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Appeals Nos. 220, 221, 349 and 497 of 58. Appeals from the judgment and decrees dated 1955 March 24,1956 September 15 and 1956 April 12 of the former Saurashtra High Court at Rajkot in Civil Second Appeals Nos. 123 of 1953 & 104 of 1955 and Civil Appeals Nos. 42 of 1953 and 50 of 1954. M. C. Setalvad, Attorney General for India, C. K.Daphtary, Solicitor General of India, B. Sen and R. H. Dhebar, for the Appellant (In all the Appeals). I. N. Shroff for the Respondents (In C. As. Nos. 220 and 221 of 1958). G.S. Pathak, N. P. Nathnwni and K. L. Hathi for the Respondents (In C.A. No. 349 of 1958). J.P. Mehta, J. B. Dadachanji, Onkar Chand Mathur and Ravinder Narain, for the Respondents C.A. No. 497 of 1958). October 3. The Judgment of Sinha, C.J., section K. Das and N. Rajagopala Ayyangar,, JJ. was, delivered by section K. Das, J. The Judgment of Sarkar and J. R. Mudholkar, JJ., was delivered by J. R. Mudholkar, J. section K. DAs, J. These four appeals which have been brought to this Court on certificates granted by the then High Court of Saurashtra under article 133 of the Constitution fall into three groups, and have been heard together. The essential facts relating to these appeals are the same, and 'a common question of law now falls for determination on those facts. 973 The State of Gujarat., within whose territories the disputed properties are now situate, is the appellant in the appeals. The respondents and in some cases their. ancestors, obtained grants from the then Nawab of Junagadh, which was then a ruling State, in respect of lands and, in one case, of a building known as "Datar Manzil '. These grants were repudiated or cancelled and the property, subject of the grant, was resumed by the Administrator who took over charge of the administration of Junagadh on behalf of the Dominion of India in 1947 in circumstances which we shall presently state. The respondents brought suits challenging the validity of the orders made by the Administrator. These suits were decreed by the lower court and the decrees were substantially upheld by the High Court of Saurashtra. The principal point for decision in these appeals is whether the impugned orders made by the Administrator arose out of and during an act of State which was not justiciable in the municipal courts. This is the only point which has been agitated before us on behalf of the, appellant State and very strong reliance has been placed on the decision of this Court in the State of Saurashtra vs Memon Haji Ismail Haji (1) where, in circumstances same as those of the appeals before us, it was held that the act of the Dominion of India in assuming the administration of Junagadh was an act of State pure and simple and the resumption of the grant in question therein having been made by the Administrator before that act was completed and at a time when the people of Junagadh were aliens outside the State, the act of resumption, however arbitrary, was an act of State on behalf of the Government of India and was not, therefore, justiciable in the municipal courts. It may be here noted that by that decision this Court over ruled the earlier decision of the Saurashtra High Court in State of Saurashtra vs Memon Haji Ismail Haji Valimamad(2), (1) ; (2) A.I.R. 1953 Saurashtra 180. 974 a decision on the basis of which the High Court decided the cases under consideration in these appeals. The learned Attorney General has submitted that the decision of this Court in the State of Saurshtra vs Memon, Haji Ismail Haji completely covers and concludes the present appeals. On behalf of respondents it has been, contended that the decision aforesaid proceeded on a finding that the, act of State,. was not completed before the impugned orders were made and that finding being a finding of fact does, not bind the respondents who were not parties to the case in which the decision was rendered. In the appeals before us the main contention on behalf of the respondents has been that the impugned orders were made after the assumption of sovereignty by the Dominion of India was completed, and therefore the decision of this Court in the State of Saurashtra vs Memon Haji Ismail Haji(1) is not determinative of the problem which arise,% in these, appeals. It has been further argued that, after full sovereignty, had, been assumed by the Dominion of India, the petition of the people of Junagadh, including the respondents was not that of. aliens outside the State, but their position on such assumption of sovereignty was that of citizens of India against whom there could be no act of State and they had rights as such citizens in respect of which they could ask for relief in the municipal courts. We have set out above, in brief outline, the principal point which falls for decision in these appeals and the respective contentions of. the parties relating thereto in order to highlight the main problem presented for solution in these appeals. But we must first set out the essential facts which are relevant for the solution of the problem ' We have already stated that the essential facts , are the same in these appeals, though the facts relating (1) [1960] I section C R. 537. 975 to each ' of the grants made in favour of the respondents are, different We shall state the essential facts bearing upon. the main problem and then briefly refer to the grants made in each of the India attained independence in 1947. As from the 15th day of August, 1947, two independent Dominions were set up known respectively as India and Pakistan under the Indian Independence Act, 1947 (10 & 11 Geo. C. 30). Under section 7 of the said Act, the suzerainty of Iris Majesty over the Indian States including Junagadh lapsed. It released those States from all their obligations to the Crown. The White Paper on Indian States said (at page 32) : "It was evident that if in consequence the Indian States became separate independent entities, there would be a serious vacuum not only with regard to the political relationship between the Central Government and the States, but also in respect of the co ordination of all India policies in the economic and other fields. All that the Dominion Government inherited from the Paramount Power was the proviso to section 7 of the Indian Indepen dence Act, which provided for the continuance, until denounced by either of the parties, of agreements between the Indian States and the Central and Provincial Governments in regard to specified matters, such as Customs, Posts and Telegraphs, etc. (Appendix IV). " A process of accession was therefore begun and by August 15, 1947 all the States in the geographical limits of India barring Hyderabad, Kashmir and Junagadh had acceded to the Indian Dominion. The Nawab of Junagadh however, did not accede to the new Dominion of India by executing an Instrument of Accession as did the other Rulers in Saurashtra. He fled the country and the affairs of Junagadh State fell into disorder and chaos. At the request 976 of the Nawab 's Council, the Government of India decided to take over the administration of the State. On November 9, 1947, the Regional Commissioner, Western India and Gujarat States Region, assumed charge of the administration of the State on behalf of the Government of India. A proclamation was issued on that date which. said that the Regional Commissioner had assumed charge of the administration of the Junagadh State at 18 00 hours on November 9, 1947. On November 14, 1947 the Regional Commissioner appointed Shri section W. Shiveshwarkar as Administrator of Junagadh State. The Administrator passed certain orders which are the orders impugned in these appeals and to which we shall presently refer, but we must first complete the general picture of political changes that took place in Junagadh. In February, 1948 the Government of India held a referendum in Junagadh State to ascertain the choice of the people in regard to accession and the people voted by a large majority in favour of accession to the Dominion of India. The Administrator then decided with the approval of the Government of India to appoint an Executive Council with himself as President and three other persons as members thereof. In December, 1948 the elected representatives of the people of Junagadh resolved that the administration of the State be made over to the Government of Saurashtra and that the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra ' State with a view to framing a, common Constitution for Saurashtra and the Junagadh State. It is necessary to state now how this integration took place. On January 23, 1948, thirty rulers of the principal States of Kathiawar signed a covenant bringing into existence the United State of Kathiawar (later I known as the ' United State of Saurashtra) comprising the territories of their States for the welfare of the people and entrusted to a Constituent, Assembly the. task 977 of drawing up a democratic Constitution for that State within the frame work, of the Constitution of India, to which they had already acceded. On that date Junagadh State had no Ruler nor was any Covenant signed on behalf of the Junagadh State. Later, in December, 1948, the elected representatives of the people of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh recommended to the Government of India and the Government of the United State of Saurashtra, as it was then called, that the administration of the States mentioned above be integrated with the United State of Saurashtra. The Rulers of the Covenanting States thereupon entered into a Supplementary Covenant with the concurrence of the Government of India to provide for such integration and for the participation of the elected representatives of the people of these States into the Saurashtra Constituent Assembly. Article 3 of the, Supplementary Covenant was in these terms (See White Paper on Indian States, page 249) : "From a date to be agreed upon between the Government of the said States and the Government of the United State of Saurashtra, with the concurrence of the Government of India, the administration of the said States shall be integrated with that of the United State of Saurashtra and thereafter the legislative and executive authority, powers and jurisdiction of the United State of Saurashtra shall extend to the said States to the same extent as it extends to the territory of any Covenanting State. . . " The administration of the Junagadh State was thereafter integrated with that of the United State of Saurashtra on January 20, 1949. Therefore, as from that date the legislative and executive authority and jurisdiction of the United State of Saurashtra extended to the Junagadh State to the same extent as it extended to the rest of the territories of the Covenanting States. 978 Further political changes took place after January 20, 1949, but with those changes we are not concerned in the present appeals. The two dates which are important for our purpose are November 91 1947, when the Regional Commissioner first took over charge of the administration of Junagadh and January 20, 1949 when Junagadh merged into the United State of Saurshtra. Now, as to the impugned orders made by the, Administrator. In Civil Appeal No. 349 of 1958 the ancestor of the respondents, had obtained grants from the then Nawab of Junagadh of two villages called Handla and Venderwad some time between the years 1865 and 1868. A detailed history of the grants so made is not necessary for our purpose. On December 6, 1947, the Administrator made the following order "It has come to the Administrator 's notice that Aba Salem Bin Abs Mahmed Hindi the alienee of Handla village, (i) was maintaining many Arab employees of Timbdi it his house in Junagadh, (ii) was uttering threats to massacre all Hindus of Handla village,. (iii) was keeping in Hendla fifty animals at the expense of the poor village people, (iv) did not pay any remuneration to Dhedh employees of his garden and was exacting Veth from them, (V) was buying exhorbitant cesses from the village people, (vi) had converted into Islam three Hindus, and (vii) had taken the, following arms from Hand to Junagadh about a month ago,: 979 (a) 12 bore guns and (b) one M. I. gun. It is, therefore, ordered that. the village J. of Handla should be taken under the State manager. The Revenue Commissioner should mak e necessary managements for the same and report compliance. By that order the management of Kandla was taken over by the State, Though there is no reference to the other village Venderwad in the order the admitted position is that the management of both the villages was taken over. Then on January 8, 1949, the Administrator passed the following order: "The Junagadh State Government is pleased to order that the land and villages comprising the Handla estate which is an Inam grant be resumed by the State forthwith. " This order also refers only to the Handla estate, but the admitted position is that both the villages were resumed by the order of the Administrator. It is the order dated January 8, 1949, which is impugned by the respondents in this appeal. In Civil Appeal No 497 of 1958 the grant was in respect of a bungalow or building known as 'Datar Manzil '. On 1 March 9, 1948 the Administrator made the following order: " The State building situated near Gadhrup Wada at Junagadb, was granted to Khan Shri Abdullkanmiyan Mahomedkhanmiyan hereditarily by Way of gift, under Dewan "Daftar Tharay No. 3379 dated lot August, The said Tharay is hereby cancelled and it is hereby ordered in the interest of the State that the said building along with all the superstructures thereon should be resumed and managed by the State as State property. " 980 In Civil Appeals Nos. 220 and 221 of 1958 a the impugned order is dated July 27, 1948, and is in these terms: "Twenty five Santis of land from the village of Khokhardea under Vanthali, Mahal was granted as a gift 'hereditarily to Mr. Mohamed Abdulla, son of late. Jamadar Abdulla Moosa under Hazur Farman No. 279 dated 30th April, 1943. In view of the principles of Alienation settlement of 1897 no grant can be wantonly favoured to anybody in contravention of the well established principles of resumption attaching to such grants. It is hereby ordered that Hazur Farman No. 279 dated 30th April, 1943, is cancelled and the land in question should be resumed by the State forthwith by setting aside the settlement made thereon. " It will be noticed, from what has been stated above that the impugned orders ' were all made after November 9, 1947, but, before January 20, 1949. The question before us is whether the orders were made in pursuance of acts of State not justiciable in the municipal courts. There can, be no doubt that if the decision of this Court in State of Saurashtra vs Memon Haji Ismail Haji (1) applies, then these appeals must be allowed. Learned counsel for the respondents has however sought to distinguish that decision on the ground that the decision proceeded on the footing that the Dominion of India assumed sovereignty over Junagadh on January 20, 1949. His contention is that when the Dominion of India assumed charge of the administration of Junagadh State on November 9, 1947, through the Regional Commissioner, Western India and Gujarat States Region, there was a complete changeover of sovereignty, the act of State was complete, and the. Dominion of India became the new sovereign; thereafter, (1) [1960] I.S.C.R. 537. 981 the people of Junagadh including the respondents, so the argument proceeded, became citizens of the Dominion of India and had rights as. such citizens it in respect of which they could ask for relief in the municipal courts. It would be apparent that this argument consists of two steps: the first step in the argument is that there was a complete changeover of sovereignty on November 9, 1947 and the act of State was complete; the second step in the argument which is really based on the correctness of the first step is that on such a change over of 'sovereignty the people of Junagadh, including the respondents, became citizens of the Dominion of India and were no longer aliens outside the Dominion. , We shall now consider the validity of the first step in the argument. In doing so we must make it clear that we must not be understood to have assented to the submission of learned counsel for the respondents that a finding as to change over of sovereignty or completion of an of State, is a finding of fact pure and simple. In our view, the question essentially is what inference in law should be drawn from the fact proved or admitted relating to the change over of sovereignty. As the matter was not argued from this stand point in the State of Saurashtra vs Memon Haji Ismail Haji(1), we have allowed learned counsel for the respondents to address us on this question. Learned counsel for the respondents has made a two fold submission: firstly, he has submitted that the question as to when the change over of ,sovereignty took place is a political question, and must or should be referred to the Government of India for opinion and the Court should abide by that opinion; secondly,he has submitted that on the facts admitted in this case, it should be hold that there. was a complete change over of sovereignty on November 9, 1947, and the act of State was complete. We do not think that either of these two submissions of learned counsel for the respon dents is correct. On the first snbmission he has (1) ; 982 drawn our attention to para. 603 at pages 285 286, Vol. 7 of Halsbury 's Laws. of England, 3rd 'Ed. That paragraph is in these terms : .lm15 " There is a class of facts which are conveniently termed "facts of State". It consists of matters and questions the, determination of which is solely in the hands of the Crown or the government, of which the following are examples (1) Whether a state of war exists between the British Government and any other State, and if so, When it began; the municipal courts have no power of inquiring into the validity of a declaration by the Crown whether a state of war exists or whether it has ended: (2) whether a particular territory is hostile, or foreign, or within the boundaries of a particular state; (3) whether and when a particular government is to be recognised as the, government of an independent state,, (4) The status of a person claiming, immunity from judicial process on the ground of diplomatic privilege. The court takes judicial notice of such facts of state, and for this purpose in any case of uncertainty, seeks information from a Secretary of State; and the information so received is conclusive. Learned counsel has also referred us to some of the English decisions on which the statements in the paragraph quoted above axe based. We consider it unnecessary to examine those decisions. , It appears to us that the question with which we are concerned in the present appeals is not a question on which it is necessary to seek information from to relevant department of the Government of India; for ' one thing, it does not appear to us that there is any uncertainty in the matter; secondly, as we shall 983 presently show, the Government of India in the relevant department has already spoken with sufficient clarity in the: White Paper on Indian States with regard to the political changes in Junagadh and what the Government of India has stated therein shows clearly enough that there was no changeover of assumption of sovereignty on 'November 9, 1947 in the sense 'which learned counsel for the respondents has contended for; lastly, it appears to us that the question with which we are concerned in these appeals is not essentially a question as to any disputed ""facts of State" the determination of which is solely in the hands of government; rather it is a question which must be determined by the court. What we have to determine in these appeals is not; the status or boundaries of a particular State territory, but the validity or otherwise of the plea taken on behalf of the appellant State that the impugned orders made by the administrator were acts "of State not justiciable in the municipal courts. There is a long line of decisions in which such a plea has been determined by courts ' of law without the necessity of obtaining the opinion of Government. The plea is really a plea with regard to the maintainability of the suits brought by the respondents and must be determined by the courts concerned. At one stage of the arguments learned counsel for the respondents referred us to s.6 of the Extra Provincial Jurisdiction Act, 1947 (XLVII of 1947) and contended that under that section it was obligatory on this court to refer the question to the Ventral Government. When however it was brought to his notice that section 6 in terms did not apply to the proceedings out of which these appeals have arisen he submitted that even if, it be not obligatory to refer the question to the Central Government, it is expedient that it should be so referred inasmuch as the answer to the question depends on "the extent of the jurisdiction" which the Dominion of India, assumed in Junagadh on November 9, 1947. This according to learned counsel, is a " 'fact of State" which only; Government can determine. 984 We have already stated there is no uncertainty about. the facts on which the plea of the appellant State is based, and Government has already spoken about them with sufficient clarity. What are these facts and how has Government spoken? We refer to para. 223 at pages 113 and 114 of the White Paper on Indian States issued by the Government of India, Ministry of States, a publication to which this Court has referred in several earlier decisions as containing the authentic opinion of Government on the political questions involved. "The position of Junagadh and certain other adjoining States in Kathiawar may also be briefly stated here. After the Nawab of Junagadh had left the State for Pakistan, the administration of the State was taken over by the Government of India on November 9, 1647, at the request of the Nawab 's Council. Obviously, the action taken by the Govern. ment of India had the fullest approval of the people of Junagadh in that the results of the referendum held in Junagadh and the adjoining smaller States in February 1948, showed that voting in favour of accession to India was virtually unanimous. During the period the Government of India held charge of the State an Administrator appointed by the Government of India assisted by three popular rep resentatives conducted the administration of the State. In December 1948, the elected representatives of the people of Junagadh resolved that the administration of the Stat e be made over to the Government of Saurashtra and that the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra State with a view to framing a common Constitution for Saurashtra and the Junagadh State. Similar resolutions were adopted by the representatives of Manavadar, Mangrol,. Bantwa, Babariawad and Sardargarh. Accordingly a Supplement Covenant (Appendix XXXVI) was 985 executed by the Rulers of Kathiawar States with a view to giving effect to the aforemen tioned resolutions. The administration of Junagadh was taken over by the Saurashtra Government on January 20, 1949, and of the other States some time calling. Accordingly the Constitution treats Junagadh and these States as part of Saurashtra. " It would be clear from the aforesaid paragraph that the various steps in the assumption of sovereignty over Junagadh by the Dominion of India, between the dates November 9, 1947, and January 20, 1949, were these: (1) The administration of Junagadh was taken over by the Government of India on November 9, 1947 at the request of the Nawab 's Council; (2) during the period the Government of India held charge of the State, an Administrator appointed by the Government of India assisted by three popular representatives conducted the administration of the State; (3) in February, 1948 there was a referendum and the people of Junagadh voted in favour of accession to India; but no actual accession took place by the execution of any Instrument of Accession; (4) in December, 1948 the elected representatives of the people of Junagadh resolved that the Administration of the State be made over to the Government of Saurashtra and the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra State; (5) a Supplementary Covenant (Appendix XXXVI of the White Paper) was executed by the Rulers of Kathiawar States with a: view to giving effect to the resolutions aforesaid; and (6) lastly, the administration of Junagadh was taken over by the Government of Saurashtra on January 20, 1949. 986 In M/s. Dalmia Dadri Cement Co., Ltd. vs The Commissioner of Income tax (1) this Court observed. .lm15 "In law, therefore, the process of acquisition of new territories is one continuous act of State terminating on the assumption of sovereign powers de jure over 'them by the new sovereign, and it is only thereafter that rights accrue to the residents of those territories as subjects of that sovereign. In other words under the dominion of a new sovereign, the right of citizenship commences when the act of. State terminates and the two therefore cannot co exist. " There may be cases where by a treaty or an agreement there is a change, over of de lure sovereignty at one and the same time and in such a circumstance the change over may not be a process, but that is not what happened in the case of Junagadh. The administration of Junagadh fell into chaos and disorder and the Government of. India stepped in at the request of the Nawab 's Council and took charge of the administration through an Administrator, on November 9, 1947, the Ruler having fled the country before that date. It is clear to us that there was no change over of de jure sovereignty on that date. Junagadh State still continued as such and did not cease to exist; otherwise there would be no meaning in the referendum held in February, 1948 or the resolutions passed in December, 1948, by the elected representatives of the people of Junagadh. Nor, would there be any meaning in the Supplementary Covenant executed by the Rulers of Kathiawar States. It is also worthy of note that there was no accession to India by the Junagadh State by the execution 'of any Instrument of Accession. We may in this connection refer to sections 5 and 6 of the Government of India Act, 1935, as they stood at the relevant time. Section stated inter alia that the Dominion of India shall, (1) [1959] section C. R. 729, 741. 987 as from the 15th day of August, 1947, be a Union, comprising (a) the, Governor is ' Provinces, (b) the; Chief Commissioners ' Provinces,(c) the Indian States acceding. to the, Dominion in the manner provided by section 6, and (d) any other areas that, may with the consent of the Dominion be included, in the Dominion. Junagadh was neither a Governor 's nor a Chief Commissioner 's Province. It did not accede in the manner laid down in section 6. It was not, therefore, a State acceding to, the Dominion. Nor do we think that the territory of, Junagadh State was included within the territory of the Dominion in the sense of el. (d) of section 5 as from November 9, 1917. The process of assumption of sovereignty was not yet complete and the Dominion of India did not treat the territory of Junagadh, as part of its own territory. The Dominion Government gave its concurrence to the Supplementary Covenant executed by the Rulers of Kathiawar by which the States of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh were to be integrated with Saurashtra. It is significant that in this Supplementary, Covenant Junagadh was mentioned as a separate State, the administration of which was to be integrated with the United State of Saurashtra. It was only when, this. integration took place that Junagadh ceased to be a separate State. This position appears to us to be beyond any doubt and has been made sufficiently clear by the statements made in, par&. 223 of the White Paper on Indian States. Learned Counsel for the respondents has relied on certain observations made in well known text books on International law and has contented that State sovereignty and. , State jurisdiction are complementary and co extensive; and a right of property and control exercised by the State is really a right of territorial severeignty and therefore the acquisition of territory by a State can mean nothing else than the acquisition of sovereignty over such territory. (See Sohwarzenberger: International , Vol. 1, page 79: Charles Cheney Hyde: International Law, 2nd revised edition, Vol. I, page 319; Oppenheim 's International Law, 8th Edn. I, page 545). He has contended that in view of the aforesaid observations, it must be, held that the Dominion of India assumed sovereignty over Junagadh on November 9, 1947; because, so learned counsel contends, exercising control over a parti cular territory is exercising sovereignty over it. We do not think that the observations to which learned counsel has referred help in the solution of the problem before us. In cases where the acquisition of new territory is a continuous process, a distinction must be made between de,facto exercise of control and de jure assumption of sovereignty. The problem before us is, as was stated in M/s. Dalmia Dadri Cement Co., Ltd. V. The Commissioner of Income tax (1), as to when the act of State was complete; in other words, when did the assumption of sovereign powers de jure, by the new sovereign over territories acquired by it take place? The problem is really one of State succession; namely succession to International Persons as understood in International law. Such a succession takes place when one or more International Persons take the place of another International Person in consequence of certain changes in the latter 's condition; there may be universal succession or partial succession. In the case before us, as long as Junagadh State ' continued as such, there was no such succession and even though the Dominion of India took over the administration of Junagadh and exercised control therein, it did not assume de jure sovereignty over it. Therefore, the act of State did not terminate till January 20, 1949, when the Dominion of India assumed de, jure sovereignty over Junagadh by its integration into the United State of Saurashtra. It is perhaps necessary here to refer to two decisions on which learned counsel for the (1) [1959] section C. R. 729, 741. 989 respondents has relied: In re: Southern Rhodesia(1) and Sammut vs Strickland (2). In the first decision it was observed in connection with the conquest of certain territories in Southern Rhodesia, that a proclamation of annexation is not essential to constitute the Crown owner of the territory as completely as any sovereign can be owner of lands publici juris; a manifestation of the Crown 's intention to that effect by Orders in Council dealing with the lands and their administration, is sufficient for the purpose. These observations were made in the context of a question not between State and State but between sovereign and subject. Lord Sumner said: " No doubt a Proclamation annexing a conquered territory is a well understood mode in which a conquering Power announces its will urbi et orbi. It has all the advantages (and the disadvantages) of publicity and precision. But it is only declaratory of a state of fact. In itself it is no more indispensable than is a declaration of war at the commencement of hostilities. As between State and State special authority may attach to this formal manner of announcing the exercise of sovereign rights, but the present question does not &rise between State and State. It is one between sovereign and subject. The Crown has not assented to any legislative act by which the declaration of its will has been restricted to one definite form or confined within particular limits of ceremonial or occasion. The Crown has not bound itself towards its subjects to determine its choice upon a conquest either out of hand or once and for all. If her 'Majesty Queen Victoria was pleased to exercise her rights, when Lobengula was defeated by her and her subjects, as to one part of the dominions in 1894 and as to another. part not until 1898, (1) (2) 990 if she was pleased to do so by Public acts of State which indicate the same election and confer the same supreme rights of disposition over his conquered realm as annexation would have done it is not for one of her subjects to challenge her policy or to dispute her, manner of giving effect to it. , We do not think that these observations help to establish the contention of learned counsel for the respondents that any exercise of administrative control in acquired territory must mean at once that there is an assumption of sovereignty ' by the incoming State so as to terminate the act of State. The observations made by Lord Sumner merely show that with regard to territory which the 'Crown has Conquered the Crown 's intention can be manifested in more than one way, and not necessarily by a proclamation. In the case before us a proclamation was issued by the Administrator, but that merely announced that he had assumed charge of the administration of Junagadh State under orders of the Government of India. It made no announcement as to assumption of sovereignty. In the second decision one of the questions raised was the true nature of the title of the Crown to the sovereignty of Malta, and a distinction was sought to be drawn between ceded territories those acquired by an act of cession from some sovereign power, and those ceded by the general consent or desire of the inhabitants. It was held that so far as concerned the prerogative right of the crown to legislate by Letters Patent or Orders in Council for the ' ceded colony, the distinction was of no materiality '. It is difficult to see how this decision affords any assistance to the respondents. It is indeed true that the people of Junagadh voted for accession to the Dominion of India , but no Accession actually took place and later there was a merger in ' the United State of Saurashtra with the consent of the people of, Junagadh and the Government of 991 India Till, such merger there was,, no "cession" of territory in the I sense either with or without the Consent of the people. In view, the only conclusions which follows from the facts which we have earlier stated is that there was no assumption of sovereignty by the Dominion of India over Junagadh before January 20, 1949. This disposes of the main argument advanced on, behalf of the respondents, and it is unnecessary in these appeals to consider the further argument to what rights the subjects of the ex sovereign in the acquired territory carried with them as against the new; sovereign. At one stage of his argument learned counsel for, the respondents commended for our acceptances the view of Chief Justice John Marshall in United States vs Percheman (1) that when 'the inhabitants of the acquired territory change their allegiance and their relation to the old sovereign is dissolved, their rights of property, remain undisturbed, and, he suggested that this view was consistent with modern usage of nations and was accepted by the Permanent Court of Inter. national Justice. (See the Advisory Opinion of the Permanent Court on the Settlers of German Origin in Territory ceded by Germany to Poland, Series B, No. 6, particularly pp. 35 36). He conceded, however that this Court has accepted the view expressed by the English Courts in Cook vs Sprigg(2) and the decisions which followed it. That view proceeds on the doctrine that acquisition of territory by conquest, cession or; annexation being an act of State ', municipal tribunals have no authority to give a remedy in respect of any actions arising therefrom (See M/s. Dalmia Dadri Cement Co., Ltd.,V. The Commissioner of Income tax(3) and State of Saurashtra vs Memon Haji Ismail Haji(4) Therefore learned counsel,was at great pains establish that the act of State was complete on November 9, 1947, (1) ; , 86 87. (2) (3) [1959] section C. R. 729, 741 (4) 7. 992 and he argued that thereafter the respondents be came citizens of the Dominion of India and under section 299 of the Government of India Act, 1935, they could not be deprived of property, save by authority of law. He relied on two decisions of this Court: Thacker vs State of Saurashtra (1) and Virendra Singh vs State of Uttar Pradesh (2). In view of our finding that the act of State did not terminate till the process of acquisition was complete on January 20, 1949, it becomes unnecessary to consider this second step in the argument of learned counsel. But per haps it is necessary to add that the decision in Virendra Singh vs State of Uttar Pradehe (2) was based on the special circumstances mentioned there in which led to the making of the Constitution of India. The learned Attorney General appearing for the appellant State has submitted that the principle of Virendra Singh 's case (2) cannot be extended to the entirely different set of circumstances in which the Government of India Act, 1935, was made and a. 299 thereof did not affect the doctrine that municipal tribunals have no authority to give a remedy in respect of actions arising from an act of State. He also drew our attention to a decision of this Court in Jagannath Agarwala vs The State of Orissa (a) in which in respect of some claims made against the State before the coming into force of the Constitution but enquired into and rejected by Government after the coming into force. of the Constitution, it was held that unless the now sovereign had expressly or impliedly admitted the claims, the municipal courts bad no jurisdiction in the matter. We consider it unnecessary to give our decision on these 'submissions, because it is obvious that before the Dominion of India assumed de jure sovereignty over Junagadh, the respondents were not in a position to call to their aid the provisions of section 299 of the Government of India Act, 1935. (1) A.I.R. 1954 S.C.680. (2) (3) ; 993 In the appeals before us we are dealing with orders made the Administrator before the act of ,State was complete. The action taken by the impugned orders &rose out of and during an act of State. That being the position, it is clear that the municipal, tribunals had no authority to give a remedy in respect of such action. It remains now to consider the last argument advanced on behalf of the respondents. As was observed in State of Saurashtra vs Memon Haji Ismail Haji (1) an act of State is an exercise of sovereign power against an alien and is neither intended nor purports to be legally founded. On behalf of the respondents it has been contended that the Administrator purported to cancel or :resume the grants under consideration in these appeals in pursuance of law; therefore, it was not open to the appellant State to take up the plea of an act of State. We 'do not think that there is any substance in this argument. Learned counsel for the respondents in Civil Appeal No. 349 of 1958 has drawn our attention to the pleadings, particularly to par&. 8 of the written statement filed on behalf of the appellant State. In that paragraph it was stated the order of resumption dated January 8, 1949 was legal and the Administrator had authority to resume such inam grant. On the basis of this paragraph 'it has been contended that inasmuch as the Administrator purported to act under authority of law it was not open to the appellant State to raise the plea of an act of State. In this connection we must also refer to para. 17 of the written statement where the appellant State specifically pleaded that the plaintiff respondent had no right to bring the suit against Government. In the trial court a specific issue was ;struck on the question as to whether the court had jurisdiction to hear and determine the suit. and under this issue the argument advanced was that the order of resumption was an act od State not justiciable in the municipal. courts. It appears, however, that the appellant State (1) [1960] 1 S.C.R.537. 994 also took a plea in the alternative that the order of resumption was justified under the rules in force in the Junagadh State. The trial, court, held that the order of resumption was not an act of State It further held that the order of resumption was not justified by the rules in: force in the Junagadh State. In these circumstances it cannot be said that the appellant State did not plead an act of State; nor can it be said that it was not open to the appellant State to raise, that plea ' , In the High Court also the same plea of: act of State was urged on behalf of the appellant State but was rejected by the High Court on the basis of its decision in State of Saurashtra vs Memon Haji Ismail Haji Valimamad(1). That decision, we have stated earlier, was overruled by this Court in State of Saurashtra vs, Memon Haji Ismail Haii Learned counsel for the respondents then, referred us to an order dated February 9, 1949, 'in which it was stated that inam grants were resumable at the pleasure of Government and therefore the orders passed on January, 8, 1949, could not be cancelled. Apparently the orders dated February. , 9, 1949 was passed on some representation made, at the instance of the plaintiffs respondents. We have to read the two orders, one dated January 8, 1949, and the other dated February 9, 1949, together. If so read, it is clear that the order dated January 8, 1949, was, made by the Administrator not under the authority of any law but as an act of State. Learned counsel for the respondents relied on the decision in Forester vs The Secretary. of State for India(3). In that case, the Privy Council, upon a construction of the treaty, or agreement made by the British. Government in August, 1805, with Begum Sumroo, held that the Begum was not a sovereign princess but a mere Jagirdar under obligation to keep up a body, of troops to be employed when called upon in, the (1) All. R. 1953 Saurashtra 180. (2) (1960) I section C. R. 537. (3) 995 service of the sovereign. On that finding it was held that the resumption of the lands by the British Government upon the death of the Begum was not an act of State but an act done under legal title. We do not think that the principle of that decision applies to the facts of these cases. In Vejesingji ji Joravarsingji vs Secretary of State for India (1) Lord Dunedin said that no plea specifically using the words " 'act of State" was required and the moment cession of territory was admitted. , the onus was on the plaintiffs respondents to prove that the right which they claim had been expressly or tacitly recognised by the new sovereign. If there was ,no such recognition and none was pleaded in these cases the municipal courts would have, no jurisdiction to give any relief. In this view of the matter it was not open to the courts below to enquire into the powers of the Nawab to resume or derogate from the grants made and whether similar powers were inherited by the Dominion Government or its agents. The action being an act of State was not ;justiciable in the municipal courts, even if the same were arbitrary. We have, therefore, come to the conclusion that the courts below were wrong in holding that the suits were maintainable and in enquiring into the merits of the cases. The appellant State is entitled to succeed on the plea that the orders of resumption made by the Administrator arose out of and during, an act of State and were not, therefore, justiciable in the municipal courts. We would accordingly allow these appeals and the suits will stand dismissed with costs throughout. There will be one hearing fee for the hearing in this court. MUDHOLKAR, J. We also agree that the appeals be allowed. but we wish to I say a few words. To appreciate the points which arise in these cases certain broad facts common to all appeals may well (1) (1924) L. R. 511 A. 357. 996 be stated. The respondents held certain properties in that part of the present State of Gujarat which was formerly the ruling State of Junagadh, by virtue of grants from its Ruler. After India attained independence on August 15, 1947, the suzerainty which the British Crown held over the State of Junagadh lapsed and that State became completely sovereign. That was the effect of the Indian Independence Act. Shortly thereafter, the Ruler of Junagadh went to Pakistan leaving the State to its fate, with the result that the affairs of that State fell into disorder. At the invitation of the people of the State the Government of India decided to step in and accordingly took over its administration through the Regional Commissioner, Western India and Gujarat States Region on November 9, 1917. A proclamation was issued by him to the effect that he had assumed the administration of Junagadh as from that date. On November 14, 1947, he appointed an Administrator for administering the territory. The Administrator passed orders on different dates resuming the grants in favour of the respondents and dispossessed them. Thereafter on January 20, 1949, the territory of Junagadh was with the approval of the Government of India integrated with the United States of Saurashtra and the Administrator ceased to exercise any functions as from that date. The resumption of the grants and the validity of their dispossession were challenged by the respondents by instituting, suits for possession of the property after the integration of Junagadh with the United State of Saurashtra upon the ground that they could not be deprived of their properties by executive action. According to them the act of the Dominion of India in taking over the administration of Junagadh territory on November 9, 1947, amounts to assumption of sovereignty over it, that ' thereby its residents became citizens of the Dominion of India as from that date and, therefore, no not of state 997 such as resumption of their properties could be committed against them by the Indian Dominion. According to the appellants no municipal court could grant the relief claimed by the respondents because the act complained of was an act of state. The plea of the respondents was accepted by the High Court of Saurashtra following the decision in the State of Saurashtra vs Memon Haji Ismail Haji Valimamd(1). The present appeals are, from its judgment. The Attorney General who appeared for the appellants stated that this Court has reversed that decision in State of Saurashtra vs Memon Haji Ismail Haji (2) and that, therefore, these appeals should be allowed. In that case this Court held that the Indian Dominion merely assumed the administration of Junagadh State on November 9, 1947 at the request of the Ruler 's Council but did not formally annex it till January 20, 1949. Mr. Pathak 's contention is that as the respondents were not parties to the decision in Memon Haji 's case (2) they are not bound by the finding of this Court that the Junagadh State was annexed by the Indian Dominion on January 20, 1949. It seems to us, however, that the question whether Junagadh was annexed on January 20, 1949, or. earlier would make little, difference to the result of the appeals before us. Nor again would the question whether the, I Extra Provincial Jurisdiction Act was applicable to the orders made by the Administrator and this was a display of sovereignty, as contended for by Mr. Pathak, would make any difference. In along catena of cases beginning from Cook vs Spriggs (3) and going upto Asrar Ahmed vs Durgah Committee, Ajmer(4) the Privy Council has stated the legal position of the subject of a displaced sovereign vis a vis the now sovereign. In the words (1) A. I. R. 1953 Saurashtra 180. (2) ; (3) (4) A. I. R. 1947 P.C I. 998 of Lord Dunedin in Vajesinghji vs Secretary of State for India(1), it is as follows When a territory is acquired by,& sovereign State for the first time that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, 'it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. 'Any inhabitant of the territory can make good in municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognized. Such rights as he had tinder the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce those stipulations in the municipal courts. The right to enforce remains only with the high contracting parties. " This statement of the law has ' been accepted by this Court in M/s. Dalmia Dadri Cement Co., Ltd. vs Commissioner of Income tax (2) upon which ;reliance has been placed in State of Saurashtra V. Memon Haji Ismail Haji (3) and recently also in Jagannath Aggarwala vs The State of Orissa (4). Thus even if on the respondents ' own showing that the Junagadh territory must be deemed to have been annexed by the Indian Dominion by assuming administration over it and thereupon its residents became citizens of India, they could assert and establish in the municipal courts of the new sovereign only such rights as were recognized by the. Indian Dominion. The respondents claim to be grantees from the Ruler of Junagadh but their grants avail them nothing in the courts of the now sovereign unless they were recognized by that sovereign. The burden of showing that they were so recognized lay on the respondents. (1) (1921) L.R. 51 I. A. 357. (2) (3) ; (4) ; 999 A perusal of the orders passed by the administrator would clearly show that, far from recognizing those grants 'they Were in effect repudiated by him. The administrator in fact resumed the grants but whatever the form his orders took in truth and in substance they were no" more than a clear arid unequivocal declaration of the fact that the right ' claimed by the respondents to the 'properties in question by virtue of the grants made in their favour by the former Ruler. were not, recognized by the new sovereign. Recognition or refusal of recognition of rights of erstwhile aliens who had no legal enforceable , rights cannot be said to be an act of state because in the Indian Dominion other had already vested in the Indian Dominion at the moment it occupied Junagadh territory The right to retain Possession was also dependent, upon recognition by the Dominion of India and by dispossessing the respondents the former exercised its choice and refused to recognise their rights. On the principle accepted by this Court in the decisions already referred to, the res pondents "were disentitled from obtaining any redress from 'a court in the Indian Dominion, and after the commit into force 'of the constitution, from a court in the union of India, in the absence of recognition of their rights by it or by the Union of India. We may now ' advert to another point, urged by Mr. Pathak, According to him, if we understood him correctly, the Extra Provincial Jurisdiction Act was applied to Junagadh, that thereunder the local laws prevailing therein were continued and that the Alienation Settlement Act which was one of such laws, conferred on the granted of rights against the Ruler. By continuing this law the Dominion of India, accordant, to him,. must be deemed to have recognized the respondents rights under the grants. For enabling us to consider, the point it was necessary for the respondents to place before us the Order of the Dominion of India under 1000 section 4 of the Extra Provincial Jurisdiction Act, 1947 Which alone empowered it to prescribe the laws which of the Indian Dominion, over which it had assumed sovereignty or administrative control. Similarly they had to place the Alienation Settlement Act of Jungadh before us. the absence of this material we cannot consider the argument at all. Mr. Pathak, however contended that if sovereignty was assumed on November 9, 1947, the residents of Junagadh became the citizens of the Indian Dominion and were therefore, entitled for the protection of section 299(1) of the constitution Act, 1935. ` This provision runs thus: "No person shall be deprived of his property save by authority of law". What section 299(1) protects are the rights of a person to property which he had when section 299(1) cases into force or applied to him. It does not add to any property right of any person, though it contains an admonition to the State against deprive in any person of his property by mere executive action. For ascertaining whether the provision has been violated we must first examine the existance and the nature of.the rights possessed by the respondents on November 9, 1947, that is, at the moment of assumption of administration by the Dominion of India over Junagadh territory assuming of,courge that this amounted to assump tion of sovereignty over Junagadh). Their rights were as grantees from the former ruler and although it thay be that according to the principles of international law their rights as grantees ought not to be affected, no municipal court has their right to enforce the obligation of the new sovereign to respect them. For, as oitited out by Venkatarama Iyer J., who delivered he judgment of this Court in Dalmia Dadri Cement Co., Ltd. vs Commissioner of Income tax(1): (1) [1959] S.C.R. 729, 741. 1001 "It is also well established that in the new set up these residents do not carry with them the rights which they possessed as subjects of the ex sovereign, and that as subjects of the new sovereign, they have only such rights as are granted or recognised by him One of the decisions relied on by this Court in that case is that of the Privy Council in Secretary of State for India vs Bai Rajbai(1) in which they have observed "The relation in which they stood to their native sovereign before this cession and the legal rights they enjoyed under them, are, save in one respect, entirely irrelevant matters. They could not carry on under the new regime the legal rights, if any, which they might have enjoyed under the old. The only legal enforceable rights they could have as against their new sovereign, were those, and only those, which that new sovereign by agreement express or implied, or by legislation, chose to confer upon them." Thus, before the respondents could claim the 'benefit of section 299(1) of the Constitution Act, 1935 they had to establish that on November 9, 1947, or thereafter they possessed legally enforceable rights with respect to the properties in question as against the Dominion of India. They could establish this only by showing that their pre existing rights, such .as they were, were recognized by the Dominion of India. If they could not establish this fact, then it must be held that they did not possess any legally enforceable rights against the Dominion of India and, therefore, section 299(1) of the Constitution Act, 1935 avails them nothing. As already stated a. 299(1) did not enlarge anyone 's right to property but only protected the one which a person already had. Any right to property which in its very (1) (1915) L. R: 42 I.A. 229.

The appellant mill produced electricity over 100 volts exclusively for its own consumption. It challenged the levy of the electricity duty by the Government of Madhya Pradesh (1) ; 283 under the C. P. and Berar Electricity Act as 1949, by the Madhya Pradesh Act 7 of 1956, on the grounds, firstly that on proper construction of section 3 of the Act it was not liable to pay any duty at all as the Table of rates did not prescribe any rate for electricity consumed by producers and, secondly, the levy of duty on electricity consumed by producer himself being in substance an excise duty could be levied only by the Parliament under Entry 84 List I. If it was not an excise duty the levying of it was beyond the competence of the State Legislature in the absence of any appropriate Entry in the List. ^ Held, that on a combined reading of the definition of 'consumer ' in section 2(a) and 'producer ' in section 2(d 1) of the C. P. & Berar Act, 10 of 1949, a producer, consuming the electrical energy generated by him is also a consumer as he consumes electrical energy supplied by himself, falls squarely within the Table under section 3 of the Act prescribing rates of duty payable by a consumer and is therefore liable to pay duty thereunder. Held, further, that the present Act for levy of duty upon consumption of electric energy was enacted under Entry 45B of the List II of the Government of India Act, 1935, corresponding to Entry 53 of List II of the Constitution where as the levy of duty of excise on manufacturer production of goods by Parliament is under Entry 84 of List I. The taxable event with respect to a duty of excise is 'manufacture ' or 'production '; and not 'consumption '; the levy upon consumption of electric energy cannot be regarded as duty of excise falling within Entry 84 of List I. Held, also, the language used in the Legislative Entries in the Constitution must be interpreted in a broad way so as to give the widest amplitude of power to the Legislature to legislate and not in a narrow and pendantic sense.

Appeal No. 1577 of 1966. Appeal from the judgment and order dated March 25, 1964 of the Madhya Pradesh High Court in Misc. Petition No. 31 of 1963. , I. N. Shroff for the appellant. The respondent did not appear. The Judgment of the Court was delivered by Shelat, J. This appeal, by certificate, is directed against the judgment and the High Court of Madhya Pradesh and 1053 raises the question of the scope of jurisdiction of the Authority under the , 4 of 1936 (hereinafter referred to as the Act.) On the licence of the Barnagar Electric Supply and Industrial Company, of which respondent 1 was at all material times 'the managing director, having been revoked by the Madhya Pradesh Government and the company 's undertaking having been taken over by the Madhya Pradesh Electricity Board, respondent 1 served notices on the company 's employees that their services would no longer be required,as from October 1, 1962. Thereupon the appellant on behalf of 20 employees of the company filed an application under sec. 15(2) of the Act to recover from respondent 1 wages for the notice month and retrenchment compensation mounting to Rs. 12,853.60P. payable to the employees under sec. 25FF of the . On respondent 1 contesting the claim as also the jurisdiction of the Authority, the Authority raised certain preliminary. issues, namely: (1) whether the said application was maintainable in view of the revocation of the company 's licence, (2) whether the Authority had jurisdiction to determine the liability of respondent 1 for retrenchment compensation before the amount thereof was ascertained under sec. 33C(2) of the and (3) whether in view of the services of the workmen not having been interrupted by the said transfer and the terms and conditions of service applicable to them after the said transfer being not in any way less favourable than ' before and the said Board as the new employer being liable after the transfer for compensation in the event of retrenchment, the employees were entitled to claim any compensation. By his order dated May 21, 1963 the Authority held against respondent 1 on the question of jurisdiction. Respondent 1 thereupon filed a writ petition in the High Court and Division Bench of the High Court held that sec. 15 of the Act did not apply and that the proper forum for such an application was a Labour Court under sec. 33C(2) of the . This appeal challenges the correctness of this order. Mr. Shroff for the appellant contended that after the amendment of the definition of 'wages ' in the Act by Act 68 of 1957 and the amended definition having now included "any sum which by reason of the termination of employment of the person employed is payable under any law,. contract or instrument which provides for payment of such sum whether with or without deductions but does not provide for the time within which the payment is to be made" as wages, there could be no doubt that the legislature has conferred jurisdiction ' on the Authority under the Act to determine compensation payable under sec. 25FF of the in an application under sec. 15(2) of the Act and that therefore the High Court Was in error in quashing the order :passed by the Authority. Mr, Chagla appearing for the 1054 Respondents 1 and 2 in ,the next appeal,on the other hand, contended (1 ) that the Authority under the Act was a special Authority with limited jurisdiction, that it has to deal only with the subject matters specified in the Act and its jurisdiction must therefore be strictly construed, and (2) that the Act and the deal with different subjects, provide different tribunals with different jurisdictions and therefore it is not possible to hold that Parliament which enacted both the Acts could possibly have contemplated that claim arising under the should be determined by a tribunal set up under a different Act. On these contentions the first question ' which arises for determination is whether compensation payable under sec. 25FF of the can fall under the amended definition in sec. 2(vi)(d) of the Act and can be Called 'wages '. The High Court. thought that it was not but Mr. Shroff relied on certain decisions of ' this Court to contest that part of the conclusion of the High Court. The , which as enacted in 1947, was a piece of 'legislation which mainly 'provided machinery for investigation and settlement of industrial` disputes, has since then undergone frequent modifications. In 1953, by Act 43of that year Chapter VA consisting of secs. 25A to 25J was incorporated providing therein compensation for lay off and retrenchment. It also provided a definition of retrenchment in sec. 2(00). Chapter VA, as it then stood, did not expressly provide for compensation for termination of service on account of transfer of an undertaking by an agreement or as a result of operation of law or the closure of the undertaking. Consequently, in Hariprasad vs Divikar(1) this Court held that retrenchment as defined in sec. 2(00) and the word 'retrenched ' in sec, 25F meant discharge of surplus labour or staff by the employer for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action and did not include termination of services of all workmen on a bona fide closure of an undertaking or on a change of ownership or management thereof. This decision was followed first by an ordinance and then by Act 18 of 1957 incorporating in the Act the present sections 25FF and 25FFF. It will he noticed that both these sections use the words " 'as 'if the workman had been retrenched". The intention of the legislature was, therefore, clear that it did not wish to place transfer and closure 'on the same footing as retrenchment under sec. 25F. This is apparent also from the fact that it left the definition of retrenchment in sec, 2(00) untouched in spite of the decision in Hariprasad 's case(1). The three sections, sections 25F, 25FF and 25FFF 'also ;show ' that while under sec. 25F.no retrenchment Can be made until Conditions therein set out are Carried. out the other two sections do ' not lay down any such conditions. All the ,three sections however, (1)[1957] S.C.R. 121. 1055 involve termination of service whether it results in consequence of retrenchment or transfer or closure, and notice and compensation in both sections 25FF and 25FFF have been provided for "in accordance with the provisions of sec. (see M/s Harisingh Mfg. Co. Ltd. vs Union of India(1) and Anakapalla Co operative Agricultural and Industrial Society Ltd. vs Workmen(2). That being the position a workman whose service is terminated in consequence of a transfer of an undertaking, whether by agreement or by operation of law, has a statutory right under sec. 25FF to compensation unless such right is defeated under the proviso to that section. The same is the position in the case of closure under sec. 25FFF. Such compensation would be wages as defined by sec. 2(vi)(d) of the Act as it is a "sum which by reason of the termination of employment of the person employed, is payable under any law . which provides for the payment of such sum whether with or without deductions but does not provide for the time within which the payment is to be made. " Since sections 25FF and 25FFF do not contain any conditions precedent, as in the case of retrenchment under sec. 25F, and transfer and closure can validly take place without notice or payment of a month 's wages in lieu thereof or payment of compensation, sec. 25FF can be said not to have provided any time within which such compensation is to be paid. It is well established that the words "in accordance with the provisions of sec. 25F" in sections 25FF and 25FFF are used only as a measure of compensation and are not used for laying down any time within which the employer must pay the compensation. It would, therefore, appear that compensation payable under sections 25FF and 25FFF read with sec. 25F would be 'wages ' within the meaning of sec. 2(vi)(d) of the Act. It must, however, be remembered that though such compensation falls within the definition of wages, cases may arise where it would not be a simple question of recovery of wages. In the present case, for instance, the defence taken by respondent 1 was that he was not the person responsible for payment of compensation and that the right of the workmen was defeated by reason of the proviso to sec. 25FF being, according to him, applicable inasmuch as these workmen were continued in the employment by the said Board, the new employer, that therefore there had been no interruption in their employment, that the terms and conditions of service given to them by the new employer were in no way less favourable than those they. had when the company was the employer, and that the new employer was responsible for payment of compensation if any retrenchment took place in future. The question, therefore, is whether in view of the limited jurisdiction of the Authority under see. 15(2) of the Act, it was intended to deal with such questions, which in some cases might well raise complicated problems of both fact and law. (1) ; (2) [1963] Supp. (1) S.C.R. 730. L 6Sup CI/69 16 1056 While considering the scope of jurisdiction of the Authority under sec. 15 of the Act it is relevant to bear in mind the fact that the right to compensation is conferred by the which itself provides a special tribunal for trying cases of individual workmen to whom compensation payable under Ch. VA has not been paid. Section 33C of that Act provides both a forum and the procedure for computing both monetary as well as non monetary benefits in terms of money and further provides machinery for recovery of such claims. In Punjab National Bank Ltd. vs Kharbanda(1) this Court held that while sub sec. 1 of sec. 33C applied to cases where any money was due to a workman from an employer under a settlement, award or under the provisions of Ch. VA and the amount was already computed or calculated or at any rate there could be no dispute about its calculation or computation, sub sec. 2 applied to benefits including monetary benefits conferred on a workman under an award, settlement etc. , but which had not been calculated or computed and there was a dispute as to their calculation or computation. The Court rejected the contention that sub sec. 2 applied only to a non monetary benefit which had to be converted in terms of money. The Court also observed that sec. 33C was a provision in the nature of execution and where the amount to be executed was worked out or where it might be worked out without any dispute sub sec. 1 would apply, but where such amount due to the workman was not stated or worked out and there was a dispute as to its calculation, sub.sec. 2 would apply and the workman would be entitled to apply thereunder to have the amount computed provided he was entitled to a benefit, whether monetary or non monetary, which was capable of being paid in terms of money. In the Central Bank of India Ltd. vs Rajagopalan(2) this Court held that where the right of a workman was disputed by his employer the Labour Court could go into the question as to whether he had a right to receive such a benefit. Sub sec. 3 of sec. 33C under which the Labour Court can appoint a commissioner to take evidence for computing the benefit postulates that it has the jurisdiction to decide whether the workman claiming benefit was entitled to it where such right was disputed by the employer. In Bombay Gas Co. Ltd. vs Gopal Bhiva(3) this Court held that the Labour Court could in an application under sec. 33C(2) go even into the question whether the award under which the workman had made a claim was a nullity. Being in the nature of an executing court it could interpret the award and also consider the plea that the award sought to be enforced was a nullity. It is thus clear that a workman whose claim, monetary or otherwise, is disputed by his employer can lodge such a claim before a specified Labour Court under sec. 33C and obtain an inexpensive and expeditious remedy. The (1) [1962] Supp. 2 S.C.R. 977. (2) ; (3) ; 1057 question then is whether for such a claim the legislature intended to provide alternative remedies both under the and the . For deciding this question it is necessary to refer to some of the provisions of and the scheme of the . The Act was passed to regulate the payment of wages to certain classes of persons employed in any factory or by a railway administration or by a person fulfilling a contract with a railway administration or in any industrial establishment to which a State Government by notification has extended the Act. Section 3 lays down as to who shall be responsible for payment of wages. Section 4 provides for the fixation of wage periods and sec. 5 lays down the time within which payment of wages has to be made. Sec. 7 provides that wages shall be paid without any deductions except those authorised by the Act and sec. 8 provides that no fine shall be imposed on any employed person save in respect of such acts or omissions on his part as the employer with the previous approval of the State Government or the prescribed authority may have specified by notice. Sections 9 to 13 lay down the deductions which an employer is authorised to make and the conditions under which such deduction can be made. Section 13A provides for the maintenance of certain registers and records by the employer and sections 14 and 14A provide for appointment of inspectors under the Act, their powers and the facilities to be afforded by the employer to such inspectors. Section 15 (1 ) provides for the appointment of a person to be the Authority under the Act to hear and decide for any specified area claims arising out of (a) deduction from wages or (b) delay in payment of wages of persons employed or paid in that area including all matters incidental to such claims. Sub sec. 2 provides that "Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union or any inspector under this Act, or any other person acting with the permission of the authority . . may apply to such authority for a direction under sub sec. " The first proviso to sub sec. 2 lays down a period of limitation of 12 months from the date of deduction or the due date of payment and the second proviso empowers the Authority to admit applications beyond the period of limitation on sufficient cause being shown. Sub sec. 3 empowers the Authority to direct refund to the employed person of the amount deducted, or the payment of the delayed wages and also empowers it to award compensation specified therein without prejudice to any other penalty to which the employer guilty of unauthorised deduction or delay in payment is liable under the Act. Under sub sec. 5 of sec. 15 the amount 1058 awarded by the authority can be recovered as if it were a fine imposed by a magistrate. Section 20 provides for penalty for offences under certain provisions of sections 5, 7, 8, 9, 10 and 11 to 13 extending upto Rs. 500/ . It is explicit from the terms of sec. 15(2) that the Authority appointed under sub sec. 1 has jurisdiction to entertain applications only in two classes of cases, namely, of deductions and fines not authorised under sections 7 to 13 and of delay in payment of wages beyond the wage periods fixed under sec. 4 and the time of payment laid down in sec. This is clear from the opening words of sub sec. 2 of sec. 15, namely, "where contrary to the provisions of this Act" any deduction has been made or any payment of wages has been delayed. These being the governing words in the sub sec. the only applications which the Authority can entertain are those where deductions unauthorised under the Act are made from wages or there has been delay in payment beyond the wage period and the time of payment of wages fixed or prescribed under sections 4 and 5 of the Act. Section 15(2) postulates that the wages payable by the person responsible for payment under sec. 3 are certain and such that they cannot be disputed. In D 'Costa vs B.C. Patel(1) this Court held after considering the scheme of the Act that the jurisdiction of the Authority under sec. 15 was confined to deductions and delay in payment of the actual wages to which the workman was entitled and that the Authority under the Act had no jurisdiction to enter into a question of potential wages, i.e., where the workman pleads that he ought to have been up graded as persons junior to him were upgraded and that he ought to have been paid wages on a scale paid to those so up graded. This Court held that the Authority had jurisdiction to interpret the terms of a contract of employment to find out the actual wages payable to the workman where deduction from or delay in payment of such wages is alleged, but not to enter into the question whether the workman should have been up graded from being a daily rated worker to a monthly rated workman. In Shri Ambica Mills Co. Ltd. vs S.B. Bhatt(2) this Court again examined the scheme of the Act and held that the only claims which could be entertained by the Authority were claims arising out of deductions or delay made in the payment of wages. The Court, however, observed that in dealing with claims arising out of deductions or delay made in payment of wages the Authority inevitably would have to consider questions incidental to these matters, but in determining the scope of these incidental matters care must be taken to see that under the guise of deciding incidental matters the limited jurisdiction was not unreasonably or unduly expanded. Equally, care must also be taken (1) ; (2) [1961] 3 S.C.R. 220. 1059 to see that the scope of these incidental matters was not unduly curtailed so as to affect or impair the limited jurisdiction conferred on the Authority. The Court declined to lay down any hard and fast rule which would afford a determining test to demarcate the field of incidental facts which could be legitimately considered by the Authority and those which could not be so considered. It is true, as stated above, that the Authority has the jurisdiction to try matters which are incidental to the claim in question. Indeed, sec. 15(1) itself provides that the Authority has the power to determine all matters incidental to the claim arising from deduction from or delay in payment of wages. It is also true that while deciding whether a particular matter is incidental to the claim or not care should be taken neither to unduly expand nor curtail the jurisdiction of the Authority. But it has at the same time to be kept in mind that the jurisdiction under sec. 15 is a special jurisdiction. The Authority is conferred with the power to award compensation over and above the liability for penalty of fine which an employer is liable to incur under sec. The question, therefore, is whether on the footing that compensation payable under sections 25FF and 25FFF of the being wages within the meaning of sec. 2(vi)(d) of the Act, a claim for it on the ground that its payment was delayed by an employer could be entertained under sec. 15(2) of the Act. In our view it could not be so entertained. In the first place, the claim made in the instant case is not a simple case of deductions having been unauthorisedly made or payment having been delayed beyond the wage periods and the time of payment fixed under sections 4 and 5 of the Act. In the second place, in view of the defence taken by Respondent 1, the Authority would inevitably have to enter into questions arising under the proviso to sec. 25FF, viz., whether there was any interruption in the employment of the workmen, whether the conditions of service under the Board were any the less favourable than those under the company and whether the Board, as the new employer, had become liable to pay compensation to the workmen if there was retrenchment in the future. Such an inquiry. would necessarily be a prolonged inquiry involving questions of fact and of law. Besides, the failure to pay compensation on the ground of such a plea cannot be said to be either a deduction which is unauthorised under the Act, nor can it fall under the class of delayed wages as envisaged by sections 4 and 5 of the Act. It may be that there may conceivably be cases of claims of compensation which are either admitted or which cannot be disputed which by reason of its falling under the definition of wages the Authority may have jurisdiction to try and determine. But we do not think that a claim for compensation under sec. 25FF which is denied by the employer on the ground that it 1060 was defeated by the proviso to that section, of which all the conditions were fulfilled, is one such claim which can fall within the ambit of sec. 15(2). When the definition of wages was expanded to include cases of sums payable under a contract, instrument or a law it could not have been intended that such a claim for compensation which is denied on grounds which inevitably would have to be inquired into and which might entail prolonged inquiry into questions of fact as well as law was one which should be summarily determined by the Authority under sec. Nor could the Authority have been intended to try as matters incidental to such a claim questions arising under the proviso to sec. In our view it would be the Labour Court in such cases which would be the proper forum which can determine such questions under sec. 33C(2) of the which also possesses power to appoint a commissioner to take evidence where question of facts require detailed evidence. Mr. Shroff, however, drew our attention to the decision in Uttam Chand vs Kartar Singh(1) a decision of a learned Single Judge of the High Court of Punjab, taking a view contrary to the one which we are inclined to take. But that decision contains no reasons and is, therefore, hardly of any assistance. In the result we agree with the High Court that the Authority had no jurisdiction under sec. 15(2) of the Act to try these applications. The appeal consequently must fail and is dismissed. But we make no order as to costs. Appeal dismissed.

The State Electricity . Board revoked the licence of a company and took over the undertaking. The 1st respondent, who was the director of the company, served notices on the employees that their services would not be required. Thereupon, the appellant filed an application under section 15(2) of the , on behalf of the employees, for recovering from the it respondent wages for the notice month and retrenchment compensation under section 25FF of the Industrial Disputes Act. The 1st respondent contested the claim as well as the jurisdiction of the authority under the to deal with the application, on the ground 'that he was not the person responsible for payment of com pensation and that the right of the workmen was defeated by reason of the proviso to section 25FF of the Industrial Disputes Act, because there was no interruption in their employment and the new employer (the Electricity Board) was responsible for payment of the compensation. But the Authority held against the 1st respondent. The 1st respondent then filed a writ petition in the High Court and the High Court held that section 15 of the Act did not apply and that the proper forum for such an application was the Labour Court under section 33C(2) of the . In appeal to this Court, on the questions: (1) Whether compensation payable under section 25FF of the can fall under the amended definition of wages in section 2(vi)d of the payment of Wages Act, as it is a 'sum which by reason of the termination of employment of the person employed, is payable under any law . which provides for the PaYment of such sum whether with or without deductions but does not provide for the time within which the payment is to be made ' and (2) Whether the authority under section 15 of the had jurisdiction to entertain the application, HELD: (1) The three sections, namely section 25F introduced into the , by Act 43 of 1951, and sections 25FF and 25FFF incorporated by Act 18 of 1957, involve termination of service in consequence of retrenchment, transfer and closure respectively. In sections 25FF and 25FFF notice and compensation have been provided for 'in accordance with the provisions of section 25F '. These words are used only as a measure of compensation and are not used for laying down any time within which the employer must pay compensation. Since section 25FF unlike section 25F, does not contain any conditions precedent, it can be said not to have provided any time within which such compensation is to be paid. Therefore, the compensation payable under section 25FF read with section 25F of the would be wages within the meaning of section '2 (vi)(d )of the Payment of. Wages Act. [1055 C E] 1052 M/s. Hatisingh Mfg. Co. Ltd. vs Union of India, ; and ,Anakapalla Co operative Agricultural and Industrial Society Ltd. vs Workmen, [1963] Supp. 1 S.C.R. 730, followed. (2) The words 'where. contrary to the provisions of the Act, in section 15(2) of the being the governing words, the Authority appointed under section 15(1) has jurisdiction to entertain applications only in two classes of cases, namely, of deductions and fines not authorised under sections 7 to 13 of. the and of delay in payment of wages beyond the wage periods fixed under section 4 and time in payment laid down in section 5. Section 15(1) provides that the Authority has the power to determine all matters incidental to the claim arising from deductions from or delay in payment of wages, but while deciding whether a particular matter is incidental to the claim or not. care should be taken neither to unduly expand or curtail the jurisdiction of the Authority, because, the jurisdiction is a special jurisdiction. Section 15(2) postulates that the wages payable by the person responsible for payment under section 3 are certain and such that they cannot be disputed. [1058 B D] In the present case, (a) the claim was not a simple. case of deduction/ions having been unauthorisedly made or payment having been delayed beyond the wage periods or the time of payment fixed under sections 4 and 5 of the Act; (b) In view of the defence taken by the 1st respondent, the failure to pay compensation did not fall under sections 4 and 5 of the Act; and (c) The claim for compensation denied by the employer in the circumstance could not fall within the ambit of section 15(2). [1059 H] It could not have been intended that such matters could be tried by the Authority under the Act as matters incidental to the claim of compensation under section 25FF. The proper forum would be the Labour Court which can decide such questions under section 33C(2) of the , since such court can go up into those matters fully, expeditiously and without expense. [1060 C] Punjab National Bank Ltd. vs Kharbanda, [1962] Supp. 2 S.C.R. 977, Central Bank of India Ltd. vs Rajagopalan, ; , Bombay Gas Co. Ltd. vs Gopal Bhiva, ; , D 'Costa vs B.C. Patel, [1955] 1 S.C.R. 1353 and Shri Ambica Mills Co. Ltd. vs 5. B. Bhatt ; , referred to.

tions (C) Nos. 331 47 of 1984. (Under Article 32 of the Constitution of India. ) Rajinder Sachar and K.T. Anantharaman for the Petitioners. Narayan B. Shetty, G.B. Pai, S.S. Shroff, Mrs. P.S. Shroff, Miss Girja Krishan, S.A. Shroff, Mrs. Pallavi Shroff, O.C. Mathur and A.M. Dittia for the Respondents. The Judgment of the Court was delivered by 365 DUTT, J. In these writ petitions, the petitioners are former officers and employees of the Caltex Oil Refining (India) Ltd., which has since been amalgamated with the Hindustan Petroleum Corporation Limited. The complaint of the petitioners is with regard to the inter se fitment of the officers and employees of the Caltex Oil Refining (India) Ltd. and the other two Companies which have also been amalgamated with Hindustan Petroleum Corporation Ltd., namely, ESSO Standard Refining Company of India Ltd. and Lube India Ltd. In 1974, the Undertakings in India of ESSO Eastern Inc. that is, ESSO Standard Refining Company of India Ltd. (for short 'ESSO ') and Lube India Ltd. (for short 'LIL ') were acquired by the ESSO (Acquisition of Undertakings in India) Act, 1974 and vested in Hindustan Petroleum Corporation Ltd. (for short 'HPCL '), a Government Company. In 1977, the shares of Caltex Oil Refining (India) Ltd. and Undertakings in India of Caltex (India) Ltd. were acquired by the Caltex (Acquisition of Shares of Caltex Oil Refining (India) Ltd. and the Undertakings in India of Caltex (India) Ltd. Act, 1977 and vested in Caltex Oil Refining (India) Ltd. (for short 'CORIL '), a Government Company. On May 5, 1978, by the order of the Company Law Board, CORIL was amalgamated with HPCL. By an order dated June 17, 1978, the Central Government appointed a one man Committee of Mr. B.B. Tandon, IAS (Retd.), for the purpose of examining the problems arising out the the integration of the management staff of CORIL and HPCL. The said Committee was to make recommendation inter alia on the following: (i) fitment in equivalent Groups; (ii) criteria to be adopted for determination of seniori ty and fixation of inter se seniority; and (iii) placement in appropriate positions. In September, 1970, the Tandon Committee submitted a report to the Central Government recommending that for equating positions in the two companies and fitting them in equivalent groups, the following two principles should be followed: 1. The principle of functional similarity 2. The principle of co equal responsibility. 366 We shall have occasion to refer to the report of the Tandon Committee later in this judgment, for much reliance has been placed by the petitioners on the report. While the report of the Tandon Committee was under the consideration of the Central Government, HPCL appointed two functional directors for the purpose of formulating a rationalisation scheme. In this connection, we may refer to a letter dated July 28, 1979 of the Central Government whereby it advised HPCL that the pay scales and perquisites of management and employees in the nationalised oil companies should be ratio nalised and fitted into the pay scales of the Indian Oil Corporation, hereinafter referred to as 'IOC ', a public sector Company. Further, it was stated in the said letter that the guiding principle to be adopted for the purpose was to find out the equivalence, that is to say, the equality of duty and also the equality of responsibility. On July 7, 1980, a circular letter was issued by HPCL annexing thereto a rationalisation scheme consisting of two pans. In the first part, the past service benefits that would be admissible to each employee of CORIL on the basis of existing pay scales and in the second pan, details were given of the rationalised conditions of service, payscales, perquisites and retirement benefits. In the circular it was stated as follows: "In relation to your fitment or fixation of salary in the proposed rationa lised scales, should you have any grievance you will be at liberty to represent your case to a Grievance Committee, which has been specially constituted for the purpose. I am directed to request you to signify your acceptance of this offer within 30 days from the date of receipt of this letter by returning the duplicate copy of this letter duly signed by you. On receipt of your acceptance, consequent letters will be issued. " In the scheme the pay scales of ESSO, LIL and CORIL sought to be equated with the pay scales of HPCL are as follows: From ESSO To : HPCL HPCL Salary Group Salary Group Salary Scale RS. E 7, E 8 A 750 40 1150 50 1550 E 6 B 1050 50 1450 60 1750 367 E 5, E 5A C 1450 60 1690 65 1950 E 4 D 1600 65 2120 E 3 E 1850 100 2350 E 2 F 2000 100 2500 O & E 1 & Unclassified G 2250 100 2750 General Manager H 2500 100 3000 From : LIL To : HPCL HPCL Salary Group Salary Group Salary Scale L 7 A 750 40 1150 50 1550 L 6 B 1050 50 1450 60 1750 L 5 C 1450 60 1690 65 1950 L 4 D 1600 65 2120 L 3 E 1850 100 2350 L 2 F 2000 100 2350 L 1 G 2250 100 2750 General Manager H 2500 100 3000 From CORIL To : HPCL HPCL Salary Group Salary Group Salary Scale R 6 A, R 6 B A 759 40 1150 50 1550 R 7 A, R 7 B B 1050 50 1450 60 1750 R 8 C 1450 60 1690 65 1950 R 9 D 1600 65 2 120 R 10 E 1850 100 2350 R R 12 G 2250 100 2750 General Manager H 2500 100 3000 So far as CORIL is concerned, it appears that it has 10 grades, while HPCL has 8 Grades. For, the purpose of equa tion of these 10 grades of CORIL with 8 Grades of HPCL, some compression has been made in the lower Grades, namely, R6 A and R6 B have been clubbed together and equated with Grade A of HPCL. Again Grades R7 A and R7 B of CORIL have been clubbed together and equated with Grade B of HPCL. In ESSO, .the Grades E 7 and E 8 have been clubbed together and equated with Grade A of HPCL. In the Salary Group of ESSO, the Grades E 5 and E SA have been shown to be two different Grades, but it is not disputed before us that these two Grades are really one Grade. 368 The complaint of the petitioners is that in the matter of fitment/ integration of the officers of CORIL, that is, the petitioners, and the officers of ESSO/LIL into HPCL/IOC Grades, gross disparities have been made to the prejudice of the officers of CORIL. It is the case of the petitioners that the officers of CORIL have been fitted by HPCL consist ently in one or two Grades lower in HPCL vis a vis their counterparts in ESSO/LIL, performing similar duties and having similar responsibilities and status. It is urged on behalf of CORIL that in integrating the officers CORIL with those of ESSO and LIL, HPCL did not make any attempt to equate all the positions held by the officers of CORIL with those held by the officers of ESSO/LIL. It is submitted that before any fitment can be made into any scale of pay, it is incumbent to make an equation of posts and without such equation the officers of CORIL could not be fitted into the pay scales of HPCL along with the officers of ESSO and LIL. In support of the contention that HPCL has not made any equation of posts before fitment in HPCL/IOC scales of pay, Mr. Sachar, learned Counsel appearing on behalf of the petitioners, has placed much reliance on the Tandon Commit tee 's Report. In the said report, the post of General Sales Representative of ESSO has been equated with the post of Retail Development Supervisor of CORIL. In the scheme pre pared by HPCL, the post of General Sales Representative of ESSO (E 6) and that of Depot Superintendent (E 6) have been placed in the Salary Group B of HPCL, while the post of Retail Development Supervisor (R6 A) and Depot Superintend ent/Relief Depot Superintendent (R6 B) of CORIL have been placed in the Salary Group A of HPCL. In Tandon Committee 's Report, it has been observed that the functional similari ties and the responsibility carried by both these function aries, namely, Retail Development Supervisor of CORIL and General Sales Representative of ESSO, are alike. Further, it has been observed that since these two posts are congruent, they can be fitted in the same Group, that is, in Group B of the new HPCL Grade Structure representing IOC scales of pay. The post of Depot Super intendent A (R7 B) and that of Mar keting Representative (R7 A) of CORIL have been placed in the Salary Group B of HPCL, but similar posts of ESSO being E 5/E 5A have been placed in the Salary Group C of HPCL. It is thus complained that the scheme, which has been prepared by HPCL, is arbitrary and is not based on a proper equation of posts. On the other hand, it is the case of HPCL that before the rationalisation scheme was finalised. HPCL Employees Management 369 Staff Association and CORIL Staff Association submitted their written submissions on December 6, 1977 and July 17, 1977 respectively. These representations were considered by the Government and after several meetings between the Chief Executives of HPCL and CORIL and the Secretary and other senior officers of the Ministry and Bureau of Public Enter prise, Government formulated the guidelines for rationalisa tion and communicated its decision to both CORIL and HPCL by its letter dated July 28, 1979. With a view to giving a further opportunity to the employees of erstwhile ESSO and CORIL group of officers, the Chairman of HPCL appointed two Committees to submit their recommendations as to the equiva lence and fitment of existing officers on the basis of IOC 's scales of pay in accordance with the Government guidelines. HPCL considered the reports submitted by the said two Com mittees and also different methods of fitment and equiva lence of different pay scales of ESSO, LIL and CORIL with the pay scales of IOC and, keeping in view all these factors including the submissions made by the Officers ' Association through their representations, HPCL approved the proposal of rationalisation of pay scales, allowances and perquisites. Accordingly, an offer letter dated July 7, 1980 together with the terms and conditions of new appointment as per the rationalisation scheme was sent to each of the employees. The further case of HPCL is that without exception every one of the CORIL Management Employees accepted the fresh terms offered to them by the said letter dated July 7, 1980. It is, accordingly, contended by Mr. Pai, learned Coun sel appearing on behalf of HPCL, that the impugned rational isation scheme having been finalised after repeated consul tations with the officers of CORIL and their Association and all the officers of CORIL having accepted in writing the said scheme, they are precluded from challenging the same. Another fact, upon which reliance has been placed on behalf of HPCL, is an order of this Court dated December 17, 1979 passed in Civil Appeal No. 3214 of 1979 whereby HPCL challenged the judgment of the Delhi High Court quashing a circular dated March 8, 1978 issued by the Board of Direc tors of CORIL, on the writ petition filed by the employees of CORIL being Writ Petition No. 426 of 1978. Two other appeals being Civil Appeal No. 3212 of 1979 and Civil Appeal No. 35 186 of 1979 were also filed by the officers of CORIL and Bharat Petroleum Corporation Ltd. respectively. The said order is as follows: "The petitioner Corporation will be at liberty to frame a 370 scheme, if it wishes to do so, in accordance with the judg ment of the High Court under appeal. If the scheme is framed, it will not be implemented for a period of three weeks from the date of its framing and the respondents will be at liberty within the period of 3 weeks to apply to this Court for stay. This order will be without prejudice to the rights and contentions of the petitioner Corporation in the appeal. " Admittedly, no application was made to this Court by the officers of CORIL praying for stay of the rationalisation scheme within a period of three weeks. Relying on the said order of this Court and also on the fact that no application for stay was made to this Court within the period allowed, it is submitted on behalf of HPCL that the petitioners accepted the rationalisation scheme which is also evidenced by their written acceptance. If they had any objection to the scheme, they would have surely made a representation to this Court in the said Civil Appeal No. 3214 of 1979 which was then pending. In the writ petition, the petitioners have emphatically denied the allegation of HPCL that discussions were made with individuals and groups of Management Staff of CORIL with regard to the rationalisation scheme. As to the accept ance of the rationalisation scheme, the case of the peti tioners is that on July 12, 1980 a news item appeared in the Bombay edition of the Times of India to the effect that under the scheme of rationalisation, the services of nearly 950 officers of HPCL would be terminated, and that such officers would simultaneously be reappointed on the basis of public sector salary. In view of the said news, the peti tioners filed an application in this Court in the said Civil Appeals praying for stay or suspension of the operation of the said offer letter dated July 7, 1980 and for restraining HPCL from terminating the services of the Management Staff of CORIL pending the disposal of the Civil Appeals. HPCL filed an affidavit in opposition to the said application of the petitioners to the effect that no decision had been taken by HPCL to terminate the services of the officers of CORIL. Accordingly, this Court disposed of the said applica tion recording that in view of the said affidavit of HPCL, no order was needed to be passed. Further, the case of the petitioners is that in spite of the said order of this Court, the petitioners still apprehended that HPCL would terminate the services of the petitioners in the event of their refusal to accept the said scheme and, as such, the petitioners under duress were forced to signify their con sent to the said scheme. 371 We have considered the explanation of the petitioner justifying the acceptance of the said offer letter dated July 7, 1988 and the rationalisation scheme sent therewith and also the contention of HPCL in that regard. In our opinion, the apprehension of the petitioners that in the event of their refusal to accept the scheme, their services will be terminated cannot be rejected on the face of it. It may be that there was no reasonable basis for such apprehen sion, but the plea that because of such apprehension the petitioners had no other alternative than to accept the scheme, cannot be disbelieved. At the same time, we do not also put any blame on HPCL for implementing the said scheme which was accepted by the petitioners and other officers of CORIL. Instead of disposing of these writ petitions on this technical grounds, we may proceed to consider the respective contentions of the parties on merits. The main grievance of the petitioners appears to be that in the rationalisation scheme a compression has been made at the lower level, namely, Grades R6 A and R6 B have been clubbed together and instead of placing them in the Salary Group B of HPCL, as has been done for the equivalent Grade E 6 of ESSO, they have been placed in the Salary Group A of HPCL. Similarly, the Grades R7 A and R7 B have been clubbed together and placed in Salary Group B of HPCL, while the equivalent Grade of ESSO has been placed in the Salary Group C of HPCL. The contention of the petitioners is that the compres sion should have been made at the higher grades, namely, Grades R11 and R12 and the Grade of General Manager. This is not for this Court to say whether the compression should have been made in the lower grades or in the higher grades. By such compression, Grades R6 A and R7 A have been upgraded and the persons placed in those Grades have been benefited by such upgradation. There is much substance in the conten tion made on behalf of HPCL that if compression had been made in the upper grades, there would be much complications and, moreover, such compression in the upper grades was not convenient to be made in view of functional differences. The Grade of General Manager cannot be clubbed together with a lower grade. In the circumstances, we are unable to accept the contention of the petitioners that the compression should have been made in the higher grades of CORIL. The most important question that requires consideration is whether in framing the rationalisation scheme HPCL has really made the equation of posts of CORIL with those of ESSO/LIL. It is the 372 positive case of the petitioners that no such equation has been made and the fitment of the officers of CORIL and those of ESSO/LIL in the IOC/HPCL scales of pay have been made without the equation of posts, which is a sine qua non for integration of officers coming from different sources. The petitioners have mainly relied upon the recommendation of the Tandon Committee that General Sales Representative of ESSO has been equated with the post of Retail Development Supervisor of CORIL. In the scheme prepared by HPCL, the post of General Sales Representative of ESSO and that of Depot Superintendent have been placed in the Salary Group B of HPCL, while the post of Retail Development Supervisor and Depot Superintendent/Relief Depot Superintendent of CORIL have been placed in the Salary Group A of HPCL. As against this, the contention of HPCL is that the two Committees that were appointed by the Chairman of HPCL considered the different methods of fitment and equivalence of different pay scales of ESSO, LIL and CORIL with the pay scales of IOC. Except the bare allegation, no material has been produced before us on behalf of HPCL to show that the said Committees had, as a matter of fact, considered the question of equation of posts on the basis of the principle as laid down by the Central Government while referring the matter to the Tandon Committee, namely, functional similari ty and co equal responsibility. In the affidavits filed on behalf of HPCL, no particulars have been given with regard to the functional equivalence or otherwise of the different grades of these officers of CORIL, ESSO and LIL. It is also not stated what happened to the consideration by the Govern ment of the Tandon Committee 's report. There can be no doubt that the Government is not bound to accept the recommenda tion of the Tandon Committee but, at the same time, the equation of posts has to be made on the principle of func tional equivalence and co equal responsibility. As no mate rials have been produced in that regard on behalf of HPCL, it is difficult for us to hold that the different grades of posts have been compared before placing the officers of these companies in the IOC/HPCL scales of pay. While it is not within the domain of the Court to make the equation of posts for the purpose of integration, it is surely the concern of the Court to see that before the integration is made and consequent fitment of officers in different grades/scales of pay is effected, there must be an equation of different posts in accordance with the principle stated above. As there is no evidence or material in support of such equation of posts, it is difficult to accept the ra tionalisation scheme with regard to the placing of the officers of CORIL in different IOC/HPCL grades of pay. 373 The petitioners approached the Grievance Committee, but the Grievance Committee did not consider the objections of the petitioners to the said scheme. In our opinion, there is much substance in the contention made on behalf of HPCL that it was not the business of the Grievance Committee to con sider the propriety or otherwise of the rationalisation scheme, but if any officer has not been placed in the proper grade, the Grievance Committee may place such officer in the proper grade in accordance with the rationalisation scheme. Be that as it may, in the view which we take, namely, that there has been no equation of posts, the rationalisa tion scheme cannot be accepted in full. The prayer of the petitioners in the writ petition is for a declaration that the said scheme is violative of Articles 14 and 16 of the Constitution of India and for a writ, order or direction in the nature of mandamus directing HPCL to remove the discrim ination against the petitioners in regard to the impugned rationalisation scheme. The question is whether we should set aside the scheme after the lapse of about eight years. During these eight years, by virtue of implementation of the scheme, many changes have taken place with regard to the positions and ranks of the officers of HPCL including the petitioners and to set aside the whole scheme at this stage would surely affect the service structure of HPCL. We are also not obliv ious of the order of this Court dated July 20, 1984 record ing the statement made in the affidavit of HPCL that if this Court would ultimately decide the matter in favour of the petitioners, HPCL would accord to them all the benefits which they would be entitled to. That is an undertaking given by HPCL, but we should also look to the interest of several officers of HPCL who would be affected, if the scheme is set aside. In the circumstances, without setting aside the scheme, we direct HPCL to appoint a Committee consisting of high officials of HPCL and Central Government, other than those who were in the previous Committees, within one month from date for the purpose of considering the question of equation of posts on the basis of functional similarity, equivalence and co equal responsibility, that is to say, whether on that basis Grades R6 A and R6 B of CORIL, either jointly or separately, can be equated with the Grade E 6 of ESSO and, similarly, Grades R7 A and R7 B of CORIL, either jointly or separately, can be equated with Grade E 5/E 5A of ESSO. In considering the question of equation of posts, the respond ents shall also take into its consideration the report of the Tandon Committee. Such consideration shall be 374 made within six months from today. If such equation is found to be in favour of the petitioners, HPCL shall give effect to the same. But, in view of the lapse of about eight years for which the petitioners are also to some extent responsi ble, the date or dates from which the consequential benefit will be given effect to and also the quantum of such benefit will be such as may be deemed fit and proper by the respond ents, having regard to the financial involvement and the changes that have taken place. We make it clear that, in no event, promotions and the existing positions of the officers of HPCL, by virtue of the implementation of the impugned scheme, will be interfered with. The writ petitions are disposed of as above. There will be no order as to costs. P.S.S Petitions allowed.

ESSO Standard Refining Company of India Ltd. and Lube India Ltd. were acquired by the ESSO (Acquisition of Under takings in India) Act, 1974 and vested in the Hindustan Petroleum Corporation Ltd. In 1978 Caltex Oil Refining India Ltd., another Government company was amalgamated with HPCL. Consequent upon this integration of management staff of CORIL and HPCL, dispute arose as to their fitment in equiva lent groups and fixation of inter se seniority. The Tandon Committee appointed to examine the issues recommended the application of the principles of (1) functional similarity, and (2) co equal responsibility, for equating positions in the two companies. The HPCL appointed two functional direc tors for framing a rationalisation scheme. In the said scheme for the purpose of equation of 10 grades of CORIL with 8 grades of HPCL some compression was made in the lower grades, namely, R6 A and R6 B of CORIL were clubbed together and equated with grade A of HPCL. Again, grade R7 A and R7 B were clubbed together and equated with grade B of HPCL. The complaint of the petitioners, former officers and employees of CORIL, was that the rationalisation scheme was arbitrary, in that the fitment of officers of CORIL and those of the ESSO/LIL in the HPCL scales of pay had been made without the equation of posts, which was a sine qua non for integration of officers coming from different sources, so much so that they had been consistantly fitted in one or two grades lower in HPCL vis a vis their counterparts in ESSO/LIL performing similar duties and having similar re sponsibilities and status; that in the Tandon Committee report, the post of General Sales Representative of ESSO had been equated with the post of Retail Development Supervisor of CORIL on the principle of functional similarity and co equal responsibility; that since these two posts were con gruent, they should have been fitted in the same group, that is, in Group B of the new HPCL 363 Grade structure, whereas in the said scheme the post of General Sales Representative of ESSO (E 6) and that of Depot Superintendent (E 6) have been placed in the Salary Group B of HPCL, while the post of Retail Development Supervisor (R6 A) and Depot Superintendent/ Relief Depot Superintendent (R6 B) of CORIL have been placed in Salary Group A of HPCL. It is further averred that the post of Depot Super intend ent A (R7 B) and that of Marketing Representative (RT A) of CORIL have been placed in the Salary Group B of HPCL, but similar posts of ESSO being E 5/E5A have been placed in Salary Group C of HPCL; that the compression should have been made at the higher grades namely, grades R 11 and 12 and the grade of General Manager, and that the petitioners were forced to signify their consent to the said scheme under duress. They, therefore, prayed for a declaration that the said scheme was violative of Articles 14 and 16 of the Constitution of India. For the respondents, it was contended that the two committees that were appointed by the Chairman of HPCL considered the different methods of fitment and equivalence of different pay scales of ESSO, LIL and CORIL with the pay scales of IOC, that the reports submitted by these two committees were considered by the HPCL along with the sub missions made by the officers ' association through their representations before approval, that the terms and condi tions of the new appointments as per the rationalisation scheme were circulated to each of the CORIL employees with its letter dated July 7, 1980 and they having accepted in writing the said scheme they were precluded from challenging the same. Allowing the writ petitions, HELD: 1. While it is not within the domain of the Court to make the equation of posts for the purpose of integra tion, it is surely the concern of the Court to see that before the integration is made and consequent fitment of officers in different grades/scales of pay is effected, there must be an equation of different posts in accordance with the principle Of functional equivalence and co equal responsibility. [372G H] In the instant case, no evidence or material has been placed before the Court on behalf of the HPCL in support of such equation of posts. The rationalisation scheme with regard to the placing of the officers of CORIL in different IOC/HPCL grades of pay, therefore, cannot be accepted in full. [372H] 364 2. This is not for the Court to say whether the compres sion should have been made in the lower grades or in the higher grades. By such compression, grades R6 A and R7 A have been upgraded and the persons placed in those grades have been benefitted. If compression had been made in the upper grades there would have been much complications in view of the functional differences, for the grade of General Manager cannot be clubbed together with a lower grade. The contention that the compression should have been made in the higher grades of CORIL cannot, therefore, be accepted. [371F G] 3. The apprehension of the petitioners that in the event of their refusal to accept the scheme, their services will be terminated cannot be rejected. It may be that there was no reasonable basis for such apprehension, but the plea that because of such apprehension the petitioners had no other alternative than to accept the scheme, cannot be disbe lieved. [371B] 4. Having regard to the interest of several officers of HPCL who would be affected if the scheme is set aside, and in view of the fact that during the eight years in which the scheme had been in operation many changes had taken place with regard to the positions and ranks of the officers of HPCL including petitioners, HPCL is directed to appoint a committee consisting of high officials of HPCL and Central Government, other than those who were in the previous com mittees, within one month for the purpose of considering the question of equation of posts on the basis of functional similarity, equivalence and co equal responsibility, and to give effect to the same. Promotions and the existing posi tions of the officers of HPCL by virtue of the implementa tion of the impugned scheme, not to be interfered with. [373D, F G; 374B]

: Civil Appeal No. 33 of 1953. Appeal by special leave from the Judgment and Order dated the 16th May, 1951, of the High Court of Judicature at Patna in Miscellaneous Judicial Case No. 126 of 1950, arising out of the Order dated the 17th May, 1949, of the Income tax Appellate Tribunal, Calcutta Bench, Calcutta, in I.T.A. No. 147 of 1948 49. sukumar Mitra (section N. Mukherjee with him) for the appellant. C.K. Daphtary,. Solicitor General for India (Porus A. Mehta, with him) for the respondent 1954. February 9. The Judgment of the Court was delivered by DAS J. This is an appeal by special leave from the judgment of the Patna High Court delivered on a reference made by the Income tax Appellate Tribunal under section 66(1) of the Indian Income tax Act. The tribunal referred the following two questions for the opinion of the High Court: 769 1. On the facts and in the circumstances of this case is the surplus of Rs. 13,05,144 arising out of the sale of the plant and machinery of the sugar factory chargeable under section 10 (2) (vii) ? 2. Was the profit of Rs. 15,882 on the sale of stores of the factory taxable under the Income tax Act in the circumstances of this case ? The reference came up for hearing before a Division Bench consisting of Shearer and Sarjoo Prasad JJ. and after a prolonged hearing the learned Judges delivered separate judgments on the27th February. 1951, giving divergent answers to the questions, Shearer J. answering both the questions in the negative and Sarjoo Prasad J. giving an affirmative answer to both of them. The matter thereupon was placed before a third Judge, Ramaswami J. who, after a fresh hearing delivered his judgment on the 16th May, 1951, agreeing with Sarjoo Prasad J. on the first question and with Shearer J. on the second question. The result was that the High Court by a majority decision answered the first question in the affirmative, i.e., against the assessee, and the second question in the negative, i,e. in favour of the assessee. The assessee applied to the High Court for leave to appeal to this court against the High Court 's decision on the first question. The High Court having declined to grant the necessary certificate the assessee applied for and obtained the special leave of this court to prefer the present appeal. The department has not preferred any appeal against the High Court 's decision on the second question and nothing further need be said about that question. The controversy arose in course of the proceedings for the assessment of Pursa Ltd. to income tax for the assessment year 1945 46, the relevant accounting year covering the period between the 1st October, 1943, to 30th September, 1944. Pursa Ltd., was a company incorporated in 1905 under the Indian Companies Act but all its shareholders and directors were residents in the United Kingdom. The business of the 770 company was that of growers of sugarcane, manufacturers of sugar and dealers in sugar. It is common ground that the crushing season for the manufacture of sugar is from December to April of each year. It appears that towards the end of 1942 an attempt was made to sell the entire business of the company but such attempt did not succeed. It appears from the case filed by the respondent in tiffs appeal that in the middle of 1943 the directors of the company commenced negotiations for the sale of the factory and other assets of the company with the ultimate object of winding up the company. From the correspondence, affidavit and other materials placed before the tribunal and referred to by Sarjoo Prasad J. in his judgment it appears that on the 9th August, 1943, an inventory was prepared and a firm offer was received from Dalmia lain & Company Ltd., for the purchase of the factory and stores as on that date. This offer was on the 16th August, 1943, communicated by cable to the directors in England. On the 20th August, 1943, the directors, asked the local managers in India to proceed with the matter in anticipation of the sanction of the shareholders which the directors expected to obtain at an extraordinary general meeting to be held very shortly. That meeting, however, was held on the 8th October, 1943, i.e., 8 days after the accounting year had started. , At that meeting the firm offer of Dalmia lain & Company Ltd. was accepted and a concluded agreement for sale came into existence. Thereafter instructions were given to the solicitors to draw up the necessary documents. On the 7th December, 1943, a written memorandum of agreement was executed whereby the company agreed to sell and demise to Dalmia Jain & Company Ltd., free from all mortgages and charges at and for the price of rupees twenty eight lacs all the lands, buildings, machinery and plant and all vats, reservoirs, cisterns, pumps, machinery, engines, boilers, plant, implements, utensils, tramways, furniture, stores, articles and things as on the ninth day of August, one thousand nine hundred and forty three (subject to subsequent use and consumption in the ordinary course 771 of business) used in connection with the said sugar factory, but excepting stocks of manufactured sugar and stocks of grain in godown on the ninth day of August, one thousand nine hundred and forty three and all stores and other articles bought or received by the company after the date. Dalmia Jain & Company Ltd., paid the sum of rupees twenty eight lacs on the same day and on the 10th December, 1943, they got possession of the factory. On the date of the aforesaid sale, the company possessed sugar stock valued at rupees six lacs which was excluded from the sale. This stock of sugar the company continued to sell up to June, 1944. It is said that the said stock of sugar was excluded because at the time it was not possible to know at what date such a sale would be concluded and the sugar produced in 1943 had to be sold by and through the exclusive selling agents of the company under a contract entered into with them. It is, however, not disputed that between the 9th August, 1943, when the firm offer was obtained and the 10th December, 1943, when possession of the factory was made over to Dalmia Jain & Company Ltd., the company never used the machinery and plant for the purpose of manufacturing sugar or for any other purpose except that of keeping them in trim and running order. Indeed, throughout the accounting period the machinery and plant were not used by the company. The company went into voluntary liquidation on the 20th June, 1945. The reason for the delay in putting the company into liquidation is said to have been caused by considerable legal difficulties with regard to the transfer of certain mokarari lands belonging to the company. The liquidators appointed by the shareholders of the company represented the company in the matter of proceedings for assessment of the company for the assessment year 1945 46. In the course of these assessment proceedings the Income tax Officer on the 21st February, 1947, wrote a letter to the liquidators asking for elucidation on certain points. Amongst other things, the Income tax Officer wanted to know the liquidators ' objection why the company 's activities during the previous 772 year might not be treated as amounting to a realisation of assets on impending liquidation rather than to the carrying on of business within the meaning of the Income tax Act. To this letter an answer was sent by the liquidators . on the 19th March, 1947, pointing out that the company had gone into liquidation on the 20th June, 1945, and that in view of the date of liquidation the liquidators could not agree that the company was not carrying on business during the year ended 30th September, 1944, and they further pointed out that the various debits contained in the sugar factory accounts were those incurred in carrying on the company 's business. By his letter dated the 17th May, 1947, the Income tax Officer claimed that large profits which had been made by the company on the sale of their machinery and plant were taxable under the second proviso to section 10 (2)(vii)of the Income tax Act and called upon the liquidators to retain sufficient funds and assets in their hands to meet the heavy tax liabilities that might eventually arise and also to warn the shareholders accordingly. He also asked for certain information which, however, the liquidators did not furnish. The liquidators, in their letter in reply dated the 22nd May, 1947, did not agree that the profits were taxable, for the profits to which reference had been made were not profits arising from a business carried on by the company but were profits arising from the company ceasing to carry on business. The Income tax Officer, however, by his order dated the 21st June, 1947, held that the profits of the sale of machinery and plant were liable to assessment under section 10 (2)(vii)of the Act and added a sum of Rs. 13,05,144 to the profits. The Appellate Assistant Commissioner of Income tax having dismissed the liquidators ' appeal on the 30th January, 1947, the liquidators went up on further appeal to the Income tax Appellate Tribunal. By its order dated the 17th May, 1949, the tribunal dismissed that appeal. Upon an application under section 66(1) of the Act the tribunal stated a case to the High Court referring the two. questions herein before 773 set out. The subsequent history of the matter has already been mentioned and needs no reiteration. The relevant portion of section 10 of the Income tax Act as amended by Act VI of 1939was as follows : "10 (1) The tax shall be payable by anassessee under the head "Profits and gains of business, profession or vocation" in respect of the profits or gains of any business, profession or vocation carried on by him. (2) Such profits or gains shall be computed after making the following allowances, namely : (i) . . . . . . . (ii) . . . . . . . (iii) . . . . . . . (iv) in respect of insurance against risk of damage or destruction of buildings, machinery, plaint, furniture, stocks or stores, used for the purposes of the business, profession or vocation, the amount of any premium paid; (v) in respect of current repairs to 'such buildings, machinery, plant, or furniture, the amount paid on account thereof; (vi) in respect of depreciation of such buildings, machinery, plant, or furniture being the property of the assessee, a sum equivalent to such percentage on the original cost thereof to the assessee as may in any case or class of cases be prescribed: (vii) in respect of any machinery or plant which has been sold or discarded, the amount by which the written down value of the machinery or plant exceeds the. amount for which the machinery or plant is actually sold or its scrap value: Provided that such amount is actually written off in the books of the assessee: Provided further that where the amount for which any such machinery or plant is sold exceeds the written down value, the excess shall be deemed to be profits of the previous year in which the sale took place; . . . . . . . . . . . . . . . ." 774 It is necessary to bear in mind the meaning and import of the provisions of section 10 (2)(vii)in so far as they apply to the present case. Under section 10 tax is payable by an assessee "in respect of the profits or gains of any business, profession or vocation carried on by him." "Business" is defined by section 2, sub section (4) as "including any trade, commerce or manufacture, or any adventure or concern in the nature of trade, commerce or manufacture. " As pointed out by the Judicial Committee in Shaw Wallace & Co. 's case(1) the fundamental idea underlying each of these words is the continuous exercise of an activity and the same central idea is implicit in the words "carried on by him" occurring in section 10 (1)and those critical words are an essential constituent of that which is to produce the taxable income. Therefore, it is clear that the tax is payable only in respect of the profits or gains of the business which is carried on by the assessee. Sub section (2)permits allowances to be made before the taxable profits are ascertained. Proviso (2)to clause (vii) of that sub section on which the income tax authorities have relied makes the excess of sale proceeds over the written down value of "any such machinery or plant" to be deemed to be profits of the previous year in which the sale took place. Any such machinery or plant in the proviso clearly refers to the machinery or plant in respect of which the allowance is to be given under that clause. Although the word "such" was not used in the body of clause (vii), the scheme of sub section (2) which is apparent from the other clauses of allowances e.g., (iv), (v) and (vi), clearly indicates that the machinery or plant referred to in clause (vii) must be the same as those mentioned in the earlier clauses, i.e., such machinery or plant as were "used for the purposes of the business, profession or vacation." Indeed, the position has been made clear and placed beyond any doubt by the subsequent amendment of 1946 which added the word "such" in clause (vii). The words"used for the purposes of the business" obviously [1] L. R, 59 I.A. 206 at p. 213. 775 mean used for the purpose of enabling the owner to carry on the business and earn profits in the business. In other words, the machinery or plant must be used for the purpose of that business which is actually carried on and the profits of which are assessable under section 10 (1). The word "used" has been read in some of the pool cases in a wide sense so as to include a passive as well as active user. It is not necessary, for the purposes of the present appeal, to express any opinion on that point on which the High Courts have expressed different views. It is, however, clear that in order to attract the operation clauses (v), (vi) and (vii) the machinery and plant must be such as were used, in whatever sense that word is taken, at least for a part of the accounting year. If the machinery and plant have not at all been used at any time during the accounting year no allowance can be claimed under clause (vii) in respect them and the second proviso also does not come into operation. In its statement of the case, after referring to its decision that the profits on the sale of machinery and plant were assessable under section 10 (2)(vii), the tribunal proceeded to state: "This decision was based on two considerations. First, that as admitted by the applicant company the company had been carrying on its business up to the date of the sale of the machinery, namely, 7th December, 1943. 'The tribunal was of the opinion that as the applicant company had not ceased to carry on its business till the date of the sale of the machinery, it must be held that the sale of the 'machinery was a part of the applicant company 's carrying on of the business. The second reason for the decision of the tribunal was that the applicant company did not sell its sugar stocks amounting to over Rs.6,00,000, on 7th December, 1943. The applicant company s plea that the sugar stocks could not be sold as the applicant company had sole agents for the sale of sugar, was not accepted by the tribunal. The ' Income tax Appellate Tribunal found that sugar continued to be sold for more than 6 months 776 after the sale of the machinery and substantial expenses on establishment and general charges continued to be incurred. From this the Income tax Appellate Tribunal concluded that the sugar stocks had not been sold on 7th December; 1943, purposely in order to sell these to the best advantage later on. This, the Income tax Appellate Tribunal held, showed that the applicant company carried on business even subsequent to the sate of machinery on '7th December, 1943." Although the High Court will not disturb or go behind the finding of fact of the tribunal, it is now well settled that where it is competent for a tribunal to make findings in fact which are excluded from review, the appeal court has always jurisdiction to intervene if it appears either that the tribunal has misunderstood the statutory language because the proper construction of the statutory language is a matter of law or that the tribunal has made a finding for which there is no evidence or which is inconsistent with the evidence and contradictory of it. [See Lord Normand in Commissioners of Inland Revenue vs Fraser(1)]. It appears to us that the tribunal misdirected itself in law as to the meaning and import of the relevant provisions of section 10 of the Act. ]t completely overlooked the fact which is plainly in evidence on the record that the machinery and plant which were sold had not at all been used for the purposes of the business carried on in the accounting year and consequently the second proviso to section 10 (2) (vii) could have no application to the sale proceeds of such machinery and plant. In fact the entire decision of the tribunal was vitiated by its failure to keep in view the true meaning and scope of section 10 (2) (vii) and cannot, therefore, be supported. It further appears to us that in the statement of the case the tribunal was not merely stating something in the nature of a primary fact but was also drawing a conclusion which is to a certain extent contrary to the primary finding. As is stated clearly in the statement of the case, the decision of the tribunal was based on (1) at p. 501. 777 two considerations. The first consideration was rounded on an admission by the liquidators that the company had been carrying on its business up to the date of the sale of the machinery on the 7th December, 1943. This admission is quite consistent with the case that the company was only selling its stock of sugar and not doing any business of manufacture of sugar. Indeed, the manufacturing process does not begin until December of each year and the memorandum of agreement was made on the 7th December, 1943, and possession was delivered to the purchaser on the 10th December, 1943. It is nobody 's case and it has not been found that the company had manufactured any sugar during the whole of the accounting year. Therefore, this finding that the company carried on its business up to the 7th December, 1943, certainly does not indicate that the company was also carrying on any business of 'growing sugarcane or manufacturing sugar by the use of the machinery or plant in question. The second finding that the company carried on business even after the sale of the machinery and the plant clearly indicates that that business had nothing to do with the machinery or plant. Both the findings, therefore, are inconclusive. The matter, however, does not rest there. It appears to us that the findings of fact, taken literally, cannot support the decision of the tribunal. If, as held by the tribunal, "the sale of the machinery was a part of the applicant company 's carrying on of the business" then the sale must be regarded as an ordinary operation of such business and consequently the profits arising out of such ordinary business operation would be assessable under the provisions of section 10 (1) and it would not be necessary to have recourse to the statutory fiction created by the second proviso to clause (vii)under which the excess of the sale proceeds over the written down value is to be deemed to be profits of the business. If the profits on the sale of the machinery and plant are to be made assessable under the second proviso, as has ' been done by the tribunal, then it must be conceded that these deemed profits were not in reality the profits of the business carried on by the (2) 24 Tax Cases 498 at p. 501. 13 95 section C.I./59 778 company and, therefore, the sale transaction which brought in these profits was not in fact part of the company 's business, which conclusion again will be inconsistent with the finding of fact if the business is not understood as limited only to the selling of sugar. For reasons stated above, it appears to us that having misdirected itself in law as to the scope and effect of the relevant portions of section 10 of the Act the tribunal did not approach the facts from a proper angle and, further, that its findings cannot, in the circumstances of this case, be given such sanctity as would exclude the same from review by the High Court or this court. Turning to the facts to be gathered from the records it is quite clear that the intention of the company was to discontinue its business and the sale of the machinery and plant was a step in the process of the winding up of its business. The sale of the machinery and plant was not an operation in furtherance of the business carried on by the company but was a realisation of its assets in the process of gradual winding up of its business which eventually culminated in the voluntary liquidation of the company. Even if the sale of the stock of sugar be regarded as carrying on of business by the company and not a realisation of its assets with a view to winding up, the machinery or plant not being used during the accounting year at all and in any event not having had any connection with the carrying on of that limited business during the accounting year, section 10 (2) (vii) can have no application to the sale of any such machinery or plant. In this view of the matter, the answer to the first question should be in the negative and we answer accordingly. The result is that this appeal is allowed and the respondent shall pay the costs of the appellants both in this court and in the High Court. Appeal allowed. Agent for the appellant:B. N. Ghose.

The three appellants were a wholesale dealer in spices, a dealer in groceries, and his servant respectively. The second appellant purchased a bag of turmeric powder from the first and the third appellant took delivery of it on behalf of the second appellant, his master. Immediately after it was taken delivery of, the food inspector purchased from the third appellant some turmeric powder contained in that bag for the purpose of analysis, and after issuing notice to the third appellant as required by section 1 1 of the , sent a portion of the powder purchased to the public analyst, who gave a report that it was adulterated food. The three appellants were then prosecuted under sections 6(1) (a) read with section 7(v) of the Act and convicted by the Magistrate. The conviction was confirmed by the High Court. In the appeal to this Court it was contended that, (i) the report of the public analyst, by itself was not sufficient to sustain the conviction, and the public analyst should have been called as a witness, (ii) the report of the public analyst could not be used as evidence against a person who was not given notice under section 11 of the Act, (iii) the first appellant could not be convicted without establishing that he had the mens rea, and (iv) the taking of the sample under section 10 by a food inspector, was not a "sale" within the meaning of section 2(xiii) and therefore section 7(v) of the Act was not infringed. HELD : (i) Section 13(5) of the Act, makes the report of the public analyst admissible in evidence and a Court of fact is free to act on it or not, as it thinks fit. The Court could therefore legally act solely on the basis of the report and the prosecution Could not fail on the ground that the public analyst was not called as a witness. If the appellant wanted the analyst to be examined, it was for the appellant to take appropriate steps. C D] (ii)The law requires notice under section 11 to be given only to the person from whom the sample was taken and none else. If that formality had been complied with and the report of the analyst is placed on record at the trial, it would be admissible against all the accused persons. [902 H ; 903 C] (iii)The word "vendor" in section 19(1) means the person who had add the article of food which was alleged to be adulterated. At one stage, the first appellant was the vendor of the turmeric powder. Since the section deprives the vendor of adulterated food of the defence of merely alleging that he was ignorant of the nature, substance or quality of the article of food sold by him the burden of showing that he had no mens rea to commit the offence would be upon the first appellant. [904 B D] State of Maharashtra vs Mayer Hans George, ; followed. 895 (iv)The definition of "sale" in section 2(xiii) of the Act, specificallY includes within its ambit a &,de for analysis. The transaction in the instant can would amount to sale inspite of the fact that where a person is required by the food inspector to sell him a sample of a commodity, there is an element of compulsion under section 10 of the Act. L906 H] Sarjo Prasad vs State of U.P., ; , M. Y. Joshi vs M. U. Shimpi, ; and State of Uttar Pradesh vs Kartar Singh, ; , referred to. Food Inspector vs Parameswaran, [1962] 1 Cr. L.J. 652, overruled.

Appeal No. 108/ 56. Appeal by special leave from the Judgment and decree dated May 27, 1953, of the Punjab High Court in Regular Second Appeal No. 176 of 1949, against the judgment and decree dated December 20, 1948, of the District Judge, Ludhiana, arising out of the Judgment and decree dated February 6, 1948, of the Subordinate Judge, 11 Class, Ludhiana, in Suit No. 918 of 1946. Gopal Singh, for the appellants. C. B. Aggarwala and K. P. Gupta, for the respondents. May 6. The Judgment of the Court was delivered by DAS GUPTA, J. The suit out of which this appeal has arisen was instituted by the respondents I and 2 Sher Singh and Labh Singh, for a declaration that a deed of gift executed by the first appellant, Jai Kaur, in respect of 8 (1 10) Bighas of land which she had inherited from her husband, Dev Singh, in favour of her two daughters, the 2nd & 3rd appellants before us, " shall be null and void against the reversionary rights of the plaintiffs ", and defendant Nos. 4 to 6 after the death of defendant No. 1 (i.e., Jai Kaur) and shall not be binding upon them. The plaintiffs ' case was that these lands left by Dev Singh were all ancestral lands qua the plaintiffs and according to the customary law which governs the Jats belonging to Grewal got to which these parties belong daughters do not succeed to property left by sonless fathers and so the gift by Dev Singh 's widow in favour of her daughters would be null and void as against the plaintiffs and others who would be entitled on Jai Kaur 's death to succeed to the estate as reversioners. In the alternative, the plaintiffs contended that even if the land in suit was not ancestral qua the plaintiffs then also the deed of gift would be null and void as against their reversionary interests inasmuch as even as regards nonancestral property daughters do not succeed among the Grewal Jats. The main contention of defendants 1 to 3 (the appellants before us) was that the suit land was not ancestral qua the plaintiffs and defendants 977 Nos. 4 to 6, and that according to the customary law governing the Jats of the Grewal got, daughters exclude collaterals as regards non ancestral property and a widow is competent to make a gift of such property in favour of her daughters. It was pleaded on behalf of the two daughters that they being preferential heirs in respect of the land in suit as against the plaintiffs, the gift is tantamount to acceleration of succession and is valid in every way. The Trial Judge held that 2B 2B,14 B out of the land in suit was ancestral and the gift was invalid to that extent, because as regards ancestral property a daughter does not succeed in the presence of collaterals. As regards the remainder of the suit land which he held was non ancestral, the learned Judge was of opinion that the gift was merely an acceleration of succession as under the customary law governing the parties daughters exclude collaterals as regards succession to non ancestral property. Accordingly he gave the plaintiffs a decree as prayed for as regards 2 B 2B, 14 B out of the land in suit and dismissed it as regards the remaining portion of the land in suit. The plaintiffs appealed to the District Judge, Ludhiana, against this decree and cross objections were filed by the defendants Nos. 1 to 3. The Trial Court 's finding about a portion of the land being ancestral and the rest non ancestral was not disputed before the appeal court. On the question of custom the learned District Judge agreed with the Trial Judge 's view that among the Grewal Jats of Ludhiana the daughter excluded collaterals as regards non ancestral property. He held, therefore, agreeing with the Trial Judge that as regards the non ancestral property the deed of gift was merely an act of acceleration of succession and was, therefore, valid and binding. The appeal was accordingly dismissed and so also were the cross objections which appear not to have been pressed. On second appeal the learned judges of the East Punjab High Court accepted the contention urged on behalf of the plaintiffs that a special custom was proved to be in force among the Grewal Jats under which the daughter does not inherit even as regards 978 non ancestral property. In that view they held that even as regards the non ancestral property the gift by Jai Kaur would be valid only during her lifetime, and allowed the appeal. Against this decree of the High Court defendants Nos. 1 to 3 Jai Kaur and her two daughters, the donees have filed this appeal on the strength of special leave granted by this Court. Two questions arise for consideration in this appeal. The first is whether under the customary law governing the Jats of the Grewal got in Ludhiana to which the parties belong, the daughter or the collaterals are the preferential heirs as regards non ancestral property. If the answer to this question be that daughters have preference over collaterals (the plaintiffs here), the other question which arises is whether this gift is such acceleration of succession in favour of the daughters as is permissible under the law. On the question of custom the appellants rely on the statements in paragraph 23 of Rattigan 's Digest of Customary Law (Thirteenth Edition) that in regard to the acquired property of her father the daughter is preferred to collaterals. It is not disputed that nonancestral property is " acquired property " within the meaning of this statement by Rattigan. Against this the plaintiffs respondents rely on the answers to question No. 43 relating to Hindu Grewal Jats of Ludhiana as appear in the Riwaji am prepared at the revised settlement of 1882. The question and the answer are in these words: Question: " Under what circumstances can daughters inherit ? If there are sons, widows or near collaterals, do they exclude the daughter ? If the collaterals exclude her, is there any fixed limit of relationship or degree within which such Dear kindred must stand Answer: " In our tribe the daughter does not succeed under any circumstances. If a person dies sonless, his collaterals succeed him. There is no fixed limit of relationship for purposes of excluding her. 979 If there are no collaterals of the deceased, the owners of the Thulla or Patti or village would be owners of his property." The authoritative value of Rattigan 's compilation of customary law is now beyond controversy, having been recognised in the judicial decisions of the Punjab courts too numerous to mention, which have also received the approval of the Judicial Committee of the Privy Council. Therefore it is not, and cannot be disputed that under the general customary law of the Punjab daughters exclude collaterals in succession to non ancestral property. The value of entries in the Riwaj i am has, also however, been repeatedly stressed. That they are relevant evidence under section 35 of the Evidence Act is clear and the fact that the entries therein the the result of careful research of persons who might also be considered to have become experts in these matters, after an open and public enquiry has given them a value which should not be lightly underestimated. There is ', therefore, an initial presumption of correctness as regards the entries in the Riwaj i am and when the custom as recorded in the Riwaj i am is in conflict with the general custom as recorded in Rattigan 's Digest or ascertained otherwise, the entries in the Riwaj i am should ordinarily prevail except that as was pointed out by the Judicial Committee of the Privy Council in a recent decision in Mt. Subhani vs Nawab (1), that where, as in the present case, the Riwaj i am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weak, and only a few instances would suffice to rebut it. In the present appeal the oral. testimony given on behalf of either party is practically valueless to show an ,, instance in favour of the custom pleaded by them. If, therefore, the Riwaj i am does show as urged by the plaintiffs a custom of daughters being excluded by collaterals in respect of non ancestral property, it is clear that Riwaji i am would prevail. The real controversy in this litigation is, however, on the question whether the entries in the Riwaj i am on which (1) A.I. R. 1941 (P.C.) 21. 980 the plaintiffs rely refer at all to non ancestral property or not. This controversy has 'engaged the attention of the courts in Punjab for a number of years beginning with 1916. In that year in Mst. Raj Kaur vs Talok Singh (1) Sir Donald Johnstone, the Chief Justice held that the Riwaj i am as compiled, did not cover self acquired property and that where the Riwaj i am talked about succession to land without discrimination between ancestral and self acquired, the rule laid down could usually only be taken to apply to ancestral property. A similar view was taken by Shadilal and Wil be force, JJ., in Budhi Prakash vs Chandra Bhan (2 ). The view taken in these cases was followed by other judges of the High Court in Narain vs Mst. Gaindo (3 ) and Fatima Bibi vs Shah Nawaz (4). In Sham Das vs Moolu Bai (5) the learned judges (LeRossignol and Fforde, JJ.) also laid down the same principles, without any reference to the previous decisions, in these words : "It is true in the Riwaj i ain no distinction is made between ancestral and acquired property, but it is a well recognised rule that unless there are clear indications to the contrary, such an entry in a record of custom refers only to the succession to ancestral property. " After this view had been followed in several other decisions a different line was struck in Jatan vs Jiwan Singh (6). That was a case between Grewal Jats and the contest lay between collaterals of the last male holder and his married daughter with respect to his non ancestral property. The learned judges were of opinion that the Question No. 43 in the Riwaj i am related to both ancestral and non ancestral property and so the answer to the question recorded in Riwaj iam proved that as regards the non ancestral property also the daughter was excluded by collaterals. In coming to this conclusion they laid stress on the fact that in two previous decisions, Ishar Kuar vs Raja Singh (7) and Pratap Singh vs Panjabu (8) the questions and answers in the Riwajiam as regards daughter 's (1) A.I.R. 1916 Lah. (3) A.I.R 1918 Lah. 304 (5) A.I.R. 1926; Lah. 210 (7) (2) A.T.R. 19T8 Lah. (4) A.I.R. 1921 Lah. (6) A.I.R. 1933 Lah. (8) 981 right to succession were interpreted as covering nonancestral property also and if it was contemplated that a daughter should succeed to self acquired property, one would have expected that fact to be mentioned in the answer. It was in view of the conflicting views which had thus arisen on the question whether Question No. 43 in the Riwaj i ani in the absence of a clear indication to the contrary related to ancestral property only or to both ancestral and non ancestral property that a reference was made by Mr. Justice Abdur Rahman in Mt. Hurmate vs Hoshiaru 1 to a Full Bench of the High Court. The Full Bench reviewed the numerous decisions of the Punjab courts in this matter and also took into consideration the fact that Mr. Gordon Walker who had prepared the Riwaj i am in 1882 had stated in the preface that no distinction between self acquired and inherited pro perty in land appeared to be recognised and the rules of succession, restriction on alienation, etc., applied to both alike; and after a careful consideration of all the relevant factors recorded their conclusion that " Question No. 43 of the Customary Law of Ludhiana district relates to ancestral property only and can in no circumstances be so interpreted as to cover self acquired property as well. " Mr. Justice Din Mohammad who delivered the leading judgment observed :" The raison d ' entre of those cases which lay down that the manuals of Customary Law were ordinarily concerned with ancestral property only is quite intelligible. Collaterals are, as stated by Addison, J., in 13 Lab. 458, really speaking interested in that property only which descends from their common ancestor and this is the only basis of the agnatic theory. What a male holder acquires himself is really no concern of theirs. It is reasonable, therefore, to assume that when manuals of Customary Law were originally prepared and subsequently revised, the persons questioned, unless specific ally told to the contrary, could normally reply in the light of their own interest alone and that, as stated above, was confined to the ancestral property only. The fact that on some occasions (1) A.I.R. 1944 Lah. 21, 127 982 the questioner had particularly drawn some distinction between ancestral and non ancestral property would not have put them on their guard in every case, considering their lack of education and lack of intelligence in general. Similarly, the use of the terms " in no case " or " under no circumstances " would refer to ancestral property only and not be extended so as to cover self acquired property unless the context favoured that construction. " One would have thought that after this pronouncement by a Full Bench of the High Court the controversy would have been set at rest for at least the Punjab courts. Surprisingly, however, only a few years after the above pronouncement, the question was raised again before a Division Bench of the East Punjab High Court in Mohinder Singh vs Kher Singh(1). The learned judges there chose to consider the matter afresh and in fact disregarded the pronouncement of the Full Bench in a manner which can only be said to be unceremonious. Teja Singh, J., who delivered the leading judgment said that the Full Bench, though noticing the cases of Ishar Kaur vs Raja Singh (2) and Pratap Singh vs Panjabu (3), had not said that those cases had been wrongly decided. It has to be noticed that the Full Bench in no uncertain terms expressed their conclusion that question No. 43 of the Customary Law of the Ludhiana district related to ancestral property only and could in no circumstances be so interpreted as to cover self acquired property as well. In coming to that conclusion they had considered numerous decisions of the Punjab courts in support of the general proposition that unless there are clear indications to the contrary the questions relate to ancestral property, considered the cases in which a contrary view had been taken including the three cases of Jattan vs Jiwan Singh (4), Ishar Kaur vs Raja Singh (2 ) and Pratap Singh vs Panjabu (3) and gave their own reasons why the view that unless there are clear indications to the contrary the manuals of customary law should be taken to refer to ancestral property only, and after considering the (1) A.I.R. 1949. East Punjab 328 (3) (2) (4) A.I.R. 1933 Lah. 983 question and answer in question No. 43 in the case before them as regards the Mohammadan Rajputs, recorded their final conclusion. It is neither correct nor fair to say that the learned judges of the Full Bench did not hold Jattan 's Case, Pratap Singh 's Case and Ishar Kaur 's Case to have been wrongly decided in so far as these decisions held the question No. 43 of the Customary Law of the Ludhiana dis trict to refer both to ancestral and non ancestral property. It is true that they did not say in so many words that these cases were wrongly decided; but when a Full Bench decides a question in a particular way every previous decision which had answered the same question in a different way cannot but he held to have been wrongly decided. We had recently occasion to disapprove of the action of a Division Bench in another High Court in taking it upon themselves to hold that a contrary decision of another Division Bench on a question of law was erroneous and stressed the importance of the well recognised judicial practice that when a Division Bench differs from the decision of a previous decision of another Division Bench the matter should be referred to a larger Bench for final decision. If, as we pointed out there, considerations of judicial decorum and legal propriety require that Division Benches should not themselves pronounce decisions of other Division Benches to be wrong, such considerations should stand even more firmly in the way of Division Benches disagreeing with a previous decision of the Full Bench of the same court. In our opinion, the view taken by the Full Bench in Mt. Hurmate vs Hoshiaru (1) is consonant with reasons and consistent with probability. The fact that the great majority of judges, who brought to bear on the question, an intimate knowledge of the ways and habits of the Punjab peasantry thought that when tribesmen were asked about succession to property, they would ordinarily think that they were being asked about succession to ancestral property, is entitled to great weight. It cannot, we think, be seriously disputed that at least in the early years (1) A.I.R. 1944 Lah 21. 984 when the Riwaj i am was in course of preparation most of the property in the countryside was ancestral property, and " self acquisitions " were few and far between. This fact, it is reasonable to think, had the consequence of concentrating the attention of the tribesmen on the importance of having the tribal custom correctly recorded by the Settlement Officers and their agents, as regards succession to ancestral property, and of attracting little attention, if any, to matters regarding non ancestral property. Unless the questions put to these simple folk, were so framed as to draw pointed attention to the fact that the enquiries were in respect of non ancestral property also, they could not reasonably be expected to understand from the mere fact of user of general words in the questions that these referred to both ancestral and non ancestral property. As Din Mohammad, J., said in his judgment in the Full Bench, even the fact that on some occasions, the questioner had drawn some distinction between ancestral and nonancestral property, could not have put them (i.e. , the persons questioned) on their guard in every case, considering their lack of intelligence in general. Their minds being obsessed with the idea that such enquiries would only refer to ancestral property, they would direct their answers to matters in respect of ancestral property only, and in using forceful terms like " in no case " and " under no circumstances these persons were really saying that " in no case would ancestral property devolve in a particular way and have a particular incidence; and under no " cir cumstances " would ancestral property devolve in a particular way, and have a particular incidence. These considerations, we think, outweigh the statement made by Mr. Gordon Walker that no distinction between self acquired and inherited property in land appeared to be recognised, and the rules of succession, restriction on alienation, etc., applied to both alike. We think, therefore,, that the view taken by the Full Bench, and the many previous cases mentioned in the judgment of the Full Bench, that questions and answers in the Riwaj i am refer ordinarily to 985 ancestral property, unless there is clear indication to the contrary, is correct. Question No. 43 in the Ludhiana district, appears to be the same for all the tribes. There is not the slightest indication there that the questioner wanted information about nonancestral property also. The answer given by the Grewal Jats to this question also gives no reason to think that the persons questioned were thinking in giving the answers of both ancestral and non ancestral property. We have, therefore, come to the conclusion that the entries in the Riwaj i am on which the plaintiffs respondents rely do not refer at all to non ancestral property, and are, therefore, not even relevant evidence to establish the existence of a custom among Grewal Jats of Ludhiana district, entitling collaterals to succession to non ancestral property, in preference to daughters. Reliance was next placed on behalf of these respondents on the fact that the existence of such a custom was recognised in a number of judicial decisions, viz., Jattan vs Jiwan Singh (1), I shar Kaur vs Raja Singh (2) and Pratap Singh vs Panjabu (3). If these decisions in so far as they recognised the existence of such a custom, had been solely or even mainly based on evidence, other than entries in the Riwaji i am, they might have been of some assistance. Examination of these cases, however, shows unmistakably that they were either wholly, or mainly based on the entries in the Riwaj i am on the assumption that these entries referred to both ancestral and non ancestral property. This assumption having been established to be baseless, these decisions are valueless, to show that the custom as alleged by the plaintiffs respondents did exist as regards non ancestral property. Further, the oral evidence produced in the present case is wholly insufficient to prove such a custom. It must, therefore, be held that the customary law among the Grewal Jats of Ludhiana district as regards succession to non ancestral property is the same as recorded generally for the Punjab in Paragraph 23 of Rattigan 's Digest i.e. , the daughter is preferred to (1) A.I.R. 1933 Lah. 553. (2) (3) 986 collaterals, and consequently, the second and the third appellants, were the next reversioners to that portion of Dev Singh 's property which has been found to be non ancestral. This brings us to the question whether the gift of this portion, by the first appellant to these reversioners, gives them a good title, beyond the widow 's lifetime. We have to remember in this connection that as regards the ancestral property, these daughters were not the reversioners, and the further fact that out of the ancestral property, the house was not included in the deed of gift. The position, therefore, is that out of the property in which the first appellant held a widow 's estate, she gave by the deed of gift a portion to the reversioners as regards that portion, a portion to persons who were strangers to the reversion as regards that portion and a portion was retained by her. The doctrine of Hindu law according to which, a limited owner can accelerate the reversion, by surrendering her interest, to the next reversioner, is based on a theory of self effacement of the limited owner. That is why it has been laid down that in order that a surrender by a limited owner to a reversioner, may be effective, the surrender must be of the entire interest of the limited owner in the entire property. The exception made in favour of the retention of a small portion of the property for her maintenance, does not affect the strictness of the requirement that a surren der to be effective, must be of the entire interest in the entire property: Vide Rangasami Gounden vs Nachiappa Gounden (1) and Phool Kaur vs Pem Kaur (2).) In so far as there is gift to a stranger, there is no effacement of the limited owner; nor is there any effacement in respect of the property which is retained. We find it impossible to say, therefore, that there is such effacement of the limited owner in this case, as would accelerate the daughter 's rights by converting the future contingent right into a present vested right. On behalf of the appellants it is argued that there is certainly a total effacement in respect of the nonancestral property, so that the right of the next reversioners the daughters in that property has (1) (1918) L.R. 46 I.A. 72. (2) ; , 987 been accelerated. We do not think we shall be justified in recognising this novel doctrine of the possibility of effacement of the limited owner vis a vis the next reversioner of the non ancestral property when there is no effacement vis a vis the reversioner of the ancestral property, and vice versa. Effacement cannot be broken up into two or more parts in this manner; and however much the limited owner may wish to efface herself only vis a vis those next reversioners whom she wants to benefit, law does not recognise such " partial effacement ". The Hindu Law doctrine of surrender does not, therefore, make the gift of the non ancestral property to the daughters valid beyond the widow 's lifetime. It is not suggested that there is any customary law, by which such surrender can be made. Though, therefore, we have found disagreeing with the learned judges of the High Court that tinder the customary law governing the Grewal got of Jats to which the parties belong, the daughters the second and the third appellants are preferential heirs to the non ancestral portion of the suit land, we hold that their conclusion that this deed of gift in favour of the daughters is not valid even as regards the non ancestral property, beyond the donor 's lifetime is correct and must be maintained. As a last attempt Mr. Gopal Singh, counsel for the appellants, wanted us to hold that under section 14 of the Hindu Succession Act, which became law in 1956, either the mother or the daughters have become full owners of this property, and so the plaintiffs ' suit should be dismissed. As the Hindu Succession Act was not on the statute book, when the written statement was filed or at any time before the suit was disposed of in the courts below, the defence under section 14 of that Act could not be thought of and was not raised. The necessary consequence is that evidence was not adduced, with the facts material for the application of section 14 in view, by either party. Mr. Agarwala has, on behalf of the plaintiffs respondents, contended that as the record stands the mother had ceased to be in possession and could not get the benefit of section 14 of the Hindu Succession Act, and that the 988 daughters in possession, would not become full owners under section 14. We do not think it would be proper to consider these questions in the present suit in this haphazard manner when on the all important question of possession, the appellants themselves do not wish to say whether the mother was in possession actually or constructively, whether the daughters ' possession was merely permissive, or whether the daughters were in independent possession, on their own behalf These and other questions of fact, and the questions of law that have to be considered in deciding a claim by the first appellant or the other two appellants under section 14 of the Hindu Succession Act, should properly be considered in any suit that they may bring in future, if so advised. We express no opinion on any of these questions. For the reasons which have been mentioned earlier, we hold that the High Court rightly decreed the suit in favour of the plaintiffs in respect of the nonancestral property also, and dismiss the appeal. In the circumstances of the case, we order that the parties will bear their own costs throughout. Appeal dismissed.

The appellant who was carrying on business in food grains in partnership with another person submitted the returns of the income of the firm for the accounting years even after his partner 's death. It was found that certain income of the firm was concealed and the Income tax Officer not only assessed the firm to tax for the suppressed income but also imposed penalties for concealing the said income. Appeals to the higher income tax authorities failed and the appellant then applied to the High Court for a writ of certiorari quashing the orders of assessment and imposition of penalty on the ground inter alia that the firm was dissolved by his partner 's death and no penalty could be imposed after dissolution of the firm, The High Court rejected the petition. On appeal with the certificate of the High Court, Held, that by virtue of section 44 and other provisions of the Income Tax Act a partner of a dissolved partnership firm may not only be made liable to assessment for income tax for the accounting years but despite dissolution of the firm he may be made liable to pay penalty for concealing the income of the firm under section 28(1)(c) of the Act. The analogy of dissolution of a Hindu joint Family does not apply to dissolution of a partnership. Mareddi Krishna Reddy vs Income tax Officer, Tenali, , approved. Commissioner of Income tax vs Ravalaseema Oil Mills, and section V. Veerappan Chettiar vs Commissioner of Income tax, Madras, , disapproved. Mahankali Subbarao vs Commissioner of Income tax, , distinguished. The Legislature intended that the provisions of Ch. IV of the Act shall apply to a firm even after discontinuance of its business. In interpreting a fiscal statute the Court cannot proceed to make good deficiencies if there be any. In case of doubt it should be interpreted in favour of the tax payer. The expression "assessment" has different connotations an has been used in its widest connotation in Ch. IV and section 44 97 766 he Act. It is not restricted only to computation of tax but includes imposition of penalty on tax payers found in the process of assessment guilty of concealing income. Commissioner of Income tax, Bombay Presidency and Aden vs Khemchand Ramdas, , referred to. The Income tax Act provided a complete machinery for obtaining relief against improper orders passed by the Income tax Authorities and the appellant could not be permitted to abandon that machinery, and invoke the jurisdiction of the High Court under article 226 of the Constitution against the orders of the taxing authorities.

Appeal No. 92 of 1954. Appeal from the judgment and order dated January 28, 1953, of the ' Calcutta High Court in Award Case No. 105 of 1952. M. C. Setalvad, Attorney General for India, B. Sen, P. D. Himatsinghka and B. P. Maheshwari, for the appellant. N. C. Chatterjee, M. 0. Poddar and Ganpat Rai, for the respondent. January 20. The Judgment of the Court was delivered by DAS, C. J. This is an appeal filed upon a certificate of fitness granted by the High Court of Calcutta impugning the judgment pronounced by the said High Court on January 23, 1953, declaring null and void an award (No. 209 of 1952) made by the Bengal Chamber of Commerce in case No. 855 of 1951, whereby they ordered the respondent company to pay to the appellant company a sum of Rs. 1,95,000 besides interest and costs. The facts giving rise to the present appeal are simple and may briefly be summarised as follows: On April 6, 1951, the appellant company entered into a contract with the respondent company for the supply of 5,000 maunds of Nikhli and/or Ashuganj Jute on certain prices according to quality, " shipment during July and/or August, 1951, guaranteed ". That contract, which was entered into by bought and sold notes exchanged between the parties through brokers, con tained a very wide arbitration clause. When shipping documents were presented to the respondent company by the bankers of the appellant company, they were not honoured on the plea that the same were not in order and the respondent company failed to take delivery of the goods. The last date on which the 81 documents were so presented was September 17, 1951. On September 26, 1951, the appellant company, through their solicitors, wrote to the respondent company intimating that they had exercised their option of cancelling the contract and demanding the payment of the sum of Rs. 1,95,000 as damages on the basis of the difference between the contract price and the market price of the goods as on September 17, 1951. The respondent company having by their letter dated October 25, 1951, denied their liability to pay any amount, the appellant company on November 2, 1951, referred the dispute to the arbitration of the Bengal Chamber of Commerce in terms of the arbitration clause contained in that contract. The respondent company submitted to the jurisdiction of the Tribunal of arbitration by appearing and adducing evidence before it. On February 29, 1952, the arbitrators made their award by which they allowed the claim of the appellant company in full with interest and costs. The award having been filed in the Calcutta High Court on April 23, 1952, the respondent company on June 9,1952, filed an application in that Court praying, inter alia, that the award be declared null and void and be set aside. The main ground urged in that application was that the award was a nullity in that the contract containing the arbitration clause was void under the provisions of the Raw Jute (Central Jute Board and Miscellaneous Provisions) Act, 1951, (W. Ben. VI of 1951) which was then in force. In order to appreciate the points raised before the High Court and before us it is necessary at this stage to refer to some of the statutory provisions bearing on the question. To regulate the prices of jute and to empower the Government to fix its maximum prices, the West Bengal Legislature passed an Act called the West Bengal Jute (Control of Prices) Act, 1950, (W. Ben. VI of 1950) which came into force on March 15,1950. On December 14,1950, the Government of West Bengal promulgated an Ordinance called the Raw Jute (Central Jute Board and Miscellaneous Provisions) 82 Ordinance, 1950 (XVII of 1950) for the better regulation of the jute trade. The preamble to that Ordinance recited that, as the owners of jute mills were not being able to secure adequate supplies of jute on the maximum prices fixed under the West Bengal Jute (Control of Prices) Act, 1950, it had become expedient to set up a Central Jute Board in West Bengal for ensuring an equitable supply of raw jute to the owners of the jute mills. That Ordinance consisted of only 15 sections. Section.4 of that Ordinance provided for the constitution of the Central Jute Board. Section 5 was expressed in the following terms : " 5. (1) No person shall sell or agree to sell raw jute to the owner of a jute mill and no owner of a jute mill shall buy or agree to buy raw jute save and except in pursuance of a contract for the sale or the supply of raw jute entered into in the manner provided in section 6. (2) Any contract entered into for the sale or the supply of raw jute with the owner of a jute mill save and except in the manner provided in section 6 shall be void and of no effect. (3) Any person contravening the provisions of sub section (If shall be guilty of an offence under this Ordinance and shall be punishable with imprisonment which may extend to six months or with fine or with both. " Section 6 laid down the manner in which all contracts for the sale or supply of raw jute with the owners of jute mills were to be entered into. Section 7 ran as follows: " 7. (1) No person shall deliver or cause to be delivered to the owner of a jute mill and no owner of a jute mill shall accept or cause to be accepted any raw jute save and except in pursuance of a contract for the sale or the supply of raw jute entered into in the manner provided in section 6. (2) Any person contravening the provisions of sub section (If shall be guilty of an offence under this Ordinance and shall be punishable with imprisonment which may extend to six months or with fine or with both. 83 (3) The provisions of section 5, section 6, and this section shall have effect on and from the appointed day. " The expression " appointed day " occurring in section 7 (3) quoted above was thus defined in section 2 (1) of that Ordinance : " 2 (1) I appointed day ' means the date specified by the State Government by notification in the Official Gazette as the appointed day for the purpose of this Ordinance; " By a notification dated December 29, 1950, published in an extraordinary issue of the Calcutta Gazette of the same date, December 30, 1950, was specified as " the appointed day for the purposes of sections 5, 6 and 7 of the said Ordinance. " The said Ordinance was subsequently replaced by an Act called the Raw Jute (Central Jute Board and Miscellaneous Provisions) Act (W. Ben. Act VI of 1951), hereinafter referred to as " the Act ", which came into force on March 21., 1951. The first fifteen sections of the Act were almost verbatim reproductions of the fifteen sections of the Ordinance and only one new section was added as the sixteenth section reading as follows: " 16. The Central Jute Board constituted, any rule made, any notification or licence issued, any direction given, any contract entered into, any minimum price fixed, anything done or any action whatsoever taken under the Raw Jute (Central Jute Board and Miscellaneous Provisions) Ordinance, 1950, shall, on the said Ordinance ceasing to operate, be deemed to have been constituted, made, issued, given, entered into, fixed, done or taken under this Act as if this Act had commenced on the 14th day of December, 1950. " The Act was in force at all times material to these proceedings though the same was subsequently repealed on August 5, 1952. It may be mentioned here that both when the Ordinance was in force and after the Act had come into operation, the Central Jute Board issued a, series of circulars by which it authorised the owners of jute mills to purchase raw jute up to the extent of quotas 84 respectively allotted to them through " normal trade channels " subject to their furnishing particulars of the contracts and of deliveries under them to the Board. The contract in question was entered into through " normal trade channels " and not in the manner specified in the said Act or the rules framed thereunder. Indeed, it is conceded that no application had been made by the appellant company to the Board under section 6(1) of the Act, that the Board did not, under section 6(2) of the Act select any jute mills as buyers of these goods, that the respondent company had not signified in writing to the Board its intention to buy the raw jute in question, that the Board did not specify a date within which the contract was to be entered into and that, finally, the delivery period fixed in the contract was in contravention of the provisions of the Act and the rules and, therefore, the contract was void under section 5(2) of the Act, if sections 5, 6 and 7 were in force at the date of the contract. The respondent company 's aforesaid application for setting aside the award having come on for hearing, the learned Single Judge sitting, on the Original Side reported the matter, under r. 2 of ch. V of the Original Side Rules, to the Chief Justice for forming a larger Bench for hearing of the said application. A Special Bench was accordingly constituted by the Chief Justice and the application came up for hearing before that Bench. Three points were urged before the High Court, namely, (1) that the Act was ultra vires the Bengal Legislature; (2) that even if the Act were intra vires sections 5, 6 and 7 of the Act were never brought into force and (3) that there was a subsequent independent agreement to refer the disputes to the arbitration of the Bengal Chamber of Commerce. The High Court negatived all the contentions raised by the appellant company and by its judgment dated January 23, 1953, allowed the application and declared the award to be null and void, but directed the parties to bear their own costs. This appeal, as already stated, has been filed against the judgment of the High Court upon a certificate of fitness granted by the High Court. 85 The learned Attorney General appearing in support of this appeal has urged before us only the second point urged before the High Court, namely, that even if the Act were intra vires sections 5, 6 and 7 had never been brought into force and, therefore, the contract in question containing the arbitration clause was valid and consequently the award was binding and enforceable. He does not dispute that, by virtue of section 16 of the Act, the notification issued on December 19, 1950, under section 2(1) of the Ordinance has to be deemed to have been issued under the Act, but he contends that even so the notification dated December 29, 1950, cannot be read as having brought sections 5, 6 and 7 of the Act into force, for it, in terms, specified December 30, 1950, as the appointed day " for the purposes of sections 5, 6 and 7 of the Ordinance ". He urges that this Court has to take the notification made under the Ordinance as it finds it and then, under section 16 of the Act, to deem it to have been made under the Act. According to him the fiction created by section 16 ends as soon as the notification is deemed to have been made under the Act and goes no further. He concludes, on the authority of the decisions in Hamilton and Co. vs Mackie and Sons (1) and T. W. Thomas & Co. Limited vs Portsea Steamship Company Limited (2), that, on a plain reading of it, the notification, when it is deemed to have been made under the Act, makes no sense, for it does not purport to bring any of the sections of the Act into force but expressly brings sections 5, 6 and 7 of the Ordinance into force. He submits that it is not for the court to alter the terms of the notification so as to make it possible to read it as a notification made under the Act. We are unable to accept this line of argument. The decisions relied on by the learned Attorney General can have no application to the pre sent case. In those cases there was no statutory provision for deeming the provision of the charter party referring all disputes under the charter party to arbitration as an integral part of the provisions of the bill of lading and, therefore, the only thing to be done in those cases was to lift bodily the relevant provision (1) (2) 86 of the charter party and to insert it in and to read it as a part of the bill of lading. It was held that so read it became insensible, for an arbitration clause referring all disputes arising out of the charter party was wholly out of place and meaningless as a term of the bill of lading. A cursory perusal of section 16 will, however, show that there are two fictions created by that section: One is that the Act shall be deemed to have commenced on December 14, 1950, and the other is that the notification issued under the Ordinance shall be deemed to have been issued under the Act. If the Act fictionally commenced on December 14, 1950, then the Ordinance would have to be treated as not promulgated at all, for the two could not have coexisted and when the Act provided that the notification, which, for identification, is described as having been issued under the Ordinance, should be deemed to have been made under the Act then, unless we read the word " Ordinance " 7 as " Act ", we do not give full effect to the twin fictions created by the Act. In other words the creation of the statutory fictions compels us to adopt the principle of mutatis mutandis and to substitute the word " Act " for the word " Ordinance " used in the notification, so as to give full effect to the fictions created by the statute. We see no reason in support of the contentions of the Attorney General that the fiction raised by section 16 stops short at mere issuing of the notification. The ambit of the fiction appears to us to cover not only the issuance of the notification but to extend to our reading it as having been one issued under the Act. We cannot read it as having been issued under the Act unless we read the word " Ordinance " used in the notification as " Act ". No other point has been urged before us and for reasons stated above this appeal must be dismissed. In view of the circumstances referred to in the judgment of the High Court and appearing in the record we make no order for costs of this appeal. Appeal dismissed.

