but it had been done by the complainant with his hand. The High Court stated that since the prosecution had not challenged the defence version that the churning of the sample had been done by means of hand alone, it had failed to prove that the churning had been done in a proper manner. Declining to interfere with the acquittal of the respondent by the two lower courts after a lapse of six years and dismissing the appeal, ^ HELD: In milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. For this purpose churning is one of the methods of making the sample homogeneous and representative. But, there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument and that churning done by hand would not provide a homogeneous and representatives sample. Commonsense dictates that articles of food like milk and curd when churned with hand would 10 properly mix up from top to bottom. More so when the quantity is either 600 grams which was the quantity purchased or 2 1/2 kg. which was the quantity in the container. [14 C E] In the instant case, there was evidence that the churning was done by spoon. But even if the High Court found that evidence unreliable and the evidence of defence witness so much reliable that it was prepared to act upon it disagreeing with the other evidence the evidence of defence witness was that churning was done with hand, and he did not say that the churning was not effective. It is therefore difficult to subscribe to the view of the High Court that the churning done by hand would not meet with the requirements of making a sample homogeneous and representative. There has to be a finding that the churning done with hand was not adequate. There is no such finding. The High Court was, therefore, not justified in confirming the acquittal on this ground. [14 F H; 15 A]

ition No. 449 of 1980. (Under Article 32 of the Constitution) Soli J. Sorabjee, M.G. Karmali, Vineet Kumar and Mukul Mudgal for the Petitioner. J.L. Nain and M.N. Shroff for the Respondent. The Judgment of the Court Was delivered by, SARKARIA, J. This is a petition under Article 32 of the Constitution for the issuance of a writ of habeas corpus. On January, 31, 1980, an order of detention, dated January 30, 1980 under Section 3 (1) of the (for short, called the COFEPOSA), issued by the second respondent, Shri P.M. Shah, Deputy Secretary to the Government of Gujarat, Home Department, was served on Lallu Jogi Patel (hereinafter referred to as the 'detenu '). The Order was expressed in the name of the Governor of Gujarat. On the same date (January 31, 1980), the grounds of detention were served on the detenu. 356 The grounds of detention served on the detenu are very elaborate and detailed. They also contain the introductory background including the history of the detenu. It is stated herein that the detenu was previously detained by an order, dated September 1974 of the Government of India, under Section 3 of the Maintenance of Internal Security Act (MISA). On the repeal of MISA and the commencement of COFEPOSA, a fresh order, dated December 19, 1974, under the COFEPOSA, was served on the detenu. The detenu 's writ petition for a writ of habeas corpus was dismissed by the High Court of Gujarat on May 6, 1976 in view of the Presidential Order, dated June 27, 1975, made under Article 359(1) of the Constitution which had suspended the rights under Articles 14, 21 and 22 of the Constitution. The detenu was, however, released on March 21, 1977. As stated in the 'grounds ', his activities were kept under surveillance by the Customs Department. In or about July 1979, the detenu attempted to smuggle gold, but he was not successful. Calls booked by the detenu to various telephone numbers of other suspected smugglers were, however, detected. On November 21, 1979, the detenu hatched a conspiracy with one Umar Bakshi to smuggle wrist watches and silver out of the country to Dubai: In pursuance of that conspiracy, on October 9, 1979, the detenu and the said Umar Bakshi smuggled about 45 slabs of silver in the vessel "Saraswati Prasad" registered in the name of Ravia Kalan of Daman. On November 30, 1979, 23 slabs of silver weighing, in aggregate, 692.527 kgs. valued at Rs. 15,65,111, were seized by the officers of the Collectorate of Central Excise and Customs from a truck which was intercepted near village Pipodara. The occupants of the motor truck disclosed their identities as (1) Kailashchandra Shantilal Jain. (2) Mohmed Hussain Hanif Mohmed Pathan, the driver and (3) Babukhan Istiyarkhan Ahmed Pathan, the cleaner. all of Udaipur. The statements of these persons recorded under Section 108 of the Customs Act and the other circumstantial evidence collected, revealed that the detenu was engineering the whole process of attempting to smuggle the silver out of India in conspiracy with Umar Bakshi and others. In para 35 of the 'grounds ', it is mentioned: "The detaining authority, viz., the State Government considered it against the public interest to disclose the sources of the intelligence referred in paragraphs 3. 4. 6 and 30 and 357 further considered it against public interest to disclose further facts contained in various intelligence reports referred to in the aforesaid paragraphs 3, 4, 6 and 30. " On February 15, 1980, the detenu sent a letter. through the Superintendent Jail, requesting for the supply of copies of statements and documents relied upon in the grounds of detention. According to the counter filed by Shri Shah, Deputy Secretary to Government of Gujarat, this letter was received by the State Government on February 18, 1980. The State Government then on February 22, addressed a letter to the Sponsoring Authority (Collector of Customs. Ahmedabad, enquiring whether furnishing copies of documents would not prejudice public interest. On February 25, 1980, the Collector wrote back to the State Government that it was not necessary to supply the copies of the statements and documents asked for by the detenu, "as the grounds of detention served on him were quite elaborate to enable the detenu to make effective representation". The Collector sent copies of the required statements to the State Government and the latter received the same on February 29, 1980. On March 4, 1980, the second respondent (Deputy Secretary, Home Department) arranged personal discussion with the Collector to solicit his considered view. As a result, on March 5, 1980, the Collector sent a letter to the State Government, stating that he had no objection to furnish the detenu with relevant documents. As per letter, dated March 7, 1980, the Section Officer of the Home Department sent the relevant documents running into 461 pages, to the detenu through the Superintendent, District Prison, Rajkot, by registered acknowledgement due. The said documents were received by the detenu on March 11, 1980 at Rajkot. Thus, after excluding the time taken in transit, there was a delay of 17 days in furnishing copies to the detenu. Earlier, on February 1, 1980, Shri P.K. Nair, Advocate had addressed a letter to the Chief Minister of Gujarat asking for permission for an interview with the detenu to seek instructions from him for drafting his representation. On February 12, 1980, the Secretary to Chief Minister wrote in reply to the Advocate, that his request for having an interview with the detenu was being looked into by Government with the Home Department. This letter of the Advocate, according to the counter affidavit filed by Shri Shah, was received by him on February 30, 1980 through the Chief Minister 's 358 Secretariat. On February 20, 1980, the State Government informed the Advocate that his request for interview with the detenu had been granted. Mr. Soli Sorabji, appearing for the petitioner, challenges the validity of the detention of these grounds: (1) There has been impermissible delay in furnishing copies of the documents and statements relied upon in the grounds of detention. (2) There was unreasonable delay of about 20 days in granting interview to the detenu with his lawyer, as a result of which the statutory right of the detenu under rule 14 (xii) of the Gujarat Condition of Detention (COFEPOSA) Order 1975 has been rendered meaningless. The combined effect of these undue delays (Nos. 1 and 2) is that the detenu has been denied his constitutional right to be afforded the earliest opportunity of making an effective representation against