Can the Full Bench formula for calculation of bonus apply to a claim of bonus made by workmen engaged in electricity con cerns and undertakings ? That was the question raised for decision in this appeal. A Special Bench of the Labour Appellate Tribunal held in the affirmative and the correctness of its decision was challenged in this appeal. It was contended on behalf of the appellant company that the Electricity Supply Act, 1948 (54 Of 1948) was a self contained code intended to regulate the business and affairs of electricity concerns and that Act and not the formula applied to a claim of bonus by the workmen in an electricity concern. (1) (1933] , 201. 69 Held, that the Special Bench had taken a correct view of the matter and its decision must be upheld. It is evident from the provisions of the Electricity Supply Act, 1948, and its schedules that the respective fields of operation of the Act and of the principles of industrial adjudication are wholly different, and so there can be no conflict between them and their relevance and validity in their own spheres are beyond question. While the Full Bench formula seeks to ensure social justice to workmen by apportioning a share of the profits to them and thus minimise the gap between the actual and the living wages, the Act does not provide for wages at all. But it is improper to suggest on that basis that the workmen in electricty undertakings can be denied social justice. just as the relevant industrial principles have to be applied for framing a wage structure for such workmen so also must the problem of bonus be solved in a like manner. The working sheet prepared under the method of accounting required by the Act can be no basis for calculation of the amount of bonus since it is not possible to ascertain the gross profit therefrom and the Full Bench Formula has to be applied on the basis of the profit and loss account which a company has to keep under the Companies Act. Bayoda Boyough Municipality vs Its Workmen. [1957] S.C.R. 33, referred to. Moreover, the intention of the Legislature in enacting cl. (vi) of paragraph 17(2)(b) of Sixth Schedule to the Act clearly 'was to include a claim of bonus is within the expenses covered by it and it was to set at rest any possible doubt on that score that cl. (xiii) was added by a subsequent amendment.

TION: Criminal Appeal No. 627 of 1988. From the Judgment and Order dated 10.6.1988 of the Bombay High Court in Criminal Writ Petition No. 257 of 1988. R.K.Garg and P.N.Gupta for the Appellant. Kuldip Singh, Additional Solicitor General, Arun Madan and P.Parmeshwaran for the Respondents. PG NO 1033 The Judgment of the Court was delivered by RAY, J. Special leave granted. Arguments heard. This appeal on special leave is against the judgment dated 10th June, 1988 made by High Court of Allahabad dismissing Criminal Writ Petition No. 257 of 1988 instituted by the detenu. The facts giving rise to this appeal are that on August 25, 1987 the house of the appellant was searched by the officers of the Enforcement Directorate under Section 37 of Foreign Exchange Regulation Act, 1973 and they seized currency notes of Re. 1 lakh and four bank drafts amounting to Rs.30,000, bank pass book and loose sheets Nos. 1 to 44 as per item No. 2 in panchnama dated August 25, 1987. The statement of detenu was recorded and he was arrested on the same day. On August 26, 1987 the detenu made an application in the Court of Addl. Chief Metropolitan Magistrate, 8th Court at Esplanade retracting his statement. The Magistrate made an order thereon that " Taken on record". An application for bail was moved on September 15, 1987 and an order had been made on that day releasing him on bail of Re. 1 lakh with a condition imposed that he would attend Enforcement Department Office every day between 11 a.m. to 2 pUll. until further order. The detenu filed an application on September 22, 1987 for variation of the said conditional order and the condition was varied by the Magistrate by directing that the detenu may attend the Enforcement Department as and which required. The Enforcement Directorate sent a letter directing the detenu to collect his passport deposit during the time of questioning. The passport however. remained with the Enforcement Department. Thereafter. on February 9. 1988 the impugned order of detention of the detenu in Central Prison, Bombay was made by the responded No. 1, the Joint Secretary, Government of India. The order of detention was served on the detenu on February 19, 1988 and the grounds of detention were furnished to him. A Criminal Writ Petition No. 257 of 1980 was filed before High Court, Bombay for quashing the said detention order on the grounds inter alia that certain vital documents such as the application dated September 21, 1987 for variation of the condition ot bail as well as the order passed by the Chief Metropolitan Magistrate varying the condition, the application dated August 26, 1987 retracting the statement by the detenu filed before the Magistrate and non consideration of the same, as well as the non supply of the copies of Bank pass books and loose papers seized from the residence of detenu and mentioned in panchnama dated PG NO 1034 August 25, 1987 which were placed before the detaining authority etc. vitiated the subjective satisfaction of the detaining authority on consequently the order of detention is illegal and bad. A Rule Nisi was issued. A return was filed by the respondent No. 1 wherein the detaining authority denied the allegations and stated that all vital and material documents which had been considered in forming his subjective satisfaction and mentioned in the grounds have been supplied to him and as such the impugned order of detention is not illegal and bad. The criminal writ petition was, therefore, dismissed. Aggrieved by the judgment of the High Court, the instant appeal on special leave has been filed. It was firstly contended on behalf of the appellant that the application for bail and the order dated September 15, 1987 by the Metropolitan Magistrate granting conditional bail of Re. 1 lakh with one surety of like amount though placed before the detaining authority, the application for variation of the condition and the order made thereon by the Magistrate on September 21, 1987 was not produced before the detaining authority. This is a vital document and non consideration of the same by the detaining authority results in the order being illegal. The decision in Ashadevi wife of Gopal Ghermal Mehta (detenu) vs K. Shiveraj, Addl. Chief Secretary to the Government of Gujarat & Anr. , ; was cited at the bar. In this case it has been observed by this Court thai documents which are vital and necessary for formation of subjective satisfaction,which is the pre requisite for making an order of detention having not been placed before the detaining authority before making the detention order. the order of detention will get vitiated. The detention was to prevent the detenu from indulging in Hawala business i.e. making various payments to various persons in this country on receiving instructions from Rafiq from Dubai. The application for variation if condition of bail and the order passed by the Metropolitan Magistrate varying the condition of bail is, in our opinion, not a vital and material documents in as much as the granting of bail by the Magistrate enabled the detention come out and carry on his business activities as before. Condition imposed by the Magistrate directing the detenu to appear before the office of the Enforcement Department every day between 11 a.m. to 2 p.m. has been varied to the extent that the accused to attend Enforcement Department as and when required". The condition imposed by the Magistrate has no relation to the activities carried on by the detenu and PG NO 1035 as such the High Court after considering all the circumstances held that the order varying the condition of bail was not a relevant document and failure to produce the document before the detaining authority before arriving at his subjective satisfaction had not vitiated the order. We agree with the same. The judgment delivered by the High Court, Bombay in Criminal Writ Petition No. 1304 of 1987 entitled Arvindbhai Purshottambhai Patel vs R. C. Iyer and Ors., on February 25. 1988 was referred to us. In this case the detenu was arrested for smuggling prohibited articles and the detenu was prosecuted for smuggling. He was granted bail by Magistrate on certain condition. Subsequently that order was varied. The initial order granting bail was placed before the detaining authority, but the subsequent order of variation was not placed. It was held by the Division Bench of the High Court that the order of modification might have influenced the detaining authority in forming his subjective satisfaction and as such the non placement of the same would vitiate the order. That was a case of smuggling of prohibited articles and the condition in the bail was that he would not leave the shores of the country and so he could not have indulged in smuggling activities pending decision of the case. This condition was relaxed by the subsequent order. In that context it was observed by the Court that the order of variation is a material document which might affect the formation of subjective satisfaction before passing the order of detention and the failure to place that document vitiated the detention order. This observation was made in the facts of that case. This case has no relevance in the facts of this case as we have held that in the present case the order of Variation is not a relevant and vital document. It has been submitted that the detenu made an application on August 26,1987 in the Court of Addl. Chief Metropolitan Magistrate. 8th Court. Esplanade retracting his statement whereon an order was made that "taken on record". This application was not placed before the detaining authority and this has vitiated the detention order as this vital document was not considered before arriving at the subjective satisfaction by the detaining authority. It may be convenient to mention that in the counter affidavit to the writ petition the respondent No. 1 has stated in para 5 that the application dated August 26, 1987 and the order passed thereon was not placed before him as the Sponsoring Authority did not know about the said application dated August 26, 1987 and the order thereon. The Enforcement Directorate was not aware of the said application and the order thereon. In any case, the respondent No. 1 has already stated that the retraction letter of detenu dated September PG NO 1036 20,1987 and the reply of the Directorate of Enforcement to the said letter of the detenu dated August 26,1987 was placed before the detaining authority. This submission, therefore, has no merit as the detaining authority knew about the retraction statement and the order made thereon before making the order of detention. It has been contended that the Enforcement Department in course of search of the house of detenu on August 25, 1987 attached bank drafts and cheques, bank pass books of State Bank of India, Kandivali Branch, New India Co operative Bank and Bank of Baroda, Dahisar, loose sheets bunched together and marked `C ' containing pages 1 to 44 and seized under panchnama but did not place before the detaining authority and if placed copies of those documents were not given to the detenu. It has been submitted that the failure to supply these documents infringed his fundamental right to make an effective representation and so the impugned order is required to be quashed. In reply to this submission the detaining authority filed a return stating that all documents mentioned in panchnama were placed before him. But only relevant and vital documents were taken into consideration for reaching subjective satisfaction. These documents have been referred to in the grounds of detention and copies of all the said documents have been furnished to the detenu. It has been strenuously contended on behalf of the appellant that Bank pass books and some pages out of 1 to 44 of the loose sheets bunched together and referred to in the Panchnama were not given to him and so he could not make an effective representation. This has infringed his right. In support of his sub mission the decision of this Court in Ashok Kumar vs Union of India and Ors., [ ; (to which one of us is a party) has been cited at the bar. There is no dispute that all the documents which were considered by the detaining authority in reaching his subjective satisfaction and referred to in the grounds of detention have been furnished to the detenu. It is not necessary to furnish copies of all the documents including the bank pass books which are not material and relevant for reaching the subjective satisfaction of the detaining authority merely because they were mentioned in the panchnama. Moreover, no application had been made before the detaining authority for giving the detenu the copies of the bank pass books necessary for making an effective representation against the order of detention. In Ashok Kumar 's case (supra) wherein this Court held that the order of detention had been vitiated due to non supply of bank pass books of the detenu and his wife seized in course of search of some houses wherefrom foreign currency as well PG NO 1037 as primary gold with foreign makings were recovered, as it was held that these documents were vital and material documents. The detenu in that case made an application for furnishing him the bank pass books in order to enable him to make an effective representation against the order of detention stating that the houses from which the alleged foreign currency as well as primary gold with foreign markings had been recovered did not belong to or owned by the detenu. In that background this Court held that non supply of the bank pass books infringed the detenu 's right to make an effective representation. In the instant case as we have said hereinbefore that the bank pass books are not vital and material documents in reaching subjective satisfaction of the detaining authority and as such the failure to furnish the bank pass books to the detenu has not infringed any right of the appellant and the order of detention cannot be questioned as illegal or vitiated on that score. No other points have been urged before us. For the reasons aforesaid we dismiss the appeal. There will be no order as to costs. R.S.S. Appeal dismissed .

Rule X(2) of the Rules regulating the appointments of Housemen and House Surgeons at the hospitals attached to the Government Medical Colleges in the State of Maharashtra provides that the Government may sanction supernumerary posts to allow spouses of Government servants on transfer to undertake studies, if standing high in merit, from another college. The appellant married to a Government Medical Officer working in the State of Maharashtra after having passed M.B.B.S. examination and completing one year internship from a college situated in the State of Andhra Pradesh. On her application, the Government of Maharashtra in exercise of its power under rule X(2) created a Housepost in Obstetrics and Gynaecology w.e.f. July l5. 1986 specifically and categorically stating that the supernumerary Housepost was created to enable the appellant to complete her post graduate studies at Dr. V.M. Medical College, Solapur, respondent No. 2. The appellant joined the Housepost and duly completed the same. However, she was refused admission in the M.D. Course by respondent No.2 inasmuch as she was not even issued an application form. Being aggrieved, she filed a writ petition in the High Court challenging the legality of the action of the respondent refusing to admit her in the said post graduate M.D. Course. The High Court dismissed the writ petition holding, inter alia, that no inference could be drawn that everybody who completed the house job was entitled to get admission to the post graduate cousre ipso facto and that granting of registration for house job would not amount to admission to the post graduate course in a Medical College. Hence this appeal by special leave. Allowing the appeal, PG NO 959 PG NO 960 HELD: (l) All the seats in the post graduate degree course for Obstetrics and Gynaecology are not reserved for the candidates passing the M.B.B.S. examination from the said Dr. V.M. Medical College. It is not disputed that certain percentage of seats are reserved for the students of the College. But, no application form was issued to the appellant and accordingly, the question of not admitting the appellant on the ground of institutional preference or institutional reservation of seats does not arise. [964F G] (2) The State of Maharashtra is entitled to refuse to admit any student passing the M.B.B.S. examination from any Medical College in the State of Andhra Pradesh as that State has not reciprocated in the matter of admission to post graduate degree courses in Medical Colleges of that State. [964G H] (3) The State of Maharashtra after considering all facts and circumstances including the high merit of the appellant specifically created a supernumerary Housepost for the appellant. After creating the supernumerary Housepost specifically for the appellant so as to enable her to become eligible for the post graduate degree course, the respondents are not at all justified in refusing her even an application form and in not considering her case for admission in the post graduate degree course on the ground of failure of reciprocity by the Andhra Pradesh State. It was, therefore, unreasonable and unjust for the respondents to refuse admission to the appellant on a ground which is not at all tenable in the facts and circumstances of the cases. [965C F] (4) Normally the Supreme Court does ot interfere in the matter of admission of students in an educational institution. Even if it interferes. it generally directs the authorities concerned to consider the question of admission in accordance with the rules of the institution. But, in the peculiar facts and circumstances of the case, particularly the fact that the appellant had to lose two years of her academic career for no fault of hers, it is directed that the respondents shall issue to her an application form for admission in the post graduate M.D. Course in Obstetrics and Gynaecology and that alter the submission of the application form and compliance with other formalities by the appellant, she shall be admitted in the post graduate course in Obstetrics and Gynaecology in Dr. V.M. Medical College, Solapur, in the 1989 session, provided she is not otherwise unfit. [966B D]

78 and 79 of 1950. Application under article 32 of the Constitution of India for a writ of mandamus. G.N. Joshi, for the petitioners. S.M. Sikri, for the respondent. November 8. The judgment 0 the Court was delivered by MAHAJAN J. These two applications for enforcement of the fundamental right guaranteed under article 19 (1) (g) of the Constitution of India have been made by a proprietor and an employee respectively of a bidi manufacturing concern of District Sagar (State of Madhya Pradesh). It is contended that the law in force in the State authorizing it to prohib it the manufacture of bidis in certain villages including the one 761 wherein the applicants reside is inconsistent with the provisions of Part III of the Constitution and is conse quently void. The Central Provinces and Berar Regulation of Manufac ture of Bidis (Agricultural Purposes) Act, LXIV of 1948, was passed on 19th October 1948 and was the law in force in the State at the commencement of the Constitution. Sections 3 and 4 of the Act are in these terms; " 3. The Deputy Commissioner may by notification fix a period to be an agricultural season with respect to such villages as may be specified therein. (1) The Deputy Commissioner may, by general order which shall extend to such villages as he may specify, prohibit the manufacture of bidis during the agricultural season. (2) No person residing in a village specified in such order shall during the agricultural season engage himself in the manufacture of bidis, and no manufacturer shall during the said season employ any person for the manufacture of bidis. " On the 13th June 1950 an order was issued by the Deputy Commissioner of Sagar under the provisions of the Act for bidding all persons residing in certain villages from engag ing in the manufacture of bidis. On the 19th June 1950 these two petitions were presented to this Court under article 32 of the Constitution challenging the validity of the order as it prejudicially affected the petitioners ' right of freedom of occupation and business. During the pendency of the petitions the season mentioned in the order of the 13th June ran out. A fresh order for the ensuing agricultural season 8th October to 18th November 1950 was issued on 29th September 1950 in the same terms. This order was also challenged in a supplementary petition. Article 19 (1) (g) runs as follows : "All citizens shall have the right to practise any profession, or to carry on any occupation, trade or busi ness. " 762 The article guarantees freedom of occupation and busi ness. The freedom guaranteed herein is, however, subject to the limitations imposed by clause (6) of article 19. That clause is in these terms : "Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restric tions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any pro fession or carrying on any occupation, trade or business. " The point for consideration in these applications is whether the Central Provinces and Berar Act LXIV of 1948 comes within the ambit of this saving clause or is in excess of its provisions. The learned counsel for the petitioners contends that the impugned Act does not impose reasonable restrictions on the exercise of the fundamental right in the interests of the general public but totally negatives it. In order to judge the validity of this contention it is neces sary to examine the impugned Act and some of its provisions. In the preamble to the Act, it is stated that it has been enacted to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas. Sections 3 and 4 cited above empower the Deputy Commissioner to prohibit the manufacture of bidis during the agricultural season. The contravention of any of these provisions is made punishable by section 7 of the Act, the penalty being imprisonment for a term which may extend to six months or with fine or with both. It was enacted to help in the grow more food campaign and for the purpose of bring ing under the plough considerable areas of fallow land. The question for decision is whether the statute under the guise of protecting public interests arbitrarily 763 interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupation; in other words, whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in article 19 (1) (g) of the Constitution. Unless it is shown that there is a reason able relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it. 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. Legisla tion 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. Clause (6) in the concluding paragraph particularizes certain instances of the nature of the restrictions that were in the mind of the constitution makers and which have the quality of reasonableness. They afford a guide to the interpretation of the clause and illustrate the extent and nature of the restrictions which according to the statute could be imposed on the freedom guaranteed in clause (g). The statute in substance and effect suspends altogether the right mentioned in article 19 (1) (g) during the agri cultural seasons and such suspension may lead to such dislocation of the industry as to prove its ultimate ruin. The object of the statute is to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas of the Province and it could well be achieved by legislation restraining the employment of agri cultural labour in the manufacture 764 of bidis during the agricultural season. Even in point of time a restriction may well have been reasonable if it amounted to a regulation of the hours of work in the busi ness. Such legislation though it would limit the field for recruiting persons for the manufacture of bidis and regulate the hours of the working of the industry, would not have amounted to a complete stoppage of the business of manufac ture and might well have been within the ambit of clause (6). The effect of the provisions of the Act, however, has no reasonable relation to the object in view but is so drastic in scope that it goes much in excess of that object. Not only are the provisions of the statute in excess of the requirements of the case but the language employed prohibits a manufacturer of bidis from employing any person m his business, no matter wherever that person may be residing. In other words, a manufacturer of bidis residing in this area cannot import labour from neighbouring places in the district or province or from outside the province. Such a prohibition on the face of it is of an arbitrary nature inasmuch as it has no relation whatsoever to the object which the legislation seeks to achieve and as such cannot be said to be a reasonable restriction on the exercise of the right. Further the statute seeks to prohibit all persons residing in the notified villages during the agricultural season from engaging themselves in the manufacture of bidis. It cannot be denied that there would be a number of infirm and disabled persons, a number of children, old women and petty shop keepers residing in these villages who are inca pable of being used for agricultural labour. All such persons are prohibited by law from engaging themselves in the manufacture of bidis; and are thus being deprived of earning their livelihood. It is a matter of common knowledge that there are certain classes of persons residing in every village who do not engage in agricultural operations. They and their womenfolk and children in their leisure hours supplement their income by engaging themselves in bidi business. There seems no reason for prohibiting them from carrying on this occupation, The statute as 765 it stands, not only compels those who can be engaged in agricultural work from not taking to other avocations, but it also prohibits persons who have no connection or relation to agricultural operations from engaging in the business of bidi making and thus earning their livelihood. These provi sions of the statute, in our opinion, cannot be said to amount to reasonable restrictions on the right of the appli cants and that being so, the statute is not in conformity with the provisions of Part III of the Constitution. The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right. So long as the possibility of its being applied for purposes not sanctioned by the Consti tution cannot be ruled out, it must be held to be wholly void. Mr. Sikri for the Government of Madhya Pradesh contends that the legislature of Madhya Pradesh was the proper judge of the reasonableness of the restrictions imposed by the statute, that that legislature alone knew the conditions prevailing in the State and it alone could say what kind of legislation could effectively achieve the end in view and would help in the grow more food campaign and would help for bringing in fallow land under the plough and that this Court sitting at this great distance could not judge by its own yardstick of reason whether the restrictions imposed in the circumstances of the case were reasonable or not. This argument runs counter to the clear provisions of the Con stitution. The determination by the legislature of what constitutes a reasonable restriction is not final or conclu sive;it is subject to the supervision by this Court. In the matter of fundamental rights, the Supreme Court watches and guards the rights guaranteed by the Constitution and in exercising its functions it has the power to set aside an Act of the Legislature if it is in violation of the freedoms guaranteed by the Constitution. We are therefore of opinion 98 766 that the impugned statute does not stand the test of reason ableness and is therefore void. The result therefore is that the orders issued by the Deputy Commissioner on 13th June 1950 and 26th September 1950 are void, inoperative and ineffective. We therefore direct the respondents not to enforce the provisions con tained in section 4 of the Act against the petitioners in any manner whatsoever. The petitioners will have their costs of these proceedings in the two petitions. Petitions allowed. Agent for the petitioners in Nos. 78 and 79: Rajinder Narain. Agent for the respondent in Nos. 78 and 79: P.A. Mehta.

The Central Provinces and Berar Regulation of Manufac ture of Bidis (Agricultural Purposes) Act, LXIV of 1948, a law which was in force at the commencement of the Constitu tion of India, provided that" the Deputy Commissioner may by notification fix a period to be an agricultural season with respect to such villages as may be specified therein" and that "the Deputy Commissioner may by general order which shall extend to such villages as he may specify, prohibit the manufacture of bidis during the agricultural season. " The Act provided further that" no person residing in a, village specified in such order shall during the agricultur al season engage himself in the manufacture of bidis, and no manufacturer shall during the said season employ any person for the manufacture of bidis." An order was issued by the Deputy Commissioner under the provisions of the Act forbid ding all persons residing in certain villages from engaging in the manufacture of bidis during a. particular season. A manufacturer of bidis and an employee in a bidi factory residing in one of the said villages applied under article 32 of the Constitution for a writ of mandamus alleging that since the Act prohibited the petitioners from exercising their fundamental right to carry on their trade or business which was guaranteed to them by cl. (1) (g) of article 19 of the Constitution, the Act was void: Held, (i) that the object of the statute, namely, to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas of the Province could well have been achieved by legislation re straining the employment of agricultural labour in the manufacture of bidis during the agriculrural season without prohibiting altogether the manufacture of bidis. As the provisions of the Act had no reasonable relation 760 to the object in view, the Act was not a law imposing "reasonable restrictions" within the meaning of cl. (6) of Art 19 and was therefore void. (ii) The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agri cultural labour cannot be held to be valid because the language employed was wide enough to cover restrictions both within and without the limits of constitutionally permissi ble legislative action affecting the right, and so long as the possibility of its being applied for purposes not sanc tioned by the Constitution cannot be ruled out, it must be held to be wholly void. 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. Legisla tion 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 guarnteed in article 19 (1) (g) and the social control permit ted by el. (6) of article 19, it must be held to be wanting in that quality. Held also, that the determination by the Legislature of what constitutes a reasonable restriction is not final and conclusive. The Supreme Court has power to consider whether the restrictions imposed by the Legislature are reasonable within the meaning of article 19, cl. (6) and to declare the law void if in its opinion the restrictions are not reasonable.

Appeal No. 2034 of 1969. Appeal from the judgment and order dated May 7, 1969 of the Punjab and Haryana High Court in Civil Writ No. 850 of 1969. K. L. Gosain N. N. Goswamy, section K. Mehta, K. L. Mehta and K. R. Nagaraja, for the appellant. Harbans Singh and R. N. Sachthey, for respondents Nos. 1 and 2. section V. Gupte and section K. Gambhir, for respondent No. 18. The Judgment of the Court was delivered by Hegde, J. This appeal by certificate arises from the decision of a Division Bench of the Punjab and Haryana High Court in a writ petition wherein the appellants challenged the validity of proceedings under sections 4, 6, 9 and 17 (2) (c) of the Land Acquisition Act, 1894 as amended by the Punjab Legislature. For convenience sake we shall refer to that amended Act as 'the Act '. The High Court dismissed the writ petition. It appears that several contentions were sought to be advan ced before the High Court but in this Court only three con tentions have been pressed for our consideration i.e. (1) the acquisition in question being one for a company proceedings should have been taken under sections 38 to 44(B) of the Act, the same having not been taken, the Proceedings taken are void; (2) there was no urgency and hence recourse should not have been had to section 17 of the Act and (3) Section 17(2) (c) is inapplicable to the facts of the case. Now we may state the facts,relevant for the purpose of deciding the questions in dispute. 873 On 14/17 March, 1969, Government of Haryana issued a notification under section 4 of the Act notifying for acquisition the land concerned in this case. The notification further directed that action under section 17 (2) (c) of the Act shall be taken on the ground of urgency and the provisions of section 5 A shall not apply in regard to the said acquisition. The preamble to the said notification says that "whereas it appears to the Governor of Haryana that land is likely to be required to be taken by Government, at public expenses, for a public purpose, namely for the setting up a factory for the manufacture of Chine ware and Porcelain ware including Wall Glazed Tiles etc. at village Kasser. Tehsil Jhajjar, District Rohtak, it is here by notified that the land in the locality described in the specification below is likely to be required for the above purpose". On March 18, 1969 the Government isued a notification under section 6 of the Act acquiring the land for a public purpose On March 28, 1969 notices under section 9 of the Act were served on the appellants. On April 8, 1969, the appellants filed the writ petition giving rise to this appeal. The allegations in the writ petition include the assertion that there was no urgency in the matter of acquiring the land in question and therefore there was no justification for having recourse to section 17 and thus deprive the appellants of the benefit of, section 5 A of the Act. It was further alleged therein that the acquisition in question was made for the benefit of a company and hence proceedings should have been taken under sections 38 to 44(B) of the Act and that there was no public purpose involved in the case. It was further pleaded that the land acquired was not waste and parable land and that section 2 (c) of the Act did not confer power on the Government to dispense with the proceedings under section 5 A. In the counter affidavit filed by the Deputy Director of Industries (Administration), Government of Haryana On behalf of the State of Haryana, the above allegations were all denied. Therein it is stated that at the instance of the State of Haryana, Government of India had issued a letter of intent to a company for setting up a factory for the manufacture of Glazed Tiles etc. in village Kasser. That project was to be started with the collaboration of a foreign company, known as Pilkington Tiles Ltd. The scheme for setting up the project had been finalised and approved by the concerned authorities. on November 26, 1968, the Government wrote to one of the pro moters of the project, Shri H. L. Somany asking him to com plete the "arrangements for the import of capital equipment and acquisition of land in Haryana State for setting up of the proPosed factory". It was further stated in that communication the Government was pleased to extend the time for compleing the Project upto April 30, 1969. Under those circumstances it 8 74 had become necessary for the State of Haryana to take imme diate steps to acquire the required land. It was under those circumstances the Government was constrained to have recourse to section 17 of the Act. The Government denied the allegation that the facts of this case did not come within the scope of section 17 (2) (c). It was also denied that the acquisition in question was not made for a public purpose. We have earlier seen that in the notification issued under section 4, it had been stated that the acquisition was made "at public expenses, for a public purpose" namely for the setting up a factory for the manufacture of China ware and Porcelain ware including Wall Glazed Tiles etc. In the writ petition it was not denied that the acquisition in question was made at "public expenses". All that was challenged in the writ petition was that the purpose for which the acquisition was made not a public purpose. There is no denying the fact that starting of a new industry is in public interest. It is stated in the affidavit filed on behalf of the State Government that the now State of Haryana was lacking in industries and consequently it was become difficult to tackle the problem of unemployment. There is also no denying the fact that the industrialization of an area is in public interest. That apart, the question whether the starting of an industry is in public interest or not is essentially a question that has to be decided by the Government. That is a socioeconomic question. This Court is not in a position to go into that question. So long as it is not established that the acquisition is sought to be made for some collateral purpose, the declaration of the Govern. men+ it is made for a public purpose is 'not open to challenge, Section 6(3) says that the declaration of the Government that the acquisition made is for public purpose shall be conclusive evidence that the land is needed for a public purpose. Unless it is shown that there was a colorable exercise of power, it is not open to this Court to go behind that declaration and find out whether in a particular case the purpose for which the land was needed was a public purpose or not see Smt. Somavanti and ors. vs The State of Punjab(1) and Raja Anand Brahma Shah vs State of U.p.(2). On the facts of this case there can be hardly any doubt that the purpose for which the land was acquired is a public purpose. In view of the pleadings referred to earlier it is not open to the appellant to contend that the State Government had not contributed any Amount towards the cost of acquisition, We were informed at the bar that the State Government had contributed (1) (2) ; 875 a sum of Rs. 100/ towards the cost of the land which fact is also mentioned in the award of Land Acquisition Officer. That being so it was not necessary for the Government to proceed with the acquisition under Part VII of the Act see Somavanti 's case(1). Now coming to the question of urgency, it is clear from the facts set out earlier that there was urgency, The Government of India was pleased to extend time for the completion of the of project upto April 30, 1969. Therefore urgent steps had to be taken for pushing through the project. The fact that the St ate Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the notification was issued, there was urgency or not the conclusion of the Government in a given case that there was urgency entitled to weight, if not conclusive. This takes us to the question of applicability of section 17 (2) (c) to the facts of the case. The appellant had denied in the affidavit that the entire land acquired is either waste or arable Iand That contention of his has not been examined by the High Court. Therefore we have to proceed on the basis that the case does not come within the scope of section 17(1). The State has also not purported to act under section 17 (1). It has purported to act under section 17 (2) (c). Therefore we have to see whether the State could have proceeded on the facts of this case under section 17 (1) (c). Section 17 as amended by the Punjab Act 2 of 1954, Punjab Act 17 of 1956 and Punjab Act 47 of 1956 to the extent necessary for our present purpose reads thus : "17 (1) In cases of urgency whenever, the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub section (1) take possession of any waste or arable land needed for public purposes or for a Company. Such land shall there upon,vest absolutely in the Government free from all encumbrances. Explanation (2) In the following cases, that is to say (a) Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the 'immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river side or ghat, station or of (1) 876 providing convenient connection with or access to any such station; (b) Whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land for the purpose of any library or educational institution or for the construction, extension or improvement of any building or other structure in any village for the common use of the inhabitants of such village, or any godown for, any society registered under the (Act 11 of 1912), or any dwelling house for the poor, or the construction of labour colonies or houses for any other class of people under a Govermnent sponsored 'Housing Scheme or any irrigation tank, irrigation or drainage channel, or any well, or any public road; (c) Whenever land is required for a public purpose which in the opinion of the appropriate Government is of urgent importance, the Collector may, immediately after the, publication of the notice mentioned in sub section (1) and with the previous sanction of the appropriate Government enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances. Provided that the Collector shall not take possession of any building or part of a build ing under this sub section Without giving to the occupier thereof at least ' forty eight hour 's notice of his intention so to do . (3) In every case under either of the preceding subsections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crop and three (if any) on such land and for any other damage sustained by them caused by sudden dispossession . (4) In the case of any land to which in the, opinion of the appropriate Government, the provisions of subsection (1) or sub section (2) are applicable, the appropriate Government may direct that the provisions of section 5 A shall not apply. 877 Herein we are only concerned with the scope of section 17 (2) (c) as the vires of section 17(2) is not challenged. Section 17(2)(c) if read by itself is plain. It seems to permit the appropriate Government to direct that the provisions of Section 5 A shall not apply whenever land is required for public purpose which in the opinion of the appropriate Government is of urgent importance. The conditions precedent for the application of section 17 (2) (c) are ( 1 ) that the land must be required for a public purpose and (2) the appropriate Government must be of the ,opinion that the purpose in question is of urgent importance. But it was urged on behalf of the appellants that we should apply ejusdem generie rule in interpreting section 17 (2) (c). The contention on behalf of the appellants was that though section 17 (2) (c) read by itself covers a very large field, that provision should be given a narrower meaning because of the provisions in section 17(2) (a) and (b). It was urged that as the general words contained in section 17 (2) (c) follow the specific words of the same nature, in section 17 (2) (a) and (b), those general words must be understood as applying to cases similar to those mentioned in section 17 (2) (a) and (b). The ejusdem generis rule is not a rule of law but is merely a rule of construction to aid the courts to find out the true intention of the legislature. If a given I provision is plain and unambiguous and the legislative intent is clear, there is no occasion to call into aid that rule ejusdem generis rule is explained in Halsbury 's Laws of England (3rd Edn.). 36 p. 397 paragraph 599 thus "As a rule, Where in a statute there are general words following particular and specific words,, the general words must be confined to things of the same kind as those specified, although this, ' as a rule of construction, must be applied with caution, subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament. For the ejusdem rule to apply, the specific words must constitute a category, class or genus; if they do constitute such a category, class or genus, then only things which belongs to that category, class or genus fall within the general words. It is observed in Craies on Statute Law (6th Edn.) p. 181 that : "The ejusdem generis rule is one to be applied With caution and not pushed too far, as in the case of many decisions, which treat it as automatically appli 878 cable, and not as being, what it is, a mere presumption in the absence of other indications of the intention of the legislature. The modem tendency of the law, it was said, is "to attenuate the application of the rule of ejusdem generis". To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be, called a class or kind of objects. According to Sutherland Statutory Construction (3rd Edn.) Vol. II p. 395, for the application of the doctrine of ejusdem generis, the following conditions must exist. (i) The statute contains an enumeration by specific words; (ii) The members of the enumeration constitute a class; (iii) The class is not exhausted by the enumeration; (iv) A general term follows the enumeration and (v) There is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires. The scope of the ejusdem generis rule has been considered by this Court in several decisions. In State of Bombay vs Ali Gulshan(1); it was observed: "Apart from the fact that the rule must be confined within narrow limits, and general or comprehensive words should recive their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distinct genus, which must comprise more than one species, before the rule can be applied.". In Lilavati Bai vs The State of Bombay,(2) it was observed "The rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the legislature presumed to use the general words in a restricted sense,; that is to say, as belonging to the same genus ' as the particular and specific words. Such a restricted mean (1) ; (2) ; 879 ing has to be given to words of general import only where the context of the whole scheme of legislation requires it. But where the content and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes the duty of the courts to give those words their plain and ordinary meaning," The same view was reiterated by this Court in K. K. Kochini vs State of Madras and Kerala(1). Bearing in mind the principles set out earlier, we shall now consider whether the general import of the words, in section 17 (2) (e) should be cut down in view of section 17 (2) (a) and (b). Under cl. (a) of section 17(2), the acquisition is to be made by the Railway Administration when owing to any sudden change 'in the, channel of any navigable river or other unforeseen emergency it becomes necessary for the administration to acquire the immediate possession of any land for the maintenance of the traffic or for the purpose of making thereon a river side or ghat station or for providing convenient connection with or access to any such station. We would like to emphasize that under this provision, the acquisition can only be made by the Railway Administration and that when it considers that immediate possession (of any land is necessary for the purposes mentioned therein, Under el. (b) of sub section (2) of section 17, before an acquisition can be made, the Collector must form an opinion that it has become necessary to acquire the immiediate possession of the land concerned for the ' purposes mentioned therein. Under cl. (c) of section 17(2), the acquisition can be made only when the appropriate Government forms the opinion that because of urgent importance, the concerned land has to be acquired for the purposes mentioned in that provision. Under el. (a) the derision to acquire has to be made by the Railway Administration. Under el. (b), the acquisition can be made only on the formation of the required opinion by the Collector. Under el. (c) the acquisition can be made only when the requisite opinion is formed by the appropriate Government. Further under el. (a) the acquisition has to be made to meet certain unforeseen emergency as a result of which the immediate possession of the land is necessary. Under el. (b) the Collector must form an opinion that it has become necessary to acquire the immediate possession of land but under el. (c) the requirement is that the appropriate Government must form the opinion that the acquisition is of urgent importance. Under cls. (a), (b) and (c) of sub section (2) of section 17, the decision to acquire land has, not to be made by the (1) A.I.R. 1960 S.C. 105.0. (1) A.I.R. 1960 s.c. 1050 880 same authority but by different authorities. Further the conditions under which the acquisition has to be, made differ from clause to clause. Therefore there is no basis to say that the general words in cl. (c) follow the particular and specific words in cls. (b) and (c). Nor can it be said that the specific words contained in cls. (a) and (b) constitute a category, 'class or genus. Hence we are unable to accept the contention that in interpreting cl. (c) of section 17(2), we should apply the rule of ejusdem generis. As none of the contentions taken by the appellants are ac ceptable, thise appeal fails and is dismissed. But in the circumstances of the case we make no order as to costs. K.B.N. Appeal dismissed.

In a suit for possession of land court fee was held to be payable, under section 6(1) (v) of the Bombay Court Fees Act, 1959, on the value of the land. On appeal, HELD : Under section 6(i)(v) in a suit for possession of land the court fee has to be calculated according to what has been provided in subclauses (a) (b) and (c) with regard to different categories of land. It may be that in cl. (v) the land which has not been assessed to land revenue is not covered by clause (a), (b) and (c) but then the court fee will have to be calculated under some other provision of the Act but not on the basis of the value of the land. [606 A]

Appeal No. 73 of 1961. Appeal from the judgment and order dated January 23, 1961, of the Bombay High Court, in Appeal No. 5 of 1960. C. K. Daphtary, Solicitor General of India, Purshottam Tricumdas, F. section Nariman, Suresh D. Parekh and I. N. Shroff, for the appellants. M. K. Nambiar, K. section Cooper, Anil Dewan, RaMesh A. Shroff, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondents. February 27. The Judgment of the Court was delivered by HIDAYATULLAH, J. This is an appeal (with certificate) by Messrs. Dhanrajamal Gobindram against a judgment of the Divisional Bench of the High Court of Bombay, by which a petition under section 20 of the Indian was held to be maintainable and the decision of the learned Judge (Original Side) who held otherwise, was reversed. The respondents are Messrs. Shamji Kalidas & Co. (a registered firm), who were the petitioners in the High Court. The facts of the case are as follows: On October 24, 1957, Messrs. Dhanrajamal Gobindram (referred to as buyers, hereafter) entered into an agreement with Messrs. Shamji Kalidas & Co. (referred to as sellers, hereafter), for purchase of 500 bales of African raw cotton. The contract was in the form of a letter 1023 written by the sellers and confirmed by the buyers. The material portions of the letter, which bears No. SK/Bom/13/2014 and was stamped as an agreement, ' are as follows: "We confirm having sold to you African raw cotton on the following terms and conditions subject to the usual Force Majeure Clause: Description: ARBP 52 F. A. Q. Crop/58. Quality : 500 (Five Hundred) bales. Price : at Rs. 1,401 nett per candy CIF Bombay. Payment : Against shipping documents in Bombay. Packing : 420 lbs. approximately per bale. Shipment : February/March 1958. Remarks: The terms and conditions on the reverse form part of the contract. This contract is subject to the Bye laws of East India Cotton Association, Ltd., Bombay, other than the bye law 35 for arbitration on Quality in case of East African cotton. Terms and Conditions. The shipment is subject to any cause beyond seller 's or seller 's shipper 's control and is also subject to availability of freight. This contract is subject to the jurisdiction of the High Court of Bombay. It will be the duty of the buyers to obtain the import licence and to communicate the number thereof to the sellers immediately on the same being obtained but in any event, not later than 20th February, 1958, and in the event of their failure to do so for any reasons whatsoever including the reason that the Government of India may not allow the imports of the contracted goods, the sellers shall be entitled at their discretion either to carry over the goods, in which event the buyers shall pay to the seller all carry over charges in addition to the contracted price or to call upon the buyers to pay for the contracted goods and take immediate delivery thereof in. British East Africa and upon 1024 the buyers failing to do so, to sell the contracted goods at Kampala or Mombasa at the rates prevalent there in convenient lots and as and when it may be practicable to do so at the risk and account of the buyers and to claim from them any deficit that arise between the contracted price and such resale price and also all expense incidental thereto. Even if the Government of India may announce the import policy of the contracted goods in such manner that only the consumers would be entitled to obtain the licences, it will be the duty of the buyers to see that necessary import licences for the contracted goods are obtained in the consumers ' name or in the joint names of themselves and those of the consumers the intention being that in all eventualities it is the duty of the buyers to obtain licences under any policy that may be followed by the Government of India for the import of the contracted goods and to communicate the number thereof to the sellers within the time as specified hereinabove and on the buyer 's failure to do so all the eventualities contemplated under clause 6 shall operate. " By a letter dated November 30, 1957, the contract was later amended by the parties as follows : " With reference to the above mentioned contracts we hereby confirm that, if necessary, we shall carry over the contracted goods for two months, namely, March and April and you will pay as the carry over charges for the same. The interest payable under such carry over charges will be at the rate prevalent in Mombasa. The other terms and conditions remain unaltered. " The contract was not performed. The sellers wrote as many as five letters between March 1, 1958, and May 26, 1958, before they received a reply from the buyers dated June 3, 1958. By that time, the sellers had carried forward the contract, and also invoked their right of resale after giving notice, and claimed Rs. 34,103. 15 nP. for which a debit note had been issued. This note was returned by the buyers with a letter of June 3, 1958, stating that the contract was 1025 void and/or illegal", that they were not obliged to perform it, that there was no right of any sale on their., account and/or on their behalf, and that the alleged" sale was not binding upon them. [exhibit " D " (Colly) No. 6.] The sellers then invoked the arbitration clause of the agreement and Bye law 38 A of the Bye laws of the East India Cotton Association, Ltd., Bombay, and moved the Bombay High Court, on the Original Side, under section 20 of the Indian , requesting that the agreement be filed in Court and the dispute referred to arbitration. The buyers appeared, and resisted the petition on grounds which they set forth in affidavits filed from time to time. By their first affidavit dated July 31, 1958, the buyers contended that cls. 6 and 7, quoted above, were unlawful, as the liability created under them amounted to a contravention " of the import policy of Government of India " and the Foreign Exchange Regulation Act, 1947, and the Rules made thereunder. They contended that, in view of the invalidity of the contract as a whole, the arbitration clause in the agreement was not binding, and that the agreement could not be filed. In the second affidavit which was filed on February 4, 1959, they added the reason that the words " subject to the usual Force Majeure Clause " were vague and uncertain, and made the contract ' void ab initio, as there was no consensus ad item between the parties. They contended that the con. tract being void, the arbitration clause was also void. By yet another affidavit filed on February 27, 1959, they averred that the letter dated November 30, 1957, was void, being in contravention of the Import Trade Control Act and the Foreign Exchange Regulation Act and the Rules made under the two Acts, inasmuch as the consideration was one forbidden by law and was likely to defeat the provisions of law. They also stated that the words " if necessary " in that letter rendered the contract void ab initio for vagueness and uncertainty. The case was heard by K. T. Desai, J. (as he then war,). On March 3, 1959, the learned Judge dismissed 1026 the petition as not maintainable on the ground that ,the dispute was about the legality or validity of the contract including the agreement about arbitration, and that such a dispute could only be considered under sections 32 and 33 of the by the Court and not by the arbitrator in a reference under section 20 of the Act. He declined to consider the question under the former sections, because the petition had not asked for that relief, observing that if by a proper petition the question were raised, it would be decided. Against the order of the learned Judge (0. section), an appeal was filed by the sellers. This appeal was heard by Chainani, C. J. and section T. Desai, J. on April 28, 1959. The learned Judges held that a claim was made by the sellers and was denied by the buyers; that there was thus a dispute arising out of or in relation to a contract as contemplated by Bye law 38 A; that in showing cause against the petition under section 20, the buyers had averred that the contract was illegal and void; and that such a question could be decided by the Court before making the reference. The learned Judges pointed out that a petition under sections 32 and 33 of the Indian questioning the existence or validity of an arbitration agreement was not to be expected from one making a claim under a contract, that the plea was always likely to be raised by one resisting the petition, and that when such a plea was raised, the Court must decide it, even though the proceedings be under section 20 of the Act for making a reference. The case was, therefore, remanded with the following direction: " As the respondents have challenged the validity of this agreement, the Court will have to decide this question before passing further orders in the matter. Accordingly we set aside the order passed by Mr. Justice K. T. Desai, dismissing the petition filed by the petitioners, and remand the matter to the trial court for deciding the objections, raised by the respondent under sub section (3) of section 20 of the Act, to the arbitration agreement being filed in Court, and then disposing of the matter in accordance with law." 1027 When the case went back for retrial, the buyers filed their fourth affidavit on November 16, 1959. They stated in that affidavit that Bye law 38 A was a statutory Bye law of the East India Cotton Association, Ltd., Bombay, a recognised Institution under the Forward Contracts Regulation Act, No. 74 of 1952, and that section 46 of the was ap plicable. They contended that inasmuch as the Bye laws of the Association prescribed a different machinery inconsistent with and repugnant to section 20 of the , the latter section was inapplicable, and that the petition was incompetent. By his order dated November 26 and 27,1959, K. T. Desai, J. hold that the petition did not disclose sufficient materials, and that the sellers were not entitled to have the agreement of reference filed, or to have an order of reference made. Though be held that the Bye laws of the East India Cotton Association, Ltd. were statutory, and that sections 46 and 47 of the applied, he was of opinion that section 20 could not be invoked, because no action under sub section (4) of a. 20 could be taken. The reason given by the learned Judge was that under that sub section the Court had to appoint an arbitrator, if the parties failed to agree, and that sub section was not applicable, because the machinery of Bye law 38 A left no power of action to the Court. He also felt that there was no averment in the petition that the parties had not agreed. On the rest of the points raised by the buyers in their affidavits, the learned Judge held against them. He held that, in view of sections 21(2) and 21(3) of the Foreign Exchange Regulation Act, there was no infringement of that Act by the agreement entered into, though he expressed a doubt if the words " legal proceedings " in section 21(3) were wide enough to include an arbitration. He also held that cl. 7 of the conditions under which the contract was to be performed was, at least in part and under certain circumstances, not a contravention of the Import and Export Control Act, 1947, or the Import Trade Control Order issued Under sections 3 and 4 A of that Act, and thus not wholly void. He held lastly that the contract was not void for vagueness or 1028 uncertainty either on account of the reference to " the usual Force Majeure Clause ", or because of the words if necessary " in the letter of November 30, 1957. The sellers appealed against the dismissal of the petition, and the buyers cross objected against the adverse findings and the disallowance of costs. The appeal was heard by Tarkunde and Chitale, JJ., and by separate but concurring judgments, the appeal was allowed and the cross objection dismissed, and the buyers were ordered to pay costs throughout. The Divisional Bench agreed with K. T. Desai, J. on all the points decided by him against the buyers. They left open the question whether " legal proceedings " in section 21(3) of the Foreign Exchange Regulation Act were wide enough to include an arbitration for the decision of the arbitrators to be appointed, and addressing themselves to the question raised about section 20, held that the petition was maintainable. They were of opinion that the Court could order the arbitration agreement to be filed and also to refer the dispute to arbitrators to be chosen in accordance with Bye law 38 A, though they felt that if the latter action could not be taken, at least the first could be, because the procedural part could not destroy the power conferred to file the agreement. In this appeal, all the arguments which had failed before the High Court were urged before us. Shortly stated, they are: that the contract was void (a) for illegality and (b) for uncertainty and vagueness on two grounds; that the petition under section 20 of the Indian was incompetent, as that section was inapplicable; and that the law governing the parties was not the Indian law but the law of British East Africa. We shall now deal with these contentions. The first contention is that cl. 7 of the agreement involves a breach of the Foreign Exchange Regulation Act. Reliance is placed upon section 5 of the Act, which reads as follows: " (5) Restrictions on payment8. (1) Save as may be provided in and in accordance with any general or special exemption from the provisions of this subsection which may be granted conditionally or 1029 unconditionally by the Reserve Bank, no person in, or resident in, British India shall (e) make any payment to or for the credit of any person as consideration for or in association with(1) the receipt by any person of a payment or the acquisition by any person of property outside India; (ii) the creation or transfer in favour of any person of a right whether actual or contingent to receive a payment or acquire property outside India: " It is contended that the agreement envisaged (a) payments for goods in Africa against shipping documents, (b) payment in Africa of carrying over charges, and (c) in the event of resale, payment of deficit also in Africa. It is also contended that the two clauses (6 and 7) contemplate acquisition of property in Africa. The clauses, it is submitted, also involved acquisition of foreign exchange, if the goods were resold in Africa and credit for the price was given to the buyers. This, it is argued, was a breach of section 5, unless there was a general or special exemption granted by the Reserve Bank in connection with this contract, and that no such exemption was in existence when the contract was made. In this connection, section 21 of the Foreign Exchange Regulation Act may be read. It provides: " 21. Contracts in evasion of this Act. (1) No person shall enter into any contract or agreement which would directly or indirectly evade or avoid in any way the operation of any provision of this Act or of any rule, direction or order made thereunder. (2) Any provision of, or having effect under, this Act that a thing shall not be done without the permission of the Central Government or the Reserve Bank, shall not render invalid any agreement by any person to do that thing, if it is a term of the agreement that thing shall not be done unless permission is granted by the Central Government or the Reserve Bank, as the case may be; and it shall be an implied term of every contract governed 1030 by the law of any part of British India that anything agreed to be done by any term of that contract which is prohibited to be done by or under any of the provisions of this Act except. with the permission of the Central Government or the Reserve Bank, shall not be done unless such permission is granted. (3) Neither the provisions of this Act nor any term (whether expressed or implied) contained in any contract that anything for which the permission of the Central Government or the Reserve Bank is required by the said provisions shall not be done without that permission, shall prevent legal proceedings being brought in British India to recover any sum which, apart from the said provisions and any such term, would be due, whether as a debt, damages or otherwise, but (a) the said provisions shall apply to sums required to be paid by any judgment or order of any Court as they apply in relation to other sums; and (b) no steps shall be taken for the purpose of enforcing any judgment or order for the payment of any sum to which the said provisions apply except as respects so much thereof as the Central Government or the Reserve Bank, as the case May be, may permit to be paid; and (c) for the purpose of considering whether or not to grant such permission, the Central Government or the Reserve Bank, as the case may be, may require the person entitled to the benefit of the judgment or order and the debtor under the judgment or order, to produce such documents and to give such information as may be specified in the requirement. " No doubt, sub section (1) prohibits contracts in contravention or evasion, directly or indirectly, of the Foreign Exchange Regulation Act, and if there was nothing more, then the argument would be understandable. But, sub section (2) provides that the condition that a thing shall not be done without the permission of the Reserve Bank shall not render an agreement 1031 invalid, if it is a term of the agreement that the thing shall not be done unless permission is granted by the Central Government or the Reserve Bank and further that it shall be an implied term of every contract governed by the law of any part of India that anything agreed to be done by any term of that contract, which cannot be done except with the permission of the Reserve Bank, shall not be done, unless permission is granted. Sub section (3) allows legal proceedings to be brought to recover sum due as a debt, damages or otherwise, but no steps shall be taken to enforce the judgment, etc., except to the extent permitted by the Reserve Bank. The effect of these provisions is to prevent the very thing which is claimed here, namely, that the Foreign Exchange Regulation Act arms persons against performance of their contracts by setting up the shield of illegality. An implied term is engrafted upon the contract of parties by the second part of sub section (2), and by sub section (3), the responsibility of obtaining the permission of the Reserve Bank before enforcing judgment, decree or order of Court, is transferred to the decree holder. The section is perfectly plain, though perhaps it might have been worded better for which a model existed in England. It is contended that section 21 uses the word " permission ", while section 5 speaks of an exemption, and that sections 21(2) and 21(3) do not cover the prohibition in a. 5. The Foreign Exchange Regulation Act, no doubt, uses diverse words like, " authorise ", " exempt " and " permission " in different parts. The word " exempt " shows that a person is put beyond the application of law, while " permission " shows that he is granted leave to act in a particular way. But the word SC permission " is a word of wide import. " Permission " in this section means only leave to do some act which but for the leave would be illegal. In this sense, exemption is just one way of giving leave. If one went only by the word and searched for those sections where the word " permission " is expressly used, sections 21(2) and (3) are likely to prove a dead letter. This could not have been intended, and the very 1032 elaborate provisions in those sub sections show that those matters were contemplated which are the subject of prohibition in section 5. In our opinion, the argument is without foundation. The contention, that on resale the price would have accrued to the buyers in the first instance, as the sellers would be acting as the agents of the buyers, is also incorrect. It has been rightly pointed out by K. T. Desai, J. that the right of resale given by sections 54(2) and (4) of the Indian Sale of Goods Act is exercised by the seller for himself and not as an agent of the buyer, when the latter is given a notice of sale. This is indeed clear from the fact that the buyer is not entitled to the profit on resale in that contingency, though liable for damages. The position is different when no notice is so sent. Then the profits go to the buyer. Perhaps, in that event it may be possible to say that the seller acted as an agent. But, in the case of resale with prior notice, there is no payment to the buyer and no contravention of the Foreign Exchange Regulation Act. The contention that the contract involved an actual or, at least, a contingent right to or acquisition of property abroad is not correct. Even if it were so, the contract is saved by section 21, as already explained. In our opinion, the contract was not void for illegality. The agreement is said to be void because of vagueness and uncertainty arising from the use of the phrase " subject to the usual force majeure clause ". The argument is that there was no consensus ad idem, and that the parties had not specified which force majeure clause they had in mind. We were taken through the Encyclopaedia of Forms and Precedents and shown a number of force majeure clauses, which were different. We were also taken through a number of rulings, in which the expression force majeure " had been expounded, to show that, there is no consistent or definite meaning. The contention thus is that there being no consensus ad idem, the contract must fail for vagueness or uncertainty. The argument, on the other side, is that this may be regarded as a surplusage, and, if meaningless, ignored. It is 1033 contended by the respondents that the addition of the word " usual" shows that there was some clause which used to be included in such agreements. The ' respondents also refer to section 29 of the Indian Contract Act, which provides: "Agreements, the meaning of which is not certain, or capable of being made certain, are void, " and emphasise the words " capable of being made certain ", and contend that the clause was capable of being made certain, and ex facie, the agreement was not void. McCardie J. in Lebeaupin vs Crispin (1) has given an account of what is meant by "force majeure " with reference to its history. The expression "force majeure " is not a mere French version of the Latin expression" Vis major ". It is undoubtedly a term of wider import. Difficulties have arisen in the past as to what could legitimately be included in "force majeure ". Judges have agreed that strikes, break down of machinery, which, though normally not included in" Vis Major" are included in "force majeure ". An analysis of rulings on the subject into which it is not necessary in this case to go, shows that where reference is made to "force majeure ", the intention is to save the performing party from the consequences of anything over which he has no control. This is the widest meaning that can be given to " force majeure ", and even if this be the meaning, it is obvious that the condition about "force majeure, " in the agreement was not vague. The use of the word " usual " makes all the difference, and the meaning of the condition may be made certain by evidence about a force majeure clause, which was in contemplation of parties. Learned counsel for the appellants relies strongly on a, decision of McNair, J. in British Industries vs Patley Pressings(2). There, the expression used was "subject to force majeure conditions ". The learned Judge held that by conditions " was meant. clauses and not contingencies or circumstances, and that there being a variety of force majeure clauses in the trade, there (1) (2) 1034 was no concluded agreement. The: case is distinguish. able, because the reference to force majeure clauses was left at large. The addition of the word " usual " makes it clear that here some specific clause was in the minds of the parties. Learned counsel also relies upon a decision of the House of Lords in Scammell (G.) and Nephew Ltd. vs Ouston (H.C. and J.G.) (1), where the reference to " on hire purchase terms" was held to be too vague to constitute a concluded contract. It will appear from the decision of the House of Lords that the clause was held to be vague, because no precise meaning could be attributed to it, there being a variety of hire purchase clauses. The use of the word "usual" here, enables evidence to be led to make certain which clause was, in fact, meant. The case of the House of, Lords does not, therefore, apply. Both the cases to which we have referred were decided after parties had entered on evidence, which is not the case here. Our case is more analogous to the decision referred to in Bishop & Baxter Ld. vs Anglo Estern Trading & Industrial Co. Ld. (2), namely, Shamrock section section Co. vs, Storey (3). In speaking of the condition there, Lord Goddard observed as follows: " Abbreviated references in a commercial instrument are, in spite of brevity, often self explanatory or susceptible of definite application in the light of the circumstances, as, for instance, where the reference is to a term, clause, or document of a wellknown import like c.i.f. or which prevails in common use in a particular place of performance as may be indicated by the addition of the epithet 'usual ' : see Shamrock section section Co. vs Storey (a), where 'usual colliery guarantee ' was referred to in a charter party in order to define loading obligations. " The addition of the word " usual " refers to something which is invariably to be found in contracts of a particular type. Commercial documents are sometimes expressed in language which does not, on its face, bear a clear meaning. The effort of Courts is to give a meaning, if possible. This was laid down by the (1) (2) (3) , 1035 House of Lords in Hillas & CO. vs Arcos Ltd. 1, and the observations of Lord Wright have become classic, and have been quoted with approval both by the Judicial Committee and the House of Lords ever since. The latest case of the House of Lords is Adamastos Shipping Co. Ltd. vs Anglo Saxon Petroleum Co. Ltd.(2). There, the clause was " This bill of lading ", whereas the document to which it referred was a charter party. Viscount Simonds summarised all the rules applicable to construction of commercial documents, and laid down that effort should always be made to construe commercial agreements broadly and one must not be astute to find defects in them, or reject them as meaningless. Applying these tests to the present case and in the light of the provisions of section 29 of the Indian Contract Act, it is clear that the clause impugned is capable of being made certain and definite by proof that between the parties or in the trade or in dealings with parties in British East Africa, there was invariably included a force majeure clause of a particular kind. In 'our opinion, the contract was not void for vagueness or uncertainty by reason of the reference in the terms stated, to the force majeure clause. Mr. Daphtary posed the question as to on whom was the burden of proving the usual force majeure clause. In our opinion if the agreement is not void for uncertainty, that question would be a matter for the decision of the arbitrators. It is too early to say by what evidence and by whom the usual force, majeure clause must be established. The next ground on which it is said that the agreement was void for uncertainty has reference to the employment of the words " if necessary " in the letter of November, 30, 1957. The effect of that letter is to make an alteration in cl. 6 of the agreement, which has been quoted already. Under that clause, the buyers were to obtain the import licence and to communicate the number thereof to the sellers not later than February 20, 1958, and in the event of their failure to do so for any reason whatsoever, the sellers (1) ; (2) , 153. 132 1036 were entitled "at their discretion " either to carry over the goods or to ask the buyers to pay for the contracted goods and take delivery in British East Africa. By that letter, the sellers confirmed that " if necessary " they would carry over the contracted goods for two months, namely, March and April, subject to payment of charges. It is contended that the words " if necessary " are entirely vague and do not show, necessary for whom, when and why. In our opinion, this argument has no force whatever. Under cl. 6, the sellers had an absolute discretion either to carry over the goods or to insist on delivery being taken. By this letter, they have said that, if necessary, that is to say. if the buyers find it difficult to supply the number of the import licence, the contract would be carried over to March and April. By this amendment, the sellers surrendered to a certain extent their absolute discretion. The clause means that the contract was not extended to March and April, but that the sellers would extend it to that period,. if occasion demanded. Since both the parties agreed to this letter and the buyers confirmed it, it cannot be said that there was no consensus ad idem, or that the whole agreement is void for uncertainty. We shall now consider the next argument, which was very earnestly urged, before us. It is that section 20 of the cannot be made applicable to this case at all. We have already quoted extracts from the agreement which include the clause by which the Bye laws of the East India Cotton Association Ltd., Bombay, were applied to this contract, except Bye law 35,which deals with arbitration on quality in case of East African cotton. Bye law 1(B) relates to East African cotton, and it says that Bye laws 1 to 46 inclusive (with certain exceptions) shall apply to contracts in respect of East African cotton. It was conceded before the High Court and also before us that the Bye laws are statutory. The buyers were members of the Association but not the sellers; but the Bye laws on arbitration, with which we are concerned, include arbitrations between a member and a 1037 non member. We are concerned directly with Bye law 38 A. Bye law 38 A in its opening portion, reads: All unpaid claims, whether admitted or not, and all disputes (other than those relating to quality) arising out of or in relation to contracts (whether forward or ready and whether between members or between a, member and a non member) made subject to these Bye laws shall be referred to the arbitration of two disinterested persons one to be chosen by each party. The arbitrators shall have power to appoint an umpire and shall do so if and when they differ as to their award. " Then follow certain provisions, which were stressed but which need not be quoted in extension Shortly stated, they are that the arbitrators must make their award in 15 days, unless time be extended by the Chairman. The umpire is to be appointed within 15 days or such extended period as may be fixed by the Chairman and the umpire is to make his award within 10 days, unless time be extended by the Chairman. In case of disagreement or failure of a party to appoint an arbitrator, the Chairman may appoint an arbitrator, and similarly the Chairman is to appoint the umpire and he may even appoint himself. Other powers are conferred on the Chairman, who is the Chairman of the Board of Directors of the East India Cotton Association Ltd. The contention is that arbitrations under the , like those under Sch. 11 of the Code of Civil Procedure, are of three kinds described by Lord Macnaghten in Ghulam Jilani vs Muhammad Hassan (1), and that this belongs to the second category there described, in which " all further proceedings are under the supervision of the Court ". It is argued that by the application of the Bye laws, the Court is left no powers under section 20 which is being invoked, and that section 20 cannot thus apply. Section 20 of the , in so far as it is material to this point, is as follows: " 20. Application to file in Court arbitration agreement. (1) Where any persons have entered into an (1) (1901) L.R. 29 I.A. 51, 56, 57. 1038 arbitration agreement before the, institution of any suit with respect to the subject matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a Court having jurisdiction in the matter to which the agreement relates, that the agreement be filed in Court. (3) On such application being made, the Court shall direct notice thereof to be given to all parties to the agreement other than the applicants, requiring them to show cause within the time specified in the notice why the agreement should not be filed. (4) Where no sufficient cause is shown, the Court shall order the agreement to be filed and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court. (5) Thereafter the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of this Act so far as they can be made applicable. " The sellers rely upon cl. (5), which enjoins the application of the provisions of the , so far as they can be made applicable. Reference is then made to provisions of Chap. II and the Schedule of the Act laying down the powers of the Court, and they are contrasted with the provisions of the Bye. laws to show that if the latter prevail, no residuum of power is left to the Court, and that after filing the agreement, the Court must abdicate in favour of the Chairman and the Act, in terms, ceases to apply. Reference is also made to section 47 of the , which provides: "Subject to the provisions of section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder " ' (Proviso omitted) 1039 The opening words of section 47 takes us to a. 46, which may be read at this stage. It provides: "The provisions of this Act, except subsection (1) of section 6 and sections 7, 12, 36 and 37, shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as this Act is inconsistent with that other enactment or with any rules made thereunder." Section 46 makes the provisions of any other enactment or any rules made thereunder to prevail over the , if inconsistent with the latter. In view of these several provisions, it is clear that the applies to all arbitrations and Chap. III makes it applicable also to arbitrations, in which the arbitration agreement is asked to be filed in Court under section 20, subject, however, to this that the provisions of any other enactment or rules made thereunder, if inconsistent with the , are to prevail. Learned counsel for the buyers contends that nothing is saved of the Act. This is not correct. To begin with, questions as to the existence or validity of the agreement are saved from decisions by arbitrators or umpires, however appointed. Since such a plea can only be raised in bar of an application by persons seeking a reference to arbitration, at least that portion of the Act still applies, and that power can only be exercised by the Court. Other provisions of Chap. II, like sections 15 and 16, still remain applicable. We need not give a list of all the provisions which may be saved, because that will involve an examination side by side, of the sections of the Act and the provisions of the Bye laws. So long as something is saved, it cannot be said that the Court after receiving the agreement and ordering that it be filed, becomes completely functus officio. But the crux of the argument is that the provisions of tub.a. (4) of section 20 read with sub s.(1), ibid., cannot apply, and the Court, after filing the agreement, will have 1040 to do nothing more with it, and this shows that section 20 is not applicable. This argument overlooks the fact that this is a statutory arbitration governed by its own rules, and that the powers and duties of the Court in sub section (4) of section 20 are of two distinct kinds. The first is the judicial function to consider whether the arbitration agreement should be filed in Court or not. That may involve dealing with objections to the existence and validity of the agreement itself. Once that is done, and the Court has decided that the agreement must be filed, the first part of its powers and duties is over. It is significant that an appeal under section 39 lies only against the decision on this part of sub section Then follows a ministerial act of reference to arbitrator or arbitrators appointed by the parties. That also was perfectly possible in this case, if the parties appointed the arbitrator or arbitrators. If the parties do not agree, the Court may be required to make a decision as to who should be selected as an arbitrator, and that may be a function either judicial, or procedural, or even ministerial; but it is unnecessary to decide which it is. In the present case, the parties by their agreement have placed the power of selecting an arbitrator or arbitrators (in which we include also the umpire) in the hands of the Chairman of the Board of Directors of the East India Cotton Association, Ltd., and the Court can certainly perform the ministerial act of sending the agreement to him to be dealt with by him. Once the agreement filed in Court is sent to the Chairman, the Bye laws lay down the procedure for the Chairman and the appointed arbitrator or arbitrators to follow, and that procedure, if inconsistent with the , prevails. In our opinion, there is no impediment to action being taken under section 20(4) of the . We may dispose of here a supplementary argument that the dispute till now is about the legal existence of the agreement including the arbitration clause, and that this is not a dispute arising out of, or in relation to a cotton transaction. Reference was made to certain observations in Heyman vs Darwins Ltd.(1). In (1) 1041 our opinion, the words of the Bye law "arising out 'of or in relation to contracts" are sufficiently wide to comprehend matters, which can legitimately arise under section 20. The argument is that, when a, party questions the very existence of a contract, no dispute can be said to arise out of it. We think that this is not correct, and even if it were, the further words " in relation to " are sufficiently wide to comprehend even such a case. In our opinion, this argument must also fail. It was contended lastly that the law applicable to the case is the lex loci solutionis, that is to say, the law of British East Africa. Reference was made to a passage from Pollock and Mulla 's Contract Act, Eighth Edn., p. 11, where it is observed as follows: " In ordinary circumstances the proper law of a contract (to use Mr. Dicey 's convenient expression) will be the law of the country where it is made. But where a contract is made in one country and to be performed wholly or in part in another ', the proper law may be presumed to be the law, of the country where it is to be performed." (Auckland Corporation vs Alliance Assurance Co.) (1) The learned authors observe, on the same page further : "But these rules are only in the nature of presumptions, and subject to the intention of the parties, whether expressly declared or inferred from the terms and nature of the contract and the circumstances of the case. " Reliance was also placed on Chitty 's Law of Contract and Rule 148, sub r. (3), Second Presumption, in Dicey 's Conflict of Laws, Seventh Edn., p. 738, on which the statement of the law in Pollock and Mulla is based. Whether the proper law is the lex loci contracts or lex loci solutionis is a matter of presumption; but there are accepted rules for determining which of them is applicable. Where the parties have expressed themselves, the intention so expressed overrides any presumption. Where there is no expressed intention, (1) ; 1042 then the rule to apply is to infer the intention from the terms and nature of the contract and from the general circumstances of the case. In the present case, two such circumstances are decisive. The first is that the parties have agreed that in case of dispute the Bombay High Court would have jurisdiction, and an old legal proverb says, " Qui elicit judicem eligit jus" If Courts of a particular country are chosen, it is expected, unless there be either expressed intention or evidence, that they would apply their own law to the case. See N. V. Kwick Who Tang vs James Finlay & Co. (1). The second circumstance is that the arbitration clause indicated an arbitration in India. of such arbitration clauses in agreements, it has been said on more than one occasion that they lead to an inference that the parties have adopted the law of the country in which arbitration is to be made. See Hamlyn & Co. vs Tallisker Distillery (2), and Spurrier vs La Cloche (3). This inference, it was said in the last case, can be drawn even in a case where the arbitration clause is void according to the law of the country where the contract is made and to be performed. In our opinion, in this case, the circumstances clearly establish that the proper law to be applied is the Indian Law. In the result, the appeal fails, and is dismissed with costs. Appeal dismissed.

A terminal tax on goods imported by road or rail was imposed by the Amravati Municipality by virtue of a notification dated August 10, 1916. This notification exempted silver, bullion and coins from the operation of this tax. When terminal taxes on goods imported by rail were assigned exclusively to the Federal Centre under the Government of India Act, 1935, the municipality was authorised by section 143 to continue to levy the terminal taxes which were actually levied before the enforcement of the Act. Likewise, the terminal taxes imposed by the pre Constitution notification were allowed to be levied and collected even after the Constitution came into force by virtue of article 277 of the Constitution. In 1960, the Municipality levied terminal taxes on three new items, viz., silver and silver jewellery, gold and gold jewellery and precious stones. In a writ petition filed under article 226 of the Constitution, the validity of the newly imposed terminal tax was challenged by the respondent who was carrying on business, within the limits of the Municipality, in gold, silver and precious stones on the ground of legislative incompetence. The writ petition was granted by the High Court and the appellant came to this court after obtaining a certificate of fitness from the High Court. Dismissing the appeal: Held: The newly imposed terminal taxes on silver and silver jewellery, gold and gold jewellery and precious stones had never been imposed by the Municipality and hence it could not be said that those were "being lawfully levied" by the Municipality and "applied to the same purposes" before the commencement of the Constitution as required by article 277 of the Constitution. article 277 was not intended to confer an unlimited legislative power to impose what in effect were new taxes, though of the same type or nature as existed before the Constitution. Rama Krishna Ramanath vs The Janpad Sabha, Gondia, [1962] Supp. 3 S.C.R. 70 and Chuttilal vs Bagmal and Balwantrai, I.L.R. [1956] M.B. 339. referred to.

Appeal No. 1020 of 1966. Appeal by special leave from the judgment and order dated October 28, 1965 of the Allahabad High Court, Lucknow Bench in Second Appeal No. 356 of 1964. R. K. Garg and D. P. Singh, for the appellant. section section Shukla, for respondent No. 1. The Judgment of the Court was delivered by Mitter, J. The only question in this appeal by special leave is, whether there was a violation of Rule 7 of the United Provinces Legislative Department Rules in the appointment of the first respondent, section N. Dixit, as the Superintendent in the Legislative Assembly of the State of Uttar Pradesh in preference to the appellant. The facts are as follows. The appellant was appointed as an Upper Division Assistant (formerly known as superior service assistant) in the Legislative Assembly Secretariat Uttar Pradesh in 1954 on the result of a competitive examination held by the Public Service Commission of the State. He was confirmed in the post of Upper Division Assistant with effect from June 16, 1955. In September 1961 a vacancy occurred in the post of a Superintendent in the Legislative Assembly Secretariat. The first respondent was working as a Treasurer in the same office. According to the appellant, one Uma Shanker was the senior Upper Division Assistant and he was immediately after Uma Shanker in order of seniority. In view of the fact that Uma Shanker had not put in the minimum period of ten years ' service as Upper Division Assistant the Speaker of the Assembly did not think it fit to appoint him as Superintendent but he ignored the appellant 's claim to the post after Uma Shanker and appointed Dixit in violation of the mandatory provisions of Rule 7. The said Rule reads : "Recruitment to the post of the Superintendent shall be made by promotion from the grade of superior service assistants in the Council Department. While due regard will be paid to seniority, no assistant will be appointed to the post of Superintendent unless he is considered qualified in all respects to perform the duties of a Superintendent and full authority will be reserved to appoint the assistant most fitted for the post. If, 423 however, no suitable assistant is available for promotion from amongst the grade of superior service assistants in the Council Department, recruitment may, as a special case, be made from outside. " The appellant filed a suit in the court of the Munsif of South Lucknow impleading the State of Uttar Pradesh, the Speaker, Legislative Assembly of the State and Dixit as defendants therein and praying for a decree for declaration that he should be deemed entitled to the post of Superintendent in the Legislative Assembly with effect from 1st January 1962 and a further declaration that the order dated October 7, 1961 appointing defendant No. 3 as Superintendent was illegal and ultra vires. Written statements were filed on behalf of the defendants. The learned Munsif held in the,plaintiff 's favour. His judgment was upheld in appeal by the Civil Judge Lucknow. The same was reversed in Second Appeal to the High Court. The order of the Speaker passed in October 1961 shows that he had considered the matter carefully before appointing Dixit to the post. The contention of learned counsel for the appellant was 'that the post could not be given to a person who was not a superior service Assistant and the "grade of superior service assistants in the Council Department" meant and included only those persons whose names were borne on the roll of Upper Division Assistants. exhibit 10 the gradation list of permanent ministerial establishment of the Uttar Pradesh Legislative Assembly Secretariat as it stood in April 1956 shows. that the scales of pay of Upper Division Assistants, Translators, Reference Clerk, Treasurers, Stenographer to Secretary and Assistant Librarian were the same, namely, Rs. 160 15 280 EB 20 400. By an order of the Governor dated March 16, 1959 efficiency bars in the scales of pay of all the above posts were uniformly altered and fixed at Rs. 220 and Rs. 300. The High Court took the view that 'grade ' in R. 7 was suggestive of status and it did not refer to a class or a particular class. According to the High Court "All officials working in the same scale of pay in a department, although holding posts with different desig nations, shall be deemed to be holding posts in the same grade, because their rank in the same. department will be the same and equal to one another. " The High Court noted that the dictionary meaning of "grade" was 'rank ' position in scale, a class or position in a class according to the value. ' In our view the High Court came to the correct conclusion in holding that the post was a selection post and seniority by itself was not a sufficient qualification for promotion. The Speaker had to take into consideration the claims of Senior. 424 Upper Division Assistants but under the rules his choice was not limited to the Upper Division Assistants. He could consider the claims of others who were in the same grade, that is to say, enjoying the same scales of pay and pick out the person considered by him to be qualified in all respects to perform the duties of a Superintendent. All officials of the Legislative Assembly Secretariat holding posts in the same scale of pay as Upper Division Assistants were eligible for promotion to the post of the Superintendent Counsel argued that this would be an unreasonable interpre tation of the rule for in that case even a book binder or a chauffeur would have to be considered if their scales of pay were the same as those of Upper Division Assistants. We do not think that anyone would place such an absurd construction on the rule. The appointing authority had to consider not only the eligibility based on the grade (assuming that the rules unreasonably place a chauffeur, a book binder, an accountant and a special duty clerk in the same grade) but also the qualification of the person appointed to perform the duties of the Superintendent and a book binder or a chauffeur would certainly not be eligible for ,consideration. It was said that the educational qualification of the appellant was much superior to that of Dixit and while the appellant had joined service by passing a competitive examination held by the Public Service Commission the first respondent had failed to pass such a test. These are matters on which we can express no opinion. As noted already, the Appointment was made after a thorough scrutiny of representations received and after consideration of the recommendation made by the Secretary ,of the Legislative Department. In the result the appeal is dismissed, but we make no order as to costs. G.C. Appeal dismissed.

According to r. 7 of the United Provinces Legislative Department Rules recruitment to the post of Superintendent shall be made by promotion from 'the grade of superior service assistants in the Council Department '. While regard was to be shown to seniority full authority was reserved to appoint the assistant most fitted for the post and when no suitable assistant was available recruitment might be made from outside. The appellant entered the service of the U.P. Legislative Assembly in 1954 through a competitive examination held by that Public Service Commission of the State. In 1955 he was confirmed in the post of Upper Division Assistant. In September, 1961 a vacancy occurred in the post of a Superintendent in the Legislative Assembly Secretariat. The first respondent who was working as a Treasurer in the same office in the same scale of pay as the appellant was appointed to the said post by the Speaker of the Assembly. Being aggrieved by the rejection of his claim as the senior qualified superior service assistant the appellant filed a suit in the court of the Munsif. The Munsif decreed the suit in his favour but the District Judge in first appeal and the High Court in second appeal decided against him. According to the view taken by the High Court the word 'grade ' in r. 7 meant the scale of pay, and therefore all persons on the same scale of pay as a superior service assistant were qualified for the post of Superintendent in whichever department and under whatever designation they might be working. In appeal by special leave before this court, HELD : The post of Superintendent was a selection post and seniority by itself was not a sufficient qualification. The Speaker had taken into consideration the claims of the senior Upper Division Assistants but under the rules his choice was not limited to the Upper Division Assistants. He could consider the claims of others who were in the same grade, that is to say, enjoying the same scale of pay and pick out the person considered by him to be qualified in all respects to perform the duties of a Superintendent. The High Court bad rightly held that all officials of the U.P. Legislative Assembly Secretariat holding posts in the same scale of pay as Upper Division Assistants were eligible for promotion to the post of Superintendent. [423H 424B] The danger that on the above interpretation persons like book binders and chauffeurs, if they were getting a salary in the game grade as the senior service assistants would be eligible for the post, was imaginary, for in making appointment to a selection post the qualifications of a person would certainly have to be considered. [424D] The fact that the appellant entered service through a competitive examination while the respondent had failed to pass such a test was not one SupCI/69 13 422 which could be taken into consideration by this Court because the appointment was made after thorough scrutiny of representations received and after consideration of the recommendation made by the Secretary of the Legislative Department. [424E]

Civil Appeals Nos. 145/58 and 323/57. Appeals by special leave from the judgment and order dated September 14, 1955, of the Bombay High Court in I.T. References, Nos. 8 and 21 of 1955 respectively. R. Ganapathi Iyer and D. Gupta, for the appellant in C.A. No. 145 of 1958, and respondent in C. A. No. 323 of 1957. N. A. Palkhivala, section N. Andley, J. B. Dadachanji and Rameshwar Nath, for the respondent in C. A. No. 145 of 1958 and appellant in C. A. No. 323 of 1957. , 1960. February, 19. The Judgment of the Court was delivered by KAPUR, J. This judgment will dispose of two appeals, C. A. No. 145/58 and C. A. 323/57. They arise out of the same transaction i.e. Managing Agency Agreement and the result of C. A. No. 323/57 is dependent upon the judgment in C. A. 145158 and we propose to deal with the latter appeal which was argued before us and the former for reasons to be stated later was not pressed. The appellant in C. A. 145/58 is the Commissioner of Income tax, Bombay and the, respondent is the assessee, a registered firm, which on March 8, 1941, was appointed the Managing Agents of Shri Ambica Mills Limited (hereinafter termed the Managed Company) the appellant in C. A. 323/57. The duration of the Managing Agency period was 20 years. By clause (2) of the Managing Agency Agreement it was provided: " (2)(a) The Company shall pay each year to the said Firm either the commission of 5 (five) per cent.on the total sale proceeds of yarn, and of all cloth, manufactured from cotton, silk, jute, wool waste and other fibres and sold by the company, or a commission of three pies per pound avoirdupois on the sale, whichever the said Firm choose to take, and also a commission of 10 (ten) per cent. on the proceeds of sale of all other materials sold by the Company and 10 (ten) per cent. on the bills of any ginning and pressing factories and on any other work done by the Company. 53 (b)If in any year the net profits of the Company shall not be sufficient to enable the Directors, if they think fit, to recommend a dividend of eight per cent. per annum on the capital 'paid up on the ordinary shares for the time being, the same Firm shall be bound to give up from the total amount of commission payable under clause 2(a) hereof such portion thereof as may be necessary to make up the deficit. PROVIDED THAT in no event the amount so given up by the said Firm shall exceed one third of such total amount of commission And by Clause (5) it was provided: " (5) The remuneration payable to the said Firm 'Under Clause 2(a) shall be paid to the said Firm forthwith after the 31st day of December or such other date as the Directors may fix for the closing of the accounts of the Company in each year and after such accounts are passed by the Company in General Meeting ". On December 9, 1950, the Board of Directors of the Managed Company passed a resolution to the effect that the Directors had for some time past been discussing with the Managing Agents the advisability of modifying the terms of the Managing Agency Agreement as to the commission payable under it and that the Managing Agents had agreed to charge 3 per cent. on sales instead of 5 per cent. for the year ending December 31, 1950. A resolution was passed at the Annual General Meeting of the Managed Company on April 22,1951, which was to the same effect. The resolution of the Board of Directors was ratified at an Extraordinary General Meeting of the shareholders of the Managed Company on October 7, 1951, and the same day a formal agreement embodying the terms of the resolution was executed between the Managing Agents and the Managed Company. For the accounting years 1950 and 1951 i.e. assessment years 1951 52 and 1952 53 the Managing Agents were taxed by the Income tax Authorities on the basis that in those two years they had voluntarily relinquished a sum of Rs. 1,69,981 and Rs. 2,10, 53O for the respective assessment years. These sums were added to the income of the Managing Agents for the purpose of income tax. 54 An appeal was then taken to the Income tax Appellate Tribunal and it was held by the Tribunal that the agreement between the Managing Agents and the Managed Company to receive remuneration at 3% on the total sales was a valid one and took effect as from 'January 1, 1950. The second question, whether the commission accrued on the proceeds of every single sale or it accrued only when the assessee firm exercised its option to charge its commission on the total sale proceeds or on the weight of the yarn sold and whether the Managing Agents were to get the amount of commission after the whole profit was determined at the end of the year, was decided in favour of the Managing Agents. A Reference was made to the High Court at the instance of the Commissioner of Income tax and the questions above mentioned were answered in favour of the Managing Agents. This appeal by the appellant has been brought against the judgment of the High Court by special leave. In the connected appeal i.e. C. A. 323/57 by the Managed Company the facts are the same except that the Appellate Tribunal allowed the Managed Company the sum on which the Managing Agents were,to be taxed as allowable deduction. When the Commissioner got the case stated to the High Court the Managing Company also had a case stated. But as the High Court upheld the contention of the Managing Agents the Managed Company did not press its application which was therefore dismissed. The appeal of the Managed Company is brought against that order. In the appeal by the Commissioner of Income tax, i.e. C. A. 145/58, it was argued that according to the terms of the Agency Agreement the Managing Agents were to get the commission on the sales and as the accounts were kept on a mercantile basis, the amount of commission accrued as and when the sales took place and paragraph 5 of agreement was only a machinery for quantifying the amount. It was also argued that the Managing Agents by entering into an agreement with the Mills had voluntarily relinquished a portion of the amount of commission which had accrued to them and therefore the whole of the income from commission which had already accrued was liable to 55 income tax; and reference was made to the cases reported as Commissioner of lncome tax, Madras vs K. R. M. T. T. Thiagaraja Chetty and Co. (1), E. D. Sassoon & Company Ltd. vs The Commissioner of Income tax, Bombay City (2) and to an English case Commissioners of Inland Revenue vs Gardner Mountain & D ' Ambrumnil Ltd. (3). But these cases have no application to the facts of the present case. In the Commissioner of Income tax, Madras vs K. R. M. T. T. Thiagaraja Chetty & Co. (1), the assesses firm was, under the terms of the Managing Agency Agreement, entitled to a certain percentage of profits and in the books of the Company a certain sum was shown as commission due to the assessee firm and that sum was also adopted as an item of business expenditure and credited to the Managing Agents ' commission account but subsequently it was carried to suspense account by a resolution of the Company passed at the request of the assessee firm in order that the debt due by the Firm might be written off. The accounts were kept on mercantile basis and it was held that on that basis the commission accrued to the assessee when the commission was credited to the assessee 's account and subsequent dealing with it would not affect the liability of the assessee to income tax. It was also held that the quantification of the commission could not affect the question as it was not a condition precedent to the accrual of the commission. At page 267 Ghulam Hassan J., observed: " Lastly it was urged that the commission could not be said to have accrued, as the profit of the business could be computed only after the 31st March, and therefore the commission could not be subject to tax when it is no more than a mere right to receive. This argument involves the fallacy that profits do not accrue unless and until they are actually computed. The computation of the profits whenever it may take place cannot possibly be allowed to suspend their accrual. In the case of income where there is a condition that the commission will not be payable until the expiry of a definite period or the making up of the account, it might be (1) ; at 267. (2) ; , 344. (3) , 96. 56 said with some justification, though we do not decide it, that the income has not accrued but there is no such condition in the present case ". This passage does not help the appellant 's case. The question there decided was that the accrual of the commission was not dependent upon the computation of the profits although the question whether it would make any difference where the commission was so payable or was payable after the expiry of a definite period for the making of the account was left undecided . In the case before us the agreement is of a different nature and the above observations are not applicable to the facts of the present case. The next case is E. D. Sasoon & Co., Ltd. vs The Commissioner of Income tax, Bombay City (1). But it is difficult to see how it helps the case of the appellant. If anything it goes against his contention. In that case the assessee Company was the Managing Agent of several Companies and was entitled to receive remuneration calculated on each year 's profits. Before the end of the year it assigned its rights to another person and received from him a proportionate share of the commission for the portion of the year during which it worked as Managing Agent. On the construction of the Managing Agency Contract it was held that unless and until the Managing Agent had carried out one year 's completed service, which was a condition precedent to its being entitled to receive any remuneration or commission it was not entitled to receive any commission. The facts in that case were different and the question for decision was whether the contract of service was such that the commission was only payable if the service was for a completed year or the assessee Company was entitled to receive even for a portion of the year for which it had acted as a Managing Agent. It was held that it was the former. As was observed by Lord Wright in Commissioners of Inland Revenue V. Gardner, Mountain & D Ambrumenil Ltd. (2), " It is on the provisions of the contract that it must be decided, as a question of construction and therefore of law, when the commission was earned The contract in, the present case in para (1) ; , 344. (2) , 96. 57, graph 2 shows that (1) the company was to pay each year; (2) that the Managing Agents were to be paid 5 per cent. commission on the proceeds of the total sales of yarn and of all cloth sold by the Company or three pies per pound ' avoirdupois on the sale, whichever the Managing Agents chose; thus there was an ' option to be exercised at the end of the year; (3) they were also to be paid at 10 per cent. on the proceeds of sales of all, other materials; and (4) the Mills were to pay to the Managing Agents each year after December 31, or such other dale which the Directors of the Company may choose for the closing of the accounts. There was a further clause that if the net profits of the Managed Company, that is, the Mills were not sufficient to enable the Directors to recommend a dividend of 8 per cent. per annum on the paid up capital, then the Managing Agents were bound to forego a portion of their commission upto one third. All these provisions as to payment have to be read together as an indivisible and an integral whole. On a proper construction of this contract, therefore, it is obvious that the Managing Agents were to be paid at the end of the year. They had the option of receiving a percentage on total sales or three pies per pound and this was exercisable at the end of the year. There was also a liability to pay back a portion of the commission in certain contingencies which also could be determined only when the accounts were made up for the year. It is thus clear that there was no accrual of any commission till the end of the year. On this construction of the contract it cannot be held that the commission had accrued as and when the sales took place and that as a result of their agreeing to the modification of the agreement the Managing Agents had voluntarily relinquished a portion of their commission. On the other hand under the original agreement the Managing Agents were entitled to receive commission only at the end of the year and before then the agreement was varied modifying its terms as from the beginning of the accounting year. We are of the opinion, therefore, that the High Court correctly found against the appellant and we therefore dismiss C. A. No. 145 of 1958 with costs. In 8 58 view of this Mr. Palkiwala for the Managed Company did not press C. A. No. 323 of 1957, which is therefore dismissed but the parties will bear their own costs in that case because the result of that appeal is really dependent upon the result in C. A. No. 145 of 1958.

The respondent firm Harivallabhdas Kalidas was appointed the Managing Agent of Shri Ambika Mills Ltd., the appellant in the connected appeal by means of a Managing Agency Agreement the relevant portion of which ran thus: (2)(a) The Company shall pay each year to the said Firm either the commission of 5 (five) per cent on the total sale proceeds of yarn, and of all cloth, manufactured from cotton, 51 silk, jute, wool, waste and other fibres and sold by the company, or a commission of three pies per pound avoirdupois on the sale, whichever the said Firm choose to take, and also a commission of 10 (ten) per cent on the proceeds of sale of all other materials sold by the Company and 10 (ten) per cent on the bills of any ginning and pressing factories and on any other work done by the Company. " And by clause (5) it was provided: " (5) The remuneration payable to the said Firm under clause 2(a) shall be paid to the said Firm forthwith after the 31st day of December or such other date as the Directors may fix for the closing of the accounts of the Company in each year and after such accounts are passed by the company in General Meeting. " Subsequently, at the request of the Managed Company the Managing Agents agreed to charge commission at 3 per cent on sales instead Of 5 per cent for the year ending December 31, 1950 and a resolution to that effect was passed by the Managed Company and a formal agreement to that effect was executed. The income tax Authorities, however, taxed the Managing Agents for two assessment years on the basis that by entering into an agreement with the mills they had voluntarily relinquished certain sums of money as their commission which had accrued to them as income for the purpose of income tax. An appeal was taken to the Income tax Tribunal which held that the agreement between the Managing Agent and the Managed Company to receive remuneration at 3 per cent on the total sale was valid and took effect from January, 1, 1950 and the questions whether the commission accrued on the proceeds of every single sale or only when the assessee firm exercised its option to charge it on the total sale proceeds or on the weight of the yarn sold and whether the Managing Agents would get their commission after the whole profit was determined at the end of the year, were decided in favour of the Managing Agents. The High Court also on a reference made to it at the instance of the Commissioner of Income tax, answered the above mentioned question in favour of the Managing Agents. On appeal by the Incomee tax Commissioner by special leave, Held, that on a proper construction of the agreement, it was clear that there was no accrual of commission till the end of the year and that it did not accrue as and when the sales took place. The Managing Agents were to be paid at the end of the year and by agreeing to the modification of the agreement before then they had not voluntarily relinquished any portion of the commission. Commissioner of Income tax, Madras, vs K.R.M.T.T. Thiagaraja Chetty and Co., ; , E.D. Sasoon and Co. Ltd. vs The Commissioner of Income tax Bombay City, [1955] i S.C.R. 313 and Commissioner of Inland Revenue vs Gardner Mountain and D ' Ambrumenil Ltd., , not applicable.

ivil Appeal Nos. 165166 of 1989. From the Judgment and Order dated 8.12.1986 of the Allahabad 183 High Court in W.P. Nos.6819 of 1985 and 367 of 1986. Civil Appeal Nos.167 to 171 of 1989. From the Judgment and Order dated 8.12.1986 of the Allahabad High Court in W.P. Nos.3463, 367 of 1986, 5521, 5699 and 6819 of 1985. Yogeshwar Prasad, D.D. Thakur, Soli J. Sorabjee and S.N. Kacker, Mrs. Shobha Dikshit, C.P. Lal, Umesh Chandra, Kri shan Chandra, R.K. Mehta, R.C. Verma, Dr. Roxma Swamy, Dilip Tandon, Harish N. Salve, Rajiv Shakdher for the appearing parties. The Judgment of the Court was delivered by VENKATACHALIAH, J. Special Leave Petitions (Civil) 4761 and 4762 of 1985 are by the State of Uttar Pradesh and its officers and SLPs 13298 and 11498 of 1987 by the Lucknow Development Authority, (LDA for short) a statutory body constituted under Sec. 4(1) of the Uttar Pradesh Urban Planning & Development Act, 1973 (Act for short) and its Authorities. Seeking special leave to appeal from the common judgment dated 8.12 1986 of the High Court of Judicature, Allahabad, in Writ Petition Nos. 68 19 of 1985 and 367 of 1986 which were heard and decided along with three other writ petitions i.e. WP 5521 & 5699 of 1985 and 3463 of 1986. Special leave petitions 11515 of 1987 and SLP 11499 of 1987 are by the LDA and its Authorities directed against the said common judgment dated 8.12.1986 in so far as it per tains respectively to W.P. 5699 of 1985 and 5521 of 1985. Special leave petition 11220 of 1987 is by the LDA and its Authorities seeking leave to appeal from the Order in W.P. 3463 of 1986. The Writ petitions before the High Court were pre ferred by the Respondent Lessees Sri D.P. Singh and his mother Smt.Raj Lakshmi Devi, the heirs of Maharaja Patesh wari Prasad Singh in respect of Nazool land in Plot No. 10, Ashok Marg, Hasratganj, Lucknow, under deed dated 7.10.1961 commencing from 15.11.1961 and stated to expire on 31.3.1991. The proceedings arose out of two matters. The first pertained to the legality of the Notice dated 19.11.1985 issued by the State Government in cancelling the lease. The cancella 184 tion was challenged in two writ petitions filed separately by Sri D.P. Singh and Smt.Raj Lakshmi Devi in W.P. 6819 of 1985 and WP 367 of 1986 respectively. The High Court by its common order dated 8.12.1986 allowing the said two writ petitions quashed the said cancellation. In SLPs 4761 and 4762 of 1987 and in SLPs 13298 and 11498 of 1987 the Lucknow Development Authority have assailed this part of the common order. The second area of the controversy arises out of the order dated 19.4.1986 of the Vice Chairman, Lucknow Develop ment Authority, (LDA for short) cancelling the earlier order dated 31.1.1985 granting permission under Sec.15 of the Act in favour of the Respondent Lessees to develop the lease hold property by effecting thereon a multi storeyed building called "Balarampur Towers" comprising of flats etc. This cancellation was challenged by the two Lessees in the joint writ petition No 3463 of 1986. The High Court allowed this WritPetition also and has quashed the impugned order dated 19.4.1986 by which the permission to build earlier granted was sought to be revoked. In SLP 11220 of 1987 the LDA seeks leave to appeal against this part of the order WPs 5699 of 1985 and 5521 of 1985 from which the LDA has preferred SLP 11515 of 1987 and SLP 11499 of 1987 respectively do not relate to or bear upon the substantial points of controversy between the parties. They relate to certain incidental matters. Accordingly SLPs 11515 of 1987 and SLP 11499 of 1987 would be governed by the order made in the main SLPs. Special leave is granted in all the petitions. We have heard Sri D.D. Thakur, learned Senior Counsel for the LDA and its authorities; Sri Yogeshwar Prasad, learned senior counsel for the State of Uttar Pradesh and its offi cers and Sri Soli J. Sorabjee for the respondentLessees. The subject matter of the lease is stated to be an extent of about 9885 Sq.Metres of Nazool land, which was comprised in the lease in favour of a certain Mr. Edwards, granted in the year 1901 for a period of 30 years in the first instance, with provision for renewal for two more terms of 30 years each. On 6.11.1936, there was the first renewal for 30 years effective from 1.4.1931 in favour of a certain Sri Syed Ali Zahir, a transferee from Mr. Edwards. Sri Syed Ali Zaheer assigned his interest under the lease in favour of Maharaja Pateshwari Prasad Singh of Balrampur. On 7.10.1961, there was a second renewal in 185 favour of the present respondents, as the heirs of the said Maharaja Sri Pateshwari Prasad Singh. On 11.8.1981, Respondent lessees, in collaboration with M/s Ambar Builders (P) Limited applied to the LDA under Sec.15(1) of the Act for permission to put up a multi storeyed building on the demised property. The permission was refused on the ground, inter alia, that the proposed construction would bring about a change in the user permit ted under the lease. The lessees preferred an appeal before the Appellate Authority who dismissed their appeal. The RevisionPetition filed by the lessees before the Government under Sec.41(1) of the Act was partly allowed and the Government by its order dated 15.10.1984, remitted the matter to the appropriate authority under the Act for a fresh consideration. On 31.3.1984, during the pendency of the revision petition respondents submitted a modified plan, styling the construction as consisting of "residential flats". After remand, the Nazool Officer is said to have given his "No objection Certificate" dated 2.12.1984 for the grant of permission. The power of attorney holder of re spondents, a certain Sri Pawan Kumar Aggarwai, filed an affidavit dated 28.12.1984 before the appropriate authority of the LDA in regard to their being no impediment under Urban Ceiling Laws and the manner in which the Lessees propose to comply with any order that may eventually be made in that behalf. Finally on 23.1.1985, the Vice Chairman of LDA sanctioned the permission. This was formally communicat ed to the Respondents on 31.1.1985. The lessees were re quired to, and did, deposit Rs. 53,440 with the LDA towards what was called 'Malba ' charges. This marked one stage of the proceedings. The next stage of the matter opened on 24.7.1985 with the issue of directions from Government purporting to be under sec.41(1) of the Act interdicting the progress of the construction as, in the view of the Government, the lessees had violated the conditions of the lease; that the matter would require further examination and that any further construction in the meanwhile would create avoidable hard ship to themselves. In W.P. 3732 of 1985 Respondent Lessees challenged this direction of the Government before the High Court, which allowed the petition and quashed those directions. Thereafter, on 12.8.1985, the Government brought to the notice of the then Vice Chairman of the LDA what, according to Government, were serious illegalities in the sanction of the permission dated 31.1.1985 and indicated to the Vice Chairman that sanction earlier 186 granted on 31.1.1985 be reviewed and revoked. The Vice Chairman, however, did not appear to share the view of Government either as to the existence of any legal infirmi ties in the grant of permission or as to the availability and the justifiability of review of the permission suggested by Government. The disinclination of the Vice Chairman in this behalf was communicated to the Government by letter dated 12.9.1985. This marked yet another stage of the proceedings. The State Government, apparently, was in no mood to relent. By communication No. 5062 37 37 3 1985 dated 15.10.1985 Shri Kamal Pandey, the then Secretary to Govern ment of Uttar Pradesh, wrote to the Chairman, LDA recapitu lating therein the previous proceedings in the matter of grant of permission for the "BalrampurTowers" on the lease land and enumerating what, according to Government, were serious infirmities in, and illegalities resulting from, the permission and as to how the construction violated the terms and conditions of the lease and directed the Chairman, LDA, to initiate immediate proceedings as directed in the said communication. To that letter was annexed, a show cause notice which the Chairman was asked to serve on the Lessees and the Builders associated with the construction. It is necessary to excerpt some portion of that communication. "It has come to the notice of the Govt.that in obtaining the said permission the following illegalities, irregularities, material misrep resentation, fraudulent statements, conceal ments of material facts etc.appear to have been committed. " Referring to the various alleged illegalities, and breaches of covenants and of violations of law which, ac cording to Government, vitiated the grant of permission to build and also render the lease liable to forfeiture. The communication proceeded to direct the Chairman. "Therefore, the Governor is pleased to direct you to serve the enclosed show cause notice in the Maharani, Sri Singh and Builders and obtain their explanation within three days of the service of the notice, give them an opportunity of heating on the fourth day and submit your comments on the explanation along with your recommendations in the light of the above mentioned circumstances along with your report fixing the responsibility on the Vice Chairman of the Lucknow Development Authority and 187 Officers/Officials of the Nazul and building section latest by 28th October, 1985. " The relevant portions of the show cause notice annexed to the said letter and intended to be, and was later, served on the respondents Lessees said: "Therefore, in compliance with the instruc tions of the Govt. Maharani Raj Laxmi Kumari Devi Sahiba and Sri Singh and M/s Arebar Builders (P) Ltd. are hereby given the show cause notice and an opportunity of hearing and they are required to explain within three days of the receipt of this notice as to why the Nazul lease granted in their favour be not cancelled and the unauthorised construction be not demolished for breach of the lease condi tions and violation of the provisions of Urban Land and Ceiling Act and for making fraudulent statement and misrepresentation in respect of the land use in Lucknow Master Plan and on account of continuing constructions on the basis of fraudulently obtained building per mission." "If the desired explanation is not received within three days of the service of this notice by the undersigned, it will be presumed that they have nothing to say in their defence and thereafter action for can cellation of nazul lease and building permit and the removal of the unauthorised construc tions will be taken along with their prosecu tion for fraudulent statement and misrepresen tation as contained in the affidavit. The respondents filed their objections and representations against the proposed cancellation. But Government, by its order No. 5496/37 3/85 dated 19.11.1985, found the explanation unacceptable to it and proceeded to terminate the lease. The operative part of the "notice" terminating the lease reads: "Now therefore on account of the aforesaid breach of the lease conditions the Governor of U.P. does hereby terminate the lease. You are required to hand over posses sion of the land and building standing thereon to Collector, Lucknow, within 30 days of the receipt of this notice otherwise action for eviction will be taken against you at your cost. " 188 This order was, as stated earlier, challenged by the respondentlessees in WP No. 3463 of 1986 before the High Court. So far as the permission for development of the property earlier granted on 31.1.1985 was concerned, separate action was taken by the Vice Chairman of the LDA who issued the notice dated 9.1.1986 to the respondents requir ing them to show cause why the permission should not be cancelled. Respondents objected to the proposed action; but the Vice Chairman found the objections unacceptable and proceeded, by his order No. 363/VC/RBO/86 dated 19.4.1986, to cancel the permission. The operative portion of the said order dated 19.4.1985 reads: "From the above it is clear that the above irregularities, material mis representa tion and fradulent statements have been made along with the building map plan and other documents submitted by Sri D.P. Singh and he has deliberately concealed material facts and mislead the Authority. Therefore, the permis sion dated 31.1.1985 granted to him is being cancelled. " The two Lessees challenged this cancellation before the High Court in two separate writ petitions filed by each of them in WP 68 19 of 1985 and WP 367 of 1986 respectively. The High Court was persuaded to the view that the proceedings initiated and the action taken by the Government and the Vice Chairman of the LDA in the matter, respective ly, of forfeiture of the lease and the cancellation of the permission to build were both infirm in law and required, to be quashed. Accordingly, writ petitions 6819 of 1985 and WP 367 of 1986 were allowed and the order dated 19.11.1985 of the Government purporting to cancel the lease was quashed. Likewise, WP 3463 of 1986 filed jointly by the Lessees was allowed and the show cause notice dated 9.1.1986 as well as the order dated 19.4.1986 of the Vice Chairman cancelling the permission were quashed. We may first take up the appeals of the State Gov ernment and of the LDA assailing the order of the High Court quashing the cancellation of the lease. Sri Yogeshwar Prasad for the appellants 189 submitted that the High Court fell into an error in allowing a matter, which should properly have been the subject matter of a civil suit, to be agitated in proceedings under Article 226 of the Constitution. Learned counsel submitted that the relationship between the parties was one of the Lessor and Lessee; the dispute between them pertained to the question whether there were breaches and non performance of the covenants and conditions of the lease justifying the forfei ture of the lease, and that these matters, pertained to a private law situation and were not appropriately matters for enforcement of public law remedies. Learned Counsel further submitted that the question whether there were breaches of covenants on the part of the lessee involved the construc tion of the terms of the lease deed and required evidence on the matter. Disputes of this nature, learned counsel submit ted, could not be resolved on mere affidavits. Thirdly, Sri Yogeshwar Prasad submitted that on the merits of the conten tions, the High Court should have noticed that even on the facts admitted, there were clear violations of the covenants and conditions of the lease. Learned counsel also submitted that the view of the High Court that a reasonable opportuni ty of being heard had been denied to the respondents was erroneous and that, at all events, no hearing could be contemplated in the context for forfeiture of a lease of this nature. Sri Sorabjee for the respondents contended that the State, even as a lessor, could not act arbitrarily either in the grant or premature termination of the leases of public property and disputes arising in such contexts cannot always be reckoned as private law situations and that, at all events, the threatened exercise of extra judicial re entry by the State, being violative both of the limitations of the powers of the State as lessor under the law of landlord and tenant and of its actions as State, is a matter which re quires to be mandated against. The show cause notice preceding the cancellation of the lease and the decision dated 19.11.1985 to cancel the lease, refer to and rely upon 10 grounds. Grounds 1 to 7 pertain to what the Government consider to be violations and breaches of the terms and conditions of the lease. They pertain to an alleged change of user, to subletting and sub division of the leasehold property. The grounds also refer to the alleged non disclosure of the terms and condi tions of the Memorandum dated 7.7.1984 between the Lessees on the one hand and Messrs Amar Builders Private Limited on the other. The grounds for forfeiture also refer to the likelihood of fraud being practised on the prospective pur chasers of the fiats as to the nature and extent of the lessees ' subsisting interest under the lease and the limitations thereon. 190 We do not propose to go into the merits of these grounds and their sufficiency in law to support the purported for feiture as, in our view, this exercise, having regard to the disputed questions of fact that are required to be gone into in that behalf, are extraneous to proceedings under Article 226 of the Constitution. In regard to the merits of the grounds for forfei ture of the lease, the High Court after an elaborate discus sion of the relevance and tenability of each of the grounds, the learned judge held: "From the comments made by me on the above nine grounds it would be seen that some of the grounds are irrelevant or illusory or based on irrelevant material or on non exist ent facts and some require serious considera tion which has not been given. It has also been seen that while under the lease deed the right of re entry could be exercised only for a breach of the term of the lease in presenti, the lease has been cancelled for a breach in future. In this view of the matter the im pugned order of the State Government cannot be sustained. " Shri Yogeshwar Prasad says that this exercise Was extra neous to a proceeding under Article 226 as the question whether the construction with 39 flats would be one unit or multiplicity of units; whether if third party rights were created by the transfer, or use, of the flat, that would amount to sub letting or assignment; or would, in any other way, violate the terms and conditions of the lease and the like, would not be matters that admit of being satisfactori ly resolved on mere affidavits. Learned counsel submitted that even according to the learned judges there were serious questions to be examined. On a consideration of the matter, we think, in the facts and circumstances of this case, the High Court should have abstained from the examination of the legality or correctness of the purported cancellation ' of the lease which involved resolution of disputes on questions of fact as well. In Express News Papers vs Union of India, [1985] Supp. 3 SCR 382 Venkataramiah, J. in a somewhat analogous situation observed: "The rest of the questions relate truly to the civil rights of the parties flowing from the lease deed. Those questions cannot be effectively disposed of in this petition under Article 32 of the Constitution. The questions arising out of the lease, such as, whether there has been breach of the convenants 191 under the lease, whether the lease can be forfeited, whether relief against forfeiture can be granted etc. are foreign to the scope of Article 32 of the Constitution. They cannot be decided just on affidavits. These are matters which should be tried in a regular civil proceeding. One should remember that the property belongs to the Union of India and the rights in it cannot be bartered away in ac cordance with the sweet will of an Officer or a Minister or a Lt.Governor but they should be dealt with in accordance with law. At the same time a person who has acquired rights in such property cannot also be deprived of them except in accordance with law. The stakes in this case are very high for both the parties and neither of them can take law into his own hands. " Accordingly, we hold that the question whether the purported forfeiture and cancellation of the lease were valid or not should not have been allowed to be agitated in proceedings under Article 226. Sri Sorabjee submitted that great hardship and injustice would be occasioned to the respondents if the State Government, on the self assumed and self assessed validity of its own action of cancellation of the lease, attempts at and succeeds in, a resumption of possession extra judicially by physical force. Sri Sorabjee referred to the notice dated 19.11.1985 in which the Government, accord ing to Sri Sorabjee, had left no one in doubt as to its intentions of resorting to an extra judicial resumption of possession. Sri Sorabjee referred to paras 3.10 and 4 of the order dated 19.11.1985. A lessor, with the best of title, has no right to resume possession extra judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression 're entry ' in the lease deed does not authorise extrajudicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical posSessiOn and forcible dispossession is prohibit ed; a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedigree '. In Bishandas vs State of Punjab, ; this Court said: "We must, therefore, repel the argument based on the contention that the petitioners were trespassers and 192 could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order." Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. " Therefore, there is no question in the present case of the Government thinking of appropriating to itself an extra judicial right of re entry. Possession can be resumed by Government only in a manner known to or recognised by law. It cannot resume possession otherwise than in accord ance with law. Government is, accordingly, prohibited from taking possession otherwise than in due course of law. In the result, the appeals of the State of Utter Pradesh (SLPs 4761 and 4762 of 1987) and of the LDA (SLPs 13298 and 11498 of 1987) directed against the common Judgment dated 8.12.1985 in so far as it pertains to WP 6819 of 1985 and WP 357 of 1986 are allowed and the said two writ petitions are dismissed, leaving the question of the legality and validity of the purported cancellation of the lease and the defence of the lessees open to be urged in appropriate legal pro ceedings, whenever and wherever Government proceeds to initiate action in accordance with law for resumption of possession on the basis of the alleged cancellation or forfeiture of the lease. Any developmental work that may be made by the lessees or at their instance would, of course, be at their own risk and shall be subject to the result of such proceedings. We may now turn to the controversy of the cancella tion or revocation dated 19.4.1986 of the permission earlier granted under section 15 of the "Act", which was the subject matter of writ petition No. 3463 of 1986. The order of revocation was passed by the successor Vice Chairman, Shri Govindan Nair, IAS. The earlier permission was granted by the then Vice Chairman, Shri Babu Ram. A show cause notice dated 9.1.1986 preceding the cancel lation was issued by Vice Chairman, Shri Govindan Nair himself. The order dated 19.4.1986 revoking the permission was challenged before the High Court on four grounds, viz., (a) that the lessees had had no reasonable opportunity of showing cause against the action proposed in the notice dated 9.1.1986 and that an opportunity of an oral hearing had 193 been denied; (b) that the Vice Chairman, under the provi sions of the Act had no authority or power to revoke a permission once granted; (c) that, at all events, the les sees having incurred enormous expenditure on the development work, and having, on the strength of the permission granted earlier on 31.1.1985, altered their position substantially to their disadvantage, the Vice Chairman was estopped from revoking the permission on principles of promissory estop pel; and (d) that the grounds on which cancellation rested were themselves irrelevant and insufficient in law to sup port the cancellation. The High Court accepted grounds at (a), (b) and (d). It did not find it necessary to go into ground (c) in regard to which the High Court observed: "The petitioners also contended that the ViceChairman of Lucknow Development Au thority was estopped from cancelling the sanction to build, more so when it was acted upon . . . . . In the instant case this question need not be gone into detail inasmuch as sanction to build was sought to be cancelled on the ground of sup pression of material facts, fraud and misrep resentation etc. " In regard to the Lessees ', grievance at (a) supra of denial of natural justice, the High Court said: "He even did not give any opportunity of hearing to the petitioner on the said question and passed an order some 2 1/2 months thereaf ter without even touching the objection of the petitioner regarding the competence and juris diction of the Vice Chairman. Some new facts which found place in para 3 of the show cause notice also found place in the order. The Vice Chairman did not make any enquiry into those facts including construction of three buildings in the city itself and as such it became still more necessary on him to give atleast a personal hearing to the petitioner. As hearing has not been given to the petition er although there was enough time for the same, the order passed by the ViceChairman violates the principles of natural justice and cannot be sustained. On the contention (b), the High Court held that the ViceChairman had no power to review the earlier order. The High Court was of the view and this is exactly the opposite of Sri Sorabjee 's contention before us that the Vice Chair man could derive power to 194 review only if he had been empowered by Government by a direction under section 41(1) of the Act. The High Court said: "It has not been pleaded by opposite parties that on 9.1.1986 when the new Vice Chairman took over charge or on any date thereafter the state Government issued any direction to him to issue any show cause notice to the petitioners. There is no other provision in the Development Act conferring powers on the Vice Chairman to review the decision in the matter of sanctioning a plan to build. In the absence of any provision in the Act or any direction issued by the State Government, the ViceChairman had no jurisdic tion or authority to reconsider the decision granting sanction to a plan i.e. permit to build after the same was acted upon and con structions were being made only in accordance with it. " As to ground (d), the High Court examined the merits of each of the grounds and, in substance, came to the conclusion that the grounds were either irrelevant or, otherwise, insufficient in law to support the purported cancellation. The High Court held: "The above discussion shows that even though fraud, misrepresentation and concealment of facts etc. on the part of the petitioners having not been made out, yet such conclusions have been arrived at. The matter essentially hinged on the meaning and interpretation of the word 'Building ' and instead of doing it in the right and correct perspectives, suspicion 'and presumptions have been made in arriving at the conclusions so arrived at. Shri Thakur assailed the conclusions reached by the High Court on all the three questions. Learned counsel urged that the order dated 19.4.1986 itself discloses the extent of the opportunities afforded to the Lessees and there could, therefore, be no question of failure of natural justice in this case. As to the Vice Chairman 's power to cancel or to revoke a permission earlier granted, Sri Thakur submitted that if the permission had been obtained by the lessees by misrepresentation or fraud or, if after obtaining the permission there had been violation of the terms and conditions of the grant, the statutory authority granting the permission has itself the inherent and incidental and supplemental powers to revoke the permission, and that no express grant of power in this behalf was necessary. Shri Thakur submitted that the 195 grounds in this case related not only to fraud and misrepre sentation practised at the time of securing the permission but also violation of the terms and conditions of the grant itself. He further submitted that there was material on record to show that the officers and the authorities of the LDA concerned with the grant of the permission under section 15 had betrayed the trust reposed in them by the statute and were disloyal to the Development Authority and on that ground also the successor Vice Chairman could revoke and rescind the sanction so vitiated by fraud. Shri Thakur relied upon Sec.21 of General Clauses Act for the exercise of the power to revoke. Shri Sorabjee for the Lessees, however, maintained that the Vice Chairman, having regard to the nature of the allegations on which the revocation is purported and which fell in the last category mentioned by Sri Thakur, had no authority in law to cancel the permission. He submitted that the view of the High Court as to the irrelevance and insuf ficiency in law of the grounds on which the purported can cellation was based were effect as they were well known administrative law tests of administrative or statutory discretion, and that appeal to Section 21 of the General Clauses Act to sustain the review was wholly inapposite in this case. Sri Sorabjee submitted that the ' power to cancel or revoke a licence or permission, even assuming that the Statute enabled such cancellation, was clearly distinguisha ble from a power of refusal of an initial grant and that the exercise of the power of cancellation which prejudically affects vested rights partake predominently of quasi judi cial complexion and where, as here, such power is resorted to at the behest of some body extraneous to the power, there would be an abdication and surrender of the statutory dis cretion vitiating the decision. Sri Sorabjee said that the ViceChairman, even granting that he had power to cancel, acted at the behest of the Government which purported to Act under Section 41(1) issued directives on 12.8.1985 and on 15.10.1985 overriding the discretion of the Vice Chairman. To appreciate these contentions in their proper perspective it is necessary to notice the scheme of the Act in relation to the Regulation of Development in the "Devel opment Area" under the Act. The preamble of the Act says: "In the developing areas of the State of Uttar Pradesh the problems of town planning and urban development need to be tackled resolutely. The existing local bodies and other au thorities in spite of their best efforts have not been able 196 to cope with these problems to the desired extent. In order to bring about improvement in this situation, the State Government consid ered it advisable that in such developing areas, Development Authorities patterned on the Delhi Development Authority be estab lished. As the State Government was of the view that the urban development and planning work in the State had already been delayed it was felt necessary to provide for early estab lishment of such Authorities. " Sec. 2(b), (e) and (f) defines "building" "Development" and "Development Area": "2(b) 'building ' includes any struc ture or erection or part of a structure or erection which is intended to be used for residential, industrial, commercial or other purposes whether in actual use or not." "2(e) 'development ', with its gram matical variations, means the carrying out of building, engineering, mining or other opera tions in, on over or under land, or the making of any material change in any building or land, and includes re development." "2(f) 'development area ' means any area declared to be development area under Section 3. " Section 3 provides: "Declaration of development areas: If in the opinion of the State Government any area within the State requires to be developed according to plan it may, by notification in the Gazette, declare the area to be a develop ment area." Section 14(1) provides: Development of land in the developed area. After the declaration of any area as development area under Section 3, no develop ment of land shall be undertaken or carried out or continued in that area by any person or body (including a department of Government) unless permission for such development has been obtained in writing from the (Vice Chair man) in accordance with the provisions of this Act." Section 15(1) provides: "Application for permission Every person or body (other than any department of Government or any local authority) desiring to obtain the permission referred to in Section 14 shah make an application in writing to the (ViceChairman) in such form and containing such particulars in respect of the development to which the application relates as may be prescribed by (bye laws)." Section 15(3) provides that on receipt of an application for permission for development, the Vice Chairman, after making such enquiry as he considers necessary in relation to matters specified in Sec.9(2)(d) or any other matter by order in writing either grant the permission subject to such conditions as he may specify or refuse the permission. The Vice Chairman, for purposes of Section 15(3) is a distinct statutory authority with statutory powers of his own dis tinct from the "Development Authority" which under section 4(2) is a body corporate having perpetual succession and common seal. Section 15(5) contemplates and enables an appeal to the Chairman against an order made by the Vice Chairman refusing permission. Section 37, inter alia, makes an order of the Vice Chairman made under Sec.15 final. Section 41(3) enables the State Government either on its own motion or on an application made to it in this behalf to call for the records of any case disposed of or order passed by the Authority or the Chairman for purposes of satisfying itself as to its legality or propriety and may pass such orders or issue such directions in relation there to as it may think fit. It is relevant to note that an order made by an Vice Chairman under Sec.15(3) of the Act grant ing permission is not one of the orders revisable by Govern ment under section 41(3). Such an order, under the scheme of the Act, is not also appealable but assumes a finality contemplated by Sec.of the Act provides: "Control by State Government The (Authority, the Chairman or the Vice Chairman) shah carry out such directions as may be issued to it from time to time by the State 198 Government for the efficient administration of this Act." This power of the State Government consistent with the scheme of the Act, cannot be construed as a source of power to authorise any authority or functionary under the Act to do or carry out something which that authority or function ary is not, otherwise, competent to do or carryout under the Act. Section 41(1) is not a Super Henry VIII clause for the supply or source of additional provisions and powers not already obtaining under the 'Act '. Sri Sorabjee for the Lessees says that the proceedings for cancellation were initiated at the instance of and compelled by the directives issued by Government under Section 41(1) and that therefore there was a surrender of discretion by the statutory Authority viz., the ViceChair man. Here is a piquant situation. The High Court says that section 41(1) could authorise the Vice Chairman to review the earlier permission but that there being no such direc tive, the Vice Chairman had no power to review. The High Court was in effect, held that the earlier directive dated 15.10.1985 under Sec.41(1) was limited to the cancellation of the lease and for suspension of the building work in the interrugnam as incidental thereto and that the show cause notice dated 9.1.1986 for cancellation of the permission was not pursuant to any directive under Sec.41(1). Thus, the legal position which the High Court assumes as to the scope of Sec.41(1) is precisely what Shri Sorabjee contends against. It appears to us that view of the High Court that in the absence of a directive or authorisation from the Govern ment under Section 41(1), the Vice Chairman, acting as the statutory authority dispensing permissions for development under the Act, cannot revoke or cancel a permission once granted is clearly erroneous. In this case the grant of permission is part of or incidental to the statutory power to regulate orderly development of the "Development Area" under the Act under Regulatory Laws. The power to regulate with the obligations and functions that go with and are incidental to it, are not spent or exhausted with the grant of permission. The power of regulation which stretches beyond the mere grant of permission, takes within its sweep the power, in appropriate cases, to revoke or cancel the permission as incidental or supplemental to the power to grant. Otherwise the planitude of the power to regulate would be whittled down or even frustrated. It is erroneous to equate the powers under sections 14 and 15 of 199 the Act with Judicial power which, in the absence of express provisions, could not enable the review of a judicial order after its exercise on the principle of Functus Officio. In Sardul Singh vs The District Food and Supplies Controller, Patiala and Ors., in writ petition 126/ a statutory order, promulgated under sec 3 of the , contained a provision enabling the cancellation of a 'permit ' under certain circumstances. The contention was that section 3 of the parent 'Act ' itself did not delegate to the subordinate legislative authority to make such a provision for cancellation and, therefore, the provision for cancellation in the subordinate legislature was ultra vires. There was no provision in the Act expressly conferring the power to make a provision for cancellation of the permit. Section 3(2)(d) of the parent Act merely enabled the government to make orders "for Regulating by licences, permits or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity" and Section 3(2)(j) merely enabled Government to make orders for incidental and supplementary matters (empha sis supplied). The question arose whether provisions for cancellation of the permits envisaged in para 10 of the particular statutory order could be said to be relatable to or justified as a matter incidental or supplementary to Regulation. This Court held that the power to cancel was an "incidental and supplementary" matter. It was held: "If a trade in an essential commodi ty like coal is to be regulated by licenses or permits, it is obvious that the power to grant licenses or permits must include the power to cancel or suspend such licenses or permits as an "incidental or supplementary matter"; otherwise, the very purpose of section 3 of the Act would be frustrated. Indeed, the submissions of Sri Thakur on the point contemplate the exercise of the power to cancel or revoke the permission in three distinct situations. The first is where the grant is itself vitiated by fraud or misrepresen tation on the part of the grantee at the time of obtaining the grant. To the second situation belong the class of cases where the grantee, after the grant violates the essential terms and conditions subject to which the grant is made. In these two areas, the power to grant must be held to include the power to revoke or cancel the permit, even in the ab sence of any other express statutory provisions in that behalf. There must, of course be the compliance with the requirements of natural justice and the grounds must be such as would justify such drastic action. This cancellation is a preventive step. The 200 one aspect of the remedial measures is set out in Section 27 of the Act. There may be cases of third kind where the grant may be voidable at the instance of the Development Authority or otherwise entitling the Development Authority to initiate appropriate declaratory or other action to get rid of the effect of the permission. It is true that in exercise of powers of revoking or cancelling the permission is akin to and partakes of a quasi judicial complexion and that in exercising of the former power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the principles of natural justice. The authority cannot permit its decision to be influenced by the dictation of others as this would amount to abdication and surrender of its discre tion. It would then not be the Authority 's discretion that is exercised, but someone else 'section If an authority "hands over its discretion to another body it acts ultra vires". Such an interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the authority. De Smith sums up the position thus: "The relevant principles formulated by the courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conven iently be grouped in two main categories: failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive." But the question is whether the issue of the show cause notice or the subsequent decision to cancel could be said to have been made at the behest or compulsion of Government. Shri Sorabjee refers to paragraphs 17 and 18 of Shri Kamal Pandey 's letter dated 15.10.1985. We are not sure that this is a correct understanding of the position. The High Court did not see any casual connection between the Government 's directive dated 15.10.1985 and the proceedings initiated by the Vice Chairman on 9.1.1986. The High Court was of the view that directive confined itself to the can cellation of the lease and as incidental thereto, required the stoppage of work pending decision whether the lease should be cancelled or not. This infact, was the basis for holding that the Vice Chairman had no power to cancel. Lessees do not rely upon any subsequent directive to the ViceChairman from the Government in the matter of revocation of the permission. The earlier directive dated 12.8.1985 from the Government to the Vice Chairman spent itself out with the then ViceChairman declining to act in accordance with it. There is no material to hold that Sri Govardhan Nair felt himself bound by that directive. Sri Sorabjee 's contention based on an alleged surrender of discretion cannot, therefore, be upheld. It has, therefore, to be held that the finding of the High Court that the Vice Chairman had no competence to initiate proceedings to revoke the permission on the ground that the permission itself had been obtained by misrepresen tation and fraud and on the ground that there were viola tions of the conditions of the grant, appear to us to be unsupportable. The contention of the Respondent Lessees that the show cause notice, dated 9.1.1986 and the cancellation order, dated 19.4.1986, are vitiated by a surrender of a discretion on the part of the Vice Chairman cannot also be held to be well founded. Sri Thakur 's contention to the contrary on both these points would require to be accepted. Now in the end, two more findings of the High Court remain to be considered, viz., on the Lessees ' grievance of denial of reasonable opportunity of being heard and the validity and sufficiency of the alleged grounds to sustain the cancellation. We may consider the latter, first: It not unoften happens that what appears to be a judicial review for breach of natural justice is, in reali ty, a review for abuse of discretion. It is true that amongst the many grounds ' put forward in the show cause notice dated 19.1.1986, quite a few overlap each other and 202 are distinguishable from those urged for the cancellation of the lease itself. Some of the grounds might, perhaps, be somewhat premature. Some of them even if true are so trivial that no authority could reasonably be expected to cancel the permission on that basis. For instance the ground that the permission was applied for and granted in the name of one only of the two lessees would be one such. However, Judicial review under Article 226 cannot be converted into an appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision making process. In Chief Constable of the North Wales Police vs Evans, ; refers to the merits legality distinction in judicial review. Lord Hail sham said: "The purpose "of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court." Lord Brightman observed: " . . Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made . . " And held that it would be an error to think: " . . that the court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself." When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors. In the present case, it is, however, not necessary to go into the merits and relevance of the grounds having regard to the view we propose to take on the point on natural justice. It would, however, be appropriate for the statutory authority, if 203 it proposes to initiate action afresh, to classify the grounds pointing out which grounds, in its opinion, support the allegation of fraud or misre presentation and which, in its view constitute subsequent violations of the terms and conditions of the grant. The grounds must be specific so as to afford the Lessees an effective opportunity of showing cause. On the point of denial of natural justice, we agree with conclusion of the High Court, though not for the same reasons, that there has been such a denial in the proceed ings culminating in the order of cancellation. The show cause notice itself an impalpable congeries of suspicions and fears, of relevant or irrelevant matter and has included some trivia. On a matter of such importance where the stakes are heavy for the Lessees who claim to have made large investments on the project and where a number of grounds require the determination of factual matters of some com plexity, the statutory authority should, in the facts of this case, have afforded a personal heating to the lessees. We, therefore, agree with the conclusion of the High Court that both the show cause notice dated 9 1.1986 and the subsequent order dated 19.4 1986 would require to be quashed, however, leaving it open to the statutory authori ty, should it consider it necessary, to issue a fresh show cause notice setting out the precise grounds, and afford a reasonable opportunity including an opportunity of personal heating and of adducing evidence wherever necessary to the Respondent Lessees In view of this liberty, reserved to the authority, it is necessary to setaside the findings recorded by the High Court on the merits of the grounds. The appeal of the Lucknow Development Authority arising out of SLP 11220 of 1987 is partly allowed and the order of the High Court in WP 3463l 1986 modified accordingly. Appeals arising out of SLPs 11515 of 1987 and 11499 of 1987 of the LDA directed against the common judgment of the High Court in so far as it relates to WP 5699 of 1985 and WP 5521 of 1985 also disposed of in the light of the order is made in the appeals arising out of SLPs 4761, 4762, 13298, 11498 and 11220 of 1987. In the circumstances, we leave the parties to bear and pay their own costs. P.S.S. Appeals allowed partly.

The Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Associated representing the interests of SC/ST employees throughout the country and three Assistant Manag ers of the Bank have filed this petition under article 32 of the constitution of India. Their case is as follows: That Group 'A ' Officers posts are class I posts with Grade Scale I to Grade Scale VII. Criteria for promotion from Grade I to the next Grade and onwards is regulated by a promotion policy dated 17.9.1985. Being a nationalised Bank all policy decisions are controlled and governed by rules framed by the Central Government from time to time. In order to implement the principles enshrined in the Constitution of granting benefit of members of Scheduled Castes and Scheduled Tribes, the Government has evolved the policy of reservation for them in the ratio of 5% and 7 1/2% respectively both at the time of initial recruitment as well as at the time of promo tions in all government establishments. Though this policy was extended to the Banking Industry in 1972 it remained restricted to appointments by direct recruitment only. Later the Central Govt. by its D.C. letter dated 31.12.1977 ad dressed to all the nationalised banks required them to implement the reservation policy to promotional posts also. But the respondent bank did not follow the policy within the Officers cadre on the mistaken impression that the reserva tion in promotional cadres through selection is barred. To this the petitioners submitted that the Home Ministry 's O.M. issued as early as on 26.3.1970 clearly provided 714 reservations for SC & ST Officers ' promotion within class I posts including officers drawing a basic pay of Rs.2,000 per month or less. This was later followed by O.M. dated 23.12.1974 issued by the department of Personnel and Admin istrative Reforms to all the Ministries on the same lines. However the Ministry of Finance, Department of Economic affairs (Banking Division) issued a circular dated 30.5.1981 to all the nationalised banks that there is no reservation for Scheduled Castes and Scheduled Tribes in 'Promotion by Selection ' within the officers cadre; that the concessions to SC & ST employees mentioned in Home Ministry 's O.M. dated 26.3.1970 would be available to them in ' Promotion by Selection ' to posts within the officers cadre upto scale III only and all the banks were required to implement instruc tions contained in Home Ministry 's O.Ms. dated 26.3.1970 and 23.12.1974 with such modifications as may be necessary in the light of the circular dated 30.5.1981. The petitioners have contended that the Central Government wrongly and erroneously interpreted these circulars in taking the view that there was no reservation in the promotional posts within the officers cadre. Finally they say that despite the unequivocal directions from the Govt. of India, Ministry of Finance contained in its letter dated 28.11.1986 to all the nationalised banks clarifying the position in regard to reservations for Scheduled Castes and Scheduled Tribes for promotions and the decision of this Court in Bihar State Harijan Kalyan Parishad vs Union of India & Ors., which applied in all force to the case of the petitioners, the Respondent Bank failed to make reservations within the officers cadre and continues to follow the selection method of promotion which has lead to the filing of this Petition. Allowing the Writ Petition, this Court, HELD: Even though the promotion posts are based on selection method, the rule of reservation will supply to posts within group 'A ' and the benefit of reservation policy to members of SC and ST cannot be denied on the ground that promotional posts are to be filled by method of selection. Government of India committed a clear mistake in not apply ing the principle already decided in Bihar State Harijan Kalyan Parishad 's case to the Syndicate Bank and in not giving it a clear direction this regard. [725G H; 726A] There can be no manner of doubt that the management of the Syndicate Bank was not at fault as they were bound by the instructions and policy laid down by the government of India and in the absence of a clear direction from the Government it was not possible for them to grant relief to the SC/ST employees of the bank. [726B] 715 Though Group 'A ' posts were selection posts still the reservation policy is applicable to such posts and the respondents are directed to compute the backlog of unfilled reserved quota available to SC/ST officers in the promotion al posts with effect from 1.1.1978, the date of introduction of reservation policy in the respondent bank. The respond ents are further directed to grant promotion to the SC/ST employees of the Syndicate Bank with all consequential benefits of salary and allowances from the respective dates they should have been promoted, after applying the roster system in their favour. [726D E] Bihar State Harijan Kalval Parishad vs Union of India & Ors. ; , followed.