his detention, and thus there has been a violation of Articles 21 and 22 (5) of the Constitution. In support of Nos. (1) and (2), the learned counsel has referred to Khudi Ram Das; Jayanarayan Sukul vs State of West Bengal; Madhav Hayawadanrao Hoskot vs State of Maharashtra and Ramchandra A. Kamat vs Union of India & Ors. (3) The counter affidavit filed in response to the rule nisi issued by this Court, has not been affirmed by the detaining authority, but by another officer, on the basis of information derived from the record, only. (4) Irrelevant matter has been taken into consideration. In reply to these contentions, Mr. Nain, appearing for the respondent State has urged these points: (a) (i) The 'grounds of detention ' which were served on the detenu simultaneously with the order of detention, were elaborate and full and had apprised the detenu of all the information necessary for making an effective representation against his detention. "Grounds of detention", as held by this Court in State of Bombay vs Atma Ram Sridhar Vaidya, in Article 22 (5) means only 'conclusions of facts ' and not all the evidence or factual details considered by the 359 detaining authority in passing the impugned order. What Article 22 (5) obligates is that the 'grounds of detention ' should be communicated to the detenu at the earliest. This constitutional obligation was fully discharged when the elaborate grounds of detention containing the substance of all the material facts, were served on the detenu. (ii) In these circumstances, the detenu had no further constitutional right to be supplied with the details and sources of the information on which the order of detention was passed. Reference has also been made to Vakil Singh vs State of Jammu & Kashmir. (b) The detenu as is apparent from the grounds of detention is engaged in smuggling activity in a big way, having international ramifications. Investigations were going on to unravel the entire gang of international smugglers in league with the detenu. The detaining authority had, therefore, to consider as to whether the disclosure of this information asked for by the detenu, at that stage, would not be detrimental to public interest, and if so, whether it would be in the public interest to invoke Article 22 (6) of the Constitution to withhold the copies asked for by the detenu, for some time. For this important purpose consultation with the Collector who was supervising the investigations, was necessary. The documents of which the copies were asked for, also run into several hundred pages. If these inter departmental consultations, preparation and despatch of the copies took 17 days, in a case where the detenu has been indulging in smuggling activity of this magnitude, the delay in supplying the copies was neither inordinate, nor unreasonable. Reference has been made to the counter affidavit filed on behalf of respondents 1 and 2. (c) The period of delay in allowing the detenu to interview his lawyer, was of no consequence. First, Article 22 in terms, denies to the detenu the right to consult a lawyer or to be defended by a counsel of his choice. This concession, has, however, been conceded by the State Government under rule 14 (xii), and there also, it is not an indefeasible right as it is contingent upon the grant of permission by the State Government. There is a distinction between a constitutional right and a defeasible statutory right. Delay in grant of the interview with the lawyer in no way affects the constitutional right of the detenu to make a representation. Secondly, no written request for supply of copies of the documents, prior to February 18, 1980 had been received from the detenu and the lawyer 's request for interview with the detenu was granted on 360 February 20, 1980. The time taken for considering the lawyer 's request for interview cannot be combined with or added to the period taken for supply of the copies. (d) Lastly, the delay in supply of copies or in granting the interview with the lawyer did not in any way prejudice the detenu. The copies were demanded and the interview with the lawyer were sought, professing that these were required for the purpose of making an effective representation. But this professed purpose was merely a pretence because the copies were neither necessary, nor intended to be used for any such purpose. Despite the grant of these twin requests and the despatch of the copies on March 7 and their receipt on March 17, the detenu never filed any representation, although the Advisory Board was to meet shortly thereafter on March 24, 1980. Instead, he rushed to this Court and filed the writ petition on March 17, 1980. This conduct of the detenu is not making any representation, despite opportunity, shows that no prejudice has been caused to him merely by the fact that the copies were despatched to him after 17 days of receiving his request. (e) Under the statute even "grounds" of detention can be communicated to the detenu, in exceptional cases within 15 days of the detention. If the "grounds" communicated within the prescribed period are elaborate then supply of further particular is only two days after the expiry of the fifteen days period prescribed for communicating the "grounds" in exceptional cases. cannot be said to be unreasonably belated. Contentions 3 and 4 canvassed by Shri Sorabji need not detain us. Shri Nain has produced for the perusal of the Court the original official record from which it is clear that the detention order was passed by the Home Minister. It was authenticated and issued under the Rules of Business by Shri P.M. Shah, Deputy Secretary. Home Department (Special) who has sworn the counter affidavit in this case. No personal mala fides are alleged against the Minister. It was, therefore. not necessary for the Minister to file the counter himself. Contention 3 is, therefore, overruled. What the learned counsel characterises as "irrelevant" matter incorporated in the grounds of detention are really introductory facts or history of the case. We, therefore, negative contention 4, also. Indeed, the main arguments of the learned counsel are Nos. (1) and (2) that there has been unreasonable delay in supplying the 361 copies of the material documents and statements relied upon or referred to in the grounds of detention. To appreciate these contentions, it is necessary to have a clear idea of the import and scope of the expression 'grounds ' used in the context of 'detention ' in Article 22 (5) of the Constitution and in sub section (3) of Section 3 of COFEPOSA. A democratic constitution is not to be interpreted merely from a lexicographer 's angle but with the realisation that it is an embodiment of the living thoughts and aspirations of a free people. "A constitution" said Benjamin Cardozo, "states or ought to state not rules for the passing hour, but principles for an expanding future". The concept of "grounds", therefore, has to receive an interpretation which will keep it meaningfully in tune with the contemporary notions of liberty and fundamental freedom guaranteed in Articles 19 (1), 21 and 22 of the Constitution. It is not necessary to notice all the numerous cases in which this expression in the context of Article 22 (5) has come up for consideration. It will suffice to make a brief reference to a few of them which are in point. In Golam vs The State of West Bengal, this Court held that in the context of Article 22 (5) 'grounds ' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of fact. It means something more. That 'something ' is the factual constituent of the 'grounds ' on which the subjective satisfaction of the authority is based. This decision was approved by a larger Bench in Khudaram Das vs West Bengal, ibid, wherein Bhagwati, J. speaking for the Court, said: "The constitutional imperatives enacted in Article 22 (5) are two fold: (i) 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 has been made; and (ii) the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order. These are the barest minimum safeguards which must be observed before an executive authority can preventively detain a person". It was explained that 'grounds ' under Article 22 (S) mean all the basic facts and materials on which the order of detention is based, therefore, all the basic facts and materials which influenced the detaining authority in making the order of detention, must be