Civil Appeal No. 1224 of 1977. Appeal by special leave from the judgment and order dated the 3rd September, 1976 of the Gujarat High Court in Special Civil Appln. No. 1501 of 1974 84 F.S. Nariman, Dr. Y.S. Chitale, K.S. Nanavati, C.R. Gandhi, P.H. Parekh and Miss Vineeta Caprihan for the Appellant. Soli J. Sorabjee, G.N. Desai and M.N. Shroff for Respondent No. 1 G.N. Desai, Prashant G. Desai and S.C. Patel for Respondent No. 2 S.K. Dholakia and R.C. Bhatia for Intervener Surat Municipality. The Judgment of the Court was delivered by GUPTA J. On June 26, 1965 the Surat Municipal Corporation, then called Surat Borough Municipality, declared its intention to make a town planning scheme under section 22 of the Bombay Town Planning Act, 1954 (hereinafter referred as the Act). This was Town Planning Scheme Surat No. 8 (Umarwada). On July 4, 1967 a draft scheme was published which included among other lands an area admeasuring 1,37,961 sq. meters of which appellant as Karta of a Hindu undivided family was the lessee. On May 10, 1968 Government of Gujarat granted sanction to the draft scheme. Before the Town Planning Officer the appellant claimed compensation for deprivation of his right in the land at Rs. 50 per sq. By his order made on November 4, 1971 the Town Planning Officer awarded compensation to the appellant at the rate of Rs. 2.40 p. per sq. ; the total compensation awarded was Rs. 3,31,455. Not satisfied with the decision of the Town Planning Officer the appellant preferred an appeal. Section 34 read with section 32(1) of the Act provides an appeal from the decision of the Town Planning Officer on certain specified matters to a Board of Appeal. Before the Board of Appeal the appellant reduced his claim to Rs. 9.50 p. per sq. The appellant 's grievance was that the compensation awarded was inadequate and further that the apportionment of compensation between the lessor and the lessee was not proper. He also questioned the propriety of reserving such a large area of land for the scheme. The Board of Appeal held that the appeal was not maintainable as the Act did not provide an appeal from a decision of the Town Planning Officer on matters dealt with by him in his order dated November 4, 1971. The appellant then challenged the order of the Board of Appeal before the Gujarat High Court by filing a writ petition in which certain provisions of the Act were also challenged as unconstitutional and it was claimed 85 that the town planning scheme was consequently invalid. The Gujarat High Court dismissed the writ petition agreeing with the Board of Appeal that the appeal was incompetent. The constitutional questions raised in the writ petition could not be decided as Emergency was then in force in the country and rights conferred by Articles 14,19 and 31 of the Constitution on which the appellant 's contentions were based remained suspended at the time. The High Court also relied on the decision of this Court in State of Gujarat vs Shri Shantilal Mangaldas which had upheld the validity of the Act. The appeal before us is by special leave. Mr. Nariman for the appellant submitted that in case we held that the appeal preferred by his client before the Board of Appeal was maintainable he would not press the grounds questioning the constitutional validity of the Act at this stage and the matter should then go back to the Board of Appeal for a decision on the adequacy of the Compensation; if however we found that the Board of Appeal was right in holding that the appeal was not maintainable, he would then urge the grounds challenging the validity of the Act. The question is whether the order of the Town Planning Officer determining the amount of compensation payable to the appellant falls within any of the appealable clauses of section 32(1). To be able to answer the question it will be necessary to examine the various clauses of section 32(1) and also certain other provisions of the Act. The scheme of the Act has been analysed by this Court in State of Gujarat vs Shantilal Mangaldas (supra) and earlier in Maneklal Chhottalal and others vs M.G. Makwana and others; we will not attempt another comprehensive survey of all the provisions of the Act but refer to those of them which have some bearing on the question that falls to be decided. Mr. Nariman drew our notice to the decision of this Court in State of Karnataka vs Shri Ranganatha Reddy where Untwalia, J, speaking for the court said at page 652 of the report that in Rustom Cavasjee Cooper vs Union of India, this Court apparently seeking to explain Shantilal 's case had "in substance" overruled the decision. Even if Shantilal 's case was 86 overruled, that was on another point and the analysis of the scheme of the Act made in Shantilal cannot be questioned. The long title of the Act states that it is an "Act to consolidate and amend the law for the making and execution of town planning schemes". The Act has been made applicable to the State of Gujarat. It is an Act providing for compulsory acquisition of land and payment of compensation for the land taken. Some of the terms and expressions defined in section 2 of the Act are relevant. Section 2 (2) defines "development Plan" as meaning a plan for the development or redevelopment or improvement of the entire area within the jurisdiction of a local authority prepared under section 3. Section 3 requires every local authority to carry out a survey of the area within its jurisdiction and prepare and publish a development plan and submit it to the State Government for sanction. Sub section (4) of section 2 defines local authority as a municipal corporation constituted under the Bombay Provincial Municipal Corporation Act, 1949 or a municipality constituted or deemed to be constituted under the Gujarat Municipalities Act, 1973. Section 2 (9) defines "reconstituted plot" as a plot which is in any way altered by the making of a town planning scheme. Chapter III of the Act provides for the making of town planning schemes. Sub section (2) of section 18 which occurs in this chapter states that a town planning scheme may make provisions for any of the matters specified in clauses (a) to (k) of the sub section. These matters include laying out of land, reclamation of unhealthy areas, laying out new streets of roads, construction and removal of buildings, bridges and other structures, providing for drainage, lighting and water supply, allotment or reservation of land for roads, open spaces, schools, markets and public purposes of all kinds. Clause (1) says that apart from the matters specified, the town planning scheme may provide for "such other matter not inconsistent with the objects of this Act as may be prescribed". Chapter IV which contains section 21 to section 30 bears the heading "Declaration of Intention to Make a Scheme and Making of a Draft Scheme". Under section 22 a local authority may by resolution declare its intention to make a town planning scheme and is required to publish the scheme in the prescribed manner and despatch a copy thereof to the State Government. Section 23 (1) provides that following the declaration of intention to make a scheme, the local authority shall make a draft scheme for the area 87 in respect of which the declaration has been made and publish it in the prescribed manner. Section 25 mentions the particulars that a draft scheme shall contain; they include among other things, the area, ownership and tenure of each original plot; the extent to which it is proposed to alter the boundaries of original plots; and an estimate of the nett cost of the scheme to be borne by the local authority. Sub section (1) of section 26 says that in the draft scheme the size and shape of every reconstituted plot shall be determined; as far as possible, to render it suitable for building purposes and where the plot is already built upon, to ensure that the building complies with the provisions of the scheme as regards open spaces. For the purpose of sub section (1) the draft scheme may contain proposals which are enumerated in clauses (a) to (e) of sub section (2) of the section. We may here refer to clauses (a), (b) and (d): "(a) to form a reconstituted plot by the alteration of the boundaries of an original plot; (b) to form a reconstituted plot by the transfer wholly or partly of the adjoining lands; (c) . . (d) to allot a plot to any owner dispossessed of land in furtherance of the scheme. (e) . . Under section 27, within one month from the date of publication of the draft scheme, any person affected by such scheme may communicate in writing to the local authority any objection relating to such scheme which the local authority has to consider. Section 28 (1) requires the local authority to submit the draft scheme together with the objections to the State Government and at the same time apply for its sanction. Under sub section (2) the State Government may within six months from the date of the submission of the draft scheme either sanction such scheme with or without modifications and subject to such conditions as it may think fit to impose or refuse to give sanction. Chapter V which includes section 31 to section 43 provides for the appointment of the Town Planning Officer and constitution of the Board of Appeal. Within one month from the date on which the sanction of the State Government to the draft scheme is 88 published, the State Government is required under section 31 (1) to appoint a Town Planning Officer. The duties of the Town Planning Officer are enumerated in section 32 (1). The provisions of sections 32, 33 and 34 have a direct bearing on the question of appealability of the Town Planning Officer 's decision, but we think it would be more helpful for appreciating the contentions raised on behalf of the appellant if we referred to certain other provisions of the Act before turning to the aforesaid section in Chapter V. We need only mention here that drawing up the final scheme in accordance with the draft scheme is one of the duties of the Town Planning Officer who is required to forward the final scheme to the State Government for sanction. In Chapter VI section 53 is the only relevant provision. Section 53 lays down: "On the day on which the final scheme comes into force: (a) all lands required by the local authority shall, unless it is otherwise determined in such scheme, vest absolutely in the local authority free from all encumbrances; (b) all rights in the original plots which have been reconstituted shall determine and the reconstituted plots shall become subject to the rights settled by the Town Planning Officer". Chapter VIII deals with "Finance". It contains, inter alia, provisions specifying the principles on which compensation for the land taken is to be determined. This chapter includes section 64 to section 78. Section 64 (1) enumerates in clauses (a) to (f) the sums payable or spent and the expenses incurred by the local authority which are to be included in the costs of a town planning scheme. Clause (d) mentions the sums payable as compensation for land reserved or designated for any public purpose or purposes of the local authority. Clause (f) of section 64 (1) reads as follows: "any amount by which the total of the values of the original plots exceeds the total of the values of the plots included in the final scheme, each of such plots being estimated at its market value at the date of the declaration of intention to make a scheme with all the buildings and works thereon at that date and without references to improvements contemplated in the scheme other than improvements due to the alteration of its boundaries. " 89 Sub section (2) of section 64 provides: "if in any case the total of the values of the plots included in the final scheme exceeds the total of the values of the original plots, each of such plots being estimated in the manner provided in clause (f) of sub section (1), then the amount of such excess shall be deducted in arriving at the costs of the scheme as defined in sub section (1). " Section 65 explains the meaning of increment for the purposes of the Act as follows: "For the purposes of this Act the increments shall be deemed to be the amount by which at the date of the declaration of intention to make a scheme the market value of a plot included in the final scheme estimated on the assumption that the scheme has been completed would exceed at the same date the market value of the same plot estimated without reference to improvements contemplated in the scheme: Provided that in estimating such values the value of buildings or other works erected or in the course of erection on such plot shall not be taken into consideration. " Section 66 (1) states that the costs of the scheme shall be met wholly or in part by a contribution to be levied by the local authority on each plot in the final scheme calculated in proportion to the increment which is estimated to accrue in respect of such plot by the Town Planning Officer. Under sub section (2) of section 66 the "owner of each plot included in the final scheme shall be primarily liable for the payment of the contribution leviable in respect of such plot". Under section 67 the amount by which the total value of the plots in the final scheme with all the buildings and works thereon allotted to a person falls short of or exceeds the total value of the original plots with all the buildings and works thereon of such person shall be deducted from or added to, as the case may be, the contributions leviable from such person, each of such plots being estimated at its market value at the date of the declaration of intention to make a scheme without reference to improvements contemplated in the scheme other than improvements due to the alteration of its boundaries. As Shah J., speaking for the Court in State of Gujarat vs Shantilal Mangaldas and others observed: "(Section 67) is intended to make adjustments between the right to compensation for loss of 90 land suffered by the owner, and the liability to make contribution to the finances of the scheme". Section 69 deals with the compensation payable in respect of any property or right which is injuriously affected by the making of a town planning scheme. The section says: "The owner of any property or right which is injuriously affected by the making of a town planning scheme shall, if he makes a claim before the Town Planning Officer within the prescribed time, be entitled to obtain compensation in respect thereof from the local authority or from any person benefited or partly from the local authority and partly from such person as the Town Planning Officer may in each case determine. Provided that the value of such property or right shall be held to be its market value at the date of the declaration of intention to make a scheme or the date of a notification under sub section (1) of section 24 without reference to improvements contemplated in the scheme". Section 71 deals with the case of an owner of land who is not given a plot in the final scheme and also provides for a case where the amount payable to an owner exceeds the amount due from him. Section 71 is as follows: "If the owner of an original plot is not provided with a plot in the final scheme or if the contribution to be levied from him under section 66 is less than the total amount to be deducted therefrom under any of the provisions of this Act, the net amount of his loss shall be payable to him by the local authority in cash or in such other way as may be agreed upon by the parties". The appellant in the present case was not provided with a plot in the final scheme. Section 87 in Chapter IX empowers the State Government to make rules consistent with the provisions of the Act to provide for all matters not specifically indicated therein. The effect of the final scheme coming into force has been summarized by Shah J., in Shantilal 's case; we may quote here the following extract from page 349 of the report: "On the coming into force of the scheme all lands which are required by the local authority, unless otherwise 91 determined in the scheme, by the operation of section 53 (a) vest absolutely therein free from all encumbrances. The result is that there is a complete shuffling up of plots of land, roads, means of communication, and rearrangement thereof. The original plots are re constituted, their shapes are altered, portions out of plots are separated, lands belonging to two or more owners are combined into a single plot, new roads are laid out, old roads are diverted or closed up, and lands originally belonging to private owners are used for public purposes i.e. for providing open spaces, green belts dairies etc. In this process the whole or parts of a land of one person, may go to make a reconstituted plot, and the plot so reconstructed may be allotted to another person and the lands needed for public purposes may be earmarked for those purposes. The re arrangement of titles in the various plots and reservation of lands for public purposes require financial adjustments to be made. The owner who is deprived of his land has to be compensated, and the owner who obtains a re constituted plot in surroundings which are conducive to better sanitary living conditions has to contribute towards the expenses of the scheme. This is because on the making of a town planning scheme the value of the plot rises and a part of the benefit which arises out of the unearned rise in prices is directed to be contributed towards financing of the scheme which enables the residents in that area to more amenities, better facilities and healthier living conditions". Under the Act the compensation payable to an owner for loss of land has to be determined on the basis of the market value of the land at the date on which the declaration of intention to make a scheme was made. On the question whether the Act specifies a principle of compensation, it is observed in Shantilal 's case at page 357 of the report: "It is true that under the Act the market value of the land at the date of declaration of intention to make a scheme determines the amount to be adjusted, and that is the guiding rule in respect of all lands covered by the scheme. The High Court was, in our judgment, right in holding that enactment of a rule determining payment or adjustment of price of land of which the owner was deprived by the 92 scheme estimated on the market value on the date of declaration of the intention to make a scheme amounted to specification of a principle of compensation within the meaning of Art, 31 (2). Specification of principles means laying down general guiding rules applicable to all persons or transactions governed thereby. Under the Land Acquisition Act compensation is determined on the basis of "market value" of the land on the date of the notification under s.4 (1) of that Act. That is a specification of principle. Compensation determined on the basis of market value prevailing on a date anterior to the date of extinction of interest is still determined on a principle specified. Whether an owner of land is given a reconstituted plot or not, the rule for determining what is to be given as recompense remains the same. It is a principle applicable to all cases in which by virtue of the operation of the Town Planning Act a person is deprived of his land whether in whole or in part". We may now turn to sections 32, 33 and 34 occurring in chapter V. It may be recalled that the appellant 's land was taken for purposes of the scheme but he was not given a reconstituted plot. Section 32 (1) which enumerates the duties of the Town Planning Officer is set out below: "32 (1) In accordance with the prescribed procedure the Town Planning Officer shall (i) after notice given by him in the prescribed manner, define and demarcate the areas allotted to, or reserved, for a public purpose or purpose of the local authority and the reconstituted plots; (ii) after notice given by him in the prescribed manner, determine, in the case in which a reconstituted plot is to be allotted to persons in ownership in common, the shares of such persons; (iii)fix the difference between the total of values of the original plots and the total of the values of the plots included in the final scheme, in accordance with the provisions contained in clause (f) of sub section (1) of section 64; 93 (iv) determine whether the areas used, allotted or reserved for a public purpose of the local authority are beneficial wholly or partly to the owners or residents within the area of the scheme; (v) estimate the portion of the sums payable as compensation on each plot used, allotted or reserved for a public purpose or purpose of the local authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public, which shall be included in the costs of the scheme; (vi) calculate the contribution to be levied on each plot used, allotted or reserved for a public purpose or purpose of the local authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public; (vii)determine the amount of exemption, if any, from the payment of the contribution that may be granted in respect of plots exclusively occupied for the religious or charitable purposes; (viii)estimate the increment to accrue in respect of each plot included in the final scheme in accordance with the provisions contained in section 65; (ix) calculate the proportion in which the increment of the plots included in the final scheme shall be liable to contribution to the costs of the scheme in accordance with the provisions contained in section 66; (x) calculate the contribution to be levied on each plot included in the final scheme; (xi) determine the amount to be deducted from, or added to, as the case may be, the contribution leviable from a person in accordance with the provisions contained in section 67; (xii)provide for the total or partial transfer of any right in an original plot to a reconstituted plot or provide for the extinction of any right in an original plot in accordance with the provisions contained in section 68; 94 (xiii)estimate in reference to claims made before him, after the notice given by him in the prescribed manner, the compensation to be paid to the owner of any property or right injuriously affected by the making of a town planning scheme in accordance with the provisions contained in section 69; (xiv)draw in the prescribed form the final scheme in accordance with the draft scheme:" There is a proviso to section 32 (1) which is not relevant for the purpose of this appeal. Section 33 says: "Except in matters arising out of clauses (v), (vi), (vii), (ix), (x) and (xiii) of sub section (1) of section 32, every decision of the Town Planning Officer shall be final and conclusive and binding on all persons." Section 34 provides an appeal to a Board of Appeal from any decision of the Town Planning Officer under clauses (v), (vi) (viii), (ix), (x) and (xiii). Thus the decision of the Town Planning Officer is final and conclusive in all matters referred to in the various clauses of section 32 (1) except those mentioned in (v), (vi), (viii), (ix), (x) and (xiii). It was claimed on behalf of the appellant that the Town Planning Officer 's decision in the appellant 's case was appealable either under clause (viii) or clause (xiii) of section 32 (1). The Town Planning Officer has a duty under clause (viii) to calculate the increment to accrue in respect of each plot included in the final scheme (which we will refer to hereinafter as the final plot for brevity 's sake) in accordance with the provisions of section 65. Under section 65 increment means the amount by which at the date of the declaration of the intention to make a scheme, the market value of a final plot calculated on the basis as if the improvements contemplated in the scheme had stood completed on that date exceeds the market value of the same plot when taken into account without the improvements. The increment is thus the difference in the market value of the same final plot with the improvements and without the improvements on the aforesaid date. The value of the original plot does not arise for consideration under clause (viii). Rule 17 of the Bombay Town Planning Rules, 1955 sets out the particulars that a draft scheme shall contain in addition to the particulars specified in 95 section 25 of the Act. Clause (v) of rule 17 mentions a "redistribution and valuation statement in Form 'B ' showing the estimated amounts to be paid to, or by, each of the owners included in the scheme". Form B makes it clear that the increment is the difference in value of the same final plot in its developed and undeveloped conditions; Form B keeps the valuation of the original plot distinct from that of the final plot. The appellant 's case therefore cannot fall under clause (viii). Does the case fall under clause (xiii)? Under clause (xiii) the Town Planning Officer is required to estimate the compensation to be paid to the owner of any property or right injuriously affected by the making of a town planning scheme in accordance with the provisions of section 69. Section 69 states that the owner of any property or right which is injuriously affected by the making of a town planning scheme shall be entitled to obtain compensation from the local authority or from any person benefited or partly from the local authority and partly from such person as the Town Planning Officer may in each case determine. It seems obvious that the property or right which is injuriously affected by the making of a town planning scheme is a property or right other than that acquired for the purposes of the scheme. The property or right affected remains with the owner who is entitled to compensation for such injurious affection. When under the Act a plot of land is taken for the purposes of a town planning scheme, it cannot be suggested that land itself is injuriously affected; such a view is unsupportable both as a matter of language and having regard to the scheme of the Act. On behalf of the appellant it was urged that clause (xiii) would cover the case of the appellant if only we read a few words in that clause and that we should do so to avoid injustice being done to the appellant and the owners of land similarly situated. That we are afraid is not possible. We find no compelling reason for restructuring that clause, and taking acquisition of land to mean 'injurious affection ' of the land acquired would be inconsistent with the entire scheme of the Act. We may refer to clause 'fourthly ' of section 23 (1) of the land Acquisition Act, 1894 which requires the court to take into consideration in determining the amount of compensation to be awarded for land acquired under that Act, the damage sustained by the "person interested" "by reason of the acquisition injuriously affecting his other property". The expression "person interested" as defined in section 3 of the Land Acquisition Act means all persons claiming an interest in compensation to be made on account of the acquisition of land under that Act. It is made clear in clause 96 'fourthly ' that the damage is for injurious affection of some property other than the land acquired. The sense in which the expression 'injurious affection ' is used in section 23 (1) of the Land Acquisition Act is the generally accepted meaning of that expression and we find nothing in the Act concerned in this case that suggests that it should be construed differently. It was then argued that if neither clause (viii) nor clause (xiii) was applicable, then there was no clause in section 32 (1) of the Act that covers the appellant 's case. The contention is not correct. The owner of an original plot who is not provided with a plot in the final scheme gets his right to compensation from section 71 of the Act which says that the net amount of loss shall be payable to him by "the local authority in cash or in such other way as may be agreed upon by the parties". The principle for determining the compensation is the same whether an owner of land is given a reconstituted plot or not; compensation is payable on the basis of the market value of the plot at the date of declaration of the intention to make a scheme. In the appellant 's case it would be the value of the original plot and not the final plot. In determining the difference between the total of the values of the original plots and the total of the values of the plots included in the final scheme, the Town Planning Officer under section 32 (1) (iii) has to find out the market value of each of the original plots at the date of the declaration of intention to make a scheme as provided in section 64 (1) (f). Thus the Act contains the necessary provisions for estimating the compensation payable to an owner of land who has not been given a reconstituted plot. We therefore hold that the High Court was right in finding that the decision of the Town Planning Officer determining the amount of compensation in the appellant 's case was not appealable. In the view we take, Mr. Nariman should be allowed to urge the grounds concerning the constitutional validity of the Act. This case may now be placed before a Constitution Bench for hearing. An application has been filed on behalf of the appellant for leave to urge additional grounds; this application may also be considered by the Constitution Bench that will hear this appeal. P.B.R. Appeal dismissed.

Rule 5 (1) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963 classifies the Civil Services of the State into (a) State Services, and (b) Subordinate Services. The Andhra Pradesh Police Service is one of the State services. Rule 2 of the Andhra Pradesh Police Service Rules, 1966 framed under Article 309 of the Constitution sets out three categories of officers constituting the State Service, namely; category l composed of commandants, Andhra Pradesh Special Police; category II which includes Deputy Superintendents of police and Assistant Commissioners of Police other than in category III and category III comprising Deputy Superintendents of Police in various capacities including Assistant Commandants, Andhra Pradesh Special Police. Rule 3 lays down the method and conditions for appointment to posts in the different categories. Appointment as Deputy Superintendent of Police in category II is made by (a) direct recruitment, or (b) recruitment by transfer from Andhra Pradesh Police Subordinate Service, or (c) appointment from category III of this service with the concurrence of the Public Service Commission provided that the number of such appointments does not exceed two in a calendar year. Under Rule 3 (d), "the seniority of the Deputy Superintendents of Police, category II appointed from the posts of Deputy Superintendents of the Police, category III shall be fixed in that category giving them credit for their entire service in the post of the Deputy Superintendents of Police. " Rule 3 (d) thus gives a Deputy Superintendent of Police appointed to category II from category III the benefit of past service in the State Service for the purpose of seniority as against the Subordinate Service appointed Deputy Superintendent of Police in category II by promotion or a new recruit appointed to the same post directly. Some of the Deputy Superintendents of Police in category II who were either recruited directly or "recruited by transfer" to the said posts before the 1966 Andhra Pradesh Police Service Rules came into force challenged the validity of the vires of Rules 3 (d) on the ground that the appointment of a Deputy Superintendent of Police from category III to category II is really by way of promotion and validly the seniority in category II of an officer so promoted can be reckoned only from the date of his appointment to that category II. The writ petition was dismissed by learned Single Judge. In appeal the Division Bench of the High 70 Court held Rule 3 (d) invalid, taking the view that category III personnel are not equivalent to category II personnel and that the former attains the same status only on appointment to category II. Hence this appeal by respondent No. 3 in the writ petition who is a Deputy Superintendent of Police appointed from category III to category II under the 1966 rules. Allowing the appeal, the Court ^ HELD: 1. Rule 3 (d) of the Andhra Pradesh Police Service Rules, 1966 is valid. There is nothing arbitrary or absurd in what Rule 3(d) prescribes as regards the credit regarding the length of the past service for which credit is to be given for the purpose of seniority. Whether or not some credit should be given for past service in such circumstances is a matter of policy resting with Government. That being so, in the absence of anything arbitrary or absurd in the provision, the Court cannot examine the matter and come to its own conclusion about what should be the length of past service in which credit should be given. [75G 76B] Tamil Nadu Education Department Ministerial and General Subordinate Service Association vs State of Tamil Nadu and another. ; , followed. There is no basis to support a claim of superiority for category II in the facts of the case. Rule 3 (a) itself which has not been challenged, treats appointment from category III as distinct from either direct recruitment or promotion. There is no dispute on the following points: (i) categories II and III carry equal pay; (ii) qualifications for direct recruits to both categories are the same; (iii) promotion to either category is from the post of Inspector of Police which is a Subordinate Service and the Inspectors of Police in their respective branches from whom promotions to the two categories are made also enjoy the same scale of pay. The mere fact that there are some differences regarding the duties of the Deputy Superintendents of Police of category II and category III and their promotional avenues do not alter the position. [76E, 74D, 73C G]

Civil Appeal No. 1172 of 1973. From the Judgment and Order dated the 10th April, 1973 of the Punjab & Haryana High Court at Chandigarh in Election Petition No. 1 of 1971. Hardayal Hardy, Bishamber Lal and Mrs. Indira Sahni, for the appellant. H. L. Sibal, Kapil Sibal, P. H. Parekh, Mrs. section Bhandare, Miss Manju Jaitley and section section Kang, for respondent No. 1. The Judgment of the Court was delivered by ALAGIRISWAMI, J. This appeal relates to the election to the Parliament from the Fazilka constituency in Punjab held on 5th March 1971. The Parliamentary constituency consisted of eight assembly constituencies of Malout, Muktsar, Gidderbha, Fazilka, Jalalabad, Abohar, Lambi and Faridkot. The votes were counted on 10th and 11th of March at five different places. The counting of the votes of the Malout Assembly constituency was held on 10th March by Mr. Aggarwal, Assistant Returning Officer, of Muktsar and Gidderbha on 10th and 11th by Mr. Sayal, of Fazilka and Jalalabad on the 10th and 11th by Mr. Mahajan, of Lambi and Abohar on the 10th and 11th 886 by Mr. Ram Lal and of Faridkot on the 11th by Mr. Garg. 6,409 votes were declared invalid and the 1st respondent was declared elected having secured 1,52,677 votes. The appellant obtained 1,47,354 votes. There were six other candidates about whom it is not necessary to refer. A number of allegations were made in the election petition about many irregularities that took place on the date of the polling. It is not necessary to refer to them as the issues concerned with them were not pressed even before the High Court. Only two issues, issue 1 and 4 were considered by the High Court and those are the issues urged before us also. They are: "1. Whether the respondent No. 1 is guilty of corrupt practices specified in paras 19, 20, 22 and 23 and 26 to 29 of the election petition as amended ? If so, what is the effect ? 4. Whether 15000 ballot papers were invalid and were wrongly polled and counted ? If so, with what effect ?" It is also necessary to refer to issues 3 and 6 for they have some relevance in discussing issues 1 and 4: "3. Whether the petitioner is entitled to the scrutiny of the ballot papers alleged to have been illegally rejected and those of the respondent alleged to have been illegally accepted and on that account is entitled to a recount? 6. Whether the allegations made in para 7 of the petition are correct, and if so, what is the effect ?" As issue 6 was not pressed the various allegations of irregularities at the time of polling including collusion by Polling Officers and consequent false voting and stuffing of ballot boxes could not be considered. As issue 3 was not pressed recount cannot be asked for on the allegation of wrong counting of votes that is that the appellant 's votes were wrongly rejected and the 1st respondent 's votes were wrongly accepted. With regard to issue 1 the allegation was that corrupt practice of bribery was committed in the interest of the 1st respondent by his brother Shri Parkash Singh Badal, who was at that time the Chief Minister of Punjab. One of the items of bribery alleged was that large sums of money were distributed to Harijans in the form of contributions towards construction of Dharamshalas for the purpose of inducing them to vote in favour of the 1st respondent. The second allegation was that Shri Parkash Singh Badal directed Mr. Sayal, one of the Assistant Returning Officers, to issue 3,304 gun licences for furthering the prospects of the 1st respondent 's election and that this was a gratification for inducing the electors to vote for the 1st respondent. Similarly, Mr. O. P. Garg, another Assistant Returning Officer was alleged to have issued 485 gun licences in the months of February and March, 1971. Shri Parkash Singh Badal was alleged to have arranged and addressed a number of meetings in various 887 villages promising to help the voters in many ways if they would vote for his brother. There were certain other allegations of corrupt practices but the only ones canvassed before us were those relating to gun licences and grants in respect of construction of Dharamshalas to Harijans. The allegations which relate to issue 4, as found in the petition, were that at least 15,000 invalid and void votes had been included and counted in favour of the returned candidate, which should have been rejected and not counted at all and that in addition at least 3,000 invalid ballot papers which should have been rejected under rule 56 had been wrongly counted as valid votes in favour of the returned candidate. The distinction between 15,000 and 3,000 votes was this: The 15,000 ballot papers were said to consist of (i) spurious ballot papers (ii) ballot papers not bearing serial number or design authorised for use at the particular polling stations, and (iii) ballot papers not bearing booth marks and the full signatures of the Presiding Officer. The 3,000 ballot papers were said to have been so marked as to render it doubtful to which candidate the vote is given, or the ballot papers bore marks with instrument other than the one supplied for the purpose, or ballot papers marked in favour of more than one candidate had been wrongly counted in favour of the returned candidate. No evidence in fact was let in respect of the 3,000 votes. The attack was concentrated on the 15,000 invalid and void votes. In view of issues 3 and 6 having been given up, the effect of which we have earlier referred to, the only question that arises is whether these 15,000 votes should not have been counted at all, whether for the appellant or for the 1st respondent on the basis that they bore neither the stamp nor the signature of the Polling Officer. The whole of the evidence let in was of a uniform type that a number of ballot papers did not bear the signature of the Polling Officer or the stamp of the booth. Indeed the allegation in the petition on this point is "ballot papers not bearing booth marks and full signatures of the Presiding Officer were wrongly counted as valid votes". It is not said that the ballot papers bore neither the mark nor the signature of the Presiding Officer. The rule in question, rule No. 56, was amended in 1971 providing that only a ballot paper which did not contain both the mark and signature would be deemed invalid but even then it is not as though it automatically became invalid. The Returning Officer had to scrutinise it in order to see whether the ballot paper was a genuine ballot paper. This provision was apparently put in because under pressure of work the Polling Officer might have failed either to affix the stamp or his signatur. If the Returning Officer was satisfied that the failure to affix the stamp or the signature was due to the fault of the Polling Officer but the ballot paper was itself genuine he could include it among the valid ballot papers. Therefore, merely by giving evidence that the ballot papers did not contain both the signature and the stamp it would not be established that the ballot paper concerned was not a valid ballot paper. But that is the only type of evidence which has been let in. Apart from this the number 15,000 seems to be a case of wild guess. The appellant 's voting agents were alleged to have kept a note 888 of the number of invalid ballot papers that they had noticed but none was produced. Some of the counting agents gave evidence that they brought it to the notice of the chief counting agent who sat on the dais along with the Assistant Returning Officer at the time of the counting. Neither the counting agents nor the chief counting agent had complained in writing to the Assistant Returning Officer. It is impossible to believe that if there were as many as 15,000 invalid ballot papers, which amount to about two thousand from every assembly constituency they would have kept quiet without raising hell. On both the days of counting an observer deputed by the Election Commissioner had gone round all the places where the votes were counted. No serious infirmities were pointed out to him. One or two ballot papers which did not bear either the signature of the Polling Officer or the stamp were shown to him only in the Lambi constituency and he scrutinised them and found that the serial numbers tallied and he was satisfied about their genuineness. He as well as the various Assistant Returning Officers had offered that if there were any complaints the candidates could ask for a recheck. No such recheck was asked for. It was argued on behalf of the appellant that the recheck offer meant only a check on whether the number of votes had been correctly added. We find it impossible to accept this suggestion. The reference to the checking in the observer 's report shows that the checking meant also scrutiny as to whether the ballot paper was signed by the Presiding Officer. The Returning Officer has also mentioned in his order on the application made by the appellant for a recount that he was asked to specify as to whether in any assembly segment he or any of his agents had asked for the recheck or pointed out any discrepancy in the figures and that the appellant had failed to cite any such specific instance, and that he was also asked as to whether he wanted the recounting of any specific assembly segment but he reiterated that he wanted a total recount. Four of the Assistant Returning Officers, Mr. Sayal, Mr. Ram Lal, Mr. Garg and Mr. Aggarwal have been examined and they did not support the appellant 's case that there were such a large number of invalid ballot papers or that it was brought to their notice even orally. Mr. Ram Lal said that at the most there might be 200 such votes which were objected to; that is in respect of the two constituencies in which he was the Assistant Returning Officer. This would mean that there might have been about one thousand invalid ballot papers at the most and we have already mentioned that 6,409 votes had been declared invalid. We do not know how many of them were ballot papers which did not contain either the signature or the stamp. The way the appellant 's case has been developed is also very interesting. We have pointed out that votes of four constituencies were counted on the 10th and of four other constituencies on the 11th. The first move of the appellant was to send a telegram on the 11th. By that time half the number of votes had been counted and probably more than half because we do not know at what time on the 11th the telegram, exhibit B 2 was sent. Even assuming that nearly half the number of votes had been counted the appellant probably had an inkling of the possibility of his being defeated. In this telegram he re 889 ferred to about fifteen thousand ballot papers which did not contain either the signature of the Presiding Officer or the Polling Officer of the polling station and booth numbers. He also mentioned that about six thousand three hundred votes had been wrongly rejected. Apparently he wanted to imply that they would otherwise have gone in his favour. But his case of six thousand votes which ought to have gone to him, but had been wrongly rejected, had been completely given up later. Another telegram sent on the 13th March 1971 was similar to the telegram sent on the 11th. A similar telegram was sent by the appellant to the General Secretary of the Congress Party as also the Prime Minister. But in the petition given to the Returning Officer asking for a recount on the same day the complaint was that some of the ballot papers did not bear the official stamp on their back as provided by rules and they seem to have been smuggled illegally and the number given in "thousands". Another complaint was that some of the ballot papers did not bear the signatures of the Presiding Officer on the back, which were also "in thousands" and even more than five thousand. So here we do not find the allegation that the ballot papers contained neither the signature nor the stamp. In his petition before the Election Commission asking for recount he mentioned fifteen thousand ballot papers as having been found which bore no distinction mark or signature of the Presiding Officer. He also mentioned the rejection of more than 6,000 votes. As we have already pointed out, there is absolutely nothing on record to show how the figure 15,000 was arrived at. We are, therefore, satisfied that the mention about 15,000 votes, 3,000 votes and 6,000 votes are only steps in the attempt to secure a recount at any cost and to fish for evidence. As we have already pointed out, the allegation in the petition was that 15,000 invalid votes were counted in favour of the returned candidate but in the evidence as well as the arguments it was only claimed that there were 15,000 invalid ballot papers which were counted. There is nothing to show how many of those 15,000 went to the appellant and how many to the 1st respondent. Indeed as we have earlier explained what was asked for was elimination of the 15,000 votes altogether from the counting. The whole thing is mere kite flying. We are therefore, in agreement with the learned Judge of the High Court that the appellant has not succeeded in establishing the allegations covered by issue No. 4. There are a large number of decisions of this Court on the question regarding the circumstances under which a recount can be ordered. It has been recognised in all those decisions that there can never be any hard and fast rule as to the circumstances when an order of recount would be permissible and should always be dependent upon the circumstances of the case. We do not therefore consider it necessary to refer to any of those decisions. Suffice it to say that the facts of this case do not leave even the slighest justification for ordering a recount. Now we come to the question corrupt practice. We shall first of all deal with the grant for construction of Dharamshalas for Harijans. The Punjab Government appears to have set apart a sum of Rs. 50,00,000 for this very purpose. All that is established is that a sum of Rs. 3,00,000 was spent towards the end of the official 890 financial year 1970 71 in the district in which this Fazilka Parliamentary Consituency is situate. Punjab has 11 districts and it cannot therefore be said that this sum is disproportionately large. The anxiety to spend the money towards the end of the financial year is also natural. If the end of the financial year also happens to be the period when an election is going on parties in power naturally bestir themselves to show that they are active in helping the people to get what they want. The election time is the time when people in power as well as ordinary politicians are active in trying to show that they are out to help the people. They address meetings and hold out all sorts of promises. Where a large section of the people are concerned, who only get an amenity which they ought in any case to get and which they get probably a little more easily because it happens to be election time, it cannot be said that the person in authority making that promise and holding out that he would carry out many remedial measures to benefit the people was resorting to bribery or bargaining for votes. It may not amount to setting up a very high standard and it may be very desirable that whatever is done for the people should be done by persons in authority throughout the period of their office. But they naturally are more active at election time than other times. That cannot be said to amount to corruption. We then come to the question of gun licences. It has been pointed out that during the months of January, February and March 1971 Mr. Sayal had issued 3,304 gun licences and Mr. Garg 485 gun licences, the usual number in an ordinary year being about 300. When every explanation offered on behalf of the officials is taken into consideration, the fact remains that an unusually large number of gun licences had been issued during that period. We are satisfied that to some extent at least this amounts to improper use of power. We do not say that this is an abuse or misuse. In fact there is evidence that the proper procedure has been followed in these cases. In one case, for instance, a man who had applied for a gun licence long time back approached the Chief Minister when he had come to the village and he at once told the District Magistrate and the man got his licence. We can see nothing improper in that instance. But the gun licences themselves are issued by the officials and not by the Chief Minister. It also appears that a large number of relatives of the Chief Minister as well as his Mukhtiar e Aam, his maternal uncle, and even the returned candidate had taken interest in the issue of gun licences. It was sought to be proved that the Chief Minister had addressed a number of meetings promising to issue gun licences if they would vote for his brother. But there was no allegation in the election petition relating to the meetings he addressed or his having held out the promise in those meetings that he would issue gun licences if the people voted for his brother. The 1st respondent himself not having had notice of the specific allegation of meetings at which such promises were held out we have left out of consideration the evidence regarding the meetings and the promises held out by the Chief Minister in those meetings as inadmissible. Assuming that it was the returned candidate or his agent that had held out an inducement to get gun licences issued for people who vote 891 for the returned candidate, does it amount to bribery under section 123(1) of the Representation of the People Act ? Bribery is defined thus: "123(1) 'Bribery ', that is to say, (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of in ducing (a) . . . . (b) an elector to vote or refrain from voting at an election, or as a reward to (i). . . . . (ii) an elector for having voted or refrained from voting; (B) the receipt of or agreement to receive, any gratification, whether as a motive or a reward (a). . . . . (b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature. Explanation. For the purposes of this clause the term gratification ' is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of any election and duly entered in the account of election expenses referred to in section 78. " In order to understand the exact implication of the word 'gratification ' it may be useful to refer to another statute which has been in force for over a century, that is, the Indian Penal Code as most legislations tend to folow established precedents. In section 161 of the Code, which deals with bribery, one of the explanations is as follows: "Gratification. " The word "gratification" is not restricted to pecuniary gratification, or to gratification estimaable in money. " Illustration (a) to the section is as follows: "(a) A, a munsif, obtains from Z, a banker, a situation in Z 's bank for A 's brother, as a reward to A for deciding a cause in favour of Z. A has committed the offence defined in this section. " We may also quote section 171 B of the Code and section 171 E which find a place in the Chapter of Offences Relating to Elections, which was inserted in the Code in the year 1920: 892 "171 B. (1) whoever (i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or (ii) accepts either for himself or for any other person any gratification as a reward to exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery: Provided that a declaration of public policy or a promise of public action shall not be an offence under this section. (2) A person who offers, or agrees to give, or offers, or attempts to procure, a gratification shall be deemed to give a gratification. (3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward." "171 E. Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both. Provided that bribery by treating shall be punished with fine only. Explanation. "Treating" means that form of bribery where the gratification consists in food, drink, entertainment, or provision. " It would be noticed that the Explanation to section 123(1) of the Representation of the People Act and the Explanation to section 161 of the Indian Penal Code relating to gratification are similar. In addition, the Representation of the People Act refers to all forms of entertainment and all forms of employment for reward. The employment for reward is covered by illustration (a) to section 161 of the Indian Penal Code. The words "all forms of entertainment" in the Explanation to section 123(1) of the Representation of the People Act apparently refer to offence of treating found in section 171 E of the Indian Penal Code. When Parliament enacted the provision regarding bribery in the Representation of the People Act it should have had before it the comparable provisions in the Penal Code. It is to be noticed that the giving of any gratification with the object of inducing the receiver or any other person to vote is an offence while acceptance of gratification by a person either for himself or for any other person or for inducing any other person to vote is an offence. In other words giving is an offence if paid to the voter or such giving induces another person to vote. It is not giving a gratification in order that he may induce another person to vote that is an offence whereas 893 receipt of a gratification in order to induce another person to vote is an offence. The reason for the distinction between the provision in section 123(1) (A) and 123(1) (B) seems to be this: In the former case a person standing for election has necessarily to have a number of people to work for him and he may have to bear their expenses. That by itself should not be deemed to be bribery. In the latter case when a person takes money offering to induce other people, of course, induce by wrong means, to vote for the person who pays him the money he is really poking his nose into something which is no business of his and that practice should be discouraged. See Kalya Singh 's case(1) and our judgment in Harisingh Pratapsingh Chawda vs Popatlal Mulshanker Joshi & Ors.(2) So far as we are aware it has never been held that the issue of a gun licence amounts to bribery under section 171 B. We are of opinion that the word 'gratification ' should be deemed to refer only to cases where a gift is made of something which gives a material advantage to the recipient. There is hardly any need to say that giving of anything whose value is estimable in money is bribery. A gun licence gives no material advantage to its recipient. It might gratify his sense of importance if he has a gun licence in a village where nobody else has a gun licence. So might the conferment of an honour like Padma Bhushan. A praise from a high quarter might gratify the sence of vanity of a person. But the word 'gratification ' as used in section 123(1) does not refer to such gratifications any more than in section 171 B of the Indian Penal Code. Taking the case of licences: Possibly the grant of a licence which enables a man to do some business and thus make money may confer a material advantage to him. We are not here speaking of licences which are insisted upon merely for regulatory purposes like municipal licences. But a licence given to a person to deal in fertilizers might confer a financial advantage to that person; so might an import licence or an export licence. Such licences differ from licences for regulatory purposes. Arms licence is a licence for regulatory purposes. Its possession gives no material advantage to its possessor. A licence in a prohibition area to deal in liqueur might confer a material advantage to the licensee. But a licence enabling a person to imbibe liqueur in such area gives the licensee no material advantage. Such a licence is only regulatory. We must therefore distinguish between various kinds of licences and hold that where a licence gives a material advantage to the licensee the grant of such licences amounts to a gratification. In that sense the grant of gun licences to voters in the Fazilka Constituency would not amount to bribery. We have discussed this question on the basis that the authority to grant a licence is the returned candidate or his brother the Chief Minister. We have already pointed out that there is no evidence regarding bargaining for votes by promise of gun licences. A bargain for the purposes of this section does not mean that the candidate or his agent makes an offer and the voter accepts it in the sense that he promises to vote. It is enough if the candidate or his agent makes the gift or promise on that condition. If a candidate or his agent pays money to a voter saying that he wants him to vote it is a bargain for the pur 894 poses of this section. It is not necessary that the voter should say that he would vote and thereafter the candidate or his agent should pay the money. Even in such a case the voter after receiving the money might or might not vote. The law regarding bribery in elections in our country has been discussed in various decisions of this Court. In Maganlal Bagdi vs Hari Vishnu Kamath(1) the candidate offered to construct a well in a village if the voters voted for him and not for the rival candidate and money was actually deposited for this purpose and was to await the result of the election. It was held that there was a clear bargain for votes. In Khader Sheriff vs Munnuswami Gounder & Ors.(2)it was observed by this Court that it may be meritorious to make a donation for a charitable purpose but on the eve of an election such a gift may be open to construction that it was made with the intention of buying votes. In Ghasi Ram vs Dal Singh(3) it was held that the gift must be proved to have a direct or indirect connection with votes and this must admit of no other reasonable excuse. In Radha Krishna Shukla vs Tara Chand Maheshwar(4) general promises by Ministers to redress certain public grievances or to erect certain public amenities like hospitals, if elected, were held not to amount to corrupt practice. They were treated as promises of general public action. In Amirchand vs Surendra Lal Jha(5) it was laid down that if a Minister redresses the grievances of a class of the public or people of a locality or renders them any help, on the eve of an election, it was not corrupt practice unless he had obtained promises from the voters in return, as a condition for their help. The promise to grant gun licences would really amount to a redressal of the grievances of a class of the public or rendering them any help. There is no evidence here of obtaining a promise from the voters in return. The observations made in Ghasi Ram 's case (supra) regarding the action taken by a Minister which helps a class of the public may be noticed in this connection: "The position of a Minister is difficult. It is obvious that he cannot cease to function when his election is due. He must of necessity attend to the grievances, otherwise he must fail. He must improve the image of his administration before the public. If everyone of his official acts done bona fide is to be construed against him and an ulterior motive is spelled out of them, the administration must necessarily come to a standstill. The State of Haryana came into existence on November 1, 1966. With an election in the near future, the political party had to do acts of a public nature. The grant of discretionary grants were parts of the general scheme to better community development projects and to remove the immediate grievances of the public. The money was required to be spent in about 3 months ' time. The action of the Minister had often the concurrence and recommendation of his subordinate staff. It is for this reason 895 that the orders about the improvement of the supply of waters were not pressed. They were incapable of being construed against the first respondent. Therefore, emphasis was placed upon the distribution of money. The money was not distributed among the voters directly but was given to Panchayats and the public at large. It was to be used for the good of those for and those against the candidate. No doubt they had the effect of pushinf forward his claims but that was inevitable even if no money was spent, but good administration changed the people 's condition. We cannot, therefore, hold that there was any corrupt practice. If there was good evidence that the Minister bargained directly or indirectly for votes the result might have been different but there was no such evidence. " The issue for decision in Om Prabha Jain vs Abnash Chand & Anr.(1) was similar to the case here in respect of the grants for Dharamshalas for Harijans. It was held that the action of the Minister could not be construed against her and that it was done in the ordinary course of her duties as Minister and there was no evidence that it was, directly or indirectly, part of a bargain with the voters. In Bhanu Kumar vs Mohan Lal(2) it was alleged that the Chief Minister by ordering the covering of a nallah, the construction of a road, the installation of water taps and the grant of pattas to the inhabitants of a colony for construction of houses had made a bargain with the people for votes and thus committed corrupt practice as defined in section 123(1) of the Representation of the People Act. This Court pointed out that ordinarily amelioration of grievances of the public is innocuous and cannot be construed against a candidate who is a Minister but that if there is evidence to indicate that any candidate at the election abused his power and position as a Minister in the Government by utilising public revenues for conferring advantage or benefit on a particular group of people for the purpose of obtaining their votes, different considerations will arise and it may be held to be a corrupt practice within the meaning of section 123(1). In that case it was held that in all the instances relied upon by the appellant the evidence showed that there were long standing public grievances and the Government had from time to time made suggestions and recommendations for redress of the grievances and amelioration of the condition of the people and that it could not be said that on the eve of election there was any sudden or spontaneous outburst of public activity in the shape of 896 diverting money to win electors to the side of the Chief Minister by throwing baits or giving them any particular and specially favoured treatment. These observations apply to the case of grants for Harijan dharamshalas. We are therefore saisfied that the case of both the allegations of corrupt practice there was no gratification offered, that there was no bargaining for votes in the sense we have explained earlier and these issues must also be found against the appellant. The appeal is, therefore, dismissed with costs. V.P.S Appeal dismissed.

In the election to Parliament from a constituency in Punjab the respondent was declared elected. The appellant filed an election petition alleging, inter alia, (i) that at least 15,000 invalid and void votes had been included and counted in favour of the respondent, and (ii) that the Chief Minister of Punjab, who was the brother of the respondent, directed, (a) the distribution to Harijans of large sums of money for construction of Dharamshalas, and (b) the issue of a large number of gun licences, as gratification for inducing voters to vote for the respondent and that thereby, the corrupt practice of bribery under section 123(1), Representation of the People Act, 1951, was committed. The High Court dismissed the election petition Dismissing the appeal to this Court, ^ HELD: (1) On the evidence, the High Court was right in holding that the appellant had not succeeded in establishing the allegation regarding the 15,000 votes. [889F] (a) Rule 56 of the Conduct of Elections Rules as amended in 1971, provides that only a ballot paper which did not contain both the mark and the signature of the polling officer would be invalid. Even then it does not automatically become invalid. If the Returning Officer was satisifed that the failure to affix the stamp or signature was due to the fault of the polling officer but the ballot paper was itself genuine he could include it among the valid ballot papers, because, under pressure of work, the polling officer might have failed either to affix the stamp or his signature. [887F H] (b) The evidence adduced on behalf of the appellant is not consistent as to the ground of invalidity of the ballot papers; as to how the number of 15,000 was arrived at; and as to whether they were counted in favour of the respondent or both the appellant and the respondent. [889E F] (c) There cannot be any hard and fast rule as to the circumstances when an order of recount would be permissible and it always depends upon the circumstances of the case. On the facts of the present case, there is not the slightest justification for ordering a recount. [889G H] (2) In the case of both the allegations regarding Dharamshalas and gun licences, there was no gratification offered and there was no bargaining for votes, and hence there was no corrupt practice. [896B] (a) The word 'gratification ' in section 123(1) should be deemed to refer only to cases where a gift is made of something which gives a material advantage to the recipient. There is a distinction between licences which give a material advantage and those which do not. For example, a licence in a prohibition area to deal in liqueur confers a material advantage on the licensee, whereas a licence enabling a person to imbibe liqueur in such an area gives him no material advantage. It is only the grant of the former that might amount to gratification. Arms licence is a licence for regulatory purposes. Its possession give no material advantage to its possessor. [893C G] (b) To constitute the corrupt practice of bribery under section 123(1) there must be a bargain for votes. But a bargain for the purposes of the section does not mean that the candidate or his agent makes an offer and the voter accepts it in the sense that he promises to vote. It is not necessary that the 885 voter should say that he would vote and that thereafter only the candidate or his agent should pay the money. It is enough if the candidate or his agent makes the gift or promise on that condition. [889G 890A] (c) In the present case, the State Government had set apart a sum of Rs. 50 lacs for the purpose of construction of Dharamshalas for Harijans. A sum of Rs. 3 lacs was spent towards the end of the financial year, in the district in which this particular parliamentary constituency was situate. Punjab has 11 districts and it cannot, therefore, be said that, the amount is disproportionately large. [889H 890A] (d) The anxiety to spend the money towards the end of financial year is also natural. [890A B] (e) It may not be setting up a high standard and it may be very desirable that whatever is done for the people should be done by persons in authority throughout the period of their office and not when election time is approaching. But where a large section of the people get an amentiy which they ought, in any case to get, and which they got probably a little more easily because it was election time, it cannot be said that the person in authority making a promise and holding out that he would carry out many remedial measures to benefit the people was resorting to bribery or bargaining for votes. [890B D] (f) The issue of the unusually large number of gun licences may be an improper use of power. But, there is no evidence regarding bargaining for votes by the promise of gun licences. [890D G, 893G] (g) Maganlal Bagdi vs Hari Vishnu Kamath, Khadar Sheriff vs Munnuswami Gounder & Ors. A.I.R. 1955 S.C. 775, Ghasi Ram vs Dal Singh ; , Radha Krsihna Shukla vs Tara Chand Maheshwar , amirchand vs Surendra Lal Dha E.L.R. 57, Om Prabha Jain vs Abnash Chand & Anr. ; ,Bhanu Kumar vs Mohan Lal ; , referred to.

ivil Appeal No. 4499 of 1986. From the Judgment and Order dated 11.8.1986 of the Punjab and Haryana High Court in R.S.A. No. 974 of 1985 and Civil Misc. No. 1034 C of 1985. Harbans Lal, Dr. Meera Agarwal, (N.P.) and R.C. Mishra for the Appellant. S.K. Mehta, Aman Vachher and Atul Nanda for the Respond ents. The Judgment of the Court was delivered by R.M. SAHAI, J. Disinherited daughter, under a Will alleged to have been executed by her father one day before his death bequea 815 thing all his property in favour of sons of her only sister, has assailed validity of orders of three courts below for failure to apply the rule that presumption of due execution of a pious and solemn document like Will stood rebutted due to existence of suspicious circumstances which the propound er could not rule out specially when he had taken active part in its execution. Soft cornor for grand children or likeability for a son or daughter or their issues is not uncommon to our society. Rather at times it becomes necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family. But when disputes arise between heirs of same degree, and the beneficiary even chooses to deny the blood ties, and that too unsuccessfully, then court 's re sponsibility of performing its duties carefully and pains takingly multiplies. Unfortunately it was not properly comprehended by any of the courts, including the High Court which was swayed more by happy marriage of appellant, a consideration which may have been relevant for testator but wholly irrelevant for courts as their function is to judge not to speculate. Although freedom to bequeath one 's own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposing state of mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was dispos ing and persons who were to be beneficiaries of his disposi tion. Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a Will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act. Taking active interest by propounder in execution of Will raises another strong suspicion. In H. Venkatachalliah vs N. Themmajamma; , it was held to render the Will infirm unless the propounder cleared the suspicion with clear and satisfactory evidence. Mere execution of Will, thus, by producing scribe or attesting witness or proving genuiness of testator 's thumb impressions by themselves was not sufficient to establish validity of Will unless suspi cious circumstances, usual or special, are ruled out and the courts ' conscience is satisfied not only on execution but about its authenticity. See Kalyan Singh vs Smt. Chhoti & Ors., [1989] Judgment Today page 439. Coming now to facts it has been found by all the three courts below that testator was a migrant from West Pakistan who after migration resided in village Rupena, was ill for sometime and lived with his 816 daughter and her sons who are the beneficiaries six months prior to his death. It was further found that appellant was also one of the daughters. No finding was recorded that she or her sons had any sore or sour relations with testator. But the most important finding was that even though the testator could sign yet he put his thumb mark on it. It was found to be genuine. The execution was thus held beyond doubt. But it was sufficient to put the courts on alert specially when the professional scribe fetched by benefici ary 's father admitted that when he reached beneficiary 's residence where the Will was executed, he found testator covered with a quilt in the afternoon of August with whom he did not talk nor enquire about his health. Unfortunately none of the Courts paid any attention to these probably because they were swayed with due execution even when this Court in Venkatachalliah 's case (supra) had held that, proof of signature raises a presumption about knowledge but the existence of suspicious circumstances rebuts it. Importance of these aspects would have become apparent if they had examined the Will which speaks for itself but which was taken for granted. Relevant part of it is extracted below: "They served me with money and the core of their heart. I am happy with their service. Therefore I make this Will without any pressure or influence that during my life time I shall be owner of all my property both moveable and immovable i.e. land, house etc. After my death my entire property, land, houses, shops, factory, machinery, residential house, resi dential goods, deposit in Bank or Post office (i.e. whatever is in my name in Punjab or any part of India, it will be in the ownership of and in possession of my grand sons (daugh ters/sons) Harmesh Singh, Mohan Lal, Sohan Lal son of Gurdev Singh son of Raunaq Singh in equal shares. No body else who may be my near relations or distantly related will have any right in my property". What strikes immediately is professionalism of the recital. Grave doubt arises if recital of each and every item which could be visualised, was as a result of professional exper tise or the old man was so unwell and died on the next day that he could not speak resulting in speculative narration of property depending on imagination what he must have been possessed of. Mention of house, factory, machinery and bank deposit was meaningful. House had already been sold. No evidence was led that he was possessed of another house or that he had any factory or machinery or bank deposits. Explanation of learned counsel that omission was as the respondent had challenged the very relation 817 ship of appellant could not remove the suspicion created by the recital that bequest was made not by an independent man after understanding or on his dictation, but was work of a scribe or beneficiary 's father who did not take any chance and attempted to rope in every possible property that could have been conceived of. Happy marriage or financially well settlement of appellant could not add to genuineness of Will. The High Court in recording this finding, completely misdirected itself. More so, when no finding of dire circum stances of respondent to help out of which testator dis inherited the other daughter was recorded by any courts. Ratio in Malkani vs Jamadar, AIR 1987 SC 767 was relied on to dissuade this Court from interfering, both, because the finding that Will was genuine, was a finding of fact and omission to mention reason for dis inheriting the daughter or taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capac ity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered. Property in Malkani 's case (supra) was land. Beneficiary was nephew as against marned daughter. Anxiety in village to protect landed property or agricultural holdings from going out of family is well known. Even though it cannot be said to be hard and fast rule yet when dis inheritance is amongst heirs of equal degree and no reason for exclusion is dis closed, then the standard of scrutiny is not the same and if the courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review. Although this Court does not normally interfere with findings of fact recorded by courts below, but if the find ing is recorded by erroneous application of principle of law, and is apt to result in miscarriage of justice then this Court will be justified in interfering under Article 136. For the reasons stated above, the appeal succeeds and is allowed. The order and judgment of all the three courts below, are set aside and the suit filed by the appellant for declaration that the Will executed by her father was in valid, shall stand decreed. The appellant shall be entitled to its costs. G.N. Appeal al lowed.

The accused petitioners were charged under section 302 and 307 read with Sections 147, 148 and 149 of the Indian Penal Code and Section 37 of the Bombay Police Act, 1951. Subsequently they were also charged under section 3 of the Terrorist and Disruptive Activities (Prevention) Act. They moved the Designated Court for grant of bail contending that the provisions of the 1987 Act were wrongly and mali ciously invoked and the Designated Court held that section 3 of the Act was inapplicable. The State of Maharashtra has preferred an appeal to this Court against the said order of the Designated Court. Since the accused were directed to approach the regular court, they moved bail applications before the Sessions Judge, Ahmadnagar which were rejected. Thereafter, they approached the High Court and during the pendency of their bail applications before the High Court, the prosecution submitted a charge sheet against them in the Designated Court under section 3 of the 1987 Act. Conse quently the High Court rejected their bail applications and the accused again approached the Designated Court for bail. The Designated Court again held that the material 634 placed before it and the statement recorded by the Investi gating Officer did not disclose the commission of an offence under section 3 of the Act. Accordingly, it discharged the accused under section 227 of the Code of Criminal Procedure, 1973 and transferred the case to court of Sessions for trial of other offences under the Penal Code and the Bombay Police Act. Against this order of the Designated Court, two appeals have been filed in this Court; one by the deceased 's father and the other by the State. After transfer of their case to the regular court. the accused persons approached the High Court for bail which was rejected. The accused persons have filed a Special Leave Petition in this Court against the High Court 's order refusing the bail. Dismissing the appeals and disposing of the petition, this Court. HELD: 1. A mere statement by the accused persons to the effect that the show of violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under section 3(1) of the Act. That may indeed be the fail out of the violent act but that cannot be said to be the intention of the perpetrators of the crime. [646H; 647A] 1.1 While invoking a criminal statute, such as the Terrorist and Disruptive Activities (Prevention) Act,1987, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investiga tion that facts emerging therefrom prima facie constitute an offence within the letter of the law. [644F] 1.2 In the instant case it is clear from the statement of the accused persons that their intention was to liquidate rivals and thereby achieve the objective of gaining suprema cy in the underworld. The consequence of such violence is bound to cause panic and fear but the intention of commit ting the crime cannot be said to be to strike terror in the people or any section of the people. Therefore, the Desig nated Court was fully justified in taking the view that this was a case of inter gang rivalry only and that the material placed on record and the documents relied on did not prima facie disclose the commission of the offence punishable under section 3(1) of the Act. [647D E] 2. Section 12(1) of the Terrorist and Disruptive Activi ties (Prevention) Act, 1987 empowers the Designated Court to try any offence punishable under any other statute along with the offence punishable under the Act if the former is connected with the latter. That, however, does not mean that even when the Designated Court comes to the con 635 clusion that there exists no sufficient ground for framing a charge against the accused under Section 3(1) of the Act it must proceed to try the accused for the commission of of fences under other statutes. Thai would tantamount to usurp ing jurisdiction. Section 18, therefore, in terms provides that where after taking cognizance of any offence the Desig nated Court is of the opinion that the offence is not tri able by it, it shall, notwithstanding that it has no juris diction to try such offence, transfer the case for the trial of such offence to any Court having jurisdiction under the Code, Therefore, when the Designated Court came to the conclusion that there was no prima facie evidence to frame a charge under section 3(1) of the Act, it was justified in transferring the case to the Court of Sessions, which alone had jurisdiction under the Code. The course adopted by the Designated Court in transferring the case to the Sessions Court for trial of offences under other statutes is clearly in keeping with section 18 of the Act. [647F H; 648A C] 3. Statutes which impose a term of imprisonment for what is a criminal offence under the law must be strictly con strued. [644C] Usmanbhai Dawoodbhai Memon & Ors., vs State of Gujrat, ; referred to. 3.1 When a statute provides special or enhanced punish ments as compared to the punishments prescribed for similar offences under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore. when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend cover by the express language of the statute are not roped in by stretching the language of the law. But that does not mean that the judicial officer called upon to decide whether or not a case for flaming a charge under the Act is made out should adopt a negative attitude. He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him. [644G H; 645A] 4. The Court while considering whether to discharge the accused or to frame a charge against him i.e. at the stage of sections 227 228 of the Code of Criminal Procedure, 1973 is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face. value disclose the existence of all the ingredients constituting the alleged offence. Since the Trial Court is 636 at the stage of deciding whether or not there exists suffi cient grounds for framing the charge, its enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage it may sift the evidence for that limited purpose but it is not required to marshal the evidence with a view to separating the grain from the chaff. All that it is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose it must weigh the material on record as well as the documents relied on by tile prosecu tion. [643E; 641F G] State of Bihar vs Ramesh Singh, ; ; Union of India vs Prafulla Kumar Samal & Anr., ; and Supdt. & Remembrancer of Legal Affairs, West Bengal vs Anil Kumar Bhunja & Ors., ; , referred to.

ivil Appeal No. 161 of 1952. Appeal from the Judgment and Order dated the 18th May, 1951, of the High Court of Judicature at Calcutta (Chakravartti and Das Gupta JJ.) in its Special Jurisdiction (Income tax) in Income tax Reference No. 63 of 1950. N. C. Chatterjee (section N. Mukherjee, with him) for the appellant. C. K. Daphtary, Solicitor General for India (O. N. Joshi, with him) for the respondent. October 8. The Judgment of the Court was delivered by BHAGWATI J. This is an appeal from the judgment and order of the High Court of Judicature at Calcutta on a reference made by the Income tax Appellate Tribunal under Section 66(1) of the Indian Incometax Act (XI of 1922). 197 The appellant is a banking company carrying on business at, among other places, Calcutta and Allahabad. On the 15th March, 1946, the appellant executed a deed by which it purported to create a trust for the payment of pensions to the members of its staff. The deed declared that a pension fund had been constituted and established. It then recited that a sum of Rs. 2,00,000 had already been made over to three persons who were referred to as the "present trustees" and proceeded to state that the fund would consist in the first instance of the said sum of Rs. 2,00,000, and that there would be added to it such further contributions that the bank might make from time to time, though it would not be bound to make such contributions. In the course of the accounting year 1946 47, the bank made a further payment of Rs. 2,00,000 to this fund. In its assessment for the assessment year 1947 48 the appellant claimed deduction of that sum of Rs. 2,00,000 under section 10 (2) (xv) of the Act on the ground that it was an item of expenditure laid out or expended wholly and exclusively for the purposes of its business. The Income tax Officer, the Appellate Assistant commissioner and the Income tax Appellate Tribunal rejected this claim of the appellant and the Income tax Appellate Tribunal at the instance of the appellant stated a case and referred for the consideration of the High Court the following question : "Whether in the facts and circumstances of this case, the Income tax Appellate Tribunal was right in disallowing Rs. 2,00,000 as a deduction under section 10 (2) (xv) of the Indian Income tax Act. " The High Court answered the question in the affirmative and hence this appeal. Though several contentions were sought to be raised by the appellant as well as the Income tax authorities before the High Court as arising from the question, the only contention which was canvassed before the High Court and was held to be determinative of the enquiry before it was whether the deed of trust dated 27 198 the 15th March, 1946, was valid. On the construction of the several provisions of the deed of trust the High Court held : "I am of opinion that in view of these provisions of the trust deed coupled with the uncertainty as regards the beneficiaries and the absence of any obligation to grant any pension, no legal and effective trust was created, and the so called trust must be held to be void," It further held that even if the ownership of the money had passed over to the trustees, still the further provision regarding the application of the money to the payment of pensions being entirely ineffective and void, the money cannot be said to have been expended for the purpose of the business, and that therefore was not an expenditure or an expenditure for the purposes of the business within the meaning of section 10(2)(xv) of the Act. This was also the only contention urged before us by Shri N. C. Chatterjee appearing on behalf of the appellant. Section 3 of the Indian Trusts Act (II of 1882) defines a trust as an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner. The person for whose benefit the confidence is accepted is called the "beneficiary". Section 5 in so far as it is material for the purpose of this appeal says that no trust in relation to movable property is valid unless declared as aforesaid (i.e., by a non testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee) or unless the ownership of the property is transferred to the trustee. Section 6 of the Act provides that subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts. . . (c) the beneficiary. . The validity or otherwise of the trust in question has got to be determined with reference to the above sections of the Indian Trusts Act, 199 The deed of trust provided in clause 5 that the income of the fund if sufficient and if the income of the fund shall not be sufficient then the capital of the fund shall be applied in paying or if insufficient in contributing towards the payment of such pensions and in such manner as the bank or such officers thereof as shall be duly authorised by the bank in that behalf shall direct to be paid out of the fund. Clause 7 stated that the fund was established for the benefit of retiring employees on the European and Indian staff of the bank to whom pensions shall have been granted by the bank. Clause 8 provided that any officer on the European staff of the bank who had been in the service of the bank for at least twenty five years and any officer or other employee on the Indian staff of the bank who had been in the service of the bank for at least thirty years might apply to the bank for a pension, and that in special circumstances the bank might grant pensions to employees who had not completed the respective periods of service above mentioned. Clause 9 provided for the withdrawal, modification or determination by the bank of any pension payable thereunder when in its opinion the conduct of the recipient or the circumstances of the case justified it in so doing and the trustees were bound forthwith to act upon any directions of the bank or of any officers thereof duly authorised by the bank in that behalf. Clause 11 invested the bank with discretion in fixing the amount of each pension and in making any modification therein but without prejudice to such discretion declared what were the pensions which it was contemplating would be payable to recipients qualified under the provisions of clause 8 of the deed. Clause 18 authorised the bank from time to time by instrument in writing under its common seal with the assent in writing of the trustees to alter all or any of the regulations contained in the deed for the time being relating to the fund and make new regulations to the exclusion of or in addition to all or any of the regulations for the time being relating to the fund and for the purposes of that clause all the provisions contained in the deed were deemed to be the regulations in relation to the fund. ' 200 On a consideration of the provisions of the deed of trust above set out it is clear that the bank or its officers duly authorised in that behalf were constituted the sole authorities to determine what pensions and in what manner the same should be paid out of the income of the fund. The fund was declared to have been established for the benefit of the retiring employees to whom pensions shall have been granted by the bank. Officers of the staff who were qualified under clause 8 were declared entitled to apply to the bank for a pension. But there was nothing in the terms of the deed which imposed any obligation on the bank or its officers duly authorised in that behalf to grant any pension to any such applicant. The pension if granted could also be withdrawn, modified or determined under the directions of the bank or any officer of the bank duly authorised in that behalf and such directions were binding on the trustees. The regulations in relation to the fund could also be altered and new regulations could be made to the exclusion of or in addition to all or any of the regulations contained in the deed of trust. It was open under the above provisions for the bank or its officers duly authorised in that behalf to grant no pension at all to any officer of the staff who made an application to them for a pension and also to withdraw, modify or determine any pension payable to such officer if in their opinion the conduct of the recipient or the circumstances of the case should justify them in so doing. The whole scheme of the deed invested the bank or its officers duly authorised in that behalf with the sole discretion of granting or of withdrawing, modifying or determining the pension and it was not at all obligatory on them at any time to grant any pension or to continue the same for any period whatever. The beneficiaries therefore could not be said to have been indicated with reasonable certainty. What is more it could also be validly urged that there being no obligation imposed upon the trustees no trust in fact was created, even though the moneys had been trans ferred to the trustees. Shri N. C. Chatterjee however urged that the power conferred upon the bank or its officers duly authorised 201 in that behalf was a power in the nature of a trust, that there was a general intention in favour of a class and a particular intention in favour of individuals of a class to be selected by them and even though the particular intention failed from the selection not being made the court could carry into effect the general intention in favour of the class and that therefore the trust was valid. He relied in support of this contention on Brown vs Higgs(1) and Burrough vs Philcox(2). The position in law as it emerges from these authorities is thus summarised by Lewin on Trusts, Fifteenth fxEdition, page 324 : "Powers, in the sense in which the term is commonly used, may be distributed into mere powers, and powers in the nature of a trust. The former are powers in the proper sense of the word that is not imperative, but purely discretionary; powers which the trustee cannot be compelled to execute, and which, on failure of the trustee, cannot be executed vicariously by the court. The latter, on the other hand, are not discretionary, but imperative, have all the nature and substance of a trust, and ought rather, as Lord Hardwicke observed, to be designated by the name of trusts. 'It is perfectly clear, ' said Lord Eldon, 'that where there is a mere power, and that power is not executed, the court cannot execute it. It is equally clear, that wherever a trust is created, and the execution of the trust fails by the death of the trustee or by accident, this court will execute the trust. But there are not only a mere trust and a mere power, but there is also known to this court a power which the party to whom it is given is intrusted with and required to execute; and with regard to that species of power, the court considers it as partaking so much of the nature and qualities of a trust, that if the person who has the duty imposed upon him does not discharge it, the court will, to a certain extent, discharge the duty in his room and place '. Thus, if there is a power to appoint among certain objects but no gift to those objects and no gift over in default of appointment, the court implies a trust for or gift to (1) 8 ves. Junior 561 ; (2) 5 Mylne & Graig 72; 41 E.R. 299. 202 those objects equally if the power be not exercised. But for the principle to operate there must be a clear indication that the settlor intended the power to be regarded in the nature of a trust. " This position however does not avail the appellant. As already stated there is no clear indication in the deed of trust that the bank intended the power to be regarded in the nature of a trust, inasmuch as there was no obligation imposed on the bank or its officers duly authorised in that behalf to grant any pension to any applicant. There was no duty to grant any pension at all and the pension, if granted, could be withdrawn, modified or determined by the bank or its officers duly authorised in that behalf as therein mentioned. Under the circumstances it could not be said that there was a power in the nature of a trust which could be exercised by the court if the donee of the power for some reason or other did not exercise the same. It will be appropriate at this stage to consider whether any beneficiary claiming to be entitled to a pension under the terms of the deed could approach the court for the enforcement of any provision purporting to have been made for his benefit Even though he may be qualified under clause 8 to apply for the grant of a pension he could not certainly enforce that provision because there was no obligation imposed at all on the bank or its officers duly authorised in that behalf to grant any pension to him and in the absence of any such obligation imposed upon anybody it would be futile to urge that a valid trust was created in the manner contended on behalf of the appellant. In our opinion therefore the High Court was right in the conclusion to which it came that there was uncertainty as regards the beneficiaries and there was an absence of any obligation to grant any pension with the result that no legal and effective trust could be said to have been created and further that the provision of Rs. 2,00,000 in the accounting year 1946 47 was not an expenditure or an expenditure for the purposes of the business within the meaning of section 10 (2) (xv) of the Indian Income tax Act. 203 In view of the above we do not think it necessary to into the interesting questions which were sought to toe raised by the appellant, viz., what was the scope of the reference, and by the respondent, viz., whether the expenditure was a capital expenditure or revenue expenditure and if the latter whether the deduction could still not be allowed in view of the provisions of section 10 (4) (c) of the Act. The result therefore is that the appeal fails and must be dismissed with costs. Appeal dismissed.

A notice was served by the appellant State inviting the attention of the respondents to the fact that the agricultural lands of which they were the owners had remained fallow, and intimating to them that the appellant would resume management of the said lands under section 65 of the Bombay Tenancy and Agricultural Laws Act unless the respondents took steps to bring them under cultivation in the following agricultural season. It appears that later, an enquiry was made under the orders of the Deputy Collector as a result of which he passed an order under section 65 directing that the lands should be resumed by the State for cultivation. Having failed in their efforts to get the order of the Deputy Collector altered, the respondents filed a suit for a declaration that the order passed by the Deputy Collector was illegal and void and that it could not dispossess them of the lands which belonged to them. 'Me suit was dismissed. The respondents appealed to the High Court and it found that on a fair and reasonable construction of section 65(l) read with section 83, the appellant could delegate its powers prescribed by section 65(l), but could not delegate its duty incidental to the exercise of the said power, and as it reversed the decree passed by the trial Court. On appeal by special leave : HELD : (i) Section 83 authorises the delegation not only of the powers mentioned by it, but also the duties or functions which are incidental to the existence of the powers and are integrally connected with them [216 A B] Edward Liso Mungoni V. Attorney General of Northern Rhodesia, , referred to. (ii) Section 65(l) does not require that the Deputy Collector mini himself go to the agricultural fields and enquire on the spot whether they were lying fallow. He may, if he so desires, record evidence himself, or the recording of the evidence and the actual inspection on the spot can be left to some subordinate officer. The report of such local inspection and the record of the evidence collected in that behalf would be forwarded to the Deputy Collector, and that would be the material oil which he would hold the enquiry himself. This procedure does not involve any delegation at all. [217 H; 218 B; 217 G H]. Allingham V. Minister of Agriculture and Fisheries, [1948] 1 AB. E.R. 780, distinguished. Nathubhai Gandabhai Desai V. State of Bombay & Ors. I.L.R. , referred to.

Appeal No. 170 of 1956. Appeal by special leave from the judgment and order dated the 12th January, 1955, of the Calcutta High Court in exercise of its Special Jurisdiction under the , in Matter No. 107 of 1954. M. C. Setalvad, Attorney General for India, section N. Andley, J. B. Dadachanji and Rameshwar Nath, for the appellants. Aswini Kumar Ghose, T. section Venkataraman and K. R. Chaudhury, for the respondents. 373 1957. September 10. The following Judgment of the Court was delivered by GAJENDRAGADKAR J. The material facts leading to the present appeal are not in dispute and may be conveniently stated at the outset. On July 17, 1933, the respondent was enrolled as a registered accountant under the Auditors Certificate Rules, 1932. When the , came into, operation, the respondent 's name was entered as a Member of the Institute of Chartered Accountants of lndia on July 1, 1949. On September 13, 1950, the respondent was appointed a Liquidator of three companies. The respondent obtained refund of the sums and securities deposited on behalf of the three companies with the Reserve Bank of India. He, however, made no report about the progress of liquidation of the said three companies. Repeated requests made to him by the Assistant Controller of Insurance found no response. As Liquidator the respondent gave a cheque to Shri section K. Mandal, Solicitor to the Central Government at Calcutta, towards payment of the taxed costs in the winding up proceedings of one of the companies. The said cheque was, however, returned dishonoured on the ground that the payment had not been arranged for. When the Assistant Controller of Insurance found that the conduct of the respondent as Liquidator was wholly unsatisfactory and that he would not even show the ordinary courtesy of replying to the letters addressed to him, he proceeded to cancel the appointment of the respondent as Liquidator by his letter dated October 29, 1952. The respondent was then called upon to hand over all books of account, records, documents, etc., to Shri N. N. Das, who was appointed a Liquidator in his place. Shri Das as well as the Assistant Controller of Insurance then made repeated demands on the respondent to deliver to Shri Das the assets and records of the three companies. It is common ground that the respondent had with him securities of the value of Rs. 11,950 and a cash sum of Rs. 642 on account of the United Common 374 Provident Insurance Co. Ltd. He had also with him securities to the value of Rs. 12,100 on account of the Asiatic Provident Co. Ltd., and securities and cash on account of the Citizens of India Provident Insurance Co. Ltd. Out of these amounts the respondent returned only securities of the face value of Rs. 10,000 and Rs. 350 of Asiatic Provident Co. Ltd., and United Common Provident Insurance Co. Ltd., respectively. He failed to send any further securities or cash held by him on account of the said three companies. It was at this stage that a complaint was lodged against the respondent with the Council of the Institute of Chartered Accountants of India in Calcutta. As required by the provisions of the Act, the disciplinary committee of the Council inquired into the matter. Notice was served on the respondent but he filed no written statements within the time fixed. On August 1, 1953, a letter was received from the respondent that he was ill and was unable to attend personally. The respondent had also requested for the adjournment of the case. Proceedings were accordingly adjourned to August 29, 1953, on which date the respondent was represented by a counsel who filed the respondent 's affidavit stating that he was prepared to hand over the entire cash, books of account, etc., to the newly appointed Liquidator without rendering the necessary accounts. It appears that Shri Das, the subsequently appointed Liquidator, gave evidence before the disciplinary committee. Though several opportunities were given to the respondent to appear before the disciplinary committee he failed to appear or to take part in the proceedings. Ultimately the committee made its report on September 13, 1953, and found that the respondent was guilty of gross negligence in the conduct of his professional duty in not handing over charge of the assets and the books of account of the said companies to the newly appointed Liquidator. This report was considered by the Council itself as required by the Act. Tile Council agreed with the finding recorded by the disciplinary committee in substance, but took the view that the 375 acts and omissions of the respondent were more serious than what can be described as gross negligence. The finding of the Council was then forwarded to the High Court of Judicature at Calcutta as required by section 21 (1) of the Act and the matter was heard by the learned Chief Justice and Mr. Justice Lahiri. By their judgment delivered on January 12, 1955, the reference was rejected on the ground that no action could be taken against the respondent under the Act though the facts proved against the respondent showed that " he had been guilty of grossly improper conduct if not dishonesty". On these facts the main point which arises for our decision is what is the nature, scope and extent of the disciplinary jurisdiction which can be exercised under the provisions of this Act against the respondent. It would now be necessary to examine the scheme of the material provisions of the Act. This Act came into force in 1949 and it was passed, because the Legislature thought it expedient to make provision for the regulation of professional accountants and for that purpose it has provided for the establishment of the Institute of Chartered Accountants. Section 2, sub section (1) (b) defines a Chartered Accountant as meaning "a person who is a member of the Institute and who is in practice". Section 2, sub section (2) provides that a member of the Institute shall be deemed to be in practice when, individually or in partnership with chartered accountants, he, in consideration of the remuneration received or to be received, does any of the acts mentioned in the following 4 sub clauses: . . Sub clause (iv) is relevant for our purpose: " section 2 (2) (iv): " (Where a member) renders such other services as in the opinion of the Council are or may be rendered by a chartered accountant, (he is deemed to be in practice). " Section 4 provides for the entry of names in the register of chartered accountants. Section 5 divides the members of the Institute into two classes designated respectively as Associates and Fellows. Section 6 lays down that no member of the Institute shall be 376 entitled to practise unless he has obtained from the 'Council a certificate of practice. Under section 7, every member of the Institute in practice shall be designated as a chartered accountant and no person practising the profession of accountancy in India shall use any other designation whether in addition thereto or in substitution therefor. Section 8 deals with disabilities. Any person who incurs any one of the disabilities enumerated in sub cls. (i) to (vi) of section 8 shall not be entitled to have his name entered in or borne on the Register. Sub clause (v) deals with the disability arising by reason of conviction by a competent court whether within or without India of an offence involving moral turpitude and punishable with transportation or imprisonment or of an offence not of a technical nature committed by him in his professional capacity unless in respect of the offence committed be has either been granted a pardon or, on an application made by him in this behalf, the Central Government has, by an order in writing, removed the disability. Sub clause (vi) deals with the disability in cases where the chartered accountant is found on an inquiry to be guilty of conduct which renders him unfit to be a member of the Institute. Chapter III deals with the constitution of the Council, the committees of the Council and the finances of the Council. Chapter IV deals with the register of members and the removal from the Register of the name of a chartered accountant, as provided by section 20, sub cls. (a), (b) and (c). Under section 20, sub section (2), it is provided that the Council shall remove from the Register the name of any member who has been found by the High Court to have been guilty of conduct which renders him unfit to be a member of the Institute. Chapter V deals with the question of misconduct. It consists of sections 21 and 22. Chapter VI deals with the constitution and functions of the Regional Councils; chapter VII deals with penalties and chapter VIII deals with miscellaneous matters. Section 21 deals with the procedure of enquiries relating to misconduct of members of the Institute. It reads thus: 377 " section 21. (1) Where on receipt of information or on receipt of a complaint made to it, the Council is of opinion that any member of the Institute has been guilty of conduct which, if proved, will render him unfit to be a member of the Institute, or where a complaint against a member of the Institute has been made by or on behalf of the Central Government, the Council shall cause an inquiry to be held in such manner as may be prescribe and the finding of the Council shall be forwarded to the High Court. (2). . . . (3). . . . (4). . . . Sub sections (2), (3) and (4) of section 21 deal with the powers of the High Court in dealing with the reference made to it, under section 21, sub section Section 22 defines misconduct. It reads thus: " section 22. For the purposes of this Act, the expression conduct which, if proved, will render a person unfit to be a member of the Institute " shall be deemed to include any act or omission specified in the Schedule, but nothing in this section shall be construed to limit or abridge in any way the power conferred on the Council under sub section (1) of section 21 to inquire into the conduct of any member of the Institute under any other circumstances." The learned Judges of the Calcutta High Court have held that the conduct of which the respondent is proved to have been guilty cannot be said to be professional misconduct properly so called and cannot, therefore, attract the provisions of sections 21 and 22 of the Act. "There, thus, seems to be no room for contending"# observes the learned Chief Justice in his judgment, " that misconduct not connected with the exercise of the profession is also within the ambit of the Act, provided it involves moral turpitude or appears to render a person unworthy to remain a member of a responsible profession". It has also been found by the learned Judges that even if they were to hold that the misconduct proved against the respondent attracted the provisions of sections 21 and 22 of 378 the Act it would not be open to them to take any action against the respondent on that ground because the Institute cannot expect the Court to take action in the present case on the footing that the respondent had been guilty of misconduct otherwise than in his professional capacity since that is not the finding which the Council arrived at and which is reported to the Court. It is the correctness of these findings that is challenged before us by the learned Attorney General. lie contends that the learned Judges of the Calcutta High Court have put an unduly restricted and narrow construction on the provisions of section 21 and section 22 in holding that the respondent 's conduct does not amount to professional misconduct; and he has also urged that the technical reason given by the learned Judges in not taking any action against the respondent even if they had accepted the broader interpretation of the two said sections proceeds on a misconception about the nature and extent of the powers of the High Court while hearing references made to it under the provisions of section 21, sub sections (2), (3) and (4). In our opinion, the contentions raised by the learned Attorney General are well founded and must be upheld. Let us first consider whether the conduct of the respondent amounts to professional misconduct or not. In dealing with this question it is necessary to bear in mind the provisions of section 2, sub section (2) (iv) of the Act. A member of the Institute under this provision shall be deemed to be in practice when he renders such other services as in the opinion of the Council are or may be rendered by a chartered accountant. In other words, just as a member of the Institute Who engages himself in the practice of accountancy is by such conduct deemed to be in practice as a chartered accountant, so is he deemed to be in practice as a chartered accountant when he renders other services mentioned in section 2, sub s.(2) (iv). What other services attract the provisions of this sub section has to be determined in the light of the regulations framed under provisions of this Act. Section 30 of the Act confers power on the Council to make regulations by notification 379 in the Gazette of India for the purpose of carrying out the object of the Act and it provides that a copy of such regulation should be sent to each member of the Institute. Section 30, sub section 2 sets out the several topics in respect of which regulations can be framed though, as usual, it provides that the enumeration of the different topics is without prejudice to the generality of the powers conferred by section 30, sub s.(1). Sub section (4) lays down that, notwithstanding anything contained in sub sections (1) and (2), the Central Government may frame the first regulations for the purposes mentioned in the section and such regulations shall be deemed to have been made by the Council and shall remain in force from the date of coming into force of this Act until they are amended, altered or revoked by the Council. Regulation 78 is one of the regulations originally framed by the Central Government under section 30, sub section It reads thus: " Regulation 78. Without prejudice to the discretion vested in the Council in this behalf, a Chartered Accountant may act as liquidator, trustee, executor, administrator, arbitrator, receiver, adviser, or as representative for costing financial and taxation matter or may take up an appointment that may be made by Central or State Governments and Courts of law or any Legal Authority, or may act as Secretary in his professional capacity not being an employment on a salary cum full time basis. " The last clause has been added by the Council by a notification dated August 22, 1953. Now it is clear that when the respondent accepted his appointment as liquidator of the three companies in question he agreed to work as a liquidator in pursuance of an order passed by the High Court of Judicature at Calcutta and there can be no doubt that in working as such liquidator he was rendering services which in the opinion of the Council may be rendered by a chartered accountant. The provisions of Regulation 78 must inevitably be considered in the light of section 2, sub s.(2), cl.(iv) and the result of considering the two provisions together obviously is that when the respondent was working as a liquidator in pursuance of an order passed by the Calcutta High Court he 49 380 must be deemed to be in practice within the meaning of section 2, sub s.(2). We feel no difficulty in holding that chartered accountants who render services falling within section 2, sub section (2), cl. (iv) are as much entitled to be deemed to be in practice as those whose duties attract the provisions of cls. (i), (ii) and (iii) of sub section If that be the true position it is difficult to accept the view that the conduct of the respondent while he discharged his duties as a liquidator is not the professional conduct of a chartered accountant even within the narrow and restricted sense of the term. If, while acting as liquidator, the respondent must be deemed to be in practice as a chartered accountant, all acts and omissions proved against him in respect of such conduct as liquidator must be characterised as his professional acts and omissions. "Practice" according to Webster 's New International Dictionary means Cc exercise of any profession or occupation " and if the performance of the duties as liquidator attracts the provisions of section 2, sub section (2), whatever the chartered accountant does as a liquidator must be held to be conduct attributable to him in the course of his practice. The object with which cl. (iv) in sub section (2) of section 2 has been deliberately introduced by the Legislature ' in our opinion, appears to be to bring within the disciplinary Jurisdiction of the statutory bodies recognized under the Act, conduct of chartered accountants even while they are rendering services otherwise than as chartered accountants properly so called. It is because the Legislature wanted to provide for a self contained code of conduct in respect of chartered accountants that the denotation of the expression " to be in practice " has been in a sense deliberately and artificially extended by virtue of section 2, sub section (2), el. We must, therefore, hold that, on the facts proved, the respondent is clearly guilty of professional misconduct. This would really dispose of the appeal before us, because once it is held that the respondent is guilty of professional misconduct it would be obviously necessary to deal with him on that basis and make an appropriate order under section 21, sub section (3) of the Act. However, 381 since the learned Attorney General has alternatively urged before us that in confining the exercise of disciplinary jurisdiction only to cases of professional misconduct, technically so called, the learned Judges of the Calcutta High Court have misconstrued the relevant provisions of the Act, we propose to deal very briefly with that question also. Section 21, sub section (1), deals with two categories of cases in which the alleged misconduct of members of the Institute can be inquired into. If information is received or complaint is made to the Institute against the conduct of any chartered accountant the Council is not bound to hold an inquiry straightaway. The Council is required. to examine the nature of the information or complaint made and decide whether, if the facts alleged against the member are proved, they would render the member unfit to be a member of the Institute. In other words, in the case of a private complaint made against members, it is only where the Council is satisfied prima.facie that facts alleged against the member, if proved, would justify the exercise of disciplinary jurisdiction against the member that the Council is required to hold an inquiry. The conduct alleged must be such as, if proved, would render the member unfit to be a member of the Institute. The other class of cases has reference to. the complaint received by the Council from the Central Government. In regard to this class of cases, the Council is not required, and indeed has no jurisdiction to apply the primarily test before holding an inquiry. The Council is required to cause an inquiry to be held on such complaint straightaway. In both the cases when the inquiry is concluded, the findings of the Council are to be forwarded to the High Court. Section 22 purports to define the expression "conduct which, if proved, will render a person unfit to be a member of the Institute". It is an inclusive definition ; it includes any act or omission specified in the schedule but the latter portion of section 22 clearly lays down that nothing contained in this section shall be construed to limit or abridge in any way the power conferred on the Council under sub section (1) of section 21. The position thus 382 appears to be that though the definition of the Material expression used in section 21, sub section (1), refers to the acts and omissions specified in the schedule, the list of the said acts and omissions is not exhaustive;and, in any event, the said list does not purport to limit the powers of the Council under section 21, sub section (1), which may otherwise flow from the words used in the said sub section itself. The schedule to which section 22 refers has enumerated in cls. (a) to (v) several acts and omissions and it provides that, if any of these acts or omissions is proved against a chartered accountant, he shall be deemed to be guilty of professional misconduct which renders him unfit to be member of the Institute. Clause (v) is rather general in terms since it provides for cases where the accountant is guilty of such other act or omission in his professional capacity as may be specified by the Council in this behalf by notification in the Gazette of India. It must be conceded that the conduct of the respondent in the present case cannot attract any of the provisions in the schedule and may not therefore be regarded as falling within the first part of section 22; but if the definition given by section 22 itself purports to be an inclusive definition and if the section itself in its latter portion specifically preserves the larger powers and jurisdiction conferred upon the Council to hold inquiries by section 21, sub section (1), it would not be right to hold that such disciplinary jurisdiction can be invoked only in respect of conduct falling specifically and expressly within the inclusive definition given by section 22. In this connection it would be relevant to mention section 8 which deals with disabilities. Section 8, sub sections (v) and (vi), support the argument that disciplinary jurisdiction can be exercised against chartered accountants even in respect of conduct which may not fall expressly within the inclusive definition contained in section 22. We, therefore, take the view that, if a member of the Institute is found, prima facie, guilty of conduct which, in the opinion of the Council, renders him unfit to be a member of the Institute, even though such conduct may not attract any of the provisions of the schedule, it would still be open to the Council to hold an inquiry against the 383 member in respect of such conduct and a finding against him in such an inquiry would justify appropriate action. being taken by the High Court under section 21, sub section It is true that the High Court would take action against the offending member only if the High Court accepts the finding made by the Council and not otherwise. This conclusion is strengthened if we bear in mind the extended meaning of the expression "to be in practice" given in section 2, sub section (2), which we have already dealt with. In this view of the matter we must reverse the conclusion of the learned Judges of the Calcutta High Court that the conduct proved against the respondent does not fall within as. 21 and 22 because it is not conduct connected with the exercise of his profession as a chartered accountant in the narrow sense of that term. The next question to consider is in regard to the extent of the jurisdiction and powers of the High Court when the High Court deals with references under section 21, sub sections (2), (3) and (4). The learned Judges of the Calcutta High Court took the view that even if they had agreed to put a wider construction on the material words used in sections 21 and 22, they would not be justified in passing any orders against the respondent in the present proceedings because the finding which had been referred to the High Court was only one and that was that the respondent was guilty of professional misconduct in the narrow sense of the term. In other words, the High Court thought that in accepting, and acting or the larger construction of the material words the High Court would be making out a new case on the reference and the High Court would not be justified in adopting such a course. In our opinion, this view is not well founded. Section 2 1, sub section (2), lays down the procedure to be followed by the High Court when a finding made by the Council is referred to it under section 21, sub section Notice of the day fixed for the hearing of the reference has to be given to the parties specified in section 21, subs. (1) and an opportunity of being heard has to be given to them. Section 21, sub section (3), then lays down that the High Court may either pass such final orders on the case as it thinks fit or refer it back for further 384 inquiry by the Council and, upon receipt of the finding after such inquiry, deal with the case in the manner provided in sub section (2) and pass final orders thereon. It is clear that, in hearing references made under section 21, sub section (1), the High Court can examine the correctness of the findings recorded by the statutory bodies in that behalf. The High Court can even refer the matter back for further inquiry by the Council and call for a fresh finding. It is not as if the High Court is bound in every case to deal with the merits of the finding as it has been recorded and either to accept or reject the said finding. If, in a given case, it appears to the High Court that, on facts alleged and proved, an alternative finding may be recorded, the High Court 'can well send the case back to the Council with appropriate directions in that behalf. The powers of the High Court under section 21, sub section (8), are undoubtedly wide enough to enable the High Court to adopt any course which in its opinion will,, enable the High Court to do complete justice between the parties. Besides, in the present case, no such technical considerations can really come into operation because the material facts have not been in dispute between the parties at any stage of the proceedings. The only point in dispute between the parties has been whether on the facts proved disciplinary jurisdiction can be invoked against the respondent under the provisions of the Act. We, therefore, take the view that the learned Judges of the High Court were in error in holding that, even if they had accepted the broader interpretation of section 21 and section 22, they could not make an appropriate order in the present case against the respondent having regard to the specific finding recorded by the Council in the inquiry in question. It would now be necessary to refer to some judicial decisions to which our attention has been invited. In G. M. Oka, In re (1), it has been held by a Division Bench of the Bombay High Court that, when a chartered accountant gives evidence before a court of law and he is in the witness box not as a chartered (1) [1952] 22 Comp. 385 accountant but as a witness, the falsity of his ,statement does not give rise to any disciplinary proceedings against him as a chartered accountant. If he gives false evidence he may be guilty of perjury and if he is convicted the conviction itself may call for disciplinary action. These observations undoubtedly lend support to the view taken by the Calcutta High Court. It is of course. true that the conviction of a chartered accountant would attract the provisions of section 8, sub a. (vi) and in that sense the conclusion of the Bombay High Court that the conviction itself may be the basis of disciplinary action is, with respect, wholly correct; but the other observations on which reliance is placed by the respondent before us are obiter and it also appears from the judgment that the attention of the learned Judges was not drawn to the provision of section 2 (2) (iv) and other relevant considerations do not appear to have been urged before them in that case. As the judgment itself points out, apart from the technical points which were urged before the court on behalf of the chartered accountant, there was a large volume of other evidence produced against him which conclusively proved that he was guilty of misconduct. Mr. Ashwini Kumar Ghosh, for the respondent, has also sought to rely on Haseldine vs Hosken (1). In this case the solicitor had taken out an indemnity policy which insured him against loss arising by reason of any neglect, omission or error while acting in his. professional capacity. During the subsistence of this policy, the solicitor sustained loss through having, without realizing the fact, entered into a champertous agreement. When the solicitor made a claim to be indemnified, it was held that the loss in respect of which indemnity was claimed did not arise by reason of any neglect, omission or error committed by the solicitor in his professional capacity but arose from his entering into a personal speculation. We do not see how this case can assist the respondent in any way. In considering the question as to whether the respondent has been guilty of professional misconduct in the present case, we are concerned with (1) 386 the material provisions of the itself. Observations made by the learned Judges in Haseldine 's case can afford no assistance to us in interpreting the said provisions. Similarly the decision in Krishnaswamy vs The Council of the Institute of Chartered Accountants (1) where the court was primarily concerned with the question as to whether orders passed under section 21 (2) of the Act are orders passed in civil proceedings or not is wholly inapplicable and gives us no help in deciding the points before us. The only question which now remains to be considered is the final order to be passed against the respondent. The conduct of the respondent is, in our opinion, wholl yunworthy of a chartered accountant in practice. His refusal to give prompt replies to the letters received from the Assistant Controller of Insurance followed by his failure to return the documents and all securities and cash received by him as liquidator leave no room for doubt that he was unable to return the said amount and the said securities and cash and that he was merely employing delaying tactics with the object of postponing the evil day. It is not conduct which is only technically improper or unworthy; it is conduct which is grossly improper and unworthy and as such it calls for a deterrent order. The respondent was appointed a liquidator by the Calcutta High Court presumably because he was a chartered accountant in practice. He thus received the benefit of this appointment as a result of his status as chartered accountant in practice and in acting as a liquidator he has been guilty of conduct which is absolutely unworthy of his status and it renders him unfit to be a member of the Institute. We, therefore, think that the ends of justice require that the respondent 's name should be removed from the Register for four years. In regard to costs we direct that the respondent should pay the costs of the appellants in this Court and that the parties should bear their own costs in the court below. Appeal allowed. (1) A.I.R. 1953 Madras 79.

Respondent, a chartered accountant and a member of the Institute of Chartered Accountants, was appointed liquidator of three insurance companies in pursuance of the orders of the High 48 372 Court. He received records, cash and securities on behalf of these companies. The Assistant Controller of Insurance found that his conduct as liquidator was wholly unsatisfactory and that he would not even reply to the letters addressed to him. His appointment was cancelled and another person was appointed. In spite of repeated demands he failed to return all the records, cash and securities. A complaint was lodged against him with the Council of the Institute of Chartered Accountants. After inquiry the respondent was found guilty of misconduct, and the report was forwarded by the Council to the High Court for necessary action under section 21 of the . The High Court rejected the reference on the ground that the conduct of which the respondent was found guilty could not be said to be professional misconduct and did not attract the provisions of sections 21 and 22 of the Act. Held, that the respondent, when working as a liquidator, must be deemed to have been in practice as a chartered accountant within the meaning Of section 2(2) of the Act. The definition of misconduct in section 22 is inclusive and the Council may hold an inquiry and find a member guilty of conduct which, in its opinion, renders him unfit to be a member of the Institute, even though such conduct does not attract any of the provisions of the schedule referred to in section 22. The conduct of the respondent was grossly improper and unworthy and amounted to professional misconduct within the meaning of the Act. In a reference under section 21 of the Act the High Court has ample powers to adopt any course which would enable it to do complete justice between the parties. It can examine the correctness of the findings recorded by the Council or refer the matter back for further inquiry and call for a fresh finding. The High Court is not bound to deal with the merits of the finding as it has been recorded and either to accept or reject it.

Writ Petition No. 1555 of 1979 etc. (Under Article 32 of the Constitution of India). 144 D.N. Dwivedi and Sarwa Mitter for the Petitioners. Dr. L.M, Singhvi, B.D. Sharma, Shri Narain, Sandeep Narain, Shrid Rizvi and D.K. Singh for the Respondents. The Judgment of the Court was delivered by R.M. SAHAI, J. Validity of Rajasthan Agricultural Pro duce Markets Act, 1961 (for brevity the Act) levying market fee on sale and purchase of agricultural produce in market yard or sub marketyard was challenged by dealers for lack of legislative competence, violation of Articles 14, 19, 30 1 and 304 of Constitution, absence of any quid pro quo in the fee paid and service rendered, illegal and arbi trary inclusion of manufactured articles such as Khandsari, Shakkar, Gur and Sugar as agricultural produce in the sched ule etc. Acts of other States, for instance, Punjab and Haryana and U.P. were also assailed for similar infirmities. Whether these petitions, which appear to be identical, are reproduc tion of any of those petitions, which were pending in this Court from before is not relevant but various group of petitions of Punjab and Haryana dealers challenging consti tutionality and legality of Act and its provisions including Gut, Khandsari and Shakkar as agricultural produce in the schedule of Punjab Act have been dismissed by different benches presumably because of decisions in Kewal Krishan Puri vs State of Punjab, ; ; Ramesh Chandra vs State of U.P., ; Rathi Khandsari Udyog vs State of U.P., and Sreenivisa General Traders vs State of Andhra Pradesh, AIR 1983 SC 1264. Despite these decisions spelling out basic principles for determining validity of marketing legislations dealing with agricultural produce the petitioners were not willing to take it lying down probably because none of these deci sions dealt with sugar. It was urged that inclusion of sugar in the Schedule of the Act was arbitrary., primarily because it being a declared commodity of public importance under Entry 52 of List I of Schedule VII the State legislature was precluded from legislating on it. Its inclusion in the Schedule was also assailed as it being a Mill or Factory produce it could not be deemed to be agricultural produce which is basically confined to produce of or from soil. Sugar is one of the items which was included in the Schedule to the Act, statutorily, right from its inception. Such inclusion is found in 145 Maharashtra, Gujarat, West Bengal, Bihar etc. Whether it was subsequently deleted or re included or re grouped or it was added later was immaterial as Section 40 of the Act empow ered State Government to amend or include any item in the Schedule of agricultural produce. Existence of such delegat ed power is usual feature of the statutes. No illegality or infirmity could be pointed out in it. Any challenge, there fore, rounded on excessive delegation of legislative power was misconceived. Inclusion of sugar in the Schedule was urged to be arbitrary as it was not produced out of soil the basic ingredient of agricultural produce. Fallacy of the submis sion is apparent as it was in complete disregard of defini tion of the word "agricultural produce" in the Act which includes all produce whether agricultural, horticultural, animal husbandry or otherwise as specified in the Schedule. The legislative power to add or include and define a word even artificially, apart, the definition which is not ex haustive but inclusive neither excludes any item produced in mill or factories nor it confines its width to produce from soil. If that be the construction then all items of animal husbandry shall stand excluded. It further overlooks expanse of the expression "or otherwise as specified in the Sched ule. " Nor switch over from indigenous method of producing anything to scientific or mechanical method changes its character. Khandsari sugar, which is produced by open pan process and is not different from sugar produced by vacuum pan process except in composition, filterability and conduc tivity as held in Rathi Khandsari Udyog, (supra) was held to be agricultural produce in some decisions. No distinction was made on method of production, namely, by modern plant and machinery. To say, therefore, that sugar being produced in mill or factories could not be deemed to be agricultural produce is both against the statutory language and judicial interpretation of similar provisions of the Act in statutes of other States. Rice or dal produced in mills have been held to be agricultural produce in Ramesh Chandra vs U.P. State, and State of U.P. vs Ganga Das Mill, Even in Halsbury Law of England, ' Vol. I the word agricultural produce for purpose of agricultural marketing schemes is understood as, 'including any product of agriculture or horticulture and any article of food or drink wholly or partly manufactured or derived from any such product and fleeces (including all kinds of wool) and the skins of animals '. In the same volume products covered by the provisions of EEC Treaty as to agriculture (classified according to the Brussels Nomenclature of 1965) are men tioned in paragraph 1845. Sugar is one of them. 146 Another legalistic challenge regarding inhibition of State to legislate on sugar or of repeated argument of occupied field was more attractive than of any substance. Reliance on Article 246 of the Constitution was academic only. As far back as 1956 Constitution Bench of this Court in Choudhary Tika Ram and others vs State of U.P., ; examined the matter in detail and held sugar legis lations to be within the scope of Entry 33 of concurrent list. It was observed that all 'Acts and the notifications issued thereunder by the Centre in regard to sugar and sugarcane were enacted in exercise of concurrent jurisdic tion '. Effect of it was described thus, 'The Provincial Legislature as well as the Central Legislature would be competent to enact such pieces of legislation and no ques tion of legislative competence would arise '. Any further discussion on clash between Entry 52 of List I of VII Sched ule with Entry 28 of List II in the circumstances is unnec essary. As regards the submission of occupied field suffice it to say that there is no repugnancy m the Central and State legislation. At least none was made out. Even if there would have been any the Act having received assent of the President it is fully protected by Article 254(2). For these reasons these petitions fail and are dismissed with costs. N.P.V. Petitions dismissed.

In the Writ Petition flied in this Court, the validity of Rajasthan Agricultural Produce Markets Act, 1961, levying market fee on sale and purchase of agricultural produce was challenged for lack of legislative competence, and arbitrary inclusion of Khandsari, Shakkar, Gur and Sugar as agricul tural produce in the Schedule. It was contended that inclu sion of sugar was arbitrary inasmuch as it being a declared commodity of public importance under Entry 52 of List I of Schedule VII, the State Legislature was precluded from legislating on it and that being a mill or factory produce, it could not be deemed to be agricultural produce, which was basically confined to produce of or from soil. Dismissing the Petitions, this Court, HELD: 1.1 Sugar is one of the items which was included in the Schedule to the Rajasthan Agricultural Produce Mar kets Act, 1961, statutorily, right from the inception. Such inclusion is found in many States. Whether it was subse quently deleted or re included or regrouped or was added later was immaterial, as Section 40 of the Act empowered State Government to amend or include any item in the Sched ule of agricultural produce. Existence of such delegated power is 143 usual feature of the statutes. No illegality or infirmity could be pointed out in it. Any challenge, therefore, round ed on excessive delegation of legislative power was miscon ceived. [144H, 145A B] 1.2 The definition of the word "agricultural produce" in the Act includes all produce whether agricultural, horticul tural, animal husbandry or otherwise as specified in the Schedule. The legislative power to add or include and define a word even artificially, apart, the definition which is not exhaustive but inclusive, neither excludes any item produced in mill or factories nor it confines its width to produce from soil. Nor switch over from indigenous method of produc ing anything to scientific or mechanical method changes its character. To say, therefore, that sugar being produced in mill or factories could not be deemed to be agricultural produce is both against the statutory language and judicial interpretation of similar provisions of the Act in statutes of other States. [145C D, F] Kewal Krishan Puri vs State of Punjab, ; ; Ramesh Chandra vs State of U.P., ; Rathi Khandsari Udyog vs State of U.P., ; Sreenivisa General Traders vs State of Andhra Pradesh, AIR 1983 SC 1264; Ramesh Chandra vs U.P. State and State of U.P. vs Ganga Das Mill, , re ferred to. Halsbury 's Law of England, Vol. I and Paragraph 1845, re ferred to. 2. In view of the settled position of law that sugar legislations are within the scope of Entry 33 of Concurrent List, no further discussion on clash between Entry 52 of List I of Vllth Schedule and Entry 28 of List II is neces sary. There is no repugnancy in the Central and State legis lation. Even if there would have been any, the Act having received assent of the President is fully protected by Article 254(2) of the Constitution. [146B D] Choudhary Tika Ram and Others vs State of U.P., ; , followed.

No. 85 of 1972. Under Article 32 of the Constitution of India for a writ in the nature of habeas corpus. section L. Chhibber, for the peitioner. G. section Chatterjee, for the respondent. The Judgment of the Court was delivered by Khanna, J. An order was made by the District Magistrate Burdwan on February 10, 1971 under section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President 's ,Act No 19 of 1970) for the detention of Abdus Sukkur "with 681 a view to preventing him from acting in any manner prejudicial to the maintenance of public order". In pursuance of that order, Abdus Sukkur was arrested on September 24, 1971. Abdus Sukkur thereupon filed the present petition through jail under article 32 of the Constitution to challenge his detention. Mr. Chibber argued the case amicus curiae on behalf of the petitioner, while the State of West Bengal was represented by Mr. Chatterjee. After hearing the learned counsel on May 24, 1972 1 ordered that, for reasons to be given later, the petitioner be set at liberty. I now proceed to set out those reasons. The order for the detention of the petitioner, as mentioned earlier, was made by the District Magistrate, on February 10, 1971. The petitioner, it is stated, was found to be absconding after the, making of that order and he was arrested on September 24, 1971. He was then served with the order of detention along with the ground of detention together with vernacular translation thereof. In the meanwhile, on February 10, 1971 the District Magistrate sent report to the State Government about the making of the detention order along with necessary particulars. The State Government approved the detention order on February 18, 1971. The case of the petitioner was placed on October 23, 1971 by the State Government before the Advisory Board. On October 28, 1971 the State Government received a representation from the petitioner against his detention. The said representation was considered by the State Government and was rejected on November, 24, 197 1. The representation was, thereafter sent to the Advisory Board. The Advisory Board, after considering the material placed before it and after hearing the petitioner in person, sent its report to the State Government on November 26, 1971. Opinion was expressed by the Advisory Board that there was sufficient cause for the detention of the petioner. The State Government confirmed the order for the detention of the petitioner on December 1, 1971. It would appear from the above that though the representation made by the petitioner against his detention was received by the ' State Government on October 28, 1971, the said Government considered the representation and rejected it on November 24, 197 1. There thus elapsed a period of 27 days between the receipt of the representation and its consideration and rejection by the State Government. As the above delay in considering and rejecting the representation had not been explained in the affidavit which was initially filed in. opposition to the petition on behalf of the State Government, this Court adjourned the matter on May 5, 1972 to enable the State Government to file an additional affidavit. When the case was taken up thereafter on May 24, 1972 Mr. Chatterjee. 152SupCI/73 682 learned counsel for the State, stated that no additional affidavit was to be filed on behalf of the State. It would thus follow that The delay on the part of the State Government in considering the representation of the petitioner has remained unexplained. This unexplained delay, in my opinion, is sufficient to invalidate the detention of the petitioner. According to clause (5) of article 22 of the Constitution, when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The fact that earliest opportunity has to be afforded to the detents for making a representation against the detention order necessarily implies that, as and when the representation is made, it should be dealt with promptly. Undue delay on the part of the detaining authority in disposing of the said representation would run counter to the underlying object of clause (5) of article 22. The requirement about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if tie authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity. It is, therefore, essential that there should be no undue or unexplained delay on the part of the detaining authority in disposing of the representation made by the detenu against the detention order. In case the authority concerned is guilty of such delay, the detention would be ' liable to be assailed on the ground of infraction of article 22(5) of the Constitution. This is as it should be, because the matter relates to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law. The authority concerned has, therefore, to proceed strictly in accordance with law and any deviation from compliance with legal requirement cannot be countenanced. It has accordingly been laid down in a string of authorities that undue or unexplained delay in the disposal of the representation of the detenu against the detention order would introduce a serious infirmity in the detention. In the case of Javanaravan Sukul vs State of West Bengal(1) the Constitution Bench of this Court. laid stress on the imperative necessity of the consideration of the representation made by a detenu by the Government as early as possible. It was observed: "It is established beyond any measure of doubt that the appropriate authority is bound to consider the repre (1) ; 683 sensation of the detenu as early as possible. The appropriate. Government itself is bound to consider the representation as expeditiously as possible. , The reason for im mediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities. No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of adetenu to have, his representation considered as expeditiously as possible. " The detenu in that case made a representation to the State Government on June 23, 1969 and the same was rejected by the State Government on August 9, 1969. It was held that the Government was guilty of the infraction of the constitutional provision because of inordinate delay in considering the representation. The petitioner was accordingly set at liberty. Reliance in the case of Jayanarayan Sukul vs State of West Bengal (supra) was placed upon an earlier decision of this Court in the, case of Khairul Haque vs State of West Bengal, (W. P. No. 246 of 1969 decided on September 10, 1969). In that case this Court held that article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely, (1) to have his representation independently considered by the Government, and (2) to have that representation, in the light of the facts and circumstances of the case, considered by an Advisory Board. It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation. This fact, in the opinion of the Court, necessarily implied that such a representation must, when made, be considered and disposed of as expeditiously as possible, for otherwise "the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning." In Prof. K. L. Singh vs State of Manipur(1) this Court held that an unexplained delay of 17 days was enough to render the detention illegal. In Baidya Nath Chunkar vs State of West Bengal (W.P. No. 377 of 1971 decided on March 14, 1972) unexplained delay of 29 days in considering the representation was, held to have vitiated the detention of the (1) ; 684 detenu. The different cases mentioned above were, referred to by this Court in the case of Kant Lai Bose vs State of West Bengal (W.P. No. 8 of 1972 decided on May 5, 1972) and it was held that unexplained delay of 28 days in considering the detenu 's representation would invalidate his detention. I therefore, accept the petition and make the rule absolute. V.P.S. Petition allowed.

Under section 15 of the Central Sales tax Act the imposition of a tax on the sale or purchase of declared goods is inter alia subject to the restriction that such tax shall not be levied at more than one stage. Groundnuts are declared good under section 14 of the Act. Item 6 of schedule 3 to the Andhra Pradesh General Sales tax Act (6 of 1957) levies tax on groundnuts when purchased by a miller other than a decorticating miller in the State at the point of purchase by such miller, And in all other cases at the point of purchase by the last dealer who buys in the State. The appellants were millers other than decorticating millers. In writ petitions under Article 226 of the Constitution they challenged the levy of tax at the point of purchase by them on the ground that item 6 of schedule III was in conflict with section 15 of the Central Act in as much as tax on groundnut purchased by a non decorticating miller and later sold as such to other dealers would be taxed at two points once in the hands of the said miller, and again, at the point of purchase by the last dealer. The High Court dismissed the petitions. By certificate appeals were filed in this Court. Dismissing the appeals, HELD : The validity of the levy of tax upon a purchase by a last dealer could be questioned by one of the appellants only if he was being taxed as a last dealer and not as a miller. It was apparent that the appellants were being taxed at the point of purchase by them as millers only. Each of the appellants became liable to the payment of tax as a purchasing miller just as a last dealer would be liable on the purchases made by him. Hence the last dealer and the miller who purchases presumably to convert the groundnuts into other products, are placed on an equal 'footing. It was not shown that there was a possibility of double taxation or of taxation of the same product at more than one point of purchase. [711 D] Sri Venkataswara Rice, Ginning & Groundnut Oil Mill Contractors Co. etc. vs The State of A.P. & Ors., A.I.R. , applied to. [On the facts of the case the Court did not find it necessary to consider the position of a miller who purchases some grounds( for milling and the rest for sale.]

Appeal No. 80 of 1952. Appeal from the Judgment and Decree dated the 6th September, 1950, of the High Court of Judicature at Calcutta (Das Gupta and Lahiri JJ.) in Appellate Decree No. 318 of 1949 from the Judgment and Decree dated the 25th February, 1949. of the Court of the District Judge of Zillah 24 Parganas in Title Appeal No. 8 of 1948 arising out of the Judgment and Decree dated the 10th October, 1947, of the Court of the Additional Subordinate Judge, 7th Court, Alipore. M.C. Setalvad, Attorney General for India (Aurobindo Guha and Gobinda Mohan Roy, with him) for the appellant. Atul Chandra Gupta (Bijan Behari Das Gupta, with him) for respondent No. 1 1953. November 16. The Judgment of the Court was delivered by MUKHERJEA J. The facts giving rise to this appeal are, for the most part, uncontroverted and the dispute between the parties centres round the short point as to whether a contract for sale of land to which this litigation relates, was discharged and came to an end by reason of certain supervening circumstances which affected the performance of a material part of it. To appreciate the merits of controversy, it will be necessary to give a brief narrative of the material facts. The defendant company, which is the main respondent in this appeal, is the owner of a large tract of land situated, in the vicinity of the Dhakuria Lakes within Greater Calcutta. The 313 company started a scheme for development of this land for residential purposes which was described as Lake Colony Scheme No. I and in furtherance of the scheme the entire area was divided into a large number of plots for the sale of which offers were invited from intending purchasers. The company 's plan of work seemed to be, to enter into agree ments with different purchasers for sale of these plots of land and accept from them only a small portion of the con sideration money by way of earnest at the time of the agree ment. The company undertook to construct the roads and, drains necessary for making the lands suitable for building and residential purposes and as soon as they were completed. the purchaser would be called upon to complete the con veyance by payment of the balance of the consideration money. Bejoy Krishna Roy, who was defendant No. 2 in the suit and figures as a pro forma respondent in this appeal, was one of such purchasers who entered into a contract with the company for purchase of a plot of land covered by the scheme. His contract is dated the 5th of August, 1940, and he paid Rs. 101 as earnest money. In the receipt granted by the vendor for this earnest money, the terms of the agree ment are thus set out: "Received with thanks from Babu Bejoy Krishna Roy of 28 Tollygunge Circular Road, Tollygunge, the sum of Rs. 101 (Rupees one hundred and one only) as earnest money having agreed to sell to him or his nominee 5 K. more or less in plot No. 76 on 20 and 30 ft. Road in Premises No. Lake Colony Scheme No. 1, Southern Block at the average rate of Rs. 1,000 (Rupees one thousand only) per Cotta. The conveyance must be completed within one month from the date of completion of roads on payment of the balance of the consideration money, time being deemed as the Essence of the Contract. In case of default this agreement will be considered as cancelled with forfeiture of earnest money. Mokarari Mourashi 314 Terms of payment:One third to be paid at the time of registration and the balance within six years bearing Rs. 6 per cent. interest per annum". On 30th November, 1941, the plaintiff appellant was made a nominee by the purchaser for purposes of the contract and although he brought the present suit in the character of a nominee, it has been held by the trial judge as well as by the lower appellate court, that he was really an assignee of Bejoy Krishna Roy in respect to the latter 's rights under the contract. Some time before this date, there was an order passed by the Collector, 24 Parganas, on 12th of November, 1941 under section 79 of the Defence of India Rules, on the strength of which a portion of the land covered by the scheme was requisitioned for military purposes. Another part of the land was requisitioned by the Government on 20th of December, 1941. while a third order of requisition, which related to the balance of the land comprised in the scheme, was passed sometime later. In November, 1943, the company addressed a letter to Bejoy Krishna Roy informing him of the requisitioning of the lands by the Government and stating inter alia that a considerable portion of the land appertaining to the scheme was taken possession of by the Government and there was no knowing how long the Government would retain possession of the same. The constructs of the proposed roads and drains, therefore, could not be taken up during the continuance of the war and possibly for many years after its termination. In these circumstances,, the company decided to treat the agreement for sale with the addressee as cancelled and give him the option of taking back the earnest money within one month from the receipt of the letter. There was offer made in the alternative that in case the purchaser refused to treat the contract as cancelled, he could, if he liked, complete the conveyance within one month from the receipt of the letter by paying the balance of the consideration money and take the land in the condition in which it existed at that time, the company undertaking to construct the roads and the drains, as circumstances might permit, after the termination of the war. 315 The letter ended by saying that in the event of the addressee not accepting either of the two alternatives, the agreement would be deemed to be cancelled and the earnest money would stand forfeited. This letter was handed over by Bejoy Krishna to his nominee, the plaintiff, and there was some correspondence after that, between the plaintiff on the one hand and the company on the other through their respective lawyers into the details of which it is not necessary to enter. It is enough to state that the plaintiff refused to accept either of the two alternatives offered by the company and stated categorically that the latter was bound by the terms of the agreement from which it could not, in law, resile. On 18th of January, 1946, the suit, out of which this appeal arises, was commenced by the plaintiff against the defendant company, to which Bejoy Krishna Roy was made a party defendant and the prayers in the plaint were for a two fold declaration, namely, (1) that the contract dated the 5th of August, 1940, between the first and the second defendant, or rather his nominee, the plaintiff, was still subsisting; and (2) that the plaintiff was entitled to get a conveyance executed and registered by the defendant on payment of the consideration money mentioned in the agreement and in the manner and under the conditions specified therein. The suit was resisted by the defendant company who raised a large number of defences in answer to the plaintiff 's claim, most of which are not relevant for our present purpose. The principal contentions raised on behalf of the defendant were that a suit of this description was not maintainable under section 42 of the Specific Relief Act and that the plaintiff had no locus standi to institute the suit. The most material plea was that the contract of sale stood discharged by frustration as it became impossible by reason of the supervening events to perform a material part of it. Bejoy Krishna Roy did not file any written statement and he was examined by the plaintiff as a witness on his behalf. 316 The trial judge by his judgment dated 10th October, 1.947, overruled all the pleas taken by the defendant and decreed the plaintiff 's suit. An appeal taken by the defendant to the Court of the District Judge of 24 Parganas was dismissed on the 25th February, 1949, and the judgment of the trial court was affirmed. The defendant company thereupon preferred a second appeal to the High Court which was heard by a Division Bench consisting 'of Das Gupta and Lahiri JJ. The only question canvassed before the High Court was, whether the contract of sale was frustrated by reason of the requisition orders issued by the Government? The learned Judges answered this question in the affirmative in favour of the defendant and on that ground alone dismissed the plaintiff 's suit. The plaintiff has now come before us on the strength of a certificate granted by the High Court under article 133(I)(c) of the Constitution of India. The learned Attorney General, who appeared in support of the appeal, has put forward a three fold contention on behalf of his client. He has contended in the first place that the doctrine of English law relating to frustration of contract, upon which the learned Judges of the High Court based their Decision has no application to India in view of the statutory provision contained in section 56 of the Indian Contract Act. it is argued in the second place, that even if the English law Applies, it can have no application to contracts for sale of land and that is in fact the opinion expressed by the English ,judges themselves. His third and the last argument is that on the admitted faacts and circumstances of this case there was no frustrating event which could be said to have taken away the basis of the contract or tendered its performance impossible in any sense of the word. The first argument advanced by the learned AttorneyGeneral raises a somewhat debatable point regarding the true scope and effect of section 56 of the Indian Contract Act and to what extent, if any, it incorporates the English rule of frustration of contracts. 317 Section 56 occurs in Chapter IV of the Indian Contract Act which relates to performance of contracts and it purports to deal with one circumstances under which performance of a, contract is excused or dispensed with on the ground of the contract being void. The section stands as follows: "An agreement to do an act impossible in itself is void. A contract to do an act which after the contract is made, becomes impossible, or, by reason of some event which the promiser could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promise sustains through the non performance of the promise". The first_paragraph of the section lays down the law in the same way as in England. It speaks of something which is impossible inherently or by its very nature, and no one can obviously be directed to an act. The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. The wording of this paragraph is quite general, and though the illustrations attached to it are not at all happy, they cannotderogate from the general words used in the enactment. This much is clear that the word "impossible" has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticbale and useless from the point of view of the object and purpose which the parties had in view and if an untoward event or change of circumstances totally upset the very foundation upon which the parties rested their bargain, it can very well be said that the promisor L/B(D)2SCI 6(a) 318 found it impossible to do the act which he promised to do. Although various theories have been propounded by the Judges and jurists in England regarding the juridical basis of the doctrine of frustration, yet the essential idea upon which the doctrine is based is that of impossibility of performance of the contract: in fact impossibility and frustration are often used as interchangeable expressions. The changed circumstances, it is said, make the performance of the contract impossible and the parties are absolved from the further performance of it as they did not promise to perform an impossibility The parties shall be excused, as Lord Loreburn says(1), "if substantially the whole contract becomes impossible of performance or in other words impracticable by some cause for which neither was responsible,. " In Joseph Constantine Steamship Line Limited vs Imperial Smelting Corporation Ltd.(2), Viscount Maugham obseryed that the "doctrine of frustration is only a special case of the discharge of contract by an impossibility of performance arising after the contract was made." Lord Porter agreed with this view and rested the doctrine on the same basis. The question was considered and discussed by a Division Bench of the Nagpur High Court in Kesari Chand vs Governor General in Council(3) and it was held that the doctrine of frustration comes into play when a contract becomes impossi ble of performance, after it is made, on account of circum stances beyond the control of the parties. The doctrine is a special case of impossibility and as such comes under section 56 of the Indian Contract Act. We are in entire agreement with this view which is fortified by a recent pronouncement of this court in Ganga Saran vs Ram Charan(4), where Fazl (1) See Tamplin Steamship Co. Ltd. vs Anglo Mexican Petroleum Products Co. Ltd.[1916] 2 A.C. 397, 403. (2) at 168. (3) I.L.R. (4) ; at 52. 319 Ali J., in speaking about frustration, observed in his judgment as follows: "It seems necessary for us to emphasise that so far as the courts in this country are concerned, they must loot primarily to the law as embodied in sections 32 and 56 of the . " We hold, therefore, that the doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of section 56 of the . It would be incorrect to say that section 56 of the Contract Act applies only to cases of physical impossibility and that where this section is not applicable, recourse can be had to the principles of English law on the subject of frustration. It must be held also that to the extent that the deals with a particular subject, it is exhaustive upon the same and it is not permissible to import the principles of English law dehors these statutory provisions. The decisions of the English courts possess only a persuasive value and may be helpful in showing how the courts in England have decided cases under circumstances similar to those which have come before our courts. It seems necessary however to clear up some misconception which is likely to arise because of the complexities of the English law on the subject. The law of frustration in England developed, as is well known, under the guise of reading implied terms into contracts. The court implies a term or exception and treats that as part of the contract. In the case of Taylor vs Caldwell(1), Blackburn J. first formulated the doctrine in its modern form. The court there was dealing with a case where a music hall in which one of the contracting parties had agreed to give concerts on certain specified days was accidentally burnt by fire. It was held that such a contract must be regarded "as subject to an implied condition that the parties shall be excused, in case, before breach, performance becomes impossible from perishing of the thing without (1) ; 320 default of. the contractor. " Again in Robinson vs Davison(1) there was a contract between the plaintiff and the defendant 's wife (as the agent of her husband) that she should play the piano at a concert to be given by the plaintifl on a specified day. On the day in question she was unable to perform through illness. The contract did not contain any term as to what was to be done in case of her being too ill to perform. In an action against the defendant for breach of contract, it was held that the wife 's illness and the consequent incapacity excused her and that the contract was in its nature not absolute but conditional upon her being well enough to perform. Bramwell B. pointed out in course of his judgment that in holding that the illness of the defendant incapaciated her from performing the agreement the court was not really engrafting a new term upon an express contract. It was not that the obligation was absolute in the original agreement and a new condition was subsequently added to it; the whole question was whether the original contract was absolute or conditional and having regard to the terms of the bargain, it must be held to be conditional. The English law passed through various stages of development since then and the principles enunciated in the various decided authorities cannot be said to be in any way uniform. In many of the pronouncements of the highest courts in England the doctrine of frustration was held "to be a device by which the rules as to absolute contracts are reconciled with a special exception which justice demands"(2). The court, it is said, cannot claim to exercise a dispensing power or to modify or alter contracts. But when an unexpected event or change of circumstance occurs, the possibility of which the parties did not circumstance occurs, the possibility contract is taken to be not what the parties actual intended, but what they as fair and reasonable men would presumably have intended and agreed upon, if having such possibility in view they had made express provsion as to their rights and liabilities in the event of such occurrence(1). As Loard Wright (1) ; (2) Vide Hirji Mulji vs Cheong Yue Steamship Co. Ltd. at 510. (3) Vide Dahl vs Nelson, Donkinand Co. (1881) 6 App. 38 at 59. 321 observed in Joseph Constantine Steamship Co. vs Imperial Smelting Corporation Ltd.(1). "In ascertaining the meaning of the contract and its application to the actual occurrences, the court has to decide, not what the parties actually intended but what as reasonable men they should have intended. The court personifies for this purpose the reasonable man. " Lord Wright clarified the position still further in the later case of Denny, Mott and Dickson Ltd. vs James B. Fraser & Co. Ltd.(1), where he made the following observations: "Though it has been constantly said by high authority, including Lord Sumner, that the explanation of the rule is to be found in the theory that it depends on an implied con dition of the contract, that is really no explanation. It only pushes back the problem a single stage. It leaves the question what is the reason for implying a term. Nor can I reconcile that theory with the view that the result does not depend on what the parties might, or would, as hard bargainers, have agreed. The doctrine is invented by the court in order to supplement the defects of the actual contract. To my mind the theory of the implied condition is not really consistent with the true theory of frustration. It has never been acted on by the court as a ground of decision, but is merely stated as a theoretical explanation. " In the recent case of British Movietonews Ltd. vs London and District Cinemas Ltd.(1), Denning L. J. in the Court of Appeal took the view expressed by Lord Wright as stated above as meaning that "the court really exercises a qualifying power a power to qualify the absolute., literal or wide terms of the contract in order to do what is just and reasonable in the new situation". "The day is gone," (1) at 185. (2) ; at 275. (3) L/ B(D) 2SCI 7 322 the learned Judge went on to say, "when we can excuse an unforeseen injustice by saying to the sufferer 'it is your own folly, you ought not to have passed that form of words. You ought to have put in a clause to protect yourself '. We no longer credit a party with the foresight of a Prophet or his lawyer with the draftsmanship of a Chalmers. We realise that they have their limitations and make allowances accor dingly. It is better thus. The old maxim reminds us that he who clings to the letter clings to the dry and barren shell and misses the truth and substance of the matter. We have of late paid heed to this warning, and we must pay like heed now. " This decision of the Court of Appeal was reversed by the House of Lords and Viscount Simon in course of his judgment expressed disapproval of the way in which the law was stated by Denning L.J. It was held that there was no change in the law as a result of which the courts could exercise a wider power in this regard than they used to do previously. "The principle remains the same", thus observed his Lordship. "Particular applications of it may greatly vary and theoretical lawyers may debate whether the rule should be regarded as arising from implied term or because the basis of the contract no longer exists. In any view, it is a question of construction as Lord Wright pointed out in Constantine 's case and as has been repeatedly asserted by other masters of law. "(1) These differences in the way of formulating legal theories really do not concern us so long as we have a statutory provision in the . In deciding cases in India the only doctrine that we have to go by is that of supervening impossibility or illegality as laid down in section 56 of the Contract Act taking the word "Impossible" in its practical and not literal sense. It must be borne in mind, however, that section 56 lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties. (1) at 184. 323 In the latest decision of the House of Lords referred to above, the Lord Chancellor puts the whole doctrine upon the principle of construction. But the question of construction may manifest itself in two totally different ways. In one class of cases the question may simply be, as to what the parties themselves had actually intended and whether or not there as a condition in the contract itself, express or implied, which operated, according to the agreement of the Parties themselves to release them from their obligations; this would be a question of construction pure and simple and the ordinary rules of construction would have to be applied to find out what the real intention of the parties was. According to the , a promise may be express or implied(1). In cases, therefore, where the court gathers as a matter of construction that the contract itself contained impliedly or expressly a term, according to which it would stand discharged on the happening of certain circumstances the dissolution on of the contract would take place under the terms of the contract itself and such cases would be outside the purview of section 56 altogether. Although in English law these cases are treated as cases of frustration, in India they would be dealt with under section 32 of the which deals with contingent contracts or similar other provisions contained in the Act. In the large majority of cases however the doctrine of frustration is applied not on the ground that the parties themselves agreed to an implied term which operated to release them from the performance of the contract. The relief is given by the court on the ground of subsequent impossibility when it finds that the whole purpose or basis of a contract was frustrated by the intrusion or occurrence of an unexpected event or change of circumstances which was beyond what was contemplated by the parties at the time when they entered into the agreement. Here there is no question of finding out an implied term agreed to by the parties em bodying a provision for discharge, because the parties did not think about the matter at all nor could possibly have any intention regarding it. When such an event or change of (1) Vide section 9. L/B(D)2SCI 7(a) 324 circumstance occurs which is so fundamental as to be re garded by law as striking at the root of the contract as a whole, it is the court which can pronounce the contract to be frustrated and at an end. The court undoubtedly has to examine the contract and the circumstances under which it was made. The belief, knowledge and intention of the parties are evidence, but evidence only on which the court has to form its own conclusion whether the changed cir cumstances destroyed altogether the basis of the adventure and its underlying object(1). This may be called a rule of construction by English Judges but it is certainly not a, principle of giving effect to the intention of the parties which underlies all rules of construction. This is really a rule of positive law and as such comes within the purview of section 56 of the . It must be pointed out here that if the parties do con template the possibility of an intervening circumstance which might affect the performance of the contract, but expressly stipulate that the contract would stand despite such circumstances, there can be no case of frustration because the basis of the contract being to demand performance despite the happening of a particular event, it cannot disappear when that event happens. As Lord Atkinson said in Matthey vs Curling(1), "a person who expressly contracts absolutely to do a thing not naturally impossible is not excused for nonperformance because of being prevented by the act of God or the King 's enemies. . or vis major". This being the legal position, a contention in the extreme form that the doctrine of frustration as recognised in English law does no come at all within the purview of section 56 of the cannot be accepted. The second contention raised by the Attorney General can be disposed of in few words. It is true that in England the judicial opinion generally expressed is, that the doctrine of frustration does not operate in the case of contracts for (1) Vide Morgan vs Manser (1947] 2 AU E.R. 666. (2) at 234. 325 sale of land(1). But the reason underlying this view is that under the English law as soon as there is a concluded contract by A to sell land to B at certain price, B becomes in equity, the owner of the land, subject to his obligation to pay the purchase money '. On the other hand, A in spite of his having the legal estate holds the same in trust for the purchaser and whatever rights he still retains in the land are referable to his right to recover and receive the purchase money. The rule of frustration can only put an end to purely contractual obligations, but it cannot destroy an estate in land which has already accrued in favour of a contracting party. According to the Indian law, which is embodied in section 54 of the Transfer of Property Act, a contract for sale of land does not of itself create any interest in the property which is the subject matter of the contract. The obligations of the parties to a contract for sale of land are, therefore, the same as in other ordinary contracts and consequendy there is no conceivable reason why the doctrine of frustration should not be applicable to contracts for sale of land in India. This contention of the Attorney General must, therefore, fail. We now come to the last and most important point in this case which raises the question as to whether, as a result of the requisition orders, under which the lands comprised in the development scheme of the defendant company were requisitioned by Government, the contract of sale between the defendant company and the plaintiff 's predecessor stood dissolved by frustration or in other words became impossible of performance. It is well settled and not disputed before us that if and when there is frustration the dissolution of the contract occurs automatically. It does not depend, as does rescission of a contract on the ground of repudiation or breach, or on the choice or election of either party. It depends on the effect (1) Vida Billington Estates Co. vs Stonfield Estate Ltd. [1952] 1 All E.R.853. 326 of what has actually happened on the possibility of performing the contrat (1). What happens generally in such cases and has happened here is that one party claims that the contract has been frustrated while the other party denies it. The issue has got to be decided by the court "ex post facto, on the actual circumstances of the case"(2). We will now proceed to examine the nature and terms of the contract before us and the circumstances under which it was entered into to determine whether or not the disturbing element,which is allowed to have happened here, has substantially prevented the performance of the contract as a whole. It may be stated at the outset that the. contract before us cannot be looked upon as an ordinary contract for sale and purchase of a piece of land; it is an integral part of a development scheme started by the defendant company and is one of the many contracts that have been entered into by a large number of persons with the company. The object of the company was undoubtedly to develop a fairly extensive area which was still undeveloped and make it usable for residential purposes by making roads and constructing drains through it. The purchaser. on the other hand, wanted the land in regard to which he entered into the contract to be developed and make ready for building purposes before he could be called upon to complete the purchase. The most material thing which deserves notice is, that there is abso lutely no time limit within which. the roads and drains are to be made. The learned District Judge of Alipore, who heard the appeal, from the trial court 's judgment found it as a fact, on the evidence in the record, that there was not an understanding between the parties on this point. As a matter of fact, the first requisition order was passed nearly 15 months after the contract was made and apparently no work was done by the defendant company in the meantime. Another important thing that requires notice in this con (1) Per Lord Wright in Denny, Mott and Dicksom Ltd. vs Jameso B. Fraser and Co., Ltd. ; , 274, (2) Ibid. 327 nection is that the war was already on, when the parties entered into the contract. Requisition orders for taking temporary possession of lands for war purposes were normal events during this period. Apart from requisition orders there were other difficulties in doing construction work at that time because of the scarcity of materials and the various restrictions which the Government had imposed in respect of them. That there were certain risks and difficulties involved in carrying on operations like these, could not but be in the contemplation of the parties at the time when they entered into the contract, and that is probably the reason why no definite time limit was mentioned in the contract within which the roads and drains are to be completed. This was left entirely to the convenience of the company and as at matter of fact the purchaser did not feel concerned about it. It is against this background that we are to consider to what extent the passing of the requisition orders affected the performance of the contract in the present case. The company, it must be admitted, bad not commenced the development work when the requisition order was passed in November, 1941. There was no question, therefore, of any work or service being interrupted for an indefinite period of time. Undoubtedly the commencement of the work was delayed but was the delay going to be so great and of such a character that it would totally upset the basis of the bargain and comercial object which the parties had in view? The requisition orders, it must be remembered, were ' by their very nature, of a temporary character and the requisitioning authorities could, in law, occupy the position of a licensee in regard to the requisitioned property. The order might continue during the whole period of the war and even for some time after that or it could have been withdrawn before the war terminated. If there was a definite time limit agreed to by the parties within which the construction work was to be finished, it could be said with perfect propriety that delay for an indefinite period would 328 make the performance of the contract impossible within the specified time and this would seriously affect the object and purpose of the venture. But when there is no time limit whatsoever in the contract, nor even an understanding bet ween the parties on that point and when during the war the parties could naturally anticipate restrictions of various kinds which would make the carrying on of these operations more tardy and difficult than in times of peace, we do not think that the order of requisition affected the fundamental basis upon which the agreement rested or struck at the roots of the adventure. The learned Judges of the High Court in deciding the case against the plaintiff relied entirely on the time factor. It is true that the parties could not contemplate an absolutely unlimited period of time to fulfil their contract. They might certainly have in mind a period of time which was reasonable having regard to the nature and magnitude of the work to be done as well as the conditions of war prevailing at that time. Das Gupta, J., who delivered the judgment of the High Court, says first of all that the company had in contemplation a period of time not much exceeding 2 or 3 years as the time for performance of the contract; the purchaser also had the same period of time in contemplation. The learned Judge records his finding on the point in the following words: "My conclusion on a consideration of the surrounding circumstances of the contract is that the parties contemplated that the roads and drains would be constructed and the conveyance would be completed in the not distant future. " This finding is inconclusive and goes contrary to what has been held by the District Judge who was undoubtedly the last court of facts. In our opinion, having regard to the nature and terms of the contract, the actual existence of war conditions at the time when it was entered into, the extent of the work involved in the development scheme and last though not the least the total absence of any definite period of time agreed to by the parties within which the work was 329 to be completed, it cannot be said that the requisition order vitally affected the contract or made its performance impossible. Mr. Gupta, who appeared for the respondent company. put forward an alternative argument that even if the performance of the contract was not made impossible. it certainly became illegal as a result of the requisition order and con sequently the contract became void under section 56 of the as soon as the requisition order was made. In support of his contention the learned counsel placed reliance upon certain provisions of the Defence of India Rules and also upon illustration (d) to section 56 of the Contract Act. All that the Defence Regulations show is that the violation of a requisition order could be punished as a criminal offence. But no matter in whichever way the requisition order could be enforced, in substance it did nothing else but impose a prohibition on the use of the land during the period that it remained in force. The effect of such prohibition on the performance of the contract, we have discussed above, and we do not think that the mere fact that the requisition order was capable of being enforced by a criminal sanction made any difference in this respect. In any view this question was not raised in any of the courts below and has not been indicated even in the respondent 's statement of the case. We do not think that it would be proper to allow this question to be raised for the first time before us, as it requires consideration of the different provisions of the Defence of India Act and also of the implication of illustration (d) appended to section 56 of the Contract Act. In our opinion, the events which have happened here cannot be said to have made the performance of the contract impossible and the contract has not been frustrated at all. The result is that the appeal is allowed, the judgment and decree of the High Court of Calcutta are set aside and those of the courts below restored. The plaintiff will have his costs in all the courts. Appeal allowed. Agent for the respondent No. I : R. R. Biswas.

The doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of section 56 of the Indian Contract Act. The view that section 56 applies only to cases of physical impossibility and that where this section is not applicable recourse can be had to the principles of English law on the subject of frustration is not correct. English cases can have only a persuasive value, and are only helpful in showing how English courts decided cases under similar circumstances. Section 56 of the Indian Contract Act lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties. According to the Indian Contract Act. a promise may be express or implied. In cases, therefore, where the court gathers as a matter of construction that the contract itself contained impliedly or expressly a term, according to which it would stand discharged on the happening of certain circumstances, the dissolution of the contract would take place under the terms of the contract itself and such cases would be outside the purview of section 56 altogether. Although in English law these cases are treated as cases of frustration, in India they would be dealt with under section 32 of the Indian Contract Act which deals with contingent contracts or similar other provisions contained in the Act. In the large majority of cases however the doctrine of frustration. is applied not on the ground that the parties themselves agreed to an implied term which operated to release 311 them from the performance of the contract. The relief is given by the court on the ground of subsequent impossibility when it finds that the whole purpose or basis of a contract was frustrated by the intrusion or occurrence of an unexpected event or change of circumstances which was beyond what was contemplated by the parties at the time when they entered into the agreement. Here there is no question of finding out an implied term agreed to by the parties embodying a provision for discharge, because the parties did not think about the matter at all nor could possibly have any intention regarding it. When ' such an event or change of circumstance occurs which is so, fundamental as to be regarded by law as striking at the root of the contract as a whole, it is the court which can pronounce the contract to be frustrated and at an end. The court undoubtedly has to examine the contract and the circumstances under which it was made. The belief, knowledge and intention of the parties are evidence, but evidence only on which the court has to form its own conclusion whether the changed circum stances destroyed altogether the basis of the adventure and its underlying object. This may be called a rule of construction by English Judges but it is certainly not a principle of giving effect to the intention of the parties which underlies all rules of construction. This is really a rule of positive law and as such comes within the purview of section 56 of the Indian Contract Act. The reason underlying the rule of English law that the doctrine of frustration does not apply to contracts for the sale of land. is that under the English law, ,is soon as the agreement to sell is complete the buyer becomes the owner of the land in equity. As a mere agreement to sell does not confer any rights of ownership on the buyer under the Indian law, the doctrine of frustration is as applicable in India to agreements for sale of land as in the case of other agreements. In 1940 as an integral part of a development scheme of an extensive area of land started by the defendant company, it entered into a contract with the plaintiff 's predecessor for the sale of a Plot of land to the latter accepting a small sum of money as earnest. It undertook to construct roads and drains and the conveyance was to be completed soon after the completion of tile roads on payment of the balance of the Price. As a considerable portion of the area comporised in the scheme was requisitioned by the Government for military Purposes in 1941, the company wrote to the defendant that the road construction could not be taken up for an indefinite period and required him to treat the agreement as cancelled and receive back his earnest: Held. that having regard to the nature and terms of the contracts the actual existence of war condition at the time when it was entered into the extent of the work involved in the scheme fixing no time limit in the agreement for the cons truction of the roads etc., and the fact that the order of requisition was in its very nature of a temporary character, the requisition did not affect the fundamental basis of the contract; nor 312 did the performance of the contract become illegal by reason of the requisition, and the contract had not therefore become impossible within the meaning of section 56 of the Indian Contract Act. Joseph Constantine Steamship Co. vs Imperial Smelting Cor poration Ltd. ([1942] A.C. 154), Tamplin Steamship Co. Ltd. vs Anglo American Products Co. Ltd. ([1916] A.C. 397), Kesari Chand vs Governor General in Council (I.L.R. , Ganga Saran vs Ram Charan ([1952] S.C.R. 36), Taylor vs Caldwell (3 B. and section 826), Robinson vs Davison ; Denny Mott and Dickson Ltd. vs James B. Frazer & Co. Ltd. ; referred to.

Civil Appeal No. 1759 of 1981 Appeal by special leave from the judgment and order dated 3rd December, 1980 of the Allahabad High Court in Civil Revision No. 525 of 1980 F.S. Nariman and K.K. Mohan, for the Appellant. R.K. Garg, Pramod Swarup and Sunil Kumar Jain, for the Respondent. The Judgment of the Court was delivered by PATHAK, J. In a suit for ejectment of a lessee and for recovery of arrears of rent, does the court enjoy any discretion not to strike off the defence in case the defendant has defaulted in depositing the rent and has also failed to make any representation within the terms of Rule 5 of Order XV, Code of Civil Procedure? That question is raised in this defendant 's appeal by special leave against an order of the Allahabad High Court maintaining in revision that the trial court has no discretion in the circumstances but must strike off the defence. The respondent as lessor filed a suit against the appellant as lessee for his ejectment and for recovery of arrears of rent. The appellant filed a written statement and resisted the suit. During the pendency of the suit the respondent filed an application praying that the appellant 's defence be struck off in view of Rule 5 of Order XV, Code of Civil Procedure, inasmuch as the appellant had committed default in depositing the rent regularly. The appellant opposed the application and attempted to show that he had been depositing the rent as required by the law. The trial court held that while the rental arrears admitted by the appellant to be due had been deposited in accordance with the relevant provision of sub rule (1) of Rule 5 of Order XV, he had failed to make regular deposits of the monthly rent accruing during the pendency of the suit as required by the other provision of the said Rule. The trial court also noted that the appellant had failed to make any representation permitted him by sub rule (2) of Rule 5 of Order XV within the time prescribed in that provision. Following a ruling of the Allahabad High Court 126 that in those circumstances the court was obliged to strike off the defence, that trial court did exactly that. The appellant applied in revision to the High Court, and the High Court, in view of the view taken by a Division Bench in Puran Chand vs Pravin Gupta, affirmed the order of the trial court. Rule 5 of Order XV, Code of Civil Procedure, was enacted by the U.P. Civil Laws (Amendment) Act 1972. It provided that unless the defendant deposited the admitted rent or compensation at or before the first hearing of the suit and also deposited the monthly rent regularly, his defence was liable to be struck off. There was a further provision entitling a defendant to make a representation and obtain further time to make the deposit. The Rule was repealed by U.P. Act No. 57 of 1976 and was re enacted as follows: "Striking off defence an failure to deposit admitted rent, etc. (1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit deposit the monthly amount due within a week from the date of its accrual and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid the court may subject to the provisions of sub rule (2) strike off his defence. Explanation 1 . . Explanation 2 . . Explanation 3 . . (2) Before making an order for striking off defence, the court may consider any representation made by the defendant in that behalf provided such representation is made within ten days of the first hearing or of the 127 expiry of the week referred to in sub section (1) as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff; Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited; Provided further that if the amount deposited includes any sums claimed by the depositor to be deductable on any account the court may require the plaintiff to furnish security for such sum before he is allowed to withdraw the same". The High Court held in Puran Chand (supra) that if the representation contemplated by sub rule (2) was not made within the time prescribed therein the court had no jurisdiction to entertain a representation made beyond time and to condone the delay in making it. It held further that where no representation was made, or if made was filed beyond time, the court was bound to strike off the defence and enjoyed no discretion in the matter. It appears on the facts in this case that no representation under sub rule (2) was made by the appellant. The only question raised before us is whether, in the absence of such representation, the court was obliged to strike off the defence of the appellant. It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, "the court may subject to the provisions of sub rule (2) strike off his defence". We shall presently come to what this means. Sub rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, 128 the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred, there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub rule (1) obliges the court to strike off the defence? We must remember that an order under sub rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub rule (2), the defence should or should not be struck off. The word "may" in sub rule (1) merely vests power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV. In the circumstances, the appeal is allowed, the order dated December 3, 1980 of the High Court is set aside and the case is remanded to the High Court for fresh consideration. In the circumstances, there is no order as to costs. N.K.A. Appeal allowed.

Rule 5 of Order XV C.P.C. was re enacted by the U.P. Act 1976 and it provided that the defendant shall deposit the entire amount of rent due from him together with interest at or before the first hearing of the suit for eviction and also continue to deposit the monthly amount regularly and that on failure to do so, his defence was liable to be struck off. Another rule provided that before striking off the defence, the Court may consider any representation made in that behalf. The respondent filed a suit against the appellant for ejectment and recovery of arrears of rent. The appellant filed written statement and resisted the suit. The appellant during the pendency of the suit committed default in depositing the rent regularly and the respondent filed application under Rule 5 Order XV C.P.C. for striking off the appellant 's defence. The appellant attempted to show that he had been depositing the rent as required by law. The trial court accepted the application and held that the appellant had failed to make any representation permitted by him under sub rule (2) of Rule 5 of Order XV within time. The trial court accordingly struck off the defence and the High Court affirmed the order of the trial court on the ground that where no representation was made or if made was filed beyond time, the Court was bound to strike off the defence and enjoyed no discretion in the matter. Allowing the Special Leave Petition, ^ HELD: An order under sub rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record, it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub rule (2), the defence should or should not be struck off. The word "may" in sub rule (1) merely vests power in the court to strike off the defence. It does not oblige it to do so in every case of default. [128 C D] 125 Puran Chand vs Pravin Gupta, Civil Revision No. 356 of 1978 decided on October 30, 1980 All. H.C. overruled.

ivil Appeal Nos. 2809 2812A of 1986. From the Judgment and Order dated 6.2.1986 of the Alla habad High Court in Civil Misc. W.P. Nos. 2274, 2983, 3860, 4558 and 3202 of 1984. Rajinder Sachher and Bharat Sanghal for the Appellants. Harbans Lal, Dr. Meera Agarwal, R.C. Misra and Arun Madan for the Respondents. The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J. These five appeals by Special Leave under Article 136 of the Constitution of India are preferred against the Judgment and Or, let dated 6.2.86 passed by the Allahabad High Court in Civil Misc. Writ Petition No. 2274/84 connected with Civil Misc. Writ Peti tion Nos. 2983/84, 3860/84, 4558/84 & 3202/84 directing the respondents (appellants herein) to re determine the cost of the appellants ' (respondents herein) flats and instalments payable by them after hearing their grievances. Since identical contentions are urged in all the ap peals, we are rendering a common judgment. As it is said that Civil Appeal No. 2809/86 arising out of Civil Misc. Writ Petition No. 2274/84 is more comprehen sive and the facts alleged therein may be taken as represen tative in character, the facts relating to this appeal are briefly stated. The Bareilly Development Authority (hereinafter re ferred. as 'BDA '), the first appellant was constituted under Section 4 of the U.P. Urban Planning and Development Act, 1973 by the State Government 747 for the purposes of development in the District of Bareilly., With a view to casing the acute housing problem in the said District, the BDA has undertaken construction of dwelling units for people belonging to different income groups styled as 'Lower Income Group ', 'Middle Income Group ', 'High Income Group ' and the 'Economically Weaker Sections ' (hereinafter referred as LIG, MIG, HIG and EWS respectively). The BDA issued ' an advertisement offering to register names of intending applicants desirous of purchas ing dwelling houses/flats in any one of the different income groups intended to be constructed by the BDA. In this appeal i.e. Civil Appeal No. 2809/86, the respondents 1 to 17 and 20 got themselves registered for allotment of flats in MIG scheme and respondents 18 and 19 in HIG scheme with the BDA in accordance with the terms and conditions contained in the brochure issued by the Authority. The following table of the brochure shows the necessary details inclusive of the esti mated cost for the different types of flats under various categories: Type of Range of Cost Initial Interest Approx House Income payment monthly instalment MIG Rs. 1000 to Rs.64,000 Rs.5000 12% Rs.551 p.m. for Rs. 1500 p.m. 15 yrs. HIG Rs. 1500 and Rs. 1, 15,000 Rs.7000 12% Rs. 1440 above p.m. p.m. for 10 yrs. LIG Rs.351 to Rs.35,000 Rs.2000 11% Rs.345 p.m. for Rs. 1000 p.m. 15 yrs. EWS Rs.350 p.m. Rs. 11,000 Rs, 100 7% Rs.89 p.m. for 20 yrs. The note under the 'General Information Table ' given in the said brochure states that the cost shown therein is only estimated cost and it would increase or decrease according to the rise or fail in the price at the time of completion of the houses/flats. All the respondents registered.their names ' for MIG, HIG and 748 EWS flats as the case may be and made the initial deposit. Thereafter, the respondents in MIG group received indentical notices dated 19/20.1.84 from the Secretary, Bareilly Devel opment Authority (second appellant) intimating that the revised cost of houses/flats of MIG group as well as the amount of monthly instalment would be as follows: 1. No. of houses available 77 2. Cost of the house Rs. 1,27,000 3. Down payment to be made/ Rs.35,000 paid on allotment 4. No. of monthly instalment 180 fixed for the payment of remaining amount 5. Rate of yearly interest 13.5% 6. Amount of monthly instalment Rs. 1,031.50 with interest. By the said notice, the respondents in MIG group were informed that 40% of the houses/flats mentioned in the notice would be given to the allottees who would deposit the entire cost in one cash payment and that the other allottees who intend to buy houses/flats on the above revised price/instalments must send by 28.1.84 their written accept ance on the annexed proforma to the Registration Section of the office of the BDA otherwise their claims would not be included in the lots to be drawn on 31.1.1984. Except the respondents Nos. 13, 17, 18 and 20, all other respondents in reply to those notices gave their unequivocal and uncondi tional written consent. Hence their names were included in the draw and on being lucky in the draw, the respondents barring the above 4 were allotted their respective houses. After allotment, they were asked to complete the other formalities and make down payments in accordance with the notice. dated 19/20.1.1984, by a further notice dated 3.2.1984 (Annexure 'F '). Similar notices were issued to all the registered allottees for all types of houses and the respondents were also intimated that in case any of the registered persons does not want to purchase the house, his name would not be included in the draw but he would have his choice later on. 749 At this stage, all the respondents in these appeals approached the High Court under Article 226 of the Constitu tion of India challenging the revised terms and conditions of the BDA on the ground that the petitioners were estopped from changing the conditions subject to which the respond ents applicants had applied for registration and deposited the initial payment in the year 1980; that the enhancement of cost of the house/flat amounting almost double of the estimated cost as shown in the brochure while inviting the applications and the increase of the monthly instalments are much beyond the means of the respondents and that this arbitrary and unilateral stand of the petitioners is to the prejudice of the respondents. On the above contentions, the respondents prayed in their respective petitions for issue of writ of mandamus directing the petitioners to maintain the allotment of the flats in their favour on the original terms and conditions, to hand over the possession of the same and further to restrain the petitioners from cancelling the original allotment. The above plea was resisted by the petitioners strongly relying on certain conditions contained in the brochure especially of clauses 12 and 13 as per which the BDA has reserved its discretion to change, alter or modify any of the terms and/or conditions of the allotment given in the brochure; that its decision would be final with regard to any matter concerning the registration and allot ment and that the BDA has right to relax any condition in its discretion. It has been further contended that respond ents barring 13, 17, 18 and 20 have given their written acceptance to the changed conditions as mentioned in the notice dated 19/20.1.1984 and as such they are not entitled to the reliefs claimed in the writ petition. According to the petitioners the increase in the cost and the interest demanded from the respondents is neither arbitrary nor unreasonable and the High Court is not the proper forum for examining in detail the terms regarding payment of instal ments in the circumstances of the present case, and if the respondents were not agreeable to the changed terms and conditions, they could as well resile from their consent. Finally, it was contended that the respondents are estopped from challenging the varied terms and conditions of the allotment after having consented. The High Court though repelled the contention of the respondents (allottees) based on the principle of promissory estoppel, made the following observations with regard to the case of the respondents in the MIG category: "In the circumstances of the present case the fixation of monthly instalment to the tune of Rs.1031.50 from the 750 petitioners of MIG group whose income is hardly Rs. 1500 per month appears to us smack ing of arbitrariness and unreasonableness on the part of the contesting opposite party (petitioners herein)"; "In the circumstances of the present case, we are not satisfied that the contesting opposite party has succeeded in establishing its demand of double the estimated cost by facts and figures. The end of justice demands that the authority should refix the cost of the peti tioner 's flats after hearing their grievance. " The High Court answered the objections taken by the petitioners herein that the respondents have consented for the changed terms and conditions observing, "We think that the consent obtained from the petitioners was also not reasonable act on the part of the contesting opposite par ties (appellants herein)". Finally, the High Court adopting the above reasoning in respect of the cases of other re spondents also falling under various categories directed the appellants herein in all the writ petitions "to re determine the cost of the petitioners ' (respondents herein) flats and instalments payable by them after heating their grievances." Being aggrieved by the impugned judgment the appellants have filed these appeals by special leave. Shri Rajinder Sachher, St. Adv. after taking us through the relevant documents and the additional affidavit filed by the second respondent and the reply affidavit assailed the reasonings given by the High Court contending that the said Court has erroneously held that the BDA has failed to justi fy the demand of the enhancement in the cost of houses/flats as well as the increase of the monthly instalments in dis proportionate to their income, because the income of the applicant was relevant only to determine the category of the scheme in which the applicant had to be included for eligi bility to get a house/flat under the scheme but not for enhancement of the cost of the houses/ flats and monthly instalments. According to him since the declared policy of the BDA being 'No Profit No Loss ', it had fixed the cost of the houses/flats and the rate of instalments after taking into consideration of the escalation of the building materi al, labour charges, cost of transport and the allied valu able factors which all enter into the price fixation, and as such the High Court is not correct in going into the ques tion of computation of cost of the construction of houses/flats and 751 the plea of clerical mistakes exercising its jurisdiction under Article 226 of the Constitution of India. He further submits that the High Court has gone wrong in importing the principle laid down in Ramana Dayaram Shetty vs The Interna tional Airport Authority of India & Ors., AIR 1979 Supreme Court 1628 to the present facts and circumstances of the case in view of the fact that in price fixation the execu tive has a wide discretion and it is only answerable provid ed there is any statutory control over its policy of price fixation and it is not the function of the High Court to sit in judgment over such matters of economic policy. It has been vehemently urged that after the parties have entered into the field of ordinary contract, the relations are no longer covered by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. The fact that all respondents had applied for registra tion only on acceptance of terms and conditions contained in the brochure inclusive of Clauses 12 & 13 as well as the conditions mentioned in the Notes 1 and 2 of the 'General Information Table ' of the said brochure, and further the respondents barring respondents Nos. 13, 17, 18 and 20 in MIG group gave their reply accepting the changed terms and conditions as per letter dated 19/20.1.1984 cannot be chal lenged in view of the unassailable documentary evidence namely Annexures 'A ', 'D ', 'E ' and 'F '. Now, we shall reproduce some of the relevant conditions of the brochure as well as the changed conditions contained in the letter dated 19/20.1.1984. Clauses 12 and 13 of the brochure issued by the BDA and the notes 1 and 2 of the General Information Table thereto read thus: Clause 12 For allotment by lottery all the above men tioned terms and rules given in the booklet would ordinarily be followed but the Develop ment Authority will have the right to change, enhance or amend any of the terms and/or condition as and when it thinks necessary and at its discretion. Clause 13 The decision of the Development Authority in regard to any matter in relation to the regis tration application will be final. It would have the right to relax any of the conditions at its discretion. The fight to sell by auc tion the Middle 752 Income Group and Higher Income Group plots/houses or any portion thereof, of the various schemes, will also vest in the Devel opment Authority. General Information Table Note: (1) The cost shown in the column 4 is only estimated cost. It will increase or decrease according to the rise or fall in the price at the time of completion of the property. Note: (2) The data given in the above mentioned table can be amended as felt neces sary. The last paragraph of the letter dated 19/20.1.84 (Annexure 'D ') reads thus: "If you want to buy the house on the above price/instalment then you must send by 28.1.1984 your written acceptance on the annexed proforma to the Registration Section of this office. " It may be mentioned here that in this letter (Annexure 'D '), the BDA has informed the allottees of MIG about the enhancement of the cost of the houses/flats as well as the increase of the monthly instalment and the rate of yearly interest etc. and requested the allottees to give their written acceptance so that their names could be included in the list. The respondents except the four above have sent their written acceptance to the letter (Annexure 'D '). For a better appreciation of the case of the appellants, we think that as an example the letter (Annexure 'E ') of the first respondent in this case namely Shri Ajay Pal Singh may be reproduced: "I, Ajay Pal Singh, S/o Shri Sujan Singh want to take a Middle Income Group house in the Housing Scheme No. 2 situated at Tibrinath of the Bareilly Development Authority on payment by instalment. I have seen the house and am satisfied. I accept the rules of the Bareilly Development Authority. " 753 Only on the basis of the written acceptance, the name of the first respondent was included in the draw and he has successful in getting the allotment of House No. 37 in MIG type which fact if clearly borne out by the letter from the second respondent (Annexure 'F '). In this connection, it is worthwhile to note that the first respondent, Shri Ajay Pal Singh is the Principal of Shri Guru Govind Singh Inter College and his educational qualifications are M.A. (Econ. & Hist.), B.Sc., B.Ed., LL.B. From the above, it is clear that all the respondents who have sent their applications for registration with initial payment only after having fully understood the terms and conditions of the brochure inclu sive of the Clauses 12 and 13 and Notes 1 and 2 of the General Information Table as per which the BDA has reserved its right to change, enhance or amend any of the terms and/or conditions as and when felt necessary, and also the right to relax any of the conditions at its discretion, and that the cost shown in the column 4 of the brochure was only estimated cost subject to increase or decrease according to the rise or fail in the price at the time of completion of the property. This is not only the case of the applicants of MIG scheme but also of the other applicants falling under the other categories i.e. HIG, LIG and EWS. So it cannot be said that there was a mis statemennt or incorrect statement or an fraudulent concealment in the information supplied in the brochure published by the BDA on the strength of which all the applicants falling under the various categories applied and got their names registered. In such a circum stance the respondents cannot be heard to say that the BDA has arbitrarily and unreasonably changed the terms and conditions of the brochure to the prejudice of the respond ents. More so, the respondents barring respondent Nos. 13, 17, 18 and 20 after having given their written consent accepting the changed and varied terms and conditions as shown in the letter dated 19/20.1.84 are not justified in contending that the BDA has gone back on its original terms ' and conditions and has substituted new conditions to their detriment. It is quite un understandable that the persons like the first respondent who is highly educated, occupying the post of the Principal of a College and who has accepted the changed terms and conditions by his letter is making these allega tions against the BDA. The respondents were under no obligation to seek allot ment of houses/flats even after they had registered them selves. Notwithstanding, they voluntarily registered them selves as applicants, only after fully understanding the terms and conditions of the brochure inclusive of Clauses 12 and 13 and Notes 1 and 2 of the General Information 754 Table which we have reproduced above, they are now trying to obtain the houses/flats at the price indicated in the bro chure at the initial stage conveniently ignoring the other express conditions by and under which the BDA has reserved its right to change the terms and conditions as and when felt necessary, evidently depending upon the escalation of the prices. One should not loose sight of the fact that the BDA did not compel anyone of the applicants to purchase the flat at the rates subsequently fixed by it and pay the increased monthly instalments. On the contrary, the option was left over only to the allottees. In fact, the respond ents in Civil Appeal No. 2809 of 1986 except the four above mentioned have unconditionally accepted the changed terms and conditions. Thus the factual position in this case clearly and unambiguously reveals that the respondents after voluntarily accepting the conditions imposed by the BDA have entered into the realm of concluded contract pure and simple with the BDA and hence the respondents can only claim the right conferred upon them by the said contract and are bound by the terms of the contract unless some statute steps in and confers some special statutory obligations on the part of the BDA in the contractual field. In the case before us, the contract between the respondents and the BDA does not con tain any statutory terms and/or conditions. When the factual position is so, the High Court placing reliance on the decision in Ramana Dayaram Shetty case ; has erroneously held: "It has not been disputed that the contesting opposite party is included within the term 'other authority ' mentioned under Article 12 of the Constitution. Therefore, the contesting opposite parties cannot be permitted to act arbitrarily with the principle which meets the test of reason and relevance. Where an author ity appears acting unreasonably this Court is not powerless and a writ of mandamus can be issued for performing its duty free from arbitrariness or unreasonableness. " This finding, in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty case there was no concluded contract as in this case. Even conceding that the BDA has the trap pings of a State or would be comprehended in 'other authori ty ' for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly instalments to be paid, the 'authority ' or its agent after 755 entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e. B.D.A. in this case) in the said contractual field. There is a line of decisions where the contract entered into between the State and the persons aggrieved is non statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple Radhakrishna Agarwal & Ors. vs State of Bihar & Ors. , ; ; Premji Bhai Parmar & Ors. etc. vs Delhi Development Authority & Ors, ; and D.F.O. vs Biswanath Tea Company Ltd., In view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appel lants herein in increasing the cost of the houses/flats and the rate of monthly instalments and giving directions in the writ petitions as prayed for. For the reasons hereinbefore stated, we set aside the judgment of the High Court and accordingly allow all the appeals. There will be no order as to costs. Before parting with the judgment, we would like to observe that it is open to the respondents to approach the appellants for correction of any clerical mistakes in the calculation, if any and they are at liberty to move any proper authority for any remedy if they are otherwise legal ly entitled to. P.S.S. Appeals al lowed.

Respondents 1 to 8 are Assistant Secretaries/Section Officers/ Superintendents who are working in different departments of the State of Maharashtra. Under the Rules governing their Service conditions the Govt. had prescribed Departmental Examination for promotion to the cadre of Superintendents; the passing of the examination was a condi tion precedent for the officials for being promoted as superintendents. The Examination in question was required to be conducted every year and the officials were required to pass the same within the stipulated period; and the offi cials who were not able to pass the said examination within the prescribed period were to lose their Seniority, but they were permitted to take the examination in any number of chances after the expiry of the stipulated period and they were to be promoted only when they qualify themselves. The Govt. as required under the Rules, could not hold the exami nation every year particularly in the years 1968, 1969 & 1970. The Govt. neither extended the period within which the officials were required to pass the examination nor promoted the seniors in the cadre of Superintendents subject to their passing the examination and instead thereof the juniors in the cadre who had qualified in the examination were promoted to the cadre of Superintendents. The seniors in the cadre were promoted only when they qualified the examination i.e. later in point of time. The Govt. issued a revised Seniority List relating to the cadre of Superintendents. In the said List the Respond ents herein were shown juniors to those persons who had not only qualified the Dept. Examination later in point of time but also promoted after them. Being aggrieved, the Respond ents herein challenged the validity of the revi 948 sion of the Seniority List as also the validity of the Rules being violative of article 14 & 16 of the Constitution by filing a Writ Petition in the Bombay High Court. The High Court allowed the Writ Petn. and issued the following two directives to the State Govt. (1) To recast the Revised/Final Seniority List dated 20.12.1982 vis a vis the persons shown in the Category of "Late Passing" after considering the objections of the Writ Petitioners and Ors. and assign them seniority strictly in accordance with Rule 2 and the other Government Orders referred to in paragraph 96 of the Judgment, and (2) The Seniority in the Superintendent 's Cadre so fixed should also be considered as seniority for further promo tions. Being dissatisfied with the said order of the High Court, the State of Maharashtra filed appeals in this Court after obtaining Special Leave. Allowing the appeals this Court, HELD: Under the 1951 Rules, the candidate could appear for the examination after two years of his entering into the cadre. He had three chances and he must pass within six years of his joining Service. Under the 1962 Rules a candi date was allowed to take the examination only after complet ing five years service in the cadre. He had three chances for taking the examination and that must be availed of within four years. That means he must pass the examination within 9 years ' service. Under both the Rules, the Govt was required to hold the examination every year, but no examina tion was held in 1968, 1969 and 1970. [953F G] Those recruited in 1961 are deprived of two chances in 1968 three chances in 1968, 1969 & 1970 and those of the year 1963 have lost two chances in 1969 & 1970. The last batch to lose one chance in 1970 is of the year 1964. [953H; 954A] Under the 1955 Rules, the Government preserved power to dispense with or relax the requirements of any rule regulat ing "the conditions of service of Government servants; or of any class thereof". [954B] 949 There is no restriction as to the exercise of the power or discretion.[954C] The Circular dated January 15, 1962 is an executive instruction whereas the 1955 Rules are statutory since framed under the proviso to article 309 of the Constitution. The Government could not have restricted the operation of the Statutory Rules by issuing the executive instruction. The executive instruction may supplement but cannot supplant the statutory rules. [954D E] Rule 2 of the 1962 Rules no doubt states that a candi date who does not pass the examination at the end of 9 years service will lose his seniority. But this rule cannot be read in isolation. [955D] If examination is not held every year. The rule cannot operate to the prejudice of a person who has not exhausted all his chances. The person who has not exhausted the avail able chances to appear in the examination cannot he denied of his seniority. It would be unjust, unreasonable and arbitrary to penalise a person for the default of the Gov ernment to hold the examination every year. That does not also appear to be the intent or purpose of the 1962 Rules. [955E F] The Govt. instead of promoting such persons in their turn made them to wait till they passed the examination. They are the persons failing into the category of "Late Passing". To remove the hardship caused to them the Govt. wisely restored their legitimate seniority in the promotion al cadre. There is nothing improper or illegal in this action and indeed, it is in harmony with the object of 1962 Rules. [955G H] The Court need not have to reflect upon the Rules of interpretation since they are well settled. They are now like the habits of driving which have become ingrained. They come for assistance by instinct. The different rules have to be used meticulously to give effect to the scheme as the clutch, brake and accelerator are used for smooth driving.

Appeals Nos. 702 and 703 of 1967. Appeals from the judgment and order dated September 28, 1960 of the Madhya Pradesh High Court in Misc. First Appeals Nos. 12 and 16 of 1958. M. C. Chagla, Rameshwar Nath and Swaranjit Ahuja, for the appellant (in both the appeals). section T. Desai and D. N. Mukherjee, for respondent No. 1 (in both the appeals). I. N. Shroff, for respondents Nos. 2 and 3 (in C.A. No. 703 of 1967) and respondent No. 2 (in C.A. No. 702 of 1967). The Judgment of the Court was delivered by Grover, J. These appeals which have been brought by cer tificates from a common judgment of the Madhya Pradesh High Court arise out of certain acquisition proceedings. The facts may be stated. Plots Nos. 670, 671 and 735 situate in Madan Mahal Extension area, Jabalpur were acquired by the State Government under the Land Acquisition Act 1894, hereinafter called the 'Act ', for constructing the Home Science College. In the present appeals we are concerned mainly with Plot No. 670. On August 31, 1940, a deed of lease had been executed on behalf of the Municipal Corporation granting a lease free of premium to the Hitkarini Sabha, Jabalpur, which is the appellant before us. The laese was in respect of 10 Acres of land comprising Plot No. 670 and another strip of land measuring 0.621 Acres as described in the deed and delineated in the plan annexed thereto. The period of the lease was 30 years and the purpose for which the land was to be used was for locating and running the Hitkarini City College. Amongst other terms and conditions the, appellant was to pay a yearly rent of Rs. 5 / , for 1 0 acres and Re. 1 / for the other strip of land besides, paying, and discharging all rates and taxes etc. The appellant, on the expiry of the lease, was entitled 495 to have the same renewed on , such terms and conditions as might be agreed between the parties. The appellant had built a, college hostel on the aforesaid land and had also used the attached ground as playground for students. The Collector of Jabalpur, by his award dated July 18, 1955 dealt with the claims filed by the appellant and the Municipal Corporation and after disposing of certain preliminary objections he assessed the compensation for the lands in all the three plots at As.0/8/ per sq. According to the Collector the appellant was not merely a lessee or tenant at will as contended by the Corporation but was a lessee for the term mentioned in the lease deed dated August 31, 1940, the lease having been made for a specific purpose, i.e. for locating and running a City College. As regards Plot No. 670 the apportionment was made between the appellant The appellant and the Corporation were dissatisfied with the award of the Collector. Applications for reference were made under section 18 (1) of the Act. The Additional District Judge held that the price should be 10 As. per sq. and that the appellant and the Municipal Corporation were entitled to equal compensation for plot No. 670. The Corporation and the appellant filed appeals to the High Court. The decision of the Additional District Judge, fixing the price of the land at As. 0/8/ per sq. ft. was affirmed. As regards the dispute regarding apportionment the High Court held, following a decision of a Division Bench of the same court in Dagdulal vs Municipal Committee, Burhar(1), that the lease deed having been executed by the Administrator during the time when the Corporation stood superseded was ineffective to convey the lease hold interest to the appellant. However, the appellant had been paving refit at the stipulated rate which had been accepted for a long time by the Corporation. It amounted, therefore, to the creation of a tenancy by necessary implication and the relationship of landlord and tenant came into existence. On the character of tenancy, whether it should be deemed to be from year to year or whether it should be on terms contained in the lease deed, the High Court held that the tenancy continued on the terms contained in the lease deed. The High Court then proceeded to say : "The lease deed in this case was executed on 31 8 1940 and was for a period of thirty years. It was, therefore to remain in force for 15 years more after the date of acquisition. There is a renewal clause which has been already quoted above. The lessee is entitled for renewal "on such terms and conditions as, may be agreed to between the parties". It appears to. us that the clause (1) 496 is uncertain and vague and does not form a valid contract for renewal of the lease. Normally in a covenant for renewal there is an express agreement that the lease would be continued on the same terms and conditions subject to a reservation that the rent way be enhanced under certain circumstances. In the instant, case, ill the terms and conditions have been left to the agreement of patties which may not take place at all. Although a renewal is contemplated no terms on which it can be granted have been fixed between the parties. Under section 29 of the Indian Contract Act such a contract cannot be enforced. , It has been held in Ramaswami vs Rjajagopala (I.L.R. I I Mad. 260) that a lease whereby a tenant agreed to pay whatever rent the Landlord might fix was void for uncertainty". The apportionment was made on acturial basis between the appellant and the Corporation in the ratio of 1038 : 962. Before us two matters have been sought to be raised. One one relates to the quantum of compensation awarded by the learned Additional District Judge and the other to the apportionment between the appellant and the Corporation. We shall first deal with apportionment. It has been argued that since the High Court had held that the tenancy continued on the terms contained in the lease deed benefit should have been given of the renewal clause also. The High Court had taken the view that that clause was uncertain and vague and did not form a valid contract for the renewal of the lease. Our attention has been invited to a judgment of the Mysore High Court in H. V. Rajan vs C. N.Gopal & Others.(1) There the relevant portion of the renewal clause was "lessee shall have the option of five years but subject only to such terms and conditions as may be mutually agreed upon". It was observed that ordinarily the renewal clause in a lease deed was an important term of the agreement and the courts would be reluctant to ignore that clause on the ground that it was vague unless on a reasonable construction no meaning could be attached to it. An agreement to renew the lease, without more, must be deemed to be an agreement to renew as per the original terms. Even if the renewal provided was dependent on the agreement between the parties the clause merely provided for an agreement on reasonable terms. If the parties could not agree as to those terms the courts could step in. In our judgment it is altogether unnecessary to decide the true scope and effect of the renewal clause contained in the deed executed on August 31, 1940. At the time the lease was executed (1) A.I.R. 1961 Mys. 497 there used to be a Municipal Committee in Jabalpur Aparently it became a Corporation later. The Committee was superseded in Charge of the Committee Jabalpur as also Secretary of the Municipal Committee had signed the lease on behalf of that Committee. In the decision of the Madhya Pradesh High Court in Dagdulal 's(1) case the view had been expressed that so long as Municipal Committee was not reconstituted the ownership of the property stood transferred by operation of law to the State Government and therefore the Administrator had no power whatsoever to sell the property which had vested in the Government. The Additional District Judge had observed that the lease deed had been executed in pursuance of a resolution which had already been passed by the Municipal Committee. The High Court, however, found on the evidence produced before the Additional District Judge that the final resolution passed by the Municipal Committee was only for the grunt of a license and not a lease to the appellant. The deed of lease, therefore, was, held to be ineffective for conveying any lease hold interest to it. But still the High Court held that the tenancy was to last for a period of thirty years. We are wholly unable to comprehend how any lease could be spelt out of the deed dated August 31, 1940 for a period of 30 years containing the renewal clause which has already been mentioned. If the officer who executed the lease deed had no power to lease out the property in question the grant of the lease was wholly null and void. It is true that by acceptance of the rent from the appellant the relationship of landlord and tenant came into existence between the parties but Mr. Chagla for the appellant has not been able to show how a lease for a period of 30 years together with a renewal clause could be held to have been created or to have come into existence. It may be mentioned that we are not concerned with the period of 30 years which has already been taken into consideration by the High Court because no appeal has beep filed on that point by the Corporation. The only matter which requires determination is whether the High Court, while deciding the question of apportionment, should have given due affect to the renewal clause. In our opinion the High Court could riot have done so. If the so called deed of lease dated August 31, 1940 was wholly ineffective and void for the purpose of demising the land for a period of 30 years one could only look at the provisions of the Transfer of Property Act for determining the term for which the tenancy came into existence. Under section 106 of that Act the ,tenancy, in the present case, could be only from month to month because the immovable property had not been leased out (1) 498 for agricultural or manufacturing purpose in which case the lease would have been from year to year. We are therefore unable to accede to the contention that the renewal clause in the lease deed dated August 31, 1940 was effective and should have been taken into consideration while making the apportionment between the appellant and the Corporation. The next question relating to quantum can be disposed of shortly. The sole criticism of Mr. Chagla is that the potential value of the plot in question was not taken into consideration. It is true, as pointed out in Raja Vyrigherla Marayana Gajapatiraju vs The Revenue Divisional Officer Vizagapatam(1) that where the land to be valued possesses some unusual or unique features as regards its position or its potentialities the court determining the market value will have to ascertain as best as it can from the materials before it what a willing vendor might reasonably expect to obtain from a willing purchaser for the land in that particular position and with those particular potentialities. It has been urged that Plot No. 670 had a special situation or position in view of its size, locality, nearness to business centre and the Madan Mahal Station. But the value which was fixed by the Additional District Judge and the High Court was fixed by reference to sales of plots of comparable nature. The following portion of the judgment of the High Court shows how the matter was dealt with "We may observe that the two witnesses relied upon by the appellants purchased small plots at the rate of Re. 1/ per sq. As the map of the Wright Town Madan Mahal Extension area produced by the Corporation before us shows, these plots are in a fully developed lay out having roads and drains round about. We had asked the Corporation to calculate how much area out of the acquired sites would be required to be left open for roads and drains and they have calculated that about 70,000 sq. ft. would have to be left open for this pur pose. Obviously, therefore, it is only the remaining plot which would have value as building sites. Besides leaving so much area open, costs will have to be incurred in developing the roads, and drains for which the Corporation has estimated the cost to be Rs. 8,500/ . Considering all these factors and also calculating the built up area in the lay outs surroundings the acquired land, we find that it is only eighty per cent of the land which can be sold as building site. On these calculations if the average price of the plots sold in the locality is taken to be /12/ per sq. the (1)66 I.A. 104. 499 overall price of the acquired land without roads and drains would work out to a little less than / 9/ per sq. To put the matter, in a different way, the value of / 10/ per sq. found by the Additional Judge would work out to a little over /12/ per sq. ft., if only the area which could be built upon is considered saleable as building site. We,therefore, find that the price at /10/per sq. allowed by the Additional District judge, is not unreasonable; if anything it errs on the generous side". We have no manner of doubt that the High Court had taken all the factors into consideration while assessing the value. In the result the appeals fail and are dismissed. There will be no order as to costs. Appeals dismissed.

The Municipal Corporation of Jabalpur purporated to grant a leave of certain land to the appellant Sabha. According to the document the period of lease was 30 years. The appellant was entitled on the expiry of the lease to, have the same renewed on such terms and conditions as might be agreed between the parties, The appellant made a college hostel on the aforesaid land and had also used the attached ground as playground for students. A portion of the said land was sought to be acquired by the State Government under the Land Acquisition Act, 1894 for constructing the Home Science College. The Collector of Jabbulpur by his award dated July 18, 1955 dealt with the claims filed by the appellant and the Municipal Corporation and assessed the compensation at As. /8/ per sq. Apportionment was made between the appellant and the Corporation on the footing that the appellant was not merely a tenant at will as contended by the Corporation but was a lessee for the terms mentioned in lease. The appellant and the Corporation made applications for reference under section 18(1) of the Act. The Additional District Judge held that the price should be As. /10/ per. sq ft. and that the appellant and ' the Municipal Corporation were entitled to equal compensation. The Corporation and the appellant filed appeals to the High Court. The decision of the Addl. District Judge fixing the price of the land As. /10/ per sq. ft. was affirmed. As regards the dispute regarding apportionment the High Court held that the lease deed having been exempted by the Administrator during the time when the Corporation stood superseded was ineffective to convey the leasehold interest to the appellant. However, the appellant was paying the rent which had been accepted for a long time by the Corporation. there was thus a tenancy by necessary implication. The High Court further held that the lease was to continue for the period of 30 years mentioned in the deed but there was no valid contract for renewal of least because the clause relating to that was vague and uncertain. The apportionment was made on acturial basis between the appellant and the Corporation in the ratio of 1038 : 962.In appeal before the Court the quest ions relating to quantum of compensation and the apportionment between the appellant and the Corporationfell for consideration. HELD : (1) No lease could be spelt out of the deed dated August 31, 1940 for a period of 30 years containing the renewal clause. If th officer who executed the lease deed had no power to lease out the property in question the grant of the lease was wholly null and void. It is true that by the acceptance of rent from the appellant the relationship of landlord and tennant came into xistence. But that did not show that a lease deed for a period of 30 years with a renewal clause had come into existence. [497E] Since the lease deed was ineffective the lease could be under the provisions of section 106 of the 'transfer of 'Pro@y Act, only from. mouth 494 to month because the immovable property had not been leased out for agricultural or manufacturing purpose in which case it would have been from year 'Lo year. Therefore the :contention that the renewal clause was effective and should have been taken into consideration while making the apportionment between the appellant and the Corporation could not be accepted. (The question whether the High Court was right in holding that the period of lease was 30 years was not gone into because the Corporation had filed no appeal against that portion of the decision. [497H] Dagdulal vs Municipal Committee, Burhar, (19 '60) M.P.L.J. 627 and H. V. Ranan vs G. N. Gopat & Ors. A. I. R. 1961 Mys. 29, referred to. (2) The value which was fixed by the Addl. District Judge and the High Court was fixed by reference to sales of plots of comparable nature. There was no doubt that the High Court had taken all the factors into consideration while as essing the value and there was no reason to interfere in this regard. [499A C] Raja Vyigheria Narayana Gajapatiraju vs The Revenue Divisional Officer Vizagapatam, 66 I.A. 104, referred to.

ppeals from" judgments and decrees of the High Court of Judicature at Calcutta dated 25th August, 1943, in First Appeals Nos. 20 and 173 of 1939 which arose out of a decision of the President of the Calcutta Improvement Tribunal in Case No. 95 of 1935. Civil Appeals Nos. 95 and 96 of 1949. Panchanan Ghose (Upendra Chandra Mullick, with him) for the appellant in Civil Appeal No. 95 and respondent in Civil Appeal No. 96. S.P. Sinha (Nagendra Nath Bose, with him) for respond ents Nos. 1 to 3 in Civil Appeal No. 95 and appellants Nos. 1 to 3 in Civil Appeal No. 96. S.N. Mukherjee, for respondent No. 4 in Civil Appeal No. 95. March 14. The judgment of the Court was delivered by FAZL ALl J. These appeals are directed against the judgment and decree of the High Court of Judicature at Fort William in West Bengal, confirming a decision of the Presi dent of the Calcutta Improvement Tribunal, which modified an award of the First Land Acquisition Collector of Calcutta, made under the Land Acquisition Act in respect of the acquisition of two premises, which may conveniently be referred to as Nos. 140 and 141, Cotton Street. In order to understand the points of contest between the various claimants to the compensation awarded in the case, it seems necessary to refer to certain facts showing how they came to be interested in the premises which are the subject matter of the land acquisition proceedings. These premises belonged at one time to one Sewanarayan Kalia, and afterwards they became the property of a deity, Sree Sree Iswar Gopal Jieu Thakur, installed by Sewanarayan Kalia at Chinsurah in the district of Hoogly. Sewanarayan, who had three wives, died in 1836, leaving behind him his third wife, Muni Bibi, two daughters by his 334 predeceased wives, these being Jiban Kumari and Amrit Ku mari, and a mistress named Kissen Dasi. On the 23rd August, 1836, these persons executed a deed of solenama which was in the nature of a family arrangement, by which the remainder of the estate of Sewanarayan (i.e., what was left after excluding the dedicated properties) was divided in the terms of his will, with the result that Muni Bibi got subject to certain conditions, among other properties, the premises described as 140, Cotton Street, and Jiban Kumari got the contiguous premises, No. 141, Cotton Street. Muni Bibi and Jiban Kumari also became the she baits of the Thakur or deity with power to appoint their successors. On the 20th January, 1848, Muni Bibi by an arpannama dedicated 140, Cotton Street, to the Thakur. It is recited in this deed, among other things, that on account of annual droughts and inundation and consequent diminution in the produce of the lands, certain properties dedicated to the sewa of the deity had been sold for arrears of revenue, that "Jiban Kumari had been making advances from her private funds for the expenses of jatra, mahotsob etc. , of the deity, when the amount fell short, this being against the provisions laid down by her late husband", that the house known as 140, Cotton Street, having been let out, was yielding a rent of Rs. 30 p.m., that after deducting the necessary expenses the surplus income left was Rs. 20 p.m., and that "if this amount was included in the expenses for the sheba etc., of the deity every month, the provision made by her deceased husband may remain in force. " After reciting these facts, it is stated that the rental of the house "shall be permanently and perpetually included in the expenses of the sheba. " About 20 years later, on the 30th September, 1869, Muni Bibi created a permanent (maurasi mokrari) lease of the premises bearing No. 140, Cotton Street, in her capacity as a shebait in favour of one Nehal Chand Panday (who was admittedly a benamidar for one Bhairodas Johurry), at a rental of Rs. 25 p.m. (See exhibit L a kabuliyat executed by Nehal Chand in favour of Muni Bibi). In the same year, on the 8th 335 December, Jiban Kumari granted a permanent lease to Bhairo das Johurry, in respect of the premises known as 141, Cotton Street at a rental of Rs. 90 p.m. (See exhibit K a kabuliy at executed by Johurry in favour of Jiban Kumari). The main question which has been raised in this case is whether the two ladies were competent to give debutter properties by way of permanent lease to another person. In 1870, Muni Bibi died, and, on the 15th January, 1872, Jiban Kumari ap pointed Gourimoni Devi a shebait by a registered deed and dedicated the premises known as 141, Cotton Street, to the deity. Both Jiban Kumari and Gourimoni Debi died shortly afterwards, and Gopal Das, a minor son of Gourimoni, became the shebait of the idol. During his minority, his father, Raghubar Dayal, became his certificated guardian, and, in that capacity, he executed a usufructuary mortgage deed in respect of the Cotton Street properties to one Lal Behari Dutt, on the 31 August, 1878. After the death of Raghubar Dayal one Ajodhya Debi and after her one Kalicharan Dutta became the certificated guardian of Gopal Das, and, on the 17th August, 1890, the latter mortgaged some debutter properties including 140and 141, Cotton Street, to Lal Behari Dutt for a sum of Rs. 2,230. On attaining majority, Gopaldas executed on the 17th January, 1896, a usufructuary mortgage deed in respect of all debutter properties includ ing the Cotton Street houses in favour of Lal Behari Dutt for paying the previous mortgage dues which amounted on that date to Rs. 4,955 and odd. This deed provided among ' other things that the mortgagee was to collect rents, outgoings, carry on the sheba of the deity, and that whatever balance was left out of the income of the property was to go towards the satisfaction of the mortgage dues. Gopaldas died in 1900, leaving behind him surviving his widow, Annapuma, who also died in 1905. By 1918, Lal Behari Dutt also was dead, and his interest in the mortgaged properties, to which reference has been made, was sold to one Naba Kishor Dutt on the 12th December, 1918. On the 17th November, 1933, Naba Kishor assigned the mortgagee 's 336 interest in the mortgaged properties to two of the Bagarias, respondents 1 and 2 in appeal No. 95, and m the same year the three respondents (1 to 3) also acquired the lessee 's interest in the Cotton Street houses. The land acquisition proceedings, which have given rise to these appeals, were started about the year 1934 in respect of the premises bearing Nos. 140 and 141, Cotton Street, as well as two adjoining premises with which we are not concerned in this case. In these proceedings, the following claims were put forward by three sets of persons: 1. The Bagarias (respondents 1 to 3 in appeal No. 95) at first claimed the entire amount of compensation on the allegation that they were the absolute owners of the prem ises in question, but later on they claimed only as mortga gees and permanent lessees of those premises. On behalf of the deity, the entire amount of compen sation money was claimed by Deosaran Singh and Ram Lakshman Singh, who alleged themselves to be shebaits, on the basis that the premises in question were debutter properties of the deity, and the Bagarias had acquired no interest therein either by the assignment of the usufructuary mortgage or the alleged purchase of the tenant 's rights in the properties. Respondent No. 4 claimed compensation as a lessee for 99 years on the basis of a lease alleged to have been given to him by the original landlords. In the present appeals, we are concerned with the first two claims only, and we shall briefly state how they were dealt with by the Collector and the courts below. On the 22nd May, 1935, the Collector awarded Rs. 31,740 as compen sation for landlord 's interests, to be shared by the deity as owner and two of the Bagarias, respondents Nos. 1 and 2 in appeal No. 95 in their capacity of usufructuary mortga gee, and awarded a sum of Rs. 1,58,000 to the respondents Nos. 1, 2 and a as compensation for their rights as perma nent tenants of the premises in question. Subsequently, 3 separate petitions of reference were filed 337 by the a claimants against the Collector 's award and the reference made by the Collector in pursuance thereof was registered as apportionment case No. 95 of 1935 in the Court of the Calcutta Improvement Tribunal. Meanwhile, Deosaran Singh and Ram Lakshman Singh, who had put in claims as shebaits, retired from the contest, and the President of the Tribunal appointed one Narendra Nath Rudra as the next friend of the deity to represent and protect its interests. On the 31st August, 1938, the President of the Tribunal gave his decision, by which he substantially upheld the award of the Collector, but modified it in one respect only. He held that the usufructuary mortgage, on the basis of which re spondents 1 and 2 had put in a claim, had been paid off and therefore they were not entitled to any compensation, and the whole sum of Rs. 31,740 should be paid to the deity. Respondents 1 to 3 however were held entitled to the sum of Rs. 1,58,000 as permanent tenants, on the ground that leases had been created for legal necessity and therefore were binding on the deity, He also held that the deity was not entitled to question the leases by virtue of article 134 (a) of the Limitation Act. Regarding costs, he directed that all costs incurred on behalf of the deity should be paid out of the compensation money lying in deposit in court. Two appeals were thereafter preferred to the High Court by the two main contesting parties and ultimately both these ap peals were dismissed, and the High Court upheld the decision of the Tribunal. Subsequently, the present appeals were preferred to this Court, the deity having obtained a certif icate granting leave to appeal from the High Court, and the Bagaria respondents having obtained special leave from the Privy Council to prefer a cross appeal. The main questions which arise in these appeals are : (1) whether the two mourasi mokrari leases, to which reference has been made were justified by legal necessity; and 44 338 (2) whether the mortgages on the basis of which the Bagarias had laid their claim to compensation had been satisfied. The first question arises in Appeal No. 05, and the second question arises in Appeal No. 96. So far as the question of legal necessity is concerned, there are concurrent findings of the Tribunal and the High Court against the appellant in appeal No. 95, but we allowed his counsel to argue the question at some length, because it was urged before us that on the facts of the case the point in issue was not a question of fact but one of mixed fact and law, especially as the decision of the High Court turned upon the construction of the leases and the inference drawn from the fact that the permanent nature of the tenancy had remained unquestioned for a very long period. The tenancy in question came into existence as long ago as 1869, and it is not surprising that no direct evidence bearing on the issue of legal necessity is available now. We have therefore to fall back upon the recitals in the documents, to ascertain the circumstances under which the documents, exhibits L and K, were executed, because it is well settled that if all the original parties to the trans action and those who could have given evidence on the rele vant points have passed away, a recital consisting of the principal circumstances of the case assumes greater impor tance and cannot be lightly set aside. [See Banga Chandra Dhar Biswas vs Jagat Kisore Chowdhuri(1) 1 It appears to us that the recitals in the documents afford valuable evidence, because the tenancies were created by two pious ladies who were keenly interested in the sheba of the deity and with regard to whom it was not suggested that they expected to derive any personal advantage from the transactions in question. It seems to us most unlikely that they would be parties to any untrue recitals merely to support the trans action. It may be recalled here that in 1848, certain properties belonging to the deity had been sold for arrears of rent, and Jiban Kumari (1) 43 I.A. 249. 339 had been supplementing the income of the residue from her own properties for meeting the expenses of performing cer tain essential services to the deity, such as jatra, mahot sob, etc. We also find from the arpannama that the value of the property which is the subject matter of the mokrari kabuliyat dated the 30th September, 1869 (exhibit L) was Rs. 2,000 in 1848, that it was not in the khas possession of Muni Bibi but had been let out to a tenant and that its net income was Rs. 20 p.m. At the time when the arpannama was executed, Muni Bibi clearly thought that the sum of _Rs. 20 p.m., if included in the expenses for the sheba of the deity, would enable the sheba to be carried on without any extraneous help. From the recitals in exhibit L, it appears that the house bearing No. 140, Cotton Street, was in a dilapidated condition and had collapsed in the rains of 1270 B.S. (1868 A.D.), and Muni Bibi was unable to bear the expenses of constructing a new building at the place. The problem before her therefore was whether the deity should go without any income from this property, or she should enter into such an arrangement as would secure a permanent income for the expenses of the deity, which should not in any case be less than the income which the property had theretofore yielded. She decided to choose what must have appeared to her to be the better and more prudent course, with the result that she got a sum of Rs. 500 cash for the deity as the price of the materials which were sold to the lessee, and also secured a regular monthly income of Rs. 25. There can be no doubt that the transaction was in the best inter ests of the deity and clearly beneficial to it. A reference to the arpannama shows that the house was in the possession of a, tenant even in 1848, and from the recitals in the document it is clear that what Muni Bibi contemplated was that the house should continue to remain in the possession of a tenant, and the rent of the house should be used for the sheba of the deity. At that time, she did not contemplate any other mode of using the property she was going to dedicate. We do not know who was the tenant of the 340 house in 1848 and what were the commitments of Muni Bibi at that time, but, even apart from these facts, it is difficult to believe that a devout person like her, who was not only a shebait but also the widow of the founder of the deity and who had shown such keen interest for the upkeep of the worship of the deity, should have entered into the transac tion in question unless she considered it absolutely neces sary to do so. The contention put forward before us is that it has not been shown that there was no other course open to Muni Bibi than to. grant a permanent lease in respect of the property, but it is manifest that at this distance of time no evidence can be available to show the actual pressure or necessity which impelled Muni Bibi to adopt the course she did. It is now well settled that where the validity of a permanent lease granted by a shebait is called into question a long time after the grant, although it is not possible to ascertainfully what the circumstances were in which it was made, the court should assume that the grant was made for necessity so as to be valid beyond the life of the grantor. [See Bava Magniram Sitgram vs Kasturbhai Manibhai(1)]. In the present case, the circumstances which can be gathered from the recitals together with the fact that the document has remained unquestioned for more than half a century, seem to us to be quite sufficient to support the conclusion that the grant was made for legal necessity and is binding on the deity. On the facts narrated, it would appear that there were several shebaits between the death of Muni Bibi and the commencement of the present litigation, but the lease was never impugned as being beyond the power of the shebait who granted it. On the other hand, we find that the permanent character of the lease was recognized in a deed executed by Gourimoni on the 18th October, 1873 (exhibit Y), and in a mortgage deed executed by Raghubar Dayal, the guardian of Gopaldas, on the 31st August, 1878. The properties in question were subsequently mortgaged by Kali Charan Dutt and Gopaldas, but neither of these persons nor (1) 41 I. A. 54. 341 the mortgagees ever came forward to question the permanent nature of the tenancy. The counsel for the appellant relied upon exhibit VI, which is a copy of the judgment of the High Court in a suit instituted by Nabakishore Dutt in 1995 against the Adminis trator General of Bengal for the rent of the house in ques tion. It appears from this judgment that the tenancy was admitted by the defendant and it was also admitted by him that rent was due, but he claimed that he was entitled to insist upon a receipt specifying the money to have been paid as mourasi mokrari rent. The learned Judge, who dealt with the case, however, thought that the point raised by the defendant did not strictly speaking arise in a suit for rent, which according to him could not be converted into a suit for declaration of title, and on that basis, he passed a decree in favour of the plaintiff. The judgment does not say in so many words that Nabakishore resisted the claim as to the tenancy being mourasi mokrari, but, however that may be, assuming that such an assertion was really made by him, it cannot affect the character of a tenancy which had re mained unquestioned for nearly half a century. The legal position with regard to 141, Cotton Street, is almost identical with that of the adjoining premises with which we have already dealt. As has been already stated, a mourasi mokrari tenancy was created by Jiban Kumari on the 8th December, 1869, as is evidenced by exhibit K. This document recites among other things that the house which was the subject of the lease, "stands in need of repairs and for want of such repairs there is chance of some portion thereof breaking down during the year. " It also recites that whatever income was derived till then from that house was derived by letting it out on rent and that the mourasi tenancy was being created for the purpose of repair ing the house and keeping it in existence. At the end of the document, it is stated that "the shebait shall keep the kabuliyat and patta in force and shall on taking the sum of Rs. 90 as rent, defray the expenses of the sheba of the deity. " It is 342 noteworthy that the actual dedication of this property took place on the 15th January, 1872, more than 2 years after the kabuliyat. On that date, a registered deed of gift was executed by Jiban Kumari in favour of Srimathi Gourimoni Debi and it was recited therein that the income of the house was being dedicated by the former to the sheba of the deity. There was also a further clause in that deed to the follow ing effect : "In accordance with the terms of the solenama the ex penses of the Iswar seba shall be met from the income of those properties which have been dedicated for the perform ance of the work of the said seba and the amount by which the expenses for the festivals would fall short and the expenses which would be incurred for repairs to house for sheba of the said Thakur shall be met and the Tahailia (attendant) and the Brahman cook and the Brahman priest (now) employed and to be employed hereafter shall get (their) salaries, from the income of the said property." On reading this document along with the solenama and the mok rari lease granted by Jiban Kumari, it appears that she dedicated the property after having created a mokrari lease, that what she purported to dedicate was the income derived by way of rent from the mourasi mokrari tenancy, and that she had dedicated this income for specific purposes with the object of making up the deficit in the income received from other debutter properties. If it is held that Jiban Kumari was an absolute owner of the property at the time the moura si mokrari lease was granted and afterwards she dedicated only the income of the property then the permanent lease cannot be assailed. If, on the other hand, it is held on reading the solenama that Jiban Kumari had only a life estate in the house and it was one of the terms of the solenama that after her death the expenses of the deity were to be borne out of the income from the house, then in that case the question may arise as to whether she was entitled to create a lease beyond her lifetime. Such a question however does not need an elaborate answer, because the same considerations which apply to 140, Cotton Street. will 343 apply to this house, and the presumption as to necessity which is raised by the long lapse of time, would arise here also. This presumption is considerably strengthened here as well as in the case of the lease granted by Muni Bibi, by the fact that the grantor of the lease was so devoted to the object of the endowment that it does not seem likely that she would have granted a permanent lease unless she was impelled to do so by absolute necessity. It seems to us therefore that the view taken by the High Court is substan tially correct and the respondents Nos. 1 and 2 are entitled to compensation as permanent lessees. In this view, Appeal No. 95 must fail, and it is dismissed. As to Appeal No. 96, it has been concurrently found by the President of the Tribunal and the High Court that the appellants have failed to prove by proper evidence that there is any money still due to them on the usufructuary mortgage executed by Gopaldas in 1886. In arriving at this finding, they have dealt with every possible argument that could be urged and was urged on behalf of the appellants to show that the mortgage had not been satisfied. This court has repeatedly held that it will not generally interfere with concurrent findings on a pure question of fact, and nothing has been shown on behalf of the appellants to induce us to depart from this rule. In the result Appeal No. 96 also is dismissed. Having regard to the circumstances of the case, we shall make no order as to costs in either of these appeals. Appeals dismissed. Agent for the appellant in Civil Appeal No. 95 and respondent in Civil Appeal No. 96: Sukumar Ghose. Agent for respondents Nos. 1 to 3 in Civil Appeal No. 95 and appellants Nos. 1 to 3 in Civil Appeal No. 96:S. C. Banerjee. Agent for respondent No. 4 in Civil Appeal No. 95: P.K. Chatterjee.

Where the issue is whether there was legal necessity for a particular transaction, if all the original parties to the transaction and those who could have given evidence on the relevant points have passed away, a recital consisting of the principal circumstances of the case assumes greater importance and cannot be lightly set aside. Banga Chandra Dhar Biswas vs Jagat Kishore Chowdhuri (43 I.A. 249) referred to. Where the validity of a permanent lease granted by a shebait has remained unquestioned for a very long time since the grant, although it is not possible to ascertain fully what the circumstances were in which it was made, the Court should assume that the grant was made for necessity so as to be valid beyond the life time of the grantor. 333 Bawa Magniram Sitaram vs Kasturbhai Manibhai (49 I.A. 54) referred to.

Appeal No. 677 of 1963. Appeal from the judgment and order dated March 31, 1961 of the Mysore High Court in Writ Petition No. 283 of 1959. B. R. L. Iyengar and B. R. G. K. Achar, for the appellant. section V. Venkataranga Iyengar, M. Rama Jois and A. G. Ratnaparkhi, for the respondent. March 25, 1964. The judgment of the Court was delivered by AYYANGAR, J. A very short question regarding the proper construction of Rule 50(b) of the Bombay Civil Services Rules is involved in this appeal which comes before us by a certificate of fitness granted by the High Court of Mysore under article 133 of the Constitution. The facts giving rise to this appeal which are necessary to be narrated to appreciate the only point urged before us were these: The respondent was recruited as an Upper Division Clerk by the Government of Bombay in 1931 and was later appointed substantively as a Junior Assistant in the Political Department. While so, on September 17, 1943 his services were transferred on deputation to the office of the Controller of Rationing, Bombay to work as a Senior Assistant in the newly started Rationing department which was a temporary department. He obtained successive promo tions in this department and by March, 1954 he was drawing a pay of Rs. 460/ p.m. in the grade Rs. 350 30 650 as Rationing Officer. That department was abolished in March, 1954 and thereafter he was reverted to his parent depart ment. Though his parent department was the Political De partment, the respondent was, after he ceased to be a Rationing Officer, posted first to the Labour Department and then to the Public Works Department. When this reversion took place his pay was fixed at Rs. 120/ p.m. The petitioner protested against this reversion and this loss of his emoluments on the ground that this fixation of pay was contrary to the Rules framed by Government in regard to the service conditions of a Government servant who was appointed on deputation in another department. He also pointed out that the officer next below him in his parent department had been appointed as an Assistant Secretary by virtue of normal and regular promotion. therefore, however, final orders were passed on his representation by the Government of Bombay, the came into force and the respondent was allotted to the State of Mysore. On November 27, 1958 the Government of Mysore informed the respondent through an official memorandum that in view of 473 certain communications received by that Government from the Government of Bombay in answer to his representations he should be considered to have held the post of Senior Assistant on June 1, 1954 on a salary of Rs. 225/ in the grade Rs. 210 15 300.The petitioner 's complaint,however, was that even this order was in violation of the conditions of his service and he claimed that when he was reverted to the parent department he was entitled to be posted as an Assistant Secretary a post which according to him, he would have held on that date had he not been deputed to the department of Civil Supplies on September 17, 1943. There was no dispute that subject to an argument to which we shall refer presently, the respondent would have held the post of Assistant Secretary because the person next below him one Nadkarni actually held that post on that day. The respondent claimed that on the basis of the Service Rules to which we shall immediately make reference he should, on his return to the parent department, have been posted as an Assistant Secretary and been allowed the scale of emoluments applicable to that post. As the Government of Mysore refused to accede to his demand the respondent filed a petition under article 226 for inter alia a writ of mandamus directing the appellant State to include the petitioner in the grade pay of an Assistant Secretary I and fix him above Nadkarni. The appellant raised a preliminary objection to the writ petition, the objection being that the complaint of the petitioner was not justiciable. This was primarily based upon the fact that the respondent relied upon a circular of the Government of Bombay dated October 31, 1950 in support of his plea that he was entitled to the benefit that he claimed on reversion to the parent department from his service on deputation. The material part of that circular ran: "It has come to the notice of Government that Government servants when deputed to other Departments or offices often draw pay in time scales which are identical with the timescales in their parent Departments. The question therefore, arises on their reversion to their parent Department whether the service rendered in an identical time scale in the Department to which their service had been lent, should be allowed to count for increments in the parent Department under Note 4 below Bombay Civil Service Rule 41. Government is pleased to direct that all such cases should be regulated under Bombay Civil Service Rule 51 and that only that portion of service in the foreign Department or office should be allowed to count for increments in the parent Department during which the person concerned would have drawn pay in the time scale applicable to the post he holds on reversion, but for his deputation to another Department or office, i.e., the case should be so regulated as to restore the position the person concerned would have occupied in his parent Department had he not been deputed. " The question as to whether this circular which was treated as an administrative instruction could confer rights en forceable in a court on a Government servant was referred to a Full Bench for its opinion. Before the learned Judges of the Full Bench the learned Advocate General, however, brought to the notice of the Court that this circular merely gave effect to a statutory rule framed by the Government of Bombay. The relevant rule in this respect was rule 50(b) of the Bombay Civil Services Rules which ran: "50(b) Service in another post, other than a post carrying less pay referred to in clause (a) of rule 22 whether in a substantive or officiating capacity, service on deputation and leave other than extraordinary leave counts for increments in the time scale applicable to the post on which the Government servant holds a lien as well as in time scale applicable to the post or posts, if any, on which he would hold a lien had his lien not been suspended: Provided that Government may, in any case in which they are satisfied that the leave was taken on account of illness or for any other cause beyond the Government servant 's control, direct that extraordinary leave shall be counted for increment under this clause. " The position, therefore, that emerged after this was whether an infraction of a statutory rule could give rise to a cause of action to an aggrieved Government servant. The learned Judges answered this question in the affirmative and there after the Division Bench which heard the petition allowed the writ and granted the respondent the relief that he sought. It might be mentioned that even by the date of the pendency of these proceedings in the High Court the respondent had retired on account of superannuation and the only question, therefore, was whether he would be entitled to the remuneration to which he, would have been entitled uader the rule in question. The appellant State applied to the High Court 475 for a certificate to enable an appeal to be filed to this Court and on this having been granted the appeal is now before us. in view of the decisions of this Court of which it is sufficient to refer to State of U.P. vs Babu Ram Upadhya(1) it was not disputed that if there was a breach of a statutory rule framed under article 309 or which was continued under article 313 in relation to the conditions of service the aggrieved Government servant could have recourse to the Court for redress. Learned Counsel for the Appellant, however urged two contentions in support of the stand that the respondent was not entitled to be appointed to any higher post than as a Senior Assistant or to receive a salary higher than Rs. 225/in the scale Rs. 210 15 300 which had been granted to him by the impugned order of November, 1958. The first was that on a proper construction of Rule 50(b), an officer who after serving on deputation in another department is revert ed to his parent department is entitled to nothing more than the increments allowable in the time scale applicable to the substantive appointment which he held at the time of the transfer. In this connection stress was laid on the words "increments in the time scale applicable to the post on which the Government servant holds a lien" occurring in the subrule. We are unable to accept this contention. In the first place, it is not clear whether the case of the respondent was one where he held a lien or one where the lien was suspended, and no material was placed before the Court in this regard, the point in this form not being urged in the High court. But even assuming that it was a case where the respondent had a lien and his lien had not been suspended it is difficult to see what logic there could be in interpreting the rule as providing different criteria in the two cases. 'Where the lien is suspended the rule speaks of the "post or posts, if any he would have held if his lien had not been suspended". By the use of the plural, it is clear that the rule ,contemplated the suspended lien being transferred from one post to another in other words, to a promotion from one post to another during the period of the service in another ,department. If there was any ambiguity in what the rule meant it is wholly dispelled by reference to the circular which ensures to the officer on deputation in another department that he shall be restored to the position he "would have occupied in his parent department had he not been deputed". It was not suggested that there was any ambiguity in the wording of this circular which, in our opinion, gives proper effect to the provisions of Rule 50(b). (1) ; 476 The other submission of learned Counsel was that a Government servant though he had a right to increments in a time scale applicable to the post that he held on the date of his transfer on deputation and on which he had a lien, had no legal right to be promoted to a higher post and that the construction adopted by the High Court virtually con ceded or guaranteed to officers on deputation a right to an automatic promotion which they would not have had if they had not been posted on deputation. We see no force in this contention either. Learned Counsel is right only in so far as the promotion involved relates to a selection post. But where it is based on seniority cum merit, those considerations are not relevant. The service of an officer on deputation in another department is treated by the rule as equivalent to service in the parent department and it is this equation between the services in the two departments that forms the basis of Rule 50(b). So long therefore as the service of the employee in the new department is satisfactory and he is obtaining the increments and promotions in that department, it stands to reason that that satisfactory service and the manner of its discharge in the post he actually fills, should be deemed to be rendered in the parent department also so as to entitle him to promotions, which are often on seniority cummerit basis. What is indicated here is precisely what is termed in official language the "next below rule" under which an officer on deputation is given a paper promotion and shown as holding a higher post in the parent department if the officer next below him there is being promoted. If there are adverse remarks against him in the new department or punishments inflicted on him there, different considerations would arise and these adverse remarks etc. would and could certainly be taken into account in the parent department also, but that is not the position here. In view of the facts of the case it is not necessary to discuss this aspect in any detail or any further. The appeal fails and is dismissed with costs. Appeal dismissed.

An industrial dispute arose between the appellant and its workmen as to payment of bonus for the years 1957 58 and 1958 59. The dispute was referred for adjudication to the tribunal. The respondents claimed bonus on the basis that payment of some bonus at Christmas had become an implied condition of service between the appellant and its workmen. The workmen claimed 1 1/2 months wages for each year on the basis of an implied term of service. On these facts the tribunal held on the basis of the decision of this Court in M/s. Ispahani Ltd. vs Ispahani Employees Union that payment of bouns at the rate of 1 1/2 months ' salary as an implied condition of service had been established. It is this award of the tribunal which ha, , been challenged before this Court. Held: (i) Where the payment of bonus is connected with a festival it is possible to infer that there is an implied condition to pay something at the time of the festival, even though the payment has not been made at a uniform rate in previous years. In the present case, the payment has not been uniform over the years and before an implied term of service to pay bonus can be inferred it must be shown that the payment was connected with some festival. Therefore the tribunal was not right in holding that there could be an implied condition of service as to payment of bonus unconnected with any festival. In the present case, though the amount paid in December was originally called an advance, at least one month 's salary out of the so called advance always remained with the work men and was treated as bonus connected with Christmas festival. On the facts of this case it was held that there was an implied condition of service between the appellant and its workmen that something would be paid every year about Christmas time as festival bonus. M/s. Ispahani Ltd. vs Ispahani Employees ' Union, [1960] 1 S.C.R. 24, relied on. (ii) In a case of payment which is made at different term and is not at a uniform rate the duty of the court is to connect the payment with a festival (in this case Christmas). On the evidence in this case it is clear that the minimum is only one month 's salary payable about Christmas time and this was actually paid in 1951 52 and 1953 54. Therefore the payment of one month 's salary as Christmas bonus is proved as an implied condition of service between the appellant and its workmen on the admitted facts of this case.

ition (Civil) No. 107 of 1988. (Under Article 32 of the Constitution of India) Dr. Y.S. Chitale, Dr. N.M. Ghatate and S.V. Deshpande for the Petitioner. Kuldeep Singh, Additional Solicitor General, Soli J. Sorabjee, Parimal K. Shroff, P.H. Parekh, Sanjay Bhartari and Miss A. Subhashini for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This writ petition was disposed of by our Order dated 1st of February, 1988, we indicated therein that we will give our reasons shortly. This we do by this judgment. The Writ Petition No. 107 of 1988 is a petition under Article 32 of the Constitution. The petitioner is a practising advocate of the Bombay High Court. He approached this Court by means of the petition under Article 32 of the Constitution for issue of a writ in the nature of Prohibition or any other appropriate order restraining the respondents, namely, the Union of India, the Director General of Doordarshan, New Delhi, Blaze Advertising Pvt. Ltd. and Govind Nehalani, being the producer from telecasting or screening the serial titled "Tamas" and to enforce petitioner 's fundamental rights under Articles 21 and 25 of the Constitution and declaring the screening or televising of "Tamas" as violative of section 5B of the . One Javed Ahmed Siddique filed a writ petition in the High Court of Bombay being Writ Petition No. 201 of 1988. The same came up before a learned single Judge of the High Court of Bombay who while admitting the same on 21st of January, 1988 had granted stay of further telecasting of the said serial on T.V. till further orders. The respondents herein challenged the said order before the Division Bench of the Bombay High Court. The two learned Judges, namely, 1015 Justice Lentin and Justice Mrs. Sujata Manohar saw the complete serial on 22nd of January, 1988 and vacated the stay by an order dated 23rd of January, 1988. The judgment is impugned in the special leave petition which is taken on board and is also disposed of by this common judgment. It may also be mentioned that four episodes of the said serial have already been telecast. The petitioner states that the exhibition of the said serial is against public order and is likely to incite the people to indulge in the commission of offences and it is therefore, violative of section 5B (1) of the (hereinafter called 'the Act ') and destructive of principle embodied under Article 25 of the Constitution. It is also contended that under section 153A of the Indian Penal Code, this presentation is likely to promote or attempts to promote, on grounds of religion, caste or community, disharmony or feelings of enmity, hatred or ill will among different religious, racial, language or regional groups or castes, or communities and is further prejudicial to the maintenance of harmony between different religious, racial, language or regional groups and incites people to participate or trains them to the use or criminal force or violence or participate in such criminal acts. So, therefore, it is an offence under section 153A of the Indian Penal Code. Our attention was drawn to section 153B of the Indian Penal Code and it was submitted that the serial is prejudicial to the national integration. Serial "Tamas" depicts the Hindu Muslim tension and sikhmuslim tension before the partition of India. It further shows how the killings and looting took place between these communities before the pre independence at Lahore. "Tamas" is based on a book written by Sree Bhisham Sahni. It depicts the period prior to partition and how communal violence was generated by fundamentalists and extremists in both communities and how innocent persons were duped into serving the ulterior purpose of fundamentalists and communities of both sides and how an innocent boy is seduced to violence resulting in his harming both communities. It further shows how extremist elements in both communities infused tension and hatred for their own ends. That is how the two learned Judges of the High Court of Bombay mentioned hereinbefore have viewed it. They have also seen that realisation ultimately dawns as to the futility of it all and finally how inherent goodness in human mind triumphs and both communities learn to live in amity. They saw that the people learnt this lesson in a hard way. This is the opinion expressed by two experienced Judges of the High Court after viewing the serial. 1016 The location of the story is Lahore. The period is just before independence. The very introductory part of the serial which was tele cast on 9th of January, 1988 displayed that the idea and message behind the serial is to keep people away from getting involved in such violence arising out of communal animosity. By telecasting it on Doordarshan, Dr. Chitale appearing for the petitioner said, now seen by vast majority of people, the said serial is exposed to person of all ages, who will fail to grasp the message if any behind the serial. The very first serial, according to the petitioner, depicts one person who is reported to be a member of Scheduled Caste from the Hindu community being asked by one Thekedar to get a pig killed and bring its dead body in order to serve the meal for an English man. The dead body is shown to be axed and collected by one person named 'Kalu ' who is represented to be a Christian. Kalu gets a dead pig from the said member of the Scheduled Caste Hindu who killed it. That dead pig is shown to be found at the door steps of a mosque. This, according to the petitioner, was provocative and was bound to result in instigation in Hindus against Muslims and consequently to rouse Muslim anger resulting in some reaction on the part of the Muslims, which in its own turn is bound to have reaction by way of some acts of violence on the part of Hindus. According to the petitioner, the total result would be that there is likelihood that members of both the communities will rise in passion and anger against each other and take to acts which would lead to communal violence and riots. The petitioner further states that in the first episode shown on 9th January, 1988 one elderly Hindu who is depicted as a 'Guru ', a preceptor, and is shown as giving inspiration/advice and instigation to a young boy to practise violence, to begin with, by asking the boy to cut the throat of the hen, and when the boy gets nervous and shows his unwillingness and unpreparedness, the Guru warns him that unless he showed his courage to kill a hen to begin with, how can he become bold and courageous to kill his enemy. The petitioner further alleges that in the background of this incident and in context of what precedes and succeeds this incident between the Guru and the boy, it is clear that Guru has instigated the boy to get into the trend of thought and feeling to be ready to commit violence against his enemies, in oreder to kill them, and on viewing the first part of the said serial as a whole this instigation is to Hindu young boys to take to violence against Muslims. This is nothing but promoting feelings of enmity and hatred between Hindus and Muslims. The petitioner further states that in the first serial the dialogue 1017 between the Hindu leaders and Muslim leaders is so arranged that Indian National Congress is suggested to be a Hindu Organisation. In the present background, therefore, the petitioner claims that the exhibition of said serial is likely to create communal disharmony. "Tamas" had been given 'U ' certificate by the Central Board of Film Censor. In this connection we may refer to the relevant provisions of the , which is an Act to make provision for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematograph. Section 3 of the Act provides for Board of Film Censors. Section 4 of the Act provides for examination of films. A film is examined in the first instance by an Examining Committee under section 4A and, in certain circumstances, it is further examined by a Revising Committee under section 5. Members of both the Committees are expected to set out not only their recommendations but also the reasons therefore in cases where there is difference of opinion amongst the members of the Committee. Section 5A of the Act provides that if after examining a film or having it examined in the prescribed manner, the Board considers that the film is suitable for unrestricted public exhibition, such a certificate is given which is called 'U ' certificate. Section 5B of the Act provides for guidance in certifying films. The said section 5B provides as follows: "5 B. Principles for guidance in certifying films (1) A film shall not be entitled for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of (the sovereignty and integrity of India) the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of Court or is likely to incite the commission of any offence. (2) Subject to the provisions contained in subsection (1) the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition. " Section 5C of the provides for the constitution of Appellate Tribunals, consisting of persons who are familiar with the social, cultural or political institutions of India, have special knowledge of the various regions of India and also special knowledge of films and their impact on society, to hear appeals from the orders of 1018 the Censor Board. Under section 5D, as it stands at present, the Tribunal can hear appeals by persons who, having applied for a certificate in respect of a film, are aggrieved by an order of the Board refusing to grant a certificate or granting a restricted certificate or directing the appellant to carry out certain excisions or modifications in the film. In addition, there is also an overall revisional power in the Central Government to call for the record of any proceeding in relation to any film at any stage, where it is not made the subject matter of appeal to the Appellate Tribunal, to enquire into the matter and make such order in relation thereto as it thinks fit, including a direction that the exhibition of the film should be suspended for a period not exceeding two months. Under the newly added sub section 5 of section 6, the Central Government has also been given revisional power in respect of a film certificated by the Appellate Tribunal on the ground that it is necessary to pass an order in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or decency or morality. Learned Additional Solicitor General, Shri Kuldeep Singh, for the Central Government, strongly urged before us that the film should be allowed to be exhibited. As a matter of fact in his enthusiasm, he submitted that there should be an order to the Government to exhibit the film again and again. He urged that all the appropriate authorities have considered the film and Doordarshan authorities have also independently examined this question. It has to be borne in mind that there is no allegation of any mala fide or bad motive on the part of the authorities concerned. The only question, therefore, is whether the film has been misjudged or wrongly judged and allowed to be exhibited or serialised in T.V. on a wrong approach. This film indubitably depicts violence. That violence between the communities took place before the pre partition days is a fact and it is the truth. Dr. Chitale, however, submits that truth in its naked form may not always and in all circumstances be desirable to be told or exhibited. During the course of the arguments before us on the 1st of February, 1988 our attention was drawn to an item in the Hindustan Times of that day which contained an interview with the author Sree Bhisham Sahni. Strictly speaking such evidence is not admissible but since it is a matter of public interest, we have looked into it. The author has received the Sahitya Akademi award for this novel. It was written in 1974. The book is being taught in various universities. There has been no adverse reaction to the novel during the past fourteen years. The author further said "certain nuances which were, however, 1019 clear in the book are not so in the serial". The author has drawn attention to the incident that the mischief of getting a pig slaughtered and having it placed outside a mosque, was done by a character referred to as "Chaudhuri" in the film. In the novel his full name is mentioned as Murad Ali, which is obviously not a Hindu name, according to the author. Vivian Bose, J. as he then was in the Nagpur High Court in the case of Bhagwati Charan Shukla vs Provincial Government, A.I.R. 1947 Nagpur 1 has indicated the yardstick by which this question has to be judged. There at page 18 of the report the Court observed that the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. This in our opinion, is the correct approach in judging the effect of exhibition of a film or of reading a book. It is the standard of ordinary reasonable man or as they say in English law "the man on the top of a clapham omnibus". This question came to be examined by this Court from a different angle in the case of K.A. Abbas vs The Union of India and another; , There K.A. Abbas the petitioner made a documentary film called "A Tale of Four Cities", which attempted to portray the contrast between the life of the rich and the poor in the four principal cities of the country. The film included certain shots of the red light district in Bombay. Although the petitioner applied to the Board of Film Censors for a "U" Certificate for unrestricted exhibition of the film, he was granted a certificate only for exhibition restricted to adults. The petitioner then filed the writ petition in this Court. At the hearing of the petition the Central Government indicated that it had decided to grant a 'U ' certificate to the petitioner 's film without the cuts previously ordered. Hidayatullah C.J. has exhaustively dealt with the question and noted the statutory requirements. In that film there was a scanning shot of a very short duration, much blurred by the movement of the photographer 's camera, in the words of Chief Justice, in which the red light district of Bombay was shown with the inmates of the brothels waiting at the doors or windows. Some of them wore abbreviated skirts showing bare legs up to the knees and sometimes a short above them. This was objected to. The film was shown to the learned Judges in the presence of the lawyers. The learned Chief Justice at page 468 of the report addressed himself to the question: "How far can these restrictions go and how are these to be imposed". The Court examined the provisions of Sec 1020 tion 5B(2) of the Act. After examining the relevant provisions and large number of authorities, the Chief Justice noted that the task of the censor was extremely delicate and its duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. Chief Justice at page 474 of the report observed as follows: "Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censors scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes. No one after viewing these episodes would think that patricide or incest with one 's own mother is permissible or suicide in such circumstances or tearing out one 's own eyes is a natural consequence. And yet if one goes by the letter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection. If that were so Varrier Elwyn 's Phulmat of the Hills or the same episode in Henryson 's Testament of Cresseid (from where Verrier Elwyn borrowed the idea) would never see the light of the day. Again carnage and bloodshed may have historical value and the depiction of such scenes as the sack of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadir Shah made golgothas of skulls, must we leave them out of the story because people must be made to view a historical theme without true history? Rape in all its nakedness may be objectionable but Voltaire 's Candide would be meaningless without Cunegonde 's episode with the soldier and the story of Lucrece could never be depicted on the screen." (emphasis supplied) Chief Justice observed that our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must 1021 make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationship as banned in toto and for ever from human thought and must give scope for talent to put them before society. In our scheme of things, the Chief Justice noted, ideas having redeeming social or artistic value must also have importance and protection for their growth. Our attention was also drawn by Dr. Chitale to the decision of this Court in Ebrahim Sulaiman Sait vs M.C. Muhammad and another; , , where Gupta, J. speaking for the Court observed that truth was not an answer to a charge of corrupt practice under section 123(3A) of the said Act; what was relevant was whether the speech promoted or sought to promote feelings of enmity or hatred as mentioned in that provision. But the likelihood must be judged from healthy and reasonable standards. The question was again considered by this Court in Rajkapoor vs Laxman, ; This Court reiterated that the Penal Code is general and the is special. The scheme of the is deliberately drawn up to meet the explosively expanding cinema menace if it were not strictly policed. No doubt, the cinema is a great instrument for public good if geared to social ends and can be a public curse if directed to anti social objectives. The decision reiterated that a balance has to be struck. On the evidence available before this Court it appears that a balance has been struck. Dr. Chitale emphasised that in an interview with the author, the author said that "Tamas" was not a historical novel. It merely takes into account certain events from history and builds upon them. He further said that life provided the raw material and a writer moulded it according to his imagination and perception of reality. We have given full thought to the contentions urged on behalf of the petitioner and come to the conclusion that these contentions cannot be accepted for two reasons. Firstly, as we have already pointed out, the itself contains several provisions to ensure the fulfilment of the conditions laid down in section 5B and to ensure that any film which is likely to offend the religious suspectibilities of the people are not screened for public exhibition. In the present case the Film Censor Board has approved the exhibition of the film. That apart we are informed that the Doordarshan authorities also 1022 scrutinise a film before it is exhibited on the television screen. Though we do not have the details of the authority or body which scrutinised the film for purposes of exhibition on the television, the procedure does involve further examination of the film from standards of public acceptability before it is shown on the television. It is true that the remedy of an approach to the Appellate Tribunal is available only to persons aggrieved by the refusal of the Board to grant a certificate or the cuts and modifications proposed by it. It is for the consideration of the Central Government whether the scope of this section should be expanded to permit appeals to the Tribunals even by persons who are aggrieved by the grant of certificate of exhibition to a film on the ground that the principles laid down for the grant of certificates in section 5B have not been fulfilled. But, even on the statute as it presently stands, the procedure for grant of certificate of exhibition to a film is quite elaborate and the unanimous approval by the examining Committee must be given full weight. As pointed out by Krishna Iyer, J. in the Rajkapoor case (supra), a Court would be slow to interfere with the conclusion of a body specially constituted for this purpose. Secondly, in this case we have the advantage of the views of two experienced Judges of one of the premier High Courts of this country. The learned Judges found that the message of the film was good. They have stated that the film shows how realisation ultimately dawns as to futlity of violence and hatred, and how the inherent goodness in human nature triumphs. Dr. Chitale submitted that the Judges have viewed the film from their point of view but the average persons in the country are not as sober and experienced as Judges of the High Court. But the Judges of the High Court of Bombay have viewed it, as they said, from the point of view of "how the average person for whom the film is intended will view it" and the learned Judges have come to the conclusion that the average person will learn from the mistakes of the past and realise the machinations of the fundamentalists and will not perhaps commit those mistakes again. The learned Judges further observed that illiterates are not devoid of common sense, or unable to grasp the calumny of the fundamentalists and extremists when it is brought home to them in action on the screen. This is how they have viewed it: those who forget history are condemned to repeat it. It is out of the tragic experience of the past that we can fashion our present in a rational and reasonable manner and view out future with wisdom and care. Awareness in proper light is a first step towards that realisation. It is true that in certain circumstances truth has to be avoided. Tamas takes us to a historical past unpleasant at times, but revealing and instructive. In those years which Tamas depicts a human tragedy 1023 of great diminsion took place in this sub continent though 40 years ago it has left a lasting damage to the Indian psyche. It has been said by Lord Morley in "On Compromise" that it makes all the difference in the world whether you put truth in the first place or in the second place. It is true that a writer or a preacher should cling to truth and right, if the very heavens fall. This is a universally accepted basis. Yet in practice, all schools alike are forced to admit the necessity of a measure or accommodation in the very interests of truth itself. Fanatic is a name of such ill repute, exactly because one who deserves to be so called injuries good causes by refusing timely and harmless concession; by irrigating projudices that a wiser way of urging his own opinion might have turned aside; by making no allowances, respecting no motives, and recognising none of those qualifying principles that are nothing less than necessary to make his own principles true and fitting in a given society. Judged by all standards of a common man 's point of view of presenting history with a lesson in this film, these boundaries appear to us could have been kept in mind. This is also the lesson of history that naked truth in all times will not be beneficial but truth in its proper light indicating the evils and the consequences of those evils is instructive and that message is there in "Tamas" according to the views expressed by the two learned Judges of the High Court. They viewed it from an average, healthy and commonsense point of view. That is the yardstick. There cannot be any apprehension that it is likely to affect public order or it is likely to incite into the commission of any offence. On the other hand, it is more likely that it will prevent incitement to such offences in future by extremists and fundamentalists. Dr. Chitale, relying strongly on certain observations in Abbas ' case (supra, at p. 459 of the reports) contended that there was real danger of the film in this case inciting people to violence and to commit other offences arising out of communal disharmony. It is no doubt true that the motion picture is a powerful instrument with a much stronger impact on the visual and aural senses of the spectators than any other medium of communications; likewise, it is also true that the television, the range of which has vastly developed in our country in the past few years, now reaches out to the remotest corners of the country catering to the not so sophisticated, literary or educated masses of people living in distant villages. But the argument overlooks that the potency of the motion picture is as much for good as for evil. If some scenes of violence, some nuances of expression or some events in the film can stir up certain feelings in the spectator, an equally deep strong, lasting and beneficial impression can be conveyed by scenes revealing the machinations of selfish interests, scenes depicting mutual 1024 respect and tolerance, scenes showing comradeship, help and kindness which transcend the barriers of religion. Unfortunately, modern development both in the field of cinema as well as in the field of national and international politics have rendered it inevitable for people to face the realities of internecine conflicts, inter alia, in the name of religion. Even contemporary news bulletins very often carry scenes of pitched battle or violence. What is necessary sometimes is to penetrate behind the scenes and analyse the causes of such conflicts. The attempt of the author in this film is to draw a lesson from our country 's past history, expose the motives of persons who operate behind the scenes to generate and foment conflicts and to emphasise the desire of persons to live in amity and the need for them to rise above religious barriers and treat one another with kindness, sympathy and affection. It is possible only for a motion picture to convey such a message in depth and if it is able to do this, it will be an achievement of great social value. In the present case the finding of the learned Judges of Bombay High Court is that the picture viewed in its entirety is capable of creating a lasting impression of this message of peace and co existence and that people are not likely to be obsessed, overwhelmed or carried away by the scenes of violence or fanaticism shown in the film. We see no reason to differ from this conclusion. Before we conclude we note that the petition was based on alleged violation of Articles 21 and 25 of the Constitution. We. are unable to see any alleged violation of those articles. We, however accept the position that the petitioner has a right to draw attention of this Court to ensure that the communal atmosphere is kept clean and unpolluted. He has done well to draw attention to this danger. We have examined and found that there is no such danger and the respondents have not acted improperly or imprudently. In the aforesaid view of the matter this petition under Article 32 of the Constitution fails and is accordingly dismissed. Similarly, on similar grounds the special leave petition arising out of the judgment and order of the Bombay High Court dated 23rd January, 1988 in Appeal No. 96/88 is also dismissed. In the facts and circumstances of the case, there will be no order as to costs. R.S.S. Petition dismissed.

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

Appeal Nos. 735 and 736 of 1966. Appeals by special leave from the judgment and decree dated March 26, 1965 of the Allahabad High Court, Lucknow Bench in Second Execution Decree Appeals Nos. 3 and 4 of 1961. J. P. Goyal and section P, Singh, for the appellant (in both the, appeals). 233 C. B. Agarwala and K. B. Gupta, for the respondent (in both the appeals). The Judgment of the Court was delivered by Bachawat, J. The appellant filed suit nos. 87 of 1948 and 2/12 of 1948 in the court of the Assistant Collector, 1st Class, Pratapgarh, (a revenue court) against the respondent and 8 others persons under sections 60, 61 and 180 of the U.P. Tenancy Act (U.P. Act XVII of 1939) claiming a declaration that the defendants had no right to the suit lands and a decree for possession in case the defendants were found to be in possession thereof. The suits were decreed in 1948. The appellant took symbolical possession of the lands in execution of the decrees. Appeals against the decrees filed by the respondent and other defendants were dismissed by the Additional Commissioner, Faizabad. The defendants filed second appeals against the decrees. During the pendency of the appeals rules 4 and 5 of the Uttar Pradesh Zamindari Abolition and Land Reforms Rules 1952 came into force. The Board of Revenue held that in view of rules 4 and 5 the pending appeals as also the suits had abated. In 1955 the respondent filed applications for restitution of the lands under section 144 of the Code of Civil Procedure in court of the Assistant Collector, 1st Class, Pratapgarh. The appellant con. tested the application. One of the issues arising on the application was whether the appellant had acquired Bhumidari rights. The Assistant Collector referred this issue to the Civil Court for decision. He refused to recall the order of reference in spite of the respondent 's plea that he had no power to pass the order as no question of proprietary title had arisen. On May 7, 1958 the civil court answered the issue in the negative. On February 18, 1958 the Assistant Collector allowed the application for restitution and directed that the respondent be put in possession of the lands. The appellant filed appeals against the orders dated February 18, 1958 As he was not certain about the proper forum of the appeals he took the precaution of filing the appeals in the revenue court as also in the civil court. On October 23, 1959 the Additional Commissioner, Faizabad Division, held that the Revenue Court had no jurisdiction to entertain the appeals and that the appeals lay to the civil court under sections 286(4) and 265(3) of U.P. Tenancy Act. Accordingly he returned the memoranda of appeals for presentation to the proper court. The appellant filed revision petitions against the orders before the Board of Revenue, In the meantime the appeals filed before the civil court came up for hearing. The respondent submitted to the jurisdiction of the civil court. He did not raise the contention that the, civil court had no jurisdiction to entertain the, appeals. On 234 November 12, 1960 the Additional Civil Judge,, Pratapgarh, allowed the appeals and dismissed the applications for restitution. He held that (1) the appellant was in possession of the lands on the dates of the institution of the suits; (2) the board of revenue had no power to abate the suits or to set aside the decree passed therein, and (3) the application for restitution was not maintainable as the appellant had not obtained possession of the lands in execution of any decree which had been reversed or set aside. In view of this decision, the appellant did not proceed with the pending revision petitions before the board of revenue and on November 18, 1960 the revision petitions were dismissed. On February 1, 1961 the respondent filed second appeals in the High Court against the appellate orders of the civil court dated November 12, 1960. In the original memorandum of appeal, he did not take the plea that the civil court had no jurisdiction to entertain the appeals. For the first time on January 24, 1964, he took this plea by adding a new ground in his memorandum of appeal. The High Court held that (1) the appellant was in possession of the lands before the passing of the decree; (2) the suits had not abated and the Board of Revenue had no jurisdiction to set aside the proceedings, in the suits ' and (3) the applications for restitution were not maintainable. The High Court, however, held that (1) appeals against the orders for restitution lay to the revenue court, (2) the civil court had no jurisdiction to entertain the appeals and (3) the respondent was not estopped from raising the contention. Accordingly on March 26, 1965 the High Court allowed the second appeals, set aside the order of the Additional Civil Judge and returned the memoranda of appeals for presentation to the proper court. The appellant has filed the present appeals after obtaining special leave. On behalf of the appellant it is argued that (1) the appeal from the order of the Assistant Collector dated February 18, 1959 lay to the civil court and not to the revenue court (2) in the circumstances of the case, and in view of section 289(2) of the U.P. Tenancy Act, the respondent was precluded from raising the objection that the appeals did not lie to the civil court. It is common case that suits nos. 87 of 1948 and 2/12 of 1948 Were of the nature specified in Group B of the fourth schedule to the U.P. Tenency Act. In view of section 265(2) read with section 271(2) appeals from orders in proceedings under section 14 4 of the Code of Civil Procedure arising out of, the two suits lay to the revenue court. The appeals did not lie to the civil court under sections 265(3) and 286(4) read with section 271(2) as no question of jurisdiction was decided by the Assistant Collector nor was any question of proprietary title referred to or decided by the civil court. But the more important question is whether having regard to the 235 scheme of the U.P. Tenancy Act and the circumstances of the case, the objection as to the lack of competence of the civil court to entertain the appeals could be raised in the High Court. The U.P. Tenancy Act 1939 consolidates and amends the law relating to agricultural tenancies and other matters connected therewith in Agra and Oudh. It repealed the Agra Tenancy Act, 1926 and the Oudh Rent Act 1886. Chapter XIV of the Act deals with the procedure and jurisdiction of courts. Section 242 provides that certain suits and applications are cognizable by the revenue courts only. The chapter provides for appeals and revisions. No appeal lies from any decree or order passed by any court under the Act except as provided in the Act (section 263). In some cases an appeal lies to a revenue court; in other cases the appeal lies to the civil court. The High Court has no revisional power under section 276 in a case in which no appeal lies to the civil court. It is often a question of extreme nicety whether a suit, application or appeal is cognizable by the revenue court or by the civil court. Sections 289, 290 and 291 deal with objections regarding the proper forum. Section 290 provides that where in a suit instituted in a civil or revenue court, an appeal lies to the district judge or to the High Court, an objection that the suit was instituted in the wrong court shall not be entertained by the appellate court unless such objection was taken in the court of the first instance; and the appellate court shall dispose of the appeal as if the suit has been instituted in the right court. The section closely resembles section 21 of the Code of Civil Procedure and is a recognition of the princi ple that an objection as to the proper forum for the trial of a suit may be waived. Section 291 treats the objection as technical and provides that even where the objection was taken in the court of the first instance, the appellate court may dispose of the appeal as if the suit had been instituted in the right court. It may declare any court to be competent to try the suit and may remand the suit for fresh trial, and the competence of the trial cannot be ques tioned later. With a view to avoid conflicts of jurisdiction section 289 provides for reference to the High Court. Section 289 is as follows : "289(1) Where either a civil or revenue court is in doubt whether it is competent to entertain any suit, application or appeal, or whether it should direct the plaintiff, applicant or appellant to file the same in a court of the other description, the court may submit the record with a statement of the reasons for its doubt to the High Court; (2) Where any suit, application or appeal, having been rejected either by a civil court or by a revenue 236 court on the ground of want of jurisdiction, is subsequently filed in a court of the other description, the latter court, if it disagrees with the finding of the former, shall submit the record, with a statement of the reasons for its disagreement to the High Court; (3) In cases falling under subsection (1) or subsection (2) if the court is a revenue court subordinate to the collector, no reference shall be made under the foregoing provisions of this section except with the previous sanction of the collector; (4) On any such reference being made , the High Court may order the court either to proceed with the case, or to return the plaint, ' application or appeal for presentation of such other court as it may declare to be competent to try the same; (5) The order of the High Court shall be final and binding on all courts, subordinate to it or the Board. " Section 289 vests in the High Court a special jurisdiction. The decision of the High Court given ' on a reference to it under section 289 is binding on all courts. A reference can be made under section 289(1)if any court doubts its own competence to entertain any proceeding. The reference under section 289(1) is optional. Without making any reference the court may refuse to entertain the proceeding on the ground of want of jurisdiction. But the court of the other description in which the proceeding is subsequently instituted is not bound by this finding, see Nathan vs Harbans Singh(1). Before the enactment of section 289(2) if it disagreed with the finding, it could reject the proceeding on the ground that the matter was cognizable by the other court, As neither court was bound by the finding of the other, the litigant could not get relief in any forum. Section 289(2) has been specially enacted to avoid such a deadlock. In such a situation, section 289(2) compels the court to refer the matter to the High Court and to obtain a Provisions corresponding to sections 290, 291 and 289(1) were contained in sections 124 A, 124B, 124C and 124D of the Oudh Rent Act 1886 and sections 268, 269 and 267(1) of the Agra Tenancy Act, 1926. It seems that Oudh Rent Act, 1886 did not contain any provision corresponding to section 289(2). The absence of such a provision seriously hampered the administration of justice. In numerous cases under the Oudh Rent Act, after a suit, application or appeal was rejected by a civil court or revenue court on the ground of want of jurisdiction, the court of the other descrip (1) A.I.R. 1930 All. 264, decision which will bind all the courts. 237 tion where the proceeding was subsequently filed came to the opposite conclusion and held that the matter was within the cognizance of the former court. The decision of the court of one description including the decision of the High Court exercising appellate or revisional power over that Court was not binding upon the court of the other description. Such a situation led to great injustice. The litigant was bandied about from court to court and he could not get any relief anywhere. The Oudh Chief Court mitigated the evil by applying the doctrine that a party litigant could not approbate and reprobate in respect of tile same matter. A party litigant may not be allowed to take inconsistent positions in court to the detriment of his opponent at successive stages of the same proceeding or in a subsequent litigation growing out of the judgment in the former proceeding, see Bigelow on Estoppel, 6th Ed. 783, 789, Mohammad Mehdi Khan V Mussammat Sharatunnissa(1). On this principle it was held in Mahadeo Singh vs Pudai Singh(2) that where a revenue court upheld the plea that it had no jurisdiction to entertain a suit, the party putting forward the plea would be precluded from contending that the civil court could not entertain the suit. Likewise in Saira Bibi vs Chandrapal Singh (8) it was held that when an appeal was originally instituted properly in the revenue court but on objection being raised by a party was dismissed on the ground that the appeal did not lie to that court, it was not open to the party to raise the objection that the appeal could not be entertained by the civil court. This form of estoppel arises when the litigant takes in consistent pleas as to jurisdiction in different courts. It cannot be pressed into service, where, as in the present case, the court in which the proceeding was originally filed suo motu raised the objection as to jurisdiction. In the present case it does not appear that the respondent raised before the revenue court the objection that it was not competent to entertain the appeals. The doctrine of approbate and reprobate cannot be invoked to, preclude the respondent, from raising the objection that the appeals did not lie to the civil court. But the effect of upholding his objection is that the appellant is deprived of his right of appeal altogether. His appeals cannot be entertained either by the civil court or by the revenue court. Section 289(2) is intended to prevent such grave miscarriage of justice. Section 289(2) reenacts the provision of section 267(2) of the Agra Tenancy Act 1926. The object of section 289(2) is to avoid a deadlock between the civil and the revenue courts on the question of jurisdiction, and its provisions should receive a liberal construction. Section 289(2) applies whenever any suit, application or appeal having been rejected either by the civil court or revenue (1) 3 Oudh Cases, 32, Luck, 159,166. (3) A.I.R. 1931 Oudh 123. 238 court on account of want of jurisdiction is subsequently filed in the court of the other description and the latter court disagrees with the finding of the former. In such a case, a reference to the High Court is compulsory and the conflict of opinion is resolved by a decision of the High Court which is binding on all courts. A court subordinate to the collector cannot make the reference without the previous sanction of the collector under section 289(3). It is implicit in section 289(3) that if the collector refuses to give the sanction, the case will proceed as if there is no dis agreement with the finding of the former court. In a case falling within section 289(2), only the court in which the proceeding is subsequently instituted can disagree with the finding of the former court on the question of jurisdiction. If it so disagrees, it must refer the matter to the High Court; and only the High Court on such a reference can override the finding. No other court can disagree with the finding and make the reference. In our opinion, if no such reference is made, the finding of the former court on the question of jurisdiction becomes final and conclusive; and the objection that it is erroneous cannot be entertained by the appellate or revisional court or any other court. In the present case the respondent did not raise any objection before the Additional Civil Judge that the civil court was not competent to entertain the appeals. The Additional Civil Judge did not make any reference to the High Court under section 289(2). He decided the appeal on the merits and did not disagree with the finding of the revenue court on the question of jurisdiction. Having regard to this decision the appellant did not proceed with the revision petitions filed by him against the orders of the revenue court on the question of jurisdiction In these circumstances, it was not open to the respondent to raise the objection in the High Court that the civil court was not competent to hear the appeals. In view of the fact that no reference. under section 289(2) was made, the finding of the revenue court that the civil court was competent, to entertain the appeals could not be challenged in the High Court. The case must be decided on the footing that the Additional Civil Judge, Pratapgarh, was competent to enter tain the appeals. On the merits the respondent has no case. The Additional Civil Judge found that the appellant was in possession of the lands on the dates of the institution of the suits. The High Court agreed with this finding. We see no reason for setting aside this concurrent finding of fact. The appellant did not obtain possession of the lands by executing the decrees passed in the two suits. Even assuming that the suits had abated and the decrees 239 ed therein had been set aside or reversed, no case for restitution. of the lands under section 144 of the Code of Civil Procedure is made out. The Additional Civil Judge rightly dismissed the applications under, section 144. In the result, the appeals are allowed with costs, the orders of the High Court are set aside and the orders passed by the: Additional Civil Judge, Pratapgarh, are restored.

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]

ivil Appeal No. 3504 of 1991. the Judgment and Order dated 5.10.1990 of the Bombay High Court in W.P. No. 210 of 1990. Dhruv Mehta, S.K. Mehta and Aman Vachher for the Appellants. Jitender Sharma for the Respondents. The Judgment of the Court was delivered by SHARMA, J. Special leave is granted. The appellant was injured in a road accident and his claim petition has been dismissed as being barred by limita tion. The accident took place on 22.1.1989. The Motor Vehi cles Act, 1939 was repealed by section 217(1) of the which came into force on 1.7.1989. The period of limitation for filing a claim petition both under the old Act and the new Act being six months expired on 22.7.1989. The claim petition of the appellant, however, was filed belatedly on 15.3.1990 with ,a prayer for condonation of delay. The Accident Claims Tribunal held that in view of the provisions of subsection (3) of section 166 of the new , the delay of more than six months could not be condoned. The application was accordingly dismissed. The appellant unsuccessfully challenged the decision before the High Court. 915 3. It has been contended that since the accident took place when the old was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act, and his petition cannot be dismissed on the basis of the provisions in the new Act. The period of limitation for filing a claim petition both under the old Act and the new Act is six months from the date of the accident. The difference in the two Acts, which is relevant in the present case, is in regard to the provisions relating to condonation of delay. In view of the proviso to sub section (3) of section 166 of the new Act, the maximum period of delay which can be condoned is six months, which expired on 22.1.1990. If the new Act is held to be applicable, the appellant 's petition filed in March had to be dismissed. The case of the appellant is that the accident having taken place before the new Act came into force, the proceeding is governed by the old Act, where there was no such restriction as in the new Act. The ques tion is as to which Act is applicable; the new Act or the old. It has been contended by the learned counsel that under the old Act the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation, and this right is preserved by reason of the provisions of section 6 of the . Reliance has been placed on clauses (c) and (e). The relevant portion of the section reads thus: "6. Effect of repeal Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enact ment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a). . (b). . (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in 916 respect of any such right, privilege, obliga tion, liability, penalty, forfeiture or pun ishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repeating Act or Regulation had not been passed. " We are unable to agree. Clause (e) is not attracted because, by the enactment of the new law the remedy of the appellant has not been affected at all. His right to claim compensa tion by filing the claim within the same period of limita tion has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege available under the old Act. So far the applicability of clause (c) is concerned, the question depends on whether the appellant had got an accrued right or privilege under the old law which he could not have been deprived of by the repealing legisla tion. Even independent of the , it is firmly established that unless a new statute expressly or by necessary implication says so, it will not be presumed that it deprives a person of an accrued right. On the other hand, a law which is procedural in nature, and does not affect the rights, has to be held to be retrospectively applicable. The question is whether the appellant has been deprived of an accrued right or privilege in the present case 7. It is true that the appellant earlier could file an application even more than six months after the expiry of the period of limitation, but can this be treated to be a right which the appellant had acquired. The answer is in the negative. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be governed by the new Act subject to two, conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. This principle has been followed by this Court in many cases and by way of illustra tion we would like to mention New India Insurance Co. Ltd. vs Smt. Shanti 917 Misra; , The husband of the respondent in that case died in an accident in 1966. A period of two years was available to the respondent for instituting a suit for recovery of damages. In March, 1967 the Claims Tribunal under section 110 of the was con stituted, barring the jurisdiction of the civil court and prescribing 60 days as the period of limitation. The re spondent filed the application in July, 1967. It was held that not having filed a suit before March, 1967 the only remedy of the respondent was by way of an application before the Tribunal. So far the period of limitation was concerned, it was observed that a new law of limitation providing for a shorter period cannot certainly extinguish a vested right of action. In view of the change of the law it was held that the application could be filed within a reasonable time after the constitution of the Tribunal; and, that the time of about four months taken by the respondent in approaching the Tribunal after its constitution, could be held to be either reasonable time or the delay of about two months could be condoned under the proviso.to section 110A(3). The learned counsel strenuously contended that the present case must be considered as one where an accrued right has been affected, because the option to move an application for condonation of delay belatedly filed should be treated as a right. This cannot be accepted. There is a vital difference between an application claiming compensa tion and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in it selt an accrued right or privilege. To illustrate the point, we may refer to some cases. In Director of Public Works and Another vs Ho Po Sang and Others, ; a Crown lessee in respect of certain premises which were in occupation of tenants and sub tenants entered into an agreement with the appellant Director for developing the site by erecting buildings. The erection of the new buildings necessitated the demolition of the existing buildings. Under the provisions of an Ordinance a Crown lessee was entitled to recover vacant possession of the premises if he obtained a re building certificate from the Director. On the application of the Crown lessee a proceeding for grant of the certificate was started and the Director issued a notice under the Ordinance indicating his intention to grant the re building certificate. Before the certificate could be finally issued, the relevant provision of the Ordinance entitling the lessee to recover vacant possession of the premises was repealed. The lessee claimed the right to vacant possession by relying on certain provi sions dealing with rules of interpretation similar in terms to section 6 of our . The plea 918 was rejected on the ground that although the lessee was entitled to make an application for vacant possession before the Ordinance was repealed, it did not amount to an accrued right or privilege, capable of being preserved after the repeal of the Ordinance, as the right was dependent on the actual issuance of a certificate. In an earlier case of Abbott vs Minister of Lands, the appellant was entitled to make purchases of Crown land adjoining his holding by virtue of certain statutory provisions, which were repealed before he could effectively enforce his right. Besides raising other grounds in respect of his claim, he argued that the right which he had under the repealed enactment was a "right accrued" and of which he could not be deprived of by the repeal. Reject ing the plea, it was observed that the mere right existing in a class of persons to take advantage of an enactment, cannot in absence of any act done by the claimant towards availing himself of that right be deemed a "right accrued". In Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Trust, [1975] 1 SCR 720 the respondents let out the premises in question to the appellants in 1951 in a place where, by the Saurashtra Rent Control Act, sub letting by a tenant was prohibited. The appellants sub let the premises at a time when the Act was in force. In 1963 the Act was repealed and the Bombay Rent Act was made applica ble, under which there was no such prohibition against sub letting. In a suit for eviction filed subsequently the High Court assumed that a notice under the Transfer of Property Act was necessary to terminate the tenancy which had not been done before the repeal, but still held that since the respondents had an accrued right within the meaning of section 51 of the Bombay Rent Act (the provisions whereof were similar to those in section 6 of the ) the respondents were entitled to a decree. The decree was confirmed by the Supreme Court but not on the above ground. This Court held that a notice under the Transfer of Properties Act was not necessary and in that view it con firmed the decree of the High Court. With respect to the finding of the High Court regarding the respondents acquir ing an accrued right even on the assumption that a notice under the Transfer of Properties Act was necessary, it was held that the right of a landlord to recover possession is not an accrued right before the issue of a notice if under any law it was necessary for the landlord to issue the notice to determine the tenancy. The principle laid down there supports our view. 919 A question, though not identical, but somewhat similar Came up for consideration by this Court in Lalji Raja and Sons vs Firm Hansraj Nathuram, ; The appel lants had obtained a money decree against the respondents in a court in West Bengal in 1949, and got it transferred for execution to the court at Morena in the then State of Madhya Bharat. On the respondents objection on the ground of lack of jurisdiction the Madhya Bharat Court dismissed the execu tion petition. The matter was thereafter taken to the High Court and this Court, but without any success. The decision partly rested on the ground that the Indian Code of Civil Procedure was not applicable to the State of Madhya Bharat. Subsequently the Code was extended tO that area which had become a part of the State of Madhya Pradesh and a fresh order was passed by the West Bengal Court transferring the decree to Morena Court. The judgment debtors challenged the jurisdiction of the court on various grounds. One of the points which was urged was that in view of section 20 clause (b) of the Code of Civil Procedure (amendment) Act, 1951 by which the Code was extended to Madhya Bharat and other areas, the Judgment debtors ' right to resist the execution was protected. Reliance was placed on the proviso to the repeal clause in the section which declared that the repeal would not affect any fight, privilege, obligation or liabil ity acquired accrued or incurred under the repealed clause. The judgment debtors objection was over ruled by this Court. Relying on several English decisions including that in Abbott vs Minister for Lands, , it was observed that the mere right existing at the date of the repeal of statute, to take advantage of provisions of the statute repealed is not a "right accrued" within the meaning of the usual saving clause. In the case before us the period of limitation for lodging the claim under the old as well as the new Act was same six months which expired three weeks after coming in force of the new Act. It was open to the appellant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim cOmpensa tion was not affected at all by the substitution of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no change in the position under the new Act. In this background the appellant 's fur ther default has to be considered. If in a given case the accident had taken place more than a year before the new Act coming in force and the claimant had actually filed his petition while the old Act was in force but after a period of one year, the position could be different. Having actual ly initiated the proceeding when the old Act 920 covered the field a claimant could say that his right which had accrued on filing of the petition could not be taken away. The present case is different. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enactment presupposes applicability of the enactment when the need arises to take its benefit. In the present case the occasion to take the benefit of the provision for condona tion of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the re peal. The benefit of the repealed law could not, therefore, be available simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from 'cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. We accordingly hold that the High Court was right in its view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. The appeal is dismissed, but in the circumstances, without costs. G.N. Appeal dis missed.

Respondent No. 1 is a Cooperative House Building Society registered under the Delhi Cooperative Societies Act, 1972. It was formed in October 1959, with a view to procure land, which the Central Government proposed to allot for the resettlement of displaced persons. The members of the Socie ty fail in three categories viz., (i) employees of the Ministry of Rehabilitation, New Delhi (ii) employees of the MiniStries in Delhi/New Delhi which were under the charge of the Minister/Minister Of State of Rehabilitation Ministry and (iii) employees working in the subordinate offices of the Ministry/Department of Rehabilitation who were posted outside Delhi/New Delhi and wanted to settle in Delhi after their superannuation. It may be mentioned that the members in the third category were enrolled as members pursuant to the amended bye law 5(1)(a) (iii), at the Society 's Managing Committee 's meeting held on 17.11.1979. At the said meeting the cases of 15 other members were also regularised, as the affidavits furnished by them earlier were on scrutiny found defective, which they had replaced by filing fresh affida vits. The Society proceeded to make allotment of land to its members and draw of lots was held on 14.12.1988. The draw of lots was challenged by the appellants before the Delhi High Court on the ground that they are senior to 15 persons aforementioned and others. The appellants also challenged ,the validity of the Notification dated 27th October 1987 insofar as it made the amended bye law 5(1)(a)(iii) effec tive retrospectively. The High Court having dismissed the petition, the appellants have filed this appeal after ob taining special leave, and the question involved for deter mination in the appeal inter alia relates to the seniority of the members of the society which constitutes the basis for allot 840 ment of plots at the time of drawing of lots. DiSmissing the appeal, this Court, HELD: The notification dated 27th October, 1987, indi cates that by its earlier part the Lt. Governor has exempted the society from the provision of Section 12 of the Act. This was clearly permissible on a plain reading of Section 88. By its later part the notification provides that the amended bye law 5(1)(a) i(iii) "will have retrospective effect with effect from 10.1.1968. " The word "which" seems to have been omitted after "as registered on 10.3.86" and before "will have retrospective effect". It is clear not only from the context of the notification but also from its Hindi version. [849E F] What weighed with the Lt. Governor in passing the order dated 10.8.1985 was that persons for whose benefit the bye law was sought to be amended had become members of the society many years ago, that their names figured even in the list of members which was supplied by the Society to the Department of Rehabilitation and which formed the basis for allotment of land to the society and that it would be neither fair nor just to leave them in the lurch now by depriving them of their membership when they cannot become members of any other society. It was pointed out by the Lt. Governor that the proposed amendment in the bye law was "designed to regularise such of the members." [855E F] The notification dated 29.8.1990 purports to rescind the earlier notification dated 27th October 1987 only and does not speak in clear terms that the quasi judicial order dated 19.8.1985 was also being rescinded. On the facts and circum stances this hardly makes any difference inasmuch as even though the quasi judicial order dated 19th August 1985 has not been expressly nullified, it has certainly for all practical purposes been nullified by necessary implication. This could not be done and the notification dated 29th August 1990 is ultra vires on this ground alone. [857B C] A quasi judicial order once passed and having become final cannot be reviewed by the authority passing that order unless power of review has been specifically conferred. [856C] The quasi judical order dated 19th August, 1985 had been passed by the Lt. Governor under Section 76 of the Act. No power to review such an order has been conferred by the Act. [856D] 841 Partap Singh vs State of Punjab, ; ; Kruse vs Johnson, ; Registrar of Cooperative Societies, Trivandrum & Anr. K. Kunhambu & Ors., ; at p. 267 and State of Kerala & Ors. K.G. Madhhvan Pillai & Ors., , referred to.