communicated to the detenu. It was further clarified that such "basic facts and materials" would be different from "other particulars" spoken of in sub section (3) of Section 3 of M.I.S.A. 362 Earlier, in Prabhu Dayal Deorah etc. vs District Magistrate, Kamrup & Ors., Mathew, J., speaking for the majority, elucidated the position, thus: "The detenu has a right under Article 22 (5) of the Constitution to be afforded the earliest opportunity of making a representation against the order of detention. That constitutional right includes within its compass the right to be furnished with adequate particulars of the grounds of detention order. " From these decisions it is clear that while the expression "grounds" in Article 22 (IS), and for that matter, in Section 3 (3) of the COFEPOSA, includes not only conclusions of fact but also all tho 'basic facts ' on which those conclusions are founded, they are different from subsidiary facts or further particulars of the basic facts. The distinction between "basic facts" which are essential factual constituents of the "grounds" and their further particulars or subsidiary details is important. While the "basic facts" being integral part of the "grounds" must, according to Section 3 (3) of COFEPOSA "be communicated to the detenu, as soon as may be, after the detention, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention", further particulars of those grounds, in compliance with the second constitutional imperative spelled out from Article 22 (S) in Khudi Ram 's case, are required to be communicated to the detenu, as soon as may be practicable, with reasonable expedition. It follows, that if in a case the so called "grounds of detention" communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded, and this deficiency is not made good and communicated to the detenu within the period specified in Section 3 (3), the omission will be fatal to the validity of the detention. however, the grounds communicated are elaborate and contain all the "basic facts" but are not comprehensive enough to cover all the details or particulars of the "basic facts", such particulars, also must be supplied to the detenu, if asked for by him, with reasonable expedition, within a reasonable time. What is ' 'reasonable time conforming with reasonable expedition", required for the supply of such details or further particulars, is a question of fact depending upon the facts and circumstances of the particular case. In the circumstances of a given case, if the time taken for supply of suck additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds 363 it may still be regarded "reasonable". while in the Pacts of another A case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Khudi Ram 's case (Supra). In the instant case, the grounds supplied to the detenu were elaborate and full and contained all the "basic facts", although they did not set out all the details or particulars of those "basic facts" relied upon or referred to therein. There was thus no breach of the first constitutional imperative embodied in Article 22 (5). The short question, therefore, for consideration is: Was the period of 17 days (exclusive of the time taken for communication in transit) for the supply of the further, particulars of the basic facts to the detenu "unreasonable" in the circumstances of the case ? In the instant case, several causes contributed to this "delay". Firstly, this is a case in which the detenu was, according to the allegations in the grounds of detention and the averments in the counter affidavit filed by Shri P. M. Shah, Deputy Secretary (Home) to the Government of Gujarat, indulging in smuggling out silver from India and exporting it to the gulf countries in a big way. This silver which was the subject of this illegal activity, was of huge value. The smuggling activity attributed to the detenu had international ramifications. The Collector of Customs was supervising the investigations that were going on at several places, in several countries, to unearth and detect all the persons who were involved in this large scale organised smuggling of international dimensions. It was, therefore, not unreasonable for the detaining authority to consult the Collector of Customs as to the possible detrimental effect of the supply of the copies, at that stage, on the investigations which were still going on. Such a query from or consultations with the Collector was necessary, to enable the detaining authority to make up its mind as to whether or not, it would be advisable to withhold in the public interest the supply of the copies asked for by the detenu or any part thereof under Article 22 (6). Indeed, at one stage, the Collector wrote back that the supply of the copies, at that stage, would be detrimental to the investigations which were in progress and it also might endanger the safety of the witnesses and informants. The Government, therefore, summoned the Collector and discussed the matter at a high level meeting and then directed the Collector to supply the copies. Secondly, the documents or statements of which copies were sought covered more than 461 pages. Preparation of such a bulky record could be time consuming, if the aid of some appliance like the ZEROX machine were not available to prepare the copies by mechanical process. 364 The third reason for delay which is in the nature of and explanation given by the respondent is that it has not caused any prejudice to the right of the detenu 'to make an effective representation, since the grounds of detention communicated to him were elaborate and full. Indeed, in the counter affidavit an alter native stand taken by the respondent is, that the detaining authority was not under any constitutional or statutory obligation to supply copies of these additional materials because the grounds communicated to the detenu were elaborate. Shri Nain has also tried to support this reasoning. In view of the law enunciated in Khudi Ram 's case, ibid, this stand taken by the respondent is utterly unsustainable. Be that as it may, in the totality of the circumstances of this present case we do not think that the period of about 17 days taken in considering the supply of the copies was an unreasonably long period which could amount to a denial of the detenu 's right to make an effective representation. In considering the reasonableness or otherwise of the time taken in supplying the copies, the circumstance that the grounds of detention already communicated to the detenu were very elaborate and full is not altogether irrelevant. The copies were despatched to the detenu by registered post on March 7, 1980 and were received by him on March 11, 1980 at Rajkot. The Advisory Board was scheduled to meet shortly thereafter on March 24, 1980. The detenu was also allowed by an order, dated February 20, 1980, to be interviewed by his lawyer. Although the Government took more than two weeks to consider the lawyer 's request to interview the detenu, the fact remains that this permission was granted only two days after the despatch of the detenu 's application for obtaining copies of the additional documents or materials. In spite of the grant of the detenu 's lawyer 's request for interview with his client and the supply of the copies, the detenu did not make any representation to the detaining authority or for the consideration of the Advisory Board. This is also a relevant circumstance to be taken into account for determining whether the delay in supplying the copies, has, in fact, prejudiced the detenu 's right to make a speedy and effective representation. According to the petitioner his lawyer by a letter, dated February 1, 1980, sought an interview to enable him to draft his representation. But no application for obtaining copies of the material documents had been made by the detenu till February 15118, 1980, when it was put in a course of communication to the 365 Government, while permission for interview with the lawyer was granted on the 20th February. In short, on a consideration of all the circumstance of this particulars case, we are of opinion that the delay of 17 days in question, was not so unreasonable as to amount to an infraction of the constitutional imperatives in Article 22 (5) of the Constitution. These, then, are the reasons in support of our order, dated May 9, 1980 by which we dismissed the writ petition. S.R. Petition dismissed.