Civil Appeal No. 6623 of 1983. From the Judgment and Order dated 3.6.1983 of the Punjab & Haryana High Court in E.P. 13/82. Kapil Sibal, Gopi Chand, K.C. Sharma, R. Karanjawala, Mrs. M. Karanjawala, Miss Neethu & Mrs. Madhu Tewatia for the Appellants. K.G. Bhagat, Additional Solicitor General, R.Venkataramani, Ranbir Singh Yadav, P.S. Pradhan, Chandra Shekhar Panda and A. Mariaroutham for the Respondent. The following Judgments were delivered: FAZAL ALI, J. The election process in our country has become an extremely complex and complicated system and indeed a very difficult and delicate affair. Sometimes, the election petitioner, who has lost the election from a particular constituency, makes out on the surface such a probable feature and presents falsehood dextrously dressed in such a fashion as the truth being buried somewhere deep into the roots of the case so as to be invisible, looks like falsehood which is depicted in the grab of an attractive imposing and charming dress as a result of which some courts are prone to fall into the trap and hold as true what is downright false. If, however, the lid is carefully opened, and the veil is lifted, the face of Falsehood disappears and truth comes out victorious. In such cases the judicial process and the judicial approach has to be both pragmatic and progressive sc that the deepest possible probe is made to get at the real truth out of a heap of dust and cloud. This is indeed a herculean task and unless the court is extremely careful and vigilant, the truth may be so completely camouflaged that falsehood may look like real truth. Of course, the advocacy of the counsel for the parties does play a very important role in unveiling the truth and in borderline cases the courts have to undertake the onerous task of "disengaging the truth from falsehood, to separate the chaff from the grain". In our opinion, all said and done, if two views are reasonably possible one in favour of the elected candidate and the other against him Courts should not interfere with the expensive electoral process and instead of setting at naught the 405 election of the winning candidate should uphold his election giving him benefit of the doubt. This is more so where allegations of fraud or undue influence are made. There observations have been made by us in order to decide election cases with the greatest amount of care and caution, consideration and circumspection because if one false step is taken, it ay cause havoc to the person who loses. It is not necessary for us to dwell on or narrate the facts of the case of the parties which have detailed by the High Court in very clear and unambiguous terms. To repeat the same all over again might frustrate the very object of deciding election petitions with utmost expedition. Even so, it may be necessary for us to give a bird 's eye view and a grotesque picture of the important and dominant elements of the controversy between the parties in order to understand which of the two cases presented before us is true. The evidence in the present case consists of a. Oral evidence of the witnesses of the parties b. the documentary evidence c. the evidence consisting of the tape recorded statements of the conversation between the Deputy Commissioner and the respondent, Col. Ram Singh, corroborated by the respondent himself who was examined as a court witness by us in this Court and both sides were given full opportunity to cross examine him. d. important points of law arising out of the arguments presented before us, and e. authorities of this Court or other courts cited before us. For the purpose of understanding the truth and the spirit of the matter a scientific dichotomy of the case has to be made which may include the following factor: a. Time and manner of voting, 406 b. allegation of both capturing, c. role played by the electoral authorities who ma have acted honestly yet the possibility of their falling an easy prey to the machinations of one side or the other cannot be safely eliminated which may lead to an error of Judgment on their part. This should be fully guarded against as also the possibility of their being attracted by any False temptation, d. Where the proof of a corrupt practice is he very cornerstone and the bedrock of the case set against the successful candidate, the court should be doubly sure that it is not lured to fall in the labyrinth of chaos and confusion by easily holding that the corrupt practice alleged has been proved. With this short prelude, we would now proceed to give an exhaustive glimpse of the contentions raised before us by the parties. Before, however, we do that we must record our appreciation and gratefulness to the counsel for both the parties who in a big case like this had been fair enough to confine their arguments only to two polling stations, viz., Kalaka and Burthal Jat, which has rendered our task much easier besides saving a lot of time, labour and expense. We also feel indebted to the learned counsel for the parties for having argued the case with dexterity and brevity which, as it is said, is the 'soul of wit '. The present appeal arises out of an election held on May 19,1982 to the Haryana Vidhan Sabha from Rewari constituency No.86. In view of the concession made by the counsel for the parties, we are concerned in this appeal only with two polling booths, viz., Kalaka and Burthal Jat. It appears that there were as many as five candidates and Col. Ram Singh [respondent] seems to have been pitted against the aforesaid candidates. The bedrock of the allegations made by the appellants against the respondent was that he has been painted to be a most undependable and unreliable person from the moral point of view as having changed sides with one party or the other to suit his needs and divided his loyalties by playing a dirty game of politics in that he changed sides without any fixed ideology and the only principle which, according to the appellants, the respondent had, was lust for power. It may be pertinent to note 407 here that the respondent had also alleged that Rao Birendra Singh, who, according to him, was the evil genius of the whole show, had set up his sister, Sumitra Bai, to contest the election in order to get the respondent out of the way. However, we are not at all concerned with any of these matters or allegations which appear to be foreign to the scope of the present appeals nor are these matters of which any serious notice can be taken because as Shakespeare has said "everything is fair in war and love" and the respondent could not be presumed to be as virtuous as Ceasar 's wife so as to be completely above board. So, we cannot blame the respondent if he changed sides to suit the temper of the times. At any rate, this allegation has no relevance to the setting aside of the election of the successful candidate. The law does not recognise either political morality or personal loyalties so long as the candidate allows a fair game to be played without destroying the sanctity of the electoral process by indulging in undue influence or corrupt practices which must be proved satisfactorily beyond reasonable doubt. So far so good. A conspicuous fact may however be noticed here, viz., that clear and specific allegations with facts and figures regarding the corrupt practices indulged in by the respondent have not been alleged in the first part of the election petition itself. The allegation however, have been detailed in the statement of particular submitted by the appellants, who were certainly entitled to do so but we should have expected some definitive and specific allegations regarding the nature of the fraud or the corrupt practices committed by the respondent as briefly as possible in the main part of the petition itself. Therefore, this is doubtless a relevant factor in Judging the truth of the particulars mentioned in the statement more particularly when the onus of proving the corrupt practice lies entirely on the election petitioner who must demonstrably prove the same. And now a pointed peep into the salient features of the facts of the case. To begin with, the arguments of the appellants are confined only to the Kalaka and Burthal Jat polling booths. Therefore we proceed further we might at this stage briefly indicate, shorn of details, the nature, character and the extent of the allegations regarding the corrupt practices and booth capturing alleged to have been indulged in by the respondent on the basis of which the appellants seek to set aside the election of the respondent. 408 As regards Kalaka, (1) it was alleged that the respondent appeared at the scene at about 10.30 a.m. with 50 60 persons and was himself armed with a gun while his companions had guns, sticks and swords. By sheer show of force, the voters were threatened and pressurised as a result of which they ran away without exercising their votes. In other words, the allegation is that as a result of the serious threat held out by the respondent, the voters were deprived of their valuable right of fraenchise. (2) The respondent alongwith his companions enter the booth and terrorised the polling officer as also the polling agents (Basti Ram & Ishwar) of the Congress I candidate who were assaulted by The respondent by the but end of the barrel of his gun. (3) The respondent and others at gun point snatched away about 50 ballot papers from the polling staff and after marking them in his (respondent) favour put them into the ballot box. (4) The respondent and his companions at his (respondent) instance thumb marked the counterfoils of the ballot papers also. As regards Burthal booth, (1) the appellants alleged that almost the same modus operandi was adopted by the respondent and he directed his supporters to prevent the voters from entering the booth, thereby depriving them of the opportunity of exercising their right to vote. (2) Not content with this, the respondent left behind his relations Anil Kumar and Satbir Singh to carry on the aforesaid activities and gave further instructions that the maximum number of votes should be polled in his favour. Thus, so far as Kalaka and Burthal polling booths are concerned, two important corrupt practices have been alleged by the appellants: (1) forcible polling of votes and (2) preventing the genuine voters from exercising their right to vote. It manifestly follows that once it is proved that the respondent was not present at the time of the incidents at Kalaka 409 and Burthal, the case of the appellants falls like a pack of cards because it is well settled by several authorities of this Court that the corrupt practice must be committed by the candidate or his polling agent or by others with the implicit or explicit consent of the candidate or his polling agent. Where, however, the supporters or a candidate indulge in a corrupt practice on their own without having been authorised by the candidate or his polling agent, the election of the returned candidate cannot be voided. We might mention here that the last factor indicated by us is conspicuously absent in this case taking ex facie the entire facts narrated by the appellants in their pleadings or in the evidence. Before, however, analysing and marshalling the evidence we would like to refer to the authorities of this Court and other courts regarding the necessary precautions to be Taken in approaching evidence in election cases and she principles laid down by us. We would also deal with the extent of the admissibility of the evidence of the tape recorded statements alleged to have been made by some of the witnesses in the tape recorder recorded by P.W. 7, the Deputy Commissioner. As regards the principles enunciated by this Court regarding the nature and the standard of proof of corrupt practice alleged by an election petitioner against the successful candidate, though it is not necessary for us to burden our judgment with multiplicity of authorities yet the ratio of some of the important decisions which are directly in point may be briefly stated. To begin with, as far back as 1959 in Ram Dial vs Sant Lal Ors., [1959] 2 supp. S.C.R. 748, the Court observed thus: "What is material under the Indian law, is not the actual effect produced, but the doing of such acts as are calculated to interfere with the free exercise of any electoral right. Decisions of the English Courts, based on the words of the English Statute, which are not strictly in pari materia with the words of the Indian statute, cannot, therefore, be used as precedents in this country." In Samant N. Balakrishna, etc. vs George Fernandez & Ors. etc. ; , , this Court while dwelling on the principles to be followed in election cases pithily point out thus: 410 "The principle of law is settled that consent may be inferred from circumstantial evidence but the circumstances must point unerringly to the conclusion and must not admit of any other explanation. Although the trial of an election petition is made in accordance with the Code of Civil Procedure it has been laid down that a corrupt practice must be proved in the same way as a criminal charge is proved. In other words, the election petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent." In Ch. Razik Ram vs Ch. Jaswant Singh Chouhan & Ors. , this Court laid down the following principles: "Before considering as to whether the charges of corrupt practice were established, it is important to remember the standard of proof required in such cases. It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking, part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi criminal action, the standard of proof is the same as in a criminal trial. Secondly, even if the nature of the trial of an election petition is not the same in all respects as that of a criminal trial, the burden of proving each and every ingredient of the charge in an election petition remains on the petitioner. If a fact constituting or relevant to such an ingredient is pre eminently within the knowledge of the respondent, it may affect the quantum of its proof but does not relieve the petitioner of his primary burden. " In Balwan Singh vs Prakash Chand & Ors. ; , Shinghal,J. made the following observations: "Another argument of Mr. Bindra was that the corrupt practice in question should not have been found to 411 have been committed as the election petitioners did not examine themselves during the course of the trial in the High Court. There was however no such obligation on them, and the evidence which the election petitioners were able to produce at the trial could not have been rejected for any such fanciful reason when there was nothing to show that the election petitioners were able to give useful evidence to their personal knowledge but stayed away purposely. " In the case of Sultan Salahuddin Owasi vs Mohd. Osman Shaheed & Ors.[1980] 3 S.C.C. 281 to which one of us (Fazal Ali, J.) was a party, this Court observed thus: "It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation s the same as a charge of fraud in a criminal case. In Ram Sharan Yadav vs Thakur Muneshwar Nath Singh & Ora. ; , to which two of us were parties, this Court observed thus: "The sum and substance of these decisions is that a charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of E probabilities. As the charge of a corrupt practice is in the nature of a criminal charge, it is for the party who sets up the plea of ' undue influence ' to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case. This is more so because once it is proved to the satisfaction of a court that a candidate has been guilty of 'undue influence ' then he is likely to be disqualified for a period of six years or such other period as the authority concerned under Section 8 A of the Act may think fit. By and large, the Court in such cases while appreciating or analysing the evidence must be guided by the following considerations: (1) the nature, character, respectability and credibility of the evidence, 412 (2) the surrounding circumstances and the improbability appearing in the case, (3) the slowness of the appellate court to disturb a finding of fact arrived at by the trial court who had the initial advantage of observing the behaviour, character and demeanour of the witnesses appearing before it, and (4) the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged. " This, therefore, concludes the question regarding the standard of proof. As heavy reliance was placed by the appellants on exhibit P 1 (the tape recorded statements of RWs 1 to 3) as also the statements recorded in the same tape recorder by PW 7 which included the statement of the respondent, in order to allay all doubts and satisfy ourselves regarding the genuineness of the statements made in the tape recorder we have examined the respondent as a court witness in this Court and allowed him to be cross examined by both sides. We would deal with the nature and the relevancy of the statements made at a later part of our judgment. But before that we would like to settle the controversy between counsel for the parties as to the extent of admissibility of evidence recorded on tape recorder or other mechanical process. It seems to us that the matter have is not free from difficulty but the preponderance of authorities Indian and foreign are in favour of admissibility of the statement provided certain conditions and safeguard are proved to the satisfaction of the court. We now proceed to discuss the various ramifications and the repercussions of this part of the case. This Court had the occasion to go into this question in a few cases and it will be useful to cite some of the decisions. In Yusufalli Esmail Nagree vs State of Maharashtra ; , this Court, speaking through Bachawat, J. Observed thus: "If a statement 'is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be 413 properly identified. One of the features of magnetic tape RECORDING is the ability to erase and re use the recording medium. Because of this facility of erasure and re use, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with. The tape was not sealed and was kept in the custody of Mahajan The absence of sealing naturally gives rise to the argument that the recording medium might have been tempered with before it was replayed." (Emphasis ours) In the case of N. Sri Rama Reddy, etc. vs V.V.Giri ; , the following observations were made: "Having due regard to the decisions referred to above, it is clear that a previous statement, made by a person and recorded on tape, can be used not only to corroborate the evidence given by the witness in Court but also to contradict the evidence given before the Court, as well as to test the veracity of the witness and also to impeach his impartiality. In R.M. Malkani vs State of Maharashtra [1973] 2 S.C.R. 417, this Court laid down the essential conditions which, if fulfilled or satisfied, would make a tape recorded statement admissible otherwise not; and observed thus: "Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. (Emphasis supplied) In Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra & Ors., [19751 Supp. S.C.R. 281, Beg,J. (as he then was, made the following observations: "We think that the High Court was quite right in holding that the tape records of speeches were 414 "documents" , as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions: (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who knew it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, DIRECT or circumstances, had to be there 80 as to rule out possibilities of tampering with the record. (c) The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the evidence Act. " (Ephes ours) Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows: (1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker. (2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of con text and, therefore, inadmissible. (4) The statement must be relevant according to the rules of Evidence Act. 415 (5) The recorded cassette must be carefully sealed and kept in safe or official custody. (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances. The view taken by this Court on the question of admissibility of tape recorded evidence finds full support from both English and American authorities. In R. vs Maqsud Ali, , Marshall, J., observed thus: C "We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged. We find ourselves in complete agreement with the view taken by Marshall, J., who was one of the celebrate Judges of the Court of Criminal Appeal. To the same effect is another decision of the same court in R. vs Robson , where Shaw, J., delivering a judgment of the Central Criminal Court observed thus: "The determination of the question is rendered more difficult because tape recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts. 416 During the course of the evidence and argument on the issue of admissibility the recordings were played back many times. In the end I came to the view that in continuity, clarity and coherence their quality was, at the least, adequate to enable the jury to form a fair and reliable assessment of the conversation which were recorded and that with an appropriate warning the jury would not be led into and interpretation unjustifiably adverse to the accused. Accordingly, so far as the matter was one of discretion, I was satisfied that / injustice could arise from admitting the tapes in evidence and that they ought not to be excluded on this basis. " In Amercian Jurisprudence 2nd (Vo1.29) the learned author on a conspectus of the authorities referred to in the footnote in regard to the admissibility of tape recorded statements at page 494 observes thus: "The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement. However, the recording may be rejected if it is so inaudible and indistinct that the jury must (Emphasis ours) We would, therefore, have to test the admissibility of the tape recorded statements of the respondent, given in the High Court as also in this Court, in the light of the various tests and safeguards laid down by this Court and other Courts, referred to above. We shall give a detailed survey of the nature and the character of the statement of the respondent in a separate paragraph which we intend to devote to this part of the case, which is really an important feature and, if accepted, may clinch the issue and the controversy between the parties on the point of corrupt practice. This now brings us to a summary of the nature of the evidence produced by the parties. As already stated counsel for the parties confined their arguments only to the validity of the election relating to Kalaka and Burthal Jat polling booths. By virtue of a notification dated 17.4.82 the Governor of Haryana called upon the voters to elect Members to the Vidhan Sabha. The last date for filing the nomination papers was 24.4.82, the date for scrutiny was 26.4.82 and 28.4.82 was the last date for withdrawal of candidature. The polling was held on 19.5.82 and the counting of votes took place on 20.5.82. It is the last date with which we are mainly concerned. To begin with, it appears that 24 persons had filed their nomination papers out of which three were rejected by the Returning Officer and 16 persons withdrew their candidature, leaving five persons in the field. Sumitra Devi was a nominee of the Congress (I) party and the respondent filed his nomination papers initially as an Independent candidate but later on joined Congress (J) party. The respondent was first in the army but he resigned soon after the Indo Pakistan war in 1971 and started doing business as a diesel dealer in partnership with others. On being elected to the Vidhan Sabha he become its Speaker as he enjoyed the confidence of the then Chief Minister, Ch. Devi Lal. As it happened, in the 1980 Parliamentary elections the Congress (I) party swept the polls and Shri Bhajan Lal, having left the Janata Party, joined the Congress (I) party along with many of his supporters, including the respondent. But, we are concerned only with the 1982 Assembly elections to the Haryana Vidhan Sabha in which the main candidates were Smt. Sumitra Devi and the respondent. 418 KALKA POLLING BOOTH We would first take up the allegations levelled by the appellants against the respondent regarding the corrupt practices relating to the Kalaka polling booth. According to the evidence of R.W.1, the polling started at 7.30 a.m. and went off peace fully without any untoward incident till 10.30 a.m. Near About this time, according to the allegations of the appellants, the respondent arrived with a posse of 60 70 persons, including Des Raj, Ram Kishan and others, to create disturbance in the polling and to prevent the votes from being polled in favour of other parties. It is also alleged that a mob of 40 50 persons was variously armed with guns, lathis and swords, and the respondent himself was armed with a gun. As a result of the activities of the respondent, some of the voters like Shiv Charan, Gurdial and others were forced to run away without exercising their right to vote. It was further alleged that not to speak of the voters even the polling staff was not allowed to do its duty which resulted in the voting coming to a stand still. At this, one Mangal Singh raised serious protest and on the orders of the respondent he was assaulted. Ishwar (Lambardar) was also hit by the buttend of the gun and despite the objections of Basti Ram he was also assaulted. The policemen were heavily outnumbered and had to stand as silent spectator to the whole show. Further details of the acts of omission and commission committed by the respondent have been given in the judgment of the High Court as also on pages 10 12 of Vol. III of the Paperbooks. It is also alleged that the respondent with the aid of his companions snatched as many as 50 ballot papers from the polling staff and after marking them in his favour put them into the ballot box. Ultimately, on the arrival of the high officers the Presiding Officer lodged a detailed report giving his own version of the incident on the basis of which FIR was registered on 19.5.82 itself. P.W. 7, Mr. N. Balabhaskar, the Deputy Commissioner of Mohindergarh District, who was the Returning Officer of the entire constituency also reached the spot and made enquiries in the matter. As a result of the trouble created at the instance of the respondent, the polling had to be postponed as it was disrupted for more than an hour. These in short, are the allegations of the appellants against the respondent in respect of Kalaka polling booth. We shall now refer`to the evidence led by both the parties on there particular points to show how far the allegation have been proved. To begin with, P.Ws. 7, 8, 12 to 18 deposed in favour of the appellants in respect of this polling booth. In order to 419 rebut the evidence led on behalf of the appellants, the respondent produced Roop Chand (R.W.1), Deen Dayal (R.W.2), constable Mohinder Singh (R.W.3), Dhani Ram (R.W.4), Ram Kishan (R.W.5) and Suresh (R.W.6) besides respondent himself (R.W. 22). Having gone through the evidence led on behalf of both the appellants and the respondent, we are clearly of the opinion that despite the quantity of the appellants ' witnesses, the quality of the respondent 's witnesses appears to be much superior to that of the P.Ws. ln regard to the respective facts stated by them. We would like to discuss the evidence of the Respondent witnesses by way of a comparative assessment ln relation to the evidence led by the appellants 80 that a true picture of the cases of the parties may come out conspicuously which would throw a flood of light on the credibility of the witnesses concerned. We shall now show that the statement of R.W. 1 seems to find intrinsic support from the star witness of the appellants, viz., P.W. 7, the Deputy Commissioner. P.W. 7 is a high officer and, therefore, a respectable witness though, with due respect, we might say that his performance in this case has not been very satisfactory and his conduct leaves much to be desired. Without going into further details we might mention that his action in recording the statement of the witnesses on a tape recorder without taking the necessary precautions and safeguards cannot be fully justified. We are not able to understand as to why should he have taken the risk of recording the statements on a tape recorder knowing full well that the evidentiary value of such a tape recorded statement depends on various factors. Since P.W. was accompanied by his stenographer, there could have been no difficulty in recording the statement of the persons concerned by dictating their statements to him and after being typed, signed the same and taken the signatures of the deponent a certificate "Read over and accepted correct. " If this was done nobody could doubt the authenticity of such statements. P.W. 7 admits his statement that he was not authorised or asked by any higher officer than him to record the statement at the spot in a tape recorder which obviously he did at his own risk. Furthermore, even if he had recorded the statements on a tape recorder he ought not to have kept the cassette in his own custody but should have deposited it in the Record Room according to rules. By keeping the recorded cassette in his own custody, the possibility of tampering with or erasure of the recorded speech cannot be ruled out. Another serious defect in recording the statement on a tape 420 recorder was that he had to take further care and precaution to see that the voice of the person whose statement was recorded should be fully identified. Here again, he seems to have fallen into an error resulting in a very anomalous position as some of the witnesses particularly those appearing for the respondent, have clearly denied their voices in the cassette and refused to identify the same. Others have partly admitted and partly denied their voices alleged to be those of the witnesses for the respondent. Finally, he himself admits that there were a number of voices which led to some disturbance and difficulties in putting Two and two together. All these manifest defects could have been avoided if in the usual course he would have administered oath to the witnesses, recorded their statements and got the same signed by them as also by himself. In a sanctimonious matter like this, it is extremely perilous to take a risk of this kind. Perhaps it any be said that by recording the statements on a tape recorder he save time as he had to go to the other polling booths also. That, however, does not solve the problem because even if the statements were recorded on a tape recorder they had to be transcribed and by the time the statements were ready the witnesses would not be available to append their signatures. Moreover, the direct method of recording the statement by dictating the same to the stenographer would have been as expeditious as recording on a tape recorder and transcribing the same thereafter. We might mention here that the recorded cassette was replayed in this Court and then transcribed and only the relevant statements of the respondent took quite a few hours. Thus, by his negligence he allowed the recorded statements to suffer from a manifest defect. That there were some erasures and lot of other voices has been admitted by P.W. 7 himself in his statement where he stated Thus: "Some gaps in exhibit P. 1 have been left out, where the voice was not clear and audible. Many people were standing at the polling booth whose voices have been recorded in the tape. I cannot now identify the person whose voices I had recorded in the tape. I also cannot distinguish the name of person whose voice I had recorded after hearing the tape . . My Stenographer had 421 prepared the transcript Ex.P1. It was prepared in my office. Most of it was done under my supervision. I might have been temporarily absent to attend to certain other work. " Thus, even accepting the statement of P.W. 7 at its face value it appears that the various safeguards and precautions which the law requires to be taken while recording the statement On a tape recorder were not observed by him. That by itself is sufficient to discard the statement of the respondent recorded on the tape recorder without going into the merits of the said statement. Even so, we shall deal with this matter in detail when we take up the recorded statements in the cassette in the light of the evidence of the respondent who had been examined by us as a court witness to throw light on the subject. Another serious infirmity from which the evidence of this witness suffers is that while he himself admits that he was not in a position to identify the voices of the persons whose statements he had recorded, R.W. 1, who was an alternative Presiding Officer at the Kalaka polling booth, has completely denied to have made any statement as recorded in the cassette and asserts that he had absolutely no talk with P.W. 7. Similarly, R.W. 3 (constable) stated that P.W. 7 had talked only to the Presiding Officer and to no other member of the polling staff. No evidence has been produced by the appellants to rebut this part of the evidence of R.W. 3. R.W. 3 says in unconditional terms as follows: "I did not make any such statement which is recorded in the tape. The voice recorded in the tape is not my voice. The statement of the witness which is transcribed in Exhibit P l was also put to the witness. After hearing the same, the witness stated: I did not make any such statement to the Deputy Commissioner, nor he interrogated me. ' It Would thus appear that the two witnesses for the respondent, who were government servants and therefore official witnesses, clearly and categorically d denied having made any such statement in The cassette. P.W. 7 HIMSELF has very fairly and frankly stated that he was not in a Position to identify the 422 voices either of the respondent or of the witnesses for the respondent (R.Ws. 1 and 3) at the time of giving his evidence. This, therefore, throws a considerable doubt on the truth of the statement made by these witnesses in the cassette recorder. The law which has been analysed and examined by us is very clear that identification of the voices is very essential. In this view of the matter, the tape recorded statements lose their authenticity apart from other infirmities which we shall give later while appreciating the evidence of the respondent in this court. Another circumstance that goes a long way off to demolish the edifice and the structure of the appellants case regarding the Kalaka polling booth is the statement of P.W. 7 himself. According to the consistent evidence of K.Ws. 1 6, no incident had happened nor was any trouble created by the respondent but instead the musclemen of the appellants led by Ajit Singh tried to create all sorts of trouble, information of which was sent to the Deputy Commissioner. Here, we might notice the admission of P.W. 7 where he states as follows: "At about 10.30 a.m., when I was between Mandola and Zainabad villages in Jatsuana constituency, I received a message on the wireless, the apparatus of which I was having in my motor car, that Col. Ram Singh had complained against the workers of Congress (I). The COMPLAINT was that about 40 to 50 Congress (I) workers had attacked the Congress (J) workers at village Kalaka. If the wireless message was sent to the d. C. at about 10.30 a.m. there could be no question of the respondent or his people to have visited Kalaka polling booth in order to create disturbance. This, therefore, INTRINSICALLY supports the case of the respondent and demolishes the case of the appellants about the arrival of Col. Ram Sing and his relations, Satbir Sing and Anil Kumar. It was also in evidence that after the first incident of the morning (wireless message received by P W. 7) two motor cycles are said to nave been left behind. lt is manifest that if the persons who had committed the disturbances alongwith their companions did not belong to the party of the respondent, as the wireless message shows, then the only other irresistible conclusion, by the process of elimination, would be that the motor cycles must have belonged to Ajit Singh and his companions who were supporters of the Congress (I) candidate. 423 Thus, this being the posit on and the real state of affairs at the spot, in a case like the present one involving high stakes and serious handicaps, we should have expected the conduct of the senior officers to have been completely above board. Another reason which throws a considerable doubt on the testimony of the witnesses of the appellants is that P.W. 7 himself deposed that he did not receive any written complaint from the polling officer or the Presiding Officer or from any other person at the time when he visited the Kalaka polling booth. The appellants tried to bring on file certain complaints made to P.W. 7 by Suraj Bhan and others but as the original complaint had not been filed the complaint produced by the appellants apart from being clearly inadmissible cannot be relied on particularly in face of the clear admission of the Deputy Commissioner (P.W. 7) that he did not receive any written complaint from the officers concerned. Another intrinsic circumstance which demolishes the case of the appellants about the presence of a mob headed by Satbir Singh and Anil Kumar (said to be relatives of respondent) is that P.W. 10 (A.S.I.) who was accompanying the D.C. said that he received the information that one of the candidates, viz., Col. Ram Singh, alongwith some persons had reached Kalaka polling booth and started intimidating the polling staff and the public. Here this witness is sadly contradicted by the statement of the Deputy Commissioner that the wireless message received by him was not in respect of Col. Ram Singh and his men but the message which the D.C. actually received was that the disturbance was created by one Ajit Singh at the instance of the Congress (I) candidate. It is, therefore, impossible to accept the case of the appellants that the respondent and his companions on the one hand and Ajit Singh with a posse of his own men on the other had reached the Kalaka polling booth at almost the same time. Indeed, if this had been so there should have been a huge riot and a pitched battle between the two parties but no witness says so. The evidence merely shows that Col. Ram Singh had reached the place just after Anil Kumar and Satbir Singh alongwith their men left and after the Presiding Officer had set the matters right. me A.S.I. (P.W.10) also says that 3 4 persons had made a complaint in writing to him but he had not seen those reports on the date when they were made to him but it must be on the file. The witness was shown the file of complaints and he admits thus: "I have seen the file of complaints which has been shown to me now. That complaint is not in this complaint file. " 424 What happened to the complaint received by the witness (P.W. 10) is not known or can be anybody 's guess perhaps the same vanished into thin air or may be was non existent. The matter does not rest here but there is one more inherent circumstance which completely falsifies the case of the appellants. The Presiding Officer was shown exhibit P 5 and he stated that he had not mentioned anything in the said document about intimidation of the voters and other persons. He (P.W. 8) categorically states thus : I have seen exhibit P 5. Column No. 20 (a) is to furnish information about "Intimidation of voters and other persons . I have not mentioned anything in this column but have crossed it." Indeed, if there was any such intimidation, being the Presiding Officer he would not have crossed the column regarding the same. He admits that he had served in the Ahir High school which appears to have been patronized by Rao Birendra Singh and the possibility that this witness concealed the truth (as appears from his evidence) and made a statement regarding intimidation to oblige Rao Birendra Singh cannot be ruled out. This is because he merely denies knowledge that the Ahir School belonged to Rao Birendra Singh but he does not say affirmatively that Rao Birendra Singh had absolutely no connection with the said School. Coming now to the rest of the evidence of R.W. 1, he says that after the departure of Ajit Singh, Col. Ram Singh came to the Kalaka polling booth and he was alone at that time. The respondent in the presence of R.W. 1 told the Presiding Officer that he should not be partial to any party and complained to him about the beating up of his polling agent. Hari Singh (P.W. 8), the Presiding Officer assured the respondent that he would not permit anything further to happen. Thereafter, a number of people came there and stoned the polling booth and despite the protests of the witness and the Presiding Officer they tried to snatch the ballot box which was, however, protected by the Presiding Officer. In the meantime, the police party arrived and the people who had gathered there sped away. Much was made by the counsel for the appellants regarding omission of the witness to make any report to the police. But not much turns upon this because the witness clearly admits that as the Presiding Officer was in charge of the whole show, he had reported the matter to him who had assured him that he would set things right. A number of 425 questions were put to him which are of not much significance because the answer of the witness was that whatever he had to say he had told his immediate superior, the Presiding Officer. It is obvious that K.W. 1 was neither a police officer nor a person holding any important job but was only a teacher in a school. Perhaps he thought that it was enough if he informed his superior (Presiding Officer) who would do the needful. The witness also admits that he had told the Presiding Officer about the visit of Ajit Singh and his companions and the trouble created by them but he was told by the Presiding Officer that he had recorded the same in the Diary; though in the presence of the witness he did not write any report nor did he handover any report to the police in his presence. The witness then goes on to state that after a few days of the elections, the police had obtained an affidavit from his but no attempt was made by the appellants to get that affidavit summoned, produced and exhibited in the case and in the absence of that the court is entitled to presume that whatever the witness may have said to the Presiding Officer was contained in affidavit also. R.W. 2, Deen Dayal, who was a member of the polling staff, fully corroborates the evidence of R.W. 1 regarding the arrival of Ajit Singh armed with pistol and accompanied by a number of persons. He further corroborates that some of the companions of Ajit Singh removed the polling agent of Col. Ram Singh and then asked the witness and others to handover the ballot papers but as the witness resisted he was beaten up by Ajit Singh and others but on the intervention of the Presiding Officer the matter rested there. Thereafter, Col. Ram Singh came who was also assured by the Presiding Officer that needful would be done. A capital was made by the appellants before the court below as also here regarding the veracity of this witness because he did not make any report to the D.C. Or the S.D.O. about his being beaten up. As already mentioned, the witness was merely a teacher and he appears to have been satisfied by the assurance given to him by the Presiding Officer that necessary action would be taken. He further states that the D.C. Only talked to the Presiding Officer and not to any other member of the polling staff. This shows that the evidence of this witness is true. The next witness on the point is RW 3 (Mohinder Singh) who was a police constable deputed to the spot to maintain law and order. The sequence of events that happened at the polling booth and which have been deposed to by the witness may be summarised thus: 426 (1) while the polling was going on, between 7.30 and 8.00 a.m., Ajit Singh arrived with his companions and tried to create all sorts of trouble. (2) After the departure of Ajit Singh, Col. Ram Singh came alone and was assured by the Presiding Officer that he would not R allow any further trouble to take place. (3) After Col. Ram Singh had left the place a number of people from the village came and wanted to poll forcibly, and 2 3 persons came out of the polling booth with a ballot box. (4) He (RW 3) snatched the ballot box from the people and returned the same to Dhani Ram (RW 4). The witness states that after some time the S.D.O. came there and after having a talk with the Polling Officer he went away. After about half an hour or 45 minutes of the departure of the S.D.O., the D.C. arrived and on his intervention the polling again started at about 12 mid day. The witness vehemently denied that his statement was recorded by the D.C. in a tape recorder and said that the voice recorded in the tape recorder (which was played to him in court) was not his. He even goes to the extent of saying that he did not see any tape recorder with the D.C. nor did he have any talk with him. The following important points may be noted from his testimony 1) The sequences of events narrated by him gives sufficient strength to the case of the respondent. 2) his positive evidence that the voice in the cassette was not his. The witness was afterall a police constable (a government official) and would not have the course make a false statement before the D.C. Moreover, evey the D.C. in his statement has frankly admitted that he was not in a position to identify the voice of this witness or for that matter of others at the time of his deposition. Thus, in the eye of law, there is no legal evidence at all to prove that the voice Recorded in. the tape recorder was the voice of this particular witness. The next witness is RW 4 (Dhani Ram) who was also one of the members of tile polling staff and a teacher in a Government 427 Primary School. He fully corroborates the story given by RWs 1 and 3 and also gives the sequence of events referred to above while dealing with the evidence of RW 3. His evidence does not appear to be of much consequence. At any rate the learned High Court has fully discussed his evidence and we agree with the conclusions arrived at by the High Court in this respect. RW 5 appears to be a voter of the Kalaka polling booth. He has been examined to prove the fact that when Ajit Singh and his party came to the booth, one Tula Ram who was a polling agent of Col. Ram Singh and real brother of RW 5, was beaten up by Ajit Singh and his party and when he tried to rescue him he was also beaten up and their clothes were torn and it was with great difficulty that Mohinder Singh (RW 3) who was on duty rescued him and his brother from the clutches of Ajit Singh and his party. He further states that he, alongwith his brother Tula Ram, went to Rewari to meet Col. Ram Singh and narrated the whole incident to him. In cross examination, the witness says that he and his brother had received fists and slaps as a result of which they bled because of injuries on their bodies. He further says that as there was no visible mark of injury they did not get themselves medically examined. He is an unsophisticated villager and once having reported the matter to Col. Ram Singh he did not think it necessary to file any complaint with the police. RW 6 (Suresh) was also a voter waiting in a queue to cast his vote when at about 8.30 a.m. AJit Singh aimed with a revolver, appeared on the scene and entered the booth. He heard hue and cry from inside the booth. He corroborates the evidence of RW 5 about the beating up of Tula Ram and Ram Kishan (RW 5). He goes on to state that after about half an hour of the departure of Ajit Singh and his party, Col. Ram Singh came and after spend about 5 6 minutes inside the booth he drove away. The witness further says in cross examination that the polling did not start after the departure of AJit Singh in view of the commotion that took place there. After the departure of Col. Ram Singh the S.D.O. and the D.C. also came and ultimately the polling was continued. The witness finally says that he did not inform Col. Ram Singh about the incident nor did anybody enquire from him anything about the same. In these circumstances, we do not think that the evidence of this witness is creditworthy. The other witnesses examined by the respondent not in respect of the Kalaka polling booth. 428 The picture would not be complete unless we give the other version of the story put forward by the appellants who have also examined many witnesses. PW 8 is the only witness who has identified his voice recorded in the tape recorder by the D.C. when other witnesses, including the D.C., could not do so. That itself shows that he has leanings towards the appellants. Another important aspect which emerges from the evidence of PW 8 is that, according to him, the total votes polled in the Kalaka polling booth were 573, the break up of which is as follows: between 7.30 to 8.45 a.m. 58 " 12 Noon 2.00 p.m. 205 " 2.00 p.m. 4.30 p.m. 109 372 This means that if there was any disturbance it would have taken a very short time in view of the calculation given by this witness. If, however, it is a fact that both parties one led by Ajit Singh and the other led by respondent had a sort of a direct confrontation, it would have been extremely difficult for the polling to start only after an interval of an hour and a half. Moreover, no explanation has been given by this witness of the votes polled in between 8.45 to 10.30 a.m. The tally of votes is not consistent with his evidence and is ar. intrinsic proof of the fact that his evidence is not true. The general impression which we gather after perusing his evidence Is that he does not appear to be a witness of truth and, therefore, we find it difficult to rely on the evidence of this wiriness. Moreover, we shall have to say something more regarding the credibility of this witness when we deal with the documentary evidence. PW 10 (Sri Krishan) was the S.D.O. and Returning Officer tor the Rewari constituency. According to him, he remained in his office upto 10.00 a.m. and after that he started touring the various polling booths. He goes on to say that on 19.5.82 he reached Kalaka at about 11.00 11.30 a.m. on receipt of a complaint to the effect that Col. Ram Singh, alongwith his companions, had tried to intimidate the polling staff and the voters. When he arrived at the spot he found the polling at a standstill. This actually supports the case of the respondent that the polling went on smoothly from 8.00 a.m. to 11.00 a.m. 429 and the trouble must have been started either by Ajit Singh or by his men. The poll could not have restarted before 1.00 to 1.30 p.m. because, according to the evidence of the D.C., the polling staff had been interrogated and their statements were tape recorded which would have taken quite a lot of time. This fact intrinsically knocks the bottom out of the case made out by PW 8 regarding timing of the voting. PW 14 (Puran) is the next witness who does not appear to be of any importance because it is only a case of oath against oath. Moreover, a perusal of his evidence shows that this witness ran away after Col. Ram Singh is alleged to have threatened him. tie then returned and cast his vote at about 3.00 P.M. Not much turns upon to evidence. Rather his evidence shows that he reached the spot nearabout 3.00 p.m. when peace had been restored and the polling had restarted smoothly. More or less, to the same effect is the evidence of PW 16 (Ishwar Singh) with the difference that this witness says that he was assaulted but then except informing the S.l. about the injury he took no further steps. If he was actually injured he would have made it a point to report the fact of his assault to the D.C. Or the S.D.O. Or other officers who had assembled after the miscreants had gone away. This obviously he did not do. Lastly he admits that his family was supporting the Congress (I) candidate (Sumitra Bai) and, therefore, h could not be said to be an independent witness. PW 17 (Amar Singh) was admittedly a polling agent of Sumitra Bai. The witness says that when the D.C. and S.D.O. came he made a complaint to them in writing which was also signed by Suraj Bhan, Mangal Singh, Basti Ram and others. He Further says that he had verbally complained to Deep Chand, the ASI but he took no action. He states that the D.C. had however made an enquiry from him but the D.C. does not say anything about this witness and being a most interested witness it is difficult for us to rely on this witness when the High Court which had the opportunity of watching the demeanour and behavior of this witness Placed no reliance on him. The evidence of PW 18 is almost in the same terms. Like others, he also seems to made a written report to the police station which has not been produced and no action seems to have been taken thereon. It is rather strange that a number of witnesses say that they had made an oral or written complaint yet no action was taken thereon which shows that the statement of the witness is a purely cooked up story. 430 This closes the evidence so far as the prosecution witnesses are concerned. The learned Judge of the High Court has taken great pains in very carefully marshalling and analysing the evidence and so far as Kalaka polling booth is concerned, the findings of the High Court may be extracted thus: "The evidence of the PWs on this point is not corroborated. The ownership of the motor cycles abandoned by the party of the respondent was not traced. The ownership could be established from their Registration Books. No effort was made to connect those with the respondent or his supporters. This shows that the PWs were drawing upon their imagination to make out stories about the detention of the persons and the forcible polling at that polling station by the res pondent . When the evidence on the file of the case is given a close look it leads to an inference that the petitioners have failed to prove this part of the charge beyond reasonable doubt. Shri Sri Krishan SDO (Civil) stated that 3/4 persons gave him a complaint at Kalaka about the incident. It was a signed complaint. That complaint is not traceable. It was not found in the complaint file. Nor was it entered in the complaint register. That com plaint could throw light on the incident if at all lt had been produced. The oral evidence has failed to convincingly make out this allegation that the voters were threatened at Kalaka. From the overall assessment of the petitioners ' evidence and the detailed discussion in the previous paragraphs concerning this polling station it has left an impression in my mind that the role assigned to the respondent has not been proved beyond reasonable doubt. Lot of suspicions which are indicated in the previous paragraphs attach to his evidence and it is difficult to say that the inference in favour of the 431 petitioners ' case is irresistible. The evidence of the A petitioners is not of the type, which could persuade me to take a decision in their favour. " After going through the evidence very carefully, we find ourselves in complete agreement with the conclusions arrived at by the learned Judge of the High Court so far as Kalaka polling booth is concerned. BURTHAL JAT POLLING BOOTH This now brings us to the second and the last limb of the arguments advanced by counsel for the appellants the evidence regarding the corrupt practice in respect of Burthal Jat polling booth (for short, referred to as 'Burthal booth '). To prove the allegations, the appellants produced PWs 6,7,10, 26 to 33 and in order to rebut the case the respondent examined RWs ll, 12, 13, 14, 20 and 22. D We would first take up the evidence led by the appellants. PW 6, Krishan Bihari, is merely a formal witness who has been examined with the complaint register of No.86 Rewari constituency in which both Kalaka and Burthal polling booths fell. His evidence. therefore, does not appear to be of any significance. The next important witness is PW 7, the Deputy Commissioner of Mohindergarh District ( N. Balabhaskar), a major part of whose evidence has already been discussed by us while dealing with his evidence relating to Kalaka polling booth. So far as Burthal polling booth is concerned, he states that he had received a complaint that a worker of Congress (J) candidate was attacked by villagers of Burthal Jat and his main purpose to visit the villages was to verify the truth or falsity of the complaint. But, when he went to the Burthal booth, the polling officer expressly told him that nothing had happened inside the booth. Some of the polling officials who were there, however, told him that there was some incident outside the polling booth but the identity of the persons responsible for the same had not been established. PW 7 further goes on to say that some villagers at that place told him that the workers of Congress (J) had come there in a jeep and tried to create trouble and they were able to detain two person and the third one had run away. The D.C. interrogated those two persons who told him that they had no connection with the jeep. He further admits that he did not interrogate them as to which 432 political party they belonged whether Congress (I) or Congress (J). he further testifies to the fact that a jeep was found at the spot with some sticks lying inside it but he did not see any motor cycle near the polling booth. The persons who were attacked at Burthal by the villagers and whom he did not interrogate, for reasons best known to him, were Satbir Singh and Anil Kumar. This part of the evidence, therefore, corroborates the case of the respondent that assuming Satbir Singh and Anil Kumar were companions of Col. Ram Singh but they had undoubtedly been attack at the village and the D.C. also admits that the Sarpanch to the village Burthal had complaint to him regarding this matter when he reached Burthal Booth. PW 7 then says that at Burthal he recorded the conversation of the Presiding Officer in detail though he admits that some portion of the recorded conversation was erased inadvertently due to his own voice being recorded there. This is all that witness says in respect of Burthal booth. Accepting the entire testimonial as it is without any further comment, it is not proved or established as to who was the person ) or persons at whose instance the corrupt practice was committed. There WAS, however, a clear admission by the D.C. that it was the respondent 's party which had been aggrieved. It is rather surprising and intriguing that although the D.C. had gone to hold a regular inquiry into the irregularity committed at Burthal booth he did not care to interrogate Satbir Singh and Anil Kumar who were present there particularly when, as he himself says, the Sarpanch of the village had complained to him regarding some trouble. lt seems that PW 7 contended himself merely by recording the statement of the Presiding officer in the tape recorder which was really a dictaphone, as told by the witness himself. t ' A very important admission has been made by the witness which completely nullifies the statements recorded in the tape recorder. In this connection, he states thus: "I cannot now identify the person whose voices I had recorded in the tape. I also cannot distinguish the name of person whose voice I had recorded after hearing the tape. The witness was cross examined regarding the cassette recorder and he has made the following admissions: 433 a) that there was no instructions from the Government for recording such conversations as he had done, b) that even if he was supplied a dictaphone, it had to be mainly used by him for recording his own observations in his own voice. c) that the cassette and the dictaphone remained all the tine with him and were not deposited by him in the record room. d) even a copy of the transcript of the recorded statements prepared by his stenographer was not deposited in the official record room, and e) that there were some gaps in the recorded tape (Ex. P 1) which had been left out and at some places the voice was not clear and audible. PW 7 in his statement says that the statements of the witnesses recorded by him were transcribed by his stenographer under his supervision in his office but he may have temporarily gone out to attend to some other work. This is rather important because if the statements were typed out in his absence it would have been very difficult for his stenographer to find out whose statement he was transcribing which throws a considerable doubt on the credibility of the recorded statement. To a direct question by the court "Can you rule out the possibility of tampering with the transcript" his answer was "I do not think if it was possible". The answer is self evident and frightfully vague so as not to exclude the possibility of tampering. Ordinarily, the admissions made by PW 7 would have been sufficient to discard the statements recorded in the tape recorder. We shall, however, develop this aspect of the [matter when we deal with the statements recorded on the tape recorder. The next witness is Shri Krishan, S.D.O., PW l(). We have already discussed a major part of his evidence while dealing with the Kalaka polling booth and pointed out the serious infirmities from which his evidence suffers. Same comments would naturally apply to his evidence relating to Burthal booth to show that his evidence is not creditworthy. However, we shall briefly summarise what he had said about Burthal booth. In the first place, he states that when he reached Burthal, alongwith D.C., he saw Satbir and Anil Kumar surrounded by the people of that village. 434 He also saw a jeep containing some sticked parked there, which was, on the instructions of the D.C., taken into custody by the police. Satbir and Anil Kumar were also taken into custody under the orders of the D.C. In support of his evidence he relies on exhibit P 9, the complaint which was handed over to him by one Mam Chand. The manner in which the complaint was handed over to PW 10 and as to the author of the complaint are rather dubicious particularly in view of the evidence of Mam Chand (PW 35). PW 35 was shown exhibit P 9 and after seeing the same he stated that the same did not bear his signatures. He also deposed that there are two other persons by the name Mam Chand, e.g., there is one Mam Chand who is the son of Kehar Singh and the name of the father of the other Mam Chand was not known to him. It is, therefore, manifest from the admission of PW 35 that the complaint EX.P 9 was merely handed over to PW 10 by Mam Chand but neither the contents were proved nor the maker thereof had been examined. Therefore, the complaint is clearly inadmissible, as the persons who hands over a complaint cannot be said to be the author of the same. We would, therefore, have to exclude exhibit P 9 from the array of the documentary evidence. There is nothing further which this witness proves. PW 26, Shri Mahabir Singh, is another witness who has been examined to prove the active participation of Anil Kumar and Satbir Singh. Far from supporting the case of the appellants he supports the case of the respondent. He states that he was a voter and had cast his vote. The learned counsel for the appellants, however, did not choose to rely on this witness and made a prayer for cross examining him. In cross examination all that PW 26 said was that he was on duty as an election agent of the respondent inside the booth and that he knew Satbir Singh previously but did not know to which place he belonged. Thus, the evidence of this witness is of no assistance to the appellants. PW 27 (Dharam Vir) was a voter and, according to his evidence, he had gone to cast his vote at about 8.00 a.m. when near about that time Col. Ram Singh accompanied by 50 60 persons came there and summoned Mahabir and Udai Bhan who were his election agents and told them that he was leaving some persons behind and that they should see to it that no one should be permitted to vote for the Congress (I) candidate. The witness further states that Satbir Singh was amongst the 15 20 persons left behind by Col. Ram Singh. In cross examination he admits that he cannot identify Satbir Singh. It is, therefore, difficult lo believe as to how he named Satbir Singh as one of the persons left behind by 435 Col. Ram Singh. His evidence on this point appears to be clearly A false. The sequence of events mentioned by other witnesses shows that Col. Ram Singh had reached there near about 9.30 a.m. and he had come alone which fact has been supported by an overwhelming majority of witnesses for the respondent. Therefore, we find it difficult to place any reliance on this witness and his evidence does not inspire any confidence and must be rejected. The next witness is Thaver Singh, PW 28 who also speaks in the same terms as PW 27. We are unable to place any reliance on this witness because he was the most interested witness being a polling agent of the Congress (I) candidate. During cross examination he stated that he verbally complained to the Presiding Officer about the conduct o Col. Ram Singh but he did not make any compliance to any officer in writing. His evidence, therefore, carried no weight unless corroborated by some unimpeachable documentary evidence. PW 29, Amir Chand, also repeats the same story as PW 28 but there is no evidence to corroborate him. Reading in between the lines of his evidence it appears that he was a strong supporter of Rao Birendera Singh though he does not commit himself in so many words. PW 30 (Surjit Singh) and PW 31 (Raghubir Singh) have repeated the same parrot like story as the preceding witnesses. In the absence of any documentary evidence to corroborate their testimony, we find it unsafe to rely on their evidence. PW 32, Shamsher Singh, is rather an important witness and according to his evidence he went to the Burthal Booth at about 7.30 a.m. and returned to his house at about 8.30 a.m. He then again went to the polling booth at about 2.30 p.m. He admits that he was a polling agent of Smt. Sumitra Bai, the Congress (I) candidates, and states that while he was on his way to the booth in the afternoon he met Satbir Singh and Anil Kumar who asked him to support Col. Ram Singh and when he told them that it was one 's own choice to support any candidate an altercation took place which was, however, stopped with the arrival of Mam Chand, Ram Singh, Kishori and some other people. Thereafter, an ASI of police came there in a jeep who intervened in the matter and in his presence also Satbir Singh started uttering abuses. He further says that he found a jeep parked there and people told him that it belonged to Col. Ram Singh, a statement which is clearly inadmissible. He finally says that when the D.C. and the 436 S.D.O. came there he informed them of the incident. In cross examination he admits that he made no report in writing to the police that he was beaten up nor did he get himself medically examined. He also did not file any complaint in any court against Satbir and Anil Kumar. In these circumstances, we find it difficult to rely on his evidence. Kishori Lal, PW 33 says that he was a Chowkidar of the village Burthal Jat. He says that when he had gone to the polling booth at about 2.30/3.00 p.m. to cast his vote he found Satbir Singh and Anil Kumar having an altercation with Shamsher Singh, PW 32. He rescued Shamsher Singh with the help of some other per sons. The witness, being a chowkidar of the village, should have immediately reported the matter to the D.C. Or the S.D.O. Or the ASI, all of whom had come to the spot but he did not do so and kept quiet which speaks volumes against the credibility of his evidence. More or less to the same effect is the evidence of PW 34 (Ram Narain) who is also a Lambardar of village Kakoria. He says that on the day of the polling at about 2.30/3.00 p.m. he had gone to the Village Burthal Jat where he saw an altercation going on between Satbir Singh. Anil Kumar on the one hand and Shamsher Singh on the other. An ASI had also arrived there followed by the D.C. and the S.D.O. He admits that he had never met Anil Kumar and Satbir Singh nor did he know them before. Although he was an eye witness to the incident of altercation yet he does not say that he had told anything to the various officers who were present at the spot. His evidence, therefore, does not inspire much confidence. The learned Judge of the High Court who had fully considered the evidence of these witnesses observed thus: "The time of their arrest as noticed makes the evidence of the petitioners ' witnesses in regard to the incident at Burthal Jat very doubtful. The analysis of the evidence led by the petitioners reveals that they have failed to prove this part of the charge of corrupt practice against the respondent. " A bare perusal of the evidence of the witnesses for the appellant clearly reveals that they are not telling the truth and hence no implicit faith can be reposed on their testimony. 437 This now brings us to the evidence led on behalf of the respondent. To begin with, RW 11, Ravi Datt Sharma, who was d Lecturer in Govt. Higher Secondary School Rewari, was a polling Officer at Burthal Booth. According to him, the polling went on smoothly from 7.30 a.m. to 4.30 p.m. Without any untoward incident. He categorically states that he knew Col. Ram Singh and he (respondent) did not visit the polling booth on the polling day. He further goes on to state that at about 1.00 p.m., the D.C. and S.D.M. visited the polling booth. On their enquiry, the witness told them that everything was going on smoothly. He clearly denies that the D.C. had recorded any conversation which he had with him in the taperecorder. His evidence, however, is confined only to the incident that had happened inside the booth and not outside. We do not see any infirmity in his statement as he appears to be an independent and truthful witness. RW 12, Parbhati, was a voter of Burthal booth and he testifies to the fact that he had cast his vote at 8.00 a.m. though he had reached the booth at 7.30 a.m. After casting his vote he came out and stayed with his co villagers and remained there will 1.30 or 2.00 p.m. He further states that during this period Col. Ram Singh or anybody on his behalf did not come to the booth nor did any quarrel or dispute take place inside or nearabout the polling booth. He further states that Shamsher Singh (PW 32), Sarpanch of the village was standing at a small distance with some people and he (PW 12) heard some altercation between them. During the course of the said altercation the police arrived at the spot and removed two persons (meaning perhaps Anil Kumar and Satbir Singh) whom he did not know. Thereafter, Shamsher Singh and other villagers returned to the polling booth. In cross examination the only fact which he admits is that Mahabir and Udai Bhan were the polling agents of Col. Ram Singh and Shamsher Singh and Thaver Singh were the polling agents of Smt. Sumitra Bai. He categorically states that he did not know Satbir Singh or Anil Kumar and therefore he was not in a position to say whether they were there or not. He also states that at a distance of about 2 killas from the booth a jeep was standing and he did not see any sticks in that jeep, and that villagers were saying that B.D.O. and S.D.O. have come there. Since he did not know the D.C. was also there. He stoutly denied the allegation that Col. Ram Singh had come to the polling booth in the morning soon after the start of the polling and that he (respondent) had left 15 20 persons who had to be removed by the police. It may be noticed at this stage that the suggestion in cross examination itself presupposes 438 and does not dispute the fact that Col. Ram Singh had come to the booth only in the morning, that is to say, long before the arrival of the deceased. This is an important and intrinsic circumstance to show that so far as Burthal booth is concerned, the statement recorded on the tape recorder by PW 7 could not have included the respondent and that was perhaps the initial case of the appellants themselves. RW 13, Ami Lal, was also a voter of Burthal booth and he says that so long as he was there he did not see Col. Ram Singh nor did any dispute take place either within the polling station or outside. He admits that he saw Shamsher Singh, who as the polling agent of Congress (I) candidate, altercating with two unknown persons at a distance of about 100 120 karms. He categorically states in cross examination that he did not see any candidate at the booth on that day. He also testifies that he knew Col. Ram Singh since the last election. He further denies the suggestion that Anil and Satbir were threatening the voters. Nothing further of any importance seems to have been elicited from this witness. RW 14, Sheo Chand, who as also a voter, fully supports the evidence of RW 13 and says that he knew Col. Ram Singh whom he did not see passing through the approach road to Burthal Jat. A number of suggestions were made to him which were denied by him and which are hardly of any importance. RW 20, T.C. Singla, is more or less a formal witness who produced certain letters (dated 25.4.82 and 30.4.82) written by Col. Ram Singh to the Chief Election Commissioner of India containing certain complaints made by Col. Ram Singh about the irregularities in the election which are not relevant for our purpose. RW 22, Col. Ram Singh, is the respondent himself. We shall deal with his evidence relating to both Kalaka and Burthal booths. To begin with, he clearly states that the D.C. (PW 7) was not impartial and was working against his interests. Perhaps we may not go to the extent of accepting the apprehensions of the respondent but there is no doubt that the conduct of the D.C., as revealed in this case, leaves much to be desired. According to the evidence of RW 22, at about 8.45 or 9.00 A.M. two of his persons from Kalaka polling booth came to him in a dishevelled condition: there clothes were torn and they appeared to have been badly beaten up. They informed him (RW 22) that Ajit Singh S/o 439 Rao Birender Singh, accompanied by 50 60 persons had entered the polling booth and beaten them up and that they were indulging in forcible polling. The two persons who came to him in an injured condition were Ram Kishan and Tula Ram (both brothers) and Tula Ram was his polling agent. On receiving this information, the witness rushed to Kalaka and reached there at about 9.15/9.30 a.m. and after leaving his car at some distance from the polling booth he walked to the booth. He went inside the booth and protested to the Presiding Officer (PW 8) and drew his attention to the complaint which he had received from Tula Ram and Ram Kishan. The Presiding Officer verbally assured him that nothing untoward would be allowed to happen. The witness stayed there only for 7 8 minutes and returned to his house and telephoned the police and also sent a written report to the police about the incident. He received a message from the police station at about 10.30 a.m. that his complaint had been flashed to the D.C. to take appropriate action in the matter. This important part of his evidence is fully corroborated by the statement of DC (PW 7) that he had received a wireless message from the police authorities to the effect that Ajit Singh and his party were creating trouble at Kalaka booth. The witness categorically states that he did not go the village Burthal Jat / r did he send any of his workers there. This fact is fully corroborated by the intrinsic evidence of the witness recorded by the D.C. at Burthal where the respondent does not appear to figure or, at any rate, his statement was not recorded at Burthal which is clear from the tape recorded statement. The rest of his evidence is regarding a number of other factors which are not relevant for the purpose of this case. Reliance was, however, placed by the appellants that Satbir Singh, who was a leading figure at Burthal, was an adopted son of Jagmal Singh, who was father in law of Col. Ram Singh. The witness further clarifies that he had divorced his wife as far back as 1962. Thus, when the witness says that he had no relations with Satbir Singh, we dare say he is right. A number of questions regarding his domestic matters were put in cross examination but they are not very relevant. As, however, this witness, who appeared before us, was examined by us at our instance and was subjected to cross examination by both the parties, we shall discuss that part of his evidence a little later when we come to the statement of this witness recorded by PW 7 in his tape recorder at Kalaka polling 440 Thus, leaving the tape recorded statement for the time being, we adhere to our view expressed in the earlier part of this judgment that the evidence adduced by the respondent seems to be much superior in quality than that adduced by the appellants. The learned Judge of the High Court was also of the same view and had rightly held that the allegations of corrupt practice or of capturing of booth had not been established by the appellants beyond reasonable doubt or, to be very accurate, by the Standard of proof required to set aside the election of a successful candidate. We might now rush through the relevant documentary evidence produced in this case which has been fully dealt with by the learned Trial Judge and we agree with his conclusions. To begin with, exhibit P 5 is the diary of the Presiding Officer of the Kalaka booth. We have already discussed the effect of this document and found that while in column on No. 21 relating to interruption or obstruction of poll, he (PW 8) mentioned Col. Ram Singh putting pressure on polling party and getting bogus votes polled in his favour yet in column. No. 20(e), relating to intimidation, etc. , he made no mention of any such incident and crossed the same, meaning thereby that there was no intimidation of voters. m e document, exhibit P 5, is therefore, self contradictory and does not inspire any confidence. The explanation given by PW 8 in his evidence is that while he was filling up column 20 (e) he did not mention anything as he was greatly perturbed at that time. This is a most implausible and fantastic explanation which apart from being inherently improbable appears to be absolutely absurd. The witness wants us to believe that at the time of filling up column 20 (e) he was perturbed but in a split second while filling up the very next column, i.e., column 21(4) he suddenly gathered strength to compose himself and made the observations contained in the said column. As the two entries were supposed to be filled up simultaneously it is impossible to believe that while filling up one entry he was perturbed and while filling up the next entry he was in a composed state of mind. In other words, the explanation comes to this: his mental state of mind by a miraculous process cooled down and led him to make the observations which he did in column No. 21(4). It seems to us that what had really happened was that the plea of intimidation, as alleged by the appellants, is a cock and bull story and when the witness was confronted with a contradictory situation and found himself in a tight corner he invented this ridiculous explanation which has to be stated only to be rejected. This affords an intrinsic proof of the fact that no threat or intimidation was given by the 441 respondent or his men during his presence and in order to save his skin the witness may have made the entry in column No. 21(4) subsequently as an afterthought. Thus, no reliance can be placed on a witness like PW 8 for any purpose whatsoever. exhibit P 16 is a certified copy of the FIR (No.103) lodged by the Presiding Officer implicating Col. Ram Singh and making some allegations. This document also appears to us to be a spurious one as discussed by the High Court. So far as the documents produced on behalf of the respondent are concerned, they are R 1 to R 9 consisting of letters written by Col. Ram Singh to various authorities including the Chief Election Commissioner of India complaining about the misuse of powers by the polling officials in the conduct of election. This is all the documentary evidence that matter and, in our opinion, nothing turns upon these documents. This now brings us to the last and inevitable step of the drama starting with P.W. 1 and ending with R.W.22. In order to understand the admissibility, credibility and the truth of the statements contained in the cassette, we might give a brief summary of the manifest defects and incurable infirmities from which the statements recorded on tape recorder suffer. Our conclusion on this question is arrived at not only after going through the tape recorded statements but also hearing the cassette ourselves in this Court on big amplified speakers. The defects/infirmities may be pointed out thus: 1. The voices recorded at number of places are not very clear ant there is tremendous noise while the statements were being recorded by the D.C. (P.W. 7) 2. A good part of the statements recorded on the cassette has been denied not only by the respondent but also by R.Ws. 1 and 3. No other witness has come forward to depose to the identification of the voice of the respondent or those of R.Ws. 1 and 3. 3. There are erasures here and there in the tape and besides the voice recorded being / t very clear, it is extremely hazardous to base our decision on such an evidence. One of the important infirmities from which the tape recorded statements suffer 18 the question of custody. P.W. 7, 442 the D.C. has clearly admitted in his evidence that though he was supplied a tape recorder or a dictaphone but he was not asked by the Government to record the statements on the tape recorder which was really meant for recording his own impressions and not those of the witnesses. However, even though P.W. 7 violated the instructions of the Government he gravely erred in not placing the recorded cassette in proper custody, that is to say, in the official record room after duly sealing the same, and instead keeping the same with himself without any authority. Thus, the possibility of tampering with the tape recorded statements cannot be ruled out and this is almost a fatal defect which renders the tape recorded statements wholly inadmissible. P.W. 7 himself admits that the transcript of the tape recorded statements was prepared in his office under his supervision by his stenographer. He further admits that when the transcript was being prepared he was temporarily absent from his office to attend to certain other works. This appears to us to be a very serious matter because he had no legal authority to leave the recorded cassette with his stenographer, who was transcribing the same, even for a single moment as the possibility of its being tampered with by his stenographer or by anybody else cannot be safely ruled out. He further admits that even a copy of the trans cript was not deposited in the official record room. One important aspect as part of the manifest defects may now be mentioned. R.Ws. 1 and 3 have denied the identity of their voice in the cassette and, therefore, that part of the evidence becomes clearly inadmissible. The respondent, Col. Ram Singh, however, appears to us to be a truthful, upright and straight forward person because while he chose to admit some parts of the tape recorded statement to be in his voice and as being correct but denied the rest: he could have, if he wanted, denied the whole of it. It seems to us that as the respondent was a trained and disciplined soldier he told the truth as far as appeared to him. In fact, if he had failed to identify his voice, then nothing could have been done and his statement would have been per se inadmissible. As it is, the statements on the tape recorder seem to have been recorded in a most haphazard and unsystematic manner without following any logical or scientific method. This will be clear from the fact that the tape recorded statements do not indicate 443 the polling booth where it was recorded, the name of the person whose statement was recorded, the time of recording, etc. A proper methodology which the D.C. should have followed was to first indicate the place, time and name of the person by himself speaking and then recorded the statement. No such scheme was followed and the court is left to chance and conjecture to find out as to when and where and whose statement was recorded. As it is, we can only say that the statement of the respondent was recorded only at Kalaka and this fact seems to be admitted by the appellants in their written submissions (Vol. III, p.59) thus : "It is not the petitioners ' case that Col. Ram Singh came to the polling station or polling booth. The petitioners ' witnesses (P.W. 27, P.W. 28 and P.W. 29) have only stated that Col. Ram Singh came to Burthal Jat at 8.00 a.m., instructed his supporters not to allow any voters to vote for Congress (I) candidate and thereafter left the place. " It is, therefore, clear that if at all Col. Ram Singh visited Burthal booth, he did it only at 8.00 a.m. when the D.C. had not even reached there and, therefore, the question of recording his statement at Burthal Jat does not arise. In our opinion, the best course of action for the D.C. should have been to record 'the statements of the respondent and other persons himself in writing instead of recording the same on a taperecorder which has led to 80 many complications. And, if he wanted to use a taperecorder he should have taken the necessary precautions to see that too many voices, interruptions, disturbances are completely excluded. He ought not to have allowed any person to speak while he was recording the statements. Unfortunately, this confusion has resulted from his conduct in flouting the instructions of the Government by not using the dictaphone only for recording his own impressions but instead recording the statements of the persons concerned. Thus, in short, the manner and method of recording the statements in the taperecorder by the D.C. has resulted in a total mess making confusion worse confounded. P.W. 7 has not given the details to complete the picture as to what the respondent had done. Therefore, the evidence of D.C. On this 444 point is conspicuous by the absence of any such description or comments. Indeed, the D.C. has just acted as a silent machine to whatever was recorded instead of applying his mind as to at what stage the respondent denied his voice and where he admitted the same. We should have at least expected the D.C. to give better details in a case like the present one which, as already mentioned, entails serious consequences for the respondent if his election were to be set aside. Having regard to the reasons mentioned above, we are absolutely satisfied that the tape recorded statements of the witnesses are wholly inadmissible in evidence and, at any rate, they do not have any probative value so as to inspire any confidence. Hence, it is extremely unsafe to rely on such tape recorded statements apart from the legal infirmities pointed out above. That should have closed the whole chapter as far as the tape recorded statement of the respondent is concerned. We shall, however, mention below a few glaring defects, omissions and imperfections: 1. some statements said to have been recorded by P.W. 7 have been flatly denied by R.Ws. 1 and 3, one of whom was a polling officer and the other a constable. A good part of the tape recorded statement has been vehemently and persistently denied by him (respondent) rightly or wrongly. It is true that the searching and gruelling cross examination of the respondent in this court by Mr. Sibbal, counsel for the appellants, seems to have forced the respondent to admit certain innocuous facts though he might just as well admitted those facts which caused no harm to him. We might mention here that our object in examining the respondent as a court witness in this court and subjecting him to cross examination by both the parties was not to fish out technicalities by putting all sorts of querries and questions, relevant or irrelevant. In such a complex state of affairs, the statement of the respondent, torn from the context, cannot form the basis of a judicial decision. Take for instance, one statement of the respondent which was repeated to him by Mr. 445 Sibbal several times in different forms. The occasion was if the respondent had sent Ram Kishan and Tula Ram or other persons to the police station or he himself had gone there along with them. The respondent admitted that these persons alongwith others had come to his house and complained that they had been beaten up and harassed by the members of the Congress (I) candidate and also showed in pries on their persons. He repeatedly said that he himself did not go to the police station but sent them there. Perhaps in view of the serious situation arising from the severe altercation that took place between the supporters of Col. Ram Singh and those of the other party, it is quite possible that on humanitarian grounds he may have personally gone to the police station with the injured persons but as at the time of his deposition he happened to be the Speaker of the Vidhan Sabha he may have felt that his vanity would be injured if he admitted that he himself had gone to the police station. Even if he had given this reply, lt would not have improved the case of the appellants. This is just a sample of the questions put by the counsel to him. Another important feature of his evidence is that he tacitly admits at various places that while his statement was being recorded, a number of gaps were there, a number of other people were speaking together, leading to great confusion which must have made him lose his wits. On hearing the entire conversation ourselves, we are of the opinion that the statement of the respondent is not coherent particularly because of gaps, noises, sounds, and that the statements was recorded in an atmosphere surcharged with emotions. In this view of the matter, we do not consider it necessary to delve deeper into the various statements made by the respondent. It is sufficient to indicate that on the appellants ' own case he had not gone to Burthal Booth after 8.00 a.m. and, therefore, the D.C. who reached there at 12 Noon could not have recorded his statement. We are, therefore, not in a position to hold that implicit reliance should be placed on the evidence led by the appellants. Even if the respondent made some admissions in his unguarded moments that would not strengthen the case of the appellants in view of the standard of proof required in an election matter where the allegations of corrupt practice have to be proved beyond reasonable doubt almost just like a criminal case. It was s urged by Mr. Sibbal that in view of our recent decision in Ram Sharan Yadav 's (supra) the impact of the 446 evidence on the court would show that the respondent was lying and that was sufficient to prove the appellants ' case. We are unable to agree with the broad interpretation put by the learned counsel on our decision. In fact, if we apply the principles laid Ram Sharan Yadav ' case, the appellants ' case must fail at the threshhold. Lastly, we might consider the argument advanced before us by the learned counsel for the respondent who submitted that even if the case of capturing of booths as alleged by the appellants against the respondent is made out that would at best be an electoral offence and not a corrupt practice within the meaning of the provisions of the Representation of the People Act, 1951. We are, however, not called upon to go into this question as no clear case of capturing of booths has been made out. The learned Judge of the High Court has dealt with the case of capturing of booths very extensively and has written a very well reasoned judgment annotated with convincing reasons and conclusions. It would indeed be extremely difficult to displace the judgment of the High Court on the ground sought by the appellants. The High Court has considered even the minutest details so as not to invite any comment that the Judge has not applied his mind. Even as regards the tape recorded statements the learned Judge has pointed out several infirmities and defects which despite the ingenious and charming arguments of Mr. Sibbal have not been rebutted. On a careful consideration, therefore, of the evidence, circumstances, documents and probabilities of the case, we are fully satisfied that the appellants have failed to prove their case that the respondent was guilty of indulging in corrupt practices. We, therefore, affirm the judgment of the High Court and dismiss the appeal but in the circumstances without any order as to costs. VARADARAJAN J. : This appeal under section 116A of the Representation of People Act, 1951, hereinafter referred to as 'the Act ', is directed against the dismissal of Election Petition No. 13 of 1982 on the file of the Punjab & Haryana High Court. The appellants are registered electors of Rewari Constituency No. 86 of the Haryana Legislative Assembly. In the election held for that Constituency on 19.5.82 Col. Ram Singh, 447 hereinafter referred to as 'the respondent ' who contested as the Congress (J) candidate was declared elected on 21.5.1982 after the counting was, over on 20.5.82, defeating has nearest rival, Sumitra Devi who is said to be the sister of Rao Birendra Singh and had contested in that 'Constituency as the 'Congress (I) candidate. Sumitra Devi lost by a margin of 8,760 votes. The appellants sought in the election petition a declaration that the respondent 's election is void under section 100 of the Act. They alleged that there was direct and indirect interference and attempt to interfere on the part of the respondent and his agents and other persons with his consent with the free exercise of the electoral right of the electors. The respondent stoutly opposed the election petition. Alter considering the evidence and hearing the counsel of both the parties the learned Judge who fried the election petition found that the appellants tailed to prove their case beyond all reasonable doubt and dismissed the petition with costs of Rs. 2,000. Mr. Kapil Sibal, learned counsel for the appellants 1) confined his arguments in this Court to the instances of corrupt practice alleged in respect of only two polling stations Kalaka and Burthal Jat. It is, therefore, necessary to confine our attention to the case of the parties in regard to only those instances. The appellants ' case in regard to the Kalaka polling, station started and continued smoothly until 10.30 a.m. on 19.5.1982. But at about 10.30 a.m. the respondent came there along With 60 or 70 persons including Desh Raj, Ram Krishan and Krishan Lal of Kalaka and Sheo Lal Gujar, Rishi Dakot, Umrao Singh, Raghubir Singh, Balbir Singh Gujar, Abhey Singh Gujar and Suresh of Rewari. The respondent was carrying a gun while some of those who accompanied him were armed with guns, lathis and swords. The respondent and his companions threatened With arms and terrorised the electors Who were waiting outside the polling station to exercise their right to vote as a result of Which Sheo Chand, Gurdial, Puran, Mangal, Basti Ram, Ishwar and Amar Singh ran away without exercising their right to vote. The restpondent and some other armed persons amongst his companions entered the polling station and brandished their guns towards the Presiding Officer and other members of the polling staff as well as the polling agents of the various candidates and ordered everyone to stand still. They threatened the voters who were in the polling station when they raised objections to their conduct and made them to quit as also. 448 the polling agents Amar Singh and Suraj Bhan. The respondent directed a Sikh amongst one of his companions carrying a sword to hit Mangal Singh who strongly objected to the respondent 's behaviour and he was accordingly assaulted and injured. One Basti Ram who too objected to the respondent 's behaviour was hit by one of the companions of the respondent with the butt of a rifle. Ishwar, a Lambardar was also hit by the barrel of a gun. The respondent and his companions snatched about 50 ballot papers from the polling staff at gun point and they were marked in favour of the respondent and put into the ballot boxes after one of the respondent 's companions thumb marked the counter foils of the ballot papers as directed by the respondent. Tula Ram, Desh Raj, Ram Krishan and Krishan Lal and others helped the respondent in marking the ballot papers. The police at the polling station was out numbered and remained as silent spectators. But when a number of people of the village came and additional police arrived the respondent and his companions made good their escape leaving behind two motor cycles bearing registration Nos. A.S.W. 5785 and H.R.P. 534. Two of the respondent 's companions were caught by the public and handed over to the police. Suraj Bhan, Amar Singh, Ishwar Singh and Basti Ram made a report about the incident to the Returning Officer, Rewari Constituency at about 12 noon on the same day. On the arrival of the police the Presiding Officer of the polling station lodged a detailed report, giving his version of the incident and thereupon F.I.R. No. 103 of 1982 was registered by the police. The Deputy Commissioner of the District and the Returning Officer of the Constituency also came to the polling station and made enquiries and tape recorded the statements of some of the concerned persons. The process of polling got disrupted for over one hour and a number of voters had to refrain from voting. It is clear from these facts that the respondent and his companions with his consent attempted to interfere with the free exercise of the electoral right of a large number of electors and the respondent succeeded in his plan to scare away and compel some of the electors to refrain from voting at the election. As regards the incident at Burthal Jat polling station the appellants ' case is this : As per his pre planned strategy the respondent visited Burthal Jat village at about 8 a.m. on 19.5.1982, accompanied by 50 or 60 persons including Anil Kumar, Satbir Singh, Raghubir, Sheo Lal Gujar, Rishi Dakot, Umrao Singh, and Balbir Singh Gujar. Many persons including Mahabir Singh, Hira Singh, Mam Chand, Dharam Vir, Thavar Singh and Amar Chand gathered there. The respondent told his suporters to ensure that 449 electors who were likely to vote for the Congress (I) candidate A are not allowed to go into the polling station and that he was leaving behind Anil Kumar and Satbir Singh with 10 or 15 musclemen to help them in preventing electors of the Congress (I) candidate. A jeep containing lathis and other weapons was left at the disposal of those persons. While leaving the place the respondent told Anil Kumar and Satbir Singh who were on their motor cycle that he was depending upon them and they should ensure that no votes are cast in favour of the Congress (I) candidate and maximum votes are polled in his favour. Those persons kept on obstructing and threatening the voters who were coming to the polling station to exercise their electoral right. Some of the persons who were thus terrorised were Surjit, Raghubir Singh and Lal Singh. When the Sarpanch Shamsheer Singh who came to vote was about to reach the polling station, Anil Kumar and Satbir Singh came by the motor cycle and told him that he must vote for the respondent and otherwise he will not be allowed to proceed further. When Shamsheer Singh said that he would vote freely according to his choice Anil Kumar and Satbir Singh assaulted him with sticks and gave him slaps and fish blows. Some respectable persons of the village including Kishori, Ram Narian and Lambardar Mam Chand who were present nearby rescued Shamsheer Singh. The Assistant Sub Inspector Kalayan Singh who was on election duty came there by a jeep and seen the fight arrested Anil Kumar and Satbir Singh. The Deputy Commissioner of the District and the Returning Officer [Sub Divisional Magistrate] also came there and took the jeep along with lathis and other weapons into their custody. Thus it is clear that Anil Kumar and Satbir Singh who are related to the respondent committed the aforesaid corrupt practice at the instance of and with the consent of the respondent. The defence of the respondent as regards the incident in and at the Kalaka polling station is one of complete denial and he contended that if there is any report lodged by Suraj Bhan, Amar Singh, Ishwar Singh and Basti Ram it must be a manoeuvered affair to create evidence in the election petition and that the report of the Presiding Officer is not his own version but a false document prepared at the instance of the respondent 's political opponent Rao Birendra Singh and other state agencies on whom he exercised powerful influence. The FIR No. 103 of 1982 dated 19.5.1982 does not support the appellant 's case of any interference or attempt to interfere with the free exercise of the electoral right of any elector on the part of the respondent or any one else with his consent and does not directly disclose 450 the commission of any corrupt practice of undue influence. On the other hand, the truth is that the men of Rao Birendra Singh captured the booth at Kalaka and the supporters and voters of the respondent were badly out manoeuvered which could be gathered from the fact that whereas Sumitra Devi obtained 484 votes the respondent obtained only 53 votes in that polling station. The allegation that the respondent and some of his companions entered the polling station and brandished their guns at the Presiding Officer and ordered the other polling staff and polling agents of the various candidates to stand still does not attract any provision of the Act regarding the commission of corrupt practice. The allegation that the polling agents Suraj Bhan and Amar Singh were threatened and turned out of the polling station does not constitute corrupt practice as they are not alleged in the election petition to be electors. Mangal Singh, Balbir Singh and Ishwar who are alleged to have been assaulted and injured are not alleged in the election petition to be electors of the Constituency and therefore that allegation does not constitute corrupt practice. The allegation that 50 ballot papers were snatched from the polling staff and polled in favour of the respondent does not constitute corrupt practice. The respondent 's defence regarding the incident at Burthal Jat is one of complete denial of the allegations in the election petition in regard to that incident but there is no denial of the allegation that Anil Kumar and Satbir Singh are related to him. He has contended that it is wholly incorrect to allege that any jeep with which he had any connection was carrying lathis and other weapons and that it was taken into custody by the officials. The allegation that Anil Kumar and Satbir Singh committed any corrupt practice with or without the consent of the respondent is False, malicious and mischivious. Those two persons were falsely implicated in the case under sections 107 and 151 of the Code of Criminal Procedure and a clumsy attempt was made to implicated them By tile subordinate police officials who were under the powerful influence of Rao Birendra Singh whose sister Sumitra Devi was losing and ultimately been defeated by the respondent u Two independent alleged corrupt practices, one by the respondent and the other by the others, have been clubbed together in the election petition. It is necessary to note all the issues framed by the Tribunal. They are: 451 (1) Whether the allegations of corrupt practice alleged in the election petition have not been supported by an affidavit? If so, what is its effect? (2) Whether petitioners Nos. 2 to 5 have not deposited the security under section 117 of the Representation of People Act, 1951? If so, what is its effect? (3) Whether petitioners Nos. 2 to 5 have not complied with section 81 (3) of the Representation of People Act by not attesting the copy of the election petition to be true copy under their own signatures? If so, what is its effect? (4) Whether petitioners Nos. 2 to 5 have not verified the election petition? If so, what is its effect? (5) Whether allegations of corrupt practice alleged in the petition lack material facts/legal ingredients and do not disclose complete cause of action? If so, what is its effect? (6) Whether the allegations of corrupt practice alleged in the election petition are vague and lack full particulars? If so, what is its effect? (7) Whether the averments in paragraph 7 of the petition are unnecessary, scandalous, frivolous or vexatious and calculated to prejudice a fair trial? If so, whether the same are liable to be struck out under rule 6, order 16 Civil Procedure Code? (8) Whether the respondent himself and/or through his agents and other persons with his consent, committed corrupt practice of undue influence, as alleged in paras 9 to 13 of the election petition or not? II so what is its effect? The learned Judge of the High Court took up for trial issues 1 to 7 as preliminary issues. By order dated 10.12.1982 he found issues 2 to 6 in favour of the appellants and issue 1 against them but permitted them to carry out certain amendment and remove the defects pointed in his order. He declined to consider issue 7 as a preliminary issue on the ground that evidence is necessary to record any finding on that issue. On the question 452 whether the allegations in paras 9 to 12 of the election petition constitute corrupt practice he held that prima facie they do not disclose any defect in form or substance but they contain material facts and allegations of corrupt practice. It may be noticed that the allegations relating to the incidents at Kalaka and Burthal Jat polling stations are contained in paragraphs 9 to 11 of the election petition. On the issue regarding the corrupt practice alleged in relation to Kalaka polling station the learned Judge held that the Presiding Officer 's diary Ex. P 5 appears to have been prepared by the Presiding Officer, Hari Singh (PW 8) later under the pressure and influence of the defeated candidate, Sumitra Devi through her brother Rao Birendra Singh and that FIR No. 103 of 1982 dated 19.5.1982 contained in exhibit P 6 is inadmissible in evidence to corroborate the evidence of PW 8 about the incident of Kalka polling station on the ground that the original report of PW 8 to the police had not been summoned by the appellants. He found that the tape record exhibit P.W 7/1 prepared by the Deputy Commissioner of Mohindergarh District, (PW 7) has been tempered with later, disbelieving the evidence of PW 7 that a portion of what he had recorded at the Burthal Jat polling station was erased by his own voice inadvertently on the same day. He also found that the authenticity of the transcription of the tape record in Ex. P 1 is not proved with definiteness. He relied upon the evidence addued on the side of the respondent in preference to that of the other side and held that the appellants have failed to prove this item of corrupt practice beyond reasonable doubt. Regarding the incident at the Burthal Jat polling station the learned Judge found that the appellants have failed to prove that Anil Kumar and Satbir Singh are related to the respondent. For coming to this conclusion he relied upon exhibit P 9 which purports to be a report of Man Chand (PW 35) who has, however, disowned it while holding the Anil Kumar and Satbir Singh were canvassing for their candidate at Burthal Jat as stated by Mahabir Singh (PW 26) but it is not made out who their candidate was. He found that the appellants have failed to prove this item of corrupt practice. On the findings recorded by him in regard to these and the other items of corrupt practice alleged by the appellants he dismissed the election petition with costs as stated above. The points arising for consideration in this appeal are: 453 (1) Whether the incident in and at the Kalaka polling station alleged by the appellants is true and has been proved beyond reasonable doubt? (2) Whether the incident alleged in and at the KaLaka polling station does not constitute corrupt practice within the meaning of the Act? and (3) Whether the incident at Burthal Jat polling station alleged by the appellant is true and had been proved beyond reasonable doubt? Before considering the evidence on record in regard to the incidents at Kalaka and Burthal Jat polling stations it is desirable to note certain provisions in the Act and certain decisions to which the Court 's attention was drawn by Mr. Kapil Sibal, learned counsel appearing for the appellants and Mr. P.P.Rao, learned counsel appearing for the respondent. Section 87 of the Act relates to the procedure before the High Court and clause (1) thereof reads thus: "Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be ruled by the High Court, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits. Order 8 rule 1 to 3 and 5 of the Code of civil Procedure relating to written statement read thus: "1.(1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality 454 3. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under a disability, but the Court, may, in its discretion, require any such fact to be proved. " Section 116 A of the Act relating to appeal against certain orders of the High Court lays down inter alia that an appeal shall lie to the Supreme Court against the dismissal of an election petition under section 98 of the Act. In the present case the election petition has been dismissed by the High Court under that section. Section 116 of the Act relates to procedure in the appeal. Sub section (1) of that section reads thus: "116C. (1) Subject to the provisions of this Act and of the rules, if any, made thereunder, every appeal shall be heard and determined by the Supreme Court as nearly as may be in accordance with the procedure applicable to the hearing and determination of an appeal from any final order passed by a High Court in the exercise of its original civil jurisdiction; and all the provisions of the Code of Civil procedure, 1908 (5 of 1908) and the Rules of the Court (including provisions at to the furnishing of security and the execution of any order of the Court) shall, so tar db may be, apply in relation to such appeal. Section 100 of the Act mention the grounds for declaring an relation to be void Section 100(1) (b) reads thus: "Subject to the provisions of sub section (2) if the High Court 18 of opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent the High Court shall declare the election of the returned candidate to be void. " 455 Section 123 of the Act lays down what are corrupt practices A and sub section 2 thereof reads thus: "123(2) Undue influence, that is to say, any direct indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right. Instruction 74 of the Instructions to Presiding Officers issued by the Election Commission of India reads thus: "74. Preparation of the diary You should draw up the proceedings connected with the taking of the poll in the polling station in the diary to be maintained for the purpose. You should go on recording the relevant events as and when they occur and should not postpone the completion and filing of all entries in the diary till the completion of the poll. You should mention therein all important events particularly. . " in the form given which is the same as the one in which exhibit P 5 in this case has been recorded. Mr. Kapil Sibal learned counsel for the appellants relied upon certain decisions of the English Courts and of this Court in regard to the admissibility of tape recorded evidence. I shall refer to them. In R. vs Maqsud Ali , the following observation has been made: "The position on the evidence was that a very important part of that evidence was made up by a tape recording taken in circumstances that I must now indicate. . . On April 29, 1964 the two appellants were at the Town Hall at Bradford and they were taken there into a room. . . . There is a reason to suppose that both of the appellants were not there on this occasion voluntarily. . . . In that room there had been set up a microphone behind a waste paper basket which was connected to a recorder in another room. . it is almost unnecessary to say that none but the police knew of the presence of the microphone in position. . . so it ran for just 456 one minute over the hour. . The tape, after it had been recorded, remained in the custody of the police and there is a suggestion that it was in any way interfered with. The conversation that took place between the two appellants was of course in their native tongue. . and. . . . the tape, it should now be stated, had a number of imperfections. . If the jury could come to the conclusion that here was something which amounted to a confession that they were both involved in the murder, it can be seen that this tape recording was a matter of the utmost importance. It was, indeed, highly important evidence and the defence sought strenuously to keep it out This is not the first time that the question of admissibility of tape recordings as evidence has come before the courts of this country. In 1956, in a trial at Wiltshire Assizes Hilbery, J., admitted as evidence a tape recording of a conversation in Salisbury Police Station and further admitted a transcript of the recording to assist the jury. We can see no difference in principle between a tape recording and a photograph. In saying that we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of recording can be proved and the voices recorded properly indentified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. In R. vs Robson , which arose out of a case where the accused was charged with corruption the prosecution sought to put in evidence certain tape recordings. The defence contended that they were inadmissible in evidence as inter alia they were in many places unintelligible. It was however not contended that the tape recordings was inadmissible evidence of what are recorded in them. The originality and authenticity of the tape were left to the jury in that case. In Yusufalli Esmail Nagree vs State of Maharashtra this Court has observed: 457 "Like a photograph of a relevant incident a contemporaneous dialogue of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act. Reference has been made in that case to Roop Chand vs Mahabir Parshad and Anr. A.I.R. 1956 Punj. 173; Mahindra Nath vs Biswanath Kundu ; Pratap Singh vs The State of Punjab ; and B. vs Maqsud Ali In Shri U. Sri Rama Reddy Etc. vs Shri V.V. Giri ; , a decision of five learned Judges of this Court the following observation made in Yusufalli 's case (supra) has been quoted with approval: "The contemporaneous dialogue between them formed part of the res gestae and is relevant and admissible under s.8 of the Indian Evidence Act. The dialogue is proved by Shaikh. The tape record of the dialogue corroborates his testimony. The process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under s.7 of the Indian Evidence Act. " In R.M. Malkani V. State of Maharashtra , this Court observed: "Tape recorded conversation is admissible, provided first that the conversation is relevant to the matters in issue; secondly, there is identification of the voice, and thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photo graph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act. 458 In Ziyauddin Burhanduuain Bukhari vs Brijmohan Ramdas Mehra Ors. [197] Suppl. S.C.R. 281, this Court approved the High Court relying upon the tape recorded reproduction of the successful candidates ' speeches to voters for holding that he had appealed to them in the name of religion. Mr. Rao learned counsel for the respondent relied upon the following four decisions in regard to the proof required in cases where election or returned Candidates is alleged to be void on the ground of corrupt practice. In Chenna Reddy vs R.C.Rao E.L.R. 1972 Vol. 40 396, this Court observed: This Court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do 80 unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in half defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The trial of an election petition on the charge of commission of corrupt practice is somewhat different. . . . the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act. Inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version. " In Balakrishna vs Fernandez ; , this Court observed: "Although the trial of an election petition is made in accordance with the Code of Civil Procedure, it has been laid down that a corrupt practice must be proved 459 in the same way as a criminal charge is proved. In other words, the election petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent. In Sultan Salhuddin Owasi vs Mohd. Osman Shaheed and Others. ; , this Court observed: It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation is the same as a charge of fraud in a criminal case. C In Ram Sharan Yadav vs Thakur Muneshwar Nath Singh and Others. , ; , this Court observed: "As the charge of a corrupt practice is in the nature of a criminal charge, it is for the party who sets up the plea of 'undue influence ' to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case. This is more so because once it is proved to the satisfaction of a court that a candidate has been guilty of 'undue influence ' then he is likely to be disqualified for a period of six years or such other period as the authority concerned under Section 8 A of the Act may think fit. . . while insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it well nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process. " In regard to what constitute election offences Mr. Rao invited attention to the decision of Ramaswami, J. in Nagendra Mahto vs The State A.I.R. 1954 Patna, where it was stated in the complaint that the criminal revision petitioner before the High Court insisted upon going into the room where the ballot papers were kept though the Presiding Officer had warned him to go out of the room and also the petitioner himself attempted to put the ballot papers to the box of one Nitai Singh Sardar and it has been held that there was proper evidence to record a finding of guilt and sufficient to sustain the conviction under section 131 (1) (b) and section 136 (1) (f) of the Act. 460 On the other hand, Mr. Sibal invited attention to this Court 's decision in Ram Dial vs Sant Lal & Ors. [1949] Suppl. (2) S.C.R. 739, in support of his contention about what is required to be proved in regard to an alleged corrupt practice. After quoting the provisions of section 2 of 46 and 47, Victoria. c 51 three learned Judges of this Court have observed: The words of the English statute, quoted above, laid emphasis upon the individual aspect of the exercise of undue influence. It was with reference to the words of that Statute that Bramwell, B., made the following observations in North Dursham "When the language of the Act is examined it will be found that intimidation to be within the statute must be intimidation practised upon an individual. The Indian Law on the other hand, does not emphasise the individual aspect of the exercise of such influence, but pays regard to the use of such influence as has the tendency to bring about the result contemplated in the clause. What is material under the Indian Law, is not the actual effect produced, but the doing of such acts as are calculated to interfere with the free exercise of any electoral right. Decisions of the English Courts, based on the words of the English statute, which are not strictly in pari materia with the words of the Indian statute, cannot, therefore, be used as precedents in this country. In the present case, we are not concerned with the threat of temporal injury, damage or harm. On the pleadings and on the findings of the Tribunal and of the High Court, we are concerned with the undue exercise of spiritual influence which has been found by the High Court to have been such a potent influence as to induce in the electors the belief that they will be rendered objects of divine displeasure or spiritual censure if they did not carry out the command of their spiritual head. I shall now consider the evidence relating to the incidents at Kalaka and Burthal Jat Polling stations one after the another. The incident in and at the Kalaka and Burthal Jat polling station consists of two parts, namely, (1) alleged booth capturing by the respondent and his companions, all of them armed with deadly weapons like pistol 461 and sword or kirpan and the polling of bogus votes marked in favour of the respondent after threatening the polling officers and polling agents who were in the polling station with violence and making them to Stand still, and (2) the respondent scaring away electors who were standing in the queue outside the polling station awaiting their turn for casting their votes. Regarding the first part of the incident at Kalaka there is the evidence of P.Ws. 7 to 10, 12, 14, 17 and 18 on the side of the appellants and of R.W. 1 to 6 and 22 on the side of the respondent. P.Ws. 7 to 10 are official witnesses while P.Ws. 12, 14, 17 and 18 are private individuals. Similarly, R.W. l to 4 are official witnesses while R.W. 5, 6 and 22 are private individuals. Tara Chand (P.W.12) is one of the appellants. He was the polling agent of the Congress (I) candidate, Sumitra Devi who has been referred to at some places in the evidence as Sumitra Bia, along with Amar Singh (P.W.17). His evidence is that he retired as polling agent after one hour and P.W. 17 took over as polling agent and thereafter he was arranging the voters in the queue. He has stated that the respondent and 5 or 7 of his companions, all of them armed, entered the polling station when he was standing at the gate and they threatened the polling staff at gun point and asked them to stand aside. Thereafter the respondent asked his companions to do their work and they tore off the ballot papers from the bundle and affixed the seal in favour of the respondent and put those ballot papers into the ballot box. The respondent 's companions, Tula Ram who was his polling agent, Ram Krishan (R.W.5), Desh Raj and Krishan Lal put the seals on the counterfoils and the thumb impressions on the counterfoils of the ballot papers. Amar Singh (P.W.17), appellants ' polling agent, Mangal Singh (P.W.18) and Basti Ram were present. When Mangal Singh (P.W.18) protested, the respondent 's Sikh companion caused injury to him with his sword at the respondent 's instance. When Basti Ram raised objection to the behaviour of the respondent and his companions he was injured with the butt of a gun. The police Men who were present in the polling station did not intervene but some time later the people of Kalaka village and some other police personnel arrived. Then the respondent and his companions fled away, abandoning two motor vehicles at the spot. The Deputy Commissioner (P.W.7) and the Returning Officer (P.W.10) came there one hour later. P.W.7 interrogated the polling staff and tape recorded their conversation. The polling was stopped for over one hour and many people got frightened and went away from the polling station without casting their votes. P.W. 12 has admitted in his cross examination that he had 462 canvassed for the Congress(I) candidate for five to ten days prior to the date of poll and had worked as polling agent of Congress (I) candidates even earlier. He claims to have reported to the police after the completion of the poll and has stated that the police did not send for anybody. He has also stated that he did not see Ajit Singh son of Rao Birendra Singh at Kalaka during the poll. He has denied the suggestion that the Congress (I) workers beat the respondents polling agent, Tula Ram and drove him out of the polling station about one hour of the commencement of the poll. Amar Singh (P.W.17) of Kalaka was the polling agent of Sumitra Devi alongwith P.W.12. He claims to have taken over as polling agent from Tara Chand (P.W.12) one hour after the commencement of the poll. He has stated that at about 10.30 a.m. the respondent came inside the polling station accompanied by 3 or 4 persons. The respondent was armed with a rifle while one of his companions had a sword and the other had a pistol and the rest sticks. The respondent asked P.W.17 and the polling staff to stand aside and directed his companions to poll votes. Thereupon the respondent 's companions took the ballot papers and affixed thumb impressions and marked the ballot papers and put them into the ballot box. When P.W.18 objected to the high handed behavior of the respondent his Sikh companion thrust the sword at Mangal Singh (P.W.18). When Basti Ram also raised objection the respondent gave him a thrust with the butt of a rifle. P.W.17 and others who were in the polling station were pushed outside. m e police men who were inside the polling station did not interfere. Some time later the people from Kalaka village and some police personnel arrived and thereupon the respondent and his companions left the place. P.W.17 and others detained two motor cycles of the respondent 's party and T caught hold of two of the fleeing persons and produced the motor cycles before P.W.7 who came there alongwith P.W.10. P.W.17 has denied in his cross examination that Ajit Singh son of Rao Birendra Singh visited the Kalaka Polling station. He has denied the suggestion that he and other Congress (I) supporters beat Tula Ram and drove him out of the polling station and that he has given false evidence being a sympathiser of the Congress (I) party. Mangal Singh (P.W.18) of Kalaka has stated in his evidence that when he was in the polling station and his particulars were being checked before he could cast his vote the respondent armed w with a gun and accompanied by 3 or 4 persons, one of them armed with a pistol and the other with a sword and the rest with lathis came inside the polling station. The 463 respondent asked P.W. 18 and others who were in the polling station to stand aside under threat of being killed otherwise. When P.W. 18 objected to the respondents behavior the respondent asked his men to beat him and turn him out of the polling station. Thereupon the respondent 's Sikh companion thrust the tip of his sword near his right foot. When Basti Ram who was behind R.W. 18 protested against the behavior of the respondent and his companions the respondent caused an injury to him with the butt of a rifle. Later the people of Kalaka village and some police personnel arrived and the respondent and him companions ran away. P.W. 18 and others informed P.W. 10 and the police about what happened. P.W. 18 has admitted in his cross examination that he had canvassed for the Congress (L) candidate but he has denied the suggestion that he has always been helping the Congress (I) Party and has therefore given false evidence. Hari Singh (P.W.8) who was a teacher in one of the Ahir Educational Institutions was the Presiding Officer at the Kalaka polling station. He has stated that at about 10.30 a.m. until which time the polling went on smoothly, the respondent accompanied by some other persons reached the polling station and came into the polling station along with four or five persons, carrying a small gun with him while one of his companions was carrying a pistol and another a sword and the others sticks. The E respondent who appeared to be in a rage pointed the gun towards P.W.8 and others saying that the remaining votes should be polled. The respondent 's companions snatched ballot papers from the officials in the polling station and tore off about 25 or 26 ballot papers and marked them in favour of the respondent and put them into the ballot box. They put their thumb impressions on the counter foils of the ballot papers. There was noise outside when the respondent and his companions were inside the polling station. The respondent and his companions went out the polling station after 25 or 26 ballot papers had been put into the ballot box as stated above. Soon after the respondent and his companions left the place a Sub Inspector of Police came there. P.W. 8 was writing the report when P.Ws.7 and 10 accompanied by the Superintendent of Police arrived. After completing his report P.W. 8 got it signed by all the polling staff and handed it over to P.W. 7 and he recorded his statement. P 5 is the diary prepared by P.W. 8 in accordance with Instruction 74 of the Instructions to Polling Officers given by the Election Commission of India. P.W. 8 had deposited Ex. P 5 along with the other records in the Election Office. He has stated the Ex. P 5 was prepared by him 464 and that it is correct. In his cross examination he has stated that nee dose not know if the High School run by the Ahir Education Board where he was employed since 1972 does or does not belong to Rao Birendra Singh. He has denied that he and the members of his family had been supporting Rao Birendra Singh in the elections. he has admitted that he has not mentioned anything in column 20 E of Ex. P 5 relating to intimidation of voters and other persons except crossing it and has stated that it is because he was very much perturbed at that time. Reference will be made in detail later to the contents of the Presiding Officer 's diary Ex. P 5 and the report of P.W. 8 to the police contained in exhibit P 6 on the basis of which FIR No. 103 of 1982 dated 19.5.1982 had been registered by Dharam Pal (P.W.9) Assistant Sub Inspector of police on 19.5.1982. Suffice it to say at present that reference has been made in Ex. P 5 to the respondent putting pressure on the polling staff and getting 25 or 26 bogus votes polled in his favour when there was a lot of noise and commotion in the polling station from 10.30 to 11.30 a.m. as a result of which the polling had stopped. In his report the police also P.W. 8 has stated that the respondent armed with a pistol came inside the polling station along with four or five his companions named, one of them with a sword and the others with sticks and hurled abuses and forcibly polled about 25 or 26 ballot papers at gun point on account of which he could not stop them from doing so. The Assistant Sub Inspector of police (P.W.9) who had been posted at Sadar Rewari police station on 19.5.1982 has deposed about the registration of FIR No. 103 of 1982 on that day on the receipt of a rukka from Sub Inspector, Deep Chand. He has stated that the FIR Ex. P 6 is in his hand writing and that it is correct according to the material on the basis of which it has been registered. He has not been cross examined about the registration of FIR No. 103 of 1982 dated 19.5.1982. Bala Bhaskar (P.W.7), the Deputy Commissioner of Mohindergarh was District Election Officer for the election to the Haryana Legislative Assembly held in May, 1982. He has stated that when he was travelling by car at about 10.30 a.m. between Monoddola and Zainabad villages in the course of his visits to some of the polling stations in the Rewari Constituency on 19.5.1982 he received a wireless message to the effect that the respondent had complained against Congress (I) workers saying that 40 or 50 of them had attacked Congress (J) workers at Kalaka. P.W. 7 reached Kalaka polling station at 12.30 p.m. after instructing the police over the wireless to take action on 465 that complaint of the respondent. When he reached Kalaka polling station he received oral complaints about the detention of a motor cycle belonging to the workers of the Congress (J) party. He went inside the polling station and tape recorded the conversations with the officers in exhibit P.W. 7/1 of which Ex. P 1 is the transcript prepared under his supervision. He has stated that he compared the transcript Ex. P 1 with the original tape record and found it to be correct and that it bears his signature by way of authentication. He has admitted that there are some gaps in exhibit P 1 as the voices in the tape were not clear and audible. He has stated that the tape record remained in his custody throughout and was not tampered with either himself or by anyone else and that it contains the voices of the Presiding Officer (P.W.8), the polling officer Roop Chand (R.W.7) and the Police Constable, Mohinder Singh (R.W.3) whose number is 498. Reference will be made later to the contents of the tape record and to the report Ex. P 2 submitted by P.W. 7 to the Government about the incident which took place on 19.5.1982 during the elections as it had come to his notice. In his cross examination P.W. 7 has admitted that he could not now identify the persons whose voices were recorded in the tape and that the tape is Government property which had been issued to him by the Government and that the tape recorder remained with him all the time and the tape recorder and tape record and the transcript Ex. P 1 had not been placed in the record room. It has to be noticed that the respondent (R.W. 22) has admitted in his evidence that though he had made several reports to the Election Commission and other Election Authorities before and after the election with which we are concerned in this appeal he had not made any report against P.W. 7. Shri Krishan (P.W. 10) was the Sub Divisional Officer, Rewari and Returning Officer for the Rewari Constituency in the election held to the Haryana Legislative Assembly in May, 1982. In the course of his tour of the Constituency after 10 a.m. On 19.5.1982 he reached Chalky polling station at about 11 or 11.30 a.m. On receipt of a complaint from the polling station to the effect that the respondent alongwith some other persons intimidated the polling staff and the public at that polling station. He was with P.W. 7 when he reached Chalky polling station and he found the polling at a stand still at that time. When he reached Chalky polling station the Station House Officer of Sadar Rewari was present there alongwith a Head Constable and some other police personnel. The Deputy Commissioner (P.W.7) conducted an enquiry and interrogated the polling staff and the 466 police personnel and tape recorded their conversation. One of the polling officers told P.W. 10 that the polling agents were turned out by the respondent and his companions and that a bundle of ballot papers was taken away and the ballot papers were marked and put into the ballot boxes and that the voters who were in the polling booth were turned out. He found two motor cycles stranded near the polling station. It is seen from his evidence that he was transferred from the Rewari Sub Division on 1.6.1982 and that a file had been handled in a way different from the one in which it had been handled until he handed over charge of his office. He has denied the suggestion that the file was created in a particular manner by insertion of some papers for fabricating evidence in favour of the appellants. It has to be noticed in this connection that the respondent had complained exhibit R.7 dated 4.5.1982 that P.W. 10 is married in the locality and was interfering with the election. On the other hand, it is the evidence of Roop Chand (R.W.1) who was Steno Typist in the office of the Project Officer, Agricultural Department in Haryana and the alternate Presiding Officer in Kalaka polling station on 19.5.182 that after the polling started at 7.30 a.m. Ajit Singh son of Rao Birendra Singh came to the polling station at about 8.30 a.m armed with a rifle and accompanied by 15 or 20 persons and asked for the respondent 's polling agent Tula Ram and that Ajit Singh 's companions pushed Tula Ram out of the polling station. Ajit Singh remarked that the polling at the Kalaka polling station had always been one sided and directed his companions to poll votes. When the polling staff resisted, Ajit Singh abused R.W.1 and others and asked his companions to beat them and they slapped the polling staff. Ajit Singh 's companions picked up some ballot papers and tore them off from their counter foils and put them into the ballot box for about on hour and left the polling station thereafter. The respondent came to the polling station about one hour later and told the Presiding Officer (P.W.8) that he should not be partial to any party and he came to know that his polling agent had been beaten and that bogus votes had been polled in the polling station. Thereupon P.W. 8 assured the resondent that he would not permit anything of that sort to be repeated. About half an hour after the departure of the respondent from the polling station many people of Kalaka village gathered at the polling station and proclaimed that they would poll votes forcibly. When R.W. 1 and others resisted and collected the voting material those persons beat the polling staff and snatched the voting material and in the struggle which ensued P.W. 8 was 467 dragged upto the door of the polling station and was rescued by the police men on duty. Since the police present in the polling station could not pursuade the crowd to disperse polling was stopped at about 10.15 a.m. and P.Ws. 7 and 10 arrived there subsequently and arranged for the polling to restart after making the electors to stand in a queue. He has denied that P.W. 7 asked for his name and profession and that he told him that he was Roop Chand and a Stenographer. He has stated that he asked P.W. 8 to record the visit of Ajit Singh and his companions into the polling station and that P.W. 8 told him that he has recorded it in his diary. The appellants ' case regarding forcible polling by the respondent 's companions at his instance and the tape record was put to R.W. 1 and has been denied by him. He has admitted that a few days after the election the police obtained an affidavit from him on judicial stamp paper but he has denied that it was done under pressure of the respondent. Deen Dayal (R.W.2), a teacher was the polling officer along with Dhani Ram (R.W.4) who is also a teacher. He has stated that after the polling at the Kalaka polling station went on peacefully for about an hour Ajit Singh, armed with a pistol, came with 15 or 20 persons at about 8.30 a.m. and entered Kalaka polling station forcibly and asked for the polling agent of the respondent and told his companions to remove him from there. Ajit Singh asked his companions to beat R.W. 2 and others and they were accordingly beaten, and P.W. 8 told them to allow Ajit Singh 's companions to do whatever they liked and thus avoid being beaten saying that he would make a complaint about the Latter. Ajit Singh and his companions polled bogus votes for about half an hour and left the polling station. The respondent came there half an hour later and told P.W. 8 that he had been informed that his polling agent had been beaten and that bogus votes had been polled and protested against it to P.W.8. P.W.8 told the respondent that whatever had happened and that he would conduct the poll in a proper manner thereafter. About half an hour after the respondent left the place the people of Kalaka village came in a crowd and entered the polling station and told the polling staff that they would poll votes forcibly in favour of Sumitra Devi. When the polling staff refused to act according to their desire they beat them and try to snatch the ballot box from R.W. 4. Meanwhile, Constable Mohinder Singh, (R.W. 3) came inside the polling station wrested the ballot box from the crowd and placed it at its original place. Soon thereafter a Sub Inspector of Police and some other constables came and tried tc remove the crowd from the polling station. About half an hour later P.W. 10 468 came there and left the place after talking with P.W. 8. P.W. 7 came there about half an hour thereafter and directed P.W. 8 and the polling staff to conduct the polling properly and polling started again at about 12 noon. He had stated in his cross examination that he did not make any report either to the police or to P.Ws. 7 and 10 though slaps and fist blows had been given to him by the miscreants but he asked P.W. 8 after PWs. 7 and 10 left the place as to whether he had reported about the maltreatment meted out to polling officers and he answered in the affirmative. He has stated that P.W.7 talked only to P.W. 8 and to no other polling staff and did not tape record any conversation in his presence and that he does not know if P.W. 7 had talked with the police constable who was posted at the polling station. He has denied that Ajit Singh had not come to the polling station at all and that no incident of the kind stated by him took place in the polling station. Mohinder Singh (R.W. 3) who was on duty as a police constable at Kalaka polling station on 19.5.1982 has stated that about half an hour after the polling started at 7.30 a.m. he heard shouts that Ajit Singh had come and saw Ajit Singh, armed with a pistol, coming in to the polling station along with 15 or 20 persons and that inspite of the fact that he obstructed 2 or 3 companions of Ajit Singh pushed the respondent 's polling agent out of the polling station and stated beating him and he rescued him. He also stated that he does not know what Ajit Singh and his companions did inside the polling station where they remained for about 30 to 45 minutes and that the respondent come there by a motor oar with 2 or 3 persons about half an hour after Ajit Singh and his companions left the place and left the place 2 or 3 minutes later after go mg inside the polling station. He has further stated that about half an hour thereafter about 50 to 60 persons came from Kalaka village and entered the polling station forcibly and snatched the ballot boxes after beating the polling staff and they were turned out of the polling station by Sub Inspector, Deep Chand and some police constables who arrived there some time later. He has stated that P.W. 10 come there about 30 or 45 minutes thereafter and left the place after talking with P.W. 8 and that P.W. 7 arrived there about 30 to 45 minutes after P.W. 10 left the place and talked to the polling staff and arranged for the polling starting again at about 12 noon. He has denied in his cross examination that P.W. 7 had any talk with him in the polling station and has stated that he did not make any report about the incident or the treatment meted out to him by Ajit Singh and his companions though the respondent 's 469 polling agent was bleeding and his clothes were torn. He has denied that the voice recorded in the tape (exhibit P.W. 7/1) put to him is his voice and also that P.W. 7 interrogated him and he made a statement. The appellants 's case of forcible polling by the respondent 's men was put to R.W. 3 and has been denied by him. The evidence of R.W. 4 is more or less the same as that of R.Ws. 1 to 3 as regards the alleged forcible polling of bogus votes by Ajit Singh and his companions. He too has stated that at the instance of P.W. 7 who arrived there about half an hour after P.W. 10 left the place after talking to P.W.8 the polling started again. He has admitted in his cross examination that P.W. 8 had some conversation with P.Ws. 7 and 10 but he has denied that the respondent came to the polling station armed with a revolver and accompanied by 15 to 20 persons and got some votes polled at gun point and ran away along with his companions on the arrival of the police and the villagers. Ram Krishan (R.W. 5), the brother of the respondent 's polling agent Tula Ram who has not been called as a witness admittedly supported the respondent in the election held in May, 1982. He has stated that t he went to the polling station for casting his vote at about 7.30 a.m. when the polling started and that Ajit Singh, armed with a pistol, came to the polling station at about 8.30 a.m. accompanied by 40 or 50 persons and entered the polling station with 15 or 20 persons. Some persons who entered the polling station along with Ajit Singh dragged Tula Ram out of the polling station and beat him and when he intervened they started beating him also as a result of which his clothes got torn and he was rescued by the police constable (R.W. 3). He went with his brother by his scooter to Rewari and reported to the respondent about the incident and leaving Tula Ram at Rewari he came along with the respondent and 2 or 3 other persons by a motor car to Kalaka village where the respondent went into the polling station and left the place 5 or 7 minutes later for Rewari. He has stated in his cross examination that both himself and his brother Tula Ram bled from different parts of the bodies because of the injuries sustained by them and that they did not however get themselves medically examined or make any complaint to any authority because there were only abrasions from which there was some bleeding. It is seen from his evidence that Tula Ram who has not been examined is alive and is in service as a Clerk in some department at Chandigarh where the election petition was tried. 470 Suresh (R.W. 6) has stated that when he reached Kalaka polling station at 8.30 a.m. in May, 1982 Ajit Singh, armed with a revolver, came there with 40 to 50 persons and went inside the polling station with about 15 to 20 persons. The respondent 's polling agent Tula Ram was dragged out of the polling station and beaten. When R.W. 5 rushed for his help he too was beaten and was rescued by a police constable who may on duty at the polling station. The respondent came there by a car about half an hour after Ajit Singh and his companions left the place and went away after remaining in the polling station for about 5 or 6 minutes. The appellants ' case of forcible polling by the respondent 's men had been put to R.W. 6 and denied by him. He too has stated in his cross examination that P.W. 7 and 10 came to the polling station after the respondent left the place and that on their intervention polling restarted and the people started forming a queue and he himself cast his vote thereafter. The respondent R.W. 22 has stated that when he was in his house at Rewari on 19.5.1982 after deciding not to go out of the house on that day R.W. 5 and his polling agent Tula Ram came there at 8.45 a.m. from Kalaka polling station with their clothes torn and appearing to have been beaten badly and told him that Ajit Singh accompanied by 50 or 60 persons entered the polling station and beat them and indulged in forcible polling and that he thereupon went by a car to Kalaka village alongwith R.W. 5 at about 9.15 or 9.30 a.m. On that day. Leaving his car at some k distance he walked to the polling station and found 50 or 60 villagers collected there and he entered the polling station protested to P.W. 8 and brought the complaint given to him by R.W. 5 and Tula Ram to his notice. After P:W. 8 assured him that nothing of that sort will be allowed to happen in the remaining part of the day he returned from Kalaka 7 or 8 minutes later and sent a written report to the police about the incident with copies to P.W. 7 and the election authorities and received a message from the police station at 10.30 a.m. that his complaint had been flashed to P.W. 7 by wireless message and that appropriate action was expected to be taken soon. He has further stated that in his letter exhibit R. 7 dated 4.5.1982 he requested for the appointment of an observer because of official interference and had stated that P.W. 10 was married in that area and was interferring in the election. He has stated in his cross examination that FIR No. 103 of 1982 was connected at a later stage at the instance of Rao Birendra Singh. He was the Speaker of Haryana Legislative Assembly until the first meeting of the newly constituted Legislative Assembly was held after the election held on 471 19.5.1982 and after having succeeded in the election as a Congress (J) candidate he joined the Congress (I) Party and is now the Transport Minister. He has admitted that he is not made any mention in any of his complaints sent to the Chief Election Commissioner and other election authorities prior to 19.5.1982 that P.W. 7 was acting in any way against him in a prejudicial manner. He has admitted that he has not stated in his written statement that he complained to the police in writing about the incident in Kalaka polling station and had sent copies thereof to the Election Commissioner and P.W. 7. He has stated that he did not make any complaint naming Ajit Singh specifically about the incident at Kalaka because the picture was not clear to him at that time and not because such an incident never happened. The appellants ' case of booth capturing and bogus polling by the respondent in Kalaka polling station had been put to R.W. 22 and denied by him. The tape record (exhibit P.W. 7/1) was played before him and he has stated that it does not contain his voice and that it is rather the voice of Rao Birendra Singh. The oral evidence of R.Ws. 1 to 6 that Ajit Singh came along with some of his companions and dragged out Tula Ram from Kalaka polling station and beat him and that they snatched ballot papers and ballot boxes and got bogus votes polled in that polling station and the evidence of R.W. 22 that R.W. 5 and Tula Ram came and told him that Ajit Singh accompanied by 50 or 60 persons entered the polling station and beat them and indulged in forcible polling cannot be accepted for two important reasons, namely, that no such plea had been put forward in the written statement of the respondent where no doubt he has stated vaguely that the men of Rao Birendra Singh captured the booth at Kalaka and the supporters and voters of the respondent were badly out manouevered and it could be gathered from the fact that whereas Sumitra Devi had obtained 484 votes he had obtained only 53 votes in that polling station and not that Ajit Singh and his companions came to Kalaka polling station and indulged in forcible voting or that they beat R.W. 5 and his brother Tula Ram. The respondent has denied in his written statement that the process of polling got disrupted for over an hour at Kalaka polling station and that a number of voters had to refrain from casting their votes; but, as mentioned above it has been admitted by R.Ws. 1 to 4 that the polling was suspencial at Kalaka polling station on 19.5.1982 and that it re started after the arrival of P.Ws. 7 and 10 at the polling station some time after the departure of the respondent and his companions. though the case 472 of the respondent that there was forcible polling at the Kalaka polling station by Ajit Singh and his men cannot be accepted for want of any such plea in the written statement Mr. Sibal was justified in requesting the Court to accept the admission on the part of the respondent 's witnesses that there was forcible polling at the Kalaka polling station in the morning of 19.5.1982 and that the polling got disrupted as a consequence thereof and that it was recommended after the arrival of P.Ws. 7 and 10 and to reject their evidence that Ajit Singh and his men were the cause. Under instruction 74 of Instructions to Presiding Officers issued by the Election Commission of India, extracted above, the Presiding Officer is bound to draw up the proceedings connected with the taking of the poll in the polling station in the diary to be maintained for the purpose in the form in which exhibit P. 5 had been filled up by the Presiding Officer (P.W. 8). The Presiding Officer is directed by the instruction to go on recording the relevant events as and when they occur and not to postpone the completion and filling of all the entries in the diary to the completion of the poll and he has to mention therein all the important events. Even the alternate Presiding Officer (R.W. 1) has stated in his evidence that the Presiding Officer (P.W. 8) told him that it was his duty to report about the incident and he would do so. It is seen from Column 18 of Ex. P 5 relating to the number of votes polled that 195 votes were polled from 8 a.m. to 10 a.m., 205 from 12 noon to 2 p.m., 106+3 from 2 p.m. to 4 p.m. and to on upto 4.30 p.m. and that in the disputed period from 10 a.m. to 12 noon only 51 votes were polled. In column 21 it is stated that the polling was interrupted and disrupted by rioting and open violence and that from 10.30 a.m. to 11.30 a.m. the respondent put pressure on the polling party and got 25/26 bogus votes polled in his favour and there was a lot of noise and commotion outside. In column 22 relating to the question whether the poll was vitiated by any ballot paper being unlawfully marked by any person and deposited in the ballot box it is stated that 4 or 5 persons who came with the respondent snatched ballot papers and forcibly put them into the ballot boxes. The Presiding Officer (P.W. 8) who has deposed about the incident has stated in his evidence that Ex.P. 5 is the diary which he submitted after the poll, that it was prepared and signed by him and is correct and that he deposited it along with the other records in the election office. As stated earlier, what has been elicited in his cross examination is that apart from crossing column 20(E) relating to intimidation of voters and other persons he has not 473 mentioned anything in that column and that he failed to fill up that column in full because he was very much perturbed at that time. It has not been suggested to P.W. 8 that he had prepared Ex. P 5 later under the pressure and influence of the defeated candidate Sumitra Devi through her brother Rao Birendra Singh. Nor is there any positive evidence to that effect on the side of the respondent. Therefore, it is not known on what basis the learned trial Judge has observed in his judgment that Ex. P 5 appears to have been made up by P.W. 8 under the pressure and influence of the defeated candidate Sumitra devi through her brother Rao Birendra Singh. In the absence of any material on record or even a suggestion to that effect to the Presiding Officer (P.W. 8) who has stated that he filled it up correctly and deposited it alongwith the other records in the election office it is not possible to agree with the view of the learned trial Judge that Ex. P 5 has been got up later by P.W. 8 under the pressure and influence of the defeated candidate Sumitra Devi through her brother Rao Birendra Singh. P 5, a contemporaneous document prepared by the Presiding Officer (P.W. 8) as required by Instruction 74 (supra) and deposited by him in the election office after the poll was over alongwith the other records is a very valuable piece of documentary evidence corroborating the oral evidence of the Presiding Officer (P.W. 8) and other witnesses examined on the side of the appellants who have deposed about the first part of the incident in the Kalaka polling station. The next contemporaneous document corroborating the oral evidence of P.W. 8 is the copy of the report of P.W. 8 to the police appended to FIR No. 103 of 1982, exhibit P 6 dated 19.5.1982, prepared by the Assistant Sub Inspector of Police, P.W. 9 on receipt of a rukka from the Sub Inspector of police, Deep Chand. P.W. 9 has stated that it is in his hand writing and correct according to the material on the basis of which it was registered. Ag stated earlier, PSHAW. 9 has not been cross examined as regards the FIR contained in exhibit The learned trial Judge has rejected exhibit P 6 as being inadmissible in evidence for corroborating the evidence of P.W. 8 about the incident in Kalaka polling station on the ground that the original report of P.W. 8 to the police had not been summoned by the appellants. It is no doubt true that the original had not been summoned by the appellants before P.Ws. 8 and 9 deposed about exhibit P 6 in their evidence. P.W. 8 has stated in his evidence that when he was writing the report soon after the Sub Inspector of police came to the polling station after the respondent and his companions had 474 left the place, P.Ws. 7 and 10 accompanied by Superintendent of police came there and that after completing that report he got it signed by the polling officials and handed it over to the police officer and he recorded his statement. It is stated in the copy of P.M. in complaint to the police appended to exhibit P 6 that at about 10.30 a.m. when the polling was going on smoothly the respondent came into the polling station, armed with a small pistol and accompanied by 4 or 5 persons, one of the armed with a sword and the others with sticks, and hurled abuses and forcibly polled about 25/26 ballot papers at gun point on account of which P.W. 8 could not stop them from doing 80. He also stated that the polling staff was threatened with danger to their lives and, therefore, they kept standing there for some time and that the companions of the respondent dragged the polling agent (P.W. 17) of Sumitra Devi and appropriate action may be taken by the police. It is seen from the record that the appellants had taken steps to summon FIR No. 103 of 1982 dated 19.5.1982 and the Head Constable of Sadar Rewari Police station to prove the incident at Kalaka. The record further shows that the respondent also had applied for summoning the orders of Court disposing of FIR No. 103 of 1982 as also FIR No. 104 of 1982 to which reference will be made in the course of the discussion relating to the incident at Burthal Jat polling station. The respondent had also applied for summoning the Inspector of Police, Kedar Singh to appear with the relevant records showing the disposal of the above two FIR. But subsequently he filed CMP 31 (E) of 1983 for substituting and their person in the place of Inspector Kadar Singh and though that petition was opposed by the appellants the trial Court allowed the petition on the same day i.e. 21.2.1983 itself. The appellants also had filed CMP 41(E) of 1983 for summoning the file relating to those two FIRs from Sadar Rewari Police station. That application was dismissed by the learned Trial Judge on 25.2.1983. Thus it is seen that the appellants who had doubt not taken steps for summoning the original complaint given by P.W. 8 to the police at the Kalaka polling station in the first instance probably because the respondent himself had originally sought the production of the relative records from the police station had later taken necessary steps to summon the original complaint as also to recall P.W. 8 for deposing about that fact. In these circumstances, I find that the necessary foundation must be held to have been laid for adducing secondary evidence by way of the copy appended to FIR No. 103 of 1982 (Ex. P 6) and that the appellants are therefore entitled to adduce secondary evidence of the contents of that complaint. The complaint of P.W. 8 to the police given immediately after the incident was over and soon 475 after the arrival of the police personnel and the officials P.Ws. 7 and 10 and the Superintendent of Police is another contemporaneous document and a valuable piece of documentary evidence corroborating the evidence of P.W.8 and other witnesses examined on the side of the appellants to prove the first part of the incident in the Kalaka polling station. The third piece of documentary evidence let in by the appellants for proving the first part of the incident in the Kalaka polling station is the tape record (exhibit P.W. 7/1) of which exhibit P`l is a transcript prepared under the instructions and mostly in the presence of P.W. 7 by his Stenographer. P.W. 7 has stated in his evidence that inside the polling station at Kalaka he tape recorded the version given by the officers about the incident in that polling station in exhibit P.W. 711, and he compared the transcript (Ex. P 1) prepared by his Stenographer with the original and found it to be a correct reproduction of the original, and he has authenticated it by signing it and that there are some gaps in exhibit P 1 as the voices in the tape were not clear and audible. He has also stated that the tape recorder which had been supplied to him by the Government, the tape exhibit P.W. 7/1 and the transcript Ex. P 1 remained in his custody throughout and had not been deposited by him in the election office. He has not been questioned as to why he retained the tape, the tape recorder and the transcript in his custody without depositing them in the election office. Therefore, no adverse inference can be drawn against P.W. 7 or the appellants from the fact that the tape, the tape recorder and the transcript had not been deposited by P.W.7 in the election office. No suggestion has been made to P.W. 7 in cross examination that he had in any way tampered with the tape record (exhibit P.W. 7/1) and he has stated in his examination in chief that a portion of the tape relating to the incident at Burthal Jat polling station has been erased inadvertently by his own voice. The learned trial Judge has rejected the tape record (exhibit P.W. 7/1) holding (1) that it is tampered with later, disbelieving the evidence of the P.W. 7 that a portion of what he had recorded at the Burthal Jat polling station was erased by his own voice inadvertently on the some day and (2) that the authenticity of the transcript (exhibit P.1) has not been proved with definiteness. It is not reasonable to reject the tape merely because some portions thereof could not be made out on account of noise and interference not only outside but also inside the polling station when what was being elicited by P.W. 7 from the polling officers and the police man (R.W. 3) was being H recorded. In R. vs Maqusud Ali (supra) tape recorded conversation of the two accused in a murder case has been held to be 476 admissible in evidence for the purpose of proving the guilt of the accused and it has been observed that the tape recording was a matter of the utmost importance and that it is indeed the highly important piece of evidence which the defence strenuously sought to keep out. In R. vs Robson (supra) in which reference has been made to K. vs Maqusud Ali (supra) tape recording had been held to be admissible in the case in which the accused was charged with corruption, rejecting the plea of the defence that it was inadmissible inter alia because in many places it was un intelligibIe though it was however not contended that the tape recording was as such inadmissible in evidence of what was recorded on it . It is clear from these and the other decisions of this Court referred to supra that tape recorded evidence is admissible provided that the originality and the authenticity of the tape are free from doubt. In the present case there is no valid reason to doubt them. In Shri N. Sri Kara Reddy etc. vs Shri V.V. Giri (supra) referred to above a bench of five learned Judges of this Court has held that the contemporaneous dialogue tape recorded in that case formed part of res gestae and that it is relevant and admissible under sections 7 and 8 of the Evidence Act. If it is res gestae it is admissible in evidence even under section 6 of the Evidence Act illustration 1 where of reads thus: "A is accused of the murder of by beating him. What ever was said or done by A or B or the by standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. The following passage in regard to incidents forming part of the res gestae is found in para 509 of Halsbury 's Laws of England (Vol. 15) Third Edition: "There are many incidents, however which, though not strictly constituting a fact in issue may yet be regarded as forming a part of it, in the sence that they closely accompany and explain that fact. In testifying to the matter in issue, therefore, witnesses must state them not in their barest possible form, but with a reasonable fullness of detail and circumstance (g). These constituent or accompanying incidents are said to be admissible as forming part of the res gestae (h). When they consist of declarations 477 accompanying an act they are subject to three qualifi cations; (1) they must be contemporaneous or almost contemporaneous with the fact in issue and must not be made at such an interval as to allow of fabrication or to reduce them to the mere narrative of a past event (i) though this is subject to apparent exceptions in the case of continuing facts (k); (2) they must relate to and explain the act they accompany, and not independent facts prior or subsequent where to (i); and (3) though admissible to explain, they are not always taken as proof of the truth of the matters stated, that is, as hearsay (m). P.W. 7 has stated in his evidence that the voice of P.W. 8 who was the Presiding Officer at kalaka polling station is recorded in the tape, that the tape contains also he conversation of the alternate Presiding Officer, Roop Chand (R.W. 1) and that the voice of the Constable Mohinder Singh (R.W. 3) who was on duty at the polling station and had made a complaint to him is also recorded in the tape. It is true that he has admitted in his cross examination that he cannot identify the voice with any of the persons mentioned by him. The transcript of the tape (P.W. 7/1) after it had been recorded in a larger tape with the help of a re sophisticated instrument in this Court was prepared by this Court and some portions thereof has been admitted by R.W. 22 to be in his voice and he has recognised in the larger tape the voice of even P.W. 7 in some portions of the conversation which admittedly took place between him and P.W. 7 in the office of R.W. 10 at about 7.30 p.m. On 19.5.1982. It is seen from the transcript that some one had answered the question about what his name and number were and that one Mohinder Singh had answered saying that his name and number were Mohinder Singh and 498 which tally with those of R.W. 3. In the answer to question as to how many persons came inside the polling station Mohinder Singh had stated that four persons case inside and 20 or 30 persons were remaining outside and there were also 5 or 6 vehicles. In answer to the question whether he had seen arms or ammunitions in the hands of those persons who stood outside and of those four persons who entered the polling station Mohinder Singh had stated that perhaps Colonel Sahib, referring to the respondent, was armed with a gun while some persons were armed with swords and some 2 or 3 persons were armed with lathis. It is further seen that in answer to the question as to what he was and what was his name one Roop Chand informed the question that he was Roop Chand and a Stenographer in the Project Office of the Agricultural Department in Haryana. These particulars tally with those 478 of R.W. 1. It is seen from the tape that P.W. 17 had also answered certain questions saying inter alia that he was Amar Singh, polling agent of the Congress (I) candidate and that there were 5 or o vehicles with a number of persons in them. It is also seen from the tape that during the course of conversation between the respondent and P.W. 7 at the office of P.W. 10 the fact that P.W. 7 had gone to Kalaka polling station immediately after the respondent and others left the place and that he got the statements tape recorded there was mentioned by P.W. 7 to the respondent. In these circumstances great reliance has to be placed on the tape (exhibit P.W. 7/1) and is contents not only for corroborating the evidence of P.Ws. 7 and 8 to the extent they go but also as res gestae evidence of the first part of the incident. The learned trial Judge was not justified in rejecting the tape record (exhibit P.W. 7/1) and the transcript (Ex.P 1). It must be remembered that the respondent who had openly disowned any art of the tape as containing his voice and had, on the other hand, gone to the extent of saying in the trial Court that it rather contained the voice of Rao Birendra Singh has admitted in this Court portions of that tape as being in his voice and that he has stated that he cannot identify any voice other than those of himself and P.W. 7. Coming now to exhibit P 2, P.W. 7 has stated in that report that around 10.30 a.m. when he was proceeding by his car between Manodola and Zainabad villages he received a message on the 4 police wireless that in Rewari Constituency the Congress (J) candidate had complained that about 50 to 60 Congress (I) workers had attacked his workers in Kalaka village. He immediately directed the Station House 'Officer of Sadar Rewari to rush to the village. At 11.35 a.m. he received a message on the police wire less that villagers had refused to vote in Kalaka alleging that Congress (J) workers had polled some bogus votes in Kalaka polling station. Therefore he proceeded to Kalaka polling station and interrogated the Presiding Officer and the polling officers of the polling station and recorded the conversation in his tape recorder. When he was told that Congress (J) workers came into the polling station and snatched ballot papers from the polling staff and polled them in favour of the respondent, he advised the polling officer to accept tendered votes from the electors if they came to the polling station for voting and he thereafter went to Burthal Jat. This report submitted by P.W. 7 some time after the results of the poll were announced corroborates the evidence of P.W. 7 about what he did at the polling h station soon after he went there on receipt of a wireless message about the polling of bogus votes in favour of the respondent. 479 With respect to the office which he holds, the respondent, as a party and his own witness, is wholly unreliable. In his written statement he had vaguely alleged that the men of Rao birendra Singh captured the booth at Kalaka aud the supporters and voters of the respondent were badly out manoeuvred and that the said fact could be gathered from the fact that whereas Sumitra Devi had obtained 484 votes he had obtained only 53 votes in that polling station. The only suggestion made to P.Ws. 12 and 17 who have denied it is that Ajit Singh visited the Kalaka polling station. No suggestion was made to any of the witnesses examined on the side of the appellants in the cross examination that Ajit Singh came armed with some armed companions and beat R.W. 5 and Tula Ram and dragged them out and that they forcibly polled bogus votes. Such a case was projected by the respondent only after the respondent started to let in oral evidence on his side after the appellants had closed their evidence. In these circumstances, when questioned as to why he had not made any complaint naming Ajit Singh specifically for the incident at Kalaka R.W. 22 has stated in his evidence that it is not because such an incident never happened but because the picture was not clear at that time. It is impossible to accept this explanation of R.W. 22, for the polling took place on 19.5.1982 and the respondent filed his written statement in the election petition long thereafter on 14.9.1982. If, as the respondent would have it, Tula Ram and R.W. 5 came to his residence at Rewari in the morning of 19.5.1982 and informed him about the incident at the Kalaka polling station and there after he went there and complained to P.W. 8 about it, he should have come to know about the details of the incident before he filed his written statement long thereafter on 1.9.1982. If by 14.9.1982 the picture of what happened at the Kalaka polling station 19.5.1982 was not clear it is not known how it would have become clear only after appellants had closed their evidence and just before the respondent began to let in oral evidence on his side. Therefore, the explanation of R.W.22 that he had not named Ajit Singh specifically in relation to the incident at the Kalaka polling station not because it never happened in the manner stated by his witnesses but because the picture was not clear at that time cannot be accepted at all. R.W. 22 had stoutly denied in the trial Court that the tape record (exhibit P.W. 7/1) contained his voice but added that it is rather the voice of Rao Birendra Singh. But after the tape was recorded with the aid of a more sophisticated instrument by playing it in this Court in the presence of the respondent in the 480 office and also in the open Court, R.W. 22 has admitted some portions of his conversation with R.W. 7 in the office of P.W. 10 at about 7 or 7.30 a.m. On 19.5.1982. In the cross examination made in this Court after R.W. 22 had heard the re recorded larger tape being played in the Court R.W. 22 has stated that he could not recognise the voice of any person in the tape other than those of himself and P.W. 7. If the tape used by P.W. 7 for recording the conversation could not be followed and understood clearly when it was played in the trial court with the very same instrument by which it was recorded what R.W. 22 could have said was that he cannot say whether it contains his voice but he could not have gone to the extent of saying that it does not contain his voice but it rather contains the voice of Rao Birendra Singh. This also shows that the evidence of R.W. 22 is not reliable. In his cross examination in this Court R.W. 22 has stated that he was the Speaker of the Haryana Legislative Assembly until the new Legislative Assembly met after the elections in May, 1982 and could therefore have summoned any officer to his office and he did not go to the police station on 19.5.1982 and he is quite positive about it. But in the later portion of his evidence in this Court he has stated that not only his admission of the transcript of the tape (exhibit P l) to the effect that he went to the police station but also his written statement that he did not go to the police station on 19.5.1982 are both correct and that he would emphasize that he did not go to the police station at all on that day. He has also stated that although the voice in the tape says that he went to the police station and that voice appears to be his own voice he did not go to the police station because he was the Speaker of the Haryana Legislative Assembly on that day and could have summoned any police officer to his office. However, it is his own evidence that he did go to the office of P.W. 10 to meet P.W. 7 at about 7 or 7.30 p.m. On 19.5.1982. This also shows that the evidence of R.W. 22 is not reliable. R.W. 22 has admitted the voice in the tape that when P.W. 7 asked him about when he received the message about the incident at the Kalaka polling station he answered by saying that it was about 11.30 a.m. and that it is correctly recorded in the tape. It is seen from the transcript that the respondent had stated in that conversation that he thereafter went to the Kalaka polling station and questioned his men as to whether they were not ashamed that two or three 'chaps ' belonging to the same village had been beaten. However, he would say in his evidence that he 481 went to Kalaka only once on 19.5.1982 and that it was about 9 or 9.30 a.m. There is abundant unimpeachable evidence on the side of the appellants to show that the respondent, armed with a rifle, visited Kalaka polling station accompanied by some armed persons at about 11.30 a.m. or 12 noon, and indulged in the polling of bogus votes. P.W. 7 had stated in the course of his tape recorded conversation with the respondent in the office of P.W 10 at about 7 or 7.30 p.m. on 19.5.1982 that he visited Kalaka polling station soon after the respondent had left that place. R.W. 22 has admitted in his cross examination in this Court that the statement of P.W. 7 that he was there at about 12 noon or 12.05 p.m. refers to Kalaka polling station and that P.W. 7 told him that the Presiding Officer told him a different story about the incident which took place in that polling station. It is, therefore, clear that the respondent has attempted to make a futile effort to show that he visited the Kalaka polling station with R.W. 5 and others only at about 9 or 9.30 a.m. On 19.5.1982 and not at the time of the first part of the incident alleged by the appellants. The written statement is silent on the question whether the respondent visited Kalaka polling station on 19.5.1982 except a mere denial. The respondent unsuccessfully attempted to file an additional or amended written statement to the effect inter alia that he had decided not to move out of his house and had not gone out of his house on 19.5.1982. This portion of the additional or amended written statement which had not been received by the Court was put to him in cross examination by Mr. Sibbal. R.W. 22 has stated that there appears to be a typing error in that statement that he did not move out of his house on that day and that what he meant to say was that as a consequence of the assurance of his supporters that he was going to succeed he acceded to their wish and had decided not to move out of his house on that day. He would say that he did not read that amended written statement and had no sufficient time to read it properly but that he did not give specific instructions to his counsel on that matter and was told by his supporters not to move out of his house on 19.5.1982 and that the fact that he went to Kalaka village on 19.5.1982 is not mentioned in that amended written statement though inspite of deciding not to move out of his house on that day he did go to Kalaka village on that day. This also shows that the evidence of R.W. 22 is not reliable. In the election petition it is alleged in relation to the incident at the Burthal Jat polling station that Anil Kumar and Satbir Singh are the relatives of the respondent. There is no 482 denial much less any spefic denial of this allegation in the written statement of the respondent though it is a material fact which ought to have been denied specifically if it was not admitted. Therefore, under 0.8 r. 5 of the Code of Civil Procedure which applies to proceedings in election petitions it must be deemed to have been admitted by the respondent. Order 8 rule 5 reads: Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. But during the trial R.W. 22 had repeatedly denied that Anil Kumar and Satbir Singh were in any way related to him though in a portion of his evidence he would say that satbir Singh is the adopted son of Jagmal Singh, father of his wife who was divorced in 1962 and that he does not known if Anil Kumar is the brother of his brother in law, Surinder Kumar and he could not deny or admit that he is the brother of his brother in law, Surinder Kumar as Surinder Kumar has 6 or 7 brothers. He has stated that he does not know whether Anil Kumar and Satbir Singh are the two persons who were arrested in Burthal Jat village on 19.5.1982 for offences under section 107 and 151 of the Code of Criminal Procedure and that he had not exhibited grave concern about Anil Kumar and Satbir Singh in the course of his conversation with P.W. 7 in the office of P.W. 10 at 7 or 7.30 p.m. On 19.5.1982 or told P.W. 7 that they were his relatives. But in his cross examination in this Court he has admitted that Anil Kumar and Satbir Singh had been arrested by the police at the instance of P.W. 7 at the burthal Jat polling station on 19.5.1982 and that he had referred to them as his relations only because P.W. 7 had not taken any steps inspite of his repeated representation in regard to the arrest of those two persons. It is not possible to accept the evidence of R.W. 22 that because no steps were taken by P.W. 7 on his repeated requests for the release of Anil Kumar and Satbir Singh he told P.W. 7 that they were his close relatives, for he had admitted in his evidence in this Court that he would have left no stone unturned if his partymen and workers were harassed even though they may not be his relatives. It appears from this portion of the evidence of R.W. 22 that it would have been unnecessary for him to claim Anil Kumar and 483 Satbir Singh to be his close relatives merely to prevent them from being harassed by the police after their arrest on A 19.5.1982. He has stated in his evidence in this Court that because he was told by his workers that two of his relatives had been arrested and their identity was not clear to him when he had the Conversation with P.W. 7 in the office of P.W. 10 on 19.5.1982. he referred to them in the course of his conversation as his relatives. He has also stated that it is only after P.W. 7 mentioned their names and identity that he new that they were Anil kumar and Satbir Singh and that they were not his relatives. In the subsequent portion of his evidence he has stated that he had never deposed in this Court that P.W. 7 mentioned the name of Anil Kumar to him. In an other portion of his evidence in cross examination in his Court he has admitted that the statement in that conversation that he told P.W. 7 that Anil Kumar and Satbir Singh were his relatives is correct. Thus, it is seen that R.W. 22 has given varying versions on the question whether Anil Kumar and Satbir Singh were his relatives or not though he has admittedly informed P.W. 7 in the course of his conversation with him in the office of P.W. 10 on 19.5.1982 that they were his close relatives. This also shows that the evidence of R.W. 22 is not reliable. The evidence of the private witnesses examined by the appellants to depose about the first part of the incident in the Kalaka polling station is fully corroborated by the evidence of the Presiding Officer (P.W.8) and received ample corroboration from the evidence of P.Ws. 7 and 10. Their evidence is corroborated by the reliable and contemporaneous documentary evidence by way of Exs. P 5, P 6 and the tape record exhibit P.W.7/1 which are unimpeachable and also by what has been stated by P.W. 7 in his report (exhibit P 2) submitted by him to the Government some time after the results of the election held in May 1982 were announced. Therefore, I reject the evidence of the respondent and the other witnesses who have deposed on his side in regard to this part of the incident in the Kalaka polling station and accept the evidence of P.W. 8 and the other witnesses who have deposed about the same on the side of the appellants election petitioners and hold that the appellants have proved satisfactorily and beyond reasonable doubt the first part of the incident in Kalaka polling station, namely that the respondent went armed with a rifle with 25 or 30 companions and entered the polling station with 4 or 5 armed companions and threatened the Presiding Officer (P.W. 8) and others including the polling agents who were present in the polling station with the use of force and got some ballot papers marked in favour of the respondent polled forcibly by his 484 companions in the ballot box and that they left the polling station on seeing the villagers of Kalaka and police personnel coming towards the Kalaka polling station. There is no doubt that there is some discrepancy in the evidence regarding the time of the incident. But it is not a material discrepancy. I shall now consider the evidence relating to the second part of the incident at the Kalaka polling station. Mr. Sibbal did not press the case of the appellants regarding the second part of the incident at the Kalaka polling station in his principal argument but he pressed that portion of the appellants ' case after Mr. Rao contended in the course of his argument that what is alleged to have happened inside the polling station, even if true, will not constitute any corrupt practice but would amount only to an electoral offence. Regarding this part of the case there is the evidence of Tara Chand (P.W. 12), Sheo Chand (P.W. 13), Puran (P.W. 14), Inder Singh (P.W. 16) and Mangal Singh (P.W. 18), on the side of the appellants. Gur Dial who has been referred to in the election petition in this connection was tendered as P.W. 15 for cross examination but he has not been cross examined by the learned counsel for the respondent. P.W. 12 who was one of the electors and the polling agent of Sumitra Bai in the election with which we are concerned at the Kalaka polling station has stated that when he was arranging the electors to stand in a queue for the purpose of voting, the respondent came there with 60 or 70 persons at about 10.30 a.m., The respondent armed with a gun while some of his companions were armed with swords, pistols and sticks. The respondent and his companions threatened PWs. 14,15,17 and others including Kesar Lal who had come to the polling station for the purpose of casting their votes and asked them to go away from there and they consequently ran away from the polling station. Amongst the respondent 's companions who did so P.W. 12 knows only Desh Raj Krishan Lal and Ram Krishan (R.W. 5) of Kalaka and Balbir Singh, Raghubir Singh and Umrao Singh. P.W. 12 has not been seriously examined on this portion of his evidence. What has been elicited in his cross examination is that he was the polling agent of Congress (I) candidates even in the earlier elections and he had convassed for the Congress (I) candidate in the election with which we are concerned for 5 or 10 days and that he reported to the police after the completion of the poll but the police did not send for anybody on that complaint. P.W. 13 has stated that when he was standing in the queue awaiting his turn for casting his vote after reaching Kalaka 485 polling station at about 10 a.m. the respondent came there at about 10 a.m. alongwith 50 or 60 persons in two or three vehicles namely, a truck and two motor cycles. The respondent was armed with a gun while his companions including Desh Raj, Krishan Lal and Ram Krishan (R.W. 5) were armed with swords, rifles and lathis. Lambardar Ishwar (P.W. 16), Puran (P.W. 14), Ram Singh and others were standing in the queue at that time. The respondent threatened P.W. 13 and others saying that they cannot cast their votes and he asked them to go away under threat of being beaten and shot, and out of fear P.W. 13 and others who were standing in the queue ran away. It has been elicited in his cross examination that he came back and cast his vote at 2 p.m. and that he cannot say whether the others who were in the queue and had run away had come again or not for casting their votes. P.W. 14 has stated that he had gone to the polling station at about 10 or 11 a.m. for casting his vote and was standing in the queue alongwith others. The respondent came there armed with a gun, accompanied by 50 or 60 persons including Desh Raj, Krishan Lal, Balbir Singh, Ram Krishan (R.W. 5) and a Sikharmed with a kirpan. The respondent 's companions created a commotion and the respondent threatened P.W. 17 and others who were in the queue to run away on pain of being killed otherwise and out of fear all the persons who were in the queue ran away. In his cross examination he has stated that about 15 or 20 persons were standing in the queue when the respondent and his companions arrived at the polling station and that he cast his vote later at about 3 p.m. after calm prevailed all around. He has denied the suggestion that he had given false evidence being a Congress (I) worker. Ishwar Singh (P.W. 16) the Lambardar of Kalaka village has stated that when he was standing in the queue along with 14 or 15 persons at about 10 or 10.30 a.m. awaiting his turn for casting his vote the respondent came there, accompanied by 3 or 4 persons including Desh Raj and Krishan Lal (R.W. 6) of his village and threatened to kill him and he was hit with the butt of a gun by one of the companions of the respondent and he ran away. He has also stated that P.Ws. 13,14,15 and 17 were also standing in the queue alongwith him and that after he informed the people of the village that the respondent had come and threatened him the people of the village collected and came towards the polling station whereupon respondent and his companions ran away leaving behind two motor cycles by which respondent 's companions had come there. There is abundant evidence on the side of the appellants, 486 referred to above, to show that when P.W. 7 and other officials arrived after the incident in and at the Kalaka polling station they found two motor cycles abandoned at that place. P.W. 16 has denied the suggestion that he has deposed falsely being the supporter of the Congress (I) party. P.W. 18 has stated that when he was inside Kalaka polling station and his particulars were being checked before he could be allowed to vote the respondent came there and that 20 or 25 persons were standing in the queue ran away. He has admitted in his cross examination that he had canvassed for the Congress (I) party but has denied the suggestion that he has always been helping the Congress (I) candidates and has given false evidence on account of that reason. This is all the oral evidence on the side of the appellants regarding tho respondent threatening electors who were standing in the queue at the Kalaka polling station awaiting their turn for casting their votes in the morning on 19.5.1982 and scaring them away under threat of violence against their person and thereby preventing them from exercising their electoral right. The evidence on the side of the respondent has been referred to above in the discussion relating to the first part of the incident at the Kalaka polling station and has been found to be not reliable. It has been found earlier that the evidence of R.W. 22 and his witnesses that R.W. 22 went to Kalaka polling station by a car with some of his men only at about 9 or 9.30 a.m. On 19.5.1982 could not be accepted and that the respondent had received information at about 10.30 a.m. about some Congress (J) workers having been beaten by Congress (I) workers in Kalaka, which message had been flashed by the police wireless and received by P.W. 7 and he went there only thereafter. There is unimpeachable evidence on the side of the appellants to show that when the respondent went inside Kalaka polling station he was in a rage. In these circumstances, it is probable that while in such a mood after receipt of some report that his workers were beaten by Congress (I) workers he went there and asked his men whether they were not ashamed about 2 or 3 of their men of the same village having been beaten and that he thereafter indulged in the acts alleged in the election petition both outside and inside the polling station at Kalaka. P.W. 7 who reached Kalaka polling station soon thereafter received oral report about the detention of a motor cycle belonging to Congress (J) workers. In these circumstances, 1 accept the evidence of PWs. 12, 13, 16 and 18 referred to above and find that the respondent came to the 487 Kalaka polling station at about 10.30 a.m. on 19.5.1982, armed with a rifle and accompanied by his companions some of whom were armed with deadly weapons and that he threatened the electors who were standing in the queue awaiting their turn for casting their votes on account of which they ran away and he had thus interfered with the exercise of the electoral right of those persons. There is some discrepancy in the evidence about the time of arrival of the respondent and his men. It is not a material discrepancy. About the incident at Burthal Jat polling station there is the evidence of P.Ws. 7, 9 and 10 who are official witnesses and of Mahabir Singh (P.W. 26), Dharam Vir (P.W. 27), Thavar Singh S (P.W. 28), Amir Chand (P.W. 29), Surjit Singh (P.W. 30), Raghubir Singh (P.W. 31), Shamsher Singh (P.W. 32), Kishori Lal (P.W. 33), Ram Narain (P.W. 34) and Mam Chand (P.W. 35) on the side of the appellants. There is evidence of Ravi Datt Sharma (R.W. 11), Parbhati (R.W. 12), Ami Lal (R.W. 13), Sheo Chand (R.W. 14) and the respondent (R.W. 22) on the side of the respondent. P.W. 26 of Burthal Jat village was the polling agent of the respondent himself and he had filed the form (exhibit P 16) dated 18.5.1982 for the same. He has stated in his evidence that he had gone to the polling station at 7 a.m. and had not seen any incident at that place. It is clear that P.W. 26 was not prepared to go the whole hog to support the case of the appellants as regards the incident at the Burthal Jat polling station but he has stated in his cross examination that when he went to the polling station he saw Anil Kumar and Satbir Singh were canvassing votes for their candidate and that he also saw a jeep with sticks. The learned trial Judge has stated in his judgment that though the evidence establishes that Anil Kumar and Satbir Singh were canvassing votes for their candidate lt is not known from the evidence as to who their candidate was. But lt is clear from the evidence referred to already showing the concern of the respondent for Anil Kumar and Satbir Singh who had been arrested by the police at the Burthal Jat polling station that the candidate for whom they were canvassing could not have been any other than the respondent. P.W. 26 has admitted in his cross examination that Satbir Singh was known to him previously and that he (P.W. 26) was on duty inside the polling station. P.W. 27 of Burthal Jat village has stated in his evidence that he had gone to Burthal Jat polling station at 8 a.m. for casting his vote in the election held in May, 1982. The 488 respondent came there at about 8 a.m. accompanied by 50 or 60 persons and told his polling agents, Mahabir and Udhey Bhan that he was leaving some persons behind and he asked them to see that no one is permitted to vote for the Congress (I) candidate and that they should ensure to have maximum votes polled in his favour in that polling station. The respondent left behind 15 or 16 persons including Anil Kumar and Satbir Singh, one of them a Sikh armed with a sword and the others with pistol and sticks and the other persons who came with the respondent went away with him. In his cross examination he has stated that the respondent came to Burthal Jat polling station in a car while his companions came by a motor cycle, a jeep and a truck. No doubt he is unable to mention the numbers or colour of the vehicles or the colour of the turban of the respondent 's Sikh companion and he has stated that he cannot identity Satbir Singh. He has denied the suggestion that he is a supporter of Rao Birendra Singh and his sister and that the respondent did not come to Burthal Jat polling station at all on that day. P.W. 28 who belongs to Burthal Jat village has stated in his evidence that after he went to the polling station the respondent came there accompanied 50 or 60 persons at about 8 a.m. The respondent was armed with a small gun while his companions were armed with rifles, ballas and sticks. The respondent called his polling agents Mahabir and Udhey Bhan and told them that they should not permit even a single vote to be cast in favour of the Congress (I) candidate and he was leaving behind Anil Kumar and Satbir Singh alongwith 15 or 20 persons for their help. The other people left behind by the respondent were armed with lathis. He has admitted in his cross examination that he was the polling agent of Sumitra Devi but he has denied the suggestion that the respondent did not go to the polling station at all on that day and that he has given false evidence. P.W. 29 who belongs to Burthal Jat village has stated in his evidence that he went to the polling station at about 8 a.m. for casting his vote in the election with which we are concerned. The respondent accompanied by 50 or 60 persons came there at about 8 a.m. and sent for his polling agents Mahabir and Udhey Bhan and told them they should not permit anyone to vote in favour of the Congress (I) candidate. 27 and 28 and many other persons were present when the respondent said so. The respondent told Mahabir and Udhey Bhan that he was leaving behind Anil Kumar and Satbir Singh for their help alongwith 15 or 20 persons who were found by P.W. 29 to be armed with sticks. P.W. 489 29 was not permitted to cast his vote earlier and he therefore, came again and cast his vote at 3 p.m. He has stated in his cross examination that he returned to his house after 8 a.m. Out of fear and went back to the polling station at 3 p.m. for casting his vote and stayed there till the afternoon. He has denied the suggestion that the respondent did not visit Burthal Jat polling station on that day. P.W. 30 who belongs to Burthal Jat village has stated in his evidence that he started to go to the polling station at about 10.30 a.m. for casting his vote in the election with which we are concerned. When he emerged from his village to proceed to the polling station for casting his vote Anil Kumar and Satbir Singh met him and asked him as to whom he was going to cast his vote and they insisted that he should vote for the respondent. On his refusal to do so Anil Kumar and Satbir Singh threatened P.W. 30 when 2 or 3 persons armed with sticks were present with those two persons and he therefore returned to his house. He went to the polling station at about 3.30 p.m. for casting his vote and learnt that Anil Kumar and Satbir Singh had been arrested by the police. He has stated in his cross examination that he does not know to which place Anil Kumar and Satbir Singh belong and that when he came to the polling station later at about 3 p.m. he was told that those two persons were Anil Kumar and Satbir Singh. He has denied the suggestion that he had been a supporter of Rao Birendra Singh in all the elections and that he has given false evidence. P.W. 31 who belongs to Burthal Jat village has stated in his evidence that when he went to the polling station at 11 a.m. for casting his vote in the election with which we are concerned he was accosted by Anil Kumar and Satbir Singh who were present there alongwith 20 or 30 persons armed with sticks about 25 yards away from the boundary of the polling station and they asked him as to the person for whom he was going to cast his vote and they insisted that he should vote for the respondent and threatened him when he replied that he would vote for the candidate of his own choice. In view of the threat he went back to the village and came later for casting his vote a, about 3. p.m. and learnt that Anil Kumar and Satbir Singh had been taken into custody by the police. He has admitted in his cross examination that he did not complain to anybody about the threat but he has denied the suggestion that he has given false evidence. P.W. 32 is the Sarpanch of Burhtal Jat village. He was admittedly the polling agent of Sumitra Devi. He has stated in 490 his evidence that he went to Burthal Jat polling station for the second time at 2.30 p.m. When he approached the main gate of the polling station he met Anil Kumar and Satbir Singh and they asked him to support the respondent and when he told them that it was open to him to vote for the candidate of his own choice there was an altercation and they started beating him and he was rescued by P.Ws. 33, 35 and others of his village. Meanwhile, an Assistant Sub Inspector of police came there by jeep and they hurled abuses at him even in the presence of the Assistant Sub Inspector of police and thereupon that police officer arrested Anil Kumar and Satbir Singh. He saw a jeep containing sticks parked there, and the people who were in the jeep ran away when the police arrived. He brought these facts to the notice of P.Ws. 7 and 10 when they came there and they took the jeep and the sticks into their custody. Anil Kumar was sitting on the motor cycle while Satbir Singh was standing on the road side when they confronted him as stated above and their motor cycle was taken into custody by the police. In his cross examination lt has been elicited that he did not report in writing to P.Ws. 7 and 10 or get himself medically examined or file any complaint in any Court against Anil Kumar and Satbir Singh. He has denied the suggestion that he had strained relations with Satbir Singh because of his election to a cooperative society and that he has given false evidence because he was the polling agent of Sumitra Devi. P.W. 33 who is the chowkidar of Burthal Jat village has stated in his evidence that when he went to the polling station at about 2.30 or 3 p.m., during the last election to the Haryana Legislative Assembly he saw Anil Kumar and Satbir Singh abusing and beating P.W. 32. P.W. 33 and Lambardar Mam Chand (P.W. 35) and another Lambardar Ram Singh and others of Burthal Jat village separated P.W. 32 from Anil Kumar and Satbir Singh. Meanwhile, an Assistant Sub Inspector of police came there, and about 10 or 15 other persons who were with Anil Kumar and Satbir Singh ran away on seeing the police after leaving behind a jeep and a motorcycle which were taken into custody by the police. P.W. 32 informed P.Ws. 7 and 10 about what happened when they came there some time later. In his cross examination he has denied that P.W. 32 was not present at all at the Burthal Jat polling station but was in his village at the time of the poll. He has denied that he was appointed as Chowkidar by P.W. 32 and has stated that he is Chowkidar of the village since 1982 and that P.W. 32 became Sarpanch of Burthal Jat village only recently. He has denied the suggestion that no incident at all took place in the village and that he had given false evidence under the influence of P.W. 32. 491 P.W.34, the Lambardar of Kakoria village situate close to Burthal Jat village, has stated in his evidence that he went to Burthal Jat polling station at about 2.30 or 3 p.m. for casting his vote in the last election to The Haryana Legislative Assembly and saw Anil Kumar and & Satbir Singh slapping and fisting P.W. 32. He and P.W. 35 and others intervened and separated them. Some time thereafter a Sub Inspector of police came and saw Anil Kumar and Satbir Singh exchanging abuses with P.W. 32 and he arrested those two persons. P.Ws. 7 and 10 who came there later talked with Anil Kumar and Satbir Singh. The police took a motor cycle and a jeep which was with Anil Kumar and Satbir Singh into their custody. In his cross examination he has stated that he had not meet Anil Kumar and Satbir Singh previously and that he does not know the numbers of the jeep and the motor cycle. He has denied the suggestion that he had supported Rao Birendra Singh in the election to Parliament in 1980 and did not go to Burthal Jat village at all during the election in question and has deposed falsely under the influence of the appellants. PW 35 son of Umrao Singh and Lambardar of Burthal Jat village was the polling agent of the Bhartiya Janata Party candidate in the last election of the Haryana Legislative Assembly. He has stated that after he reached Burthal Jat polling station at 7 a.m. the respondent came there at about 8 a.m. accompanied by 50 or 60 persons and called his polling agents and told them that they should see to it that the Congress (I) candidate does not get votes and he added that he was leaving Anil Kumar and Satbir Singh and 15 other persons for their help. At about 2.30 p.m. PW 35 saw Anil Kumar and Satbir Singh beating PW 32 of his village and thereupon he and PWs. 33 and 34 separated them. Meanwhile, an Assistant sub Inspector of police took Anil Kumar and Satbir Singh into custody, and 10 or 15 persons who were left behind by the respondent fled on seeing the police leaving behind a motorcycle and a jeep containing sticks and other weapons. 7 and 10 came there some time later and the motor cycle and the jeep were taken into custody by the police. In his cross examination he has denied that Ex. P 9 to which reference would be made a little later contains his signature and he has stated that there are two other persons of his name and one of them is the son of Umrao Singh. He has further stated in his cross examination that the respondent told Anil Kumar and Satbir Singh that they should see to it that no other candidate except himself gets votes in that polling station. He has denied that he had made a false statement before PWs 7 and 10 and that he has given false evidence being a member of the opposite faction. 492 The Deputy Commissioner and District Election Officer (PW.7) has stated in his evidence that on the. day of poll he proceeded from Kalaka polling station to Burhtal Jat polling station pursuant to the receipt of` a complaint that a Congress(J) worker was attacked by the villagers of Burthal Jat. The polling officer of Burthal Jat polling station told him when he visited that place that nothing had happened inside the polling station but some of the officers in the polling station told him that there was some incidents outside the polling station though they were not sure about the identity of the persons responsible for the same. Some villages told PW 7 that Congress (J) workers had come in a jeep and tried to create trouble and that one of them ran away while the police had detained two of those persons. PW 7 interrogated those two persons and they then told him that they had nothing to do with the jeep whose number he has recorded in the tape exhibit PW 7/1. PW 7 found some sticks in the jeep and he asked the police to take the jeep and the sticks into their custody. Anil Kumar and Satbir Singh who had been attacked by the villagers were found detained by the police. The Sarpanch of Burthal Jat village (PW 32) made a complaint to him outside the Burthal Jat polling station. PW 7 recorded the conversation which he had with the Presiding Officer at the Burthal Jat polling station but some portion thereof was erased by his own voice by inadvertence. The respondent met PW 7 at about 7 p.m. in the office of PW 10 and informed PW 7 about some incidents which had taken place during the day and complained to him about them. The conversation which he had with the respondent at that time was recorded simultaneously in the tape (exhibit PW 7/1) and he later reported to the Secretary to the Government about the complaint which the respondent made to him against the Superintendent of Police. His stenographer prepared the transcript Ex. P 1 in his office, most of it under his supervision and he was temporarily absent to attend to some other work, and he compared it with the original tape and found it to be correct. The tape, tape recorder and transcript remained with him throughout and were not deposited by him in the record room and there was no possibility of tampering. He had not created evidence in the form of the tape at the instance of Rao Birendra Singh to harm the respondent. P 2 is the copy of the report which he submitted about the incidents which took place on 19.5.1982 as had come to his notice. In his report Ex. P 2 sent to the Secretary to the Government, PW 7 has stated inter alia that when he went to Burthal Jat polling station from Kalaka polling station he was told that a few workers of the Congress (J) candidate had been detained by the villagers and he had conversation with the Presiding Officer and 493 the villagers and found a jeep with about 15 or 20 lathis in it and directed the police to take the jeep with the lathis as also the two workers of the Congress (J) candidate who were standing near the jeep into custody. The Returning Officer and Sub Divisional Officer, Rewari (PW 10) who went to Burthal Jat polling station along with PW 7 has stated in his evidence that he saw Anil Kumar and Satbir Singh surrounded by the people of that village and a jeep containing some sticks parked there and that Anil Kumar and Satbir Singh and the jeep were taken into custody by the police under the orders of PW 7. He has further stated that Ex. P 9 was handed over to him by one Mam Chand of Burthal Jat village on that day. As stated earlier PW 35 who is Mam Chand son of Umrao Singh of Burthal Jat village has disowned exhibit In his cross examination PW 10 has denied that he had discriminated between the candidates while disposing of the complaints about Kalaka and Burthal Jat polling stations. exhibit P 9 addressed by Mam Chand to PW 10 is to the effect that the respondent pointed out his gun at the Presiding Officer and other persons in Burthal Jat polling station after he came there at about 1.30 p.m. along with 65 or 70 persons and he ordered for the ballot papers being marked with the symbol of scales and put into ballot boxes and to finish off anybody who interferes and that the whole village was terrorised and they were thereby prevented from exercising their electoral right. There is no specific reference in this report to Anil Kumar and Satbir Singh or to their arrest by the police at the instance of PW 7. exhibit P 9 which was found in the file summoned from the office of the Sub Divisional Officer, Rewari had been marked only through PW 10 and has been disowned by PW 35 who is no doubt Mam Chand son of Umrao Singh. For want of proof exhibit P 9 could not be taken into consideration, but the learned Trial Judge has relied very heavily upon that document for disbelieving the appellants ' case regarding the incident at Burthal Jat polling station. He was not justified in doing so. The Assistant Sub Inspector of police (PW 9) who had been posted at Sadar Rewari police station has stated in his evidence that at the instance of Assistant Sub Inspector Jagan Nath who returned to the police station at 3.30 p.m. on 19.5.1982 he recorded a Daily Diary Report of which exhibit P 8 is a copy and that Ex. P 8 is a correct copy of the original report. It is mentioned in exhibit P 8 that Anil Kumar and Satbir Singh of Kutubpur and Dulana respectively were abusing and beating Sarpanch Shamsher Singh (PW 32) whereupon an Assistant Sub Inspector of police 494 along with other intervened and separated them, that Anil Kumar and Satbir Singh were creating a situation of breach of peace ant were therefore taken into police custody and that the jeep bearing registration number DED 3203 was also taken into police custody. PW 9 has not been cross examined regarding exhibit exhibit P 28 is a copy of the judgment in the case registered in the concerned FIR No.104 of 1982 dated 19.5.1982 under sections 107 and 151 of Code of Criminal Procedure against Anil Kumar and Satbir Singh. It is seen from that judgment that the Magistrate after considering the circumstances of the case and hearing Anil Kumar and Satbir Singh had come to the conclusion that the fight took place between those two accused and the Sarpanch Shamsher Singh in connection with polling of votes and that the incident pursuant to which the fight took place was over and the accused persons belonged to different villages and there is no likelihood of breach of the peace and therefore there is no necessity to take any further action against them and he accordingly discharged them. P 27 is a certified copy of the calender dated 19.5.1982 relation to that criminal case registered by the police. P 27 and P 28 were tendered by the learned counsel who appeared for the respondent in the trial court. That calender contains allegations to the effect that the Assistant Sub Inspector of police with the help of Kalyan Singh separated PW 32 from Anil Kumar and Satbir Singh and stopped the fighting, that the complaint of PW 32 was that when he was going to cast his vote two persons riding on a motor cycle came there and asked him to vote in favour of the respondent, that when he told them that he would cast his vote for the candidate of his own choice they assaulted him with danda and gave him slaps, and that during the investigation the Assistant Sub Inspector of police found that those two persons were present there for procuring votes for the respondent. It was not disputed by Mr. Rao in this Court that though the complaint on the basis of which FIR No. 104 of 1982 had been registered may not be admissible in evidence in the absence of any foundation for letting in secondary evidence FIR No. 104 of 1982 registered by PW 9 would be admissible in evidence. It shows that on the complaint to the effect that Anil Kumar and Satbir Singh were abusing and beating PW 32 and they were separated from PW 32 by and Assistant Sub Inspector of police and others a case under sections 107 and 151 of the Code of Criminal Procedure was registered against them and a jeep bearing number DED 3203 was also taken into custody by the police on 19.5.1982, and it is admissible in evidence. The FIR corroborates the evidence of PW 32 and of some of the other witnesses referred to above who have deposed about this incident. 495 On the other hand, RW 11 a lecturer in a Higher Secondary School at Rewari who was a polling office at Burthal Jat polling station during the election with which we are concerned has stated in his evidence that no untoward incident of any type took place and that the respondent did not visit that polling station on that day. In view of the documentary evidence and the other oral evidence referred to above which show that on incident did take place outside Burthal Jat polling station and that a jeep containing some lathis as also Anil Kumar and & Satbir Singh were taken into custody and those two persons were prosecuted in a case registered against them under section 107 and 151 of the Code of Criminal Procedure it is not possible to accept the evidence of RW 11 that no incident took place and that the respondent did not go to Burthal Jat polling station at all on 19.5.1982. It must also be noted that KW 11 has admitted in his cross examination that he could not have known that happened outside the polling station because he was inside. RW 12 who cast his vote in Burthal Jat polling station at 8 a.m. claims to have remained at the polling station till about 1.30 or 2 p.m. and he has stated that neither the respondent nor anyone on his behalf came to the polling station and there was no quarrel inside or near the polling station so long as he remained there. But in his examination in chief itself he has admitted that PW 32 was standing about 80 kadams away from the polling station with some people and he heard some altercation between them and that while the altercation was going on some police personnel arrived at the spot and removed two persons who were not known to him. He has further stated in his cross examination that there was a jeep a, some distance away from where the Sarpanch (PW 32) and the other persons had altercation. He has no doubt denied the suggestion that 10 or 15 other persons were with those two unknown persons and they were armed with sticks, that the respondent came there and left those 15 or 20 persons along with those two unknown persons and that those two unknown persons threatened many people as a result of which they could not cast their votes. RW 13 who went to Burthal Jat polling station at about 10.45 a.m. for casting his vote and cast his vote at that time claims to have stayed there along with some villagers until about 4 p.m. Though he has stated in a portion of his examination in chief that no incident took place with in or outside the polling station 80 long as he remained where he had admitted in his examination in chief itself that he saw PW 32 having a dispute with two unknown persons about 120 kadams away as also a jeep parked 80 kadams away from the polling station and that he heard people saying that the Superintend of Police removed these two 496 unknown persons. No doubt, he has denied that Anil Kumar and Satbir Singh were threatening the electors in the village and that he has given false evidence on account of pressure from the respondent. RW 14 who cast his vote at Burthal Jat polling station at 7.30 a.m. claims to have thereafter set under a tree by the road side about half a furlong away from the polling station. He has stated that he did not see the respondent passing by that road in the direction of Burthal Jat village. His evidence is not helpful to either of the parties as he has merely stated that he had not seen the respondent passing by that road in the direction of Burthal Jat village. It is not possible that he would have closely looked into each and every vehicle which passed by that road to notice the respondent who appears to have been moving on that day by his car. RW 22 has stated that he did not go to Burthal Jat village or send anyone of his workers to that village on 19.5.1982 but he remained in his house throughout after he returned from kalaka on that day. It is not possible to accept his evidence that he had not sent any of his workers to Burthal Jat village on the date of poll as it is unlikely that the candidate contesting in the election would not have sent any of his workers to that polling station. It is seen from the aforesaid tape recorded conversation between PW 7 and RW 22 in the office of PW 10 at about 7 or 7.30 p.m. On 19.5.1982 that the respondent expressed his anxiety to get his relatives Anil Kumar and Satbir Singh who had been arrested on that day by the police released and that his evidence that Anil Kumar and Satbir Singh were not his relatives at all is totally unreliable for reasons mentioned above in the discussion of the evidence relating to the incident at Kalaka polling station. The evidence of R.W. 22 as a whole is unreliable for the reasons already mentioned above. Mr. Sibbal did not reply upon any portion of the tape relating to the conversation in Burthal Jat polling station but he has relied for the purpose of the appellants ' case in relation to Burthal Jat polling station upon that portion of the tape which relates to the conversation between P.W. 7 and K.W. 22 in the office of P.W. 10 at about 7 or 7.30 p.m. On 19.5.1982. The fact that a portion of the tape recorded conversation in Burthal Jat polling station got erased by P.W.7 's own voice due to inadvertence is no reason for rejecting the remaining portion of the tape. It was demonstrated in this Court that the tape recorded has only one knob for operating the recorder for three purposes, namely, recording, playing and rewinding. If by mistake the knob is pushed for rewinding and thereafter for recording at a particular point it is probable that what had been 497 recorded earlier gets erased by the time the mistake in operating A the knob is noticed. Therefore, there is no reason to reject the evidence of P.W.7 that a portion of the tape recorded conversation in Burthal Jat polling station got erased by his own voice due to inadvertence. The oral and documentary evidence regarding the incident at Burthal Jat polling station let in by the appellants receives corroboration to a certain extent from the evidence of some of the respondent 's own witnesses. As stated earlier, R.W. 12 has admitted that P.W. 32 who was standing about 80 kadams away from the polling station was having an altercation with some people and that even when the altercation was going on some police personnel arrived there and they took into custody two persons and there was also a jeep at some distance away from the place where P.W. 32 and others were having an altercation. Even R.W. 13 has stated that P.W. 32 was having a dispute with two unknown persons about 120 kadams away from the polling station and soon thereafter he heard people saying that the Superintendent of Police took away those two unknown persons. The names of Anil Kumar and Satbir Singh had been specifically and clearly mentioned in the election petition in regard to the incident at the Burthal Jat polling station and they have been alleged to be the relatives of the respondent. The respondent has not specifically denied the said allegation in his written statement but during the trial he attempted to make it appear that they were not related to him. However, it has been found above that they are related to him. Still the respondent who had shown his serious concern to get them released from police custody on 19.5.1982 has not called those two persons as his witnesses to rebut the case of the appellants. Therefore, as observed in Chenna Reddy vs B.C. Rao (supra) in these circumstances an adverse inference has to be drawn against the respondent who has not called those two persons as his witnesses though their evidence should be available to him in support of his contention regarding the incident at Burthal Jat polling station. Therefore, I accept the oral and documentary evidence let in by the appellants as referred to above as being reliable and reject the evidence of the respondent and his witnesses in regard to the incident at Burthal Jat polling station and find that at the instance of the respondent his relatives Anil Kumar and Satbir Singh who were left behind by him along with 15 or 20 persons with a jeep containing sticks interfered with the exercise of the electoral right of P.W. 32 and others as alleged in the election petition as a result of which they had to go away from the queue in which 498 they were standing awaiting their turn for casting their votes though they had subsequently come to the polling station and cast their votes. Now I shall consider the respondent 's contention raised in the written statement that the allegation that the respondent and some of his armed companions entered the polling station and brandished their guns at the Presiding Officer and ordered the other polling staff and polling agents of various candidates to stand still does not constitute any corrupt practice and that the allegation that the polling agents Amar Singh and Suraj Bhan were threatened and turned out of the polling station does not constitute corrupt practice as they are not alleged to be electors of Kalaka village. Mr. Rao submitted that these acts, even if proved, would amount to only electoral offences under section 136 (b) (f) and (g) read with section 8 and would not constitute corrupt practice under section 123(2) read with section 79(d) of the Act. In support of his contention Mr. Rao invited this Court 's attention to the decision in Nagendra Mahto vs The State (supra) where it has been held, as stated earlier, that the L) criminal revision petitioner before the High Court who had insisted upon going into the room where the ballot papers were kept though the Presiding Officer had warned him to go out of the room and also attempted to put some ballot papers into the box of one Nitai Singh Sardar was rightly convicted under section 131 (1) (b) and section 136 (L) (f) of the Act. On the other hand, Mr. Sibbal submitted that casting bogus votes forcibly would amount to corn pt practice as it would indirectly interfere with the electoral right of the voters whose ballot papers have been so polled, whether they had intended to come to the polling station and exercise their right to vote or had intended otherwise. In this connection, he invited this Court 's attention the decision in Ram Dial vs Sant Lal and Others (supra) where, as extracted above, this Court has held that while the law in England laid emphasis on the usual aspect of the exercise of undue influence, under the Indian law what is material was not the actual effect produced but the doing of such acts as were calculated to interfere with the free exercise of any electoral right. According to section 79(d) of the Act 'electoral right ' means the right of a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate, or to vote or refrain from voting at an election. Section 123 (2) of the Act lays down that "undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or 499 his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right . . shall be deemed to be corrupt practice for the purpose of the Act. What constitute electoral offences are detailed in sections 125 to 136 which fall under Chapter III of the Act. S.125 relates to promoting enmity between classes in connection with election. S.126 relates to prohibition of public meetings on the day preceding the election day and on the election day. S.127 relates to disturbances at election meetings. S.127A relates to restrictions on the printing of pamphlets, posters etc. S.128 relates to maintenance of secrecy of voting. S.129 relates to prohibition of Officers etc., at elections acting for candidates or to influence voting. S.130 relates to prohibition of conversing in or near polling stations. S.131 provides for penalty for disorderly conduct in or near polling stations. S.132 provides for penalty for misconduct at the polling station. S.133 provides for penalty for illegal hiring or procuring of conveyances at elections. S.134 relates to breaches of official duty in connection with elections. S.134A prohibits Government servants from acting as election agent, polling agent or counting agent. S.135 relates to removal of ballot papers from polling station. S.135 relates to other offence and penalties therefore, namely, fraudulent defacement or fraudulent destruction of any nomination paper; fraudulent defacement, destruction or removal of any list, notice or other document affixed by or under the authority of the returning officer; fraudulent defacements fraudulent destruction of any ballot paper or the official mark of any ballot paper or any declaration of identity or official envelope used in connection with voting by postal ballot; supply of any ballot paper to any person or being in possession of any ballot paper without due authority, fraudulently putting into any ballot box anything other than the ballot paper which the person putting the same is authorised to put in; destroying, opening or otherwise interfering with any ballot paper; and fradulently or without due authority attempting to do any of the foregoing acts or wilfully aiding and abetting the doing of any such acts. It would appear that forcible marking of ballot papers removed from polling officers in the polling station, marking the same in favour of any candidate and putting the them in the ballot box is not one of the offences mentioned in them. Therefore, as rightly submitted by Mr. Sibbal it cannot be contended that in this country forcible polling of bogus votes, as mentioned above, is neither a corrupt practice nor an electoral offence. I agree with Mr. 500 Sibbal and hold that forcible polling of bogus votes in the circumstances and manner found in this case would constitute indirect interference with the electoral right of the concerned electors whether they be persons who had decided to cast their votes in that election or those who had decided not to do so. It is significant, in this connection, to note that after having been informed about the forcible polling of bogus votes by the respondent 's men at the Kalaka polling station P.W. 7 had instructed the polling staff to issue tendered ballot papers to any elector whose ballot paper had already been forcibly polled who might come for the purpose of exercising his right. I have referred to and discussed the evidence somewhat in detail in view of the fact that I have disagreed not only with the learned Trial Judge but also with respect with my learned brother Fazal Ali, J. with whom my learned brother Mukharji, J. has agree. The respondent in this case had managed to keep away from the Court material evidence by way of the original report of the Presiding Officer, a copy of which is contained in exhibit P 6, by filing C.M.P.31 (E) of 1983 in the trial Court. He had cited the Observer (R.W. 20) as his witness to depose about his case regarding the allegations made by the appellants in paras 9 to 12 of the election petition regarding the corrupt practices. But he did not examine R.W. 20 for that purpose and had called him only for the purpose of production of some record without any oath being administered to him though in his tape recorded conversation with P.W. 7 in the office of P.W. 10 on 19.5.1982 referred to above, he had admittedly asked P.W. 7 to get ever thing noted by P.W. 20 who was present there at that time. He had thus denied to the appellants the opportunity to cross examine R.W. 20. The respondent had come forward with a new case of alleged booth capturing and forcible polling of bogus votes by Ajit Singh in the Kalaka polling station after the appellants had completed the examination of their witnesses to whom no such suggestion was made in the cross examination. He had repeatedly denied in his evidence that Anil Kumar and Satbir Singh who had been arrested by the police at the Burthal Jat polling station on 19.5.1982 were his relatives though in his tape recorded conversation referred to above he had informed P.W. 7 that they were his close relatives and he had shown his anxiety to get them released from police custody forthwith. He had neither cited them nor called them as his witnesses though they would have been material witnesses in regard to the incident at the Burthal Jat polling station. The respondent 's evidence as R.W. 22 has been found to be wholly unreliable for reasons already mentioned. In 501 these circumstances what my learned brother Fazal Ali, J. has mentioned in the first para of his judgment barring the first sentence in that para would apply to the respondent alone. An election petition seeking a declaration that the election of the returned candidate is void under section 100 (1)(b) on account of corrupt practice as per section 132(2) of the Act, as in the present case, is a civil proceeding though the standard or degree of proof required is as in a criminal case. In any case, two views are not possible in the present case where the appellants have proved beyond all reasonable doubt that the respondent has committed the corrupt practices alleged in at the Kalaka and Burthal Jat polling stations. No lenient view can be taken in this case merely because the election petition is directed against the returned candidate for, only in the case of a returned candidate Parliament has provided, in the interest of purity in elections, for serious consequences of not only (1) declaring the election void under section 100 (1) (b) but also (2) disqualification under section 8A of the Act by the President for a period not exceeding six years when a finding of corrupt practice is recorded against a returned candidate. For all the reasons mentioned above I hold that the appellants have succeeded in proving the two instances of corrupt practice pressed in this Court and are entitled to succeed in this appeal. The appeal is accordingly allowed with costs of Rs. 5,000 payable by the respondent returned candidate. SABYASACHI MUKHARJI, J. Having had the advantage of reading the judgment of my learned brother Fazal Ali,J., I agree with the reasoning and the conclusions arrived at by my learned brother. I would, however, like to express my views on following four points involved in the appeal: firstly, this being appeal under section 116A of the Representation of the People Act, 1951 which is in the nature of first appeal to this Court, how should the appraisement of evidence by the trial Court be reviewed by this Court in this appeal, secondly, subject to what safeguards the tape recorded evidence should be accepted, thirdly, this being election petition involving corrupt practice, the nature of evidence required to proved by a contesting party in order to succeed, and fourthly, whether bogus votes or booth capturing itself is a corrupt practice because it deprives other genuine voters in general of the right to vote or the right to abstain from voting. In this case, evidence of tape recording made by the Deputy Commissioner, Shri Bhaskaran was produced before the High Court. In this tape recorded evidence the Deputy Commissioner has 502 recorded the incidents on the date of polling at several booths but reliance was placed only on the evidence relating to two booths namely Kalaka and Burthal Jat. For the reasons recorded in his judgment, the learned trial judge has not accepted the tape recorded evidence. The tape record purports to record statements made by some persons including polling agent, polling officer Col. Ram Singh and Deputy commissioner him elf. About the acceptance and reliability of evidence on tape recording, one should proceed very cautiously. In this connection on the analogy of mutilated document if the tape recording is not coherent or distinct or clear, this should not be relied upon. See in this connection the observations in American Jurisprudence Vol. 30 page 939. In the case of R. vs Maqsud Ali, [1965] 2 All E.R. page 464 in respect of criminal trial the question was considered by the Court of Appeal in England. A tape recording, it was held, was admissible in evidence provided the accuracy of the recording car, be proved and the voices recorded can be properly identified and that the evidence is relevant and otherwise admissible. The Court, however, observed that such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There cannot, however, be any question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged. It was further observed that provided the jury was guided by what they hear themselves from the tape recording and on that they base their ultimate decision, there is no objection to a copy of the transcript of a tape recording, properly proved, being put before them. lt is not necessary to set out the particular facts of that case. It may be noted, however, that Marshall, J. had observed at pages 469 70 of the report as follows: "It is next said that the recording was a bad one, overlaid in places by street and other noises. This obviously was so and as a result, much of the conversation was inaudible or undecipherable. In so far as that was so, much of the conversation was never transcribed, but there still remained much that was transcribed, and the learned judge after full argument ruled that what was deciphered should be left for the jury to assess. We think that he was right. Lastly, it was said that the difficulties of language were such as to make any transcription unreliable and misleading. This argument the learned judge treated 503 with great care and circumspection. Th: recorded conversation was in Punjabi dialect confined to a particular area of Pakistan. He was told that there were many such dialects in which similar words differed in or had more than one meaning, that the meaning of sentences often depended on the order of the words, that pronouns were matters of inference and R not represented by actual words. Often only parts of sentences were decipherable owing to the other extraneous noises. He decided, before admitting the evidence to have a trial within a trial in which translators were called by both aids which, I think I am right in saying, lasted 2 1/2 days. All matters were canvassed tn very great detail. He discovered that there were certain passages common to translations and in the end, he decided that it was a question which should be left to the jury but he did not think this evidence was so unsatisfactory that I should withdraw it from the jury. " It has to be borne in mind that in England and in America, the mechanism of tape recording is well advanced. In this country, it is not so as yet. Furthermore the infirmities, some of which have been noted by Marshall, J. of tape recording, are more evident in the instant case before us. In R. vs Robson. [1972] 2 All E.R. page 699 the accused was charged inter alia, with corruption. The prosecution ought to put in evidence certain tape recordings. The defence contended that these were not admissible because (i) lt had not been shown that these were the originals or in the absence of the originals true copies of them, and (11) they were misleading and should not be relied on because in many places these were unintelligible and of poor quality and their potential prejudicial effect would therefore outweigh the evidentiary value claimed for these. It was held by the Court as follows: "The recordings were admissible for the following reasons (1) the Court was required to do no more than satisfy itself that a prima facie case of originality had been made out by evidence which defined and described the provenance and history of the recordings up to the moment of production in Court and had not been 504 disturbed on cross examination; in the circumstances that requirement had been fulfilled (see p 701 f and p 702 a, post). (ii) the Court was satisfied, on the balance of probabilities, that the recordings were original and authentic and their quality was adequate to enable the Jury to form a fair assessment of the conversations recorded in them and should not be excluded on that account (see p 703 f and 8, post). " In the instant case, the tape recordings, as we have heard, were misleading and could not be relied on because in most places they were unintelligible and of poor quality and of no use therefore their potential prejudicial effect outweighs the evidentiary value of these recordings. This Court had also considered this question in Shri N.Sri Rama Reddy Etc vs Shri V.V. Giri. [1971] 1 SCR page 399. There in case of an election trial it was held by this Court that the previous statement made by a person and recorded on tape, could be used not only to corroborate the evidence given by the witness in Court but also to contradict his evidence given before the court, as well as to test the veracity of the witness ant also to impeach his impartiality. Apart from being used for corroboration, the evidence was admissible in respect of the other three matters under sections 146 (1), 153, Exception (2) and section 155 (3) of the Evidence Act. This Court observed after referring to some cases that two propositions are clear that (1) tape recorded conversation is admissible in evidence (2) if it contains the previous statement mate by a witness, it may be used to contradict his evidence given before the Court. But the Court cautioned itself at page 411 that though tape recording may be admissible what weight it has to be put to such evidence depended upon the facts and circumstances and other relevant factors. In the case of R.M. Malkani vs State of Maharashtra [1973] 2 S.C.R. page 417. This Court observed that tape recorded conversation was admissible provided firstly that the conversation was relevant to the matters in issue secondly, there was identification of the voice and thirdly, the accuracy to tape recorded conversation has to be proved by eliminating the possibility of erasing the tape. 505 In the facts of the present case, however, the dangers noted A by this Court were present. So therefore though in an appropriate case it may be possible to rely upon tape recorded conversation, in the facts of this case and for the infirmities in the tape recorded evidence as pointed out before, this cannot be relied in the instant case. On the aspect of the nature of evidence, the question here is not who is a saint or who is a sinner. It has to be borne in mind that this is a quasi criminal proceeding. It has been so held in numerous decisions. "Quasi means `asif ', 'similar to '. The question of nature of evidence was rather exhaustively examined by a decision of this Court in M. Chenna Reddy vs V. Ramachandra Rao and Anr., [1972] E.L.R. Vol. 40 page 390. mere after discussing the evidence, G.K. Mitter, J. speaking for this Court reiterated the nature of evidence at pages 414 415 thus: "This court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in self defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. m e trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practices depends on the oral testimony of witnesses The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the Court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal, a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit 506 were being investigated into. The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian evidence Act. Inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version. In the case of Ram Sharan Yadav vs Thakur Muneshwar Nath Singh and Others [1984] S.C.C. page 649 this Court observed that the charge of a corrupt practice is in the nature of a criminal charge which if proved, entails a very heavy penalty in the form of disqualification. Therefore, a very cautious approach must be made in order to prove the charge of undue influence levelled by the defeated candidate. It is for the party who sets up the plea of 'undue influence ' to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case. However, while insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it well nigh impossible to prove an allegation of corrupt practice. See also in this connection the observations in the case of Sardar Harcharan Singh vs Sardar Sajjan Singh & Ors. Civil Appeal No. 3419 (NCE) of 1981 Judgment delivered on 29th November, 1984. Judged by the aforesaid standard, for the infirmities mentioned in the judgment of my learned brother, it cannot be said that the appellants have proved their case to the extent required to succeed. While in a first appeal, the entire evidence can be reviewed by the appellate Court, and this being the first appeal under Section 116A of the Representation of the People Act, one must, however, always bear in mind that where the question is whether the oral testimony should be believed or not, the views of the trial judge should not be lightly brushed aside where the trial judge has to advantage of judging the manner and demeanour of the witness which advantage the appellate Court does not enjoy, This is a limitation on all appellate Courts whether be it the first appeal or second appeal. In believing the oral testimony of a witness, the view of the judge who hag the advantage of watching the demeanour and the conduct of the witness cannot be lost sight 507 of. See the observations of this Court in Moti Lal vs Chandra Pratap Tiwari & Ora. AIR 1975 SC page 1178 see also the observations of this Court in Raghuvir Singh vs Raghubir Singh Kushwaha. AIR 1970 S.C. page 442. In view of the nature of the evidence on record, we find no reason to disagree with the appraisement of the evidence by the learned trial judge. Last point indicated above is interesting as was sought to be raised by Mr. Sibbal, because preventing a person from casting his vote or causing a bogus vote purpoting to be a vote of some one other than the genuine voter would be a serious interference with the electoral process, as grave as preventing a person from voting. Right to abstain from voting is recognised in our system of election. But in view of the evidence in this case, the point need not be pursued further. For the reasons mentioned before, I agree that the appeal be dismissed. ORDER In accordance with the decision of the majority, the appeal is dismissed without any order as to costs.