Lallu Jogi Patel was detained on January 31, 1980 by an order of detention dated January 30, 1980 passed by the Minister of Home Affairs, Gujarat State under Section 3(1) of the and issued by the second respondent a Deputy Secretary of Government of Gujarat, Home Department. The order was expressed in the name of the Governor of Gujarat. On the same date, the grounds of detention were served on the detenu. The detenu prayed for copies of the statements and documents relied upon in the grounds of detention on February 15, 1980. On February 1, 1980 the detenu 's Advocate sought permission for an interview with the detenu to seek instructions from him for drafting his representation. On February 20, 1980 the State Government informed the Advocate that his request for interview with the detenu had been granted. After consulting the Collector of Customs, the Home Department also, supplied to the detenu the documents running into 461 pages on March 7, 1980 which were actually received by the detenu on March 11, 1980. that is after a delay of 17 days, excluding the time taken in transit etc. Dismissing the petition, the Court ^ HELD: (1) In view of the fact that the original detention order was, in fact, passed by the Home Minister against whom no personal mala fides are alleged and the said order was authenticated and issued under the Rules of Business by the Deputy Secretary, Home Department (Special), the latter 's swearing the counter affidavit in the case is valid. [360 F G] (2) The introductory facts or history of the case incorporated in the grounds of detention cannot be considered as irrelevant matters which went into the consideration of the detention order. [360G H] (3) A democratic Constitution is not to be interpreted merely from a lexicographer 's angle but with a realisation that it is an embodiment of the living thoughts and aspirations of a free people. The concept of "grounds" used in the context of detention in Article 22(5) of the Constitution and in sub 354 section (3) of Section 3 of COFEPOSA, therefore, has to receive an interpretation which will keep it meaningfully in tune with a contemporary notions of liberty and fundamental freedoms guaranteed in Article 19(1), 21 and 22 of the Constitution. [361 A C] (4) In Khudiram Das vs West Bengal the Supreme Court held that the constitutional imperatives enacted in Article 22(5) are two fold: (i) 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 has been made; (ii) the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order and that these two are the barest minimum safeguards which must be observed before an executive authority can preventively detain a person; the grounds under Article 22(5) mean all the basic facts and materials on which the order of detention is based, therefore, all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenue. [361 D G] (5) While the expression "grounds" in Article 22(5), and for that matter, in Section 3(3) of the COFEPOSA, includes not only conclusions of fact but also all the "basic facts" on which those conclusions are founded, they are different from subsidiary facts or further particulars or the basic facts. The distinction between "basic facts" which are essential factual constituents of the "grounds" and their further particulars or subsidiary details is important. While the "basic facts" being integral part of the "grounds" must, according to Section 3(3) of COFEPOSA "be communicated to the detenu, as soon as may be, after the detention, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention", further particulars of those grounds, in compliance with the second constitutional imperative spelled out from Article 22(5) in Khudi Ram 's case, are required to be communicated to the detenu. as soon as may be practicable, with reasonable expedition. It follows, that it in a case the so called "grounds of detention" communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded, and this deficiency is not made good and communicated to the detenue within the period specified in Section 3(3), the omission will be fatal to the validity of the detention. If, however, the grounds communicated are elaborate and contain all the "basic facts" but are not comprehensive enough to cover all the details or particulars of the "basic facts", such particulars also, must be supplied to the detenu, if asked for by him, with reasonable expedition, within a reasonable time. What is "reasonable time conforming with reasonable expedition", required for the supply of such details or further particulars, is a question of fact depending upon the facts and circumstances of the particular case. In the circumstances of a given case, if the time taken for supply of such additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds it may still be regarded "reasonable", while in the tacts of another case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Khudi Ram 's case. [362 C H, 363 A] In the instant case there is no breach of the first constitutional imperative embodied in Article 22(5). The grounds supplied to the detenu were elaborate and full and contained all the "basic facts" although they did not set out all the details or particulars of those "basic facts" relied upon or referred to therein. [363 A B] 355 (6) In the totality of the circumstances of the present case, the period of 17 days taken in considering the supply of the copies was not an unreasonably long period which could amount to a denial of the detenu 's right to make an effective representation and, therefore, infraction of the constitutional imperatives in Article 22(5) of the Constitution. Firstly, the detenu was indulging in smuggling out silver from India and exporting it to the Gulf countries in a big way and the smuggling activity attributed to the detenu had international ramifications resulting in consultation with several authorities supervising the Customs. The Government had to consult the Collector of Customs and even summon and discuss in a high level meeting before ordering the supply of the copies. Secondly, the documents and statements of which the copies were sought covered more than 461 pages. Preparation of such a bulky record could be time consuming if the aid of some appliance like the Zerox machine were not available to prepare the copies by mechanical process. Thirdly, in spite of the grant of the request of the detenu 's lawyer to interview the former and the supply of the copies the detenu did not make any representation to the detaining authority or for the consideration of the Advisory Board which is a relevant circumstance to be taken into account for determining whether the delay in supplying the copies has, in fact, prejudiced the detenu 's right to make a speedy and effective representation. [363 C E, H, 364 A D G] Khudi Ram vs State of West Bengal, ; , Golam vs The State of West Bengal, W.P. 270 of 1974 dated 12 9 74; Prabhu Dayal Deorah etc. vs District Magistrate. Kamrup & Ors., ; referred to.