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. 219 of 1970. Appeal by Special Leave from the Judgment and Decree dated 30 4 1969 of the Rajasthan High Court in section B. Civil Regular Second Appeal No. 569/65. section M. Jain, section K. Jain and Indira Makwana for the Appellant. R. K. Garg, V. J. Francis and Sushil K. Jain for the Respondent. The Judgment of the Court was delivered by CHANDRACHUD, C.J. A deed of adoption is alleged to have been executed by one Mansaram on August 10, 1944, stating that he had adopted the appellant, Madan Lal. A suit to challenge that deed was dismissed by the trial Court. The learned District Judge, Jodhpur, confirmed the judgment of the trial Court but in second appeal No. 569 of 1965, a learned single Judge of the Rajasthan High Court set aside the judgment of the Courts below and decreed the suit. By this appeal by special leave, the defendant questions the correctness of the High Court 's judgment dated April 30, 1969. The principal point of controversy involved in the suit was whether Mansaram was in a fit state of mind when he executed the deed of adoption. This, substantially, is a question of fact but we find that the trial Court and the District Court wholly ignored the weight of preponderating circumstances on the record and allowed their judgments to be influenced by inconsequential matters. The High Court was, therefore, justified in reappreciating the evidence and in coming to its own independent conclusion on the basis of that evidence. 596 Earlier, Mansaram had allegedly executed another deed of adoption in favour of the appellant Madan Lal but the Registrar refused to register that deed by his order Exhibit 2 dated January 29, 1940 on the ground that Mansaram, who presented the deed for registration, appeared to him to be a lunatic. The matter was remanded by the Mahakma Khas to the Registrar with a direction that Mansaram be recalled and the question whether the deed should be registered decided afresh. The Registrar thereupon examined Mansaram and passed an order Exhibit 3 dated July 14, 1940, stating that Mansaram, no doubt, appeared to be a little better but that, while at one time he talked like a same man, he would, on occasions, fall into a reverie and was completely lost to the world. The Registrar noted that Mansaram was unable to understand the simplest questions put to him, that he took an unreasonably long time to answer those questions and gave wholly incorrect answers to elementary questions like whom he had adopted and whether he himself was married or unmarried. The Registrar, therefore, reaffirmed his pre remand view and refused to register the deed. A suit was then brought by the appellant on September 11, 1940 for the compulsory registration of the aforesaid deed of adoption. The Court of Joint Kotwal (No. 2), in which the suit was filed, was, concededly, a regular Civil Court of competent jurisdiction at the relevant time. A written statement was filed in that suit by one Shri Raj Narain, advocate, on behalf of Mansaram admitting the appellant 's claim that he was validly adopted by Mansaram. The authority of that admission having been challenged, the learned Chief Justice of the High Court, sitting in revision, made an order Exhibit 15 dated August 16, 1941, stating that the matter did not appear to him to be "absolutely clear". He observed that Mansaram claimed to be an M.A. in English though, in fact, he did not understand a simple sentence in English. The learned Chief Justice, therefore, examined the matter further and made an order Exhibit 18 dated December 4, 1941, directing that an issue be framed on the question whether Mansaram was of sound mind and was capable of protecting his own interest in the suit. After the remand, the learned Joint Kotwal recorded the statement of Mansaram on December 14, 1943. That statement is at Exhibit 5. Mansaram 's wit and wisdom is reflected in a part of that statement wherein he said that he was 65 years of age and that his mother was about 50 years old. When the fundamental absurdity of this hypothesis was pointed out to him, he made a feeble attempt to correct himself by saying that his mother may be of 70 years of age. In fact, the record of the evidence given by Mansaram before the Joint Kotwal shows that he gave, at one time, an impression 597 that his mother was alive and was living with him although, admittedly, she had died long since. In the circumstances, the Joint Kotwal passed an order on January 4, 1944 (which was the only order to pass) that he had no hesitation in holding that Mansaram was not of sound mind and was incapable of protecting his interest in the suit. The learned Judge formed the impression, which he recorded in the proceedings, that Mansaram was tutored to make certain statements on the questions arising in the suit and that he looked like a "frightened animal". The deed of adoption dated August 10, 1944, which is impugned in the present suit, contains a bald assertion that Mansaram had taken the appellant Madan Lal in adoption. But, significantly, the deed does not mention the year, the date or the place of adoption. It does not either mention, as adoption deeds generally mention, the names of persons who were present at the time of adoption. In fact, on the record of this case there is no evidence whatsoever to show when and where the adoption took place and even whether the necessary ceremonies were performed. We cannot accept the submission, though strongly pressed upon us by Shri Sobhagmal Jain who appears on behalf of the appellant, that what the plaintiff had challenged in the suit was the validity of the deed of adoption and not the factum of adoption. On a broad and careful reading of the plaint we are left in no doubt that the real drift of the plaint is that Mansaram was not in a fit state of mind at the relevant time, that no adoption could have taken place in fact and that, therefore, the deed of adoption cannot confer on the appellant the rights of an adopted son. Relying on the evidence of Somdatt D.W. 2, Shri Raj Narain D.W. 6, a lawyer, Moolraj D.W. 9 and Dr. Umraomal, D.W. 10, Shri Sobhagmal Jain argues that Mansaram was in a fit state of mind when he executed the impugned deed. We are unable to accept this submission. Indeed, the halting evidence of Dr. Umraomal itself throws a cloud on the mental capacity of Mansaram and renders it improbable that he could perform or authorise the performance of the act of adoption or that he could have executed the deed of adoption with an understanding mind. His mental faculties were evidently too enfeebled to enable him to enter into a transaction which, in law has a religious cum spiritual significance and which, in a worldly way, affects valuable rights to property. The High Court has examined every facet of the evidence with great care and we are in agreement with the learned Judge that Mansaram was not in a fit state of mind when he executed the deed of adoption. He could 598 not have, possibly, understood the nature and consequences of what he was doing. In the result, the appeal fails and is dismissed but there will be no order as to costs. May we add that this judgment, properly understood, will not be a charter for interference by the High Courts with findings of facts recorded by the final Court of facts. The situation, here, was of an exceptional character where evidence which was incapable of supporting more than one conclusion was considered as justifying a conclusion which no reasonable tribunal could rationally reach. N.K.A. Appeal dismissed.

A deed of adoption was executed by one M on August 10, 1944 stating that he had adopted the appellant. A suit to challenge this deed was filed contending that M was not in a fit state of mind when he executed the deed. The suit was dismissed by the Trial Court and this order was confirmed by the District Court. In second appeal the High Court set aside the judgments of the Courts below and decreed the suit. Earlier M had executed another deed of adoption in favour of the appellant, but the Registrar refused to register that deed on the ground that the executant appeared to him to be a lunatic. The matter was remanded by the Mahakma Khas to the Registrar with a direction that the executant be recalled and the question decided afresh. The Registrar thereupon examined the executant and finding him unable to understand the simplest questions put to him, and giving wholly incorrect answers to elementary questions like whom he had adopted, reaffirmed his pre remand view and refused to register the deed. A Suit was then brought by the appellant on September 11, 1940 for the compulsory registration of the aforesaid deed of adoption. A written statement was filed on behalf of M admitting the appellant 's claim that he was validly adopted. The authority of that admission having been challenged, the High Court, in revision, examined the matter further and directed that an appropriate issue has been framed on the question. After the remand, the Joint Kotwal passed an order on January 4, 1944 holding M was not of sound mind and was incapable of protecting his interest in the suit. The High Court agreed with the findings of the Joint Kotwal. On appeal by special leave, and dismissing the appeal, it was, ^ HELD: (1) Apart from the bald assertion that the appellant was taken in adoption, the deed does not mention the year, the date or the place of adoption. It does not either mention the names of persons who were present at the time of adoption. In fact there is no evidence whatsoever to show when and where the adoption took place and even whether the necessary ceremonies were performed. [597 C D] (2) The real drift of the plaint is that M was not in a fit state of mind at the relevant time, that no adoption could have taken place in fact and that, therefore, the deed of adoption cannot confer on the appellant the rights of an adopted son. [597 E] 595 (3) The argument that M was in a fit state of mind when he executed the deed cannot be accepted. Indeed the halting evidence of the doctor, one of the witnesses, throw a cloud on the mental capacity of M and renders it improbable that he could perform or authorise the performance of the act of adoption or that he could have executed it with an understanding mind. His mental faculties were evidently too enfeebled to enable him to enter into a transaction which in law has a religious cum spiritual significance and which, in a wordly way, affects valuable rights to property. [597 F H] (4) The trial court and the District Court wholly ignored the weight of prepondering circumstances on the record and allowed their judgments to be influenced by inconsequential matters. The High Court was, therefore, justified in re appreciating the evidence and coming to its own independent conclusion on the basis of that evidence. [H] (5) The situation here was of an exceptional character, where evidence which was incapable of supporting more than one conclusion was considered as justifying a conclusion which no reasonable Tribunal could rationally reach. This judgment will not be a charter for interference by the High Courts with findings of facts recorded by the Final Court of facts. [598 B C]

399 of 1952. Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus, Godavari Parutekar, the petitioner, in person. M. C. Setalvad, Attorney General for India, (G.N. Joshi and P. A. Mehta, with him) for the respondent. December 5. The Judgment of the Court was delivered by BosE J. This is a habeas corpus petition under article 32 of the Constitution. The petitioner was detained the, 16th of October, 1951, under the of 1950 as amended in 1951. Her detention was actually longer than this but the earlier detentions were under a different set of orders which are not relevant to the present matter. The present detention is based an order of the District Magistrate, Thana, and merely says that the petitioner be detained, without specifying any period. The order of confirmation was passed the 4th of January, 1952, and there again no period was specified. The petitioner 's case is that as no period was specified in the order her period of detention expired the 31st of March, 1952, because of the amending Act of 1951 ; or at the outside the 30th of September, 1952, because of Act XXXIV of 1952 which effected a further amendment. The reply behalf of the State of Bombay is that the of 1950 was again amended by Act LXI of 1952 and that the effect of this amendment was to carry the petitioner 's detention to the 31st of March, 1953, because of section 11 A which was added to the original Act of 1950. The petitioner counters by saying that the new Act does not apply to cases in which the order of detention is not silent about its duration and so section 11 A does not serve to extend the period of her detention. She relies the following portion of section II A (2) ". every detention order which has been confirmed under section 11 before the commencement of the Preventive Detention (Second Amendment) Act 1952, shall, unless a shorter priod is specified in the order, continue to remain in force until the Ist day of April, 1953. " The petitioner concedes that no shorter period is specified in her order of detention but contends that as her detention would have expired either the 31st of March, 1952, or the 30th of September, 1952, one of those two dates must now be read into the order and when that is done we have an order which specifies as shorter period, therefore section 11 A (2) does not serve to extend her detention. We are unable to accept this contention. The section is clear and unless a shorter period is specified in the order, section I 1 A(2) applies. We cannot add the words "or must be deemed to have been specified by reason of the expiry of the earlier Act" into the section. We hold therefore that section 11 A(2) validly extended the period of detention till the Ist of April, 1953. 1 The petitioner 's next point is based articles 14 and 22(i)(b) of the Constitution. ' It arises in this way. Section 3 (1) (a) of the of 1950 classifies grounds of permissible detention into three categories. Article 22 (7) (b) empowers Parliament to prescribe the maximum period for which any person may "in any class or classes of cases" be detained. The petitioner argues that this permits only one maximum for each class and that if different maxima are provided for "equals" within a class it offends not only article 22 (7) (b) but also article 14 as interpreted by the decisions of this Court, She next argues that section 11 A, now introduced by the second amending Act of 1952 (Act LXI of 1952), does just that and so is ultra vires. Her point is put as follows. Sub section (1) of section 11 A states that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 1 1 shall be twelve months from the date of detention. But sub section (2) qualifies this by dividing detentions into two classes; 213 (a) those in which the detention order was confirmed before 30th of September, 1952, and (b) those in which the confirmation was after that date, and it provides that. in the former case, unless a shorter period is specified in the order, the detention shall continue either till the 1st of April, 1953, or for twelve months from the date of detention, whichever expires later. This, she says, introduces a fresh classification which divides detentions into those before the Act and those after. That, she says, is ultra vires, first, because it introduces a discriminatory classification in the class to which she belongs under section 3 of the Act and, second, because it entails discrimination even in the fresh class into which she has been thrown by the new sub division, made by the second amending Act of 1952. As regards the first point, the ratio decidendi in Shamrao V. Parulekar vs The District Magistrate, Thana, and Others(1) applies here. In that case, detentions were divided into those which had already been considered by an Advisory Board and those which had not. This was upheld. The dividing line here is different, namely a certain date, but the principle is the same and its reasonableness is apparent from a consideration of the various amendments which have been made from time to time. The life of the Act of 1950, which was the principal Act, was extended till the 1st of October, 1952, by section 2 of the amending Act (Act XXXIV of 1952), and the effect of section 3 was to prolong the ' life of all detentions in force on 14th of March 1952, (provided they had been confirmed before that date) for so long as the principal Act was in force. At that date this meant till the 1st of October, 1952. But the second amending Act of 1952 extended the life of the principal Act till the 31st of December,1954. Therefore, in the absence of section 11 A all those detentions would have been extended till that date. But section 11 A modified that and put 1st of April,1953, as the latest date for these old detentions, (1) ; at 691 and 693. 214 It therefore conferred a benefit and cannot be deemed unreasonable. Sub section (3) of 'section 11 A shows that that was the object. But the petitioner attacked the provisions on the ground of discrimination. She said that even assuming the new classification of detentions into those before and after the 30th of September, 1952, to be good, section 11 A is nevertheless discriminatory because it discriminates amongst those in her class,, namely those whose detentions were made and confirmed before the 30th of September. She put it in this way. Taking the case of her own detention, she pointed, out that if section II A is good, it will continue till the 1st of April, 1953, that is to say, her detention will have been for a period of 17 1/2 months from the 16th of October, 1951, till the 1st of April, 1953. 'On the other hand, a person detained after her on, say, the last of September, 1952, would also be due for release on the 1st of April, 1953, and so would have had only six months ' detention. This, in our opinion, is not discrimination within the meaning of article 14. A maximum can be fixed, either by specifying a particular period, such as twelve months, or by setting an outside limit, land it is inevitable in such a case that the length of detention will vary in each individual case. Those taken into detention at a later date are bound to be detained for a shorter time. Government is not bound to detain everybody for the same length of time. , It has a discretion. Moreover, the appropriate Government has boon left power to revoke or modify the detention order at any earlier time. This point was considered in Shamrao V. Parulekar vs The District Magistrate, Thana, & Others (1) and was decided against the detenu. The petitioner endeavoured to have her application reopened on the merits contending again that the grounds of detention are vague. She relies on Shamrao V. Parulekar vs The State, of Bombay (2) where (1) ; at 691 at 693. (2) Petition No. 86 of 1952. 215 another detenu was released by another Bench of this Court in circumstances which., according to her, are very similar. We are unable to allow this as her petition has already been rejected on the merits. She was only allowed to appear on constitutional points. We understand that in the other petition this fact was not brought to the notice of the Court. The application is dismissed. Application dismissed.

Under a licence granted for the import of fountain pens at not less than Rs. 25 C.I.F. value, the respondent imported Sheaffer pens from Australia, which had nibs which were gold plated and also caps and clips of similar composition. The imported goods were assessed to duty by the customs authorities under item 61(8) of the First Schedule to the Indian Tariff Act, 1934, dealing with "Articles, other than cutlery and surgical instruments, plated with gold or silver" which provided for a duty Of 781 per cent. ad valorem, while the respondent claimed that the goods fell within item 45(3) which related to the article described as "Fountain pens, complete", the rate of duty being 30 per cent. ad valorem. Section 191of the , enabled any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government, but the respondent, without resorting to this remedy filed a writ application in the High Court of Bombay under article 226 of the Constitution of India to quash the imposition of the duty at the higher rate and to direct the release of the goods on payment of duty at 30 per cent. The Single judge who disposed of the application took the view that fountain pens did not cease to be fountain pens though they contained parts which were plated with gold, that so long as they were "Fountain pens, complete" only duty under item 45(3) could be levied and that, in the context of the items in the Tariff Schedule, it was not reasonably possible for any person to take a contrary view. Accordingly, the customs authorities were restrained from enforcing payment of any duty higher than 30 per cent. On appeal, the Appellate Bench of the High Court agreed with the interpretation of the tariff items and held that, though it was not the practice to entertain writ petitions by parties who had not exhausted their statutory remedies, as the remedy of applying in revision to the 95 754 Central Government had become time barred by the date of hearing of the appeal, it would not interfere with the order of the Single judge. Held, that the High Court was in error in its view that though the respondent had failed to exercise his statutory remedy, the fact that it had become time barred at the date of the hearing of the appeal against the order in the petition under article 22 6, was a good ground for the Court to exercise its discretion in granting the relief prayed for by the respondent in his petition. Held, further (Sarkar, J., dissenting): (i) that the consignment imported by the respondent was liable only to a duty of 30 per cent. under item 45(3) in the First Schedule to the Indian Tariff Act, 1934, and that the tariff items in the Schedule were not reasonably capable of any other construction. (2) that as in the present case the levy of the duty under entry 61(8) was manifestly erroneous, and the Central Board of Revenue had issued a ruling to the effect that fountain pens with nibs or caps which were gold plated fell with entry 61(8), it could not be said that the High Court had exercised its discretion improperly in entertaining the writ application so as to justify interference in an appeal under article I36 of the Constitution. Per Gajendragadkar, Wanchoo, Das Gupta and Rajagopala Ayyangar, JJ. The rule that a party who applies for the issue of a high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion. Union of India vs T. R. Varma, [1958] S.C.R. 499 and The State of Uttar Pradesh vs Mohammad Nook, ; , relied on. Per Sarkar, J. Item 61(8) in the First Schedule to the Indian Tariff Act, 1934, is intended to apply to all gold plated articles other than cutlery and surgical instruments, while item 45(3) is applicable to fountain pens simpliciter, that is, without gold plating. Such a view would harmonise the different items in the Tariff Schedule and carry out the intention of the legislature. The customs authorities were correct in assessing gold plated fountain pens under entry 61(8).

Appeals Nos. 581 to 584 of 1966. Appeals by special leave from the judgment and order dated March 26. 1964 of the Calcutta High Court in Income tax Reference No. 6 of 1961. K. Sen, Bishan Narain, R.K. Chaudhuri and B.P. Maheshwari, for the appellant (in all the appeals). Niren De, Solicitor General, T.A. Ramachandran, R. N. Sachthey and S.P. Nayar, for the respondent (in all the appeals) 354 The Judgment of the Court was delivered by Bhargava, J. These appeals came up before this Court on the 17th April, 1967, when an order of remand was made by this Court, asking the Income tax Appellate Tribunal to submit a further statement of the case. The question that has come up. for consideration is : "Whether on the facts and circumstances of the case, the surplus derived by the assessee in the sale of its shares and securities in the relevant previous years was a revenue receipt and as such taxable under the Income Tax Act. " The facts and circumstances under which the question was referred by the Tribunal for the opinion of the High Court are mentioned in that order of remand and need not be repeated. In the order of remand, it was pointed out that it was not possible to find out from the statement of the case whether the Tribunal accepted the explanation of the assessee that, in the previous year relevant to the assessment year 1953 54, the control of McLeod & Co. Ltd. went out of the hands of the Directors of the assessee and it was for this reason that the assessee sold the shares of McLeod & Co. It was also pointed out further that the Tribunal had not stated what was the object of the assessee in buying 6,900 ordinary shares of McLeod & Co. It appeared from the order of the Income tax Officer that these shares were purchased in a number of lots from the year 1948 to 1950, and it was also not stated as to what was the object in buying other securities, and why did the assessee confine its activities mostly to the shares of McLeod & Co. Ltd. and the companies managed by McLeod & Co. Ltd. It was in the light of these omissions that the Tribunal was asked to send a supplementary statement. That supplementary statement has now been received and the answer to the question has to be given on the basis of the facts contained in the original statement of the case as well as this supplementary statement. The relevant facts which emerge out of these statements of the case are that the principal activity of the assessee was investment of its capital in shares and stocks. It changed its investments by sale of its shares and stocks from time to time. The income of the Company was primarily derived from dividends on shares and interest received by it on the investments. These activities were covered by Clauses (1), (3) and (4) of the Memorandum of Association. The activity mentioned as the object in Clause (2) is: "to acquire,hold, sell and transfer shares, stocks, Debentures, 'Debenture Stocks, Bond, obligations and 355 securities issued or guaranteed by any company constituted or carrying on business in British India and in the United Kingdom or in any colony, or dependency or possession thereof or in any foreign country and Debenture Stocks, Bonds, obligations and securities, issued or guaranteed by any Government, Sovereign, Ruler, Commissioners, public body or authority supreme, Municipal ' Local or otherwise whether at home or abroad." In the supplementary statement, the Tribunal has recorded the finding that, in its opinion, the purchases and sales of the shares in question were in pursuit of this clause (2) in the Memorandum of Association. The Tribunal has further stated that the assessee had not placed any evidence as to the object behind the acquisition of the shares of McLeod & Co. Ltd and the shares of companies managed by McLeod & Co. Ltd., nor had the Income tax Officer ascertained the object behind such acquisitions. The Tribunal was also unable to find out why the assessee had more or less confined its activities mostly to the shares of McLeod & Co. Ltd. and the companies managed by McLeod & Co. Ltd. The facts proved showed that, in the account year relevant to the assessment year in question, 21,046 shares were held by the Kanoria group, including 6,977 shares in McLeod & Co. Ltd. held by the assessee. Mr. C.L. Kanoria resigned his office as Director of McLeod & Co. Ltd. on 17th March, 1952, and the approval of the Government to his resignation was given by the Central Government on 16th October, 1952. Thereafter, Sri C.L. Bajoria joined the Directorate of McLeod & Co. Ltd. 6,900 shares. were sold by the assessee to Sri C.L. Bajoria or his nominees on 27th May, 1952, at a time when Sri C.L. Kanoria had already sent in his resignation from the office of Director, but the resignation had not yet been accepted by the Government. It has also, been found that Sri C.L. Bajoria acquired 12,440 shares in all. including 6,900 shares purchased from the assessee; but there was no material on the record to prove that his group obtained a controlling interest in McLeod & Co. Ltd. as a result of acquisition of ' these shares. As a fact, it was held that after the resignation of Sri C.L. Kanoria, Messrs C.L. Bajoria and Baijnath Jalan, both ; of M/s. Soorajmull Nagarmull, became Directors of McLeod & Co. Ltd. These are the principal facts on the basis of which it has to be determined whether the sale of these shares by the assessee resulted in a revenue receipt or in a capital gain. It appears to us that the facts and circumstances in this case can lead to. no other conclusion, except that these shares were purchased and sold by the assessee with the motive of earning a profit by such purchases and sales and not with the object of investing its capital in these shares in order to derive 356 income from that investment. It is true that the principal business of the assessee was to invest capital and to derive income from dividends on shares and interest on other investments; but at the same time, the object contained in the Memorandum of Association of the assessee Company clearly showed that one of the objects was also to deal in shares, stocks, debentures, etc., by acquiring, holding, selling and transferring them. In the years prior to the assessment year, the case put forward by the assessee that the various acquisitions and sales of shares were in the nature of investments was accepted by The Department but such a decision given in the earlier years is not binding in the proceedings for assessment during subsequent years. The particular shares no,in question. it appears, were purchased between 31st March,1948 and 31st March, 1952. The earliest purchases in March.1948 were at an average price of Rs. 267 13 0 per share. In the next two years ended 31st March, 1949 and 31st March, 1950.the average purchase price was Rs. 201 8 0 and Rs. 182 10 0.and the last purchase in the year ended 31st March, 1952 was at the rate of Rs. 128 14 0. On 1st April. 1952, the assessee 's total holding of shares in McLeod & Co. Ltd. was 6,977 at a total cost of Rs./4,29,587 4 0 out of the total holding of shareS, including shares in other companies, of the value of Rs. 17,58,741 4 0.Thus, on that date, the holdings in McLeod & Co. Ltd. formed the major part of the share holdings of the assessee. It is significant that the shares were purchased during a period when their market price was continuously falling. The earliest purchases in the year ended 31st March, 1948 were at an average price Rs. 267 13 0, while in the last of these three years ended 31st March 1952, the average price was Rs. 128 14 0. The largest block of 4,757 shares was purchased in the year ended 31st March, 1950, when the average price was Rs. 182 10 0. The assessment order of the Income tax Officer also shows that the shares were not only purchased in a rapidly falling market, but, in order to make these purchases the assessee had taken loans amounting to about Rs. 8 lacs at interest varying from 31/2% to 5 %. The dividend being declared was at a very low rate, so that the return on this investment, after taking into account the interest paid and super tax to be paid, came to a very small percentage. being less than 1%. This circumstance that the shares were purchased at a time when their prices were falling and the return on investments was not at all substantial while loans had been taken to purchase these shares strongly points to a conclusion that the shares could not have been purchased as an investment to earn income from dividends and that the purchases of these shares were with the object of selling them subsequently at a profit. The shares were in fact, sold at considerable profit subsequently and that is how the question of charging that profit to tax as revenue receipt has arisen. The explanation sought to be given by the 357 assessee that the shares were, in fact, being held as investment and were sold simply because the control of McLeod & Co. Ltd. went out of the hands of the Directors of the assessee has not been proved, according to the supplementary statement of the case submitted by the Tribunal. In fact, the Tribunal was not satisfied that even the purchasers, viz., the Bajoria group on buying these shares from the assessee acquired a controlling interest in McLeod & Co. Ltd. or in the companies managed by that Company. The object of the sale as given by the assessee has therefore, remained unproved, whereas the fact that the purchases of the shares were made at a time when they were not expected to give a good return as investment and were actually sold at a very good profit leads to the reverse inference that the purchases and sales of these shares were an adventure in the nature of trade. Even the sequence of events does not bear out the contention of the assessee. Sri C.L. Kanoria first resigned on 17th March, 1952 and he sold his shares while his resignation was still pending for approval by the Government. The sale took place on 27th May 1952, at a time when the resignation not having received the approval of the Government, the control of McLeod & Co. Ltd. group of companies was still with the Kanoria group. The resignation was accepted on 16th October, 1952, about five months after the sale of the shares. There is no evidence. to show that, as a result this sale. the control in the McLeod & Co. group of companies passed to the Bajoria group though M/s. C.L. Bajoria and Baijnath Jalan did subsequently loin the Directorate of McLeod & Co. Ltd. On these facts, it is not possible to hold that the Tribunal was incorrect in recording it5 conclusion that the sale of these shares by the assessee was not the result of control of the McLeod & Co. Ltd. passing from the. hands of Kanoria group to the Bajoria group. In fact the Kanoria group was holding a majority 21,046 shares out of 40,000 shares in McLeod & Co. Ltd. even at the time when these shares were sold on 27th May, 1952. The assessee thus having failed to prove the object of the sale of these shares, the inference that the shares were sold with the sole object of earning profit is justified. This conclusion is further strengthened by the conduct of the assessee as found by the Tribunal in subsequent years. In the year ended 31st March, 1955, the assessee again purchased a large number of shares of McLeod & Co. Ltd. These purchases were made between 23rd August, 1954 and 29th September, 1954. The first purchases were made at a rate of Rs. 150/ per share. and the purchases were continued even in the month of September when the rate rose to nearly Rs. 250/ per share. This purchase of shares of McLeod & Co. Ltd. in the account year 1954 55. when there was a rising market and when the control was no longer with the Kanoria group and having already passed to the 358 Bajoria group, clearly shows that the Tribunal was not wrong in inferring that the purchases of shares of McLeod & Co. Ltd. were not for the purpose of keeping controlling interest in that Company or for investment, but that the shares were being purchased and sold for earning profit, so that the transactions were an adventure in the nature of trade in these shares of McLeod & Co. Ltd. In this connection, Mr. A.K. Sen, learned counsel for the appellant drew our attention to the following view expressed in the remand order : "We are unable to answer the question referred because the mere fact that an investment company periodically varies its investments does not necessarily mean that the profits resulting from such variation is taxable under the Income tax Act. Variation of its investments must amount to dealing in investments before such profits can be taxed as income under the Income tax Act. " Reliance was also. placed on the observations of this Court in Bengal and Assam Investors Ltd. vs Commissioner of Income tax, West Bengal(1), which were quoted in the remand order and are as follows : "It seems to us that, on principle before dividends on shares can be assessed under section 10, the assessee, be it an individual or a company or any other entity, must carry on business in respect of shares; that is to say, the assessee must deal in those shares. It is evident that if an individual person invests in shares for the purpose of earning dividend, he is not carrying on a business. The only way he can come under section 10 is by converting the shares into stock in trade, i.e., by carrying on the business of dealing in stocks and shares as did the assessee in Commissioner of Income Tax vs Bai Shirinbai K. Kooka(2) ' '. It was urged that, in this case, the Tribunal has recorded no finding at all that the shares in McLeod & Co. Ltd. which were sold by the assessee were converted by it into stock in trade, nor has it been held that the variation of its investments by the assessee amounted to dealings in investments. The facts that we found above show that, so far as the shares of McLeod & Co. Ltd. and the allied companies which were sold by the assessee and the income from which has been taxed as revenue income are concerned, the assessee, in fact, dealt with them as stock in trade. It (1) (2) 359 is true that in the account books they were never shown as such; but we have indicated how the evidence and the material in this case lead to the conclusion that the shares were in fact purchased even initially not as investments, but for the purpose of sale at profit and that they were actually sold with the purpose of earning profit, so that the transactions amounted to an adventure in the nature of trade. Learned counsel also referred ,to the decision of this Court in Ram Narain Sons (Pr.) Ltd. v Commissioner of Income tax, Bombay(1) to urge that the principal consideration in determining whether income from sale of shares is revenue income or capital gain, is to find out what was the purpose of purchase of those shares, and, if the purpose was investment, the fact that. in varying the investment, the sale of those shares resulted in a profit will not. make that profit revenue income. The principle is perfectly ' correct, but is not applicable to. the case before us on the finding mentioned by us above that even the initial purchase of these shares by the assessee was not for the purpose of investment for earning income from dividends, but was with a view to earn profit by resale of those shares. In these circumstances we hold that the High Court was right in arriving at the conclusion that, on the facts and circumstances of the present case, the income derived by the assessee from the sale of its shares and securities in the relevant previous years was revenue receipt and as such taxable under the Income tax Act. The appeals fail and are dismissed with costs. One hearing fee. Y.P. Appeals dismissed.

The Standing Orders of the appellant 's establishment, duly certified under the , dealt, inter alia, with provisions relating to leave to be granted to the workmen. In I.C. 11 of 1955 the Industrial Tribunal by its award modified the said standing orders and made provisions for certain kinds of leave. The award came into operation on November 18, 1956 under section 19(3) read with section 17A(7) of the . On further disputes arising the parties entered on September 19, 1958 into a settlement under section 12(3) of the whereby in return for the revision of the scales of pay, the workmen agreed that for a period of three years commencing from January 1, 1958, they would not raise any dispute on certain matters including leave. This settlement was terminated by the workmen by notice dated August 14, 1961 under section 19(2) of the . In 1963 the State Government again referred to the Industrial Tribunal an industrial dispute between the appellant and the workmen. This dispute was registered as I.D. No. 8 of 1963 and the questions referred related to privilege leave, casual leave and sick leave. The appellant urged before the Tribunal that it was not competent to hear the reference because (i) the earlier award in I.C. 11 of 1955 which dealt with matters relating to leave had not been terminated by a notice under section 19(6) of the ; (ii) the Standing Orders in question could be modified only by the procedure under the Standing Orders, Act and not under the because the former Act was self sufficient in regard to the matters covered by it. The Tribunal and the High Court both rejected the appellant 's objections, whereupon, by special leave, appeal was filed in this Court. On behalf of the workmen it was stated that notice of termination of the earlier award under section 19(6) of the Industrial disputes Act had been given by them in a letter dated June 26, 1961. HELD:(i) When there is a subsisting award binding on the parties the Tribunal has no jurisdiction to consider the same points in a fresh reference. In the present case the earlier award had not been terminated and the reference was therefore incompetent. [588D] The letter of June 26, 1961 could not be treated as a notice under s.19(6) of the terminating the earlier award in I.C. 11 of 1955 because it did not convey any such intention. Moreover it was written while the settlement of September 19, 1958 by which the workmen had bound themselves not to raise any dispute regarding leave facilities for three years was still in force, for the notice of. termination of the settlement under section 19(2) was given by the workmen only on August 14, 1961. Until the said settlement was terminated the union of workmen had no right to make demands about leave facilities as it purported to do on June 26, 1961. [587G 588C] 582 The Workmen of Western India Match Co. Ltd. vs The Western India Match Co. Ltd., ; , referred to. (ii) The Standing Orders Act which has for its object, the defining with sufficient precision. the conditions of employment, under the industrial establishments and to make the said conditions known to the workmen, has provided more or less a speedy remedy to the workmen, for the purpose of having a standing order modified or for having any question relating to the application, or interpretation of a standing order. referred to a labour court. But there is no warrant for holding that merely because the Standing Orders Act is a selfcontained statute with regard to the matters mentioned therein, the jurisdiction of the Industrial Tribunal under the Act. to adjudicate upon the matters covered by the standing orders, has been in any manner abridged or taken away, It will always be open in a proper case, for the union or workmen to raise an 'industrial dispute ' as that expression is defined in section 2(k) of the , and if such a dispute is referred by the Government concerned for adjudication the Industrial Tribunal or Labour Court as the case may be will have jurisdiction to adjudicate upon the same. [595B D] Guest, Keen, Williams., Private Ltd. vs P. J. Sterling, ; , The Baualkot Cement Co. Ltd. vs R. K. Pathan, [1962] Supp. 2 S.C.R. 697 and Salem Electricity vs Employees. , distinguished.

Criminal Appeal No. 72 of 1987. From the Judgment and order dated 21.10.1986 of the Gujarat High Court in Spl. Appeal No. 889 of 1986. Ram Jethmalani, Ms. Rani Jethmalani and A.K. Sharma for the Appellant. T.U. Mehta, M.N. Shroff and K.M.M. Khan for the Respond ents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. We grant special leave and proced to hear the apeal. The appellant, Abdul Latif Wahab Sheikh, was in jail from November 12, 1985 onwards awaiting trial on a charge of murder. He was acquitted on May 26, 1986. Though acquitted, he was not straightaway released from prison. The reasons are not clear to us from the record. Presumably he was required in connection with some other case. He was due for release from prison on June 23, 1986. On that day, however, an order for his detention was made under the provisions of the Gujarat Prevention of Anti Social Activities Act, 1985. The mandate of article 22(4) of the Constitution is that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said 206 period of three months that there is in its opinion suffi cient cause for such detention. Section 10 of the Gujarat Prevention of Anti Social Activities Act, 1985 provides for the constitution of an Advisory Board, sec. 11 provides for reference to the Advisory Board and sec. 12 prescribes the procedure to be followed by the Advisory Board. What is important for the purposes of this case is that sec. 11 stipulates that in every case where a detention order has been made under the Act, the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board the grounds on which the order has been made, the representation, if any, made by the detenu and the report, if any, of the authorised offi cer. What is intriguing in the case is that on the date when the detention order was made, there was no Advisory Board in existence to which a reference could be made under sec. 11 of the Act and whose report of its opinion regarding suffi cient cause for the detention was required to be obtained within three months of the detention under article 22(4) of the Constitution. The period of three weeks stipulated by sec. 11 of the Act expired on July 14, 1986. The petitioner was entitled to be released on July 14, 1986 as no reference had been made to the Advisory Board within the period contem plated by sec. 11 of the Act. But he was not so released. This state of affairs continued till August 7, 1986 when the order of detention dated June 23, 1986 was revoked and a fresh order of detention was made on the same facts on the same day. In the meanwhile, the order of detention dated June 23, 1986 had been challenged by filing a writ petition in the High Court. Consequent on the revocation of that order that writ petition was withdrawn as having become infructuous and another writ petition, out of which the present appeal arises, was filed questioning the second order of detention dated August 7, 1986. The Advisory Board was constituted on August 18, 1986. Reference to the Adviso ry Board was made on August 20, 1986. The Advisory Board made its report on September 26, 1986. It will be seen that the report of the Advisory Board was more than three weeks after the detention which commenced on the making of the order of detention, though it was within three months from the date of the second order of detention. The learned counsel for the appellant contends that there has been a contravention of the constitutional protection afforded by article 22(4) and therefore, the appellant is entitled to be set at liberty. He does not dispute that under sec. 15(2) of the Gujarat Prevention of Anti Social Activities Act the expiry or revocation of an earlier detention order shall not bar the making of a subsequent detention order under the Act against the same person, subject to the proviso that if there were no fresh facts, the maximum period for which a person may be detained shall not extend beyond the expiry of 207 a period of 12 months from the date of detention under the earlier detention order. He submits that this provision, if to be sustained, as constitutionally valid, must be read down so that it does not offend the mandate of article 22(4) of the Constitution that no law providing for preventive deten tion shall authorise the detention of a person for a longer period than three months unless the Advisory Board has reported within the period of three months that there is in its opinion sufficient cause for such detention. On the other hand, the learned counsel for the State of Gujarat submits that it is enough if the report of the Advisory Board is obtained within three months of the subsequent order of detention, where the earlier order is revoked and a subsequent order is made. The real question for consideration is whether a law may be made providing for successive orders for detention in a manner as to render the protection of article 22(4) of the Constitution ineffective? For example, can a fresh order of detention be made every 89th day making it unnecessary to obtain the report of the Advisory Board within three months of the detention? That is what it will amount to if the submission of he learned counsel for the State is accepted. It, therefore, becomes imperative to read down sec. 15 of the Gujarat Prevention of Anti Social Activities Act, 1985 which provides for the making of successive of order of detention so as to bring it in conformity with article 22(4) of the Constitution. If there is to be a collision between article 22(4) of the Constitution and sec. 15 of the Act, sec. 15 has to yield. But by reading down the provision, the colli sion may be avoided and sec. 15 may be sustained. So, avoid ing the collision course, we held that if the report of the Advisory Board is not made within three months of the date of detention, the detention becomes illegal notwithstanding that it is within three months from the date of the second order of detention. The learned counsel for the petitioner invited our attention to the decision of the court in Shibapada Mukher jee vs State of West Bengal, , where the court referring to clauses 4 and 7 of article 22 observed. "It is clear from clauses (4) and (7) of Article 22 that the policy of Article 22 is, except where there is a Central Act to the contrary passed under clause (7) (a), to permit detention for a period of three months only, and detention in excess of that period is permissible only in those cases where an Advisory Board set up under the relevant statute, 208 has reported as to the sufficiency of the cause for such detention. Obviously, the Constitution looks upon preventive detention with disfavour and has permitted it only for a limited period of three months without the intervention of an independent body with persons on it of judicial qualifications of a high order. The facts that the report of such an Advisory Board has to be obtained before the expiry of three months from the date of detention shows that the maximum period within which the detaining authority can on its own satisfaction detain a person is three months The observation of the court to the extent that they go to support the contention of the learned counsel for the appel lant, but we must say that in that case, the court was not confronted with the present situation at all. The learned counsel for the State referred us to A.K. Roy vs Union of India, ; , where the court referring to an argument based on sec. 11(2) of the National Security Act said: "Section 11(2) of the Act provides specifical ly that the report of the Advisory Board shall specify its opinion "as to whether or not there is sufficient cause for the detention of the person concerned". This implies that the question to which the Advisory Board has to apply its mind is whether on the date of its report there is sufficient cause for the detention of the person. That inquiry neces sary involves the consideration of the ques tion as to whether there was sufficient cause for the detention of the person when the order of the detention was passed, but we see no justification for extending the jurisdiction of the Advisory Board to the consideration of the question as to whether it is necessary to continue the detention of the person beyond the date on which its report or beyond the period of three months after the date of detention. " The learned counsel for the State also invited our attention to the decision of a learned single Judge of this Court, rendered during the vacation, in Talib Hussain vs State of Jummu & Kashmir, , where he observed: "In regard to the submission that the peti tioner was arrested and deprived of his person liberty long before the order of his arrest and this invalidated his detention, it is 209 sufficient to point out that in habeas corpus proceeding the Court has to consider the legality of the detention on the date of hearing. 'If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law a writ of habeas corpus cannot issue. " Neither of the cases cited by the learned counsel for the State deal with the question now at issue even in a remote way. They do not have any application. We only desire to add that in a habeas corpus proceeding, it is not a sufficient answer to say that the procedural requirements of the Constitution and the statute have been complied with before the date of hearing and therefore, the detention should be upheld. The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, there fore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitution al rights guaranteed to him in that regard. If a reference to an Advisory Board is to be made within three weeks, it is no answer to say that the reference, though not made within three weeks, was made before the hearing of the case. If the report of the advisory Board is to be obtained within three months, it is no answer to say that the report though not obtained within three months, was obtained before the hear ing of the case. If the representation made by the detenu is required to be disposed of within a stipulated period, it is not answer to say that the representation, though not dis posed of within three months, was disposed of before the hearing of the case. We mentioned that we were intrigued that an order of detention should have been made, knowing full well that there was no Advisory Board in existence to whom a reference could be made under the Act and whose report could be obtained as required by the Constitution. Such a casual and indifferent approach betrays a disregard for the rights of citizens and this has to be deprecated. We have no option but to allow the appeal and quash the order of detention dated August 7, 1986. The petitioner is now on parole. He need not surrender to his parole. In the view that we have taken, we have refrained from referring to the other submissions of the learned counsel for the appellant. S.R. Appeal allowed.

Section 11 of the Gujarat Prevention of Anti Social Activi ties Act, 1985 stipulates that in every case where a deten tion order has been made under the Act, the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted under section 10 the grounds on which the order has been made the representation if any made by the detenu and the report if any of the authorised officer. Under section 15(2), the expiry or revocation of an earlier detention order shall not bar the making of a subsequent detention order under the Act against the same person, subject to the proviso that if there were no fresh facts, the maximum period for which a person may be detained shall not extend beyond the expiry of a period of 12 months from the date of detention under the earlier detention order. While the appellant was in Jail from November 12, 1985 onwards awaiting trial on a charge of murder he was acquit ted on May 26, 1986. He was due for release from prison on June 23, 1986. On that day, however, an order for his deten tion was made under the provisions of the Gujarat Prevention of Anti Social Activities Act, 1985. The period of three weeks stipulated by section 11 of the Act expired on July 14, 1986. Since there was no Advisory Board in existence, the appellant was entitled to be released on July 14, 1986 itself. But he was not so released. However, during the pendency of the writ petition challenging the said detention order in the High Court, the order of detention dated 23rd June, 1986 was revoked on 7th August, 1986 and a fresh order of detention was made on the same facts on the same day with the result the earlier writ petition was withdrawn and a fresh write petition came be filed. An Advisory Board was, however constituted on August 18, 1986. A reference under section 11 was made to the Advisory Board on 204 August 20, 1986 and the Advisory Board made its report on September 6, 1986. The report of the Advisory Board was more than three weeks after the detention which commenced on the making of the order of detention though it was within three months from the second order of the detention. The appellant contended, in the writ petition, that there has been a contravention of the constitutional protection afforded to him by Article 22(4). The writ petition having been dis missed, the Appellant has come in appeal by Special Leave. Allowing the appeal, the Court, HELD: 1. No law can be made providing for successive orders for detention in a manner so as to render the protec tion of Article 22(4) of the Constitution ineffective. Section 15 of the Gujarat Prevention of Anti Social Activi ties Act, 1985 which provides for the making of successive orders of detention must be read down so as to bring it in conformity with Article 22(4) of the Constitution. If there is to be a collision between Article 22(4) of the Constitu tion and section 15 of the Act, section 15 has to yield. But by read ing down the provision, the collision may be avoided and section 15 may be sustained. So, avoiding the collision course, It must be held that if the report of the Advisory Board is not made within three months of the date of detention, the detention becomes illegal notwithstanding that it is within three months from the date of he second order of detention. [207C F] Shibapada Mukherjee vs State of West Bengal, ; A.K. Roy vs Union of India, ; and Talib Hussain vs State of Jammu & Kashmir, , distinguished. In a Habeas Corpus proceeding, it is not a sufficient answer to say that the procedural requirements of the Con stitution and the Statute have been complied with before the date of hearing and therefore, the detention should be upheld. The procedural requirements are the only safeguards available to a detenu since the court is not ,expected to go behind the subjective satisfaction of the detaining authori ty. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaran teed to him in that regard. If a reference to an Advisory Board is to be made within three weeks, it is no answer to say that the reference, though not made within three weeks, was made before the hearing of the case. If the report of the Advisory Board is to be obtained within three months, it is no answer to say that the report, though not obtained within three months, was obtained before the hearing of the . 205 case. If the representation made by the detenu is required to be disposed of within a stipulated period, it is no answer to say that the representation, though not disposed of within three months, was disposed of before the hearing of the case. [209B F] OBSERVATION An order of detention should not have been made, knowing full well that there was no Advisory Board in existence to whom a reference could be made under the Act, and whose report could be obtained as required by the Constitution. Such a casual and indifferent approach betrays a disregard for the rights of citizens.]

Civil Appeal No. 4448 of 1985. From the Judgment and order dated 26. 1982 of the Andhra Pradesh High Court in Tax Revision Case No. 23 of 1978. WITH Civil Appeal No. 694 of 1986. From the Judgment and order dated 31.7.1985 of the Andhra Pradesh High Court in Tax Revision Case No. 205 of 1985. T.V.S.N. Chari for the Appellant. 739 R. Ramachandran for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. The question of law which arises in these two appeals by special leave being a common, they are disposed of by this common judgment. The said question relates to the time within which an assessment can be made under the provisions of the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as 'the Act ') where the return is not filed by the dealer within the time prescribed in that behalf. The assessee in Civil Appeal No. 4448 of 1985 is M/s. Nav Swadeshi oil Mills, Jadcharla, Mahboobnagar district. For assessment year 1968 69 the assessee filed its return relating to the quarter ending 31.3. ,969 on 7.8.1969 before the Commercial Tax Officer of Mahboobnagar under the even though the last date for submission of return prescribed by law was 24.5. The return filed by the assessee showing a taxable turnover of Rs. 18,25,410.72 was accepted and it was called upon to pay sales tax of Rs.45,424.48 under the Act. The assessment order was passed on 3.8.1973 beyond four years from 31.3.1969 which was the last day of the assessment year 1968 69. Aggrieved by the assessment order which had been passed beyond the period of four years from the last day of the assessment year the assessee filed an appeal before the Assistant Commissioner (CT) Appeals, Warangal in Appeal No. 5 75 76 and that appeal was dismissed on 14.9.1976. Against the order of the Assistant Commissioner (CT) Appeals. Warangal the assessee filed an appeal before the Sales Tax Appellate Tribunal, Andhra Pradesh at Hyderabad in Tribunal Appeal No. 183 of 1977. That appeal also was dismissed. The assessee thereafter filed a revision petition in Tax Revision Case No. 23 of 1978 before the High Court of Andhra Pradesh. The High Court by its order dated October 26, 1982 set aside the order of the Tribunal and also the assessment on the ground that the assessment which had been passed after four years from the last day of the assessment year was not a valid assessment. Aggrieved by the decision of the High Court the State of Andhra Pradesh has filed this appeal by special leave. The assessee in Civil Appeal No. 694 of 1986 is M section Nav Swadeshi oil Mills and Refinery at Jadcharla. In respect of the assessment year 1968 69 the assessee filed an annual return under the provisions of the on 19.8. 1969 after the expiry 740 Of the prescribed period. The order of assessment was passed on 2.8.1973 beyond four years from the last day of the assessment year 1968 69. Aggrieved by the assessment order which had been passed by the assessing authority the assessee filed an appeal before the Assistant Commissioner (CT) Appeals, Warangal on the ground that the asssessment order passed beyond four years from the last day of the assessment year was barred by time. That appeal was dismissed. Against the order passed in that appeal the assessee filed an appeal before the Sales Tax Appellate Tribunal, Andhra Pradesh in Tribunal Appeal No. 206 of 1977. The Tribunal allowed the appeal and set aside the assessment holding that the assessment had been passed beyond time. Aggrieved by the decision of the Tribunal the State of Andhra Pradesh filed a Revision Petition in Tax Revision Case No. 205 of 1985 on the file of the High Court of Andhra Pradesh. That Revision Petition was dismissed in limine by the High Court. Aggrieved by the decision of the High Court the State of Andhra Pradesh has filed this appeal by special leave. The only question which arises for consideration in these appeals is whether the orders of assessment in the above two cases which had admittedly been passed beyond four years from the last day of the assessment year but within the period of six years from that date had been validly passed. By virtue of section 9 of the the procedure prescribed for making an assessment under the Act is applicable to the assessments to be made under the . Section 13 of the Act prescribes that every dealer who is liable to get himself registered under section 12 or section 12 A as the case may be under the Act shall submit such return or returns relating to his turnover in such manner within such period and to such authority as may be prescribed. The material part of section 14 which is relevant for purposes of these cases reads thus: "14. Assessment of tax: ( I) If the assessing authority is satisfied that any return submitted under section 13 is correct and complete, he shall assess the amount of tax payable by the dealer on the basis thereof, but if the return appears to him to be incorrect or incomplete he shall, after giving the dealer a reasonable opportunity of proving the correctness and completeness of the return submitted by him and making such inquiry as he deems necessary, assess to the best of his judgment, the amount of tax due from the dealer. An assessment under this section shall be made only within a period of four years from the expiry of the 741 year to which the assessment relates. . . . . (3) Where any dealer liable to tax under this Act (i) fails to submit return before the date prescribed in that behalf, or (ii) produces the accounts, registered and other documents after inspection, or (iii) submits a return subsequent to the date of inspection, the assessing authority may, at any time within a period of six years from the expiry of the year to which assessment relates, after issuing a notice to the dealer and after such enquiry as he considers necessary, assess to the best of his judgment, the amount of tax due from the dealer on his turnover for that year, and may direct the dealer to pay in addition to the tax so assessed penalty as specified in subsection (8). " It is necessary to analyse sub section (1) and sub section (3) of section 14 of the Act for purposes of determining the issue involved in these cases. Sub section ( ]) of section 14 of the Act provides that if the assessing authority is satisfied that any return submitted under section 13 is correct and complete, he shall assess the amount of tax payable by the dealer on the basis thereof but if the return appears to the assessing authority to be incorrect or incomplete he shall after giving the dealer reasonable opportunity of proving the correctness and completeness of the return submitted and making such inquiry as he deems necessary, assess to the best of his judgment, the amount of tax due from the dealer. In both these cases the return contemplated is one which has been filed in accordance with section 13 of the Act within the time prescribed for that purpose. Such an assessment under sub section ( 1) of section 14 of the Act can be made within a period of four years from the expiry of the period to which the assessment relates. Sub section (3) of section 14 of the Act authorises the assessing authority to make an assessment to the best of his judgment in three cases: (i) where a dealer under the Act fails to submit return before the date prescribed in that behalf, (ii) where a dealer produces the accounts. registers and other documents after inspection and (iii) where a dealer submits a return subsequent to the date of inspection. In these three cases the 742 assessing authority is empowered to make an assessment to the best of '4 his judgment at any time within a period of six years from the expiry of the year to which the assessment relates after issuing a notice to the dealer and after such inquiry which he considers necessary to make the assessment. The crucial question which arises for consideration in these cases is whether in a case where the assessee submits a true and complete return after the prescribed date the assessment should be completed within a period of four years prescribed by sub section ( 1) of section 14 of the Act or within a period of six years permitted under sub section (3) of section 14 of the Act. Sub section (1) of section 14 of the Act relates to an assessment which may be made on the basis of a return submitted under section 13 of the Act. Section 13 of the Act as stated above provides that every dealer shall submit such return or returns relating to his turnover in such manner within such period and to such authority as may be prescribed. The return on the basis of which an assessment is to be made under section 14(1) of the Act is, therefore, a return filed within the prescribed period and in such a case the assessment has to be completed within a period of four years from the expiry of the year to which the assessment relates. The return referred to in sub section ( 1) of section 14 of the Act cannot be a return filed beyond the prescribed date is emphasised by clause (i) of sub section (3) of section 14 of the Act which refers to a case where a dealer liable to pay tax fails to submit return before the date prescribed in that behalf. All cases where the return is submitted beyond the prescribed date fall under sub section (3) of section 14 of the Act. The scheme of the Act regarding the period within which assessments can be made is very simple. Assessments in cases falling under sub section (1) of section 14 of the Act have to be completed within four years from the expiry of the year to which the assessment relates and assessments in cases falling under sub section (3) of section 14 of the Act may be completed within six years from the expiry of the year to which the assessment relates. The two types of cases which fall under sub section (l) and sub section (3) of section 14 of the Act respectively are mutually exclusive. When once it is established in case that a return has not been filed within the prescribed period such case falls outside section 14 ( l) of the Act and therefore the period of four years prescribed therein becomes automatically inapplicable. It clearly falls under clause (i) of sub section (3) of section 14 of the Act and assessment can be made in such a case within the expiry of the period of six years. While a dealer who files a return within the prescribed 743 period acquires immunity against assessment on the expiry of four years from the last day of the assessment year, a dealer who fails to file a return within the prescribed period has to wait for six years to be over to acquire such immunity. Thus the Act confers a distinct advantage on a dealer who is prompt in filing his return. We are not impressed by the argument that since the returns in the cases before us had been accepted even though they had been filed beyond the prescribed date the assessments made thereon cannot be considered as best judgment assessment and therefore sub section (3) of section 14 of the Act under which it is permissible to make best judgment assessments would be inapplicable. The period within which assessments can be made under the Act does not depend upon the answer to the question whether the assessment in question is a best judgment assessment or it is an assessment made treating the return as correct and complete but it depends upon the other conditions mentioned in sub section ( 1) and in sub section (3) of section 14 of the Act. We may here point out that even in a case falling under subsection (1) of section 14 of the Act it is possible for the assessing authority to make a best judgment assessment as can be seen from the latter part of the said sub section which reads: "but if the return appears to him to be incorrect or incomplete he shall after giving the dealer a reasonable opportunity of proving the correctness and completeness of the return submitted by him and making such inquiry as he deems necessary, assess to the best of his judgment, the amount of tax due from the dealer." Yet such best judgment assessment has to be completed within a period of four years from the expiry of the year to which the assessment relates. Hence it cannot be held that merely because the assessments in question are not best judgment assessments sub section (3) of section 14 of the Act is inapplicable for best judgment assessments can be made both under sub section (1) and subsection (3) of section 14 of the Act. That the assessment is a best judgment assessment is not, therefore, decisive of the question involved in these appeals. The decision of the Andhra Pradesh High Court in the State of Andhra Pradesh vs Pyarelal Malhotra 13 S.T.C. 946 and the decision of this Court in the State of Madras vs S.G. Jayaraj Nadar & Sons 28 S.T.C. 700 which dealt with the question as to when a best judgment assessment could be made are not relevant for purposes of deciding the question which has arisen before us. As we have already pointed out the question whether the assessment made is the best judgment assessment or not has no bearing at all on the period within which an assess 744 ment can be made under the Act. Neither in the judgment of the High Court against which Civil Appeal No. 4448 of 1985 is filed nor in the judgment of the Tribunal out of which Civil Appeal No. 694 of 1986 arises adequate attention is given to the words 'before the date prescribed in that behalf in clause (i) of sub section (3) of section 14 of the Act. The High Court and the Tribunal laid emphasis only on the words "fails to submit return" in the said sub clause and it is on this account they arrived at a wrong conclusion. On a true construction of sub section (I) and sub section (3) of section 14 of the Act we are of opinion that where a return is not filed by a dealer before the date prescribed in that behalf under the Act, the assessing authority has got jurisdiction to complete the assessment within a period of six years from the expiry of the year to which the assessment relates. Admittedly, in these cases the returns were not filed within the prescribed date and the assessments have been made within six years from the expiry of the year to which the assessments relate. The orders of the High Court against which these appeals have been filed are therefore liable to be set aside. In Civil Appeal No. 4448 or 1985 the judgment of the High Court is set aside and the judgment of the Tribunal is restored. In Civil Appeal No. 694 of 1986 the order of the High Court and the judgment of the tribunal are set aside and judgment of the Assistant Commissioner (CT) Appeals, Warangal is restored. The respondent shall pay the costs of the Appellant in both the appeals. P.S.S. Appeals allowed.

% The respondent Ram Chander ran a tailoring shop, employing about 10 to 12 tailors. The number of his employees never exceeded 20. At the shop, clothes were stitched and electric iron was used in the process of stitching and also for ironing the finished goods. The dispute that arose for decision in the case was whether by virtue of Notification dated September 20, 1975, issued under Section 1(5) of the Employees ' State Insurance Act, 1943, the respondent 's establishment came within the purview of the Act. Allowing the Appeal by special leave against the judgment and order of the High Court, and restoring the decision of the Employees ' State Insurance Court the Court, ^ HELD: Stitching process is carried on in the respondent 's establishment. By stitching commercially, different goods with distinctive names, characters and uses are brought into existence. If by a process, a different entity comes into existence, the process is a manufacture, as held by this Court in Empire Industries Limited & Ors. etc. vs Union of India & Ors. etc. , [1985] (Suppl. 1) SCR 292. In the stitching process, ironing is an essential part, and for that electric power is used. Also the respondent 's shop employed more than ten but less than 20 persons. The respondent 's establishment clearly falls within the purview of the Employees ' State Insurance Act. [837G H;838C] Deputy Commissioner, Sales Tax (Law) Board of Revenue (Taxes), Ernakulam vs Pio Food Packers, ; ; Chowgule & Co. Pvt. Ltd & Anr. vs Union of India and others; , ; Ardeshir H. Bhiwandiwala vs The State of Bombay, [1961] 3 H 836 SCR 592; M/s. Hindu Jea Band, Jaipur vs Regional Director, Employees ' State Insurance Corpn. Jaipur, ; ; Metro Readywear Company vs Collector of Customs, [1978] 2 Excise Law Times 520 and Employees ' State Insurance Corporation vs M/s. New Empire Tailores and others, (unreported) referred to.

tition Nos. 151, 187, 238, 458, 1038, 1069 and 1277 of 1979. (Under Article 32 of the Constitution) R.K. Garg, section Balakrishnan and M.K.D. Namboodiri for the Petitioner, in W.P. No. 151/79. Soli J. Sorabjee Sol. General, E.C. Agarwala, R.N. Sachthey and Miss A. Subhashini for the Respondent, in W.P. No. 151/1979. Petitioner in person in W.P. No. 1038/79. P.R. Mridul and H.K. Puri for the Petitioner, in W.P. No. 187/79. A.K. Gupta, Vivek Seth, Miss Madhu Moolchandani and O.P. Rana for the Respondent No. 1, in W.P. 187/79. Soli J. Sorabjee, Sol. E.C. Agarwala, R.N. Sachthey and Miss A. Subhashini for the Respondent No. 2 in W.P. No. 187/79. A.K. Ganguli and D.P. Mukherjee for the Petitioner in W.P. 238/79. A.K. Ganguli and O.P. Rana for the petitioner in W.P. No. 458/79. Soli J. Sorabjee, Sol. General, R.N. Sachthey and Miss A. Subhashini for the Respondent in W.P. Nos. 458 & 238/79. G.L. Sanghi and Miss Lily Thomas for the Petitioners in W.P. Nos. 1069 & 1277/79. Dr. L.M. Singhvi and Sardar Bahadur Saharya for the intervener. The Judgment of V.R. Krishna Iyer, section Murtaza Fazal Ali and D.A. Desai, JJ. was delivered by Krishna Iyer, J., R.S. Pathak, J. gave a separate Opinion on behalf of A.D. Koshal, J. and himself. KRISHNA IYER, J. Tersely expressed, this bunch of cases challenges the vires of a recent amendment made by the Supreme Court under article 145 in the matter of review petitions whereby the judges will decide in circulation, without the aid of oral submissions, whether there is merit in the motion and, in their discretion, choose to hear further arguments in court. 892 Is orality in advocacy that genius of Indo Anglian Justice an inalienable and ubiquitous presence in the court process, or does it admit of abbreviated appearance and more pertinent to the point here discretionary eclipse, at least when it has been preceded by a sufficient oral session ? Secondly is hearing on Bench in public, in contrast to considering the matter in conferential circulation, the only hall mark of judicial justice, absent which the proceeding always violates the norms of equality implicit in article 14 the limits of "reasonableness" bedrocked in article 19, the procedural fairness rooted in article 21 ? And, finally, by resort to operational secrecy, does rationing or burking of oral hearing travesty the values of our Justice System ? These basic problems of the forensic process, of pervasive impact and seminal import, fall for consideration in these writ petitions under article 32 of the Constitution. The charge is that the novel expedient of substitution of oral arguments by written submissions and orders in circulation dispensing with public sitting, save where and that may be rare the judges in their discretion choose to hear arguments in court, is a dangerous deviance from the fundamentals of the Judicial Process. Apprehending maybe, the futuristic repercussions of a decision on these questions, even though now restricted to review petitions, in other fields of 'hearing ' at a later time, the Supreme Court Bar Association has intervened and argued to impugn the amended rule through its President, Dr. L. M. Singhvi, in supplementation of parties ' submissions. We have allowed even other advocates to make brief contributions, because, when this Court considers issues of moment and pronounces thereon, the law so declared binds all: and it is ensouled in democratic propriety that the voice of reason and instruction be received from every permissible source in the nation, if processed according to cursus curiae. This participative principle lends people 's legitimation to the judicial process and strengthens the credentials of the rule of law. The composite question, which settles the fate of these petitions, emerges this way. article 137 provides for review of judgments or orders of this Court, subject to the provisions of any law made by Parliament or any rule made under article 145. We are here concerned with a rule made by this Court. The rule making power under article 145 is geared to 'regulating generally the practice and procedure of the Court '. In particular, article 145(1) (b) and (e) authorise such 'judicial ' legislation in the shape of rules as to "the procedure for hearing appeals and other matters pertaining to appeals" and also "as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review". Such rules, like any other law, are subject to the imperatives of Part III 893 and become non est if violative of the proscriptions and prescriptions of the Constitution vide Premchand Garg 's case. Even the Supreme Court, in the scheme of our Republic, is no imperium in imperio. The substantive power of review and the procedure for its exercise are essential for any judicial system if unwitting injustice is to be obviated to the extent pragmatically possible, without being blinded by any claim to impervious infallibility in the first judgment. Even judges, more than other mortals, to correct injustice if the error is discovered within working limits. Thus, the root principle of judicial review is profound. Judge Learned Hand commended to the judges the great rule of humility contained in the oft repeated words of Cromwell: "I beseech ye in the bowels of Christ, think that ye may be mistaken" said Oliver Cromwell just before the battle of Dunbar. These words Judge Hand said he would like to have written "over the portals of every church, every court house and at every cross road in the nation." (emphasis added) Such is the high minded tolerance with which this Court re examines its own orders to eliminate the happenstance of injustice unhampered by judicial hubris. This Court had framed rules for review, right from the start, but a certain amendment, recently made, has curtailed oral hearing in court as a matter of course and this measure of discretionary truncation is attacked as fundamentally offensive to judicial justice of which this Court is the highest custodian. "If the salt hath lost his savour, where with shall it be salted ?" Surely, this Court 's procedure should be the paradigm, nothing short of it. So, the question is whether it is so heathen to make oral hearing discretionary at the review stage and at the Supreme Court level that the rule can be condemned as constitutionally apostate ? Another fatal infirmity was also pointed out as the arguments proceeded, viz., that a hostile discrimination had been made by r. 2(1) against litigants who moved for review in criminal proceedings as against those in the civil jurisdiction. He will relegate it for consideration to a later stage. The relevant original rules ran thus: 2. (1) An application for review shall be by a petition, and shall be filed within thirty days from the date of the 894 judgment or order sought to be reviewed. It shall set out clearly the grounds for review and shall, unless otherwise ordered by the Court, be accompanied by a certificate from the Advocate who appeared at the hearing of the case for the party seeking review, or where the party appeared in person, from any advocate of this Court, that it is supported by proper grounds. The certificate shall be in the form of a reasoned opinion. (2) No application for review in a civil proceeding shall be entertained unless the party seeking review furnishes to the Registrar of this Court at the time of filing the petition for review, cash security to the extent of two thousand rupees for the costs of the opposite party. An application for review shall be posted before the Court for preliminary hearing and order as to the issue of notice to the opposite party. Upon such hearing, the Court may either dismiss the petition or direct a notice to the opposite party and adjourn the hearing for such party to be heard. A petition for review shall as far as practicable be posted before the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed. Where on application for review the Court reverses or modifies its former decision in the case on the ground of mistake of law or fact, the Court may, if it thinks fit in the interests of justice to do so, direct the refund to the petitioner of the court fee paid on the application in whole or in part, as it may think fit. The corresponding amended rules read thus: 2. (1) An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review. (2) No change. [Unless otherwise ordered by the Court] an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the oppo 895 site party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed. No change. Where an application for review of any judgment or order has been made and disposed of, no further application for review shall be entertained in the same matter. (newly inserted) The vital difference, vis a vis the first point, is that now oral hearing is no longer a right of the petitioner but facultative with the Bench and the 'circulatory ' system replaces the public hearing method. A brief study of the anatomy of the rules will highlight the points urged. Dissecting the rules and comparing their directives we find that unchecked review has never been the rule. It must be supported by proper grounds. Otherwise, every disappointed litigant may avenge his defeat by a routine review adventure and thus obstruct the disposal of the 'virgin ' dockets waiting in the long queue for preliminary screening or careful final hearing. It is perfectly reasonable to insist that the existence of proper grounds for review should be responsibly vouched for before the further time of the court is taken. So, the original rule required a certificate to that effect by the advocate who earlier had appeared in the case. Here, counsel functioned as an officer of the court and, under the mandate of the old r. 2(1) the Court granted or refused a certificate of review worthiness. If it was so certified, then a preliminary oral hearing followed. After such oral argument, the court issued notice to the other side or dismissed the petition. The system was fair enough if the certification process worked well and real errors and apparent mistakes marring the original judgment were the restricted grounds for review. But as it turned out, laxity in certification and promiscuity in filing review applications crowded the court with 'unwanted review babies '. The docket crisis which quaked the calendar deepened, to the detriment of litigative justice to the deserving who awaited their turn for hearing. Even otherwise, frivolous motions for review would ignite the 'gambling ' element in litigation with the finality of judgments even by the highest court, being left in suspense. If, every vanquished party has a fling at 'review ' lucky dip and if, perchance, notice were issued in some cases to the opponent the latter and, of course, the former, would be put to great expense and anxiety. The very solemnity of finality, so crucial to judicial justice, would be frustrated if such a game were to become popular. And it did become popular, as 896 experience showed. The inflow of meritless review petitions, which were heard and dismissed, interrupted the stream of public justice. This Court in Sow Chandra Kanta and Anr. vs Sheikh Habib was faced with this problem and, while dismissing the review petition, observed how the opportunity for correction of grave errors was being perverted into the purchase of a fresh appeal to the same court against its own appellate or other judgment on the same grounds which were earlier rejected. This Court said: A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and over ruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel 's certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear them has been heard now except a couple of rulings on points earlier put forward. Maybe, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality. These observations were symptomatic of the 'review syndrome ' which, therefore, demanded remedying. And the amended rule purposefully incarnated under such auspices to remove the evil of reckless reviews by the introduction of preliminary judicial screening in circulation, replacing counsel 's certification with court 's scanning exercise an added but necessitous judicial burden. If the review petition and written submissions (for which provision was made) convinced the Court, 897 prima facie, that material error had marred the justice or legality of the earlier judgment or order the case would be posted for oral hearing in court. Otherwise, not. 'Certworthiness ' an American judicial shorthand for 'certificate worthiness ' was, by this amendment, shifted from counsel to court. This, in pith and substance, is the rationale of the amended rule. Counsel, at one stage, asked whether there was back up empirical research to warrant the assumptions in the amendment, whether facts and figures about the number and nature of wasted 'review ' time of court and a host of other related aspects were available. No such material is before us now. It is fair to confess that the scientific method of undertaking research and study into public problems as prelude to legislation is a 'consummation devoutly to be wished ' and lamentably lacking in our country; and court management, with special reference to maximisation of judicial time a matter of great national moment is a problem the very existence of which is currently beyond the keen of juristic research. Where 'awareness ' is absent, ad hocism is inevitable. But here the experiential evidence of the judges who considered and decided on the amendment and the inference available from the decisions on review petitions make good the proposition or makes do for empirical research. Be that as it may, we are satisfied that enough justification exists in the daily experience of this Court to warrant the change the way it has been done. Even so, constitutional canons cannot be contravened even by pragmatic compulsions. Paramountcy is paramountcy and exigency must bow before it. What, then, are the paramount principles of constitutionality violated by the amended rule ? Absence of public hearing and oral presentation are the vices identified in counsel 's arguments. Two major submissions were made to invalidate r. 2(1) . The scuttling of oral presentation and open hearing is subversive of the basic creed that public justice shall be rendered from the public seat, not in secret conclave, that hearing becomes 'deaf ' if oral impressiveness is inhibited by the circulation process, more congenial to the seclusion of bureaucratic cells, fed on files, than to the audio visual argumentation heard in the halls of court, which is the insignia of judicial justice. Secrecy and circulation are the negation of judicial procedure. A review is a judicial proceeding and its hearing, to fill the bill, must not run away from the essentials of processual jurisprudence, however allergic some judges may be to the 'sound system ' which is the heart of our forensics. With allotropic modifications, counsel 's arguments stressed this recurrent theme. 898 We must make it perfectly plain, right at the outset, that audi alterem partem is a basic value of our judicial system. Hearing the party affected is too deeply embedded in the consciousness of our constitutional order. The question is about the quality, content and character of 'hearing ' in the special 'review ' situation. Incidentally, we may deal with oral hearing and its importance in the court process, the possibilities of its miniaturisation and, in certain categories its substitution by written submissions. We agree that public hearing is of paramount significance. Justice, in the Indian Republic, is public; and if judges shun the halls of court, read papers at home confer in private and issue final fiats without listening to the bar as the representative of the seekers of justice, the rule of law could well darken into an arcane trick and back door diktats issued from 'robed ' adjudicators strain the escutcheon of justice. We also agree that oral advocacy has a non fungible importance in the forensic process which the most brilliant brief cannot match and the most alert judge cannot go without. The intellectual jallywork of intricate legal reasoning and impassioned sculpture of delicate factual emphasis may often be beyond the craftsmanship of pen and paper. There is no controversy that disposal by circulation, Secretariat fashion, cannot become a general judicial technique nor silent notings replace Bench Bar dialogues. We must clarify one point. 'Circulation ', in the judicial context, merely means, not in court through oral arguments but by discussion at judicial conference. Judges, even under the amended rule, must meet, collectively cerebrate and reach conclusions. Movement of files with notings cannot make do. Otherwise, mutual persuasion, reasoned dissent and joint judgment will be defeated and machinisation of opinion and assertions of views in absentia will deprive judicial notices of that mental cross fertilisation essential for a Bench decision. The learned Solicitor General strongly urged that he was at one with counsel opposite on this point. We agree. The key question is different. Does it mean that by receiving written arguments as provided in the new rule, and reading and discussing at the conference table, as distinguished from the 'robed ' appearance on the Bench and hearing oral submissions, what is perpetrated is so arbitrary, unfair and unreasonable a 'Pantomini ' as to crescendo into unconstitutionality ? This phantasmagoric distortion must be dismissed as too morbid to be regarded seriously in the matter of review petitions at the Supreme Court level. Let us look at the actuality without being scary. The rule under challenge does not implicate or attract an original hearing at all. It 899 relates to 'review ' situations. Ex hypothesi, an antecedent judicial hearing and judicial order exist. Indeed, if a full oral hearing on the Bench has already taken place the dangerousness of secret disposals dies out. What is asked for is a review or second look at the first order. Should this second consideration be plenary ? Never. The focus must be limited to obvious, serious errors in the first order. Indiscriminate second consideration cannot be purchased by more payment of court fee. We reject the strange plea one of the advocates put forward that since the petitioner had paid court fee for review he had the right to the full panoply of oral hearing ad libitem covering the whole range. Review must be restricted if the hard pressed judicial process is not to be a wasting disease. There are many ways of limiting its scope, content and modality. The confinement to certain special grounds, as in Order 47 Rule 1, C.P.C., is one way. The requirement of counsel 's reasoned certificate of fitness (Certworthiness) for review is another. Judicial screening to discover the presence, prima facie, of good grounds to hear counsel in oral submission is a third. The first is good and continues. The second was tried and found ineffective and the third is being tried. Legislative policy is experimental as life itself is a trial and error adventure. What is shocking about this third alternative ? Judges scrutinise the same judges who have once heard oral arguments and are familiar with the case and, if they do not play truant, direct a hearing in court if they find good grounds. If there is ground, oral hearing follows. It is not as if all oral advocacy is altogether shut out. Only if preliminary judicial scrutiny is not able to discern any reason to review is oral exercise inhibited. The court process is not a circus or opera where the audience can clamour for encore. When the system is under the severe stress of escalating case load, management of Justice Business justifies forbiddance of frivolous reviews by scrutiny in limine on the written brief. Justicing too is in need of engineering. In many jurisdictions oral submissions and public hearings are disallowed in like circumstances. In England and America where orality in advocacy has been apotheosised, certain extended stages of 'hearing ' in the superior courts have been slimmed or removed. Even disposal of petitions for leave in judicial conference, without a Bench hearing, has been in vogue. This Court, as Sri Garg rightly emphasised, has assigned special value to public hearing, and courts are not caves nor cloisters but shrines of justice accessible for public prayer to all the people. Rulings need not be cited for this basic proposition. But every judicial exercise need 900 not be a public show. When judges meet in conference to discuss it need not be televised on the nation 's network. The right to be heard is of the essence but hearing does not mean more than fair opportunity to present one 's point on a dispute, followed by a fair consideration thereof by fair minded judges. Let us not romanticise this process nor stretch it to snap it. Presentation can be written or oral, depending on the justice of the situation. Where oral persuasiveness is necessary it is unfair to exclude it and therefore, arbitrary too. But where oral presentation is not that essential, its exclusion is not obnoxious. What is crucial in the guarantee of the application of an instructed, intelligent, impartial and open mind to the points presented. A blank judge wearied by oral aggression is prone to slumber while an alert mind probing the 'papered ' argument may land on vital aspects. To swear by orality or to swear at manuscript advocacy is as wrong as judicial allergy to arguments in court. Oftentimes, it is the judge who will ask for oral argument as it aids him much. To be left helpless among ponderous paper books without the oral highlights of counsel, is counter productive. Extremism fails in law and life. We agree that the normal rule of the judicial process is oral hearing and its elimination an unusual exception. We are now on the vires of a rule relating to review in the highest court. A full dress hearing, to the abundant accompaniment of public presence and oral submission, is over. It is a second probe. Here written arguments are given. The entire papers are with the judges. The judges themselves are the same persons who have heard oral presentation earlier. Moreover, it is a plurality of judges, not only one. Above all, if prima facie grounds are made out a further oral hearing is directed. Granting basic bona fides in the judges of the highest court it is impossible to argue that partial foreclosure of oral arguments in court is either unfair or unreasonable or so vicious an invasion of natural justice as to be ostracised from our constitutional jurisprudence. It must be remembered that review is not a second dose of the same arguments once considered and rejected. The rejection might have been wrong but that cannot be helped. Dissenting minorities regard the dominant majorities wrong in their judgments but there is no helping it. It may not be inept to refer to the critical distinction, even where review of fundamental rights proceeding is sought, between an original or virgin hearing and a second look at or review of the order already passed after a full hearing. In Lala Ram 's case this Court accented on the essential distinction between an original application for the 901 enforcement of fundamental rights and an application to review the order made therein. It was there observed: The main purpose of a review petition is not to enforce a fundamental right, but to reopen an order vitiated by an error on the face of the record or for such other reasons. But it is said that the effect of reopening of the earlier order would be to restore his application to enforce the fundamental right and, therefore, in effect and substance, an application to review such an order is also an application to enforce the fundamental right. It may be that this is a consequence of reopening an order, but the application itself, as we have said, is not to enforce the fundamental right. Is there any nexus between the elimination of oral advocacy and the goal of dispensation of justice ? Counsel urge there is none. We cannot agree. The goal to be attained is maximisation of judicial time and celerity of disposal of review petitions. And, despite the heavier burden thrown on the judges during the hours outside court sittings by agreeing to read through and discuss the review papers for themselves, there is obvious acceleration of disposal of review petitions without intrusion into court time. Equally clearly, the benches are able to spare more time for hearing cases. To sum up, the advantages of the circulation system linked up with the objects of saving judge time in court and prompter despatch of review petitions are obvious. To organize review Benches of the same judges who first heard the case only to last for a few minutes or a little longer, then to disperse and re arrange regular Benches, especially when most of the review petitions are repeat performances in futility, is a judicial circus the court can ill afford. The rule is rational, the injury is marginal. The magic of the spoken word, the power of the Socratic process and the instant clarity of the bar bench dialogue are too precious to be parted with although a bad advocate can successfully spoil a good case if the judges rely only on oral arguments for weaving their decision. The written brief, before careful judges, can be a surer process of deeper communication than the 'vanishing cream ' of speaking submissions. And a new skill preparation of an effective brief, truly brief, highly telling and tersely instructive is an art of the pen worth the acquisition especially when, in practice, there are many gifted lawyers who go with Goldsmith who 'wrote like an angel and talked like poor Paul '. India is neither England nor America and our forensic technology must be fashioned by our needs and resources. 902 Indeed, in this Court, counsel have begun to rely heavily, with good reason, on written submissions and oral 'sweeteners '. The Bench can never go it alone. The bar must collaborate and catalyse. Nor is there any attempt, in this circulation rule, to run away from the open. Secret sittings, exclusion of the public and cabals in conclave are bete noire for the judicial process. A review implies an earlier full hearing and, if warranted, a future further hearing. Every measure has to be viewed in perspective, not out of focus. The consternation that the court, by hidden procedures, may undo the 'open ' heritage is a chimerical fear or a disingenuous dread. In other jurisdictions which our jurists hold in anglophilic esteem, this practice is current coin. The balancing of oral advocacy and written presentation is as much a matter of principle as of pragmatism. The compulsions of realities, without compromise on basics, offer the sound solution in a given situation. There are no absolutes in a universe of relativity. The pressure of the case load on the judges ' limited time, the serious responsibility to bestow the best thought on the great issues of the country projected on the court 's agenda, the deep study and large research which must lend wisdom to the pronouncements of the Supreme Court which enjoy awesome finality and the unconscionable backlog of chronic litigation which converts the expensive end product through sheer protraction into sour injustice all these emphasise the urgency of rationalising and streamlining court management with a view to saving court time for the most number of cases with the least sacrifice of quality and turnover. If without much injury, a certain class of cases can be disposed of without oral hearing, there is no good reason for not making such an experiment. If, on a close perusal of the paper book, the judges find that there is no merit or statable case, there is no special virtue in sanctifying the dismissal by an oral ritual. The problem really is to find out which class of cases may, without risk of injustice, be disposed of without oral presentation. This is the final court of provisional infallibility, the summit court, which not merely disposes of cases beyond challenge, but is also the judicial institution entrusted with the constitutional responsibility of authoritatively declaring the law of the land. Therefore, if oral hearing will perfect the process it should not be dispensed with. Even so, where issues of national moment which the Supreme Court alone can adequately tackle are not involved, and if a considerable oral hearing and considered order have already been rendered, a review petition may not be so demanding upon the judge 's 'Bench ' attention, especially if, on the face of it, there is nothing new, nothing grave at stake. Even here, if there is some case calling for examination or suggestive 903 of an earlier error, the court may well post the case for an oral hearing. (Disposal by circulation is a calculated risk where no problem or peril is visible.) Oral argument has been restricted at several stages in the judicial process in many countries. In the United States the problem of a large number of frivolous petitions for re hearing (in our diction, review) filed by counsel provoked the court into framing restrictive rules of hearing. One of the rules prescribes: A petition for rehearing is not subject to oral argument, and will not be granted, unless a justice who concurred in the judgment or decision desires it, and a majority of the court so determines. In England, leave to appeal to the House of Lords is a pattern of proceedings where obligatory oral hearing does not always exist. The recent practice direction may be usefully referred to here: As from October 1, 1976 Petitions for leave to appeal to the House of Lords will be referred to an Appeal Committee consisting of three Lords of Appeal, who will consider whether the petition appears to be competent to be received by the House and, if so, whether it should be referred for an oral hearing. Where a petition is not considered fit for an oral hearing, the Clerk of the Parliaments will notify the parties that the petition is dismissed. Justice John M. Harlan of the U.S. Supreme Court wrote, while explaining the need for controlling court work within manageable proportions, . it would be short sighted and unwise not to recognise that preserving the certiorari system in good health, and in proper balance with the other work of the Court, are matters that will increasingly demand thoughtful and imaginative attention. As I have tried to show, the essence of the problem as things stand today is to guard against wasteful encroachments upon the Court 's time by preventing an increase in, if not reducing, the volume of improvident applications for certiorari. (emphasis added) 904 It is significant that in the U. section Supreme Court leave to appeal is decided in conference, not in court and even in regular hearing the maximum time for argument is often restricted in the highest court. Under r. 28 it is one hour for each side. The mechanics of controlling argument time is interesting and instructive. Counsel arguing should keep track of his own time when he started and how much he has left. There is large clock in front of him. A note on the counsel table admonished counsel not to ask the Chief Justice what time remains. When counsel has only five minutes left, a white light on the lectern immediately in front of him goes on. When time has expired, a red light goes on. The Chief Justice is likely to stop counsel immediately, seldom allowing him to do more than to finish his sentence. The red light also marks the time to recess for lunch at two o 'clock, and the end of the day 's session at 4.30 p.m. The rationale of reducing oral submissions without danger to efficacy or advocacy is explained by George Rossman, Associate Justice of the Supreme Court of Oregon: Crowded dockets have forced appellate courts to curtail the time allotted for oral argument, with the result that some members of the profession wonder whether courts care for oral argument. The practice of today shows that advocacy can be effective even though the period of delivery is short. Some attorneys can be effective even though the period of delivery is short. Some attorneys can do wonders in thirty minutes when nothing more is available. The English practice, of course, is different. Delmar Karlan has correctly set out the situation: In the United States, oral arguments are secondary in importance to the briefs, and are rigidly limited in duration. In the United States Supreme Court, one hour is allowed to each side, but in many appellate courts, less time that is permitted, frequently no more than fifteen minutes Or a half hour for each side. Reading by counsel is frowned upon. The judges do not wish to hear what they can read for themselves. They expect to get all the information they need 905 about the judgment below, the evidence and the authorities relied upon from studying the briefs and record on appeal. They do not even encourage counsel to discuss in detail the precedents claimed to govern the decision, preferring to do that job by themselves in the relative privacy of their chambers, with or without the assistance of law clerks. In England, where there are no written briefs, oral arguments are all important. They are never arbitrarily limited in duration. While some last for only a few minutes, others go on for many days, even weeks. The only control ordinarily exercised over the time of oral argument are informal, ad hoc suggestions from the judges. The methods of the Marble Palace in Washington D.C. have some relevance though certainly not compulsiveness for us. John Frank writes: As the docket of the Court became more crowded, necessarily the time allowed for argument had to shrink. Under today 's system the time is either a half hour or an hour for each side, depending on the complexities of the case. This obviously precludes long introductions or eloquent perorations. Time is usually rigidly controlled; the legend is that Chief Justice Hughes once cut off an attorney in the middle of the word "if". If there are not too many interruptions, the hour is sufficient; lawyers must learn to be brief. We assume that judges will be up to the additional strain. We have stated enough to establish that judicial justice is not sabotaged by the eclipse of oral argument in a small sector of the forensic process. That is all that has been done by the amendment. A brief comparison between the earlier and the current position will bring this out. In the earlier rule a certificate by the lawyer was a condition precedent for entertainment of the review proceeding. In the revised rule, no certificate by counsel but certification by the Bench that, prima facie an infirmity of the kind mentioned in the rule vitiates, the judgment takes its place. Thereafter in both cases oral advocacy follows. Thus the only difference is not, as is some times assumed, that oral arguments are for the first time and finally cut out. Even now, oral hearing may be given and is given, not routinely but if ground is made out to the satisfaction of the judges who first heard the case (ignoring exceptional situations for the present). We have stated enough to repel 906 the attack on the vires of the rule. Nothing arbitrary, nothing arcane, nothing obnoxious, given a sober appraisal. The possible impression that we are debunking the value of oral advocacy in open court must be erased. Experience has shown that, at all levels, the bar, through the spoken word and the written brief, has aided the process of judicial justice. Justicing is an art even as advocacy is an article Happy interaction between the two makes for the functional fulfilment of the court system. No judicial 'emergency ' can jettison the vital breath of spoken advocacy in an open forum. Indeed, there is no judicial cry for extinguishment of oral argument altogether. But the time has come for a proper evaluation of the role of oral argument at the appellate level in the decisional process. Justice Harlan has insisted that oral argument should play a leading part. It is not "a traditionally tolerated part of the appellate process" but a decisively effective instrument of appellate advocacy. He rightly stresses that there are many judges "who are more receptive to the spoken than the written word". He hits the nail on the head when he states: For my part, there is no substitute, even within the time limits afforded by the busy calendars of modern appellate courts, for the Socratic method of procedure in getting at the real heart of an issue and in finding out where the truth lies. We wholly endorse the conclusion of that experienced Judge of the United States Supreme Court when he concludes his thesis on oral arguments: Oral argument is exciting and will return rich dividends if it is done well. And I think it will be a sorry day for the American bar if the place of the oral argument in our appellate courts is depreciated and oral advocacy becomes looked upon as a proforma exercise which, because of tradition or because of the insistence of his client, a lawyer has to go through. The importance of oral advocacy has been the subject of many articles by learned writers. As Frederick Bernays Wiener writes in the Harvard Law Review: Appellate judges, virtually without exception, say that a case should never be submitted without oral argument. A good many are on record in print to the same effect, and 907 add that they feel a sense of genuine regret whenever the clerk announces that a case is being submitted on briefs alone. These expressions reflect the fact the task of judgment is infinitely harder when counsel is not present to be questioned regarding his exact position or the limits of a principle he has argued in the brief. We concur with the view expressed by American Judges on oral advocacy In the Supreme Court, flexibility is especially essential Chief Justice Hughes in 1928 characterised the argument before the Supreme Court as "oral discussions". The then Professor Frankfurter stated in 1933, "The atmosphere of the Court is uncongenial to oratory and the restrictions imposed on counsel tend to deflate rhetoric. But true argument the exploration of issues, particularly through sharp questioning from the bench continues to be one of the liveliest traditions of the Court." Thus, among the methods of persuasion, the power of the spoken word cannot be sacrificed without paying too high a price in the quality of justice especially in the Supreme Court litigation. Maybe, that the brief is valuable; indeed, a well prepared brief gives the detailed story of the case; the oral argument gives the high spots. The supreme success of oral argument and the grave risk of jettisoning it from the repertoire of persuasive arts in the judicial process consists in George Rossman 's observation: The oral argument can portray the case as a human experience which engulfed the parties but which they could not solve. Thus, the oral argument can help to keep the law human and adapted to the needs of life. It typifies the Bar at its best. We may sum up that the value of oral submissions need not be under rated nor of written briefs over rated. A blend of both is the best. It is apt to repeat the words of Judge Brian Mckenna. The fault is that the rules of our procedure which by their discouragement of written argument make possible extensively protracted bearings in open court. Those responsible might think more of changing them. In civil cases a written argument supplemented by a short oral discussion, would sometimes save a great deal of time. 908 The judicial process is in crisis not because there is a flood of cases flowing into the courts. In a developing country with an awakened people and democratic rights, it is inevitable that the litigative Ganga may swell in its stream, but as justice Warren Burger wrote: In the final third of the century we are still trying to operate the courts with fundamentally the same basic methods, the same procedures and the same machinery, Roscoe Pound said were not good enough in 1906. In the super market age we are trying to operate the courts with cracker barrel corner grocer methods and equipment vintage 1900. We have to introduce management techniques and sensitive skills in the administration of justice if its present pathological conditions are to receive therapeutic attention. The Rule regarding the disposal of review petitions by circulatory conference, supplemented by oral hearing in appropriate cases, is one small step in the right direction. Indeed, by modernising our procedure we are furthering social justice for which the litigant community is waiting. We have set out the parameters of judicial procedure vis a vis original hearings and review hearings having due regard to the realities of forensic life. In the dynamics of hearing orality does play a role at the first round, but at the second round in the same court is partly expendable. After all, romance with oral hearing must terminate at some point. Nor can it be made a "sacred cow" of the judicial process. Comparative law lends confidence and from that angle we may refer to Halsbury (Vol. 10, para 761) where disposal, without oral hearing, of petitions to leave to appeal to the House of Lords is mentioned. Likewise, American Jurisprudence (Vol. 5 para 979 especially footnote 13) endorses a similar procedure. Sri Mridul pressed upon us that this judge made legislation at the highest level was so plainly violative of article 14 an objection not spelt out in any writ petition before us that, without seeking refuge under the rule of practice that a point not raised in the writ petition may not be allowed to be urged, the judges must invalidate their own handiwork. Surely, Justice and Truth are never afraid of exposure nor bothered about prestige. Certainly, drafting legislation is not an easy art and judges are not artists beyond their orbit. Even otherwise, Homer nods. Therefore, if we find our rules void we must declare so and we will. The omission of the ground of discrimination in the pleadings may often forbid the argument because the other side may be prejudiced or the necessary facts may not be on record. But here 909 no such disability exists. A technical objection should not throw out a suitor from the plea for justice. After all, the courts belong to the people, as Jerome Frank once said. And litigants are legal patients suffering from injustices seeking healing for their wounds. Would you tell a sufferer in hospital that because he disclosed a certain symptom very late therefore he would be discharged without treatment for the sin of delayed disclosure ? Humanism, which, at bottom sustains justice, cannot refuse relief unless, by entertaining the plea, another may sustain injury. We have permitted the contention and proceed to consider it. The rule, on its face, affords a wider set of grounds for review for orders in civil proceedings, but limits the ground vis a vis criminal proceedings to 'errors apparent on the face of the record '. If at all, the concern of the law to avoid judicial error should be heightened when life or liberty is in peril since civil penalties are often less traumatic. So, it is reasonable to assume that the framers of the rules could not have intended a restrictive review over criminal orders or judgments. It is likely to be the other way about. Supposing an accused is sentenced to death by the Supreme Court and the 'deceased ' shows up in court and the court discovers the tragic treachery of the recorded testimony. Is the Court helpless to review and set aside the sentence of hanging? We think not. The power to review is in article 137 and it is equally wide in all proceedings. The rule merely canalises the flow from the reservoir of power. The stream cannot stifle the source. Moreover, the dynamics of interpretation depend on the demand of the context and the lexical limits of the text. Here 'record ' means any material which is already on record or may, with the permission of the court, be brought on record. If justice summons the judges to allow a vital material in, it becomes part of the record, and if apparent error is there, correction becomes necessitous. The purpose is plain; the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from article 137 and is as wide for criminal as for civil proceedings. Even the difference in phraseology in the rule (Order 40 Rule 2) must, therefore, be read to encompass the same area and not to engraft an artificial divergence productive of anomaly. If the expression 'record ' is read to mean, in its semantic sweep, any material even later brought on record, with the leave of the court, it will embrace subsequent events, new light and other grounds which we find in Order 47 Rule 1 C. P. C. We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source. 910 True, the review power vis a vis criminal matters was raised only in the course of the debate at the Bar. But when the whole case is before us we must surely deal comprehensively with every aspect argued and not piecemeal with truncated parts. That will be avoidance of our obligation. We have, therefore, cleared the ground as the question is of moment, of frequent occurrence and was mooted in the course of the hearing. This pronouncement on review jurisdiction in criminal proceedings sets at rest a possible controversy and is as much binding on this Court itself (unless over ruled) as on litigants. That is the discipline of the law of precedents and the import of article 141. As we conclude, we wish to set the sights aright vis a vis oral hearings in judicial proceedings. To put superstitious faith in oral submissions or unlimited argumentation as the sole means of presentation and persuasion and to debunk the potency of well drawn up manuscript representations may be condemned as absurd. True, our judicial culture nourishes oral advocacy and public hearing since secret cerebrations and cabal deliberations are ordinarily anathema. Speaking generally, oral advocacy is a decisive art in promoting justice. The Bench cannot dispense with the Bar. In our system advocacy becomes functional when present viva voce and is enfeebled if presented in muted print. We do not claim that orality can be given a permanent holiday. Such an attitude is an over reaction to argumentum ad nauseum. But we must importantly underscore that while lawyer 's advocacy cannot be made to judicial measure especially if judges are impatient, there is a strong case for processing argumentation by rationalisation, streamlining, abbreviation and in, special situations, elimination. Review proceedings in the Supreme Court belongs to the last category. There is no rigidity about forensic strategies and the court must retain a flexible power in regard to limiting the time of oral arguments or, in exceptional cases, eliminating orality altogether, the paramount principle being fair justice. Therefore, it is quite on the cards that where no injury to justice will be all, orality may suffer partial eclipse in the shape of time limitation or substitution by written submission even in categories other than review proceedings. All that we mean to indicate is that the mode of 'hearing ', whether it should be oral or written or both, whether it should be full length or rationed, must depend on myriad factors and future developments. Judges of the Supreme Court must be trusted in this regard and the Bar will ordinarily be associated when decisions affecting processual justice are taken. We thus see no disparity given flexibility in decoding the meaning of meanings. We see no force in the challenges and do hope that the Bar will make its contribution to making experiments in modernization and humanization of the Justice System and court culture. 911 PATHAK, J. We are in general agreement with our brother V. R. Krishna Iyer on the points directly in controversy in this writ petition, but we consider it desirable to say a few words on certain aspects concerning the scope of Rule 3 of Order XL of the Supreme Court Rules, 1966. At the outset, we may state that as we are considering the question of the need for an oral hearing in relation to a review application only, we refrain from expressing any opinion on the point whether an oral hearing is an imperative requirement in the disposal of other kinds of cases brought before the Court. That is a point to which, we think, we should address ourselves only when it directly arises. In regard to a review application we are clear that an oral hearing is not an essential requirement if on a preliminary examination the review application is found to be devoid of substance. A review application is an attempt to obtain a reconsideration of the judgment of the court disposing of the substantive proceeding. It attempts nothing more. The merits of the controversy have already been examined by the Court and, in view of the ordinary scope of the power of review, the re examination sought cannot proceed beyond the controversy already disposed of. It is substantially the same ground traversed again, either entirely or in part. However, the Rule takes care to provide for oral arguments should the Court consider that necessary. That necessity may arise in either of two cases. On the review application being placed before the judges, they will consider it together with any additional written arguments filed by the petitioner in supplementation of the review application. If the judges hold on that screening of the review application that there is no case what ever for review, they will reject the review application. On the contrary, they may find that a good prima facie case for review has been made out, and so they will direct notice to issue to the respondent, and upon that an oral hearing will take place in the presence of the parties. That is one occasion on which an oral hearing is necessary. If the judges are not convinced that a prima facie case has been made out by the review application, but are also not satisfied that there is no merit whatever in it, and are of opinion that in order to come to a definite opinion prima facie on the merits of the review application it is desirable to hear the applicant orally they will notify him accordingly and afford an opportunity of oral hearing. On such oral hearing, the judges may dismiss the review application if finally satisfied that there is no prima facie case for review, but in the event of a prima facie case being made out they will issues notice to the respondent and an oral hearing will follow in the presence of the parties. It is apparent that the denial of oral argument is confined to the preliminary stage 912 only, when the review application is placed before the judges and, as it were, they screen it for the purpose of determining whether there is reason to proceed further in the matter or whether it merits outright rejection. It is not possible to hold on principle that at that preliminary stage also, the applicant for review is entitled to be heard orally. The merit of an oral hearing lies in this that counsel addressing the court are able to discern what are the aspects of the controversy on which more light is needed. The Court likewise can utilise an oral hearing in order to express its doubts on a point and seek clarification thereon from counsel. But if there is on doubt whatever that the review application is totally without substance, an oral hearing becomes a superfluity and, at best, a mere formality. A written submission is capable of careful drafting and explicit expression, and is amenable to such arrangement in its written content that it pointedly brings to the notice of the reader the true scope and merit of the submission. We do not believe that a written submission in a review application cannot do adequate justice in the matter of setting forth the case of the litigant. If there is need for an oral hearing it is for the reason mentioned earlier, that counsel come to know of the doubts in the mind of the Court and the court has an opportunity of having its doubts resolved. It is this feature of an oral hearing which gives to it its primary value and relevance. But that an oral hearing is mandatory in all classes of cases and at every stage of every case is a proposition to which we find ourselves unable to accede. The writ petition is dismissed, but without any order as to costs. P.B.R. Petitions dismissed.

A sum of Rs. 15000/ was advanced to the Respondent by the appellant for the purpose of setting up a panel pins and wire nails industry in Hardoi on the former hypothecating under the mortgage deed his house by way of security for the loan. The respondent committed default in repayment of the loan. The State Government was compelled to take coercive measures to recover the balance of the amount due and payable under the deed as if it were an arrear of land revenue by resorting to section 3 of the Public Moneys (Recovery of Dues) Act, 1965 read with sections 279/281 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. The respondent, therefore, filed a petition under Article 226 of the Constitution on the file of the High Court of Allahabad (Lucknow Bench) questioning the competence of the revenue authorities to recover the balance of the amount due under the deed as if it were an arrear of land revenue on the ground of violation of Article 14 of the Constitution. Following the decision of this Court in Northern Indian Caterers P. Ltd. and Anr. vs State of Punjab and Anr. , ; (which held the field at that time and since overruled) the High Court declared that Section 3 of the Act violated Article 14 of the Constitution and quashed the recovery proceedings initiated by the revenue authorities. Allowing the appeal by certificate, the Court ^ HELD: Section 3 of the Public Moneys (Recovery of Dues) Act 1965 which enables the State Government to recover the sums advanced under the circumstances mentioned therein, as if these were arrears of land revenue cannot be held to be discriminatory and violative of Article 14 of the Constitution. [1023D E] (a) Section 3(1)(c) of the Act provides that where any person is a party to any agreement providing that any money payable thereunder to the State Government shall be recoverable as arrear of land revenue and such person makes any default in repayment of the loan or advance or any instalment thereof then the arrear due and payable by him may be recovered as if it were an arrear of land revenue by issuing a certificate to the Collector. The remedy of the State Government to recover the amount by instituting a suit also remains unaffected by the Act. [1019G H] (b) There is reasonable basis for the classification made by the statute and that the classification does have a reasonable relation to the object of the statute. The Act is passed with the object of providing a speedier remedy to the State Government to realize the loans advanced by it or by the Uttar Pradesh Financial Corporation. The State Government while advancing loans does not act as an ordinary banker with a view to earning interest. 1016 Ordinarily it advances loans in order to assist the people financially in establishing an industry in the State or for the development of agriculture, animal husbandry and for such other purposes which would advance the economic well being of the people. The amounts so advanced are repayable in easy instalments with interest which would ordinarily be lower than the rate of interest payable on loans advanced by banking institutions which are run on commercial lines. The loans are advanced from out of the funds of the State in which all the people of the State are vitally interested. Moneys advanced by the State Government have got to be recovered expeditiously so that fresh advances may be made to others who have not yet received financial assistance from the State Government. If the State Government should resort to a remedy by way of a suit on the mortgage deeds or bonds executed in its favour, the realization of the amounts due to the Government is bound to be delayed resulting in non availability of sufficient funds in the hands of the State Government for advancing fresh loans. It is with the object of avoiding the usual delay involved in the disposal of suits in civil Courts and providing for an expeditious remedy, the Act has been enacted. In the instant case, the mortgage deed provided that the amount due thereunder could be realised as if it were an arrear of land revenue: and [1020B G] (c) The mere fact that there is no express provision in the Act containing guidelines to the authorities concerned regarding the circumstances under which the amounts could be realized by resorting to the procedure prescribed for recovering arrears of land revenue, however, in the circumstance of the case is not sufficient to hold that section 3 of the impugned Act confers arbitrary power on the State Government and makes a hostile discrimination. The Act which is passed with the object of providing a speedier remedy itself provides sufficient guidance to the officer concerned as to when he should resort to the remedy provided for. [1021A C] Shri Mannalal and Anr. vs Collector of Jhalwar and Ors, ; ; Lachhman Das on behalf of Firm Tilak Ram Bux vs State of Punjab & Ors., ; and Maganlal Chhagganlal (P) Ltd. vs Municipal Corporation of Greater Bombay and Ors., ; followed.

vil Appeals Nos. 893 to 892 and 1381 to 1386 of 1966. Appeals from the judgment and order dated December 7, 1962 of the Andhra Pradesh High Court in Case Referred No. 24 of 1956. D. Narsaraju, P. Ramrao, K.R. Chaudhuri and K. Rajendra Chaudhuri, for the appellants (in C.As. Nos. 893 to. 898 of 1966) and the respondents (in C.As. 1281 to 1386 of 1966). Jagdish Swarup, Solicitor General, S.K. Aiyar and R.N. Sachthey, for the respondent (in C.As. Nos. 893 to 898 of 1966) and ' the appellant (in C.As. 1381 to 1386 of 1966). The Judgment of the Court was delivered by Ramaswami, J. The assessee who Is the Kartha of a Hindu Undivided Family was assessed in that status for the relevant assessment years, 1944 45, 1945 46, 1946 47 not only to incometax but also to excess profits tax. On February 1, 1941 he purchased from Randhi Appalaswamy (hereinafter referred to as the vendor) a spinning mill known. as Sri Satyanarayana Spinning 728 Mills, Rajahmundry for a sum of Rs. 54,731. The purchase was made at a period when there was litigation between the sons of the vendor and the vendor in respect of the spinning mill and other properties. The sons had filed a suit against the father, the vendor, claiming the schedule properties including the mill as joint family properties and for partition of the same. The vendor claimed that the properties were his self acquired properties. The District Judge, Rajahmundry held that the properties were the self acquired properties of the vendor and dismissed the suit of the plaintiffs. Against the judgment of the District Judge an appeal was filed in the Madras High Court, being A.S. No. 175 of 1938. While the appeal was pending, on February 1, 1941 the assessee purchased the mill from the vendor who purported to sell the same as the sole owner. In A.S. No. 175 of 1938 the Madras High Court held that the properties of the vendor were not his self acquired properties but were joint family properties in which the plaintiffs had a two thirds share. Against this judgment the vendor preferred an appeal to the Privy Council. While that appeal was pending the assessee had submitted returns for the relevant assessment years. However, before the assessments were taken up the assessee entered into a compromise with the plaintiffs on September 7, 194S by virtue of which he got a release of the interest of the vendor 's sons on payment of Rs. 1,15,000. While the appeal was pending before the Privy Council the plaintiffs had applied to the High Court for recovery of their share of the profits. The High Court appointed the assessee as the Receiver directing him to deposit the profits in the High Court. The assessee deposited a sum of Rs. 1,09,613 for the year 1944 45, Rs. 31,087 for the year 1945 46 and Rs. 4,775 for the year 1946 47. Under the compromise the assessee was entitled to withdraw these amounts on payment of Rs. 1,15,000. The Privy Council decided the appeal on July 2, 1947 reversing the order of the High Court and restoring that of the District Judge holding that Appalaswamy was the absolute owner of the mill and the sons had no right, title or interest therein. On receipt of the Privy Council 's decision which finally determined the rights of the parties and the ownership of the assessee in the mill, the Income tax Officer issued on March 2, 1948 a notice under section 34 of the Income tax Act in respect of Rs. 1,09,613 received by the assessee as lease income of the mill. It was contended for the assessee (1 ) that the proceedings initiated under section 34 of the Act for the year 1944 45 assessment were invalid in law as there was no new information leading to the discovery that income had escaped assessment, (2 ') that in any event the assessee was entitled to set off the sum of Rs. 1,15,000 paid to the sons of Appalaswamy under the compromise approved by the High Court for releasing their rights. if any, in the mill against the assessee 's income from the mill. The 729 Income tax Officer rejected these contentions and treated the whole amount of Rs. 1,15,000 as paid toward capital expenditure in acquiring an asset. The Appellate Assistant Commissioner rejected the appeal of the assessee. The Tribunal affirmed the order of the Appellate Assistant Commissioner. It held in the first place that the assessee had not disclosed the impugned source of income from the mill in his original assessment, that the matter as to the assessee 's ownership of the mill was sub judice and that the decision of the Privy Council constituted information not only of law but also as to the factum of the ownership of the Mill and the income therefrom. The Tribunal expressed the view that the sum of Rs. 1,15,000 could not be allowed to be set off against the assessee 's income from the mill as it was an ex gratia payment to the sons of Appalaswamy who had no right, title or interest in the mill and it was paid in order to perfect a supposed defective title and as such was of capital nature. Thereafter the Income tax Appellate Tribunal stated a case to the High Court under section 66(2) of the Indian Income tax Act, 1922 on the following questions of law: "R. A. NO. 779 which relates to the assessment year 1944 45: (1) Whether on the facts and in the circumstances of the case, in respect of the assessment year 1944 45, the assessment made on the assessee in the status of a Hindu undivided family in respect of income received by him as Receiver could be justified notwithstanding the provisions of section 41 of the Act ? (2) Whether, on the facts and in the circumstances of the case, the assessment of the entire income of Rs. 1,09,613 in the hands of the assessee is valid in the face of the compromise memo, dated 7 9 1945 approved by the Court? (3) Whether, on the facts and in the circumstances of the case, the assessee is not entitled to set off Rs. 1,15,000 being the amount paid to the minors for releasing their fights in the property from out of the amount received from the mill ? R.A. No. 780 which relates to assessment year 1945 46: (1) Whether on the facts and in the circumstances of the case, the assessment made under section 34 of the Act is valid in law ? (2) Whether on the facts and in the circumstances of the case, in respect of the assessment year 1945 46, 730 the assessment on the assessee in the status of a Hindu undivided family in respect of the income received by him as Receiver could be justified notwithstanding the provisions of Section 41 of the Act ? (3) Whether, on the facts and in the circumstances of the case, the assessment of the entire income of Rs. 31,087 in the hands of the assessee is valid in the face of the compromise memo, dated 7 9 1945 approved by the Court ? (4) Whether, on the facts and in the circumstances of the case, the assessee is not entitled to set off Rs. 1,15,000 being the amount paid to the minors for releasing their rights in the property from out of the amount received from the mill ? R.A. No. 781 which relates to assessment year 1946 47: (1) Whether, on the facts and in the circumstances of the case, in respect of the assessment year 1946 47 the assessment on the assessee in the status of a Hindu undivided family in respect of income received by him as Receiver could be justified, notwithstanding the provisions of section 41 of the Act ? (2) Whether, on the facts and in the circumstances of the case, the assessment of the entire income of Rs. 4,775 in the hands of the assessee is valid in the face of the compromise memo, dated 7 9 1945 approved by the Court ? (3) Whether on the facts and in the circumstances of the case, the assessee is not entitled to set off Rs. 1,15,000 being the amount paid to the minors for releasing their right in the property from out of the amount received from the Mill ?; ' The Appellate Tribunal pointed out in the statement of the case that question No. 1 in R.A. No. 780 for the assessment year 1945 46 pertained to the earlier assessment year 1944 45 in R.A. No. 779 and also that question No. 2 in R.A. No. 780 and R.A. No. 779 for the assessment year 1945 46 and the corresponding excess profits tax assessment did not arise in that year but pertained to the earlier assessment year 1944 45 in R.A. No. 779 and the corresponding excess profits tax assessment in R.A. No. 782. The High Court answered question Nos. 1 and 2 in R.A. No. 779 and question No. 1 in R.A. No. 780 in the affirmative. 731 The High Court held that re assessment proceedings have been validly initiated under section 34 of the Act. The High Court found that the assessment on the assessee in the status of Hindu Undivided Family in respect of income received by him as Receiver was proper. The High Court thought that the basis of the compromise in the Madras High Court entered into between the assessee and the minor sons of the vendor Appalaswamy wherein the assessee paid Rs. 1,15,000 to the minor sons cannot be ignored. The High Court negatived the contention of the Income tax Department that the sum of Rs. 1,15,000 was paid to cure a supposed defect in the title and that it was a capital payment. Upon the interpretation of the terms of the compromise the High Court took the view that the amount of Rs. 1,15,000 was paid partly towards acquisition of capital asset and partly towards the discharge of the claim towards profits and hence it should be apportioned towards capital and income in the proportion of 90/85. 1381 to 1386 of 1966 are brought by certificate from the judgment of the High Court on behalf of the Commissioner of Income tax and C.A. Nos. 893 to 898 of 1966 were brought by special leave from the same judgment to this Court on behalf of the assessee. After the Amending Act of 1939 and before the Amending Act of 1948 Section 34 stood as follows: "(1) If in consequence of definite information which has come into his possession the Income tax Officer, discovers that income, profits or gains chargeable to income tax have escaped assessment in any year, or have been under assessed, or have been assessed at too low a rate, or have been the subject of excessive relief under this Act the Income tax Officer may in any ease in which he has reason to believe that the assessee has concealed the particulars of his income or deliberately furnished inaccurate particulars thereof at any time within eight years, and in any other case at any time within four years of the end of that year, serve on the person liable to pay tax on such income profits or gains 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 may proceed to assess or re assess such income, profit or gains, and the provisions of this Act, shall. so far as tony be, apply accordingly as if the notice were a notice issued under that sub section. . . . . . (2) No order of assessment under section 23 or of assessment or re assessment under sub section (1) of this 732 section shall be made after the expiry, in any case to which clause (c) of sub section (1) of section 28 applies, of eight years, and in any other case, of four years from the end of the year, in which the income, profits or gains were first assessable. The first question arising in this case is whether the proceeding under section 34 is legally valid. It was contended by Mr. Narasaraju that the decision of the Privy Council could not be said to be definite information within the meaning of the section. It was said that the Income tax Officer was fully aware of the circumstances of the case and the assessee had placed all the relevant facts before him namely that under the High ' Court 's judgment the vendor was only entitled to one third share of the income pending the decision of the appeal before the Privy Council. In our opinion there is no justification for tiffs argument. It is not true to say that the assessee brought all the relevant facts before the Income tax Officer. On the Contrary he deliberately suppressed the fact that there was a compromise between himself and the plaintiffs under which he was entitled to the whole of the income from the mill. At any rate the Privy Council 's decision which determined the rights of the parties irrespective of the compromise did constitute definite information within the meaning of section 34 of the Income tax Act. This view is borne out by the decision of this Court in Maharaja Kumar Kamal Singh vs Commissioner of Income tax. (1) In that case the Income tax Officer had, following the decision of the High Court in Kamakhya Narain Singh 's case(" ') omitted to bring to assessment for the year 1945 46 the sum of Rs. 93,604 representing interest on arrears of rent due to the assessee in respect of agricultural land on the ground that the amount was agricultural income. Subsequently the Privy Council, on appeal from that decision held that interest on arrears of rent payable in respect of agricultural land was not agricultural income. As a result of this decision the Income tax Officer initiated re assessment proceedings under section 34(1)(d) of the Income tax Act and brought the amount of Rs. 93,604 to tax. In these circumstances it was held by this Court firstly that the word information in section 34(1)(b) included information as to the true and correct state of the law, and so would cover information as to relevant judicial decisions, secondly that 'escape ' in section 34(1) was not confined to cases where no return had been submitted by the assessee or where income had not been assessed owing to inadvertence or oversight or other lacuna attributable to the assessing authorities. But even in a case where a return had been (1) (2) 733 submitted, if the Income tax Officer had erroneously failed to tax a part of the assessable income, it was a case where that part of the income had escaped assessment. The decision of the Privy Council, therefore, was held to be information within the meaning of section 34( 1 ) (b) and the proceedings for re assessment were validly initiated. In our opinion the principle of this decision governs the present case and it must be held that the proceedings initiated under section 34 for the assessment year 1944 45were legally valid. It was stated on behalf of the appellant that in any case the income tax Officer could have legitimately assessed one third share of the income which was due to the assessee according to the judgment of the Madras High Court and there was escape only to the extent of two third share of the income. This argument is not of much avail to the appellant because once proceedings under s.34 are taken to be validly initiated with regard to two third share of the income, the jurisdiction of the Income tax Officer cannot be confined only to that portion of the income. Section 34 in terms states that once the Income tax Officer decides to reopen the assessment he could do so within the period prescribed ' by serving on the person liable to pay tax a notice containing all or any of the requirements which may be included in a notice under section 22(2) and may proceed to assess or re assess such income, profits or gains. It is, therefore, manifest that once assessment is reopened by issuing a notice under sub section (2) of section 22 the previous under assessment is set aside. and the whole assessment proceedings start afresh. When once valid proceedings are started under section 34(1)(b) the Income tax Officer had not only the jurisdiction but it was his duty to levy tax on the entire income that had escaped assessment during that year. The second question involved in this case is whether the High Court was right in holding that any portion of the amount of Rs. 1,15,000 was liable to be treated as business expenditure. It is well established that where money is paid to perfect a title or as consideration for getting rid of a defect in the title or a threat of litigation the payment would be capital payment and not revenue payment. What is essential to be seen is whether the amount of Rs. 1,15,000 was paid for bringing into existence a right or asset of an enduring nature. In other words if the asset which is acquired is in its character a capital asset, then any sum paid to acquire it must surely be capital outlay. Money paid in consideration of the acquisition of a source of profit or ' income is capital expenditure both on principle and authority. In Atherton vs British Insulated and Helsby Cables Ltd.(1) Viscount Cave said: "But where an expenditure is made, not only once for all, but with a view to bringing into existence an (1) , 213. 734 asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circumstances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital. " In Commissioner of Taxes vs Nchanga Consolidated Copper Mines Ltd.(1) Lord Radcliffe observed at p. 960: "Courts have stressed the importance of observing a demarcation between the cost of creating, acquiring or enlarging the permanent (which does not mean perpetual) structure of which the income is to be the produce or fruit and the cost of earning that income itself or performing the income earning operations. Probably this is as illuminating a line of distinction as the law by itself is likely to achieve. " It is, however, contended on behalf of the assessee that the amount of Rs. 1,15,000 was paid partly for the acquisition of capital asset and partly to discharge the claim towards profits and hence there should be an apportionment of , '.he amount. It is not possible to accept this contention. It appears from the order of the High Court that the value of the mill was fixed at Rs. 1,15,000 after taking into consideration the fact that the mill was built on a leasehold premises. The value of the machinery was fixed at Rs. 1,36,000 and the leasehold interest was fixed at Rs. 14,000. On this basis the share of the minors was taken to be Rs. 90,000. In respect of the profits the claim of the plaintiffs was taken to be Rs. 85,000. The total claim was therefore Rs. 1,75,000 so that the offer of Rs. 1,15,000 for the release of the claim of the plaintiffs in the mill was held to be .fair. The High Court. therefore, certified the compromise to be for the benefit of the minor plaintiffs. In the course of its order, dated September 7, 1945 the High Court observed: "There are, however, numerous risks which the continuance of the litigation would necessarily involve. The Privy Council might hold that the null was the selfacquired property of the father, in which case the plaintiffs would get nothing and would incur a liability for costs. It might also be held that, though the property was the family property, the father was entitled as the natural guardian to sell the interests of minor sons in discharge of a binding family obligation. There is the further possibility that by the time the litigation ends the property will have deteriorated and its value will have (1) 735 been materially reduced. by the termination of the lease of the land. Taking all these contingencies into consideration we are of opinion that the offer made by the purchaser of Rs. 1,15,000 for the release of the claim, if any, of the two sons in the mill sold to him by their father is a fair offer, the acceptance of which would be beneficial to the minor second plaintiff. " It is true that the High Court took into consideration the income from the mill in testing whether the offer made by the purchaser of Rs. 1,15,000 for the release of the Claim of the plaintiffs was a fair offer. But that does not mean that the sons of Appalaswamy were given as a result of the compromise a share in the profits of the assessee. It is clear from the circumstances of this case that the payment of Rs. 1,15,000 was made by the assessee in order to perfect his title to capital asset and the assessee is not entitled to set off any portion of the amount as attributable to the lease money. It was a lump sum payment for acquisition of a capital asset and the claim of the plaintiffs for the lease money from the property was merely ancillary or incidental to the claim to the capital asset. In our opinion the High Court was in error in holding that the amount should be apportioned between capital and income. In the result so far as questions 3 and 4 in R.A. 779, questions 1 and 2 in R.A. 780 and questions 2 and 3 in R.A. 781 are concerned the answer is that the entire amount of Rs. 1,15,000 should be treated as capital payment and the assessee is not entiled to exclude from the income sought to be assessed in his hands any portion of that amount. We accordingly allow C.A. Nos. 1381 to 1386 of 1966 to the extent indicated above. C.A. Nos. 893 to 898 of 1966 are dismissed. There will be no order as to costs in either of two sets of appeals. C.A. Nos. 1381 to 1386/66 allowed. C.A. Nos. 893 to 898/66 dismissed.