ivil Appeal No. 1130 of 1990. From the Judgment and Order dated 19.6.1989 of the Patna High Court in L.P.A. No. 51 of 1987. G.B. Pai, S.K. Patri and J.R. Das for the Appellant. Dr. S.K. Ghose, Mrs. M. Qammaruddin and M. Qammaruddin (NP) for the Respondents. The Judgment of the Court was delivered by 404 K. JAGANNATHA SHETTY, J. Special Leave granted. Whether International Labour Day (1st May) should be paid holiday in addition to the existing holidays for the employees of the appellant Company is the sole question for determination in this appeal. The appellant is a public limited company having manufacturing units and selling outlets in the different parts of the country. In the State of Bihar the company has an establishment at Mona Road, Burma Mines, Jamshedpur manufacturing Industrial and Medical Cases and there is another establishment located at Ranchi manufacturing liquid Oxygen Explosives. The holidays available to the employees of the company 's establishment are provided by the settlement dated 14 March 1971. The settlement provides for a total number of 13 holidays for office staff and 14 holidays for the factory staff. The relevant portion of the settlement reads: "Provision of Settlement dated 14.3. 1971 ARTICLE: Leave and Holidays (c) The number of National/Festival Holidays to which the factory staff and factory general staff are entitled will be enhanced from the present number of 10 to 14 days including 3 National Holidays viz. Republic Day, Independence Day, Mahatma Gandhi 's birthday and Viswakarma Puja. (d) The number of National/Festival holidays for office and office general staff will be enhanced from 17 to 18 days per calendar year including 3 National Holidays viz. Republic Day, Independence Day and Mahatma Gandhi 's birthday. " In 1977, the State of Bihar enacted the Bihar Indus trial Establishments (National and Festival Holidays and Casual Leave) Act, 1971 (Act No. 17 of 1977) (called shortly as the 'Act ') making provisions for National/Festival holi days and casual leave for workers. We are concerned with Sections 3 and 13 of the Act which must be set out in full: "Section 3 405 National and Festival Holidays: (1) Every employee shall be granted following in each calen dar year in such manner and on such terms and conditions as may be prescribed: (a) Three National Holidays on the 26th January, 15th August and 2nd October. (b) Four other holidays on any festival out of the festivals mentioned in the schedule. (c) International Labour Day on 1st May. (2) The Government may add to or exclude a festival from the Schedule by a notification in the official Gazette and on publication of such notification, the Schedule shall be deemed to be amended accordingly." Section 13 of the Act . "Right and privileges Under any other law not to be affect ed: Where any employee of an industrial establishment is entitled to such rights and privileges under any other law for the time being in force or under any contract or custom or usage applying to the said establishment, which are more favourable to him, than any right and privileges conferred by this Act, nothing contained in this Act shall affect such rights or privileges. " It will be convenient if at this stage, we also read sub rule 3 of the Rule 3(2) of the Bihar Rules framed under Section 14 of the Act: "Rule 3. National Festival Holidays: (1) xxx xxx xxx (2) Each employer of an industrial establishment shall at the beginning of each calendar year or within 60 days from the date of commencement of work in the case of new indus trial establishments, display a notice asking his employees to indicate their choice in respect of 4 festival holidays out of the list of festival holidays mentioned in the 406 schedule under sub section (1)(b) of Section 3 of the Act. " Section 3 makes it mandatory to declare holidays on 6th January, 15th August, 1st May and 2nd October, besides 4 other holidays on festivals out of the festivals mentioned in the schedule. Subrule (2) of rule 3 provides procedure for fixing the four festival holidays at the beginning of each calendar year. The employer shall display a notice asking his employees to indicate their choice in respect ot 4 festival holidays out of the list of festival holidays mentioned in the schedule to section 3(1)(b). Section 13 provides that the rights and privileges of the workmen under any other law or under any contract or custom or usage applicable to the establishment which are more favourable to the workmen than that conferred by the Act shall not be affected. Since the employees of the compa ny 's establishment at Jamshedpur were allowed more favour able holidays every year i.e. 18 (for office staff) and 14 (for factory staff) against the total of 3 holidays provided for in the Act, the company wanted to declare the first May as holiday by adjusting the holidays allowed in the settle ment. 'The workmen, however took the stand that the first May should not be adjusted within the total number of holi days provided in the settlement but should be given as an additional holiday. Negotiations followed but neither side was willing to give up its claim. The conciliation officer could not bring about settlement. Upon failure of conciliation, the statuto ry authorities directed the company to declare 1st May as holiday in addition to the holidays provided for in the settlement. The company moved the High Court under Article 226 of the Constitution challenging the direction of the authorities. The High Court dismissed the writ petition observing thus: "Under the existing arrangement, the employees are having 14/18 paid holidays in an year and that cannot be defeated by Section 3 of the Act. But section 13 expressly provides that if the rights and privileges in respect of paid holi days enjoyed by the employees are more favourable than are prescribed by section 3, their existing rights and privi leges as to the total number of holidays will not be preju diced by section 3. It is clear that section 3 is not in tended to prescribe a minimum number of paid holidays in addition to the existing ones. The holiday on the 1st May prescribed under the Act being compulsory in nature, 407 therefore, must be in addition to the privileges already granted to the workmen under the agreement. " We are afraid we cannot agree with this line of reason ing adopted by the High Court. In fact, the conclusion and the reasoning seem to be inconsistent with each other. Section 3 provides for three National holidays, one Interna tional Labour Day, and four festival holidays. It thus statutorily fixes.eight paid holidays, four out of them are left to the choice of the management and employees for festival occasions. These eight holidays however, are not in addition to the holidays that are mutually agreed upon in the settlement. They are the minimum holidays which the employees are entitled to. If there is existing settlement by which the employees are entitled to more than eight holidays the management could not take away that rights and privileges. To protect the employees in such cases the Statute intervenes by Section 13. If the employees are entitled to more than eight holidays ' under any contract or usage applicable to the said establishment, or under any other law for the time being in force that rights and privi leges are saved by section 13. This seems to be the require ment of the statute. The case with not a dissimilar problem was in Tata Oil Mills Co. vs K.V. Gopalan & Ors. , There this Court considered the scheme and scope of sections 3 and 11 of the Kerala Industrial Establishment (National and Festival Holidays, which are similar in terms with sections 3 and 13 of the Act with which we are concerned. Section 3 of the Kerala Act provides: "Grant of National and Festival holidays: "Every employee shall be allowed in each calendar year a holiday of one full day on the 26th January, 15th August and the 1st May and four other holidays each of one whole day for such festivals as the Inspector may, in consultation with the employer and the employees specify in respect of any industrial establishment." Section 11 of the Kerala Act reads: 'Rights and privileges under other laws, etc. are not 408 affected Nothing contained in this Act shall adversely affect any rights or privileges which any employee is enti tled to with respect to national and festival holidays on the date on which this Act comes into force under any other law, contract, custom or usage, if such right or privileges are more favourable to him that those to which he would be entitled under this Act. " Considering the rights of workmen under those provisions Gajendragadkar, CJ., speaking for this Court observed (at 764): "If under the existing arrangement the employees are enti tled to have more than 7 paid holidays, that right will not be defeated by section 3, because section 11 expressly provides that if the rights or privileges in respect of paid holidays enjoyed by the employees are more favourable than are pre scribed by section 3, their existing rights and privileges as to the total number of holidays will not be prejudiced by section 3. The scheme of section 11 thus clearly shows that section 3 is not intended to prescribe a minimum number of paid holidays in addition to the existing ones, so that the respondents should be entitled to claim the seven holidays prescribed by section 3 plus the six holidays to which they are entitled under the existing arrangement. " In the present case it may be relevant to note that the festival holidays have not been identified or specified in the settlement. They have to be selected and declared as holidays with notice to employees every year. It is only three National holidays that have been specified therein in addition to Vishwakarma Puja day for the factory staff and factory general staff. Now, the statute prescribes the same three National holidays, besides International Labour Day and four festival holidays. But these 3 holidays are not to the exclusion of or in addition to the total number of holidays agreed upon under the settlement. Indeed, it could not be so, since three National holidays are common both in the settlement and statute. The total number of 14 holidays under the settlement as against 3 holidays under the statute remains undisturbed by section 13 of the Act since it is more favourable to the employees than the rights and privi leges conferred by the Act. When thus being the position, the management would be entitled to adjust the International Labour Day as a paid holiday within the fourteen days al lowed under.the settlement. The 'demand of the employees that 409 it should be in addition to fourteen days has no support either under the settlement or by the terminology of the statute. In the result the appeal is allowed. The judgment of the High Court is set aside. There will be, however, no order as to costs. N.P.V. Appeal allowed.

The appellant a Public Limited Company had two estab lishments in the State of Bihar. The holidays available to the employees of the appellant company were provided by the settlement dated 14th March, 1971. The settlement provided for a total number of 18 holidays for office staff and 14 holidays for the factory staff. There was a dispute between the management and the employees as to whether the International Labour Day (1st May) which was declared as a mandatory holiday under the Bihar Industrial Establishments (National and Festival Holidays and Casual Leave) Act, 1977 should be a paid holi day in addition to the existing holidays. While the manage ment wanted to declare 1st May as holiday by adjusting the holidays allowed in the settlement, employees wanted it to be given as an additional holiday. Negotiations having failed and the conciliation officer being unable to bring about settlement, the statutory authorities directed the company to declare 1st May as holiday in addition to the holidays provided for in the settlement. The appellant company filed a writ Petition before the High Court, chal lenging the direction of the authorities. Dismissing the Writ Petition, the High Court held that the holiday on 1st May prescribed under the Act being compulsory in nature, must be in addition to the privileges already granted to the workmen under the agreement. Hence the appeal by the Compa ny. Allowing the appeal, by special leave, this Court. HELD: Section 3 of the Bihar Industrial Establishments (National and Festival Holidays and Casual Leave) Act, 1977 provides for three National holidays, one International Labour Day and four 403 festival holidays. It thus statutorily fixes eight paid holidays; for out of them are left to the choice of the management and employees for festival occasions. These eight holidays, however, are not in addition to the holidays that are mutually agreed upon in the settlement. They are the minimum holidays which the employees are entitled to. If the employees are entitled to more than eight holidays under any contract or usage applicable to the said establishment, or under any other law for the time being in force, those rights and privileges are saved by Section 13. This is the requirement of the statute. [407B D] In the present case, the festival holidays have not been identified or specified in the Settlement. They have to be selected and declared as holidays with notice to employees every year. It is only three National holidays that have been specified therein in addition to Vishwakarma Puja day for 'the factory staff and factory general staff. Now, the statute prescribes the same three National holidays, besides International Labour Day and four festival holidays. But these 8 holidays are not to the exclusion of or in addition to the total number of holidays agreed upon under the set tlement. The total number of 14 holidays under the settle ment as against 8 holidays under the statute remains undis turbed by section 13 of the Act since it is more favourable to the employees than the rights and privileges conferred by the Act. That being the position, the management would be entitled to adjust the International Labour Day as a paid holiday within the fourteen days allowed under the settle ment. The demand of the employees that it should be in addition to fourteen days has no support either under the settlement or by the terminology of the statute. [468E H; 469A] Tata Oil Mills Co. vs K.V. Gopalan & Ors., , referred to.