In the elections to the Punjab Legislative Council from the local authorities constituency the appellant who was declared elected secured one vote more than the first respondent. The first respondent challenged the election of the appellant on the ground that the vote of H should have been held to be void as his name was included in the electoral roll after the last date for the filing of nomination in defiance of the provisions of section 23(3) of the Act. To this the appellant filed a recriminatory petition contending that the votes of two other persons B and S also were void as their names were included in the electoral roll after the last date for filing nominations. He also alleged that the vote of another voter T was void as he had become a government servant by the time the polling took place and therefore was disqualified to be a member of any local board. The High Court came to the conclusion that the votes of H, B and S were void and counting the validity cast votes declared the first respondent elected. But when on scrutiny it was found that of B and S one of them had actually cast his first preference to the appellant he contended that as the first respondent had not challenged the validity of those votes the trial court could not have excluded from consideration the vote cast in his favour by one of those persons. HELD: Section 23(3) takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral rolls or to include new names in the electoral 'rolls of a constituency after the last date for making the nominations for election in that constituency. It prohibits inclusion of any name in the electoral roll after the prescribed date whether the application for inclusion was made before or after that date. [848 G] Baidyanath Panjiar vs Sita Ram Mahto, ; followed. (ii) The election petition and the recriminatory petition are parts of one enquiry. As the validity off the three votes had come up for consideration and as it was held that those votes were void it necessarily followed that the votes had to be excluded in determining the result of the election. The fact that the first respondent did not challenge the validity of those votes was immaterial in the circumstances of the case. [848 D] (iii) There is no provision in the Act which disqualified T from voting and the question whether a particular vote was a valid vote or not has to be decided solely on the basis of the provisions of the Act. In view of section 30 of the 1950 Act the entries found in the electoral roll are final and civil courts have no jurisdiction to. entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll. [850 E] 846 B.M. Ramaswamy vs B.M. Krishnamurthy, [1963] 3 S.C.R. 479, referred to.

minal Appeal No. 123 of 1968. Appeal by special leave from the judgment and order dated May 3, 1968 of the Patna High Court in Criminal W.J.C. No. 17 of 1968 and Criminal Miscellaneous Case No. 447 of 1968. B. C. Ghose, section N. Misra and A. K. Nag, for the appellant. D. Goburdhun, for the respondent. The Judgment of the Court was delivered by Shelat, J. This appeal, by special leave, is. against the dismissal by the High Court of Patna of the Writ Petition and an application under section 561A of the Code of Criminal Procedure, for a writ of habeas corpus and an order of a like nature. filed by the appellant. Both of them were heard together as they contained common allegations and both were dismissed by a common judgment. In the two aforesaid proceedings, the case of the appellant was that he was arrested on February 18, 1968, that since then he had been detained in custody without being informed of the grounds for his arrest and detention and also without having been produced before a Magistrate either within 24 hours after his detention as required under the Code, or even thereafter. On February 21, 1968, he was removed to Darbhanga jail where he was threatened that he would be falsely involved in several cases of dacoity unless he made certain incriminating statements which the police wanted him to make. He made two applications from jail one on February 25, 1968, and the other on February 28, 131 1968 to the Sub Divisional Magistrate. The first was not received at all by the Magistrate, while the second was received but after 'a long time, and was rejected. He also alleged that thereafter he made two further applications, one dated March 22. 1968 and the other dated March 27, 196,8 wherein he applied for directions to the police to 'furnish him with particulars of offences charged against him and for bail, but that he received no order on either of them. On these allegations, he claimed release forthwith from detention and the quashing of the criminal proceedings against him. In the counter affidavit filed by the State before the High Court, it was stated that one Bilat Sahni and one Baleshwar Paswan made confessions before the Magistrate at Samastipur on 23rd and 24th January, 1968 confessing their own guilt and implicating the appellant and certain other persons, in about eight dacoity cases, all having been committed in that locality, Thereupon, the appellant was arrested on February 17, 1968 He was produced before the Sub Divisional Magistrate of Samastipur on February 18, 1968, but was remanded to police custody by the said Magistrate for four days on an application by the police therefore. On February 21, 1968, the appellant was once again produced before the same magistrate and on an application by the police he was remanded to jail custody. The affidavit alleged that the appellant was involved in as many as nine dacoity case; wherein remand orders had been passed from time to time and that that was how he had, since February 21, 1968, been detained as an under trial prisoner. On April 19, 1968, an identification parade was held in connection with one, of the said nine cases whereat the relevant complainant identified the appellant. The case of the State was that the appellant was one of the three leaders engaged with certain hardened criminals in the aforesaid several dacoity cases, that it Was not true that he was unaware of the case against him or that he was not produced before the magistrate or that he was kept in prison without proper remand orders having been passed by the Magistrate. Five contentions were raised before the High Court, viz., (1) that the appellant was never produced before any magistrate within 24 hours after his arrest or even thereafter; hence his detention was in breach of article 22 of the Constitution, (ii) that although the order sheet, in respect of Laheriasarai Police Station Case No. 1 of 1968, records that the appellant had been produced before the Magistrate on several days set out therein, that order sheet had been falsely made; (iii) that the magistrates had no power to detain the appellant in jail in excess of 15 days in all, (iv) that even if he had the power to remand him in excess of 15 days in all, the condition for passing such orders was not 13 2 satisfied, and (v) that no remand order was factually ever passed. None of these contentions was accepted by the High Court, and the High Court, therefore, dismissed, as aforesaid, both the applications on May 3, 1968. Mr. Ghose, who appeared for the appellant before the High Court and who appeared before us also raised the following points: (1) that the appellant was not produced before any magistrate either on February 18, 1968 or on any other date thereafter, (2) that the appellant was never informed of the ,,rounds for his arrest, and detention thereafter, (3) that no custody warrant was ever issued warranting the jail authorities to keep the appellant in jail custody, and (4) that assuming that the said remand orders were passed, the appellant could not be kept in jail custody for more than 15 days in the whole. On the basis of these four points he urged that the appellant 's arrest .and detention were illegal and that therefore he was entitled to be released forthwith and the criminal proceedings instituted against him by the police quashed. Mr. Ghose also made a point that the jail Superintendent did not produce before the High Court the jail records which would show his having been taken out of the jail for being produced before the Magistrate when the magistrate decided the applications for remand by the police and passed the remand orders said to have been passed by him and that instead the jail Superintendent produced his report, thus disabling the appellant from establishing his case as laid in his writ petition. We may at this stage dispose of Mr. Ghose 's last point in regard to the non production of the jail record before the High ,;Court. It is true that the appellant did ask for production of that record first in the writ petition, and then on April 22, 1968 to which date the hearing of the writ petition was adjourned. But the order sheet maintained by the High Court in connection with the writ petition and the said application under section 561A of the Code shows that when the writ petition came up for admission, the learned Judges called for the record of the Magistrate 's Court and report from the jail superintendent regarding the dates on which the appellant was said to have been produced before the Magistrate for the purpose of the hearing of the remand applications. It appears that on April 22, 1968, to which date the writ petition was made returnable, neither the record of the Magistrate 's Court nor the report of the jail Superintendent had arrived. On that day, the appellant made an application for his production in Court at the time of the hearing and for the production of the jail record. The High Court, how ever, rejected the prayer for his production in Court and as regards the jail record ordered as follows: 133 so far as the production of the record of the jail is concerned, an express reminder by telegram may be sent to the Superintendent of jail to send the report already called for immediately, if possible by a special messenger. A reminder may also be sent to the Court concerned to send the records immediately, if possible, by a special messenger. " The High Court does not seem to have pressed for the produc tion of the jail record as it presumably thought that the Court 's record would show the dates when the appellant was produced before it and the Superintendent 's report would make that point clear. It 'appears from that order that the appellant also was content with the production of the Superintendent 's report and did not press for the calling of jail record. The judgment of the High Court also shows that that was also the case when the High Court heard the writ petition and the said section 561A application. Neither the order sheet nor the judgment of the High Court seems to warrant the allegations made in para 28 of the Special Leave Petition that repeated prayers were made for the production of the jail record. In any event, no prejudice appears to have been caused to the appellant 's case since the jail record could not have proved anything more than what the jail Superintendent 's report proved. The report, which was before the High Court, clearly pointed out that the appellant was remanded to jail custody on February 21, 1968 by the Sub Divisional Magistrate, Sadar in the case under section 395 of the Penal Code. The next date for his appearance was fixed on March 5, 1968, but the appellant refused to go to the Magistrate 's Court on that day as also on March 20, 1968 and April 4, 1968, on the ground that the identification parade for him had not yet been held and his going to and appearing in the Court would expose him to possible witnesses. 'Me Magistrate, therefore, had to postpone his production before him to April 18, 1968 when the appellant was produced and once again remanded to jail custody till the, next date, that is, May 2, 1968. The report of the jail Superintendent, thus, frankly conceded that the appellant could not be produced on the dates above stated and that the Magistrate, therefore, had to pass remand orders in his absence. It is clear from the report that the appellant himself had refused to appear and be present before the Magistrate when he heard the remand applications. therefore, cannot legitimately make a grievance that those orders were passed in his absence. Those orders could be passed validly in his absence if his presence at the time could not be secured. This has been held by the majority judgment of this 134 Court recently in Rai Narain vs Superintendent, Central jail, New Delhi. (1) We now proceed to consider the remaining points in the order in which Mr. Ghose raised them. The first point urged before us was that the appellant was not produced before a magistrate within 24 hours after his arrest as required by section 167 of the Code of Criminal Procedure, or even later and that therefore his arrest and the detention were bad in law. The order sheet of the Laheriasarai Police Station Case No. 1(i)68 produced before the High Court shows that the appellant was produced before the Magistrate on February 18, 1968, that is, within 24 hours after his arrest and that the Magistrate remanded him to jail custody on the application by the police until March 5, 1968. So far there is no difficulty because these entries in the order sheet are corroborated by the report of the Superintendent of jail. The order sheet, however, has entries dated March 5, 1968, March 20, 1968 and April 4, 196 8 when remand orders are shown to have been made, each for a period of 15 days, and further that the appellant was produced before the Magistrate on each of those three occasions. That, as the High Court has rightly observed, was not correct as the jail Superintendent 's report clearly showed that the appellant had refused to go from the jail for fear that he would be seen or be shown to probable witnesses. No reason has been shown as to why we should not agree with the aforesaid observation of the High Court, viz., that the Magistrate had wrongly recorded that the appellant was produced before him and that the remand orders were passed in his presence. The wrong entries made by him, however, do not mean that the remand orders were not in fact passed by him though he did so in the absence of the appellant. Such orders, as already pointed out, can be lawfully passed if ail accused person cannot for some reason or the other be brought before the Magistrate. It is, therefore, not possible to say that remand orders were not passed or that consequently his detention in the jail was without a valid basis. In the High Court no such contention, viz., that remand orders were not passed on those three dates appears to have been raised. Indeed, the allegation that the appellant was never produced before the Magistrate is belied by an elaborate order made by the Magistrate on March 28, 1968 when the appellant was represented by counsel. At that stage his counsel did not argue that the appellant was never produced before the Court or that no remand orders were ever, passed. The argument urged at that time was that the proceedings at that stage attracted section 167 of the Code, that the stage had not yet reached when section 344 would operate and that therefore the Magistrate bad no power to remand the appellant to jail custody for more than 15 days in the whole. That contention was (1) Writ Petition No. 330 of 1970, dcc. on September 1, 1970. 135 rejected by the Magistrate holding that there was an inquiry before him, and that therefore, section 344 applied and he was competent, therefore, to pass remand orders from time to time so long as each of those orders was not for a period in excess of 15 days. By that very order, the Magistrate rejected the bail application made by the appellant 's advocate holding that the investigation in the cases of dacoity in which the appellant was concerned was going on at that stage and that release of the appellant on bail would hinder its progress. The next contention was that the appellant was never informed of the grounds of his detention and that that being so, his detention was invalid. Paras 3, 4 and 35 of his writ petition did not charge that at the time of his arrest he was not informed of the grounds for his arrest and that even when he filed his writ petition he was not informed of those reasons, and that that constituted breach of article 22(1). This allegation is without any foundation. All throughout, his case was that the police had tortured him and threatened to involve him in a number of dacoity cases unless he made certain incriminating statements which they wanted from him. What were those incriminating statements which the police were trying to get from him ? From the fact that the police were wanting him to make those statements, he must have realised that those statements were related to the cases for which he had been arrested. Next, in the application he made from jail to the Magistrate on February 28, 1968, he alleged that the senior Sub Inspector of Police came to him on February 19, 1968, first abused him and then later on asked him "to admit that offence and promised that by doing so I would be discharged". According to that application he refused to admit the offence whereupon he was assaulted by the police. It also appears that he knew that an identification parade was going to be held and therefore had refused to be taken out of jail for being produced before the Magistrate. All these facts negative the suggestion of his being kept in ignorance of the reasons for his arrest or the cases charged against him. The third contention was that no valid custody warrant was issued by the Magistrate enabling the jail authorities to detain the appellant in the Darbhanga jail and licence the detention must be held to be without any legal authority. In support of the argument, counsel pointed out the custody warrant dated February 18, 1968 which according to him must be deemed to have been cancelled is at the foot of it there is the Magistrate 's endorsement that the appellant was instead remanded to police custody. Assuming that to be so, there is nothing to show that on February 21, 1968 when the Magistrate ordered the appellant to be taken into jail custody, a fresh custody warrant had not been issued by him. The Magistrate, while passing that order, must have known that the 136 jail authorities would not accept the appellant in jail unless the police taking him there produced a custody warrant. There is no reason to think first that the Magistrate had not issued such, a warrant, and secondly, that the jail Superintendent inducted the appellant in the jail without such a warrant. The contention, in our view is wholly without any basis. The last contention of Mr. Ghose was, firstly, that the remand orders passed by the Magistrate were under section 167 and not section 344, as the latter section did not apply at that stage, and secondly, that even if section 344 applied, the Magistrate could not order detention for more than 15 days in the whole. 167 appears in Ch. XIV which deals with information and investigation. As its language shows, it deals with the stage when a person is arrested by the police on information that an offence has been committed. In providing that such a person must, in terms of section 61, be produced before a magistrate within 24 hours after his arrest, the section reveals the policy of the legislature that such a person should be brought before a magistrate with as little delay as possible. The object of the section is two fold, one that the law does not favour detention in police custody except in special cases and that also for reasons to be stated by the magistrate in writing, and secondly, to enable such a person to make a representation before a magistrate. In cases falling under section 167, a magistrate undoubtedly can order custody for a period at the most of 15 days in the whole and such custody can be either police or, jail custody. Sec. 344, on the other hand, appears in Ch. XXIV which deal with inquiries and trials. Further, the custody which it speaks of is not such custody as the magistrate thinks fit as in section 167, but only jail custody, the object being that once an inquiry or a trial begins it is not proper to let the accused remain under police influence. Under this section, a magistrate can remand an accused person to custody for a term not exceeding 15 days at a time provided that sufficient evidence has been collected to raise a suspicion that such an accused person may have committed an offence and it appears likely that further evidence may be obtained by granting a remand Thus, section 167 operates at a stage when a person is arrested and either an investigation has started or is yet to start, but is such that it cannot; be completed within 24 hours. Sec. 344, on the other hand, shows that investigation has already begun and sufficient evidence has been obtained raising a suspicion that the accused person may have committed the offence and further evidence may be obtained, to enable the police to do which, a remand to jail custody is necessary. The fact that section 344 occurs in the Chapter dealing with inquiries and trials does not mean that it does not apply to cases in which the process of investigation and 137 collection of evidence is still going on. That is clear from the very language of sub section 1 A under which the magistrate has the power to postpone the commencement of the inquiry or trial. That would be the stage prior to the commencement of the inquiry or trial which would be the stage of investigation. (see A. Lakshamanrao vs Judicial Magistrate(1). Therefore, it is not as if the stage at which the Magistrate passed the remand orders was still the stage when section 167 applied and not section 344. The decision of the Orissa High Court in Artatran vs Orissa(2), to the effect that section 344 does not apply at the stage of investigation and can apply only after the Magistrate has taken cognizance of and issued processes or warrant for the production of the accused if he is not produced before him cannot, in view of A. Lakshamanrao 's case(1) be regarded as correct. The power under section 344 can be exercised even before the submission of the charge sheet, (cf. Chandradip vs State(3) and Ajit Singh vs State(4), that is, at the stage when the investigation is still not over. If the view we hold is correct that section 344 operated, the Magistrate, provided he complied with the condition in the Explanation, was competent to pass remand orders from time to time subject to each order being not for a period exceeding 15 days. There can be no doubt that the Magistrate had satisfied that condition. The judgment of the High Court in para 11 points out that the prosecution case was that the appellant had himself made a confession before the police. That was in addition to a confession by two others which implicated the appellant in the commission of offences under section 395 of the Code. In our view none of the contentions raised on behalf of the appellant can be sustained. The appeal, therefore, fails and has to be rejected. K.B.N. Appeal dismissed. (1) ; (2) A.I.R. 1956 Orissa 129. (3)(1955)Bihar Law Journal Reports, 323.

A presumption of a lost grant arises in favour of a person who does not claim adversely to the owner but who on the other hand proves ancient and continued possession in assertion of a title derived from the owner without any challenge and such possession and assertion cannot be accounted for except by referring to a legal origin of the grant claimed. But the presumption of a lost grant is not an irrebuttable presumption of law and the court cannot presume a grant where it is convinced of its non existence by reason of a legal impediment, as where the presumption of a lost grant is claimed by a fluctuating body of persons. Similarly a presumption of a lost grant cannot arise when there is no person capable of making such a grant or if the grant pleaded is illegal or beyond the powers of the grantor. A presumption of a lost grant by way of Niskar cannot be im puted to the Mohunt of an Asthal inasmuch as he is legally incompetent to make any Niskar grant. When a defendant who denies the title of the plaintiff in respect of any land, fails in that plea, he cannot fall back on the presumption of a lost grant from the very person whose title he has denied. Findings of fact arrived at by courts should not be vague. Attorney General vs Simpson ([1901] , Raja Braja Sunder Deb vs Moni Behara and others ( [1951] S.C.R. 431), Barker vs Richardson ( , The Rochdale Canal Com 1169 pany vs Radcliffe ([1852] IS Q.B. 287), and Palaniappa Chetty vs Sreenath Devasikamony ( [1917] L.R. 44 I.A. 147), referred to.

Appeal No. 217 of 1953. Appeal from the Judgment and Order dated the. 16th day of January, 1950, of the Income tax Appellate 120 942 Tribunal, Calcutta in Income tax Appeal No. 4658 of 1948 49 and E.P.T.A. No. 1137 of 1948 49. N. C. Chatterjee and Veda Vyas, (section K. Kapoor and Ganpat Rai, with them) for the appellant. C. K. Daphtary, Solicitor General for India (G. N. Joshi, with him) for the respondent. October 29. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J. The appellant is a public limited joint stock company incorporated under the Indian Companies Act, 1915, with its registered office at Calcutta. It carries on the business of manufacture and sale of cotton yarn and piece goods. On the 28th of July, 1944, the Income tax Officer issued a notice to it under section 22(2) of the Indian Income tax Act calling upon it to file the return of its income for the assessment year 1944 45 (account year being 1943 44). Before the expiry of the due date for filing the return the account books of the appellant company together with the documents relevant to the accounts, were taken into custody by the Sub Divisional Officer, Narayanganj and it is alleged that these remained in the custody of the court of the Sub Divisional Magistrate till January, 1950, when they were handed back to the appellant. In this situation the assessee pleaded for extension of time to furnish the return. This request was refused, and a show cause notice was issued under section 28(3) of the Act calling upon the appellant company why penalty should not be imposed upon it for its failure to file the return. An officer of the company appeared before the Income tax Officer and explained the cause for this default. In order to, ascertain whether the explanation furnished by the assessee was genuine, the Income tax Officer made inquiries from the court concerned about this matter. He also made a request to the court to allow him, access to the books of account. The court, however, neither acceded to the demand that books of account be made available to the assesse nor did it permit the Income tax Officer to have access to them. The 943 Income tax Officer having thus satisfied himself about ,the genuineness of the assessee 's explanation, condoned the default in filing the return and dropped the proceedings taken against the company under section 28(3) of the Act. It seems that no further action in the matter was taken by the department till the year 1947. During that year the company requested the department toreador the proceedings. The proceedings having been revived the appellant company furnished the return of its income for the assessment year 1944 45 on the 16th March, 1948. This return, however, was not a complete document as without the assistance of the books the profits could not be computed according to the ,provisions of law. On receipt of the return the Income tax Officer issued a notice under section 23(2) of the Act calling upon the company to supply further information on a number of points and to prepare certain statements indicated in the notice. This requisition had to be complied with by the 19th March, 1948. On that date the Chief Accounts Officer of the company appeared before the Income tax Officer and asked for further time till the middle of the following week for furnishing the requisite particulars. This request was, however, refused and assessment was completed on the 20th March, 1948. The excess profits assessment was also made final on the 23rd March, 1948. The relevant part of the assessment order is in these terms: "From the point of view of profits, 1943 was a very good year, if not the best, for all cotton mills. Expenses on cotton and fuel shows that production was undoubtedly higher whereas it is found that the gross profit disclosed by this company is low. I conclude that full amount of sales have not been accounted for. It is expected that actually the rate of gross profit should have been higher this year. In view of the higher costs of establishment, I take it that the rate of about 40%, i.e., near about the rate disclosed in 1942 accounts, should have been maintained. I add back the Rs. 36 lakhs for unaccounted sales". It may be mentioned that in the return the company had disclosed a gross :profit of 28 per cent,. on 944 sales amounting to Rs. 1,78,96,122. The total amount of sales in the year 1942 was of the amount of Rs. 1, 15,69,582, disclosing a gross profit of 41 percent. The establishment expenses, however, during that year were in the sum of Rs. 15,94,101, while during the accounting year relevant to the year under assessment these had gone up to Rs. 34,74,735 on account of labour troubles. A number of other causes were mentioned by the assessee for the low rate of profit during the relevant period; but the Income tax Officer took no notice of them. On appeal this order was upheld by the Appellate Assistant Commissioner. The assessee then appealed to the Tribunal against these decisions. What happened before the Tribunal may well be stated in terms of the Tribunal 's order itself. 'this is what is mentioned in the judgment of the Tribunal: "At the end of the hearing of this appeal on 25th of November, 1949, the Income tax Appellate Tribunal requested the departmental representative to produce for the examination of the Income tax Appellate Tribunal the gross profit rates shown or assessed in the cases of other similar cotton mills. The departmental representative wanted 3/4 days ' time to collect information on this point. On this the appellant also wanted to be allowed to produce information regarding the gross profit rates shown or assessed by other similar cotton mills, and he was also allowed to produce information on the point. On or about the 29th November the counsel for the appellant requested that he should be allowed time till Saturday the 3rd of December to file the above information and time for this purpose was allowed to him. On the 3rd December Mr. Banerjee the appellant 's counsel saw the Account. ant Member in his chamber and wanted to produce written arguments and a trunk full of books and papers in support of his case. Mr. Banerjee was told that the arguments in the case had finished on the 25th and he was allowed time only to supply to the court the gross profit rates shown or assessed in the cases of other similar cotton mills. He was told that it was pot fair to the other side to take notice of any 945 additional evidence or record at that stage and his trunk of books and papers was returned to him. During the discussion of Mr. Banerjee with the Accountant Member Mr. Banerjee produced a report ' showing that the gross profit rates of some mills in Bengal on the average amounted to 23 per cent. In the statement showing 23 per cent. gross profit rates there was another item called 'Pool profit ' which was bigger than the gross profits rate. Mr. Banerjee was asked to explain what this word 'Pool profit ' meant but he had no information on this point. . For want of this information we are afraid it is not possible for us to attach a great deal of importance to the gross profit percentage of 23 per cent. mentioned in the books produced by Mr. Banerjee. Mr. Banerjee during this discussion further produced a book showing the wastage expected. In that book certain quality of cotton had been mentioned and it was said that wastage of 34 per cent. was normal. In the case of the assessee he has shown a wastage of 9 per cent. in 1942, 26 per cent. in 1943 and 19 per cent. ' in 1944. The figure of 34 per cent. shown in that book would therefore seem to refer to a particular quality of cotton very much inferior to the cotton generally used by the appellant. The department 's main case on the question of wastage is based on the appellant 's own books according to which his wastage in the year under review amounted to three times the wastage in the year previous. In the light of all this information it appears to us that the Income tax Officer was justified in making a substantial addition to the gross profit shown by the appellant. Coming to the question of what the amount of addition should be the departmental representative has on our request filed a number of cases of other cotton mills which show a gross profit rates varying between 49 per cent. and 22 per cent. and in one case even 13 per cent. has been shown. . In the face of all the above facts it appears to us that the Income tax Officer was justified in coming to the conclusion that all sales had not been brought into 946 the books. We have, however, considered all facts relevant to this case and are of the opinion that the addition to the sales should be reduced from Rs. 36 lakhs made by the Income tax Officer to Rs. 16 lakhs Which would reduce the gross profit rate to about 35 per cent. The sum and substance of these decisions is that the Income tax Officer estimated the gross profit on sales at 40 per cent. by a pure guess, while the Tribunal reduced it to 35 per cent. by applying some other rule of thumb. It is not clear from either of these judgments on what material these estimates were based. Dissatisfied with the decision of the Tribunal, the assessee wanted the Tribunal to state a case and refer to the High Court for its decision ten questions of law. It seems that Dr. Pal who represented the assessee before the Tribunal had only argued one question namely, whether the estimate of profit made by the Income tax Officer was excessive or whether it was justified on the material on the record. The other points raised in the memorandum of appeal regarding the validity or the correctness of the procedure of assess ment had been abandoned. The questions which were submitted to the Tribunal. and which it was asked to refer to the High Court concerned all the points including those abandoned before the Tribunal. The Tribunal came to the conclusion that no question of law arose on its order, and it, therefore, dismissed the application made by the assessee. It appears that the assessee then applied to the High Court under section 66(2) of the Act for the issue of a mandamus to the Tribunal directing it to refer to the High Court the very same questions of law which it had refused to refer. This application was summarily rejected. The High Court also refused an application for leave to appeal to this Court. Having exhausted all the remedies that were available to him under the Income tax Act, the assessee then made an application to this Court for special leave against the order of the Income tax Tribunal under the provisions of article 136 of the Constitution. Leave was allowed and this appeal is now before us by virtue of that leave. 947 Mr. Chatterjee, the learned counsel for the appellant, contended inter alia that the assessment order made under section 23(3) of the Income tax Act had been made in violation of the principles of natural justice, inasmuch as it was not based on any material whatsoever and that the evidence tendered by the appellant had been improperly rejected. It was further said that the Tribunal acted without jurisdiction in relying on the data supplied by the Income tax department behind the back of the appellant company, and without giving it an opportunity to rebut or explain the same. Reliance was placed on the decision of a Full Bench of the Lahore High Court in Seth Gurmukh Singh vs Commissioner of Income tax, Punjab(1), for the proposition that while proceeding under sub section (3) of section 23, the Income tax Officer, though not bound to rely on evidence produced by the assessee as he considers to be false, yet if he proposes to make an estimate in disregard of that evidence, he should in fairness disclose to the assessee the material on which he is going to found that estimate; and that in case he proposes to use against the assessee the result of any private inquiries made by him, he must communicate to the assessee the substance of the information so proposed to be utilized to such an extent as to put the assessee in possession of full particulars of the case he is expected to meet and that he should further give him ample opportunity to meet it. It was said that the Tribunal failed to disclose to the assessee the material that the departmental representative had given to it regarding the rates of gross profit of cotton mills varying between 49 per cent. and 13 per cent., and that if that disclosure had been made, the assessee would have satisfied the Tribunal that the mills which had shown gross profits at rates mentioned above had no similarity of any kind with the appellant company 's mill or to other mills in Bengal and therefore those rates had no relevancy in the enquiry as to gross profits of the assessee company 's mill. It was also argued that both the Income tax Officer and the Tribunal acted arbitrarily and on suspicion in estimating the rate of (1) 948 gross profit. In conclusion the learned counsel urged that now that the books of account of the company were available, it was only just and fair that the 'Income tax Officer and the Tribunal should examine these book,% in order to determine the correctness of the return furnished by the assessee. The learned Solicitor General who appeared for the Commissioner of Income tax, West Bengal, combated the contentions raised by 'Mr. Chatterjee on a two fold ground: (1) In the first instance, without questioning the jurisdiction of this Court to grant special leave against an order of an Income tax Tribunal, he argued that such leave should not be granted when remedies provided by the Income tax Act itself were available for correcting errors of the Tribunal, and had been taken but without success. It was said that the power conferred on this Court by article 136 of the Constitution being an extraordinary power, its exercise should be limited to cases of patent and glaring errors of procedure, or where there has been a failure of justice because of the violation of the rules of natural justice or like causes but that this discretionary power should not be exercised for the purpose of reviewing findings of fact when the law dealing with the subject has declared those findings as final and conclusive. (2) That the finding given by the Income tax Officer and affirmed by the Appellate Assistant Commissioner and the Tribunal was based on material and it could not be said that these bodies had acted arbitrarily in this matter. It was contended that the Income tax Officer has very wide powers and is not fettered by technical rules of evidence and pleadings, and that the only restriction on his judgment is that he must act honestly on the material however inadequate before him, but not capriciously or arbitrarily. It was suggested that owing to the disparity of the rate of wastage the Income tax Officer was entitled to reach the conclusion that the assessee had not disclosed the full sales made by him during the accounting year, and that on that basis he was entitled on his own information to make an estimate of the rate of gross profit. 949 As regards the first contention of the learned Solicitor General, we are unable to accede to it. It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in article 136. The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule. All that can be said is that the Constitution having trusted the wisdom and good sense of the Judges of this Court in this matter, that itself is a sufficient safeguard and guarantee that the power will only be used to advance the cause of justice, and that its exercise will be governed by well established principles which govern the exercise of overriding constitutional powers. It is, however, plain that when the Court reaches the conclusion that a person has been dealt with arbitrarily or that a Court or tribunal within the territory of India has not given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of the exercise of this power because the whole intent and purpose of this article is that it is the duty of this Court to see that injustice is not perpetuated or perpetrated by decisions of Courts and tribunals because certain laws have made the decisions of these Courts or tribunals final and conclusive. What we have said above sufficiently disposes of the first contention raised by the learned Solicitor General. As regards the second contention, we are in entire agreement with the learned Solicitor General when he says that the Income tax Officer is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a Court of law, but there the agreement ends; because it is equally clear that in making the assessment under sub section (3) of section 23 of the Act, the Income tax Officer is not entitled to 950 make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under section 23(3). The rule of law on this subject has, in our opinion, been fairly and rightly stated by the Lahore High Court in the case of Seth Gurmukh Singh vs Commissioner of Income tax, Punjab (Supra). In this case we are of the opinion that the Tribunal violated certain fundamental rules of justice in reaching its conclusions. Firstly, it did not disclose to the assessee what information had been supplied to it by the departmental representative. Next, it did not give any opportunity to the company to rebut the material furnished to it by him, and, lastly, it declined to take all the material that the assessee wanted to produce in support of its case. The result is that the assessee had not had a fair hearing. The estimate of the gross rate of profit on sales, both by the Income tax Officer and the Tribunal seems to be based on surmises, suspicions and conjectures. It is somewhat surprising that the Tribunal took from the representative of the department a statement of gross profit rates of other cotton mills without showing that statement to the assessee and without giving him an opportunity to show that statement had no relevancy whatsoever to the case of the mill in question. It is not known whether the mills which had disclosed these rates were situate in Bengal or elsewhere, and whether these mills were similarly situated and circumstances. Not only did the Tribunal not show the information given by the representative of the department to the appellant, but it refused even to look at the trunk load of books and papers which Mr. Banerjee produced before the Accountant Member in his chamber. No harm would have been done if after notice to the department the trunk had been opened and some time devoted to see what it contained. The assessment in this case and in the connected appeal,* we are told, was above the figure of Rs. 55 lakhs and it was meet and proper when dealing with a matter of this magnitude not to employ *civil Appeal NO 218 Of 1953, not reported, 951 unnecessary haste and show impatience, particularly when it was known to the department that the books of the assessee were in the custody of, the Sub Divisional Officer, Narayanganj. We think that both the Income tax Officer and the Tribunal in estimating the gross profit rate on sales did not act on any material but acted on pure guess and suspicion. It is thus a fit case for the exercise of our power under article 136. In the result we allow this appeal, set aside the order of the Tribunal and remand the case to it with directions that in arriving at its estimate of gross profits and sales it should give full opportunity to the assessee to place any relevant material on the point that it has before the Tribunal, whether it is found in the books of account or elsewhere and it should also disclose to the assessee the material on which the Tribunal is going to found its estimate and then afford him full opportunity to meet the substance of any private inquiries made by the Income tax Officer if it is intended to make the estimate on the foot of those enquiries. It will also be open to the department to place any evidence or material on the record to support the estimate made by the Income tax Officer or by the Tribunal in its judgment. The Tribunal if it thinks fit may remit the case to the Income tax Officer for making a fresh assessment after taking such further evidence as is furnished by the assessee or by the department. The coats; of these proceedings will abide the result. Case remitted.

On January 27, 1966, a charge sheet against the four appellants and four civilians was put up before the special judge On January 12, 1967 the Special Judge gave notice to the commanding officer notifying under rule 4 of the Criminal Courts and Courts Martial (Adjustment of Juris diction) Rules, 1952, framed under section 549 of the Code of Criminal Procedure, that charges would be framed against the accused. On January 16, 1967, the Officer Commanding wrote to the Special Judge, in exercise of the powers conferred on him rule 5 of the 1952 Rules, that the four appellants belonging to his unit would be tried by Court Martial under the , and the Court of the Special Judge was requested to stay the proceedings with immediate effect. On January 17, 1967, the State of Rajasthan made an application before the Special Judge. stating that the period of limitation for the purpose of Court Martial had already expired and that the Special Judge take cognisance of the case on the basis of sanction by the Central Government. The Special Judge requested the Commanding Officer to make a reference to the Central Government. On January 28, 1967, the Commanding Officer wrote to the Special Judge that the notice dated January 16, 1967, under Rule 5, served on the Special Judge might be treated as cancelled. Thereupon the appellants. made an application before the Special Judge challenging the legality of the action of the Commanding Officer in canceling the notice dated January 16, 1967 and praying that they be delivered to the Army authorities. The Special Judge held that since the notice dated January 16, 1967 had been cancelled, he had jurisdiction to try the case. A revision. against this order was dismissed and the High Court directed the Special Judge to conduct the trial. In the appeal to this Court it was contended that the High Court was Wrong, because, the Special Judge had no jurisdiction to deal with the: application of the State made on January 17, 1967 and pass an order that the Commanding Officer 'should make a reference to the Central Government; and that the Commanding Officer had no pow(* to cancel, the intimation dated January 16, 1967. The respondent contended that the effect of the cancellation of the notice dated January 16, 1967, was that no Court Martial proceeding was to be commenced and that in any event the Special Judge had jurisdiction and authority to try and dispose of the case which was pending on June 30 1966 in the Criminal Court by virtue of the provisions contained in the Criminal Law Amendment. (Amending) Act, 1966. Dismissing the appeal, 882 HELD : The provisions of the , the Rules under Section 549 of the Criminal Procedure Code and the decisions of this Court all support the conclusion that the Special Judge in ;he present case was justified in asking the Officer Commanding to make a reference to the Central Government and that the Officer Commanding in the facts and circumstances of the case expressed the opinion that the appellants should be tried by criminal courts because there would in fact be no Court Martial proceedings. The contention that the Officer Commanding having once exercised the discretion under Rule 5 could not cancel the discretion is unacceptable. There are no allegations of mala fide or abuse of power to challenge the propriety of the exercise of power and discretion. Ranjit Sarup vs The Union of India & Anr., [1964] 5 S.C.R. 931, SVorn Datt Datta vs Union of India & Ors., ; ; Ioginder Singh vs State of Himachal Pradesh, Criminal Appeal No. 34 of 1969 decided on 30 11 1970 and Major E. G. Barsay vs State of Bombay, [1962] 2 section R. 195: referred to. The present appeal relates to a case "pending" immediately before June 30 1966, before a Special Judge, within the meaning of section 5(1) (a) of the Criminal Law Amendment Act, 1966. The word "pending" win ordinarily mean that the matter is not concluded and the meet which has. cognisance of it can make an order on the matter in issue. The test is whether any proceedings can be taken in the cause before the Court or tribunal where it is said to be pending. Judged by these tests the present appeal relates to a case pending before June 30, 1966. It is not necessary that charges should have been framed in order to make it a case pending within the meaning of Section 5 (1) (a) of the 1966 Act. The words "Charged with and tried for an offence" mean that there are accusations and allegations against a person. The words "charged with are used in Section 5(1)(a) in contradistinction to the words "Charges have already been framed" in Section 5 (1) (b) of the Act. Further. Sections 251A, 252 and 253 of the Code of Criminal Procedure throw light as to the meaning to be given to the words "charged with 'and tried for an offence".

: Special Leave Petition (Criminal) No. 2076 of 1978. From the Judgment and Order dated 17 3 1978 of the Punjab and Haryana High Court in Criminal Revision No. 181/77) R.L. Kohli, S.K. Sabharwal and Subhash Chander for the Petitioner. 46 R.N. Sachthey for Respondent No. 1. Prem Malhotra for Respondent No. 2. The Order of the Court was delivered by KRISHNA IYER, J. What constrains us to explain at some length our reasons for rejection of leave to appeal in this case is the desideratum that every executive challenge to justice in action is a call to the court to strengthen public confidence by infusing functional freshness into the relevant law sufficient to overpower the apprehended evil. The house of the petitioner is said to have been burgled and he alleges that he lost many valuables. The police, on information being laid, searched and recovered the property. Eventually, charges were framed by the trial court against one Hussan Lal, a jeweller, and one Madan Lal, an alleged collaborator (respondents Nos. 2 and 3 in this petition) under section 411 I.P.C. and one Ashok Kumar under section 380, I.P.C. During the pendency of the criminal case, the Assistant Public Prosecutor applied for withdrawal from prosecution under section 321, Cr. P.C. on the ground that on fresh investigation by a senior officer the alleged search and seizure were discovered to be a frame up by the concerned police officer in order to pressurise the accused Hussan Lal to withdraw a certain civil litigation. On the court requiring a fuller application the Assistant Public Prosecutor made a fresh and more detailed petition for withdrawal which was eventually granted by the trial court, despite the petitioner 's remonstrance that the withdrawal was prompted by the political influence wielded by Hussan Lal leading to instructions from high quarters to the Assistant Public Prosecutor to withdraw from the case concerning that accused. It was alleged that in carrying out the instructions the Assistant Public Prosecutor did not apply an independent mind. The court nevertheless accepted the request of the Assistant Public Prosecutor and directed acquittal of Hussan Lal, while continuing the case against the remaining two accused. The order was unsuccessfully assailed in revision before the High Court by the petitioner. Undaunted by that dismissal, he has moved this court under article 136 of the Constitution. In view of the startling disclosures on either side we have listened at some length to the oral submissions in supplementation of the affidavits in the record. The three focal points of arguments are whether (i) a case which pends in court can be subject to a second police investigation without the judge even knowing about it, (ii) political considerations of the Executive vitiate the motion for withdrawal of pending proceeding, and (iii) the District Magistrate 's order to withdraw from a case communicated to the Public Prosecutor and carried out by him, is compliance with section 494. 47 When a crime is committed in this country, the assessment of guilt and the award of punishment or, alternatively, the discharge or acquittal of the accused are part of the criminal justice process administered by the courts of the land. It is not the function of the executive to administer criminal justice and in our system, judges are not fungible, as Justice Dougles in Chandler,(1) asserted: Judges are not fungible; they cover the constitutional spectrum; and a particular judge 's emphasis may make a world of difference when it comes to rulings on evidence. the temper of the courtroom, the tolerance for a proffered defense, and the like. Lawyers recognize this when they, talk about 'shopping ' for a judge; Senators recognize this when they are asked to give their 'advice and consent ' to judicial appointments; laymen recognize this when they appraise the quality and image of the judiciary in their own community. " When a case is pending in a criminal court its procedure and progress are governed by the Criminal Procedure Code or other relevant statute To intercept and recall an enquiry or trial in a court, save in the manner and to the extent provided for in the law, is itself a violation of the law. Whatever needs to be done must be done in accordance with the law. The function of administering justice, under our constitutional order, belongs to those entrusted with judicial power. One of the few exceptions to the uninterrupted flow of the court 's process is section 321, Cr. But even here it is the Public Prosecutor, and not any executive authority, who is entrusted by the Code with the power to withdraw from a prosecution, and that also with the consent of the court. We repeat for emphasis. To interdict, intercept or jettison an enquiry or trial in a court, save in the manner and to the extent provided for in the Code itself, is lawlessness. The even course of criminal justice cannot be thwarted by the Executive, however high the accused, however sure Government feels a case is false, however unpalatable the continuance of the prosecution to the powers that be who wish to scuttle court justice because of hubris, affection or other noble or ignoble consideration. Justicing, under our constitutional order, belongs to the judges. Among the very few exceptions to this uninterrupted flow of the court process is section 494, Cr. Even here, the Public Prosecutor not any executive authority is entrusted by the Code with a limited power to withdraw from a prosecution, with the (1) Chandler vs Judicial Council of the Tenth Circuit of the U.S. , 1970. 48 court 's consent whereupon the case comes to a close. What the law has ignited, the law alone shall extinguish. Although skeletal, the conditions for such withdrawal are implicit in the provision, besides the general principles which have been evolved through precedents. Once a prosecution is launched, its relentless course cannot be halted except on sound considerations germane to public justice. All public power is a public trust, and the Public Prosecutor cannot act save in discharge of that public trust, a public trust geared to public justice. The consent of the court under section 321 as a condition for withdrawal is imposed as a check on the exercise. of that power. Consent will be given only if public justice in the larger sense is promoted rather than subverted by such withdrawal. That is the essence of the nolle prosequi jurisprudence. We wish to stress, since impermissible influences occasionally infiltrate into this forbidden ground, that court justice is out of bounds for masters and minions elsewhere. We do not truncate the amplitude of the public policy behind section 494 Cr. P.C. but warn off tempting, adulteration of this policy, taking the public prosecutor for granted. Maybe, the executive, for plural concerns and diverse reasons, may rightfully desire a criminal case to be scotched. The fact that broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of long lasting security in a locality, of order in a disorderly situation or harmony in a factious milieu, or halting a false and vexatious prosecution in a court, persuades the Executive, pro bono pulico, sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised and the statutory agency to be satisfied is the public prosecutor, not the District Magistrate or Minister. The concurrence of the court is necessary. The subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceeding as is alleged in this case, may well be a relevant ground for withdrawal. For the court should not be misused to continue a case conclusively proved to be a counterfeit. This statement of the law is not exhaustive but is enough for the present purpose and, indeed, is well grounded on precedents. The promotion of law and order is an aspect of public justice. Grounds of public policy may call for withdrawal of the prosecution. A prosecution discovered to be false and vexatious cannot be allowed to proceed. The grounds cover a large canvas. But the power must be cautiously exercised, and the statutory agency to be satisfied is the Public Prosecutor in the first instance, not the District Magistrate or other executive authority. Finally, the consent of the court is impera 49 tive. The law was explained by this Court in M. N. Sankaranarayana Nair vs P. V. Bala Krishina & Ors.(1) "A reading of Sec. 494 would show that it is the public prosecutor who is in charge of the case that must ask for permission of the Court to withdraw from the prosecution of any person either generally or in respect of one or more of the offences for which he is tried. This permission can be sought by him at any stage either during the enquiry or after committal or even before the judgment is pronounced. The section does not, however, indicate the reasons which should weigh with the Public Prosecutor to move the Court for permission nor the grounds on which the Court will grant or refuse permission. Though the Section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case. Nonetheless it is the duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecutor offenders under the law directs the Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest. " The position was confirmed in Bansi Lal vs Chandan Lal(2) and Balwant Singh & Ors. vs Bihar(3). The law is thus well settled and its application is all that calls for caution. In the special situation of this case, two principles must be hammered home. The decision to withdraw must be of the Public Prosecutor, not of other authorities, even of those whose displeasure may affect his continuance in office. (1) ; (2) A.I.R. 1976 S.C. 370. (3) ; 50 The court is monitor, not servitor, and must check to see if the essentials of the law are not breached, without, of course, crippling or usurping the power of the public prosecutor. The two matters which are significant are (a) whether the considerations are germane, and (b) whether the actual decision was made or only obeyed by the Public Prosecutor. In the setting of the present facts, the enquiry must be whether the considerations on which withdrawal was sought by the Assistant Public Prosecutor were germane and pertinent, and whether the actual decision to withdraw was made by the Assistant Public Prosecutor or was the result of blind compliance with executive authority. If it appears from the material before the Court that germane or relevant considerations did not prompt the motion for withdrawal but it was the pressure of political influence, the Court will withhold its consent. The functionary clothed by the Code with the power to withdraw from the prosecution is the Public Prosecutor. The Public Prosecutor is not the executive, nor a flunkey of political power. Invested by the statute with a discretion to withdraw or not to withdraw, it is for him to apply an independent mind and exercise his discretion. In doing so, he acts as a limb of the judicative process, not as an extension of the executive. In the present case, it appears that when the court commenced proceedings, the accused Hussan Lal complained to higher police officers that the concerned Assistant Sub Inspector had initiated the case merely for the purpose of putting pressure on him to compromise a suit against a close relative. The allegations were enquired into by a senior officer and the District Magistrate, on the basis of the material coming to light, directed disciplinary action against the Assistant Sub Inspector and instructed the Assistant Public Prosecutor to withdraw from the case against Hussan Lal. We find no evidence to support the allegations of political influence. At the same time, it is necessary to point out that the District Magistrate acted illegally in directing the Assistant Public Prosecutor to withdraw. It has been alleged that the second investigation of the case on the executive side, which led to the discovery that the earlier investigation was motivated, was vitiated by the omission to question the first informant. That was a matter for the Assistant Public Prosecutor to consider when deciding whether or not to withdraw from the prosecution. On the principal question arising in this case, the record shows that the Public Prosecutor applied his mind to the disclosures emerging from the second enquiry, and he found that "even the recovery wit 51 nesses Sarvashri Mato Ram and Phool Singh did not support that they had witnessed the recovery or any disclosure statement was made in their presence by Madan Lal accused. " He found that Phool Singh at the relevant time was bed ridden and had since expired. He also discovered that Mato Ram had stated that nothing had happened in his presence but his signatures were obtained by the Investigating Officer. It is abundantly clear that the Assistant Public Prosecutor made an independent decision on the material before him and did not act in blind compliance with the instructions of the District Magistrate. We cannot dispose of this petition without drawing attention to the very disturbing presence of the District Magistrate in the withdrawal proceedings. The jurisprudence of genuflexion is alien to our system and the law expects every repository of power to do his duty by the Constitution and the laws, regardless of commands, directives, threats and temptations. The Code is the master for the criminal process. Any authority who coerces or orders or pressurises a functionary like a public prosecutor, in the exclusive province of his discretion violates the rule of law and any public prosecutor who bends before such command betrays the authority of his office. May be, Government or the District Magistrate will consider that a prosecution or class of prosecutions deserves to be withdrawn on grounds of policy or reasons of public interest relevant to law and justice in their larger connotation and request the public prosecutor to consider whether the case or cases may not be withdrawn. Thereupon, the Prosecutor will give due weight to the material placed, the policy behind the recommendation and the responsbile position of Government which, in the last analysis, has to maintain public order and promote public justice. But the decision to withdraw must be his. The District Magistrate who is an Executive Officer is not the Public Prosecutor and cannot dictate to him either. Maybe, the officer had not apprised himself of the autonomous position of the Public Prosecutor or of the impropriety of his intrusion into the Public Prosecutor 's discretion by making an order of withdrawal. Similar mistakes are becoming commoner at various levels and that is why we have had to make the position of law perfectly clear. We emphasise that the rule of law warns off the executive authorities from the justicing process in the matter of withdrawal of cases. Since we are satisfied that the Public Prosecutor did not yield to the directive of the District Magistrate but made an independent study of informing himself of the materials placed before the court and then sought permission to withdraw from the prosecution, we decline to reverse the order passed by the courts below. 52 This trial court was satisfied that the Assistant Public Prosecutor had not exercised the power of withdrawal for any illegitimate purpose and the High Court endorsed that conclusion. We are not disposed to interfere with the order of the High Court. One obvious grievance of the petitioner deserves to be remedied. He is interested in getting back his stolen goods. The accused claims no property in the goods. In the event of the complainant identifying them as his property, the trial court will consider passing appropriate orders for their return to him. Surely, criminal justice has many dimensions beyond conviction and sentence, acquittal and innocence. The victim is not to be forgotten but must be restored to the extent possible. The petition is rejected. N.K.A. Petition dismissed.

Section 60 of the Madras Cooperative Societies Act, 1932, empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications. In the appeal to this Court on the question whether Section 60 of the Act is void on the ground of unconstitutional delegation of legislative power. ^ HELD: 1. Section 60 is not void on the ground of excessive delegation of legislative power. [267 C] 2. The power given to the Government under section 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines enunciated in the preamble and the other provisions of the Act.[267 B] 3. The Act, a welfare legislation, to facilitate the formation and working of cooperative societies consists of numerous provisions, dealing with registration of societies, rights and liabilities of members, duties of registered societies, privileges of registered societies, property and funds of registered societies, inquiry and inspection, supersession of committees of societies, dissolution of societies, surcharge and attachment, arbitration etc. The too rigorous application of some of the provisions of the Act may itself occasionally result in frustrating the very objects of the Act instead of advancing them. To provide for such situations, the Government was invested by section 60 with a power to relax the occasional rigour of the provisions of the Act and to advance the objects of the Act.[266 D, G; H 277 A] 4. (i) Parliament and the State Legislatures are endowed with plenary power to legislate upon any of the subjects entrusted to them by the Constitution, subject to the limitations imposed by the Constitution itself. The power to legislate carries with it the power to delegate. While excessive delegation may amount to abdication, delegation unlimited may invite despotism uninhibited. The theory has therefore been evolved that the legislature cannot delegate its essential function. [262 H 263 A] (ii) The Parliament and the State Legislatures are not bodies of experts or specialists. They are skilled in the art of discovering the aspirations, the expectations and the needs, the limits to the patience and the acquiescence and the articulation of the views of the people whom they represent. They function best when they concern themselves with general principles, broad objectives and 261 fundamental issues instead of technical and situational intricacies which are better left to better equipped full time expert executive bodies and specialist public servants. Parliament and the State Legislatures have neither the time nor the expertise to be involved in detail and circumstance. Nor can Parliament and the State Legislatures visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. That is the raison d 'etre for delegated legislation. [262 E G] (iii) The Legislature may guide the delegate by speaking through the express provision empowering delegation or the other provisions of the statute, the preamble, the scheme or even the very subject matter of the statute. If guidance there is, wherever it may be found the delegation is valid. A generous degree of latitude must be held permissible in the case of welfare legislation, particularly these statutes which are designed to further the Directive Principles of State Policy. [263 B] ; , M. K. Papiah & Sons vs Excise Commissioner ; Harishankar Bagla and Anr. vs The State of Madhya Pradesh [1955] 1 S.C.R., p. 380 @ 388: The Edward Mills Co. Ltd., Beawar vs The State of Ajmer ; Pandit Banarsi Das Bhanot vs The State of Madhya Pradesh ; Sardar Inder Singh vs The State of Rajasthan, Vasantlal Maganbhai Sanjanwala vs The State of Bombay, ; Jyoti Prasad vs The Administrator for the Union Territory of Delhi ; Mohammad Hussain Gulam Mohammad vs The State of Bombay, ; , referred to.

Appeals Nos. 653 to 655 of 1964. Appeals from the judgment and decree dated November 1, 1962 of the Allahabad High Court in Special Appeals Nos. 267 and 292 of 1957. C. K. Daphtary, Attorney General, Shanti Bhushan, AdvocateGeneral, U.P. and 0. P. Rana, for the appellants (in C.As. Nos. 653 and 654 of 1964) and the respondents (in C.A. No. 655 of 1964). A. K. Sen, B. R. L. Iyengar, V. P. Misra, section K. Mehta and K.L. Mehta, for the respondent (in C.As. Nos. 653 and 654 of 1964) and the appellant (in C. A. No. 655 of 1964). 363 The Judgment of the Court was delivered by Sikri, J. These appeals by certificates granted by the High Court of Judicature at Allahabad raise one principal question: Whether the amendment of the definition of the word "estate" in clause (8) of section 3 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Reforms Act) made by section 2 of the Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1963, hereinafter called the impugned Act, is within the definition of the word "estate" in article 31A(2) of the Constitution? These appeals arise out of a petition filed by Raja Anand Brahma Shah of Agori Barhar Raj under article 226 of the Constitution. The State of Uttar Pradesh had issued a notification No. 3549/1/A 499 dated June 30 1953, extending the provisions of Reforms Act, 1950, to apply to the areas to the South of Kaimur Range. It then issued another notification No. 3949/(1) A 4991949 dated July 1953, directing the vesting of all "estates" situated to the south of Kaimur including the Pargana Agori, owned by the petitioner. The Pargana Agori is comprised of 123 villages. At the time the petition was filed and the judgment of the Single Judge, dated November 8, 1957, was delivered, section 3(8) of the Reforms Act stood as follows . " 'Estate ' means the area included under an entry in any of the registers prepared and maintained under clause (a), (b), (c) or (d) of section 32 of the United Provinces Land Revenue Act, 1901, or in the registers maintained under clause (e) of the said section in so far as it relates to a permanent tenure holder and includes share in or of an estate. " The case of the petitioner in short was that Pargana Agor was not an estate within section 3(8) of the Reforms Act because nor ecords were prepared and maintained under the provisions of section 32 of the Land Revenue Act, 1901, in respect of Pargana Agori, and the records alleged to have been prepared between 1840 to 1843 under the Bengal Regulations were unauthorised and the Government itself did not approve these records at any time. The learned Single Judge, keeping in view the definition in section 3(8) of the Reforms Act, came to the conclusion that the whole of 81 villages, including the cultivated. area, the forest, the hill and everything else would vest in the State of Uttar Pradesh. He held that the Raja 's name alone was entered in the khewats of 64 villages, and in the khewats of 17 villages although the names of under proprietors were written, the Raja was the proprietor of the entire villages because the Raja 's name was mentioned as "Malik Ala". With respect to the remaining 42 villages he held that only the areas mentioned in the khewats of the different villages and not the forests and hills attached to them Sup. C.I/66 10 364 fell within section 3(8). In the result he allowed the petition in part and issued a writ of mandamus directing the respondents not to take possession nor to interfere with the possession of the petitioner over the hills and jungle appertaining to the said 42 villages as distinguished from the areas mentioned in the khewats of these villages at the time the vesting order was issued. He dismissed the rest of the claim. The petitioner and the State of Uttar Pradesh both filed appeals, the petitioner claiming that the petition should be allowed in entirety, the State claiming that the petition should be dismissed. During the pendency of the appeals (U. P. Act XIV of 1958) substituted the following new section 3(8) in the Reforms Act, with retrospective effect from July, 1952: "3(8) "Estate" means and shall be deemed to have always meant the area under one entry in any of the registers described in clause (a), (b), (c) or (d) and, in so far as, it relates to a permanent tenure holder in any register described in clause (e) of section 32 of the U. P. Land Revenue Act, 1901, as it stood immediately prior to the coming into force of this Act, or, subject to the restriction mentioned with respect to the register described in clause(e) in any of the registers maintained under section 33 of the said Act or in a similar register described in or prepared or maintained under any other Act, Rule, Regulation or Order relating to the preparation or maintenance of record of rights in force at any time and includes share in or of an "estate '. Explanation : The Act, Rule, Regulation or order referred to in this clause shall include Act, Rule, Regulation or order made or promulgated by the erstwhile Indian State whose territories were merged or absorbed in the State of Uttar Pradesh prior to the date of vesting notified under section 4 of this Act. " In the light of this definition the Division Bench came to the conclusion that only the areas expressly mentioned in the Khewats vested in the State. It accordingly dismissed the appeals filed by the State and partly allowed the appeal of the petitioner. The State filed two petitions for leave to appeal, one against the judgment in Special Appeal No. 267/1957 and the other against the judgment in Special Appeal No. 292/1957. The Raja filed a petition for leave to appeal against the judgment in Special Appeal No. 267/1957. The High Court granted three certificates on August 16, 1963, and three appeals are now before us, all arising out of the one petition under article 226 filed by the petitioner Raja. On January 1, 1964, the English translation of the impugned Act (U. P. Act No. 1 of 1964) was published, it having received assent 365 of the President on December 31, 1963. The relevant portion of the impugned Act reads as follows: "Section 2. In the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter called the principal Act), in clause (8) of Section 3, the following proviso shall, with effect from the first day of July, 1952, be added before the explanation, and the notifications issued under the principal Act (including sections 2 and 4 thereof) or the U. P. Land Reforms (Amendment) Act, 1954 (including section I thereof) or the U. P. Land Reforms (Amendment) Act, 1956 (including section I thereof) or the U. P. Land Reforms (Amendment) Act, 1958 (including section I thereof) shall, notwithstanding any judgment, decree, determination or order of any Court be so construed as if the said proviso had, since the said date, formed part of the principal Act, as also of the definition of the word 'estate ' as given in the Uttar Pradesh Zamindari abolition and Land Reforms (Amendment) Act, 1958: Provided that in Mirzapur District each of the areas bounded as given in Schedule VII shall, notwithstanding anything contained in the foregoing definition, be deemed to be an estate. After Schedule VI of the principal Act, the following new Schedule shall be added and be deemed to have been so added with effect from the first day of July, 1952. Schedule VII [See proviso to clause (8) of section 3] 1. The area known as Pargana Agori in district Mirzapur bounded in the North by the Kaimur Range confining with the villages Padaunian (also known as Parhwanian), Chingauri, Guraul (also known as Gurwal) Karaundia, Barauli, Dumkari Khirhata, Gadman, Khajraul (also known as Khajuraul) Dugauli, Baragaon, Jurauli, Jurauli Kulani, Rajpur, Raipura, Senduri, Raghunathpur, Bahawar, Basauli, Baghuwari, Lodhi, Raunp, Musahi, Churk and Urauli (also known as Arauli) of Pargana Barhar and villages Biranchuwa, Makri Bari, Pokhraundh, Lauwa, Cherui, Baghma, Markundi of Pargana Bijaigarh of district Mirzapur as far as the Western boundary of village Sasnai of Pargana Bijaigarh which then forms the boundary between Parganas Agori and Bijaigarh upto the point opposite the junction of the rivers Kanhar and Son and thence onward the River Son, forms its northern boundary. 366 in the east and south east by the territory of the State of Bihar; in the South by Tehsil Dudhi of District Mirzapur; in the South West and West by the territory of Madhya Pradesh (erstwhile Rewa State); but excluding village Kishun Chak, which is a separate estate within Pargana Agori and is bounded on the North, East and South by village Kon Khas and in the West by village Mohiuddinpur of District Mirzapur. " The learned counsel for the State has raised three points before us in the two appeals filed by the State: (1) In view of the impugned Act, Pargana Agori is an "estate within the Reforms Act; (2) The High Court was in error in holding that on account of the mention of a wrong area in the khewat the entry cannot be said to be in respect of the entire area; (3) Naksha Pattidaris prepared by Rai Manak Chand in 1843 in connection with settlement operations constituted record of rights. On the first point M On the first point Mr. A. K. Sen, the learned counsel for the Raja, contends that the impugned Act cannot be saved under article 31A because it has not been passed for agrarian reforms and, secondly, that the impugned Act includes an area within the definition of "estate" in the Reforms Act which is not an "estate" within article 31A(2). He says that the validity of the acquisition under the Reforms Act must be judged in the light of article 31 and article 19. article 31A(2) as enacted by Constitution (Seventeenth Amend ment) Act, 1964, reads as follows: "31A(2) In this article (a) the expression 'estate ' shall in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include (i) any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala any janmam right; (ii) any land held under ryotwari settlement; (iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land for pasture or sites of buildings and other 367 structures occupied by cultivators of land, agricultural labourers and village artisans; (b) the expression 'right ' in relation to an estate, shall include any rights vesting in a proprietor, sub proprietor, under proprietor, tenure holder, raivat, under raivat or other intermediary and any rights or privileges in respect of land revenue. " It is apparent from the definition that as far as the first part of clause (a) is concerned, we have to look to the meaning given to the expression "estate" or its local equivalent in an existing law relating to tenures. We cannot have recourse to the meaning given in a law which is not existing law. Existing law is defined in article 366(10) thus: " 'Existing law ' means any law, ordinance, order, bye law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye law, rule or regulation;" Therefore, if the State desires to invoke article 31A and rely on the definition contained in the first part of clause (a) it must show that the area sought to be acquired is an "estate" within the definition contained in a law relating to land tenures passed before the commencement of the Constitution. The relevant definition for our purposes is contained in section 4(4) of the U.P. Land Revenuie Act 1901. It is not necessary to decide whether Pargana Agor ails within the definition of "Mahal" as we have come to the conclusion that Pargana Agori is a Jagir or Inam or a grant of a similar nature within clause (a) (i) of article 31A(2). But before giving our reasons for this conclusion we will dispose of the contention of the learned counsel that Pargana Agori is an estate within cl. (a) (iii) of that Article. According to the learned counsel for the State any waste land or forest land would fall within clause (a)(iii) He says that it is not necessary that it should be held or let for purposes of agriculture or for purposes ancillary thereto. In other words, he would rewrite clause (a)(iii) as follows: Clause (a) (iii) (A) any land held or let for purposes of agriculture or for purposes ancillary thereto, (B) any waste land, forest land for pasture, (C) sites of building and other structures occupied by cultivators of land, agricultural labourers and village artisan. 368 We are unable to read clause (a)(iii) in this way. It seems to us that if this was the intention, cl. (a)(iii) would have been split up and waste land, forest land and land for pasture would have figured separately in a separate clause. There are vast areas of forest land and waste land in India and it is not to be expected that these would be included in the definition indirectly by expanding the word "land". If this was the intention at least the word "including" would have been omitted and substituted by "any". Further the whole object of article 31A is to carry out agrarian reforms and it 'is difficult to see how agrarian reforms can be furthered by the acquisition of every parcel of forest land or waste land. In our opinion the word "including" is intended to clarify or explain the concept of land held or let for purposes ancillary to agriculture. The idea seems to be to remove any doubts on the point whether waste land or forest land could be held to be capable of being held or let for purposes ancillary to agriculture. We must, therefore, hold that forest land or waste land in the area in dispute cannot be deemed to be an estate within cl.(a)(iii) unless it was held or let for purposes ancillary to agriculture. There is no dispute that the cultivated portion of Pargana Agori would fall within clause (a)(iii). The next point is whether Pargana Agori is a Jagir, Inam or other similar grant within article 31A(2)(a)(i). The learned counsel for the State relies on the following facts. About the year 1744 A. D. Shambu Shah the then Raja of Agori was dispossessed of his domains by Raja Balwant Singh and he brought the estate to his own use. It appears from Robert 's report that Raja Balwant Singh and his successor Chet Singh remained in possession for about 40 years. During the insurrection of Chet Singh, Adil Shah, grandson of Shambu Shah, attended on Warren Hastings and made himself so useful that the Governor General gave him a sanad restoring him the Zamindari of Agori Barhar (vide Sherring Hindu Tribes Caste Vol. 1, pages 182 183)reproducedin Baijnath Prasad Singh vs Taj Bali Singh(1) He helped the British in the military operations against Chet Singh thus: "Meanwhile the information of Chet Singh 's flight reached the Governor General at Chunar and a strong force was sent under Major Popham to take possession of Latifpur and then to reduce Bijaigarh. The GovernorGeneral, after visiting Patita, returned to Ramnagar on September 28th, and after restoring confidence by the issue of proclamations of amnesty, formally installed Mahip Narayan Singh, the daughter 's son of Balwant Singh, as (1) A.I.R. 1917 All. 369 successor to Chet Singh. Major Popham and his forces reached Latifpur without opposition and having garrisoned the place with two companies of sepoys under Captain Palmer, proceeded towards Bijaigarh, which he reached after a difficult and trying march. A survey of the height of the fort immediately dispelled all idea of capturing it by escalade. But the Raja of Agori, who had been expelled by Balwant Singh and was now seeking restoration to his ancestral domains, pointed out that the adjoining hill of Lowa Koh commanded the fort and was undefended. Accordingly a battery was at. once thrown up on Lowa Koh, as also on another hill to the north of the fort. On the following day fire was opened from these batteries and resulted in the speedy silencing of the guns of the enemy, which were very ineffectively served." (vide District Gazetteer of Mirzapur page 237) The sanad is dated October 9, 1781, and the translation reads as follows: "Be it known to Azzat Asar (respected) Adal Singh, Zamindar Pargana Agori. That on the basis of his application it has been learnt that the Zamindari of the aforesaid Pargana is his ancient hereditary property and that some years ago Raja Balwant Singh forcibly dispossessed him therefrom and himself took possession thereof Therefore, in view of Bargadam Haqeeq, he should be restored to his own rights so that he may carry on the settling and management of the aforesaid Pargana under the authority of the Amil and Rafat Wa Awali Martabat Raja Mahip Narain Bahadur (?). It be considered as very urgent and be complied with accordingly. Dated the 20th of Shawalul Mukarram, 1195 Hijri Qudsi, corresponding to the 9th of October, 1781, A. D. Qalmi. " Another translation appears in Baijnath Prasad Singh vs Tej Bali Singh:(1) "Be it known to Adil Shah, respectable zamindar of Pergana Agori, that on a petition having been made, it is known that the zamindari in the pargana aforesaid is his old ancestral property. Several years ago Raja Balwant Singh forcibly dispossessed him and brought it to his use. Therefore, in lieu of former rights he should remain in proprietary possession of his share as heretofore. He should make arrangements as regards the cultivation of the land and population of the pargana aforesaid in accordance with the directions of the Revenue Officer (1) A.I.R. 1917 All. 370 and Raja Mohit Narain Bahadur of high rank. He is insisted on doing as directed above." On October 15, 1781, a sanad was granted to the petitioner 's ancestor Adil Shah granting him an Ultmagah Jagir of Rs. 8,001/from Fasli year 1189. Adil Shah obtained possession of the Pargana with the assistance of the British troops. On November 4, 1803, a sanad was granted to the petitioner 's ancestors granting a Jagir of Rs. 8,001/ per annum. Mr. A. K. Sen contends that the sanad was set aside by resolution of the Governor General in Council dated April 1788 (see paragraph 16 of the G.O. No. 3824 of August 30, 1845 printed on page 97 of the Thomason Despatches). He relies on this statement contained in the judgment of the High Court in Writ Petition No. 454/1955 dated November 2, 1962. But this statement refers to the sanad dated October 15, 1781, and not to the sanad dated October 9, 1781, or the later sanad dated November 4, 1803. It appears from the District Gazetteer (page 255) that as soon as Adil Shah obtained possession of the zamindari, Adil Shah really forfeited his claim to the assigned villages, the revenue of which was Rs. 8001/ and as possession had been obtained at the time of the general settlement in 1788 the Governor General in Council ordered the assignment to be resumed. Adil Shah died in 1794 and the New Raja became involved in monetary difficulties. Mr. Barton, the then Collector, made certain proposals and they were accepted at Calcutta and orders were issued to him to revise the assessment of Agori Barhar in such a way as to give the Raja a net profit of Rs. 8,001/ per annum or to allot him, in lieu thereof, a certain number of villages assessed to that amount. Accordingly the revision of certain revenue paying villages took place, and in addition to the villages assigned by Mr. Duncan, certain others assessed to a sum of Rs. 4,000/ were made over to the Raja. This arrangement brought taluqas Agori and Singrauli into the Raja 's possesssion, with the result that he became in 1804 both zamindar and jagirdar, or assignee of the Government demand, in taluqas Kon and Agori, Singrauli and 28 villages in Barhar. Paras 11 to 15 of Robert 's report dated January 1, 1847, are to the same effect. It seems to us clear from the above facts that Pargana Agori is still held under the sanad dated October 9, 1781, and the sanad dated November 4, 1803. The second sanad is a grant of land revenue. That is definitely a Jagir. The learned counsel for the State contends that the fact that Adil Shah asserted a prior title may have been one of the reasons for the restoration of the zamindari, but it was in essence a new grant made on political considerations. He further points out 371 that conditions are also laid down in the Sanad. Adil Shah was enjoined to make arrangements regarding cultivation and population of the pargana and had to obey the directions of the revenue officer and Raja Mohit Narain ]Bahadur in this behalf. As stated by this Court in Thakur Amar Singhji vs State of Rajasthan(1) "we do not find any sufficient ground for putting a restricted meaning on the word 'Jagir ' in article 31A. At the time of the enactment of that Article the word had nearly acquired both in popular usage and legislative practice a wide connotation, and it will be in accord with sound canons of interpretation to ascribe that connotation to that word rather than an archaic meaning to be gathered from a study of ancient tenures. " An inam is explained in Wilsons ' Glossary thus "A gift, a benefication in general, a gift by a superior to an inferior. In India, and especially in the south, and amongst the Marathas, the term was especially applied to grants of land held rent free, and in hereditary and perpetual occupation; the tenure came in time to be qualified by the, reservation of a portion of the assessable revenue, or by the exaction of all proceeds exceeding the intended value of the original assignment; the term was also vaguely applied to grants of rent free land, without reference to perpetuity or any specified conditions. The grants are also distinguishable by their origin from the ruling authorities, or from the village communities and are again distinguishable by peculiar reservations, or by their being applicable to different objects. " In our opinion a grant by the British of lands for services. rendered to them would be a grant falling within cl. It seems to us that on the facts of the case the grant was in thenature of a grant similar to a Jagir or inam. The fact that Balwant Singh and Chet Singh held possession of this Pargana for 40 years, cannot be ignored. This shows that to all intents and purposes Adil Shah had lost the pargana and it was in effect a fresh grant in the nature of Jagir or inam for services rendered to the British. Adil Shah 's assertion to title had not been verified. Although it may be one of the reasons for the grant, it is clear that if it had not been for the grant and its enforcement by the British troop&, Adit Shah would not have been able to recover the possession of the Pargana. His title to the pargana would rest on the grant and not. the alleged previous title. If it is held, as we do hold, that the area in dispute is a grant in the nature of Jagir or inam and consequently an estate within (1) ; 372 article 3 1A(2), the impugned Act can claim the protection of article 3 1A. The notifications dated June 30, 1953, and July 1953, must therefore be upheld. Mr. A. K. Sen further urges that the acquisition of the estate was not for the purposes of agrarian reforms because hundreds of square miles of forest are sought to be acquired. But as we have held that the area in dispute is a grant in the nature of Jagir or inam, its acquisition like the acquisition of all Jagirs, inams, or similar grants, was a necessary step in the implementation of the agrarian reforms and was clearly contemplated in article 3 1 A. In this view it is not necessary to decide whether the area in dispute is a Mahal or covered by section 3(8) of the Reforms Act as it existed in 1958 or earlier or any other question which was raised before us. In the result the appeals filed by the State are accepted, the appeal filed by the petitioner Raja is dismissed and the petition under article 226 filed by the Raja is dismissed. In the circumstances of the case there will be no order as to costs.

The suit of the appellant as khatedar of the land in dispute, for ejectment of the respondents on the ground that they were shikmi tenants, was decreed by the Tahsildar under section 71 of the Bhopal State Land Revenue Act, 1932. Within 12 years of the date of their dispossession the respondents filed the suit against the appellant in the civil court, claiming to be the khatedars and for possession. The lower courts and the High Court held that the decision of the revenue court did not bar the jurisdiction of the civil court on the question of title to the suit land and decreed the suit. In appeal to this Court, HELD : Section 200(1) of the Act, read with sections 71, 89, 93 and 95, does not exclude the jurisdiction of the civil court to entertain a suit based on title. [621 E F] Section, 200(1) bars the civil court from entertaining a suit with respect to any matter which a revenue officer is empowered by the Act to determine. But the question of title is a matter foreign to the scope of section 71. The Tahsildar is no doubt empowered under section 93 to decide on any dispute about any entry to be made in the Record of rights showing the persons who are holders of land, but, under section 95, the effect of such an entry is only to make it a presumptive piece of evidence in a collateral proceeding such as a suit based on title. Therefore, it is assumed that such a suit could be filed in spite of a decision under section 93. The suit was within time under article 142, Limitation Act, 1908, and since the High Court and the lower courts held that the presumption raised by the entry was rebutted by the oral and documentary evidence adduced by the res pondents, the correctness of the concurrent findings of fact could not be canvassed in the appeal under article 136.

Appeals Nos. 466 and 407 of 1960. Appeals by special leave 'from the judgment and decree dated October 30, 1956, of the former Nagpur High Court (Now Madhya Pradesh ' in F. A. Nos. 79 and 95 of 1949. C. K. Daphtary, Solicitor general of India, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants (in C. A. No. 406/60) and Respondent Nos, 12 and 14 to 17 (in C.A. No. 407/60). C. K. Daphtary, Solicitor General of India, J.B. Dadachanji, Rameshwar Nath, section N. Andley and P.L. Vohra, for the appellants (in C. A. No. 407/60) and respondent Nos. 1 to 3 (in C. A. No. 406/60). B. Sen and I. N. Shroff, for respondent Nos. 5 and 6 (in C. A. No. 406/60) and Respondent Nos. 1 and 2 (in C. A. No. 407 of 60). August 17. The Judgment of the Court was delivered by DAS GUPTA, J. This unfortunate litigation over a school which was started sixty years ago is one of the unhappy consequences of a feud that raised its ugly head in the Daudi Bohra Community many years ago. The school was started at Burhanpur by certain members of the Daudi Bohra Community of Burhanpur in the year 1902. It was named Madrasai Faize Hakimia and its object was to 625 impart religious and secular education to boys of the Daudi Bohra Community. Funds were collected for the purpose of the school from the members of that community for the maintenance of the school. In the year 1908 English classes were added to the school and in 1911 it was raised to the status of a High School under the name "Madrasai Hakimia and Coronation High School". Some time before this on May 24, 1909 one Daudi Bohra of Surat of the name of Abdul Hussain Abdullali Faizullabhai Muchhala made a was of certain properties in Bombay for the benefit and advantage of this school at Burhanpur. For the management of this, trust he appointed as trustees 12 gentlemen whom he mentioned as persons who had already been appointed trustees of the school. Only a few months after this another trust came into existence for the benefit of the same school, by a deed executed by six persons, all Daudi Bohras and all belonging to Burhanpur describing themselves as managers of the school. They created by the deed "Waqf and trust of their properties" which were mentioned in detail in the body of the deed. Eighty persons, including themselves were named as the trustees. It is further stated by the executants of the deed that all movable and immovable properties connected with the school shall vest in these trustees. It is provided in the deed that the trustees hall be entitled to govern, manage and administer the affairs of the school and shall have the power of framing rules and regulations from time to time for the benefit and efficient running of the school ; and also have the power to appoint new trustees from time to time in accordance with such rules and regulations. These trustees managed the school and also the properties belonging, to the school including the properties of which waqf was made in its favour by the trust deed of September 15, 1909 without any trouble till March 1917. In the course of such management 626 some of the original trust properties were converted into new properties by the trustees with the help of additional donations received from members of the Daudi Bohra Community. Trouble started in 1917 when some members of the Community started declaring that Mullaji Taher Saifuddin Saheb who, according to the main body of the Community was the Dai ul Mutalaq was not a Dai ul Mutalaq. About the same time four out of the 18 who were appointed by the trust deed of September 15, 1909 joined three other members of the Daudi Bohra Community of Burhanpur to form a society by the name of "Madrasai Hakimia & Coronation Society", the main purpose of which was to run the Hakimia & Coronation High and Primary Schools at Burhanpur. Among other objects were mentioned the development of branches of the school at different places ; opening library or libraries at suitable centres ; conducting newspaper or newspapers ; editing and compiling and publishing books. In the Memorandum of Association it was provided that 12 persons named therein would form the governing body to whom the management of the affairs of the society shall be entrusted. It was further provided that properties of each and every description acquired for or given to Madrasai Hakimia & Coronation High School shall be vested in this governing body. The 10 persons who have been impleaded as defendants 2 to 11 ,ire members of the governing, body of the Society. From the time they assumed the management of the Madrasai Hakimia & Coronation High School as members of the Society they have been administering the properties of which waqf was made in favour of the school by the six gentlemen who executed the trust deed of September 15, 1909. The suit out of which these appeals have arisen was started under s.92 of the Code of Civil Procedure 627 by 4 Daudi Bohra muslims who claimed to be interested in the trust properties set out in the Schedule to the plaint as members of the Daudi Bohra Community. Their main contention in the plaint is that the first defendant, the Hakimia Society and the 10 defendants, defendants Nos. 2 to 11 were not validly appointed trustees in respect of these trust properties. They prayed in this suit for a declaration that these defendants are not vaildly appointed trustees ; for their removal from the management of these properties and for an order on them to render accounts on their administration of these properties. There was also a prayer for the appointment of proper and fit persons for the management of these properties in accordance with the provisions of the trust deed of September 15, 1909, and for the framing of a scheme for the administration of the trust to which we shall latter refer as the Burhanpur Trust if it was necessary. The ground on which the plaint claimed that these defendants were not validly appointed trustees was that they had not been appointed as such in accordance with the terms and conditions of the trust deed of September 15, 1909. According to the plaint, whatever entrustment took place by the constitution of the Hakimia Society was invalid in law as the persons who got this registered as the Hakimia Society had no right in law to vest these properties in the Society or the members of the governing body of that Society. As further ground for removal of these defendants from the management of these properties the plaint set out a number of acts said to have been committed by them which it was alleged amounted to a breach of trust. One such act was the defendants ' action in throwing open the Madrasai Hakimia & Coronation High School to students other than the Daudi Bohra Community. 628 The trustees of the trust created by Mr. Muchhala were impleaded as defendants 12 to r7. No relief was however asked for against defendants 12 to 17. The main defences of defendants 1 to 11 were that they had been validly appointed trustees of the properties mentioned in the plaint under the trust deed. of September 1909 in accordance with the rules framed under the trust deed. They claimed that the properties of the institution vested in them and continued to remain vested after the registration of the Society. The allegation of breach of trust was denied. In that connection it was pleaded that the admission of non Bohra students did not amount to a breach of trust. A large number of issues were framed; but it would be unnecessary to consider most of these for the decision of ' these appeals. The principal question in controversy was whether defendants 1 to 11 were validly appointed trustees of the properties claimed as trust properties in the plaint. The second question was as regards the allegation of breach of trust. The first question was embodied in Issue No. 9 thus : "Are defendants 2 to 11 duly appointed trustees under the trust deed dated 15 9 1909 ?" The Trial Court answered this question in the affirmative. Relying on the provisions of Para. 6 of the trust deed (of September 1909) for the framing of rules and regulations for management of the school and properties connected with the school, the Court held that the persons who were already trustees under the trust deed "had the power by a resolution" passed by the majority of the trustees at their meeting to (i) appoint new trustees,. (ii) to appoint a charge of the trust properties, (iii) to get the body registered and, (iv) to frame rules and regulations such as were embodied in the Memorandum of, Association of the Hakimia Society. It pointed out 629 that a majority of the trustees present at a meeting had passed a resolution regarding registration of the society and regarding the rules and regulations embodied in the Memorandum of Association. This .registration in the opinion of the Court and the ' formation of the Committee of its management for the registered society was "one ' of the acts done by the trustees in the course of the managements 'and was in fact an act to secure more efficient management of the trust property and the trustees had the power to do it. The Court further held that while it was true that the property which existed at the time the resolution to register the society was passed was then vested in the trustees then existing, there was nothing to prevent those trustees " 'who under the exhibit P 3 had the power to frame rules and regulations for the management of the school and the properties connected with it, from providing for the vesting of the property in the members of the governing body by a rule framed by them at a meeting of the trustees held according to the terms of exhibit P 3. " According to the Court "the trustees had the power to vest the existing property in a governing body consisting of only some of them by a resolution passed at a meeting of trustees. " Accordingly the Court held that defendants 2. to II who were members of the governing body of the Hakimia Society must be held to be validly appointed trustees according to the terms of the trust deed of September 15, in respect of all the properties endowed for the benefit of the school with the exception of Muchhala trust property. The question of breach of trust by defendants 2 to 11. was embodied in Issue No. 6 in these words "(a) Did the governing body of the School use the trust properties (mentioned in the plaintiffs ' list M) or any income therefrom for fighting out litigation in 1925 (C. section No. 32 of 1925)? 630 (b) Did they misappropriate the trust property or income therefrom? (c) Was the litigation for the benefit of the school" '? Another part of the allegation of breach of trust finds place in Issue No. 11 (c) thus : "Is the admission of the students who do not belong to the Daudi Bohra Community inconsistent with the object of the trust"? The Trial Court answered questions 6 (a) and (e) in the negative i.e., it found that the governing body did use trust properties or income therefrom for fighting out litigation in C. section No. 32 of 1925 and that the litigation was not for the benefit of the school. Yet the Court answered Issue No. 6 (c) in the negative, finding that such expenditure did not amount to misappropriation. The basis of this last finding is that though some part of the trust fund was misapplied in meetings part of the expenses of litigation which was not for the benefit of the school the defendants 2 to 11 believed, though wrongly, that by this litigation they would be safeguarding the rights of boys who were receiving education in the school and so the litigation was in the interests of the institution. The Trial Court refused to make a declaration that defendants 1 to 11 were not validly appointed or for their removal. It however gave a decree for the removal of defendants 12 to 72 to 17, the trustees of the Muchhala Trust. Defendants 12 to 17 were further ordered to deposit into the Court the amount collected by them from the Muchhala trust property and were forbidden to recover any income from that property after the date of the decree. The defendants 2 to 11 were ordered to deposit the sum of Rs. 15,596 5 8 which they were found to have misapplied. It was ordered that if this amount was not paid by them they shall be removed and a: 631 scheme would be framed and a now trustee would be appointed to take charge of and manage the Madrasai Hakimia & Coronation High School and the properties endowed for its benefit. A Commissioner was directed to be appointed to ascertain the amount paid by the managers of the Muchhala trust property to the trustees defendents 12 to 17 and to determine the amount in the hands of these defendants. The same Commissioner was also directed to determine the amount spent by defendants 2 to 11 on religious education in accordance with the directions of the trust deed. The amount was found due to be paid to defendants 2 to 11 to be then deposited, by them in a recognised bank for the benefit to the school. Against this decree of the Trial Court the plaintiffs preferred an appeal to the High Court of Judicature at Nagpur. Another appeal was preferred by defendants 12 to 17 against the Trial Court 's judgment in so far as it directed their removal and gave other reliefs against them. Defendants 1,2,4,5, 9 and 10 filed cross objections in which they challenged the correctness of the Trial Court 's finding that there had been misapplication of the trust fund to the extent of Rs. 15,596 5 8 and Rs.900/ . The High Court dismissed both the appeals as also the cross objections and affirmed the decision of the Trial Court in full. Against the High Court 's decision two appeals have been filed before this Court one by the plaintiffs and the other by defendants 12, and 14 to 17 by special leave granted by this Court. The appeal by defendants 12, and 14 to 17 can be easily disposed of. Their contention is that the Trial Court as also the High Court erred in granting a decree against them when the plaintiffs in the suit had not asked for any such relief. In our 632 opinion, this contention must be accepted as correct. While it is true that these five appellants, Sheikh Abdul Kayum, Seth Abdulabhai, Mulla Abdulla Bhai, Mulla Mohammed, Bhai and Seth Hasanali along with Sheikh Fida Ali were impleaded as defendants no relief was sought against them nor was any averments made for that purpose. The prayers in para. 26 asked for a declaration that "defendants" ' are not validly appointed trustees, that ." 'defendants" maybe removed from the management of the properties and that the 'defendants" may be ordered to render an account of their administration of the trust properties. In para. 20 also the word "defendants" was used without any qualification when it was said that it was absolutely necessary in the interest of the said trust that the "defendants" are not properly appointed trustees of the said trust and that the "defendants" are trustees de sontort. But when the plaint is read as a whole, especially the statements in para. 19 it becomes quite clear that the plaintiffs in the present suit are seeking relief only against defendant, 1, Hakimia Society and the defendants Nos. 2 and 11, the members of the Society. The averments on which the case that defendants are not validly appointed trustees and are trustees de sontort are made. in respect only of these 11 defendants. The allegations of breach of trust are also made only against these defendants. Paragraph 10 puts the matter in clear perspective in these words : "The plaintiffs say that defendant No. 1 and defendants 2 to 11 who are the present members of defendant No.1 Society are liable ' to be removed on the following grounds. " This statement is followed by.an enumeration of six grounds all of which clearly and unmistakably refer only to these 11 defendants. Common sense and ordinary rules of grammar therefore compel us to read the words "defendants" 633 in Paras 20 and 26 to mean only defendants Nos. 1 to 11. We have no doubt therefore that the courts below misdirected themselves in thinking that the plaintiffs had asked for any relief as against defendants 12 to 17. It was stated before us that the Muchhala trust was outside the jurisdiction of the Trial Court and ' that even if any relief had been asked for against defendants 12 to 17 the Trial Court would not have been competent in law to give such relief. It is unnecessary for us to consider that aspect of the matter as it is abundantly clear that the plaintiffs did not ask for any relief against defendants 12 to 17 and for that reason alone the courts below acted illegally in passing any decree as against those defendants. In the two appeals filed respectively by the plaintiffs and defendants 12, and 14 to 17 the appellants are represented by the learned Solicitor General and it is conceded by him for the plaintiffs that the plaint did not claim any relief against defts. 12 to 17. The appeal No. 406 of 1960 which is by the original defendants 12 & 14 to 17 must therefore be allowed. The appeal which has been numbered as 407 of 1960 is by the four plaintiffs. The first contention raised on their behalf by the learned Solicitor Genera) is that the original trustees of the Burhanpur trust had no power in law to divest themselves of the property vested in them by the trust deed or to vest these properties in any society or its governing body, even though the society or the governing body might include some or all of the old trustees. In the present case it was contended in the plaint and urged before us on behalf of the appellants that the evidence would show that all the old trustees had not joined in the act of 634 formation of the Hakimia Society and transfering the property vested in them to the society or its members. Assuming, however, for the purpose of the present question that what was done should be deemed in law to be the act. of the entire old body of the trustees, even so, the learned Counsel argues, the act had no legal validity and did not produce in law the consequence of constituting the Hakimia Society or its members trustees in place of the old trustees. In our judgment, this contention must succeed. There cannot, in our opinion, be any doubt about the correctness of the legal position that trustees cannot transfer their duties, functions and powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries. A person who is appointed a trustee is not bound to accept the trust, but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself. Nor can a trustee delegate his office or any of his functions except in some specified cases, The rules against renunciation of the trust by a trustee and against delegation of his functions by a trustee are embodied, in respect of trusts to which the Indian Trusts Act applies, in sa. 46 and 47 of that Act. These sections run thus "46, A trustee who has accepted the trust can not afterwards renonce it except (a) with the permission of a principal Civil Court of Original Jurisdiction, or(b) if the beneficiary is competent to contract, with his consent, or (c) by virtue of a special power in the instrument of trust. 635 47. A trustee cannot delegate his office or any of his duties either to a co trustee or to a stranger, unless (a) the instrument of trust so provides, or(b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation. " It is true that section I of the Indian Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments; and so, these sections may not in terms apply to the trust now in question. These sections however embody nothing more or less than the principles which have been applied to all trusts in all countries. The principle of the rule against delegation with which we are concerned in the present case, is clear; a fiduciary relationship having been created, it is against the interests of society in general that such relationship should be allowed to be terminated unlilaterally. That is why the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart from delegation "in the regular course of business", that is, all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs. What we have got in the present case is not delegation of some functions only, but delegation of all functions and of all powers and is nothing short of abdication in favour of a new body of men. Necessarily there is also the attempt by the old trustees to divest themselves of all properties vested in them by the settlor and vesting them in another body of persons. We know of no principle of law and of no authority which permits such abdication of trust in favour of another body of persons. 636 In the deed itself there is no thing which contemplates or allows such an abdication and the substitution of the old trustees by a new body of trustees. It is necessary in this connection to consider the terms of cl.5 of the trust deed, That clause is in these words: "5. All the aforesaid trustees 3hall be entitled to govern, manage and administer the affairs of the school above. These trustees shall have the power of framing rules and regulations from time to time for the benefit and the efficient running of the school, and they shall have the power to appoint new trustees from time to time in accordance with the rules and regulations on behalf hereof. All the movable and immovable properties connected with the said school shall come to vest in the trustees and they shall be managed and administered in accordance with the rules and regulations framed on that behalf. The trustees for the time being shall have the power to alter and cancel the rules and regulations and to frame new ones instead thereof at the time when necessary. The treasurer shall have the power to open the cash account in some reliable bank and he shall always arrange for cash dealings to the benefit of the said school in accordance with the holy law of Islam. (Shariat). " The provisions for the appointment of new trustees cannot by any stretch of imagination be hold to mean the substitution of the old body of trustees by a new body. That provision only permits the old trustees to add to their number. Nor does the power to frame rules and regulations for the benefit and efficient running of the school authorise the trustees to give up the management of the school themselves or to divest themselves of the 637 properties entrusted to them by the trust deed and vest them in other persons. We are satisfied therefore that cl.5 of the trust deed does not in any manner authorise the trustees appointed by deed to abdicat in favour of anthor body of persons or to constitute that body as trustees in their own place. There is no question here also of the beneficiary, i.e., the school consenting to such abdication. There is therefore no escape from the conclusion that the act of the trustees, who were appointed by the trust deed, in handing over the management of the school to the Hakimia Society and the properties of the school to the members of the governing body of the Hakima Society was illegal and void in law. The members of the Society or the members of the governing body did not therefore be. come trustees in respect of the properties which are covered by the Burbanpur trust. This position in law is not seriously disputed by Mr. Son, who appeared before us on behalf of the respondents. He has however taken before us a noval line for suporting the decision of the courts below. He has tried to persuade us that the trust deed of September 1909 creates a trust only in respect of the properties that belonged to the six persons who executed the trust deed. These properties have been set out in cls. 7 to 12 of the deed. This deed therefore has not created any trust in respect of such of the properties mentioned in the plaint which do not fall within the properties mentioned in these clauses of the trust deed. As regards cl.5 of the trust deed which has been set out above and which states that " 'All the movable and immovable properties connected with the said school shall come to vest in the trustees," the learned Counsel states that the six settlors who executed this trust deed of September 1909 have not been shown to have bad any title to these 638 movable and immovable properties connected with the school. The school, argues the learned Counsel, is merely a beneficiary of the trust and the properties of the school do not become trust properties entrusted to these trustees merely because the settlors have createated a trust in respect of other properties. There is no question therefore of any property other than the properties mentioned in Paras. 7 to 12 of the deed having been vested in the trustees appointed by the deed, or their divesting themselves of the same. It is only in so far as the defendants 1 to 11 claim to be the trustees of the properties mentioned in cls. 7 to 12 of this deed that they can be considered to be not validly appointed trustees. Mr. Sen submits that his clients do not claim to be trustees in respect of these properties, viz., those which are mentioned in cls. 7 to 12 of the deed. In so far as they manage these properties an order, may be made against them removing them from the management of these and they may be asked to render accounts in respect of these properties, only. In respect of other properties which according to Mr. Sen are the properties belongining to the beneficiary school, however, no order could properly be made, as they are outside the Burhanpur trust that came into existence by the trust deed of September 1909. The argument appears attractive at first sight and even plausible. Unfortunately, however, for the respondents, this case which their Counsel now seeks to make was never their case in the courts below. Far from saying that some of the properties mentioned in the plaint as trust properties of the Burhanpur trust are not in fact covered by the trust deed, these respondents have all along made the definite case that they were validly appointed trustees of those properties in accordance with the trust deed of September, 1909. Their case in this matter may 639 best be described in the words used in Para. 4 of the written statement thus "It is admitted that on or about 19th March, 1917, seven persons signed a memorandum of Association and registered themselves as members of the Society under Act XXI of 1860. Defendant says that all these persons were the trustees and in the management of be trust properties under trust deed dated 15 9 1909 and were either appointed under that trust or under the rules framed thereunder, and in whom the properties of the institution vested and the same continued to be vested after the registration of the Society. " This paragraph unambiguously accepts the plaintiffs ' case that all the properties specified in the Schedule M attached to the plaint are properties covered by the trust in question and it pleads that defendants 2 to ' 11 are validly appointed trustees of the said trust. The Judgment of the Trial Court and the High Court also clearly show that before them, these defendants claimed to be trustees validly appointed in accordance with the trust deed of September 1909 of all the properties that were mentioned as trust properties of that deed in the plaint. Nothing appears to have been pleaded either in the written statement or at the trial or during the arguments that the settlors of this deed of September 1909 could not create a trust in respect of "all the movable and immovable properties connected with the said school", as those properties ' did not belong to them. On the contrary. the respondents claimed all along to have become trustees in respect of. not only of the properties mentioned in cls. 7 to 12 of the deed but also of all other properties of the school, on the strength of this very trust deed, Mr. Sen 's 640 contention that some items of the properties mentioned in the plaint as trust properties covered by the trust deed of September 15, 1909 were not so covered cannot therefore be accepted, We find it established therefore that defendants 1 to 11 were not validly appointed trustees in respect of the trust properties mentioned in the plaint. Their possession and management of these properties must therefore be held to be only in the character of trustee de sontort. They are liable there fore to account for their entire period of management. From the very fact that they have no legal right to remain in possession of the trust properties, not having been validly appointed as trustees, it is equally clear that the plaintiffs are entitled to a decree that those defendants 1 to 11 be removed from the management of the properties. The learned Solicitor General challenged the correctness of the findings of the courts below that these defendants (defendants 1 to 11 ) did not by their misapplication of trust funds to the extent of Rs. 15,596 5 8 and Rs. 9001 commit misappropriation and also that the admission of students who did not belong to the Daudi Bohra Community was not inconsistent with the object of the trust, We think it unnecessary however to consider these matters inasmuch as even if these findings of the courts below are correct the plaintiffs are entitled to the reliefs they have asked for in this suit. Besides the amount of Rs. 15,000/ and odd has been already paid by defendants 2 to 11 under the decree of the Trial Courts. It is necessary to mention the fact that an assurance was given to by the learned Solicitor General that in any case the interest of the non Bohra students will be safeguarded in this school. Accordingly, we allow the appeal and order that it be declared that the defendants 1 to 11 are 641 not validly appointed trustees in respect of the trust properties mentioned in the list M annexed to the plaint ; that the defendants be removed from the management of these properties and they be ordered to render an account of their administration of these properties. Necessary directions for the rendering of accounts will be made by the Trial Court and in doing so, credit will be given to defendants 2 to 11 of Rs. 15,000/and odd already paid by them. The plaintiffs appellants admit that it is not necessary to frame any scheme for the administration of the trust and we agree that this is not necessary at least for the present. It is necessary however that new trustees be appointed for the administration of the trust. of the original 18 trustees all except one are dead and sole survivor is admittedly too old to carry on the administration successfully. The very fact that for many year 's he has not discharged any functions as a trustee also makes it necessary that new trustees should be appointed. We therefore direct that suitable persons be appointed by the Trial Court as new trustees after giving an opportunity to the plaintiffs and other responsible members of the Daudi Bohra Community to place their recomendations and objections in this matter. Both the appeals are accordingly allowed, The Plaintiffs will get their costs here and also in the Trial Court and the High Court from defendants 1 to 11. There will be one set of hearing fee for the two appeals. Appeals allowed.

In 1909 six persons created the Burhanpur Trust for governing, managing and administering the affairs of a school in Burhanpur. Under the Trust deed 18 persons were appointed as the trustees and all movable and immovable properties connected with the school were vested in them. Clause 5 of the Trust deed empowered the trustees "to appoint new trustees from time to time" and to frame rules and regulations for the benefit and efficient running of the school. In 1917 the Hakimia Society was formed by the trustees for the purpose of running the school and 12 persons were named members of the governing council in which all the properties of the school were vested. Since then ten members of the governing council have been administering the properties in respect of which a trust was created in 1909. A suit under s.92 Code of Civil Procedure was filed for removal of the ten members of the governing council, inter alia, on the ground the Hakimia Society and the ten members of the governing council had not been validly appointed trustees of the trust properties. Held, that the ten members of the governing council of the Hakimia Society were not validity appointed trustees of the Trust properties and were liable to be removed from the management thereof, The trustees of the Burhanpur Trust had no power to create another body of men as trustees in their own place. Trustees who have once entered upon the trust cannot renounce their duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself. Nor can trustees delegate their offices or any of their functions except in some specified cases. In the present case there was delegation of all the powers and functions of the trustees amounting to abdication in favour of a new body of men. The trustees sought to divest themselves of the properties vested in them by the trust deed and to vest them in the 624 new body. Such abdication could not be permitted. There was nothing in. the trust deed which allowed such an abdication and substitution of trustees. , The provision in cl. 5 for appointment of new trustees only permitted the old trustees to add to their number. Nor did the power to frame rules and regulations authorise the trustees to give up the management of the school themselves or to divest them. selves of the properties entrusted to them by the trust deed and vest them in other persons.

: Criminal Appeal No. 190 of 1976. (Appeal by Special Leave from the Judgment and Order dated 15 7 1975 of the Madras High Court in Criminal Appeal No. 162/ 75. Vineet Kumar and M. Mudgal, for the appellant. A.V. Rangam and Miss A. Subhashni, for respondent No. 1 K. Jayaram and K. Ram Kurnar, for respondents Nos. 2 4. The Judgment of the Court was delivered by CHANDRACHUD, J. The appellant, Palaniappa Gounder, was convicted by the learned Principal Sessions Judge, Salem, under section 302 of the Penal Code and was sentenced to death on the charge that on August 23, 1974 he had committed the murder of one Sengoda Goundar. Two appellant 's son and daughter in law were convicted by the learned Judge for abetting the murder and were sentenced to life imprisonment. The three accused filed an appeal in the High Court of Madras which upheld the appellant 's conviction under section 392 but reduced the sentence from death to imprisonment of life. However, while reducing the substantive sentence the High Court imposed a fine of Rs. 20,000/ on the appellant and directed that out of the fine, if realised, a sum of Rs, 15,000/ should be paid to the son and daughters of the deceased under section 357(1) (c) of the Criminal Procedure Code, 2 of 1974. The other two accused were acquitted by the High Court. We are not concerned in this appeal with the legality of the appellant 's conviction or with the acquittal of his daughter and son in law. The special leave granted by this Court is limited to the question of the propriety of the fine imposed by the High Court. The reason and occasion for imposing the sentence of fine was that an application was filed before the High Court under section 482 of the Criminal Procedure Code by a son and two daughters of the decased praying that the appellant, his son and daughter in law be asked to pay to them, as heirs of the deceased, compensation in the stun of Rs. 40,000/ for the death of their father. Section 482 of the Code under which the heirs of the deceased filed the application for compensation corresponds to section 561 A of the Criminal Procedure Code of 1898. It saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. A provision 134 which saves the inherent powers of a Court cannot over ride any express provision contained in the statute which saves that .power. This is put in another form by saying that if there is an express provision in a statute governing a par ticUlar subject matter there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which arc made advisedly to govern the particUlar subject matter. From this it will be clear that the application made by the heirs of the deceased for compensation could not have been made under section 482 since section 357 expressly confers power on the court to pass an order for payment of compensation in the circumstances mentioned therein. That did not, howev er, affect the power of the High Court to deal with the application because though the application was wrongly described as having been made under section 482 the High Court could deal with it as if it were made under section 357 of the Code. That in fact is what the High Court proceeded to do, for it passed the order of compensation not under section 482 but under section 357(1)(c) of the Code. Section 357 of the Code of Criminal Procedure, 2 of 1974, reads thus: "357. Order to pay compensation. (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied : (a) in derraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compen sation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence which illdudes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assist ed in disposing of, stolen property knowing or having reasons to believe the same to be stolen, in compensating any bona fide purchas er of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. 135 (2) If the fine is imposed in a case which iS subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed or of an appeal be presented, before the decision of the appeal. (3) When a Court imposes a sentence, of which fine does not form a Part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Sessions when exercising its powers of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section. " Clauses (a), (b) and (d) of section 357(1) need not be con sidered firstly because the High Court has passed the order of compensation trader cl. (c) and secondly because those clauses have no application. No order having been passed by the High Court for derraying the expenses incurred in the prosecution cl. (a) does not come for consideration. Clause (b) has no application to cases in which the heirs of a person whose death has been caused apply for compensation because that clause deals with the payment of compensation to the very person to whom. any loss or injury has been caused as a result of the offence committed against him or his property and when compensation is recoverable by such person in a Civil Court. Clause (d) deals with a different Class of cases altogether and need not detain us. Clause (c) of section 357(1) under which the High Court has passed the order for compensation enables the Court to direct that the whole or any part of the fine recovered may be applied in paying compensation to the persons who are under the entitled to recover damages from the person sentenced for the loss resulting to them from the death of the person whose heirs, as described in the Act of 1855, they claim to be. Since under the Act of 1855, persons who may be compensated are the wife, hus band, parent (including grand parents) and child (including grand children and step children), the application filed in the High Court was maintainable at the instance of the son and daughters of the deceased. It cannot however be overlooked that the order for compensation can be passed under section 357(1)(c) only when "a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part". We are concerned in this appeal to examine primarily the legality and propriety of. the sentence of fine imposed by the High Court because upon that would depend the efficacy and indeed the very existence of the order for payment of com pensation to the heirs of the deceased. The compensa tion, as 10 240SC1/77 136 provided in the section, has to come out of the fine. Therefore, if on a proper application of the principles of sentencing, the fine imposed by the High Court is.found to be excessive and has therefore to be reduced, the order regarding the payment of compensation must suffer a corre sponding variation. There can be no doubt that for the offence of murder Courts have the power to impose a sentence of fine under section 302 of the Penal Code. That section provides that whoever commits murder shah be punished with death, or imprisonment for life, and "shall also be liable to fine". That is why section. 357(1) of the Code speaks of "a sentence (includ ing a sentence of death) of which fine forms a part. " That is only an instance of the practical application of section 302 under which not only a sentence of imprisonment for life but even a sentence of death can legitimately be combined with a sentence of fine. But legitimacy is not to be confused with propriety and the fact that the Court possesses a certain power does not mean that it must always exercise it. Though, therefore, the High Court had, the power to impose on the appellant a sentence of fine alongwith the sentence of life imprisonment the question still arises whether a sentence of fine of Rs. 20,000/ is justified in the circumstances of the case. Economic offences are generally visited with heavy fines because an offender who has enriched himself unconscionably or unjustifiably by violating economic laws can be assumed legitimately to possess the means to pay that fine. He must disgorge his iII gotten wealth. But quite different con siderations would, in the generality of cases, apply to matters of the present kind. Thought there is power to combine a sentence of death with a sentence of fine that power in sparingly exercised because the sentence of death is an extreme penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose. In fact the common trend of sentencing is that even a sentence of life imprisonment is seldom combined with a heavy sentence of fine. We cannot, of course, go so far as to express approval of the unqualified view taken in some of the cases that a sentence of fine for an offence of murder is wholly "inapposite" (See, for example, State vs Pandurang Shinde(1), but before imposing the sentence of fine, particularly a heavy fine, alongwith the sentence of death or life imprisonment, one must pause to consider whether the sentence of fine is at all called for and if so, what is a proper or adequate fine to impose in the circum stances of the case. As observed by this Court in Adam Ii Umar Dalal vs The State of Bombay, (2) determination of the right measure of punishment is often a point of great diffi culty and no hard and fast rule can ' be laid down, it being a matter of discretion which is to be guided by a variety of considerations but the court must always bear in mind the necessity of maintaining a proportion between the offence and the penalty proposed for it. Speaking for the Court Mahajan J. observed in that case that: "in imposing a fine it is necessary to have as much regard to the pecuniary circumstances of the accused persons as to the (1) A.I.R. [1956] Bom. 711,714. (2) 137 character and magnitude of the offence, and where a substan tial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases" (p. 177). Though that case related to an economic offence, this Court reduced the sentence of fine from Rs. 42,300/ to Rs 4,000/ on the ground that due regard was not paid by the lower Court to the principles governing the imposition of a sentence of fine. The High Court imposed in the instant case a fine of Rs. 20,000/on the ground that "the deceased was aged about 48 years and was actively supervising the cultivation of the family lands and would have lived for another 15 to 20 years with his abilities in tact, and the loss to the dependents, viz., the son and daughters would be about Rs. 20,000/ ". Except for the bald and bare statements contained in the petition for compensation filed by the heirs of the de ceased, there is no warrant for the assumption made by the High Court as regards the retention of "abilities in tact" or as regards the extent of "loss to the dependents". It appears to us that the High Court first considered what compensation ought to be awarded to the heirs of the deceased and then imposed by way of fine an amount which was higher than the compensation because the compensation has to come out of the amount of fine. Apart from the fact that even the compensation was not fixed on any reliable data, the High Court, with respect, put the cart before the horse in leaving the propriety of fine to depend upon the amount of compensation. The first concern of the Court, after recording an order of conviction, ought to be to determine the proper sentence to pass. The sentence must be propor tionate to the nature of the offence and the sentence, including the sentence of fine, must not be unduly exces sive. In fact, the primary object of imposing a fine is not to ensure that the offender will undergo the sentence in default of payment of fine but to see that the fine is realized, which can happen only when the fine is not unduly excessive having regard to all the circumstances of the case, including the means of the offender. Section 357(1) (c) of the new Code corresponds to s.545(1) (bb) of the Code of 1898 which was introduced by section 110 of Amending Act 26 of 1955. The statement of objects and reasons of that Act shows that the Joint Committee took the view that, in suitable cases, the person who causes death should compensate the heirs and dependents of the deceased for the loss resulting from the death. The Joint Committee was in full agreement with the view that in a case where death has resulted from homicide, the Court should award compensation to the heirs of the deceased because that would result "in settling the claim once for all by doing away with the need for a further claim in a civil Court, needless worry and expense to both sides of the party". The views of the Joint Committee incorporated in the State ment of Objects and Reasons to the Amending Act of 1955 arc undoubtedly entitled to consideration but those views only reflect that there should reside in the criminal Court the power in appropriate cases to pass an order of compensation in favour of the heirs of the 138 deceased. It cannot, however, be overlooked that since by section 35:7 (1) (c) of the new Code and its precursor, section 545(1)(bb) of the old Code, compensation can only come out of fine, it is always necessary to consider in the first instance whether the sentence of line is at all called for, particularly when the offender is sentenced to death or life imprisonment. If so, the fine must not be excessive, having regard to all the circumstances of the case like motivation of the offence, the pecuniary gain likely to have been made by the offender by committing the offence and his means to pay the fine. The High Court, instead of applying its mind to these factors, considered only what compensation the heirs of the deceased ought to receive. And that question it decided on inadequate data. in view Of the fact that the appellant was under the sentence of death since its imposition by the Sessions Court and its reduction to life imprisonment by the High Court and since a sentence of life imprisonment has been imposed on the appellant, that being the only other sentence permissible under the law, the fine of Rs. 20,000 imposed by the High Court seems to us unduly excessive. In the circumstances we reduce it to a sum of Rs. 3,000/ and direct that the fine or so much of it as is recovered shall be paid to the son and daughters of the deceased who had flied the petition in that behalf in the High Court. S.R. Appeal allowed in part.

The assessee. who was a manufacturer of iron shut ters, fabricates the different parts ,and components and fits them into shutters. The shutters are prepared ac cording to the specific requirements of the customer and fixed in the customer 's premises. Though the masonary work connected with the fitting of the shutters was done by the customer, it was done according to the contractor 's instruc tions. The contract was complete after the shutters were taken to the premises of the customer and affixed to the building; and when fitted into the walls the shutters become permanently embedded into the wall and are not detachable. The price charged by the contractor from the customer was a lumpsum and did not show a break up, of the materials used or fabricated or the cost of services or labour. The assessee claimed that the contract being a works con tract the proceeds from such contracts are not exigible to tax. But this plea was rejected by the Sales Tax Officer. The assessee 's appeal was rejected by the Assistant Commis sioner (judicial). The Judge (Revisions) Sales Tax upheld the assesee 's contention. On reference the High Court held that the contract was not a works contract but a contract for the supply of goods simpliciter. Allowing the assessee 's appeal, HELD . The contract in the present case was a works contract and the transaction was not exigible to tax. The High Court was in error in holding that the assessee was liable to pay tax on the sale proceeds of the contract [171E] (1) The question whether a contract can be said to be a works contract has to depend on the facts of each case. It is difficult to lay down any rule of universal application but some of the important tests evolved by this Court are: [168 H] (i) Where the contract was primarily a contract for the supply of materials at a price agreed to between the parties for the materials so supplied and the work or service ren dered is incidental to the execution of the contract. the contract is one for sale of materials and the sale proceeds would be exigible to sales tax. [169 A B] (ii) Where the contract is primarily for work and la bour, and materials are supplied in execution of such con tract, there is no contract for sale of materials but it is a works contract. The circumstance that the materials have no separate identity as a commercial article and it is only by bestowing work and labour upon them, that is, by affixing them to the building would be prima facie indicative of a works contract. Where certain materials are not merely supplied but fixed to an immovable property so as to become a permanent fixture and an accretion to the said property, the contract ' prima facie would be a works contract. [169 C] In the instant case the transaction was a composite, consolidated contract which was one and indivisible compris ing labour and services executed for a lumpsum. The con tract could be completed when materials with various compo nent parts had been taken to the site, fitted into one another and then finally fixed into a frame so that the fixture became permanent and a, part of 166 the premises. This operation could not be, said to be merely incidential to the contract, but was fundamental part of the contract itself. [168 F & 170 A] (2) It is not correct to say that the contract could not be a works contract because the price was paid in advance and the title passed to the customer as soon as the shutters were packed and despatched to the site. Advance payment of the price was a term meant for the convenience of the par ties as the contractor did not want to take any risk for delayed payment; the contract would be completed only after the shutters were finally assembled at the site and fixed according to specifications, which was essentially the responsibility of the contractor. [170 D] State of Rajasthan vs Man Industrial Corporation Ltd. 24 S.T C. 349, 355 and State of Rajasthan vs Nanu Ram 26 S.T.C. 268 followed. State of Madras vs Richardson and Cruddas Ltd. 21 S.T.C. 245 (S.C.) and Commissioner of Sales Tax. M.P. vs Purshottam Premji 25 S.T.C. 38 referred to. M/s T.V. Sundram lyengar & Sons vs The State of Madras 35 S.T.C. 24 [19751 2 S.C.R. 372 distinguished.

N: Criminal Appeal No. 558 and 559 of 1985. From the Judgment and order dated 14.2.85 of the Allahabad High Court in W.P. No. 5805 and 5806 of 1985. 775 Mohan Pandey for the Appellants. Yogeshwar Prasad and Dalveer Bhandari for the Respondents. The Judgment of the Court was delivered by B.C. RAY, J. These two appeals by special leave are against the order passed on February 14, 1985 by the High Court of Allahabad dismissing the writ petition No. 5806 of 1984 and writ petition No. 5805 of 1984 as well as writ petition No. 309 of 1985 whereby the order of detention passed against the appellants on October 1, and October 20, 1984 respectively under section 3(2) of the , was upheld as legal and valid. The copy of the order of detention as well as the grounds of detention and the first information report on the basis of which the detention order was made, were served on the appellants at the time of their detention. The grounds of detention are as follows: "On 25.9.1984, Shri Surya Kumar, son of Shri Vishwa Pal, resident of 33, Babuganj, P.S. Hasanganj, District Lucknow, lodged a report at P.S. Hazratganj, Lucknow that on 15.9.1984 there was a tender for the supply of ballast in P.W.D. in which tenders had been submitted by him in K.P. Singh 's name. You keep share with K.P. Singh. On account of your and K.P. Singh 's terror no other person submits any tender against you people for which reason you people obtain tenders at rates of your choice. If any other person submits his tender you and K.P. Singh terrorise him. On account of the rates of his tender being lower on 15.9.1984, the tender of the complainant was accepted in one group and in the remaining groups the tenders of K.P. Singh etc. were accepted. For this reason you and K.P. Singh bore a grudge against the complainant. On 25.9.1984 at about 3.45 P.M. when Surya Kumar was going, in connection with his tender, in his Ambassador Car No. USS 7418, accompanied by his brother in law, opposite to the National Highway Khand, he saw some contractors. On reaching near them the complainant had just started talking to them, when suddenly in two cars, you with a pistol, Phool Chand with a revolver, Jaleel with a revolver, Ashok with Desi katta, Ashok Sonkar and Sarrif 776 with hand grenade and Shankar Dey with a gun along with three other persons came and with intent to kill the complainant fired at the complainant, threw hand grenades which fell on the car of the complainant. Consequently, there was a commotion. Traffic was obstructed and public tranquility was disturbed. The complainant immediately saving his life took flight in his car. On the above information by the complainant a case FIR No. 1034 was registered at police station, Hazratganj against you and your other companions under Section 147, 148, 149, 307 I.P.C. and Section 6 of Explosives Act and after investigation a charge sheet No. 279 has been put up against you for the said offence. I have also been put up against you for the said offence. I have also come to know that on your behalf an application for grant of bail has been moved in a competent court, therefore, in case you come out on bail from the jail you will again start activities causing breach of public order on the abovesaid grounds, I have been satisfied that there is possibility of your acting in a manner prejudicial to the maintenance of public order and in order to prevent you from so acting, it is necessary to detain you. " The said order of detention was duly approved by the State Government under section 3(4) of the . The appellants made representation against the grounds of detention. The representations were rejected by the Government and the same were communicated to the appellants by the Joint Secretary, Vigilance & Home Department, Government of U.P. On November 26, 1984, the Secretary, Vigilance & Home Department, Government of U.P. informed the appellants that the Government after considering the report of the Advisory Board had confirmed the order of detention and directed that the appellants be detained for a period of 12 months with effect from October 1, 1984 and October 20, 1984 respectively. Aggrieved by this order of detention the appellants moved applications under Article 226 of the Constitution of India for quashing of the order of detention made by the respondent No. 1 and for setting 777 them free. These were registered as writ petition No. 5806 of 1984 and writ petition No. 5805 of 1984. Another detenu who was detained on identical grounds also filed writ petition No. 309 of 1985 before the High Court. The main contention advanced on behalf of the appellants before the High Court was that on the basis of facts alleged, at the most it could be said that the matter related to the maintenance of law and order. It was not a matter relating to the disturbance of public order. The assault on Surya Kumar can only be on account of an ill will arising out of business rivalry. It had been submitted that it affects only an individual and the society or community were not affected by the alleged act of omission on the part of the appellants. It therefore raised no problem of public order. It had been further contended that a solitary act can not be considered to be an act prejudiced to the maintenance of public order. The High Court of Allahabad after hearing the parties and on a consideration of the decisions cited before it found that whether an act creates a mere law and order problem or affects the even tempo of the life of the community, it is to be seen what is the extent of the impact of the act in question upon the society as a whole; whether the effect is restricted to an individual or a few individuals alone or it creates a sense of insecurity, danger and apprehension in the minds of the people in general apart from those who are the victims of the incident; whether the act or acts disturb the even tempo of life of the society or a section of society; whether the act leads to disturbance of public order or only law and order. The High Court further found that in the context the act committed tends to teach a lesson to the complainant and to act as a warning to prospective tenderers in future who may not dare to avail of the opportunity to submit their tenders against that of the appellants. It was also found that the impact and reach of the act in question goes beyond the individual and affects the community of contractors who take contracts for executing the public works. The Court further held that the order of detention made by the detaining authority is legal and valid and the writ petitions were dismissed. Undoubtedly, on the basis of the FIR lodged by Surya Kumar a case under Section 147/148/149/307 I.P.C. and under Section 5 of the Explosives Act has been registered as crime No. 1034 and the said case is pending for decision before the criminal court. The main question which falls for decision is whether the act 778 referred to in the grounds of detention is directed against certain individuals creating a law and order problem or the reach and potentiality of the act is so deep as to disturb the society to the extent of causing a general disturbance of public tranquility. It has now been well settled by several decisions of this Court (the latest one being Gulab Mehra vs State of U.P. & Ors., SC 559 judgment in which case was pronounced by us on September 15, 1987) that public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order or it affects public order. It has also been observed by this court that an act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Therefore it is the impact, reach and potentiality of the act which in certain circumstances affect the even tempo of life of the community and thereby public order is jeopardized. Such an individual act can be taken into consideration by the detaining authority while passing an order of detention against the person alleged to have committed the act. In the instant case the alleged act of assault by fire arms is confined to the complainant Surya Kumar and not to others. It is an act infringing law and order and the reach and effect of the act is not so extensive as to affect a considerable members of the society. In other words, this act does not disturb public tranquility nor does it create any terror or panic in the minds of the people of the locality nor does it affect in any manner the even tempo of the life of the community. This criminal act emanates from business rivalry between the detenus and the complainant. Therefore such an act can not be the basis for subjective satisfaction of the detaining authority to pass an order of detention on the ground that the impugned act purports to affect public order i.e. the even tempo of the life of the community which is the sole basis for clamping the order of detention. Moreover, no injury was caused to the person of the complainant, Surya Kumar by the appellants nor any damage was caused to the car though hand grenade was alleged to have been thrown on the car. No mark has been caused to the car also. It is relevant to mention in this connection that the appellants were released on bail by this Court after duly considering the facts and 779 circumstances of the case in July, 1985. The period of one year has also expired. We have already held hereinbefore that 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. It is pertinent to note in this connection that the Criminal Appeal Nos. 826 and 827 of 1985 arising out of the same incident and identical grounds of detention, filed by Ashok Arora and Ashok Kumar Sonkar have been allowed by this Hon 'ble Court by its order dated November 29, 1985 and the appellants were directed to be set at liberty forthwith. For the reasons aforesaid, we allow the appeals without any order as to costs. N.P.V. Appeals allowed.

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.

Appeal No. 808 of 1966. Appeal by special leave from the judgment and order dated September 3, 1965 of the Gujarat High Court in Civil Revision Application No. 244 of 1965. 82 Arun H. Mehta and I. N. Shroff, for the appellant. S.T. Desai, P. C. Bhartari, J. B. Dadachanji and O. C. Mathur, for the respondent. The Judgment of the Court was delivered by Shah, J. The respondent is the owner of a house in the town of Ahmedabad. The appellants are the tenants of that house at a monthly rental of Rs. 2,171/ . Under the agreement of lease the appellants were to pay out of the agreed rent Rs. 810/ per month, and the balance was to be appropriated towards a loan advanced by them to the respondent for constructing the house. The appellants had also agreed to pay municipal taxes and electricity charges. The appellants filed suit No. 1308 of 1963 in the Court of the Small Causes, Ahammadabad, for an order, inter alia, determining the standard rent of the premises in exercise of the power under section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947. The Court of Small Causes, Ahamadabad, on an application filed by the appellants fixed the contractual rent as "interim standard rent" and directed the appellants to pay the rent and municipal taxes. Pursuant to this order, the appellants deposited Rs. 2,403/ as rent and Rs. 8,921.25 due as municipal taxes for the year 1964 65. An application by the respondent to withdraw the amount deposited in Court was resisted by the appellants. The Court permitted the respondent to withdraw Rs. 2,403/ but not the municipal taxes. The respondent then obtained an order for the issue of a distress warrant under section 53 of the 15 of 1882 read with r. 5 of the Rules framed under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for recovery of the amount due as municipal taxes. Distress was levied, and the order was confirmed. A revision application moved in the High Court of Gujarat against that order was rejected. In support of this appeal counsel for the appellants urges that r. 5 of the Rules framed under section 49 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947, is ultra vires the State Government; that the Court of Small Causes Ahmedabad has in any event no jurisdiction to pass an order issuing a distress warrant when trying a suit or proceeding under Bombay Act 57 of 1947 especially when an application for determination of standard rent under section 1 1 of the Act is pending; and that the municipal taxes and electricity charges do not constitute rent which may be recovered by the issue of a distress warrant. By the express terms of the tenancy the appellants had undertaken to pay the municipal taxes and electricity charges as part of 83 the rent it is not open to them to contend that they are not rent recoverable by the issue of a distress warrant. The last branch of the argument has, therefore, no force. The relevant provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 and other statutes which have a bearing may first be noticed. Bombay Act 57 of 1947 was intended to control rents and to confer protection against eviction upon tenants of premises in certain urban areas in the Province of Bombay. By section 28 of the Act certain courts were designated as courts of exclusive jurisdiction to entertain and try suits and proceedings between a landlord and tenant, relating to recovery of rent or possession to which the provisions of the Act applied, and also to decide claims or questions arising under the Act. Section 28 as originally enacted and later amended by Bombay Acts 58 of 1949 and 15 of 1952, insofar as it is material reads : "(1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or "proceeding would not, but for this provision, be within its jurisdiction, (a) in Greater Bombay, the Court of Small Causes, Bombay; (aa) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts, Act, 1887, such Court and (b). shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of subsection (2), no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. Section 28 did not set up new Courts to try suits or proceedings between landlords and tenants : it invested existing courts with exclusive jurisdiction to try suits and proceedings of the nature set out and claims or questions arising under the Act. Section 31 of the Act provides, inter alia, that the courts specified in section 28 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders 84 made by them. Section 49 authorises the State Government to make rules for the purpose of giving effect to the provisions of the Act and in particular to make rules, among other subjects, for the procedure to be followed in trying or hearing suits, proceedings (including proceedings for execution of decrees and distress warrants), applications, appeals and execution of orders. Pursuant to the authority conferred, rules were framed by the Government of Bombay and r. 5 which deal with the procedure to be followed by the Court of Small Causes, Bombay, for suits, proceedings, appeals, etc. provided insofar as it is material : "In such of the following suits and proceedings as are cognizable by the Court of Small Causes, Bombay, on the date of the coming into force of these Rules, namely (2) proceedings under Chapter VII and VIII of the , and (3) proceedings for execution of any decree or order passed in any such suit or proceedings, the Court of Small Causes, Bombay, shall follow the practice and procedure provided for the time being (a) in the said Act, except Chapter VI thereof, and (b) in the rules made under section 9 of the said Act. " By the enactment of the Bombay Reorganization Act 11 of 1960 a separate State of Gujarat was constituted out of the territory which formed the State of Bombay, and the area within the city limits of Ahmedabad formed part of the State of Gujarat. By the Gujarat Adaptation of Laws (State and Concurrent Subjects) Order, 1960, cl. (a) of sub section (1) of section 28 of Bombay Act 57 of 1947 as it was originally enacted was deleted. The Legislature of the State of Gujarat enacted the Ahmedabad City Courts Act 19 of 1961 which by section 17 provided that the (XV of 1882), shall extend to and come into force in the City of Ahmedabad on and from the appointed day. By section 18 it was provided : "The (XV) of 1882), and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVII of 1947), shall in their application to the City of Ahmedabad stand amended in the manner and to the extent specified in the Schedule. " By section 19 it was provided : "With effect on and from the appointed day. the Provincial Small Cause Courts Act, 1887 (IX of 85 1887), and all rules, notifications and orders made thereunder shall cease to apply to, or be in force, in the City of Ahmedabad, By the Schedule certain amendments were made in the , in its application to the City of Ahmedabad By cl. 13 of the Schedule, section 50 of the was to apply to every place within the City of Ahmedabad. Certain amendments were also made in section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and in sub section (1) of section 28, before cl. (aa) the following clause was inserted : "(a) in the City of Ahmedabad, the Court of Small Causes of Ahmedabad," By the enactment of the Ahmedabad City Courts Act, 1961, the proceedings before the Court of Small Causes at Ahmedabad were governed by that Act and by virtue of the amendment made in section 28 of Bombay Act 57 of 1947 it became a Court of exclusive jurisdiction to try suits, proceedings, claims and questions arising under that Act. Being a Court governed by the , the Ahmedabad Court of Small Causes was competent to exercise, subject to the Ahmedabad City Courts Act, all the powers which a Presidency Small Causes Court may exercise. Power to issue a distress warrant being expressly conferred by section 53 of the upon the Courts governed by it, the Court of Small Causes, Ahmedabad, was competent to exercise that power. Rule 5 was framed under the Bombay Act 57 of 1947 in exercise of the authority conferred by section 49 (2) (iii). After the enactment of the Ahmedabad City Courts Act, 1961, r. 5 as originally framed by the Government of Bombay continued in force by virtue of section 87 of the Bombay Reorganization Act 11 of 1960, and applied to the Ahmedabad Small Causes Court. When r. 5 was framed under Bombay Act 57 of 1947 it was not ultra vires, and it is not shown to have become ultra vires after the enactment of the Ahmedabad City Courts Act in its application to the City of Ahmedabad. The argument that section 28 sets up a new set of Courts, with special powers and jurisdiction is without substance. Section 28 merely confers upon the existing Courts exclusive jurisdiction in respect of matters relating to possession of premises and recovery of rent and to determine claims and questions arising under that Act. On that account it does not become a Special Court : it is a court which is competent to exercise all the powers which are conferred upon it by virtue of its constitution under the statute which governs it. The Court of Small Causes at Ahmedabad had, 86 therefore, power to issue distress warrant and that power could be exercised even in respect of suits and proceedings which were exclusively triable by it by virtue of the Bombay Act 57 of 1947. We are also unable to hold that so long as an application for fixation of standard rent is pending, the Court 's jurisdiction to issue a distress warrant remains suspended. Until standard rent is determined, or an interim order is made, rent at the contractual rate is payable and process for recovery by distress warrant may always be adopted. Section II of Bombay Act 57 of 1947 confers upon the Court power to fix standard rent and permitted increases in certain cases. The Court is also competent to determine interim standard rent, and direct payment pending final determination of standard rent. The appellants applied for fixation of standard rent and invited the Court to pass an order fixing interim standard rent and the Court of Small Causes proceeded to pass the order for payment of rent and municipal taxes. In the present case there was an express order of the Court requiring the appellants to deposit in Court Rs. 810/ per month and also to deposit municipal taxes. The Court of Small Causes ordered that the amount deposited by the appellants towards municipal taxes shall not be paid over to the landlord. The amount was on that account not available to the respondent. The respondent was unable to pay the taxes and the Municipality threatened to attach the property. The amount of municipal taxes was due and it was payable by the appellants. Though deposited in Court, it could not be withdrawn by the respondent. The municipal taxes were, therefore, in arrears and a distress warrant could be applied for under section 53 of the by the respondent. It was urged that the appellants had to pay the amount of interim standard rent twice over : once when they deposited it in the Court and again when they satisfied the demand to avoid execution of the distress warrant. The landlord undoubtedly cannot obtain the amount twice over. But that does not mean that when the tenant has not made the amount available to the landlord the application for distress was not maintainable. The argument that the erroneous order passed by the Court of Small Causes preventing the landlord from recovering the amount of municipal taxes could have been got corrected by approaching the superior courts and so long as that order stood, no distress could be levied, ignores the fact that the appellants had persuaded the Court of Small Causes to pass that order. In our judgment, there was no bar to the respondent maintaining the application for distress. The appeal fails and is dismissed with costs. G.C. Appeal dismissed.

As there was omission to supply to the first respondent a copy of the recommendations of the Enquiry officer in the matter of punishment (although a copy of his report containing his findings on various charges was supplied) the first respondent filed a writ petition in the High Court challenging the order of the State Government removing him from its service. The first respondent contended that the omission amounted to failure to provide reasonable opportunity of making representation against the penalty proposed within the meaning of article 311(2) of the Constitu tion. The High Court held that proceedings were vitiated from the stage of the show cause notice relating to punishment, and set aside the order of removal, but liberty was given to the State Government to issue fresh show cause notice regarding the proposed punishment. Dismissing the State 's appeal, this Court; HELD : The requirement of a reasonable opportunity could not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment were disclosed to the delinquent servant. [254 E] The Enquiry Officer is under no obligation or duly to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry is held, and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the delinquent servant. But if the Enquiry Officer has,, also made recommendations in the matter of punishment that is likely to, affect the mind of the punishing authority with regard to penalty or punishment to be imposed on such officer, it must be disclosed to the delinquent officer. Since such recommendations form part of the record and constitute appropriate material for consideration of the Government it would be essential that that material should not be withheld from him so that he could, while showing cause against the proposed punishment, make, a proper representation. The entire object of supplying a copy of the report of the Enquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges 'are held to have been proved the punishment proposed to be inflicted is unduly severe. [253 H 254 D] Union of India vs H.C. Goel, ; , referred to.