ivil Appeal No. 1284 of 1973. From the Judgment and Order dated 18.1. 1973 of the Kerala High Court in transfer petition No. 45 of 1972. G. Vishwanath Iyer and N. Sudhakaran for the Appellant. P.K. Pillai and Miss Lily Thomas for the Respondents. The Judgment of the Court was delivered by KHALID, J. This appeal by special leave is directed against the Judgment dated 18 1 1973, passed by the High Court of Kerala in Writ Appeal No. 45 of 1972. This appeal involves the correct interpretation and the scope and effect of Rule 51(A) of Chapter XIV A of the Kerala Education Rules. The Rule reads as follows: "51 A. Qualified teachers who are relieved as per Rules 49 or 52 or on account of termina tion of vacancies shall have preference for appointment to future vacancies in schools under the same Education Agency, provided they have not been appointed in permanent vacancies in schools under any other Educational Agency. " This Rule gives a teacher, discharged for want of vacancy or relieved as per Rule 49 or 52, a right to reappointment when a future vacancy comes into existence. It is usual for managers of schools to appoint teachers to leave vacancies. Sometimes more than one teacher get so appointed when there are more than one vacancies. When such vacancies cease to exist by the permanent incumbent coming back, the temporary appointees go out. When thereafter a permanent vacancy arises, those who had temporarily worked in leave vacancies get pre 439 ference to be appointed to that vacancy. The question in this appeal is whether the Manager who has to appoint a teacher to a permanent vacancy has to go by the rule of "last come first go", to use the usual industrial jargon, in reverse, or whether the Manager has a right to choose between the temporary teachers, ignoring the principle usually accepted that a person who gets a right to a post by virtue of earlier appointment should not be ignored in preference to a person who gets such title later. Before dealing with this case it will be useful to take note of a Note to Rule 51(A) which reads as follows: "If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointment is the same, then preference shall be decided with refer ence to age, the older being given the first preference. In making such appointment, due regard should be given to requirement of subjects and to the instructions issued by the Director under sub rule (4) of Rule 1 as far as High Schools are concerned. " This note gives the correct guideline based on justice and fair play. Now, we will briefly state the facts. The appellant is a B.A., B .Ed. degree holder. She is fully qualified to be appointed as a teacher in any Government or aided school in the State of Kerala. She was appointed in a temporary vacan cy in the school of the first respondent, from 13 1 1970 to 16 3 1970, in the academic year 1969 70. The appointment has to be approved by the District Educational Officer, the second respondent herein, which was duly done. Since the vacancy in which the petitioner was working ceased to exist. She went out of the job on 16 3 1970. A further vacancy arose on 22 8 1970 and it continued till 17 12 1970. She worked in this vacancy also. She went out of service when this vacancy ceased. Respondent No. 4 is another teacher who worked in the same school in another leave vacancy, from 1 91970 to 26 11 1970. The appellant thus had a total service of six months and one day while the 4th respondent had 2 months and 25 days of service, under the 1st respondent. A permanent vacancy arose in the school for the academic year 1971 72, for Social Studies when the Head Master in that school retired. The appellant made a representation to the Manager for being appointed against that vacancy. The 1st respondent appointed the 4th respondent. The appellant is a Social Studies teacher. She thereupon 440 complained to the second respondent. The second respondent found the appointment of the 4th respondent irregular and held that the legitimate claimant for the permanent post was the appellant. On this finding he did not approve the ap pointment of the 4th respondent. The management took the matter in appeal before the Regional Deputy Director of Public Instruction, respondent No. 3, who by his order dated 9 11 1971, allowed the appeal. Aggrieved by this order the appellant moved the High Court of Kerala by filing Original Petition No. 5064 of 1971, challenging the validity of the order passed by the 3rd respondent, inter alia, contending that as per Rule 51(A), of Chapter XIV(A) of the Kerala Education Rules, she had a preferential claim and that the appointment of the 4th respondent was illegal. The learned Single Judge dismissed the original petition by his Judgment dated 1 2 1972, on the short ground that Rule 51(A) conferred a right on the appellant for appoint ment in the future vacancies in the school and it did not restrict the right of the management to make his own choice among the thrown out teachers. The appellant pursued the matter by filing Writ Appeal 45 of 1972. The Division Bench dismissed the appeal agreeing with the learned Single Judge that the management had a discretion to choose among the thrown out teachers. Hence this appeal by special leave. Though long years have passed by since this dispute arose wherefore we would have normally declined interference with the Judgment under appeal, we think it necessary to lay down the law correctly to avoid injustice in cases like this and to prevent abuse of power of those in whom right is conferred under Rule 51(A). Now, both the appellant and the 4th respondent are working in the same school. Though the subject to be taught by the appellant and the 4th respondent figured at one stage as an additional plea before the learned Single Judge, it is inconsequential for this Judg ment, though the learned Single Judge held in favour of the appellant on the question of the subject. Let us read the rule in question. This rule speaks of qualified teachers. Both the appellant and the 4th respond ent satisfy this requirement. It speaks of teachers being relieved as per Rule 49 or Rule 52 or on account of termina tion of vacancies. Rule 49 speaks of termination of teachers after vacation, when the vacancy in which they work extend over summer vacation and Rule 52 speaks of teachers relieved on account of reduction in the number of posts under orders of the department. We are not concerned with these rules. Here, both the teachers were relieved on account of termina tion of vacancies. The 441 Rule states, that such teachers shall have preference for appointment to future vacancies in schools under the same Educational Agency. A future vacancy has arisen. The school where appointment is sought is under the same Educational Agency. The proviso is not material in this case. All the conditions for application of this Rule are satisfied. The only question that has to be answered is whether a teacher who had worked in a vacancy earlier has a preferential right over a teacher who worked later in the same school. It is true that the rule does not in terms, mandate that the one who worked earlier should be preferred to the one who worked later. But would it be in accord with justice and fair play, to prefer the one who worked later to the one who worked earlier? In the absence of anything in the Rule giving to the management a right to choose between the two, on the ground of suitability, merit or effeciency. The Judgment of the Division Bench under appeal was delivered on 18 1 1973. The note quoted above was inserted on 4 7 1972. This note leaves no doubt as to how Rule 51(A) has to be construed. The Rule states that preference will be given with reference to the date of appointment. When the date of appointment is the same, age should prevail; the eider being given the first preference. Of course, it contains a rider that due regards should be given to the requirements of subject as far as High Schools are concerned. The Division Bench did not choose to accept the clarification contained in the note. The learned Judges held against the appellant, on the wording of the Rule that, in terms, it did not provide for any preference between two or more persons and did not consider it proper to read more into this Rule by consider ing the note to Rule 5 in the same chapter. Although we do not say that a note to a Rule has any binding effect, it does indeed have a persuasive force. It cannot be ignored that this note has come as an appendage to Rule 51(A) for clarificatory purposes though it does not form a part of the Rule. The learned Judges held that propriety and fairness required a decision in favour of the appellant, when they observed: "It would be proper no doubt to give an earlier appointee preference. But seeing the rule as we ought to see every rule and every section in the Kerala Education Rules and the Kerala Education Act as restrictions or regulations in the matter of the free right of the manager to choose and appoint, it is impossible to read more into the rule. " With respect, we feel that the learned Judges were influenced more by the words in the abstract contained in the rule and not with the fairness behind the rule. The learned Judges of the Division Bench had before them 442 another Division Bench Judgment where the identical rule fell for consideration. The relevant portion of that Judg ment was extracted by learned Judges. We also find it useful to extract it here: "5. Very recently, in Writ Appeal No. 44 of 1970, we had occasion to construe Rule 51 A. And we then observed that despite its unhappy wording, in particular, the use of the words, "preference for appointment" to mean "right to appointment," we had little doubt that what the rule meant was that a person discharged for want of vacancy had a right to be appointed in future vacancies, provided, of course, he had not by word or deed given up that right or, we might now add, disqualified himself meanwhile. And we added that the present tense of the words, "are relieved" appearing in the rule was the present tense of logic, not of time, so that, in effect, the rule should be read as if it said "qualified teachers who stand relieved" shall have pref erence. In that view, it is, no doubt. true that the petitioner 's appointment 's between 1957 and 1961 furnished here with a title to re appointment notwithstanding that they were made before the rule came into force, and it is at least arguable that where no priority in preference is prescribed by the rule, priority should be determined by priority of title. The question, then, is whether the plea of aban donment to donment taken by the 3rd respondent is well founded. " The above observation was got over by the Division Bench with the observation that "it was obiter and are certainly not intended to be conclusive observations in the matter. If so, we would have referred this case to a Full Bench. " We would have been happy if the appellate Bench had referred this question to a full Bench and resolved the controversy since the High Court felt that the appellant 's contention carried with it the element of fair play and justice and was at least, to put it mildly, in some measure supported by another Division Bench of the same Court. We agree that the preference in Rule 51 A should be based on priority of title. In this case, we do not have a plea of abandonment or other disqualification. The learned counsel for the appellant brought to our notice how this Rule was understood by the Manager of the same school when another vacancy arose earlier. At that time also the present appellant applied to the Manager, seeking appointment in the vacancy conse 443 quent on the retirement of a Head Master. The Manager de clined the request and sent a reply to the appellant, the relevant portion of which, eloquent in favour of the appel lant, reads as follows: "Rule 51(A) Chapter XIV A K.E.R. lays down that qualified teachers who are relieved on account of termination of vacancies shall have preference for appointments to future vacancies. When two persons apply for a post by virtue of the concession laid down in Rule 51 A, it is the natural justice to select the persons who has earlier and longer period of previous service. Hence considering all the aspects of the question, the management has appointed Smt. P.E. Sosamma in the said vacan cy. " The Manager then understood the rule correctly, but later incorrectly. That is why we said earlier in our Judg ment that the interpretation given by the High Court to this Rule can result in abuse of this discretionary power with the Manager. If the Government wanted to clothe the Manager the power to choose among rival contenders to a future vacancy, the rule should be suitably amended. The rule as it stands clearly confers priority to the earlier appointee. The appellant, therefore, is entitled to succeed. We set aside the order of the Division Bench under appeal and allow this appeal. The appellant will be entitled to all the benefits as though she was appointed when the vacancy in question arose. We would like to make it clear that this direction of ours will not enable her to draw salary for the period she had not worked but only other benefits such as seniority, increments etc. The first respondent will pay costs of the appellant. A.P.J. Appeal allowed.

Rule 51(A) of Chapter XIV(A) of the Kerala Education Rules provided that qualified teachers who are relieved as per Rules 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Education Agency. A Note was appended to this Rule on 4.7.1972 which provided that if there are more than one claimant under this Rule the order of the preference shall be according to the date of first appoint ment. If the date of first appointment is the same, then preference shall be decided with reference to age, the older being given the first preference. In making such appoint ment, due regard should be given to requirement of subjects and to the instructions issued by the Director under sub Rule(4) of Rule 1 as far as High Schools are concerned. The appellant, who was duly qualified, was appointed as a teacher in a temporary vacancy in the school of the first respondent from 13.1.1970 and her appointment was approved by the District Educational Officer, the second respondent. On the vacancy being ceased to exist she went out of job on 16.3.1970. She again worked in a further vacancy from 22.8.70 to 17.12.1970. She went out of service when this vacancy ceased. Respondent No. 4, another teacher, worked in the same school in another leave vacancy from 1.9.1970 to 26.11.1970. In the academic year 1971 72 a permanent vacancy arose for Social Studies. The appellant being a Social Studies teacher made a representation claiming appointment against that vacancy. But the first 437 respondent appointed the 4th respondent. On a complaint being made by the appellant, the second respondent found the appointment of the 4th respondent irregular and held that the legitimate claimant for the permanent post was the appellant and, therefore, did not approve the appointment of the 4th respondent. The Regional Deputy Director of Public Instructions, respondent No. 3, allowed the appeal of the management. The appellant filed a petition under Article 226 challenging the validity of the order passed by the third respondent, inter alia, contending that she had a preferen tial claim and that the appointment of the 4th respondent was illegal. A Single Judge dismissed the petition on the ground that Rule 51(A) conferred a right on the appellant for appointment in the future vacancies in the school and it did not restrict the right of the management to make his own choice among the thrown out teachers. The Division Bench also dismissed the appeal preferred by the appellant. On the question whether a teacher who had worked in a vacancy earlier has preferential right over a teacher who worked later in the same school, allowing the appeal, HELD: l. Rule 51(A) of Chapter XIV(A) of the Kerala Education Rules does not mandate that the one who worked earlier should be preferred to the one who worked later. [441B] 2.1 Although a Note to a Rule does not have any bind ing effect, it does indeed have a persuasive force. [441E] 2.2 It cannot be ignored that the Note has come as an appendage to Rule 51(A) for qualificatory purposes though it does not form a part of the Rule. [441F] 3. The preference in Rule 51(A) should be based on priority of title. [442G] 4. The High Court while interpreting Rule 51(A) was influenced more by the words in the abstract contained in the Rule and not fairness behind the Rule. The interpreta tion given by the High Court to this Rule can result in abuse of discretionary power with the management. If the Government wanted to clothe the Manager with the power to choose among rival contendors to a future vacancy, the Rule should be suitably amended. [443C D] 438 5. The Rule as it stands clearly confers priority to the earlier appointee. The appellant, therefore, is entitled to succeed. The appellant will be entitled to all the benefits as though she was appointed when the vacancy in question arose. However, this will not enable her to draw salary for the period she had not worked but only other benefits such as seniority, increments etc. [443D F]