No. 328 of 1968. Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus. R. K. Garg, for the petitioners. Debabrata Mukherjee, P. K. Chakravarti and G. section Chatterjee, for the respondents. The Judgment of the Court was delivered by Grover, J. This is a petition under article 32 of the Constitu tion by Sushanta Goswami and 46 others for a writ in the nature of Habeas Corpus challenging the detention of the petitioners under the provisions of the , hereinafter called the "Act". Petitioner No. 4 Krishna Mondal and Petitioner No. 21 Madhu Kanjilal are stated to have been released. No orders need he 139 made with regard to them. As regards petitioners Nos. 2, 8, 9, 15, 22, 24, 32, 41 and 47 their matters will be taken up for consideration later as the State has been directed to file further affidavits. We now proceed to dispose of the cases of the other petitioners. Petitioner No. 1 (Sushanta Goswami) This petitioner was detained by an order of the District Magistrate 24 Parganas dated July 30, 1968. His detention was directed under section 3(2) of the Act on the ground that it was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The grounds were supplied to him and he made a representation to the Advisory Board which, after hearing the petitioner and considering his representation, expressed its opinion that there was sufficient cause for his detention. Consequently the detention order dated July 30, 1968 was confirmed on September 20, 1968 by the Government of West Bengal. The grounds for detention have been perused by us. According to the first ground the petitioner had been committing offences of forming unlawful assembly, assaulting the police and peaceful inhabitants, snatching away cash and valuables, teasing school girls and criminal intimidation. The instances which were given are seven out of which it is necessary to mention only the following which are typical " (ii) That on 14 11 66 at 21.15 hrs. , you with your associates formed an unlawful assembly on Dum Dum Road in front of the Fire Brigade Office and assaulted Shri Pranab Bose of P 18 Matijheel Avenue and you snatched away a fountain pen worth Rs. 10 from his pocket. (vi) That on 18 3 68 at 19.30 hrs. , you with your associates closely followed Sm. Sipra Kundu (18) from Satgachi crossing on Jessore Road and uttered indecent language towards her, as a result of which she got terrified and ran away to save her modesty. " Ground No. 11 is to the effect that as a result of the petitioner 's nefarious activities prejudicial to the maintenance of public order he has become a nuisance to the society and there have been disturbances and confusion in the lives of peaceful citizens of Dum Dum police station and the inhabitants thereof are in constant dread of disturbance of public order. We do not consider that the above grounds are relevant to public order and if some of the grounds which are given are irrelevant the order of detention cannot be upheld because the court cannot predicate what the subjective satisfaction of the authority would have been on the exclusion of those reasons; vide Dwarka 140 Das Bhatia vs The State of Jammu & Kashmir(1), and the recent decision of this Court in Pushkar Mukherjee vs State of West Bengal (2) . There the order of detention is hereby set aside. Petitioner No. 3 Panchu (Gopal Mondal). This petitioner was detained by an order of the District Magistrate 24 Parganas dated March 23, 1968 made in exercise of the power conferred by section 3 (2) of the Act on the ground that the detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies essential to the community. He was supplied with the grounds and he made a representation. It was sent to the Advisory Board which,, after hearing him and considering all the material placed before it, expressed, ' its opinion that there was sufficient cause for his detention. The Government of West Bengal confirmed the detention order on July 17, 1968. We have perused the grounds of detention and we find that most of them relate to matters for which penal or other action could be taken under the relevant statutes. For instance ground No. 1(ii) is as follows : "That on 12 1 68 at 11.30 hrs. you were found operating your husking machine at puraton Bongaon and on demand by S.I.S. Chatterjee of S.E.B. (7) you could not produce the requisite license or permit. That though you were prosecuted for operating your husking machine on 12 1 68, you carried on further operation with it as it was left on your bond of production, violating again the provisions of West Bengal Husking Machine (Control of Operation) Amendment Order 1967. " The fact that the petitioner could not produce the requisite licence or permit can hardly be regarded as relevant for detention on the ground of activities prejudicial to the maintenance of supplies essential to the community. For the aforesaid reasons this petitioner is also entitled to be released. Petitioner No. 5 (Debendra Nath Das) This petitioner was detained by an order dated May 9, 1968 made by the District Magistrate 24 Parganas under section 3(2) of the Act. His detention was considered necessary for preventing him from acting in any manner prejudicial to the maintenance of public order His representation was sent to the Advisory Board which, after hearing him personally and, considering all the materials, expressed an opinion that there was sufficient cause for the petitioner 's detention. His detention was confirmed by the Government of West (1) [1956] S.C.R.945. (2) ; 141 Bengal by an order dated July 17, 1968. The grounds of detention have been considered by us and we are of the opinion that they relate mainly to the question of law and order and are not relevant to public order. Moreover there are allegations of offences under the Indian Penal Code for which prosecution could be launched. As has been observed in Pushkar Mukherjee & I Ors. vs State of West Bengal(1) the contravention of any law always affects order but before it can be said to affect public order it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is not necessarily sufficient for action under the Act but a disturbance which will affect public order can alone justify detention under that head. Ground No. 1 (viii) which is typical may be specifically mentioned: "That on 26 2 68 at about 09.00 hrs. you and your associates stabbed Constable Bhupendra Nath Chakraborty of Gouripur T.O.P. under Dum Dum P.S. near Birati Railway Level Crossing gate and stole away his wrist watch. " We are satisfied that the petitioner could not have been detained on the grounds which are before us. He is, therefore, entitled to be released. Petitioner No. 7 (Abdul Waheb). He was detained by an order dated May 27, 1968 of the District Magistrate 24 Parganas under section 3(2) on the ground that his detention was necessary for preventing him from acting in a manner prejudicial to the maintenance of public order. He was supplied the grounds on which he made a representation to the Advisory Board which heard him personally and after considering all the material an opinion was expressed that there was sufficient cause for his detention. The Government of West Bengal confirmed the detention order on August 21, 1968. We have perused the grounds for the petitioners ' detention. They relate mostly to the question of law and order and are not relevant to public order. Consequently the petitioner is entitled to be released. Petitioner No. 6 (Anil Das). This petitioner was detained by an order of the District Magistrate, Howrah dated May 18, 1968 made under section 3(2) of the Act, the detention being considered necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order. The representation made by the petitioner was forwarded to the Advisory Board which considered all the material before it and was of the opinion (1) [1969]2 S.C.R. 635. 142 that sufficient cause for his detention existed. On July 29, 1968 the Government confirmed the order of detention. Most of the grounds are not at all relevant to maintenance of public order. Ground No. 1 (a) is that on August 12, 1966 at about 10.00 hrs. "you being drunk demanded Rs. 2 from Shri Santi Das. . near the betel shop of Shalta Lal. and threatened him with murder when he refused to pay you the said money" We are satisfied that the petitioner 's detention cannot be upheld and it is hereby set aside. Petitioner No. 10 (Dilip Kr. Chakraborty @ Konkan) This petitioner was detained by an order dated June 13, 1968 made by the District Magistrate 24 Parganas under section 3(2) of the Act on the ground that his detention was necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order. One of the grounds, namely, 1 (ii) is . "That on 13 3 67 you with your associate Debu Biswas assaulted one Paresh Nath Koley of Ghosepara with fists and blows". Such a ground cannot possibly relate or be relevant to public order. In view of our previous decisions mentioned before we are of the opinion that the petitioner is entitled to be released. It may be mentioned that this petitioner had also filed a petition under article 226 in the Calcutta High Court but his counsel has undertaken to withdraw that petition. Petitioner No. 12 (Ashoka Kumar Mukherjee). This petitioner was detained by the order of the District Magistrate, 24 Parganas, dated May 25, 1968 made under section 3(2) of the Act; the reason for his detention being the prevention of activities prejudicial to the maintenance of public order. The grounds were supplied to him and he made a representation which was considered by the Advisory Board which, after giving a personal hearing, expressed an opinion that his detention was justified. The Government confirmed the 'original order of detention on August 8, 1968. We have examined the grounds and they suffer from the same infirmity as in the case of petitioner No. 7 (Abdul Waheb). Ground No. 1 (i) may be reproduced : "That on 3 6 67, you assaulted one Nabalchandra Saha a hawker, with knife." This petitioner is also entitled to be released. Petitioner No. 13 (Ram Kamal Dhar @ Leda) This petitioner was detained by an order dated July 30, 1968 passed by the District Magistrate, 24 Parganas, under section 3 (2) of the Act on the ground that his detention was necessary with a view 143 to preventing him from acting. in any manner prejudicial to the maintenance of public order. The grounds of detention. disclose the same infirmities which are to be found in the case of petitioner No. 7 (Abdul Waheb) and Petitioner No. 10 (Dilip Chakraborty @ (Konkan). For instance one of the grounds, No. 3 is in these terms : "On 1 5 68 at about 12.35 hrs. you along with your two associates being armed with daggers, snatched away a wrist watch worth Rs. 130 from the person of the Kulak Chandra Sarkar S/o Late Sahadeb Sarkar of Madhab Nibas Colony, P. section Titagarh, Dist. 24 Parganas near Dum Dum South home signal at the point of dagger causing bleeding injury. You were arrested with property red handed. " Therefore the petitioner is entitled to be released. Petitioner No. 14 (Gopal Show). This petitioner was detained by an order dated July 11; 1968 made by the District Magistrate Howrah on the ground that his detention was necessary with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The grounds were supplied to him, on which he made a representation which was considered by the Advisory Board by which he was also personally heard. On the report of the Advisory Board that there was sufficient cause for his detention the original order was confirmed by the Government of West Bengal on October 7, 1968. This case falls very much in the same group as that of the petitioners Nos. 7, 10 and 12 above mentioned. According to one of the grounds the petitioner had, on Octo ber 12, 1967 along with his associates committed a daring burglary in Howrah Tobacco Store by breaking open 6/7 padlocks and removed Cigarette cases worth Rs. 10,000. He is thus entitled to be released. Petitioner No. 16 (Makhan Lal Saha). This petitioner was., detained by an order dated March 23, 1968 made by the District Magistrate 24, Parganas, under section 3 (2) of the Act on the ground that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The grounds were supplied to him on which he made a representation which was sent to the Advisory Board. After hearing him personally and considering all the materials, the Advisory Board reported that there was sufficient cause for his detention. Thereupon the Government confirmed the original order of detention on July 29, 1968. An examination of the " grounds shows that they relate mostly and are relevant to the head " maintenance of supplies and services essential to the community". 144 For instance ground No. 1 (i) is that on March 28, 1968 the petitioner together with his associate committed theft of over head traction wires including contact wire disrupting the train services in Bongaon Section for more than 7 hours. The grounds may have been relevant to the other head but none of them appears to be relevant to "maintenance of public order". It is somewhat surprising and altogether incomprehensible how any District Magistrate or even the Government could have missed seeing that the ,detention of this petitioner might have been justified under the head "maintenance of supplies and services essential to the com munity" but not the "maintenance of public order". Therefore the detention order cannot be sustained and must be set aside. Petitioner No. 17 (Sk. Yunus Ali). This petitioner was detained by an order made by the District Magistrate, Howrah, on March 7, 1968 under section 3(2) of the Act on the ground that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. He was supplied the grounds and he made a representation which was considered by the Advisory Board. The Board heard him personally and made a report that there was sufficient cause for his detention. Thereupon the Government confirmed the order of detention on July 3, 1968. The grounds suffer from the same infirmity as in the cases of petitioners Nos. 7 and 10. For instance ground No. 1 (b) is : "That on 12 3 67 at about 06 00 hrs. , you and your associates showed ugly gesture and posture to some women vendors of vegetables in platform No. 6 of Uluberia Rly. Station and started whistling in mouth on seeing those women. RPF head Rakshak K. C. Chandra of Santragachi Crime Branch objected to such indecent behaviour towards women by you all when Shri Chandra was physically assaulted with slaps by you and was threatened with dire consequences by you and your associates. " The detention of this petitioner cannot be upheld and is hereby set aside. Petitioner No. 18 (Gaddu Ghosh). This petitioner was detained by an order of the District Magistrate, Malda, dated June 3, 1968 made under section 3 (2) of the Act with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The grounds were supplied to him and he made a representation which was considered by the Advisory Board. The Board after hearing him personally and considering all the materials before it, expressed an opinion that there was sufficient cause for his detention. Thereupon the Government of West Bengal ,confirmed the order of his detention. Practically all the grounds 145 do not appear to be relevant to public order. Ground No. 2 (a) is typical and may be reproduced : "That on the midnight of 21 7 67 you grazed your 17 heads of cattle on maize plants in the land of Amal Roy of Kbasbari P. section English Bazar. You threatened Amal Roy with further mischief for impounding your cattle." His detention cannot be upheld and is hereby set aside. Petitioner No. 19 (Ratanlal Kairi). This petitioner was de tained by an order of the District Magistrate, 24 Parganas, dated April 19, 1968; his detention being considered necessary in order to preventing him from acting in any manner prejudicial to the maintenance of public order. His representation was referred to the Advisory Board which considered it along with the other material and expressed an opinion that there was sufficient cause for his detention. The Government made an order on July 10, 1968 confirming the order of detention. The grounds have been perused by us and they appear to be relevant. The activities which are mentioned therein show that they are of such a nature that they relate to public order. We would therefore decline the prayer for setting aside the order of detention. Petitioner No. 20 (Farid Ali Naskar). This petitioner was detained by the order of the District Magistrate, 24, Parganas, dated July 30, 1968 Made under section 3 (2) of the Act on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order. His representation was sent to the Advisory Board which considered it along with the other materials but made a report against him. The Government thereupon confirmed the order of detention on September 19, 1968. We have seen the grounds of detention and they appear to relate mostly to removal of rice bags in a clandestine manner. These activities might have some relevance to the head "maintenance of supplies and services essential to the community but by no stretch of reasoning can they be regarded as relevant to public order. The detention of the petitioner therefore is set aside. Petitioner No. 23 (Sk. Makbul). The petitioner was detained by the order dated March 8, 1968 made by the District Magistrate, Howrah, under section 3 (2) of the Act on the ground that his detention was necessary with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. On receiving the grounds of his detention, he made a representation to the Advisory Board which, after considering the same and giving 146 him a personal hearing, reported that there was sufficient cause for his detention. Thereupon the Government of West Bengal confirmed the detention order. The grounds disclose the same infirmity as in other cases e.g. Petitioner Nos. 7 and 10. Ground No. 1 (a) is typical and may be reproduced : "That on 10 2 67 at about 21.50 hrs. you and your associates threatened R.P.F. Head Rakshak Prakash Chandra Mitra of CID Kharagpur at Andul Railway Station with stabbing when Shri Mitra objected to your passing of indecent remarks at a lady passenger." Consequently the detention order is set aside. Petitioner No. 25 (Uday Chand Namadas). This petitioner was detained by an order of the District Magistrate Jalpaiguri, dated the 11 th July 1968 made under section 3 (2) of the Act on the ground that his detention was necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order. On receiving the grounds he made a representation which was considered by the Advisory Board. The Board gave a personal hearing and after considering all the materials reported that there was sufficient cause for his detention. Thereupon the Government of West Bengal confirmed the detention order. Ground No. 1 is altogether vague and may be reproduced : "That you have been for a long time engaged in anti social, illegal and high handed criminal activities and in the course of such activities you have on different occasions held out threats to different persons and that you have associated yourself with anti social elements. Whenever the peace loving citizens questioned your bona fide and protested against your activities and whenever they offered themselves as witnesses to your activities you threatened to burn down their houses. " The detention of this petitioner cannot be sustained because of the existence, of the above ground which is so vague that the petitioner could not possibly have made any representation with regard to it. In view of our previous decisions referred to his detention is set aside. Petitioner No. 26. (Abdul Bari Karikar). This petitioner was detained by the order made by the District Magistrate, Murshidabad, on July 6, 1968 under section 3 (2) of the Act on the ground that the detention was necessary in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order. On receiving the grounds he made a representation to the Advisory Board which was considered by it. The Board, after giving a personal hearing and considering all the materials expressed an opinion that there was sufficient cause for detention. 147 The Government of West Bengal confirmed the order of detention on September 12, 1968. We have read the grounds and we consider that some of them are so irrelevant that it is incomprehensible how any order of detention could have been made on those grounds. For instance ground No. 1 is "On 26 8 65 you were committed to trial before the court under section 406 of the Indian Penal Code on a charge of deceitfully misappropriating the cycle belonging to Bishu Khan of village Chonya Pathan Para." Ground No. 4 is equally irrelevant. It has been stated that "On 19 5 67 at about 7.30 a.m. you threatened Karim Sheikh of village Chonya Pathan Para with assault as he had instituted a case against you. " If such grounds can be considered to be relevant to public order it would be open to the authorities to detain citizens without a trial for such petty matters as have been mentioned in these grounds. Moreover the first ground is also not reasonably proximate in time. It relates to some incident which happened in the year 1965 whereas the detention order was made on July 6, 1968. The detention of the petitioner cannot possibly be upheld and is hereby set aside. Petitioner No. 27 (Nagendra Nath Saha). This petitioner was detained by an order dated April 19, 1968 made by the District Magistrate, 24 Parganas, under section 3 (2) of the Act; the grounds of detention being the prevention of activities prejudicial to the maintenance of public order. On receiving the grounds he made a representation to the Advisory Board which reported that there was sufficient cause for his detention. On July 10, 1968 the Government of West Bengal confirmed the detention order. Two of the grounds may be reproduced : "2 (c) That your complicity transpired during investigation of Sealdah GRPS Case No. 181 dt. 26 3 65 u/s 379 I.P.C. and you were reasonably suspended in the case. (d) That your complicity transpired during investigation of Sealdah GRPS Case No. 180 dt. 26 3 65 u/s 379 I.P.C. and you were reasonably suspected in the case. " These cannot possibly have any relevance to "maintenance of public order", the proper implications of which expression have been fully discussed in the decisions of this Court including the recent decision in Pushkar Mookherjee & Ors. vs The State of 148 West Bengal(1). The petitioner 's detention cannot therefore be upheld and it is hereby set aside : Petitioner No. 28 (Habibullah Khan). This petitioner was :detained by an order dated February 17, 1968 made by the District Magistrate, 24 Parganas, under section 3(2) of the Act in order to prevent him from acting in any manner prejudicial to the maintenance of public order. On receiving the grounds he made a representation to the Advisory Board which expressed an opinion in favour of his detention. The Government of West Bengal confirmed the detention on April 17, 1968. We have perused the grounds of detention which do not relate to public order; for instance one of the grounds If iv) is to the following effect : "that on 27 12 67 at about 03.30 hrs ' you and your associates committed theft of signalling and telecommunication materials from location box No. L 60 worth about Rs. 3,000." His detention is consequently set aside. Petitioner No. 29. (Naba Kumar Ghosh). This petitioner was detained by an order of the District Magistrate, 24 Parganas, dated July 13, 1968 made under section 3(2) of the Act on the ground that it was necessary to detain the petitioner in order to prevent him from acting in any manner prejudicial to the maintenance of public order. Ms representation was considered by the Advisory Board which made a representation that there was sufficient cause for his detention. On September 19, 1968 the detention order ,was confirmed by the Government. Some of the grounds are not at all relevant to maintenance of public order; for instance ground No. 1 (ii) is "That on 1 3 68 at about 02.00 hrs. , you and your associate Ram Nehore Kouri were seen to conceal your presence by the side of a wagon standing at Chitpur yard with a view to commit theft from standing wagons. Being chased, you and your associate,,,, were arrested by the (1) on duty RPF staff and prosecuted. " The detention of the petitioner cannot be upheld and is set aside. Petitioner No. 30 (Abdul Main Mirza). This petitioner was detained by the order of the District Magistrate, Howrah, dated March 7, 1968 on the ground that his detention was necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order. His representation was considered by the Advisory Board which reported that there was sufficient ,cause for his detention. On June 12, 1968 the Government confirmed the detention order. Most of the grounds are not relevant (1) ; 149 to the maintenance of public order. For instance ground No. 1 (a), is : "That on 24 2 67 at about 21.26 hrs. you and your associates abused C.I.B. Head Rakshak 3646 Hara Kumar Mukherjee of Shalimar and also threatened him with dire consequences at Andul Rly. Station when Shri Mukherjee objected to the passing of indecent remarks at a lady passenger of 358 Dn. (Midnapur Howrah Passenger) train. " The detention of this petitioner cannot be upheld and is hereby set aside. Petitioner No. 31 (Nripen Chakraborty). This petitioner was detained by an order made by the District Magistrate, 24 Parganas on April 4, 1968 on the ground that his detention was necessary in order to prevent him from acting in a manner prejudicial to public order. His representation was sent to the Advisory Board which on considering the same with other material reported that there was sufficient cause for the detention. The detention order was consequently confirmed by the Government on June 12, 1968. Most of the grounds do not appear to be relevant to maintenance, of public, order. Ground No. (ii) may be reproduced : "That on 7 10 66 you pulled the alarm chain of the train at Bongaon Ranaghat Section while you were bringing rice for sale from Ranaghat to Bongaon, without having booked them and without having any ticket." His detention cannot therefore be upheld and it is hereby set aside. Petitioner No. 33 (Nanda Kishore Rabi Das). This petitioner was detained by an order dated April 25, 1968 made by the District Magistrate 24, Parganas under section 3(2) of the Act on the ground that his detention was necessary for preventing him from acting in any manner prejudicial to the maintenance of public order. He made a representation to the Advisory Board which after considering all the materials reported that there was sufficient cause for his detention. The detention order was consequently confirmed by the Government of West Bengal on July 2, 1968. The grounds for detention in the case of this petitioner appear to be relevant to maintenance of public order. He has apparently been acting with a large number of associates and committing acts which could have led to disturbance of public order. His detention is therefore upheld. Petitioner No. 34 (Samiron Sarkar). This petitioner was de tained by an order dated August 2, 1968 made by the District Magistrate 24, Parganas under section 3(2) of the Act on the ground that his detention was necessary to prevent him from acting in any 150 manner prejudicial to the maintenance of public order. His representation was forwarded to the Advisory Board which reported that there was sufficient cause for his detention. Thereupon the Government confirmed the order of detention on October 9, 1968. His case is similar to that of many others inasmuch as most of the grounds are not relevant to the maintenance of public order. By way of example ground No. 1 (ii) is reproduced "That on 30 9 67 at about 21.00 hrs. you with your associates Amal Karali, Bapu, Tripti and others forced Shri Dulal Chandra Kundu, Abdul Jabbar and Gobinda Das Roy Choudhury of Barisha to go to the shop of Nilan Maity inside Sakher Bazar and you forcibly took away Rs. 65 from the pocket of Gobinda Das Roy Choudhury, one wrist watch, a gold ring and cash Rs. 18 from Abdul Jabbar and Rs. 70 and 20 packets of cigarettes from Dulal Chandra Kundu. " His detention cannot be upheld and is set aside. Petitioner No. 35 (Ashwini Kumar Karmakar). This petitioner was detained by an order dated July 30, 1968 of the District Magistrate 24 Parganas made under section 3(2) of the Act, the detention being considered necessary with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order. His representation was sent to the Advisory Board which, after considering all the materials, reported that there was sufficient cause for his detention. Thereupon the Government confirmed the order of detention on September 19, 1968. The activities which have been alleged in the grounds are again of at type, which cannot be relevant to public order. For instance ground No. 1 (c) which is in these terms : "That on 6 10 67 at about 06.30 hrs. you and your associates were seen to remove sugar bags from a sealed wagon of a goods train and to despatch the same by hand pulling car while the train stopped at Bagmari Rly. Bridge for red signal. " His detention cannot be upheld and is set aside. Petitioner No. 36 (Sri Panchanan Das). The District Magis trate, 24 Parganas, made an order dated June 13, 1968 directing under section 3(2) of the Act petitioner 's detention with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. His representation was sent to the Advisory Board which, after considering all the materials, reported that there was sufficient cause for his detention. Thereupon the Gov ernment confirmed the detention order on August 29, 1968. Most of the grounds are not at all relevant to the maintenance of public ,order; see for instance ground No. 1 (c) which is in these terms : 151 "That on 18 2 68 at about 11.30 a.m. you and your associates were found to remove rice from a running Railway wagon by breaking seal of the wagon door at Bagmari Rly. pool and overhead Chitpur Bridge. " His detention cannot be upheld. Petitioner No. 37 (Indrajit Debnath). This petitioner was detained by an order of the District Magistrate 24 Parganas dated May 23, 1968 made under section 3 (2) of the Act on the ground that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. His representation was considered by the Advisory Board along with the other materials. The Board reported that there was sufficient cause for his detention. Thereupon the Government confirmed the order of detention on August 1, 1968. Most of the grounds contain allegations of theft of overhead traction wire. They cannot possibly be relevant to maintenance of public order. The detention order cannot be upheld and is hereby set aside. Petitioner No. 38. (Surjit Singh). This petitioner was detained by the order of the District Magistrate, 24 Parganas under section 3 (2) of the Act on April 4, 1968; the detention being considerd necessary to prevent him from acting in any manner prejudicial to the maintenance of public order. His representation was considered by the Advisory Board along with the other materials and the Board reported that there was sufficient cause for his detention. Thereupon the Government confirmed the detention order on June 29, 1968. Some of the grounds cannot possibly relate to maintenance of public order. Ground No. 1 (viii) is in these terms : "That on 16 2 68 you fled away from the R. G. Kar Hospital while you were undergoing treatment under police guard." His detention consequently cannot be upheld and is hereby set aside. Petitioner No. 39 (Badal Pal). This petitioner was detained by an order, dated July 30, 1968 made by the District Magistrate 24 Parganas under section 3(2) of the Act, his detention being considered necessary to prevent him from acting in any manner prejudicial to the maintenance of public order. His representation was considered by the Advisory Board with other materials which reported that there was sufficient cause for his detention. Thereupon the Government confirmed the order of detention. Some of the grounds have absolutely no relevance to the maintenance of public order. See for instance grounds Nos. 1 (d), (e) and (f). His detention cannot, therefore, be upheld and is set aside. 152 Petitioner No. 40 (Sona Karmakar) . This petitioner was de tained by an order of the District Magistrate dated July 30, 1968 made under section 3 (2) of the Act on the ground that his detention was necessary for preventing him from acting in any manner prejudicial to the maintenance of public order. His representation was considered by the Advisory Board with the other materials but the Board reported that there was sufficient cause for his detention. On September 18, 1968 the Government confirmed the order of detention. Some of the grounds cannot possibly be regarded as relevant to maintenance of public order. See grounds Nos. 1 (b) and (c). His detention cannot be upheld and is hereby set aside. Petitioner No. 42 (Jaganath Goila). This petitioner was de tained by an order of the District Magistrate,, 24 Parganas made under section 3 (2) of the Act on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order. His representation was considered by the Advisory Board together with the other materials. The Board reported that there was sufficient cause for his detention. On October 7, 1968 the detention order was confirmed. A perusal of the grounds shows that most of the grounds are not relevant to maintenance of public order and in this connection reference may be made to ground Nos. 1 (ii) and (iii). The detention of this petitioner cannot, therefore, be upheld and is hereby set aside. Petitioner No. 43 (Shyamal Pal). This petitioner was detained by an order of the District Magistrate, 24 Parganas made unders. 3 (2) of the Act on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order. On receiving the grounds of detention the petitioner made a representation which was considered by the Advisory Board together with the other materials. The Board reported that there was sufficient cause for his detention. On May 17, 1968 the Government confirmed the order of detention. We have examined the grounds of detention. Most of them do not relate to or are relevant to maintenance of public order. The activities mentioned cover acts of theft, robbery etc. but they cannot be considered relevant for the purpose of public order, in view of our previous decisions. The detention is consequently set aside. Petitioner No. 44 (Suvranghshu Mitra). This petitioner was detained by an order dated April 20, 1968 of the District Magis 153 trate, 24 Parganas, made under section 3 (2) of the Act on the ground that it was necessary to detain him with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. His representation was forwarded to the Advisory Board which gave an opinion that there was sufficient cause for his detention. Thereupon the Government of West Bengal confirmed the order of detention on June 28, 1968. Some of the ,grounds are wholly irrelevant to maintenance of public order. For instance ground No. 1 (i) is "That on 11 10 67 at about 11.45 hrs. you assaulted Shri Narayanchandra Das of 6A, Baikuntha Ghose Road, Calcutta 42 with fists and blows. " He is therefore entitled to be released. Petitioner No. 45. (Madan Mohan Mandal). This petitioner was detained by an order of the District Magistrate, 24 Parganas, dated January 16, 1968 on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order. His representation was considered by the Advisory Board which gave an opinion that there was sufficient cause for his detention. Thereupon the Government of West Bengal confirmed the order of detention on May 1, 1968. Some of the grounds of detention do not appear to be relevant to maintenance of public order. See for instance ground No. 1 (iv). Consequently he is entitled to be released. Petitioner No. 46. (Rangalal Debnath). This petitioner was detained by an order dated March 16, 1968 passed by the District Magistrate, 24 Parganas, under section 3 (2) of the Act on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order. On receiving the grounds he made a representation to the Advisory Board which gave an opinion that there was sufficient cause for his detention. The Government of West Bengal confirmed the order of detention on June 10 1968. His case is similar to others inasmuch as most of the grounds are not relevant to the maintenance of public order. See for instance ground No, 1 (iv). The detention of the petitioner, therefore, cannot be upheld and is hereby set aside. G.C. Petitions allowed.

The appellant and respondents were contestants for a reserved seat from 'a scheduled caste constituency for election to the State Legislative Assembly, and the first respondent was elected. The election was challenged by the appellant on the ground that the respondent was not a member of scheduled caste because, he embraced Christianity and professed the Christian religion, and therefore, was not eligible to stand for election for the reserved seat. During the trial, the High Court summoned a Register, containing the names of all converted Christians of the locality, which was maintained by the local church. There was no entry showing that the first respondent was converted to Christianity. On the issue whether the first respondent was converted to Christianity, the High Court, on a consideration of the entire evidence held that there were no proof of such conversion and dismissed the petition. In appeal to this Court, a petition was flied alleging that the Register contained entries showing that the parents of the first respondent were converted to Christianity and it was prayed that the case should proceed on the plea of conversion to Christianity of the parents of the first respondent, in place of the original plea that the first respondent himself was so converted. HELD: The prayer in the petition could not be granted because: (a) The plea changed the entire nature of t e case and required fresh evidence, (b) it was belated and beyond the period of limitation prescribed for filing of election petitions; and (c) the application should have been filed in the High Court itself, for, the Register was produced in the High Court and it was inspected by the parties who had thus ample opportunity to discover the basis for the new plea. [995 D F] Under cl. (3) of the Constitution (Scheduled Castes) Order, 1950, it would have been sufficient if the appellant pleaded and proved that the first respondent was a Christian that therefore he was not a Hindu and was not competent to stand for the reserved seat; but he chose to establish that the first respondent was himself converted to Christianity and failed to do so. [996 B C]

Civil Appeal No. 1936 of 1978. From the Judgment and Order dated 19 8 78/3 10 78 of the Bombay High Court (Nagpur Bench) in E.P. No. 1/78. AND Civil Appeal No. 2387 of 1978 From the Judgment and Order dated 3 8 78/22 9 78/3 10 78 of the Bombay High Court (Nagpur Bench) in Election Petition No. 1/78. M. C. Bhandare, B. P. Salve, A. N. Karkhanis and Mrs. section Bhandare for the Appellant in C.A. 1936/78. N. M. Ghatate and section V. Deshpande for the Appellant in C.A. 2387/78. M. N. Phadke, Mrs. V. D. Khanna and P. G. Palsikar for R. 2 in C.A. 1936 of 1978. U. R. Lalit and V. N. Ganpule for R. 5 in C.A. 1936/78. The Judgment of the Court was delivered by PATHAK, J. These two appeals under section 116A of the Representation of the People Act, 1951 are directed against an order of the High Court of Bombay declaring void the election of Janardan Dattuappa Bondre to the 104 Chikhli Legislative Assembly Constituency, Maharashtra and declaring Bharat Rajabhau Bondre to be duly elected. Civil Appeal No. 1936 (NCE) of 1978 has been filed by Janardan Dattuappa Bondre and Civil Appeal No. 2387 (NCE) of 1978 by Keshavrao Jaiwantrao Bahekar. The parties will be referred to hereinafter according to their array in the former appeal. General elections to the Legislative Assembly of Maharashtra were held in February, 1978. The appellant Janardan Dattuappa Bondre, was declared elected to the 104 Chikhli Assembly Constituency. He secured 27,785 votes. The fifth respondent, Bharat Rajabhau Bondre was given 27,604 votes and the third respondent, Keshavrao Jaiwantrao Bahekar 27,447 votes. The election of the 900 appellant was questioned by an election petition filed in the High Court of Bombay by a voter, the first respondent, Govindprasad Shivprasad Choudhary. The High Court did not find substance in most of the grounds raised in the election petition, but having regard to the allegations made in respect of a number of ballot papers it allowed fresh scrutiny and recount of the votes. The task was entrusted to a Special Officer of the High Court. After considering his report and the material before it, the High Court made an order dated September 22, 1978 allowing the election petition, declaring the election of the appellant to be void and further declaring the fifth respondent to be duly elected. The decision was rendered on the finding that after taking into account the votes now counted in favour of the different candidates, the fifth respondent was found to have received 191 votes more than the appellant. This result was reached after denying to the appellant the benefit of 250 ballot papers cast in his favour but found included in the packet of Bahekar 's ballot papers. If these 250 ballot papers are counted in favour of the appellant, it is not disputed that the result of the election must swing in favour of the appellant. The submissions of learned counsel for the parties have, therefore, centred mainly on this aspect of the case. The relevant portion of the report of the Special Officer reads: 'While the counting was in progress, it was found that in one envelope from Box No. 2 of candidate No. 4 Shri Bahekar, there were 278 ballot papers noted by the Returning Officer on the envelope but at the time of actual counting it was found that from them 28 ballot papers were of Shri Bahekar, while the remaining were of votes cast, in favour of candidate No. 3 Shri Janardhan Bondre. Similarly, in the envelope of Shri Janardhan Bondre there were 408 ballot papers noted by the Returning Officer but at the time of actual counting of that envelope it was noticed that from out of 408 ballot papers, 158 only were of Shri Janardhan Bondre and the remaining were of Shri Bahekar. It would be therefore clear that there was some mistake committed by the Returning Officer while packing the ballot papers in the two envelopes of Shri Bahekar and Janardhan Bondre. " On the report of the Special Officer, it was contended before the High Court on behalf of the fifth respondent that it was not permis 901 sible to take into account the 250 votes cast in favour of the appellant and found in the packet of Bahekar because the order of the High Court directing a recount was limited to finding out whether any improper votes had been accepted in favour of the appellant and whether any proper votes of the fifth respondent had been rejected. Relying on P. Malaichami vs M. Ambalam,(1), the High Court took the view that as the appellant had not filed a notice of recrimination under section 97 of the Representation of the People Act, 1951, it was not open to him to allege that any of his votes had been improperly counted in favour of some other candidate. In the appeal filed by Janardan Dattuappa Bondre, the principal contention on behalf of the appellant is that the High Court has erred in holding that Section 97 comes into play. It is vehemently contended that no notice of recrimination was necessary for the purpose of having the 250 votes, whose validity was never in dispute and which had been cast in favour of the appellant, counted in the total number of votes secured by the appellant. It seems to us that the appellant is right. The order for a recount was made by the High Court on an application made by the election petitioner. The directions in the order required the Special Officer, among other things, to physically count the votes recorded in favour of the appellant, Bahekar and other candidates in order to ascertain whether those votes were less than the number of votes declared as having been respectively secured by them. During the recount, the appellant applied to the Special Officer that if any votes cast in his favour were found to have been erroneously counted in the total of other candidates the mistake should be rectified by including them in his total. A similar application was made by Bahekar. The High Court rejected the appellant 's application on the ground that he had not filed a notice of recrimination. It seems to us that when the High Court directed the "physical" count of the votes cast in favour of the appellant, Bahekar and others what was intended was a mechanical recount of those votes and nothing more. It did not envisage any enquiry into their validity, and whether any of them had been improperly received. When the appellant requested that the 250 votes cast in his favour but included in the packet pertaining to Bahekar shoud be counted in his total, he was asking for nothing more than the application of a mechanical process. Those votes had never been regarded as cast in favour of Bahekar. There was never any dispute that they were votes for the appellant. Their validity was never doubted. Plainly 902 what had happened was that by an error 250 ballot papers cast in favour of the appellant had been erroneously placed in the packet of Bahekar. It is quite probable that as equal numbers of ballot papers of the two candidates were exchanged, the error occurred after the ballot papers of each candidate had been separately tied in bundles of 50, as is required by the "Handbook for Returning Officers". After withdrawing the 250 votes of Bahekar from the appellant 's packet and the appellant 's 250 votes from Bahekar 's packet, the Special Officer could not stop there. The 250 votes of each candidate had then to be counted in his total. They were not valid votes. The inclusion of the 250 votes cast in favour of the appellant was material for the purpose of determining the total number of votes received by him. The accident that they were not placed in his packet but in Bahekar 's packet did not render them any the less votes belonging to the appellant. Their inclusion in calculating the appellant 's total was a necessary part of the process involved in deciding whether he had been duly elected or whether on the election petition, his election should be declared void. It was a process relevant to the first of the reliefs claimed by the election petitioner, that is to say, that the election of the appellant be declared void. The other relief claimed by the election petitioner was that the fifth respondent be declared duly elected. as was observed in Jabar Singh vs Genda Lal,(1) where both reliefs are claimed in an election petition the Court must first "decide the question whether the election of the returned candidate is valid or not, and if it is found that the said election is void, it makes a declaration to that effect and then deals with the further question whether the petitioner himself or some other person can be said to have been duly elected". A notice of recrimination under section 97 of the Act is necessary only where the returned candidate or other candidate disputes the grant of the further declaration sought by the election petitioner that he or some other candidate should be declared duly elected. When the recount was taken, the High Court had not yet concluded that the election of the appellant was invalid. It was in the process of determining that question, and the question could properly be determined only after giving to the appellant the benefit of all the votes cast for him. These would include the 250 votes cast in his favour, even though they were found placed in Bahekar 's packet. Once the benefit of his 250 votes is given to the appellant, he becomes the candidate with the highest number of votes. His election cannot be declared void. 903 That being so, no question arises of the appellant wanting to give evidence to prove that the election of any other canddiate would have been void if he had been the returned candidate. Therefore, no notice for recrimination under section 97 was necessary. In the circumstances, the High Court erred in declining to count the appellant 's 250 votes in his total on the ground that no notice of recrimination under section 97 of the Act had been given. In P. Malaichami vs M. Ambalam (supra), on which the High Court relied, the facts were different. In that case, the recount ordered did not inolve the mere mechanical process of counting the valid votes cast in favour of the parties. It involved the kind of counting contemplated under Rule 56 of the Conduct of Election Rules, 1961, "with all its implications". The validity of the votes was to be under re examination. And if the returned candidate intended to take the benefit of such a recount against the election petitioner or other candidate, in whose favour the further declaration of being duly elected had been claimed, it was necessary for him to file a notice of recrimination. In the present case, the appellant was concerned with his claim to his 250 votes. The claim did not involve any reconsideration of the validity of any votes, whether cast in his favour or any other candidate; what was called for was a mere mechanical process of counting. That every order of recount does not bring section 97 into play was laid down by this Court in Anirudh Prassad vs Rajeshwari Saroj Das & Ors.(1) We are of opinion that the High Court should not have declined to include in the appellant 's total votes the 250 votes cast in favour of the appellant but included in the packet of Bahekar. If those votes are included in the appellant 's total, the appellant secures the highest number of votes and is entitled to be declared elected. In the circumstances, it is not necessary to consider the other contention of learned counsel for the appellant that the High Court was in error in directing a recount of the ballot papers. A submission was made by learned counsel for the fifth respondent that the postal ballot papers were printed in Hindi and therefore, Rule 22 of the Conduct of Election Rules, 1961 was contravened. The point was raised before the High Court and, has, in our opinion, been rightly repelled. On the material before us it is not possible to say that the result of the election has been materially effected by that irregularity. 904 In the appeal filed by Bahekar, the contention raised for him is that on a proper and complete recount of the votes cast for the respective candidates it is he who should be declared duly elected. We are not satisfied that the grounds raised have any substance, and we see no force in his appeal. In the result, Civil Appeal No. 1936 (NCE) of 1978 is allowed and Civil Appeal No. 2387 (NCE) of 1978 is dismissed. The order of the High Court declaring the election of the appellant void and declaring the fifth respondent duly elected is set aside. The election petition is dismissed. The appellant is entitled to his costs throughout against the second and the fifth respondents in the election petition as well as in the appeal filed by him. The remaining respondents will bear their own costs in that appeal. All the parties will bear their own costs in the other appeal. N.V.K. C.A.1936/78 allowed. C.A.2387/78 dismissed.

The appellant was declared elected to the State Assembly in the General Election in 1978. He secured 27785 votes. The fifth respondent was given 27,604 votes and the third respondent 27,447 votes. The election of the appellant was questioned by an election petition filed in the High Court by a voter, the first respondent. Having regard to the allegations made in respect of a number of ballot papers, the High Court allowed fresh scrutiny and recount of the votes, and entrusted the task to a Special Officer of the High Court. The Special Officer pointed out that in one envelope from the box of the 3rd respondent out of 278 ballot papers 28 were of the 3rd respondent while the balance of 250 were the votes cast in favour of the appellant. Similarly in the envelope of the appellant out of 408 ballot papers found in this box only 158 were votes cast in his favour and 250 were in favour of the 3rd respondent and that by reason of this some mistake was committed by the Returning Officer while packing the ballot papers in the two envelopes of the appellant and the 3rd respondent. On the report of the Special Officer, it was contended before the High Court on behalf of the fifth respondent that it was not permissible to take into account the 250 votes cast in favour of the appellant which were found in the packet of the third respondent because the order of the High Court directing a recount was limited to finding out whether any improper votes had been accepted in favour of the appellant and whether any proper votes of the fifth respondent had been rejected. The High Court relying on P. Malaichami vs M. Ambalam, ; took the view that as the appellant had not filed a notice of recrimination under section 97 of the Representation of the People Act, 1951, it was not open to him to allege that any of his votes had been improperly counted in favour of some other candidate. On the basis of the report of the Special Officer the High Court held that the fifth respondent had received 191 votes more than the appellant and declared the appellant 's election to be void. It declared the fifth respondent to be duly elected. In the appellant 's appeal to this Court it was contended that the High Court had erred in holding that section 97 comes into play and that no notice of recrimination was necessary for the purpose of having the 250 votes, whose validity was 898 never in dispute and which had been cast in favour of the appellant, counted in the total number of votes secured by the appellant. ^ HELD: 1. When the High Court directed the "physical" count of the votes cast in favour of the appellant, third respondent and others, what was intended was a mechanical recount of these votes and nothing more. It did not envisage any inquiry into their validity, and whether any of them had been improperly received. When the appellant requested that the 250 votes cast in his favour but included in the packet pertaining to the third respondent should be counted in his total, he was asking for nothing more than the application of a mechanical process. These votes had never been regarded as cast in favour of the third respondent. There was never any dispute that they were votes for the appellant. Their validity was never doubted. Plainly what had happened was that by an error, 250 ballot papers cast in favour of the appellant had been erroneously placed in the packet of the third respondent. [901G 902A] 2. The accident that they were not placed in his packet but in the third respondent 's packet did not render them any the less votes belonging to the appellant. Their inclusion in calculating the appellant 's total was a necessary part of the process involved in deciding whether he had been duly elected or whether on the election petition his election should be declared void. It was a process relevant to the first of the reliefs claimed by the election petition, that is to say, the election of the appellant be declared void. The other relief claimed by the election petitioner was that the fifth respondent be declared duly elected. [902C E] 3. A notice of recrimination under section 97 of the Act is necessary only when the returned candidate or any other candidate disputes the grant of the further declaration that he or some other candidate should be declared duly elected. [902F] In the instant case when the recount was taken, the High Court had not yet concluded that the election of the appellant was invalid. It was in the process of determining that question, and the question could properly be determined only after giving to the appellant the benefit of all the votes cast for him. These would include the 250 votes cast in his favour, even though they were found placed in the third respondent 's packet. Once the benefit of his 250 votes is given to the appellant, he becomes the candidate with the highest number of votes. His election cannot be declared void. That being so, no question arises of the appellant wanting to give evidence to prove that the election of any other candidate would have been void if he had been the returned candidate. Therefore, no notice for recrimination under section 97 was necessary. [902G 903A] 4. The appellant was concerned with his claim to his 250 votes. The claim did not involve any reconsideration of the validity of any votes, whether cast in his favour or any other candidate. What was called for was a mere mechanical process of counting. Every order of recount does not bring section 97 into play. [903D E] Jabar Singh vs Genda Lal ; , 60; Anirudh Prasad vs Rajeshwari Saroj Das & Ors., ; referred to. P. Malaichami vs M. Ambalam ; ; distinguished. The High Court should not have declined to include in the appellant 's total votes the 250 votes cast in favour of the appellant but included in the packet 899 of the third respondent. If those votes are included in the appellant 's total the appellant secures the highest number of votes and is entitled to be declared elected. [903F]

Appeal No. 770 of 1963. WITH Civil Appeals Nos. 771 778, 883 and 884 of 1963. Appeals from the judgment and order dated April 19, 1963, of the Andhra Pradesh High Court in Writ Petitions Nos. 267 275 and 289 and 295 of 1963. A. V. Viswanatha Sastri, P. Babula Reddy and K. R. Chaudhuri, for the appellants (in C.A. No. 77/1963). P. Babula Reddy and K. R. Chaudhuri, for the appellants (in C. A. Nos. 771 777/1963). K. R. Chaudhuri, for the appellants (in C.A. No. 778/1963). K. Srinivasa Murthy and K. R. Chaudhuri, for the appellants (in C. A. Nos. 883 and 884 of 1963). D. Narasaraju, Advocate General, Andhra Pradesh, P. R. Ramachandra Rao and B. R. G. K. Achar, for the respondents (in all the appeals). January 27, 1964. The Judgment of the Court was delivered by AYYANGAR J. This batch of 11 Appeals which have been consolidated for hearing are directed against the common judgment of the High Court of Andhra Pradesh and are before us on the grant of a certificate of fitness under article 133(1) of the Constitution by the said High Court. The proceedings concerned in the appeals arise out of Writ petitions filed before the High Court by the several appellants before us under article 226 of the Constitution challenging the validity of three Schemes framed under Chapter IV A of the , nationalising motor transport in certain areas in the Kumool District of the State of Andhra Pradesh which for convenience we shall refer to as the impugned Schemes. The appellants who impugn the validity of the schemes are the previously existing motor transport operators whose permits are liable to be modified or cancelled under the provisions of 334 the Schemes on their coming into force. The impugned schemes were published by Government as G.O.Ms. 292, 293 and 294 of the Home, Transport Department on the 5th February, 1963 in virtue of the powers conferred on Government by sub section 2 of the 68 D of the . The Andhra Pradesh State Road Transport Corporation which for shortness we shall refer to as the Corporation, besides the State of Andhra Pradesh and the Regional Transport Authority, Kurnool were impleaded as respondents to the petitions. They are also the respondents before us. By reason of the first Scheme, 34 routes were intended to be taken over, while under the 2nd and 3rd, 17 and 13 routes respectively were proposed to be nationalised. The routes covered by these three schemes are all in the western half of the Kurnool District. Before adverting to the points requiring consideration in the appeals, it would be convenient to set out the relevant statutory provisions relating to the nationalisation of Road Transport for it is primarily on their construction that the decision of the appeals would turn. Chapter IV A containing special provisions relating to "State Transport Uundertakings" was introduced into the (Act IV of 1939) by an amendment effected by Central Act 1 of 1956 which came into effect on 16 2 1957. The Chapter consists of sections numbered 68 A to 68 1. 68 A contains definitions and of these it is sufficient to refer to the definition of "State Transport Undertaking" which includes inter alia "any undertaking providing road transport service, where such undertaking is carried on by. any Road Transport Corporation established under sec. 3 of the Road Transport Corporation Act 1950. " (to refer to the portion which is material.) (It might be mentioned that the Corporation, the first respondent before us is a body established under this enact ment.) 68 B reads: "The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith 335 contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law. " The next section 68 C which is the one most involved in the appeals runs: "Where any State Transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct." The first two sub sections of section 68 D enable persons affected by a Scheme published under section 68 C to file objec tions thereto before the State Government within thirty days after the publication of the Scheme. It further provides for the State Government considering the objections raised by persons affected by the Scheme after giving an oppor tunity to the objectors and the "undertaking" to be heard in the matter before approving or modifying the Scheme. The Scheme so approved or modified is required to be published in the State Gazette and on such publication it becomes final and is to be called "the approved scheme". This is followed by sub sec. (3) which reads: "The scheme as approved or modified under sub section (2) shall then be published in the Official 336 Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route: Provided that no such scheme which relates to any inter State route shall be deemed to be an approved scheme under it has been published in the Official Gazette with the previous approval of the Central Government. " Section 68 E provides : "any scheme published under sub section (3) of section 68 D may at any time be cancelled or modified by the State transport undertaking and the procedure laid down in section 68 C and section 68 D shall so far as it can be made applicable be followed in every case where the scheme is proposed to be modified as if the modification proposed were a separate scheme. " Section 68 F is really consequential on the approval of the scheme and sub section (1) thereof enacts: "Where, in pursuance of an approved scheme, any State Transport Undertaking applies in the manner specified in Chapter IV for a stage carriage permit or a public carrier 's permit or a contract carriage permit in respect of a notified area or notified route, the Regional Transport Authority shall issue such permit to the state transport undertaking, notwithstanding anything to the contrary contained in Chapter IV. " Its second sub section enables the Regional Transport Authority to refuse renewal of any other permits to private operators and otherwise to deal with those permits so as to give effect to the Scheme. Sections 68 G and 68 H deal with the payment of compensation and the methods by which the same should be computed but as these. are not material, we shall not quote them. 337 Section 68 1 empowers the State Government to make rules for the purpose of carrying into, effect the provisions of Chapter IV A and among the specific purposes for which such rules may be framed is one under section 68 1(2) (a) which provides for the form in which any scheme or approved scheme may be published under section 68 C or sub section (3) of Section 68 D and as usual a residuary clause reading: " any other matter which has to be or may be con sidered. " These draft schemes prepared by the Corporation were published under section 68 D in the official Gazette on the 29th of November, 1962. The appellants among others filed objections to the schemes and thereafter there was a hearing of these objections by the Transport Minister of the State under section 68 D(2) on the 11th of January, 1963. The Minister passed an order according approval to the schemes on the 12th of February, 1963, and the schemes as finalised were published in the Gazette on the next day, February 13, 1963. In pursuance of the provisions of the schemes the Corporation made application to the Regional Transport Authority for permits. Soon thereafter the appellants and a few others filed writ petitions invoking the jurisdiction of the High Court under article 226 of the Constitution praying for the quashing of the schemes. These petitions were dismissed by the High Court by a common judgment on the 19th of April, 1963, holding that the objections made to the validity of the schemes would not be sustained. The learned Judges, however, on the application of the Appellants granted a certificate of fitness under article 133 in pursuance of which these appeals have been preferred. The points urged by the appellants before us in support of their submission regarding the invalidity of the impugned schemes, were substantially the same as were urged before High Court and which the learned Judges repelled. Briefly stated the principal ones were: (1) that the schemes did not in reality reflect the opinion of the Corporation that "it was necessary in the public interest that the Road Transport services in the area or over the route, specified in the 134 159 S.C. 22 338 schemes should be run and operated by the State Transport Undertaking" as is required by section 68 C but that the schemes owed their origin to the direction of the Chief Minister of Andhra Pradesh who acted mala fide in directing the Transport Undertaking to frame the impugned schemes for the areas for which they were purported to be framed; (2) that the decision by the Transport Minister overruling the objections raised by the several road transport operators to the schemes was also mala fide, in that he too acted in pursuance of the mala fide intentions of the Chief Minister of Andhra Pradesh; (3) that the provisions of the schemes (and this applied both to the draft schemes published by the Corporation as well as the approved schemes published under section 68 D(3) did not conform to the statutory requirements of section 68 C and rule 4 of the Rules regarding the particulars to be embodied in the schemes and that in consequence the core of the scheme was in violation of Rule 68(E) of the Act; (4) that the schemes comprised not merely intrastate routes but also included inter state transport routes and in the latter case the procedure prescribed by the proviso to section 68 D was not followed and hence all the impugned schemes which are integrated ones are bad and require to be set aside. There were also a few minor ones which we shall notice and examine later. We shall deal with these four points in the same order. Before taking up the first one viz., that the draft scheme in section 68 D really did not originate from the Corporation, the State Transport Undertaking, but that it was done under the direction of the Chief Minister who, it was alleged for reasons which were set out in the affidavits and to which we shall refer presently was stated to have compelled, directed or induced the Corporation to do so, it would be necessary to give a short resume of the history of nationalised transport in Andhra Pradesh as well as certain events in Andhra Pradesh politics which have been the subject of allegations in these proceedings. The present State of Andhra Pradesh is made up of two distinct areas (1) what is known as the "Telengana area" consisting of nine districts of the old Hyderabad State and (2) the "Andhra area" which separated from Madras i.e. from the composite 339 Madras State, in October 1953 and which comprised 11 districts. These two areas were integrated under the States Re organization Act, 1956, to form the present State of Andhra Pradesh. In the Telengana area the road transport services had been run by the Government of the Nizam since the year 1932 and by 1956 private motor road transport operators had been completely eliminated from this entire area. In the Andhra Area comprising the 11 districts how ever, nationalisation of motor transport had not been under taken. Soon after the formation of the State of Andhra Pradesh, the Andhra Pradesh State Road Transport Corporation was established with effect from 11th of January, 1958 with a view to take steps for extending nationalised transport to the Andhra areas of the State. Certain routes in three of the 11 Districts Krishna, West Godavari and Guntur were nationalised from 1959 onwards. The Vijayawada Masulipatam and Vijayawada Guntur routes were nationalised in the first instance and thereafter by about September, 1959, almost the entire routes in Krishna District were nationalised. The next district to be taken up was West Godavari which was done in March, 1960. The process was nearly completed in this district by the 1st of February, 1960, except for a few routes. The Government had sanctioned certain schemes for nationalisation in Guntur District which were expected to be completed by October, 1961. The question which was thereafter the subject of consideration was the manner in which and the stages whereby nationalisation of the motor transport throughout the State might be brought about. With this object the Corporation adopted a resolution in 1960 by which it decided to appoint an expert Committee to go into question as to the working of nationalised transport with a view to improve its efficiency as well as for drawing up plans for the future expansion of the road transport services in the State. The terms of reference to that Committee were comprehensive and it started functioning very soon after the members were appointed. Shri section Anantharama krishnan, Chairman of Messrs. Simpson & Co. Ltd., Madras, one of the principal motor transport operators of the Madras State, was the Chairman of the Committee and it comprised three other members who were officials of the 340 Andhra Pradesh State Government. The Committee made various recommendations in the Report which it submitted to the Corporation on the 9th February, 1961. Among the several recommendations which this Committee made, what is of relevance to the present appeals and on which reliance was placed in support of the plea that the impugned schemes were vitiated by mala fides are those contained in Chapter IX of the Report and in particular the priorities of areas for taking up nationalisation which the Committee recommended in paragraph 125. They set out in paragraph 124 the factors which should be taken into account in fixing the order in which new areas should be taken up for nationalisation as being (1) "the most profitable areas should be taken up first;" (2) "from the traffic point of view there should be contiguous expansion;" (3) "from the administrative point of view it is convenient to nationalise bus services district by district;" and (4) "the proposal to form large sized divisions should be borne in view. " Adopting these criteria the Committee stated in paragraph 125 "that the nationalisation of bus transport may be extended to the remaining districts in the Andhra area as indicated below: 1961 621 guntur District 1962 63 Nellore and Chittor Districts 1963 64 Cuddapah and Kurnool Districts 1964 65 Anantapur and East Godavari Districts 1965 66 Visakhapatnam and Srikakulam Dis tricts". The Committee also added in paragraph 126 "we recommend that a policy decision may be taken by Government on the proposal to extend nationalisation of bus services to the remaining Andhra Districts during the Third Five Year Plan. The order in which the new areas will be taken over may also be decided by Government. The Corporation will then be able to make its plans well in advance, and arrange to provide all the facilities that are needed for expanding its activities to other districts. " This report of the 34I Anantharamakrishnan Committee was the subject of con sideration by the Corporation and they accepted in March, 1962 the above recommendation regarding the phased pro.programme of nationalisation of districts in the order indicated s and embodied this recommendation in their Administration Report for the period January 11, 1958, (the day on which the Corporation was formed) to March 31, 1961 which was submitted to the Government as required by section 35(2) of the Road Transport Corporation Act, 1960, on the 7th of April, 1962. In this last document they said speaking of future trends, "the programme for nationalisation of transport services in the remaining of the Andhra Pradesh is as indicated below: 1961 62 Guntur District 1962 63 Nellore and Chittor Districts 1963 64 Cuddapah and Kurnool Districts 1964 65 Ananthapur and East Godavari Districts 1965 66 Vishakhapatnam and Srikakulam Dis tricts. " In the impugned schemes, however, the Corporation made an alteration in the order of the Districts successively to be taken up for nationalisation. It would be seen that after Guntur District which was neatly completed by the end ,of 1961 the next districts to be taken up during the 1962 63 would have been Nellore and Chittor Districts in that order and it was only thereafter that the District of Cuddapah and after it Kurnool would be taken up. That was the recommendation of the Anantharamakrishnan Committee and which had been accepted by the Road Transport Corporation as late as April, 1962 and it may be mentioned in this connection that the Vice Chairman of the Road Transport Corporation was himself a member of the Anantharamakrishnan Committee. By its resolution dated, 4th May, 1962, the Road Transport Corporation decided that instead of the above order Kurnool, Nellore and Cuddapah Districts in that order would be chosen for nationalisation and in the three schemes which were formulated in pursuance of this Resolution the western half of Kurnool was selected as the area to be nationalised in the first instance. 342 As we have indicated earlier the appellants before us are transport operators whose routes are all in the western half of the, Kurnool District. It is this change in the orders of the Districts in which the routes are to be nationalised and the choice of the Western part of Kurnool for being taken up in the first instance that are alleged to be due to the mala fide intentions of the Chief Minister and this forms the main ground upon which the validity of the schemes is impugned. The allegations in this respect may now be stated. In the affidavit in support of the Writ Petition No. 267 of 1963 from which Civil Appeal No. 770 of 1963 arises, this is what is stated: "The General Elections for the various Constituencies of Assembly and Parliament were held in February, 1962. It is well known that there are two groups in the Congress and they were actively ranged against each other. The previous Chief Minister (Shri Sanjivayya) and the present Chief Minister (Shri Sanjiva Reddy) were both returned from Kurnool District in general elections. T he then Chairman of the Zila Parishad Shri Vijaya Bhaskara Reddy contested unsuccessfully from Yemniganpur Constituency in Kurnool District. (Yemniganpur is in the western part of the Kurnool District). He is the active supporter of the present Chief Minister. Shri C. Ram Bhopal son in law of the present Chief Minister also unsuccessfully contested from the Nandikothur Constituency in Kurnool District. (Nandikothur is also in the western part of Kurnool). The person who successfully opposed him Sri P. Venkatakrishna Reddy now M.L.A. is a partner in 'Venkata Krishna Bus Service Nandikothur. This firm owns 2 permits and they stand in the name of Jayaramayya who was the Election Agent of Sri Venkata Krishna Reddy. Two persons Sri Ganikhan and Sri Antony Reddy who are staunch supporters of 343 the present Chief Minister Sri Sanjiva Reddy were selected as Congress candidates by the Parliamentary Board at Delhi when Sanjiva Reddy was the President of the Indian National Congress, were also defeated in their respective Constituencies. It was considered by one and all that leading transport operators among them, (the petitioners) were responsible for the defeat of these persons and this enraged the feelings of Shri Sanjiva Reddy against the operators in Kurnool District and particularly the operators whose routes lay in the western areas of the District and with a view to cause them loss and to ruin their business this nationalisation of transport in the western part of Kurnool was directed to be undertaken in spite of the Emergency and in spite of the incapacity of the Road Transport Corporation to fulfil their earlier commitments for want of buses. The undivided brothers of Sri T. Narayan, a transport operator, namely Sri Venkataswamy contested the Assembly seat against Sri Sanjiva Reddy in the Dhone Constituency from which he was returned and he refused to withdraw even though lots of pressure were brought on him. Sri Rajasekhara Reddy and Sri Vijayakumara Reddy sons of Sri P. Ranga Reddy, Minister in the previous Cabinet are also transport operators in the Kurnool District. It is known to every one that Sri P. Ranga Reddy is in the group opposed to Sri Sanjiva Reddy. Sri Y. Mahananda Reddy another transport operator is a staunch supporter of Sri P. Ranga Reddy. When Sanjiva Reddy was President, of the Indian National Congress his selection, for the Congress ticket was set aside by him and one Vengal Reddy was selected by the Pradesh Congress Committee. It is significant that the three schemes framed for the part of the Kurnool District relat e to the areas in 344 which the routes on which the above stated persons are running their buses. It is also significant that the areas in Kurnool District where the supporters of the present Chief Min ister are having permits are not sought to be included in any of the three nationalisation schemes. In the Nandyal area most of the transport operators are the supporters of the present Chief Minister and their routes are excluded from the schemes. It is with a view to achieve the object of hitting against those operators who have fallen into disfavour and to protect those who are in his good books that the schemes have been evolved over routes and parts of the District. " Two further matters were also urged as supporting this plea of mala fides. The first was that with a view to carry out the original programme which was approved and confirmed by the Corporation in their Administration Report published on April 7, 1962, the routes in the Nellore District which according to the Anantharamakrishnan Commitee Report had to be taken up next were surveyed and though the elements of contiguity and profitable nature were both present in regard to the extension of the services to Nellore, contiguity by reason of the fact that some buses belonging to the Corporation and running from Guntur were already plying in Nellore District and the profitable nature since these were evaluated by the Anantharamakrishnan Committee whose recommendations were examined and approved by the Corporation, the nationalisation of the routes in Nellore was, however, abandoned and that of the western part of Kurnool was decided upon. The other fact was that the National Defence Council passed a reso lution as late as the first week of November, 1962, urging the deferring of further nationalisation of transport services for the present and it was in the teeth of. this resolution which was passed at the meeting at which the Chief Minister himself was present that the schemes of nationalisation of transport services in Kurnool district was published by the Corporation on the 29th November, 1962. 345 Before examining whether these allegations have been made out it would be necessary to explain the legal position in relation to which they have to be considered. To begin with the schemes now impugned have been formulated by the Corporation which is an independent semi autonomous body brought into existence by the State Government by acting under the Road Transport Corporation Act, 1950. Under section 68 C of the it is the Corporation which is the State Transport Undertaking which has to form the opinion whether "for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service it is necessary in the public interest whether the service should be run and operated by the State Transport Undertaking. " Secondly, it is the Corporation that has to be satisfied that such services should in public interests be provided "for any area or route". In the present case, it is undoubtedly the Corporation that has published the schemes under section 68 C in which these two matters are stated to have been considered and decided upon by the Corporation itself. It was not disputed by the appellants that whatever be the inclinations, desires or motives of the Chief Minister, if the Corporation had by an independent consideration of the situation decided on the formulation of the impugned schemes, their validity could not be successfully impugned mearly because the schemes satisfied the alleged grudge which the Chief Minister bore to the affected operators. The argument urged by the appellants on this part of the case was however tow fold: (1) That it was not in fact the Corporation that formed the opinion indicated in section 68 C but really the Chief Minister; (2) That the Chief Minister was motivated by extraneous considerations, namely, to strike at his political opponents who worked either against himself or his friends, supporters and relations in the elections in February, 1962 and had devised the schemes in order to cause them loss and compass their ruin. A subsidiary point was also urged that the Transport Minister who heard the objections under section 68 D(2) was also influenced by the Chief Minister. It was thus said that the Chief Minister dominated at every stage through 346 which the schemes passed and that the schemes were really the result of his improper motive to ruin his political opponents. It was again not disputed by the respondent that if these steps were made out the schemes would be invalid and ought to be quashed. The learned Judges of the High Court have on this part of the case held: (1) That the allegations made against the Chief Minister had not been proved; (2) Assuming, however, that the Chief Minister was actuated by political motives to hit at his opponents, still, the schemes which were published by the Corporation, had been framed by the Corporation not at the dictation of the Chief Minister, but as a result of their own independent judgment; and (3) Lastly the learned Judgesheld that there was no proof that the Transport Minister who heard the objections raised by the appellants to the schemes was influenced by the Chief Minister or acted at his behest, and therefore that the schemes framed and approved were fully in conformity with the requirements of section 68 C. The correctness of these conclusions have been challenged before us and the first matter that requires to be con sidered is as to whether the allegations against the Chief Minister have been made out. The question raised has manifestly to be considered from two aspects. The first is whether the facts alleged which were stated to have been the cause of the Chief Minister 's animus against the transport operators in the western part of Kurnool have been estab lished. In regard to this the first point to be noticed is that the contents of the affidavit were not vague, but details were given and these were: (1) The existence of two groups in the Congress Party at the time of the General Elections in 1962, the Chief Minister being the head of one of them and of the other Mr. Sanjivayya; (2) That at the last General Elections certain candidates who were named and who are stated to have belonged to the group of the Chief Minister were defeated; (3) The Constituencies where they stood were in the western portion of the Kurnool District; (4) That this defeat was occasioned by persons belonging to the other group in the Congress Party whose names are 347 also given (5) That several of these members supporting the dissident group were motor transport operators and who are stated to have taken a prominent part in the elections and in the defeat of the candidates belonging to the Chief Minister 's group; (6) The matters in relation to Ranga Reddy and his sons etc. These are what might be termed objective facts. If these allegations were held not proved, then the entire plea of the appellants on this part of the case fails, because there would be no foundation for the submission regarding the mala fides of the Chief Minister. If, how ever, these facts were held to be made out, the second aspect requires to be examined and that is whether the Court has material to hold that these facts led the Chief Minister to entertain feelings of personal hostility to these transport operators because of the aid and support the latter gave to the candidates belonging to the group opposed to him which led to the defeat of his partymen. On this aspect the allegations were that the Chief Minister felt chagrined at the defeat of his partymen and supporters and desiring to wreak his vengeance against the motor transport operators of the western parts of Kurnool, his political opponents, instructed the Corporation to change the order in which the districts should be taken up for nationalisation and had Kurnool taken up first, departing from what had been decided upon, just a little while previously by the Cor poration, and that the Corporation gave effect to these in structions and directions by not only taking Kurnool first, but even in that district eliminating the private operators from the western portions of the district who were the poli tical opponents of the Chief Minister. This, it is obvious, would be a matter of probabilities and of the inference to be drawn by the Court from all the circumstances on which no direct evidence can be adduced. It is, no doubt, true that allegations of mala fides and of improper motives on the part of those in power are fre quently made and their frequency has increased in recent times. It is also somewhat unfortunate that allegations of this nature which have no foundation, in fact, are made in 348 several of the cases which have come up before this and other Courts and it is found that they have been made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not some of it at least might stick. Consequently it has become the duty of the Court to scrutinise these allegations with care so as to avoid being in any manner influenced by them, in cases where they have no foundation in fact. In this task which is thus cast on the courts it would conduce to a more satisfactory disposal and consideration of them, if those against whom allegations are made came forward to place before the court either their denials or their version of the matter, so that the court may be in a position to judge as to whether the onus that lies upon those who make allegations of mala fides on the part of authorities of the status of those with which this appealis concerned, have discharged their burden of proving it. In the absence of such affidavits or of materials, placed before the Court by these authorities, the Court is left to judge of the veracity of the allegations merely on tests of probability with nothing more substantial by way of answer. This is precisely the situation in which we find ourselves in the present case. The learned Judges of the High Court have repelled the allegations contained in the affidavits which we have set out earlier on grounds and for reasons which do not appeal to us. As the learned Advocate General did not seek to support those grounds and that reasoning we do not consider it necessary to set them out or deal with them. If the reasons given by the learned Judges of the High Court be put aside, the position resolves itself into this that allegations with particularity and detail have been made in the petition. We are here having in mind the allegations we have enumerated and categorised earlier as objective facts. As to these there is no denial at all of them, not even by the Transport Minister who though he filed an affidavit, confined himself to the allegations regarding his having been dictated to by the Chief Minister when he approved the schemes, though it is obvious they are capable of denial and if need be with the same particularity with which they have been made in the petition. The learn 349 ed judges of the High Court have not rejected the allega tions regarding the objective facts on the ground of their patent improbability or absurdity, nor did the learned Advo cate General make any submission on these lines. The next question is as regards the inference to be drawn from these facts which in the absence of their denial have to be taken as true. It is here that we have felt the greatest uneasiness, because if the facts which serve as the foundation for the plea of mala fides are made out, the only question would be whether the inference of mala fides on the part of the Chief Minister would be a reasonable one to draw. It is at this point that we are faced with the neces sity of having to proceed without there being any effective answer to the propriety of drawing the inference which the appellants desire. There has been no denial by the Chief Minister, nor an affidavit by any person who claims or can claim to know personally about the truth about these alle gations. The Secretary to the Home Department one Mr. section A. lyengar has filed a counter affidavit in which the alle gations we have set out earlier have been formally denied. He says, "I have been expressly instructed and authorised by the Hon 'ble the Chief Minister to state that the allegations suggesting personal animus and giving mandate are false and mischievous and have been deliberately made to create an atmosphere of sympathy". The learned Advocate General did not suggest that the Court could act upon this second hand denial by the Chief Minister, as the statement by Sri section A. lyengar is merely hearsay. We are, therefore, constrained to hold that the allegations that the Chief Minister was motivated by bias and personal ill will against the appellants, stands unrebutted. The learned Advocate General realising this position, desired us to proceed on that basis and his submission was that assuming that the allegations made against the Chief Minister were made out and that he had bias and ill will against the appellants, still there was no proof that the Corporation which was an autonomous body was similarly moti vated and that unless the appellants were able to establish it, bias or ill will on the part of the Chief Minister would be irrelevant 350 We agree as already indicated that he is right in this submission. This takes us to the consideration of the ques tion as to whether the Corporation carried out the mandate of the Chief Minister as was alleged by the appellants or whether the impugned schemes were formulated by them as a result of the opinion which they themselves formed that they were necessary in public interest for the purposes set out in section 68 C of the Act. On this matter there is an affidavit by the Corporation denying the allegation made by the appellants that the Corporation acted merely as the tool of the Chief Minister in order to carry out his behest, and it is there asserted that the decision to frame the schemes was taken as a result of the independent opinion formed by them after an examination of the entire question. The acceptability of these rival assertions were debated before us most strenuously during the hearing of these appeals. Certain facts already set out have a bearing on this ques tion, and these we shall recall. The Anantharamakrishnan Committee had laid down the criteria for determining the order in which areas and routes had to be selected for nationalisation, and applying these principles had drawn up a list of the remaining districts in which nationalisation should be successively taken up. If that order was follow ed, Nellore would have been the next district to be taken up and the turn of the Kurnool District would have come up after nationalisation of the routes in the Nellore, Chittor and Cuddapah districts were completed. This report had been submitted to the, Corporation in February, 1961 and after further detailed examination of these recommendations the Corporation had accepted the recommendation regarding the order of the Districts to be taken up for nationalisation and had embodied this approval in its Administration Report dated March 24, 1962 which was published in April, 1962. It is only necessary to add that the Corporation had also had the routes in Nellore surveyed a little while before. In February, 1962, however, the general elections to the Assembly and the Parliamentary Constituencies had taken place and the allegations of the appellants related to the feelings that arose during the course of elections. The present Chief Minister assumed office as Chief 351 Minister on March 12, 1962. On April 19, 1962, it is ad mitted that he summoned a conference of the Corporation and its officials at which, and this also is admitted, he sug gested that the nationalisation of bus routes in the Kurnool District should be taken up first. Now the Chief Minister himself made a statement as to what he did at this meeting. It is the case of the appellants that it was the mandate given to the Corporation by the Chief Minister at this Conference that brought about this change in the order of the districts to be taken up for nationalisation and not the independent opinion of the Corporation as to what was needed in the public interest as required by section 68 C. As regards his part at the conference, the Chief Minister himself stated in the Assembly on July 26, 1962: "To say that the Corporation will do everything for the simple reason that it is an autonomous body, and also to say that we will not at all interfere, is not fair. It will not be fair. Now and then we shall have conferences. For example, the Corporation wanted to nationalise Chittoor district. We had discussions. Kurnool is surrounded by three nationalised districts; one side Mahaboobnagar, one side Guntur and the other side the district of Nellore which is going to be nationalised. I questioned as to why the district of Kurnool which is surrounded by three nationalised districts is left out, and instead the district of Chittoor which is abutting the borders of Madras and Bangalore is sought to be taken up. They could not explain. I said Kurnool district is a very compact one and three districts around it are nationalised. They thought that was more practicable and reasonable. Therefore they changed their minds. As a result of such dis cussions, once in a way we (Government) do interfere but will not interfere in day to day administration. " The conference, as stated earlier, addressed by the Chief Minister was on the 19th of April, 1962. This was follow 352 ed by the resolution of the Corporation of May 4, 1962. This ran: .lm15 "The Corporation noted the discussion which took place in the office of the Chief Minister on 19th April, 1962, in regard to programme of nationalisation of Road Transport Services during the Third Five Year Plan period and resolved that during the Third Five Year Plan three more districts in the order mentioned could be nationalised, viz., Kurnool, Nellore and Cuddapah in view of difficult financial position. . Chief Executive Officer explained that as there is a depot at Kurnool and as Kurnool is contiguous to the nationalised districts, it would be easier to nationalise Kurnool rather Nellore district. The nationalisation could be extended to the Nellore district after Kurnool district is nationalised. The Corporation therefore resolved that Kurnool district could be taken up for nationalisation in preference to Nellore. " In the counter affidavit which the Corporation filed to, the writ petition the Chief Executive Officer after denying that the Corporation was actuated by mala fides in framing the three impugned schemes, stated that the acceptance by the Corporation of the recommendation of the Anantharamakrishnan Committee was tentative and that it could not fetter them from discharging its powers and duties under the statute. It gave the following reasons for the decision to nationalise Road Transport Services in a part of the Kurnool district in preference to other areas: (1) because there is a Government depot at Kurnool, (2) Kurnool is contiguous to the entire Telangana area which is rationalised and also contiguous to the nationalised area of Guntur. It also stated that the choice was made in the interest of the maintenance of service contiguity and coordination and it added that "the impending completion of the Rangapur Bridge over the river Krishna, which when completed would facilitate the operation of direct services from Hyderabad through Kurnoof to the areas beyond. " Besides it 353 asserted that the Corporation which was an autonomous statutory authority was vested with powers under the Road Transport Act and it was ', therefore, malicious to allege that the decision by the Corporation to prepare the impugned schemes was either influenced by the, Chief Minister or was under a mandate from him and it asserted that in formulating the schemes the necessary opinion under section 68 C was formed by itself. The learned Judges of the High Court have accepted this statement, made on behalf of the Corporation and have repelled the attack made on it based on the schemes not having been formulated as a result of the opinion formed by the Corporation itself. The learned Advocate General commended this approach and this conclusion for our acceptance. He also pointed out that the Anantharama krishnan Committee had themselves indicated in paragraph 126 of their report that the order in which the new areas will be taken over for nationalisation might be decided by the Government, so that the order in which motor transport in the several districts should be nationalised, was not prescribed by the Committee as a rigid or hard and fast rule, but the order of the districts was treated even by them as a flexible one which was capable of and was intended to be, modified by the Government by making policy decisions on these matters taking into account not merely the finances available for nationalisation but also other relevant matters. We have given the matter our best consideration, but we are unable to agree with the learned Judges of the High Court in their conclusion. The first matter which stands out prominently in this connection is the element of time and the sequence of dates. We have already pointed out that the Corporation had as late as March, 1962 considered the entire subject and had accepted the recommendation of the Anantharamakrishnan Committee as to the order in which the transport in the several districts should be nationalised and had set these out in their Administration Report for the three year period 1958 to 1961. It must, therefore, be taken that every factor which the Anantha 134 159 S.C. 23 354 ramakrishnan Committee had considered relevant and material for determining the order of the districts had been independently investigated, examined and concurred in, before those recommendations were approved. It means that upto March April, 1962 a consideration of all the relevant factors had led the Corporation to a conclusion identical with that of the Anantharamakrishnan Committee. The next thing that happened was a conference of the Corporation and its officials with the Chief Minister on April 19, 1962. The proceedings of the Conference are not on the record nor is there any evidence as to whether any record was made of what happened at the conference. But we have the statement of the Chief Minister made on the floor of the State Assembly in which he gave an account of what transpired between him and the Corporation and its officials. We have already extracted the relevant portions of that speech from which the following points emerge: (1) that the Chief Minister claimed a right to lay down rules of policy for the guidance of the Corporation and, in fact, the learned Advocate General submitted to us that under the Road Transport Corporation Act, 1950, the Government had a right to give directions as to policy to the Corporation; (2) that the policy direction that he gave related to and included the order in which the districts should be taken up for nationalisation; and (3) that applying the criteria that the districts to be nationalised should be contiguous to those in which nationalised services already existed, Kurnool answered this test better than Chittoor and he, applying the tests he laid down, therefore suggested that instead of Chittoor, Kurnool should be taken up next. One matter that emerges from this is that it was as a result of policy decision taken by the Chief Minister and the direction given to the Corporation that Kurnool was taken up. for nationalisation next after Guntur. It is also to be noticed that if the direction by the Chief Minister, was a policy decision, the Corporation was under the law bound to give effect to it (vide, section 34 of the Road Transport Corporation Act, 1950). We are not here concerned with the question whether a policy decision contemplated by section 34 of the Road Transport Act could relate to a matter which under section 68 C of the Act is left to the unfettered discretion and judg 355 ment of the Corporation, where that is the State Undertak ing, or again whether or not the policy decision has to be by a formal Government order in writing, for what is rele vant is whether the materials placed before the Court estab lish that the Corporation gave effect to it as a direction which they were expected to and did obey. If the Chief Minister was impelled by motives of personal ill will against the Road Transport Operators in the western part of Kurnool and he gave the direction to the Corporation to change the order of the districts as originally planned by them and instead take up Kurnool first in order to prejudicially affect his political opponents, and the Corporation carried out his directions it does not need much argument to show that the resultant scheme framed by the Corporation would also be vitiated by mala fides notwithstanding the interposition of the semi autonomous Corporation. It is also to be noticed that the Chief Minister in his statement to the Assembly stated that when he made an enquiry of the Corporation as to why they did not choose Kurnool as the next district, the officials of the Corporation had no answer to give. It is somewhat remarkable that the Corporation and its officials should have remained silent and tongue tied notwithstanding that its Vice Chairman was a member of the Anantharamakrishnan Committee and had as a member thereof considered the entire question in all its aspects and laid down (1) the criteria for determining the order of priority; and (2) by applying these tests had laid down the priorities among the districts and more than this, the entire body of the Corporation had considered the several recommendations of the Committee in their report and while rejecting some had accepted this particular recommendation regarding the order in which the districts should be taken up and this last one had happened within a month or so before the conference addressed by the Chief Minister. If in these circumstances the appellants allege that whatever views the Corporation entertained they were compelled to or gave effect to the wishes of the Chief Minister, it could not be said that the same is an unreasonable inference from facts. It is also somewhat remarkable that within a little over two weeks from this Conference by its 356 resolution of May 4, 1962, the Corporation dropped Nellore altogether, a district which was contiguous to Guntur and proceeded to take up the nationalisation of the routes of the western part of the, Kurnool district and were able to find reasons for taking the step. It is also worthy of note that in the resolution of the 4th May, 1962, of the Cor poration only one reason was given for preferring Kurnool to Nellore, namely, the existence of a depot at Kurnool because the other reason given, namely, that Kurnool was contiguous to an area of nationalised transport equally applied to Nellore and, in fact, this was one of the criteria on the basis of which the Anantharamakrishnan Committee itself decided the order of priority among the districts. As regards the depot at Kurnool which was one of the two reasons set out in the resolution for the choice of that district in the first instance, learned Counsel for the appellants submitted that this reason was one invented to justify the Corporation 's action directed against them and to obviate the comment that the reason for the change was political and not for providing an adequate service for the area. He submitted that the so called depot was merely a garage with a few repairing tools and not any full fledged repairing workshop. None of the affidavits filed on behalf of the appellants, however, made any allegation regarding the nature of the facility afforded at this 'depot and so we are not in a position to act merely on the arguments adduced to us at the bar. It has however to be noticed that the existence of this 'depot ' at Kurnool escaped the notice of the Anantharamakrishnan Committee, who in their report have devoted some attention to the need for depots and the equipment these should possess and referred to certain deficiencies which they noticed in the depots which they inspected. The officials of the Corporation did not evi dently bring this depot at Kurnool to the notice of the Com mittee. Again, when in their Administration Report, the Corporation accepted the recommendations as regards the order in which the districts, should be nationalised, the existence of this depot at Kurnool seems also to have escap ed the attention of the Corporation itself, as a factor to be taken into account in making the choice of the district. But we are basing no; conclusion on this feature. 357 When the Transport Corporation, however, filed the counter affidavit it was not content to rest merely with the reasons given in the resolution as those which were taken into account in arriving at the decision but added one more, namely, the impending completion of the bridge at Rangapur across the Krishna as a further reason which had been taken into account for arriving at a decision. What the Court is concerned with and what is relevant to the enquiry in the appeal is not whether theoretically or on a consideration of the arguments for and against, now advanced the choice of Kurnool as the next district selected for nationalisation of transport was wise or improper, but a totally different question whether this choice of Kurnool was made by the Corporation as required by section 68 C or, whether this choice was in fact and in substance, made by the Chief Minister, and implemented by him by utilising the machinery of the Corporation as alleged by the appellants. On the evidence placed in the case we are satisfied that it was as a result of the conference of the 19th April, 1962, and in order to give effect to the wishes of the Chief Minister expressed there, that the schemes now impugned were formulated by the Corporation. The next submission of the learned Advocate General was that even assuming the Chief Minister directed the order in which districts were to be taken up for nationalisation, still the scheme framed by the Corporation could not be assailed as not in conformity with the requirements of section 68 C of the Act so long as the choice of the "area" in which and the routes in it to be run by the Corporation was made by them alone. This argument proceeds from the circumstance that even taking it that the Chief Minister directed the Corporation to take up the nationalisation of the routes in the Kurnool district in the first instance, there was no allegation that he gave any direction regarding the area in the district and the routes. We fail to see any force in this argument. If the choice of the district was that of the Chief Minister, the fact that within the area of the district pointed out to them, the Corporation selected some area within the district and the routes within that area, 358 cannot on any reasonable construction of section 68 C be a sufficient compliance with the statute. We are disposed to read the word 'area ' in the section as meaning such 'area ' in the entire State as the Corporation should consider proper and not as the learned Advocate General would read as area within a circumscribed part of the State determined by an outside authority. Besides . there is really little or no explanation forth coming from the Corporation for choosing the western part of the Kurnool district for the exclusion of the private ope rators in the first instance. The principal allegation regarding mala fides on the part of the Chief Minister made by the appellants was directed to demonstrate that the object of the present schemes was to eliminate operators whose routes lay on the western side of the district. It is also stated in the affidavits that the friends or supporters of the Chief Minister were operating motor transport in the eastern part of Kurnool. Therefore it might be expected that the counter affidavits filed offered a rational explanation as to why this portion of the Kurnool district was chosen in the first instance in preference to the other portion of the district. Needless to say the resolution of the Corporation of May 4, 1962, offers no assistance in this matter and a,,; we have said earlier though the counter affidavits contained a denial of the allegation that the Corporation was acting at the behest of the Chief Minister, there is no explanation for the choice of the western portion. Our conclusion therefore is that the impugned schemes are vitiated by the fact that they were not in conformity with the requirements of section 68 C. The next question is as regards the approval of the schemes by the Transport Minister under section 68 D(3). It was the case of the appellants that just like the Corporation, the Transport Minister also merely, carried out the wishes of the Chief Minister and that therefore the approval by the Transport Minister must be held to be vitiated by the mala fides of the Chief Minister. In regard to this, however, two matters have to be remembered. The first is that there is nothing on the record to show that the Chief 359 Minister influenced his colleague and beyond the fact that both the Chief Minister as well as the Transport Minister are members of the same Council of Ministers, there is nothing to indicate that the Chief Minister influenced the Transport Minister. The other matter is that the Transport Minister had stated on oath that in considering the objec tions under section 68D(3) and approving the schemes he was uninfluenced by the Chief Minister. We, therefore, consider that there is no basis for holding that the Transport Minister 's approval of the schemes does not satisfy the re quirements of the law. In view that we take the schemes have to be set aside as not in conformity with section 68 C of the Act, the other objections raised do not require consideration but in view, however, of the arguments addressed to us on them we shall briefly deal with them. The next point that was urged was that the schemes were not in conformity with section 68 C of the Act for another reason. A scheme to be published by the Transport Undertaking is required by section 68 C to give "particulars of the nature of the services proposed to be rendered and such other particulars respecting thereto as may be prescribed", prescribed, of course, meaning "prescribed by rules". These particulars, it is obvious, are required to be set out in the scheme, so that (a) transport operators running vehicles on the routes might know that they are affected by the scheme and might, if they see sufficient reason therefor, prefer objections under section 68 D(1); and (b) the operators and others formulate their objections properly, particularly in the matter of pointing out the deficiency or inadequacy of the schemes or the services proposed to be run under the schemes for the approving authority to consider. It was urged on behalf of the appellants that the impugned scheme did not furnish particulars required by this provision. The draft scheme, as published under section 68 C, and that as approved finally, contains six columns which are respec tively headed (1) Serial Number; (2) Name of the Route, indicating its course; (3) Length of the route in miles; (4) 360 Number of vehicles proposed to be operated on each route , (5) Total number of trips each way to be performed on each route; and (6) The nature of the services. columns 4 and 5 do not contain the precise number of vehicles proposed to be operated or the precise total of the trips each way to be performed daily. But on the other hand each of these columns is sub divided into two 4 and 4(a), 5 and 5 (a). Under column 4 is given the minimum number of vehicles proposed to be operated and under 4(a) the maximum number. Similarly column 5 sets out the minimum number, of total trips each way and 5 (a) the maximum number. Now in several of these the variation between the maximum and the minimum in columns 4 and 5 is 1 to 2 i.e. if one is the minimum two is the maximum, and similarly if two is the minimum, four is the maximum, but there are others in which the variation is even more pronounced. for instance, in scheme number one, in serial number 15 the minimum is one and the maximum three in both columns 4 and 5 and in serial number 16 the proportion between, the maximum and minimum is even more pronounced for in column 4 it is 1 to 4. The position is similar in regard to serial No. 20. The objection that is raised to this method of specifying the maximum and the minimum of the number of vehicles which will be put on the route and the number of trips which these vehicles will operate is, that one of the objects of the schemes is the provision, among others, of an adequate road transport service. It is common ground that the persons affected by the schemes may object to the scheme on the ground that it does not offer an ade quate service and that this would be a relevant matter for consideration by the authority approving the scheme. It is, therefore, urged on behalf of the appellants that the schemes as promulgated which disclose not the actual number of vehicles that would run or the number of trips which the vehicles would make, do not enable the affected objectors to raise their objections to the adequacy of the service pro posed and similarly do not afford requisite information to the approving authority under section 68D(3) to decide whether to approve the scheme or not. Besides this general objection, it is pointed out that the specification of a minimum 361 and a maximum in columns 4 and 5 is contrary to what has been prescribed by the Andhra Pradesh Motor Vehicles Rules, 1957, made in relation to "the particulars to be contained in schemes under Ch. IV A." Rule 4 of these Rules which have statutory force under section 68 C requires draft schemes and approved schemes to contain inter alia "the number of vehicles proposed to be operated on each route and the total number of trips to be performed daily on each route. " By a rule framed on the 26th of December, 1958, the State Government framed a rule numbered as Rule 5 of these Rules which reads: "5. The State Transport Undertaking may at its discretion, vary the frequency of services on any of the notified routes or within any notified area having regard to the needs of traffic during any period, either by increasing or decreasing the number of trips of the existing buses or by increasing or decreasing the number of buses. " The validity of Rule 5 was one of the matters that was raised for consideration by this Court in Dosa Satyanaraya namurty etc. vs The Andhra Pradesh State Road Transport Corporation(1) and this Court held that Rule 5 was repugnant to section 68 E which reads: "Any scheme published under sub section (3) of section 68 D may at any time be cancelled or modified by the State Transport Undertaking and the procedure laid down in section 68 C and section 68 D shall, so far as it can be made applicable be followed in every case where the scheme is proposed to be modified as if the modifications proposed were a separate scheme." and struck it down. Thereafter rule 5 was deleted, but rule 4 remains as we have set out. The question for con sideration is whether the prescription of maxima and minima in columns 4 & 5 is in conformity with the requirements of Rule 4. It was submitted on behalf of the appellants (1) that the reason why these maxima and minima were put 362 down in the schemes, contravening Rule 4, was in reality to avoid the operation of section 68 E and to get over the decision of this Court striking down Rule 5 and that for the same reason which underlay the decision of this Court in Dosa Satyanarayanamurty 's case(1) the prescription of maxima and minima contravened section 68 E as it operates in no way dissimilar to Rule 5 and that as this vice pervades the entirety of the scheme as published, all the three schemes should be set aside. In further support of their submission the appellants relied on the affidavit filed by the Assistant Secretary to the Transport Department who stated that the prescription of maxima and minima was adopted because "it enabled the Corporation to provide adequate services with reference to the public needs, without having to go through the elaborate gamut of modifying the approved scheme for the purpose." The learned Judges of the High Court have repelled this contention on the ground of the analogy furnished by sections 46 and 48 of the Act under which applications for State carriage permits by private operators and the permits grant ed to them are required to state the minimum and maximum number of daily services proposed to be provided in relation to each route or area, was an indication that a scheme specifying the maxima and minima of the number of buses and services was in conformity with and did not contravene Rule 4. The learned Advocate General adopted the same line of argument and submitted that the language of Rule 4 did not in terms prohibit the specification of a minimum and maximum and that Rule 5 which this Court struck down as being repugnant to section 68 E was attracted only when the maxima or minima set out in the scheme was departed from. He, however, conceded that the gap, between the minimum and the maximum specified in a scheme might be so wide as to render the same a contradiction of Rule 4 but he submitted that the variations in the 3 schemes before us between columns 4 and 4 (a) and columns 5 and 5 (a) respectively were so slight as not to amount to a failure to fix the number of vehicles to be operated or the trips they would do on the routes. (1) 363 In the case before us in view of the conclusion we have reached that some of the variations between the maxima and the minima in the number of vehicles proposed to be operated on each route are such as, adopting the test suggested by the learned Advocate General himself, to really contravene Rule 4 we have not thought it necessary to finally decide the larger question, whether the mere prescription of the maxima and minima, particularly for the reasons set out in the affidavit of the Assistant Secretary to the Transport Department, constitutes a violation of section 68 E as also of Rule 4 of the Motor Vehicles Rules, 1957 as to require the same to be struck down. We might, however, mention in passing that we are not much impressed by the argument based on sections 46 and 48. It must be remembered that we are concerned with a requirement of Ch. IV A and under section 68 B of the Act, not only the provisions of that Chapter but the rules made thereunder are to have effect notwithstanding anything in Ch. IV in which section 46 and section 48 occur. This apart, the rule making authority had the analogy of the provisions of sections 46 and 48 before it, but yet chose not to adopt the same phraseology as was employed in these sections. Besides, as the provisions of Ch. IV A invade the rights of private operators to carry on business and is justified as a reasonable restriction on their rights in public interest, it might very well have been considered that a more precise indication should be afforded by the scheme to enable its adequacy to be tested by the quasi judicial procedure which has to be followed before the scheme becomes effective. However, as stated already, there is no need to decide this matter finally in view of our conclusion that the scheme contravenes Rule 4 even on the test submitted by the Advocate General. In saying this we have in mind routes 15, 16, 18 and 20 of scheme No. 1 in which the variation in the number of vehicles is 1 to 3, 1 to 4 and 3 to 8 and similarly in scheme No. 2 route No.1 where the variation is 6 to 12 and in scheme No. 3 route No. 1 the variation is 5 to 9. We might mention that we have taken into account not merely the proportion but the variation in the number. We have set these out as merely illustrative and we have not thought it necessary to make an exhaustive list of all the routes. 364 The next objection was that some of the routes included in the scheme were inter State routes and that under the proviso to section 68D(3) it could not be deemed to be an ap proved scheme unless the previous approval of the Central Government had been obtained. We consider this objection as without force. The route which is proposed to be nationalised under the scheme admittedly lies wholly within the State. The right of the private operators to ply their vehicles beyond the State border is not affected by any of the schemes. It would, therefore, follow that the proviso to section 68 D(3) is not attracted and consequently the scheme does not suffer from the defect alleged. The next point made was that the language employed to indicate the nature of the service in column 6 of the schemes was vague, with the result that operators who had, in fact, been affected by the scheme understood the words employed as not affecting them and consequently did not make objections as they were entitled to under section 68 D(2). We have examined the language employed and we consider that the submission does not deserve serious consideration nor we are satisfied that any party was really misled by ambiguous phrasing of column 6 of the scheme. In fact, learned Counsel did not press this objection after the matter was discussed during arguments. The next series of objections to the schemes are those which arise in Civil Appeals Nos. 771 to 778. The point most strenuously contended related to an illegality which was alleged to have occurred in the implementation of the scheme. Under section 68 (1) the State Transport Undertaking has to make the application in the manner specified in Chapter IV A for "a Stage Carriage permit. . . "to the Regional Transport Authority" and that Authority is directed to grant the permit to the Undertaking notwithstanding anything to the contrary in Ch. In accordance with the provisions of this section the State Road Transport Corporation made an application for the grant of permits to the Regional Transport Authority. The objection raised is that the application had to be made not to the Regional Transport Authority but only to the State Transport Autho rity which authority alone, it is urged, is competent to en 365 tertain applications for the grant of permits where the length of the route is 100 miles or over and such route is over a Trunk Road. Three of the routes in scheme 2 with which Civil Appeal Nos. 773, 776 and 777 are concerned are of a length beyond 100 miles and the roadway on which the route lies are admittedly Trunk Roads. Under Rule 141 of the Madras Rules permits on routes covering a distance of over 100 miles on Trunk Roads could be granted only by the State Transport Authority. It was this Authority that had granted the permits to operate on these three routes to the respective appellants in these appeals. The argument is that even when a Transport Undertaking applies for a stage carriage permit under section 68 F(1) it must comply with the provisions of Rule 141. On the basis of this reasoning the appellants in these three Civil Appeals have applied for a writ of prohibition against the Regional Transport Authority before whom the applications have been filed. Section 68 F(1) reads: "68 F(1). Where, in pursuance of an approved scheme any State transport undertaking applies in the manner specified in Chapter IV for a stage carriage permit or a public carrier 's permit or a contract carriage permit in respect of a notified area or notified route, the Regional Transport Authority shall issue such permit to the State transport undertaking, notwithstanding anything to the contrary contained in Chapter IV. " The learned Judges of the High Court have held that the Regional Transport Authority which is specifically mentioned in section 68 F(1) is empowered to issue the permit to the transport undertaking "notwithstanding anything to the contrary contained in Chapter IV" and that the section rendered the provisions of Rule 141 of the Motor Vehicles Rules inapplicable to cases covered by section 68 F(1). We find ourselves in agreement with this view. Besides, section 68 B of the Act enacts: "68 B. The provisions of this Chapter and the rules and orders made thereunder shall have effect 366 notwithstanding anything inconsistent there with contained in Chapter IV of this Act or in any law for the time being in force or in any instrument having effect by virtue of any such law. " Therefore any provisions in Chapter IV which are in consistent with those contained in Chapter IV A would to that extent be superseded. No doubt, section 68 F(1) speaks of an application in the manner specified in Ch. IV which if the words stood alone are capable of being understood as meaning the authority to whom the application has to be made, but as the authority to issue the permit in pursuance of the application is specified as the Regional Transport Authority and as that authority is directed to issue the permit notwithstanding anything in Ch. IV so much of Ch. IV or the Rules made thereunder, which specify the authority to grant the permit as being someone other than the Regional Transport Authority, is to that extent superseded. It was pointed out that under Rule 141 the State Transport Autho rity was itself vested with the powers of the Regional Transport Authority where the route was of the description mentioned earlier, but this, in our opinion, makes no difference. No doubt, in a State where there is no Regional Transport Authority at all [vide e.g. proviso to section 44(1)], but there is some other authority which functions as the Regional Transport Authority for the purposes of the Art, such an Authority might be that which would be comprehended by section 68 F(1) but where as in Andhra Pradesh there is admit tedly a Regional Transport Authority, we cannot accede to the submission that such authority is deprived of the power to issue a permit by reason of section 68F(1) merely because the Regional Transport Authority of that area cannot grant permits under Ch. IV There were certain other points urged in Civil Appeal No. 771 which arose only if the Regional Transport Authority to whom applications under section 68 F(1) were made, was not competent to entertain application and issue a permit. In view of our conclusion as regards the point urged in Civil Appeal No. 771 of 1963 do not arise. 367 There remains for being dealt with one minor point which was urged in Civil Appeals Nos. 883 and 884 which we consider entirely without substance. The point was that the description of the route in the scheme was too vague and misleading, so much so that the appellants did not file their objections before the Government. Taking the case of Civil Appeal No. 883, it is by an operator who runs a service from Uravakonda to Adoni. Serial No. 16 of scheme No.1 describes the route as Adoni to Uravakonda. It was urged that as the scheme notified the route Adoni to Ura vakonda but not Uravakonda to Adoni, the appellant thought that his route was not affected. The objection is on its very face frivolous because throughout the scheme, it is only the terminal points that are specified and that speci fication carries with it and obviously implies that the ope ration of transport between the two terminii is intended to be nationalised. The complaint in Civil Appeal No. 884 is the same, only the route is different. This completes all the points that are urged before us. In view of our conclusion that the schemes are vitiated by non compliance with the requirements of section 68 C and the Rules made thereunder, we hold that they have to be quashed as not warranted by law. The appeals are accordingly allowed and the appellants are granted a declaration that the schemes are invalid and cannot be enforced. The appellants would be entitled to their costs here and in the High Court one hearing fee '. Appeals allowed. AYYANGAR J. When the judgment in the above appeals was pronounced on January 27, 1964 the learned Advocate for the appellants brought to our notice the following order passed by this Court on June 10, 1963 when the interim stay of the operation of the schemes which are impugned in the above appeals, was vacated on the opposition by the State Government: "Stay vacated on the learned Advocate General for Andhra Pradesh giving an undertaking that 368 in case the appeals succeed, the State will compensate the appellants for the loss incurred by them during the period that the appeals were pending in this Court by reason of the fact that they were not allowed to ply their buses on the routes under the respective permits granted to them. The learned AdvocateGeneral further undertakes that this amount of compensation will be determined in the present proceedings themselves. No order as to costs. " The learned Counsel requested us that we should give some directions in terms of this undertaking.

The respondent corporation appointed an expert committee to go into the question as to the working of nationalised transport in the State. The Committee laid down the criteria for determining the order in which 331 areas and routes had to be selected for nationalisation and had drawn up a list of the remaining districts in which nationalisation should be successively taken up. Accordingly, Nellore would have been the next district to be taken up and the turn of Kurnool district would have come up after nationalisation of the routes in Nellore, Chittore and Cuddapah districts were completed. This report was submitted to the Corporation in February, 1961 and the Corporation accepted it and embodied the approval in its Administration Report dated March 24, 1962 which was published in April, 1962. After the General Election in 1962 the Chief Minister assumed office as Chief Minister on March 12, 1962. On April 19, 1962, he summoned a conference of the Corporation at which, he suggested that the nationalisation of bus routes in the Kurnool district should be taken up first. By its resolution dated 4 5 1962, the Corporation made an alteration in the order of the districts, successively to be taken up for nationalisation and selected the western half of the Kurnool as the area to be nationalised in the first instance. The appellants, motor transport operators whose routes were all in western half of the Kurnool districts filed objections to the Schemes before the Transport Minister. The Transport Minister approved the schemes. Thereafter, the Corporation applied to the Regional Transport Authority for permits. The appellants then challenged the validity of the schemes in the High Court and in support of that allegations were made in the affidavit that the Chief Minister was motivated by bias and personal ill will against the appellants, that he felt chagrined at the defeat of his partymen and supporters and desiring to wreak his vengeance against the motor transport operators of the western parts of Kurnool, his political opponents, instructed the Corporation to change the order in which the districts should be taken up for nationalisalion and that the corporation gave effect to these instructions and directions. These allegations were not denied by the Chief Minister, nor was an affidavit filed by any person who could claim to know personally about the truth about these allegations. The High Court repelled these allegations and dismissed the petition. On appeal by certificate the appellants mainly contended: (1) that the schemes did not in reality reflect the opinion of the Corporation as required by section 68 C of the Act, but that the schemes owed their origin to the direction of the Chief Minister who acted malafide in directing the Transport Undertaking to frame the impugned schemes; (2) that the approval of the schemes by the Transport Minister under section 68 D(3) must be held to be vitiated by the malafides of the Chief Minister; (3) that the impugned schemes did not conform to the statutory requirements of section 68 C and rule 4 of the Rules regarding the particulars to be embodied in the schemes; (4) that some of the routes included in the schemes were inter state routes and that under the proviso to section 68 D(3) it could not be deemed to be an approved scheme unless the previous approval of the Central Government had been ob tained and (5) that even when a transport undertaking applies for a stage carriage permit under section 68 F(1) it must comply with the provisions of r. 141 of the Rules. Held: (1) On the evidence placed in the present case it must be held that it was a result of the conference of the 19th April, 1962 and in 332 order to give effect to the wishes of the Chief Minister expressed there, that the impugned schemes were formulated by the Corporation and therefore, it would be vitiated by malafides notwithstanding the interposition of the semi autonomous corporation. Though the counter affidavits contained a denial of the allegation that the Corporation was acting at the behest of the Chief Minister, there was no explanation for the choice of the western portion of Kurnool district Therefore, the impugned schemes were vitiated by the fact that they were not in conformity with the requirements of section 68 C of the Act. (ii) There was nothing on the record to indicate that the Chief Minister influenced the Transport Minister. Besides, the Transport Minister stated on oath that in considering the objections under section 68 D(3) and approving the schemes he was uninfluenced by the Chief Minister. Therefore, it cannot be held that his approval of the schemes did not satisfy the requirements of the law. (iii) In the present case some of the variations between the maxima and minima in the number of the vehicles proposed to be operated on each route were such as to really contravene r. 4 of the Andhra Pradesh Motor Vehicles Rules. Dosa Satyanarayanamurthy vs The Andhra Pradesh State Transport Corporation, , referred to. (iv) The route which was proposed to be nationalised under the scheme admittedly lay wholly within the State. The right of the private operators to ply their vehicles beyond the State border was not affected by any of the schemes. Therefore, the proviso to section 68 D(3) was not attracted and consequently the schemes did not suffer from the defects alleged. (v) The High Court was right in holking that the Regional Transport Authority which is specifically mentioned in section 68 F(1) is empowered to issue the permit to the transport undertaking "notwithstanding anything to the contrary contained in Chapter IV" and that the section rendered the provisions of r. 141 of the Motor Vehicles Rules inapplicable to cases covered by section 68 F(1). No doubt, in a State where there is no Regional Transport Authority at all, but there is some other authority which functions as the Regional Transport Authority for the purposes of the Act, such an authority might be that which would be comprehended by section 68 F(1) but where as in Andhra Pradesh there is admittedly a Regional Transport Authority, it cannot be held that such authority is deprived of the power to issue a permit by reason of section 68 F(1) merely because the Regional Transport Authority of that area cannot grant permits under Chapter IV. 333

ivil Appeal No. 145 of 1979. From the Judgment and Order dated 19.7.78 of the Andhra Pradesh High Court in Writ Petition Appeal No. 137/1978. A. Subba Rao, P. Parmeshwaran and Ms. section Relan for the Appellants. K. Ram Kumar for the Respondent. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by special leave is against the judgment of the Andhra Pradesh High Court in a writ appeal agrising out of the judgment of a learned Single Judge in an application under Article 226 of the Constitu tion. The respondent on taking premature retirement on compas sionate ground from the Indian Army at the age of 33, was offered appointment as Assistant Commandant in the Central Reserve Police Force (CRPF for short) and was given appoint ment initially for a period of three years. Early in 1970 he was promoted on temporary basis as Commandant on the basis of selection. In October 1970, the President sanctioned his continued re employment for one year as Commandant. The respondent was asked to opt for absorption. In the meantime, his promotional appointment as Commandant was extended from time to time. In June 1976, he was informed by the Director General of the C.R.P.F. that in view of the Rule 107 of the Central Reserve Police Force Rules, 1955, he was not enti tled for absorption in the Force. A representation of the respondent was rejected by the President. Thereupon, he applied to the Andhra Pradesh High Court under Article 226 of the Constitution for a direction for his absorption 384 in the Force. The learned Single Judge referred to Rule 105 which deals with recruitment and Rule 107 dealing with tenure and on the basis that there was nothing in these rules to disentitle a retired or released army officer from absorption, directed the appellants to consider the respond ent 's permanent absorption. The Division Bench upheld the direction and dismissed the appeal of the appellants. Rule 105(3 A) dealing with recruitment, inter alia, provides that the post of Assistant Commandant shall be filled: "(i) xxx xxx xxx xxx (ii) by re employment of retired or released Army Officers or substantive Majors of the Territorial Army or Indian Police Service Officer (Senior Scale) or with four years of service as such or State Police Officers holding the posts of Superintendent of Police or equivalent Posts preferably with experience of Armed Police duties or Assistant Commandants of the Central Reserve Police Force or (iii) xxx xxx xxx xxx. " Indisputably the respondent had been recruited as Assistant Commandant on the footing that he was a retired/released Army Officer. Rule 107(2) dealing with tenure then provided: "In the case of retired/released Army Offi cers, they will be under re employment for an initial period of one year, extendable by mutual consent for one year, at a time subject to premature termination should administrative exigency, and or unsuitability or any other unforeseen factors so demand. The service shah be temporary subject to all rules and orders applicable to the Central Government employees in temporary service in general." (underlining is emphasised) Sub rule (2) has been substituted with effect from 20th september, 1985. The notification of that date clearly provides that he amendment comes into force on the date of publication in the official gazette. The amended rule runs thus: "(a) In the case of officers re employed after they had 385 retired/discharged/released from Army prior to the attainment of age of superannuation in the civil posts, will, if appointed to civil posts, be treated as direct recruits and their seniority in the grade fixed accordingly as under: (i) the inter se seniority of persons so re employed shall be determined in accordance with the orders of their selection; (ii) the relative seniority of persons so re employed in relation to direct recruits and promotees shall be determined on the basis of chronology of selection; (iii) their confirmation and promotion to higher posts would take place with reference to seniority so fixed subject to fulfillment of other laid down conditions regarding proba tion. (b) The ex army officers re employed after they have attained the age of superannuation in civil posts shall not form part of the cadre and would be treated as if appointed on contract basis and such re employments on contract basis shall be extendable on year to year basis." Rule 107(2) made under the Central Reserve prior to the amendment of 1985 clearly provided that the service shall be temporary and rules and orders applica ble to Central Government employees in temporary service would apply. It is true that Rule 105(3 A) dealing with the post of Assistant Commandant prescribes three alternate modes of recruitment. Rule 107 provided that in case of recruitment by the second mode in Rule 105(3 A) temporary status only would be conferred. Absorption on permanent basis would run counter to the scheme of the rules. The High Court has found as a fact that the departmental authorities called for the option of the respondent for absorption. Such a step con trary to the statutory rules would not operate as an estop pel nor confer any right to claim absorption. The scheme of the rule is indicative of the position that in regard to that category of officers benefit of absorption was not admissible and we are inclined to agree with the submission of the appellants that the High Court was in error in saying that there was nothing which stood in the way of absorption. 386 It is a fact that the respondent has been given a promo tion and in the promotional post he has worked for about 16 years. On the basis of such promotion on temporary basis the respondent would not be entitled to absorption as well. The respondent was being continued in the promotional post by orders of the President from time to time which is clearly indicative that the arrangement was on temporary basts. Even though under sub rule (2) of Rule 107 as it stood, the respondent was not entitled to claim absorption, he is certainly entitled to the benefit of the amended provision from 20th September, 1985. Sub rule (2) as amended in terms applies to him and counsel for the appellants has also accepted this position. Therefore, the respondent is enti tled to absorption in the cadre with effect from the date the amended rule came into force and he is, therefore, to be confirmed in the post of Commandant and absorbed in the appropriate cadre from that date. Admittedly the respondent has put in continuous service of more than 20 years in the Force and it would be totally unjustified to deprive him of credit of service. Though he may not be entitled to other advantages of such service prior to the date of absorption, in our view, he should be entitled to count that period for pension entitlement. We, therefore, allow the appeal to the extent that the direction of the High Court to absorb the respondent from the date of his appointment stands set aside and in its place the respondent shall be entitled to absorp tion with effect from 20th September, 1985. His seniority in the post of Commandant shall run from that date and he would be entitled to all service advantages on the basis of such absorption from September 1985. He would, however, be enti tled to credit of continuous service for the entire period of service as Assistant Commandant and Commandant for the limited purpose of pension. Learned counsel for the respondent pointed out in course of argument that there were some similarly placed officers as the respondent but they have been given the benefit of absorption. This is a matter which the appellants should look into and anomaly on such score should be considered by them. In the absence of such officers, if any, we are not inclined to give any direction to deprive them of any bene fit which may have been obtained by them. Both parties are directed to bear their own costs throughout. M.L.A. Appeal allowed.

The respondent had been recruited as Assistant Comman dant in the C.R.P.F. under Rule 105(3 A) of the Central Reserve Police Force Rules, 1955 on the footing that he was a retired Army Officer. He was promoted on temporary basis as Commandant on the basis of selection. His promotional appointment as Commandant was extended from time to time. On being informed by the Authorities that he was not entitled for absorption in the Force in view of Rule 107(2) of the Rules, he made a representation to the President. The said representation having been rejected by the President, he filed a writ petition in the High Court for a direction for his absorption in the Force. A Single Judge of the High Court allowed the writ petition. The Division Bench also upheld the decision of the Single Judge. Hence this appeal by special leave. During the pendency of the appeal, sub rule 2 of Rule 107 was substituted with effect from 20th September 1985. It provides that any officer re employed after he has retired from Army prior to the attainment of the age of superannua tion in the civil post, will, if appointed to civil post be treated as direct recruit and his seniority in the grade fixed accordingly. Allowing the appeal by the appellant in part. HELD: (1) Sub rule(2) of Rule 107 of the Rules as amend ed in terms applies to the respondent. He is entitled to absorption in the cadre with effect from the date the amend ed rule came in force and he is, therefore, to be confirmed in the post of Commandant and absorbed in the appropriate cadre from that date. He would, however, be entitled to credit of continuous service for the entire period of serv ice as Assistant Commandant and Commandant for the limited purpose of pension. [386B C; F] 383 (2) Rule 107(2) made under the Central Reserve prior to the amendment of 1985 clearly provided that the service shall be temporary and rules and orders applicable to Central Government employees in temporary service would apply. The scheme of the rule is indicative of the position that in regard to officers recruited under Rule 105(3 A), benefit of absorption was not admissible. Absorp tion on permanent basis would run counter to the scheme of the rules. Therefore, the direction of the High Court to absorb the respondent from the date of his appointment stands set aside. [385E H]

Civil Appeal No. 1348 (NT) of 1974 From the Judgment and order dated 7.1.1974 of the Allanabad High Court in I.T.R. No. 364 of 1971. S.C. Manchanda, V.J. Francis, N.M. Popli and Ujjal Singh for the Appellant. V. Gouri Shankar and Miss A. Subhashini for the Respondent. The Judgment of the Court was delivered by PATHAK, J. This appeal is directed against the judgment of the Allahabad High Court answering the following question in the negative: "1. Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the provisions of sections 10(2) (vii) of the Income tax Act, 1922 were not attracted? 2. Whether on the facts and in the circumstances of the 201 case, the Tribunal was justified in holding that the sale had taken place before 1.4.1956 and, therefore, the provisions of section 12B of the Income tax Act 1922 were not attracted?" The assessee, a public limited company, was put into liquidation under the orders of the Allahabad High Court. An amount of Rs. 8,58,893/5/6 was payable by the assessee to the State of Uttar Pradesh on account of arrears of cane cess. In proceedings for recovery of that amount as arrears of land revenue, the Collector of Deoria attached the assessees mills and put them to auction sale on November 10, 1955. The land, building, machinery and parking grounds were sold for Rs. 24,00,000 while the moveable properties including mill stores, spare parts, tools and equipment were sold for Rs. 1,80,000. All the properties were purchased by the Kanpur Sugar Works (P) Ltd., Although the sale was held on November 10, 1955, the sale certificate under rule 285 M of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 could not be issued till July 4, 1956 on account of objections raised by the assessee, in spite of the fact that the entire amount of purchase money of Rs.25,80,000 had been paid by the purchasers on December 8, 1955. During the period in which the objections were pending, i.e., November 10, 1955 to July 2, 1956, the Government of India appointed an Authorised Controller to run the sugar mills by a notification dated November 25, 1955. After possession of the mills was given to the purchasers, a suit was filed by them against the assessee claiming damages for loss of profits on account of the possession of the mills not having been delivered to them immediately after the auction sale. In the suit the purchasers claimed, in the alternative, compensation for loss of interest on Rs.25,80,000 from the date of deposit of the sale price to the date of delivery of the mills. The claim of the purchasers was ultimately settled by compromise for a sum of Rs.1,25,000. In assessment proceedings for the assessment year 1957 58, the relevant accounting period being the year ended October 31, 1956, the Income tax Officer called upon the assessee to explain why the excess amount which the assessee had received on sale of the building, machinery and plant over the difference between the original and the written down value should not be subjected to tax under cl. (vii) of sub section (2) of section 10 and under section 12B of the Indian Income Tax Act, 1922. The assessee replied stating that (1) simultaneous computation 202 of income under cl. (vii) of sub section (2) of section 10 and of capital gains under section 12B amounted to double taxation and was against the principles of natural justice and the legislative intention; (2) the sale being a compulsory sale was not a sale within the meaning of cl. (vii) of sub section (2) of section 10; (3) moveable property was exempt from capital gains tax; and (4) as the sale was complete before April 1, 1956 it did not attract the provisions relating to capital gains which became effective from April 1, 1956 only. Alternatively, it was claimed that the value of the mills as on January 1, 1954 was much higher than that determined and the assessee was not liable to tax on capital gains. The Income tax Officer rejected the contentions raised by the assessee, and completed the assessment under sub section (3) of section 23 read with sub section (1A) of section 34 of the Indian Income tax Act, 1922 on March 29, 1965, computing the profits under cl. (vii) of sub section (2) of section 10 at Rs. 10,07,000 and the capital gains at Rs. 10,23,210. The Income tax Officer did not find any substance in the assessee 's contention that the value of the fixed assets of the mills was Rs. 18,50,000 as on January 1, 1954 and that there was no justification for initiating the assessment proceedings under sub section (1A) of section 34 of the Indian Income tax Act, 1922. On appeal by the assessee the Appellate Assistant Commissioner, by his order dated May 1, 1968, agreed with the Income tax Officer that the sale attracted cl. (vii) of sub section (2) of section 10, that it took place on July 4, 1956 and that the assessee was, therefore, liable to capital gains under section 12B. But contrary to the view taken by the Income tax Officer, the Appellate Assistant Commissioner held that the assessee was entitled to substitute the market value of the machinery as on January 1, 1954 in place of its cost price under cl. (iii) of section 12B, and accordingly reduced the capital gains from Rs. 10,23,210 to Rs.4,89,343. Both the Revenue and the assessee filed appeals before the Income tax Appellate Tribunal. Before the Appellate Tribunal it was the case of the assessee that while an auction sale may be a sale within the meaning of section 12B it was not a sale as contemplated under cl. (vii) of sub section (2) of section 10. It was urged that a compulsory sale was not a sale for the purposes of cl. (vii) of sub section (2) of section 10. It was also urged that as the auction sale had taken place prior to March 31, 1956 the assessee was not liable to tax on capital gains at all. The Appellate Tribunal by its order dated January 31, 1970 allowed the assessee 's appeal and dismissed the Revenue appeal. It accepted both the contentions of the assessee and did not find it necessary to go into the question whether 203 the Appellate Assistant Commissioner was right in substituting the market value of the machinery as on January 1, 1954 in place of its cost price under cl. (iii) of section 12B. At the instance of the Commissioner of Income tax, Lucknow the Appellate Tribunal referred the two questions of law set out earlier to the High Court for its opinion. On January 7, 1974, the High Court pronounced judgment in the reference in favour of the Revenue. And now this appeal. Shri S.C. Manchanda, appearing for the assessee, has raised two points before us. The first contention is that cl. (vii) of sub section (2) of section 10 of the Indian Income tax Act 1922 has no application because a sale effected for recovering arrears of cane cess as an arrear of land revenue is not a voluntary sale and does not fall within the terms of the relevant statutory provisions. The second contention is that the sale must be regarded as having taken place on November 10, 1955 when the auction was held and not on July 4, 1956 when the sale certificate was issued, and that being so section 12B which took effect from April 1, 1956 does not extend to the sale. These are the only two contentions before us, and in our opinion, they can be disposed of shortly. Clause (vii) of sub section (2) of section 10 of the Indian Income tax Act, 1922 provides for the computation of profits and gains chargeable to tax under the head 'business ' after making the following allowances: "(vii) in respect of any such building, machinery or plant which has been sold or discarded or demolished or destroyed, the amount by which the written down value thereof exceeds the amount for which the building, machinery or plant, as the case may be, is actually sold or its scrap value: Provided that such amount is actually written off in the books of the assessee: Provided further that where the amount for which any such building, machinery or plant is sold, whether during the continuance of the business or after the cessation thereof, exceeds the written down value, so much of the excess as does not exceed the difference between the original cost and the written down value shall be deemed to be 204 profits of the previous year in which the sale took place: xxx xxxx xxxxx" The argument for the assessee is that the word "sold" in the clause refers to a sale transaction affected on the free volition of the seller and not where it is in the nature of a compulsory transfer for recovering an arrear of land revenue. Reliance is placed on Calcutta Electric Supply Corporation Ltd. vs Commissioner of Income tax, West Bengal, , where the Calcutta High Court laid down that the word "sale" in its ordinary meaning, was a transaction entered into voluntarily between two persons, the buyer and the seller, and that, therefore, the requisition of an electricity generating plant by the Government under sub rule (1) of rule 83 of the Defence of India Rules, not being a voluntary sale, did not fall within the mischief of cl. (vii) of sub section (2) of section 10. Our attention has also been drawn to Indian Steel & Wire Products Ltd vs State of Madras, ; In that case this Court was called upon to consider whether the supplies by the appellant of certain steel products to various persons in the State of Madras under the Iron and Steel (Control of Production and Distribution) Order, 1941 could be regarded as sales for the purposes of the Madras General Sales Tax Act. The Court observed that the transactions must be treated as sales because the element of mutual assent was not excluded altogether from the transactions. Learned counsel seeks support from that case in support of his submission that the element of consent is essential to the character of a sale. A third case, R.B. Lachman Das Mohanlal & Sons vs Commissioner of Income tax, U.P., has been placed before us but nothing said therein is truly apposite to the limited question before us. We have given the matter careful consideration and we think, for the reasons which follow, that there is no escape from the conclusion that the transaction in this case constitutes a sale for the purposes of cl. (vii) of sub section (2) of section 10. The levy of cane cess was imposed under a statute in respect of an activity carried on voluntarily by the assessee. When entering upon and carrying out that activity the assessee was fully conscious that he did so subject to the provisions of the statute. The statute provided for the levy of cane cess and its recovery, in the event of default of payment, as arrears of land revenue. What was done in the present case 205 was to recover the arrears of cane cess as arrears of land revenue. All along, therefore, the assessee was aware that when it entered upon and carried out an activity attracting cane cess it was exposing itself to recovery proceedings as arrears of land revenue. The assessee was aware that recovery could be affected by an auction sale of its properties. It can be inferred from the circumstance that by embarking upon the activity which attracted cane cess the assessee agreed to be bound by the structural framework imposed by the statute around that activity, and, therefore, agreed to an auction sale of its properties as arrears of land revenue in the event of its failure to pay the cane cess. We are not satisfied that the element of consent is absent altogether from the transactions considered in this case. We are clearly of opinion that the sale of the properties of the assessee fall within the scope of cl. (vii) of sub section (2) of section 10 of the Indian Income tax Act, 1922 and therefore, the first contention must be rejected. Turning to the second contention, the question is whether the sale can be said to have taken place when the properties were auctioned or on the date when the sale certificate was issued. The recovery of an arrear of land revenue in Uttar Pradesh is governed by the provisions of the U.P. Zamindari Abolition and Land Reforms Act and the Rules made thereunder. We have been taken through the pertinent provisions, of that Act and its Rules. The High Court, in the judgment under appeal, has made detailed reference to them and, in an admirable exposition of the law, has demonstrated that the date on which the sale certificate was issued is the date on which the sale must be regarded as having taken place. We have no hesitation in endorsing that view. Section 279 of the U.P. Zamindari Abolition and Land Reforms Act specifies the modes for the recovery of an arrear of Land revenue, and section 282 prescribes the procedure for the attachment and sale of moveable property. Section 286 empowers the Collector to proceed against other immoveable property belonging to the defaulter. Rule 281 authorises the Collecter to sell immovable property and upon the property being auctioned under the Rules, and the objections, if any, thereto having been considered and disposed of, provides for confirmation of the sale by an order of the Commissioner. Rule 285 M provides that the Collector shall thereupon put the person declared to be the purchaser into possession of the property, and shall grant him a certificate to the effect that he has purchased the property to which the certificate refers, and that such certificate shall be deemed to be a valid transfer of such property. It is apparent that it is only after the sale is confirmed and a certificate is granted that the 206 property stands transferred and the purchaser becomes the owner of the property. Rule 285 M is explicit. The certificate operates as a transfer of the property. As before the High Court, learned counsel for the assessee relies on section 65 of the Code of Civil Procedure in support of his submission that the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. The application of section 65 turns upon the scope of section 341 of the U.P. Zamindari Abolition and Land Reforms Act, which applies the provisions of the Code of Civil Procedure to the proceedings taken under that Act. section 341, however, applies the Code only so far as it can be applied consistently with the Act and not in derogation of it. As is clear, the procedure incorporated in the U.P. Zamindari Abolition and Land Reforms Act and the Rules made under it specifically exclude the operation of section 65. When the sale certificate itself operates as effecting the transfer of the property, no question arises of relating the transfer back to the date of auction. It is true that the order of the Commissioner confirming the sale refers back to the auction which has already taken place, but that is hardly of any moment in view of the terms of Rule 285M. We see no force in the second contention. In the result the appeal fails and is dismissed with costs. P.S.S. Appeal dismissed.

Section 84 (now redesignated as section 80J) of the Income tax Act, 1961 as it stood at the relevant time, provided that income tax would not be payable by an assessee on so much of the profits and gains derived from an industrial undertaking to which the section applied as did not exceed six per cent per annum on the capital employed in such undertaking computed in the prescribed manner. Several conditions laid down therein had to be satisfied before the grant of relief could be considered. Section 154 empowers the Income tax Officer to rectify any mistake apparent from the record and for that purpose to amend an assessment order. The appellant who did not make a claim for rebate under section 84 either during the assessment proceedings or at the appeal stage subsequently made an application to the Income tax Officer under section 154 praying for rectification of the assessment order by grant of relief under section 84, which was rejected. The revision sought before the Commissioner also failed. The writ petition filed before the High Court having been dismissed, the appeal by special leave was preferred. It was contended: (1) that an obligation was imposed on the Income tax officer by the statute to grant relief which could not be refused merely because the appellant had omitted to claim the same, and (2) that the record of the super profits tax assessment containing the material, which lay before the 224 Income tax Officer, must be regarded as an integral part of the record of the income tax assessment for granting relief under section 84. Dismissing the appeal, the Court, ^ HELD: Rectification could only be justified on the ground of a mistake apparent from the record. If the record did not contain any material, it could not be said that the Income tax Officer had committed a mistake in omitting to grant relief under section 84. [227C D] Although the jurisdiction under section 154 to rectify any mistake apparent from the record is wider than that provided under r. 1 of Order XLVII of the Code of Civil Procedure to rectify an error apparent on the face of the record, nonetheless there must be material to support the claim to relief under section 84, and unless such material can be referred to, no grievance can be made if the Income tax Officer refuses to rectify the assessment and refuses relief under section 84.[227D F] There is a close relationship between the Super Profits Tax Act and the Income Tax Act, and any change in the assessment made under the latter has its consequential impact on the assessment made under the former. The converse is equally true, especially in view of section 20(2) of the Super Profits Tax Act which provides that all the information contained in any statement or return made or furnished under the provisions of that Act or obtained or collected for the purpose of that Act may be used for the purpose of the Income Tax Act. Therefore, if the record of the super profits tax assessment contains material pertaining to the claim under section 84 of the Income tax Act, such material can be considered by the Income tax Officer for the purpose of granting relief under section 84 in the income tax assessment.[228D G] In the instant case, the appellant has failed to show that all the material required for satisfying the conditions requisite for the grant of relief under section 84 existed on the super profits tax record at the time when the income tax assessment was completed. Therefore, it cannot be said that in omitting to grant relief under section 84 when making the assessment order, the Income tax Officer committed a mistake apparent from the record.[229C D] Subhash Chandra Sarvesh Kumar vs Commissioner of Income tax and Another, and Income tax Officer, Alwaye vs Asok Textiles Ltd., , referred to. 225

Civil Appeal Nos. 1565 1569/73. Appeals by Special Leave from the orders Nos. 4844 4848 of 1972 dated 25th November 1972 of the Central Govt., Ministry of Finance, Govt. of India. D. V. Patel and K. R. Nambiyar for the Appellant. G. L. Sanghi and Girish Chander for the Respondents. The Judgment of the Court was delivered by UNTWALIA, J. The appellant company in these appeals by special leave is a manufacturer of rubber tyres and tubes. It imports several raw materials including Pyratex Vinyl Pyridine Latex used in the manufacture of rubber tyres and tubes. The Customs authorities of the Government of India have been charging custom duty on V. P. Latex under the residuary item 87 of the Indin Tariff Act, 1934 instead of ICT 39 an item meant for charging duty on raw rubber. The custom duty charged under item 87 is much more than the one chargeable under item 39. A countervailing duty under item 15 A of the Central Excise Tariff in accordance with the Central Salt and Excise Act, 1944 is also charged if the article imported is not treated as raw rubber. On five consignments of V. P. Latex imported by the appellant in the year 1968 custom duty was charged under item 87 by the Appraiser pursuant to his order of assessment. Since he was an officer lower in rank than the Assistant Collector of Customs the appellant filed five applications before the Assistant Collector under section 27 (1) of the Customs referred to as the Act, for refund of the excess amount of duty charged. In other words, the appellant took the stand that if a custom duty would have been charged on V. P. Latex under item 39 then the amount would have been less to the extent of Rs. 3,74,879.49 on the five consignments in question. It, therefore, claimed the refund of the said amount, the details of which are as follows: ___________________________________________________________ Bill No. and date Date of Delay Amount claim for refund ____________________________________________________________ 1. D. NO. 1644 dated 8 4 69 31/4 Months 50,305.53 24 6 1968 2. D. No. 1024 dated 27 6 69 3 Months 60,339.97 18 9 1968 3. D. No. 1132 dated 8 4 69 2 Months 1,61,615.10 21 8 1968 4. D. No. 1931 dated 10 4 69 1 Months 50,512.71 23 7 1968 5. D. No. 68 dated 10 4 69 4 Months 52,106.18 1 6 1968 ____________ 3,74,879.49 ____________________________________________________________ Under section 27(1) of the Act the application for refund had to be made before the expiry of six months from the date of payment of duty, the date of payment being the date of the bill in each case. Thus there was a delay varying between 1 month to 4 months in the filing of each of the applications for refund. The Assistant Collector of Customs dismissed the applications on the ground that they were filed out of time. The appeals to the Appellate Collector of Customs filed under section 128(1) (b) of the Act failed. The appellant took the matter in revision to the Central Government under section 131. The revisions were dismissed by the Central Government by their order dated November 29, 1972 stating therein: "The Govt. of India have carefully considered the reasons advanced by the petitioners for their failure to prefer the claims for refund within the time stipulated under section 27 of the , but see no justification to interfere with the appellate orders. The revision applications are, therefore, rejected. " These appeals were filed from the said order after obtaining special leave of this Court. Mr. D. V. Patel learned counsel for the appellant submitted that in view of the recent decision of this Court in Dunlop India Ltd. etc. vs Union of India & Ors. V. P. Latex was chargeable to duty under item 39 only. The applications filed by the appellant for refund of the excess amount have erroneously been dismissed on the ground of having been filed out of time. Counsel submitted that the appellant used to pay custom duty not as and when a particular consignment was received but by making deposits in a running account. Hence no parti 866 cular date of payment could be assigned in respect of a particular consignment. He further submitted that the duty was paid under protest and hence under the proviso to sub section (1) of section 27, the limitation of six months did not apply. Mr. G. L. Sanghi, learned counsel for the respondents contended that no case of running account had been made before the authorities below and that there was nothing to show that the duty had been paid under protest in relation to any of of the five consignments. It is no doubt true that in view of the decision of this Court mentioned above the custom duty was chargeable on import of V. P. Latex under item 39. The authorities below do not seem to have decided the refund applications of the appellant on merits. They have dismissed them merely on the ground of limitation. The only question, therefore, which falls for determination by us is whether the applications for refund were filed out of time. Section 27 reads as follows: "27. (1) Any person claiming refund of any duty, paid by him in pursuance of an order of assessment made by an officer of customs lower in rank than an Assistant Collector of Customs may make an application for refund of such duty to the Assistant Collector of Customs before the expiry of six months from the date of payment of duty: Provided that the limitation of six months shall not apply where any duty has been paid under protest. Explanation Where any duty is paid provisionally under section 18, the period of six months shall be computed from the date of adjustment of duty after the final assessment thereof. (2) If on receipt of any such application the Assistant Collector, of Customs is satisfied that the whole or any part of the duty paid by the applicant should be refunded to him, he may make an order accordingly. (3) Where, as a result of any order passed in appeal or revision under this Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. (4) Save as provided in section 26, no claim for refund of any duty shall be entertained except in accordance with the provisions section. The appellant 's case obviously and admittedly was not covered by sub section (3) as it had not challenged the order of assessment in any appeal or revision. Nor was it a case where any duty was paid provisionally under section 18. The appellant 's case was governed by sub section (1) of section 27. No. case of any running account was set up by the appellant nor was there anything in the records of this case to substantiate it. Custom duty was paid in respect of each of the five consignments on the date of its respective bill. Ultimately this 867 position could not be disputed before us. The appellant, however, contended that the duty was paid always under general protest which covered the cases of these five consignments also. Hence under the proviso to sub section (1) the limitation of six months does not apply. Our attention was drawn to several letters in the records of the appeals before us to substantiate the plea of payment under protest, but none of them helps the appellant. We may refer to only two of them. The appellant wrote a letter on February 8, 1968 to the Assistant Collector of Customs, Madras making out a case therein that V. P. Latex was assessable to duty under item 39 ICT. Finally in this letter a protest was made for the assessment of duty under item 87 on V. P. Latex imported by the company in the past. This letter was written before the five consignments in question were imported and duty paid thereon. The protest, therefore, embodied in the letter aforesaid was not in respect of any of these consignments. A letter written on July 15, 1968 was a letter written at a point of time when two out of the five consignments had been imported; but three were imported after the writing of this letter by the appellant to the Asstt. Collector of Customs, Madras. This letter relates to a consignment of 59 drums of V. P. Latex which could not be connected with any of the five consignments in question. Thus there is nothing to show that duty on them was paid under protest, general or specific. It was lastly contended on behalf of the appellant that in view of the recent decision of this Court, the Govt. should be directed to refund the excess amount of Rs. 3,74,879.49 charged on the five consignments. We are unable to do so because the present appeals arising out of the orders made by the Government of India in proceedings under section 27(1) of the Act have got to fail on the ground that the view taken by the authorities below on the question of limitation could not be shown the incorrect. In the result the appeals fail and are dismissed. There will be no order as to costs. S.R. Appeals dismissed.

On 4 3 1968, the date of the accident. Karnal Singh, the accused was driving the truck No. MRS 7372. purchased out of the loan advanced by the ex serviceman Co operative Society to one Sutar who entrusted the vehicle to Balwant Singh, the brother of the appellant, a co accused, under a contract for hire against a monthly payment of Rs. 2000 2200, after incurring all expenses over the truck. The payment was regular up to December, 1967, and, thereafter, Balwant Singh avoided Sutar. Though Balwant Singh met Sutar on 9 3 1968 and 12 3 1968 ie. after the date of accident and promised to meet him later, The actually absconded resulting in the lodging of a First Information Report by Sutar on 20 4 1968 at 12.30 p.m. against Balwant Singh Uttam Singh for taking appropriate action under section 408, I.P.C. Since Balwant Singh was absconding and the vehicle was found in the possession of Karnal Singh, the police apprehended him and filed the charge sheet. The Presidency Magistrate, 6th Court, Mazagaon, Bombay, charged the appellant under section 408 read with section 114 of the Indian Penal Code, but, actually convicted him and sentenced him to six months R.I. and a fine of Rs. 500/ under section 411 Indian Penal Code without appreciating the effect of either the value of Exhibit Dl dated 12 3 1968 written by Sutar indicating that he was agreeable to pay the total costs of the repair of the damaged vehicle, with the admission of its execution by Sutar in cross examination and failure to explain these or of the explanation given by the accused in his 342 statement to how he came into possession of the lorry for repairing it. The High Court mainfained the conviction and the sentence. Allowing the appeal by special leave, the Court, F ^ HELD. (1) the presumption from recent possession of stolen property is an optional Prescription of fact under section 114 of the Indian Evidence Act. It is open to the Court to convict the appellant by using the presumption when the circumstances indicate that no other reasonable hypothesis except the guilty knowledge of the appellant is open to the prosecution. [751 D] (2) In the instant case, there was no mention of the appellant 's name in the F.I.R. there was no change under s 411, I.P.C. against him and he was not asked to explain it possession of the truck, but still he did explain it. The appellant 's answer to the omnibus question under section 342, Criminal Procedure Code, without giving him an intimation of the offence of which he was likely to be convicted, on the face of it, was quite reasonable and credible. The prosecution had been unable to repel the effect of this fairly acceptable explanation. The explanation which the appellant had given was good enough to raise serious doubts about the susceptibility of a charge under section 411, Indian Penal Code. The principle of benefit of doubt on questions of fact applies whether the verdict is of a Jury or the finding is to be given by a Judge or a Magistrate.[751,AB.E H] Otto George Gfeller vs The king, AIR 1943 PC 211 @ 214

ition No. 13009 of 1983. (Under article 32 of the Constitution of India) Gopal Subra aniam (A.C) for the Petitioner Dr. Y.S. Chitale, A.V. Rangam and Mrs. Sarla Chandra for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. Smt. Katheeja Bai, is the widow of Abdul Salam who retired as a Line Inspector, Grade I, in the employment of the Tamil Nadu State Electricity Board on 31.7.76 and who unfortunately died on 15.10.76. Katheeja Bai failed to get from her late husband 's employers certain amounts which she claimed were due to her husband. She knocked continuously but in vain, at the doors of the Regional Provident Commissioner, Madras, Central Provident Commissioner, New Delhi and the Minister for Labour Government of India for several years for 800 redress. In sheer desperation she ultimately turned to this Court as a last resort. Unable to engage a lawyer, she addressed a letter to a learned judge of the Court setting forth her grievance. After being processed in the Registry, the letter was treated as a Writ Petition under Art 32 of the Constitution. A Rule Nisi was issued and the Tamil Nadu State Electricity Board have appeared before us through counsel. At our request Sri Gopala Subramanyam argued the case for the widow as amicus curiae. He presented the . case with understanding and thoroughness and we are grateful to him, as also to Dr. Chitaley who presented the employer 's case with his usual fairness. In exercise of the powers conferred by s.79(c) of the Electricity Supply Act, 1948, the Tamil Nadu Electricity Board made the Tamil Nadu Electricity Board Contributory Provident Fund Regulations. Regulation 3 Provides for this establishment of a fund known as the Tamil Nadu Electricity Board Employees ' ' Contributory Provident Fund, with effect from 1.7.57. Regulation 3 A to 3 K provide for the management and administration of the fund by the Board of Trustees. Regulation 4 prescribes that the Fund shall be governed by regulation a i may be in force for the time being but provides that no addition, alteration or repeal, of any regulation which may adversely effect a subscriber shall be retrospective. Regulation 5 provides that all employees who are eligible for the Contributory Provident Fund (Tamil Nadu) Scheme and Gratuity Scheme of the Government of Tamil Nadu except certain categories of employees with whom we are not concerned shall become subscribers to the fund on completion of three months continuous service. Regulation 6 prescribes that an account shall be opened in the name of each member in which shall be credited, the member 's subscriptions and interest thereon, the contributions made by the Electricity Board to his account and interest thereon and the pre existing account before the Electricity Department was taken over by the Electricity Board. Regulation 9 provides for subscription to the fund by members at a the rate of 7 1/2% of pay plus dearness allowance. Regulation 11 provides for contribution by the Electricity Board to the account of each member at the rate of 7% of pay plus dearness allowance. The member 's subscription along with the Electricity Board 's Contribution is required to be credited to the individual account of the member before the 15th of every month. Regulation 37 prescribes that the Electricity Board shall credit to a member 's Provident Fund account a special contribution calculated in the specified manner in addi 801 tion to the contribution credited under Regulation 11, if the Board is satisfied that the service of the member has been good, efficient and faithful and the member has not been dismissed from service or the member has not been removed from service in which case the sanction of the Board has to be obtained. In the case of a Class I or Class II employee who quits service on attainment of the age of superannuation, he is to be credited, if his service exceeds 18 years with six months pay plus half a month 's pay for each completed year of service after the 18th but not so is to exceed, in all, twelve months ' pay or rupees twenty five thousand, whichever is less. If the employee 's service does not exceed 18 years, he is to be credited with half a month 's pay for each completed year of service so as not to exceed six months ' pay. In the case of a Class III or Class IV employees who has attained the age of superannuation after 15 years ' service, the Electricity Board is required to credit his account with half a month 'S pay for each completed year of service, but not so as to exceed to 15 months ' pay. If the service is short of 15 years, he is to be credited with half a month 's pay for each completed year of service so as not is exceed six months ' pay. It is provided in Regulation 37 that pay for the purpose of reckoning special contribution shall be the pay last drawn during the last three years of service, whichever is more. The Board is also empowered to withhold or reduce the Special Contribution in any particular case. At this stage, we may refer to section 12 of the which prohibits all employer from reducing directly or indirectly the total quantum of benefits in the nature of old age pension, gratuity or Provident Fund or Life Insurance to which the employee is entitled under the terms of his employment, express or implied, by reason only of his liability for the payment of any contribution to the fund (which is defined by section 2(h) as meaning a Provident Fund established under the employees ' Provident Fund Scheme framed under section 5). In 1972, Parliament enacted the to provide for a scheme for the payment of gratuity to employees in certain establishments. There is no dispute that the Act applies to the Tamil Nadu State Electricity Board. Section 4 of the Act requires payment of gratuity to an employee who has rendered continuous service for not less than five years, on the termination of his employment on superannuation or on retirement or on his 802 death or disablement due to accident or disease. The employer is required to pay the gratuity to the employee at the rate of fifteen days ' wages for each completed year of service or part thereof in excess of six months. The amount of gratuity is not to exceed 20 months ' wages. The employer is not required to pay any gratuity to an employee if the service of the employee has been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, or if the services of the employee have been terminated for riotous or disorderly conduct or any other act of violence on his part or if his a services have been terminated for any act involving moral turpitude provided that such offence is committed by him in the course of his employment. Section 14 provides that the contribution of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than the . Abdul Salam, who held a non pensionable post, retired on 31.7.76, after a service of 34 years and live months. He died on 15.10.76 within three months after his retirement. He was entitled or, in this case his widow was entitled to the payment of the entire amount standing to his credit in his Provident Fund account and the gratuity payable under the . The Electricity Board, however, took the stand that she was entitled to be paid the member 's subscription and interest, the employer 's contribution and interest and gratuity but not the special contribution under Regulation 37 of the Tamil Nadu State Electricity Board Contributory Provident Fund Regulations. The reason for the Board 's attitude was that the special contribution Required to be paid under Regulation 37 was nothing other than payment of gratuity and that they could not be asked to pay gratuity twice over, once under the and again under Regulation 37. Since they were ready to pay the gratuity payable under the , which was more favourable to the employee, they were not obliged to make payment of the contribution under Regulation 37. We may mention here that the Board has paid to the widow, the member 's subscription with interest and the employer 's contribution with interest but not the special contribution under Regulation 37. The Board has paid a sum of Rs. 4275/ towards gratuity under the payment of Gratuity Act but a sum of 803 Rs. 3167/ is admittedly yet due from the Board towards gratuity. In the counter affidavit filed on behalf of the Electricity Board we are not able to find any reason for non payment of the balance of gratuity. We are unable to appreciate how the Electricity Board can avoid payment of the Special Contribution to Provident Fund under their own Provident Fund Regulations on the pretext that it is akin to or the same as Gratuity payable under the . In the first place, the Board, in their Regulations, have themselves labelled the Special Contribution under Regulation 37 as a Special Contribution to Provident Fund not as a Gratuity. It is not as if they were unaware of the word 'Gratuity ' and what it meant since we find that there is a reference in Regulation 5 to a Gratuity Scheme of the Tamil Nadu Government which had been adopted by the Board. The Special Contribution under Regulation 37 is part of a well thought out Provident Fund Scheme designed to benefit 'good ' efficient and faithful employees (we borrow the words from the Regulation itself) by ranking annual contributions in addition the monthly contributions under Regulation 11. This is what appears from Regulation or itself, we see no justification for first dubbing it as a gratuity on the ground that it has some of the known characteristics af gratuity and then proceeding to deny the employees the benefit of it on the ground that the Board are paying gratuity under the . If the Special Contribution has some common features with gratuity, it has also distinctive features which distinguish it from gratuity payable under the payment of Gratuity Act, For example, one important feature which discriminates the Special Contribution under Regulation 37 from gratuity under the is that while the Payment of the latter is obligatory and can only be denied if the employee 's services have been terminated for his riotous or disorderly conduct or any other act of violence on his part or any act which constitutes an offence involving moral turpitude and can also be denied to the extent of the damage or loss caused by the employee, where the employee 's services have been terminated for any act, wilful omission or negligence causing any damage or to loss, or destruction of property belonging to the employer, the payment of the former is discretionary and may not be made if the service of the employee has not been good, efficient and faithful. The employee has also the discretion to withhold or reduce the Special Contribution in any particular case. Of course, 804 the employer cannot arbitrarily claim that the employee 's service was not good, efficient and faithful, or with hold or reduce the Special Contribution in an arbitrary fashion. Even so, the distinction between the mandate of the and the discretion involved in making the Special Contribution under Regulation 37 is intelligibly clear. Another feature which distinguishes the two is that the benefit of the is confined to persons drawing wages not exceeding Rs. 1000 and does not extend to persons employed in a managerial or administrative capacity whereas the Special Contribution under Regulation 37 is not so confined and extends to every employee of the Board a except casual employees, State or Central Government employees employed with the Board on foreign service terms etc. For the purpose of contribution of Provident Fund under Regulation 11 or Regulation 37 it makes no difference that a person is employed in a managerial or administrative capacity on that he draws wages more than Rs. 1000 per month. A third feature which marks the two apart is that the contribution to the Provident Fund whether under Regulation 11 or Regulation 37 becomes part of the Fund established by Regulation 3 and is to be managed and administered by trustees under Regulation 3 A to 3 K, whereas the payment of Gratuity Act does not provide for the Constitution of a fund to be managed and administered by trustees. In addition to these broad features, we have the outstanding circumstance that the Board themselves have described the contribution under Regulation 37 as a contribution to Provident Fund and have chosen to include it in their Provident Fund Scheme. That should conclude the matter. Dr. Chitaley invited our attention to section 14 of the which provides, "The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in an enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act." He argued that the provision for Special Contribution under Regulation 37 was inconsistent with the provisions of the and therefore the latter should prevail to the exclusion of the former. This argument is dependent on the assumption that the Special Contribution under Regulation 37 is the same thing as the gratuity contemplated by the Payment of 805 Gratuity Act. We have held that it is not and the argument, therefore, fails. There was then the usual lament that a large number of employees were involved and, therefore, the cost will be heavy. We do not understand this argument at all. Does it mean that beneficent legislations and beneficent schemes must be confined to small establishments employing a few workers only ? On the other hand, it is misleading to say that the cost is heavy. The cost is made to appear heavy divorced from the size of the establishment. If the establishment is huge and if a large number of workmen are employed the total wage bill may appear to be heavy, but is it really so ? Is it disproportionate to the size of the establishment, its resources, its revenues and its other expenditure ? Is the individual wage bill also very high ? To talk of heavy cost without reference to other circumstances is to present an entirely unfaithful picture. We heed make no further comment. In the result we direct the respondent Board to pay to the petitioner the whole of the Special Contribution under Regulation 37 which was payable to her husband and the balance of the Gratuity payable under the , part of which we are told has been paid leaving the sum of Rs. 3167 unpaid. These amounts should be paid to the petitioner with interest at 15% per annum from the date on which the amounts fell due. The respondent Board should also pay a sum of Rs. 2500 to the petitioner towards compensatory costs. We must add that the case had left us with the feeling of uneasiness and distress at the plight of helpless persons like the petitioner whose repeated representations to those in authority were left uncared for so the tediously long despite frequent protestations of social justice. H.S.K. Petition allowed.

The first respondent joined M.B.B.S. course of the appellant Punjab University in 1965. At that time Regulation 25 of the Punjab University framed under section 31 of the Punjab University Act required a minimum of 50 per cent of marks to pass in each subject and Rule 7.1 relating, inter alia, to M.B.B.S. course provided that a candidate who fails in one or more papers/subjects/or aggregate may be given grace marks upto 1 per cent of the total aggregate marks excluding for practical and internal assessment to his best advantage in order to have him declared to have passed the examination. In 1970, Rule 7.1 was amended by the addition of an exception to Rule 2.1 which provided that in the case of M.B.B,S. examination however the grace marks shall be given upto 1 per cent of the total marks of each subject and not upto 1 per cent of the aggregate marks of all the subjects. The first respondent who appeared for the final M.B.B.S. examination in 1974 was declared to have failed in one subject because he could not secure 50 per cent in that subject even after being awarded the grace marks according to the new rule. This was challenged before the High Court by the first respondent on the ground that the old Regulation 25 read with the old Rule 7.1 which was in force when he joined the course in 1965 should be made applicable to him and he should be declared to have passed in that subject. The Punjab University contended that there was no element of retrospectivity in the application of the amended rule and that students were bound to secure marks as per the regulation in force at the time of commencement of the examination concerned and they had no vested right to claim the benefit of any regulation or rule which was in force when they were admitted to the course. Confirming the judgment of a single Judge, a Full Bench of the High Court in a Letters Patent appeal opined that there was nothing in section 31 of the Punjab University Act which would clothe the Senate, explicitly or impliedly 823 with the power to frame regulations retrospectively and held that the regulation, as amended in 1970, had retrospectively altered the condition of the first respondent taking the examination to his detriment and ' could not be applied to him and that he was governed only by Regulation 25 read with Rule 7.1 as it was in force when he joined the course in 1965. The High Court observed that M.B.B.S. was a single integrated composite course and the change in the regulations was a change in the course of that single integrated course and was retrospective in nature. Hence this appeal. Allowing the appeal, ^ HELD: The Senate of the Punjab University had the necessary power under section 31 of the Act to fix, from time to time, the percentage of marks required for passing the examination and to grant or to refuse to grant grace marks or to enhance or reduce the quantum of grace marks. [830 B] There is no element of retrospectivity in the change brought] about by the addition of the exception to Rule 2.1 of the Calendar for the year 1970. "Retrospective" according to the Shorter Oxford English Dictionary, Third Edition, in relation to Statutes etc. means "Operative with regard to past time". The change brought about by the addition of the exception to Rule 2.1 does not say that shall be operative with effect from any earlier date. It is obviously prospective. It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to the first respondent, who appeared for the final examination in 1974, after he had joined the course earlier in 1965. No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating thereto which were in force at the time of his admission would continue to be applied to him until he finished his whole course. [830E G] Shorter Oxford English Dictionary, Third Edition, referred to, There is no question of the change in the rule made in the year 1970 having retrospective operation merely because it was applied in 1974 to the first respondent who had joined the M.B.B.S. course in 1965 when the rule regarding award of grace marks was different. [832C] The University was right in holding that the first respondent was not entitled to grace marks under the old rule but was entitled to grace marks under the new rule and had therefore not passed the examination. [832D] Sewa Ram vs Kurukshetra University, LPA 97 of 1967 decided on 17.7.1968 by Punjab and Haryana High Court, upheld. B.N. Mishra vs State, , referred to. 824

Civil Appeal No. 212 (NCE) of 1975. From the Judgment and Order dated 26.6.1974 of the Kerala High Court in A.S. No. 510 of 1972. V.C. Mahajan and C.V. Subba Rao for the Appellants. T.S. Krishnamurthy and N. Sudhakaran for the Respondent. The Judgment of the Court was delivered by: K. JAGANNATHA SHETTY, J. This appeal by special leave is against a judgment and decree of a Division Bench of the High Court of Kerala. PG NO 1076 Short factual background is this. The respondent was appointed on October 15 1951 as an ordinary industrial labourer at Naval Base Cochin. He was October 25 1968 his services however were terminated under Article 310 of the Constitution. No reason was assigned. He instituted a suit in forma pauperise for declaration that the termination of his service was illegal and void ab initio. In the alternative he claimed damages or compensation of Rs.75 000 for illegal termination. The trial court awarded him Rs.25 000 as damages together with interest at 6 per cent per annum for the illegal termination of his services. That decree was confirmed by the High Court of Kerala. This appeal is directed against that Judgment of the High Court. On July 30, 1976 a Bench of this Court dismissed the appeal on merits. But upon review that judgment was set aside and the appeal was ordered to be listed for fresh disposal. So the matter has come up before us. There is no dispute on the material facts. There is no challenge that the respondent was a permanent and confirmed civilian worker in the Defence Department. In fact. it is all admitted position between the parties. He had a right to continue till he attained the age of 60 years. Article 459(b) of the Civil Service Regulations provides for that. It reads: "(b) A workman who is governed by these Regulations shall be retained in service till the day he attains the age of sixty years. In this clause ' a workman ' ' means a highly skilled. skilled. semi skilled or unskilled artisan employed on a monthly rate of pay in an industrial or a work charged establishment . The courts below have proceeded on the basis that Article 311 (2) of the Constitution was not applicable to the respondent but the Central Civil Services (Classification Control and Appeal) Rules 1965 (for short " 1965 Rules ' ') were however. applicable. Mr. Mahajan for the appellants contends that the reasoning of the Courts below is untenable and uncalled for. We think that the counsel is on terrafirma. There cannot be any dispute as to the non applicability of Article 311(2) to PG NO 1077 the case of respondent. A civilian employee in Defence Service who is paid salary out of the estimates of the Ministry of Defence does not enjoy the protection of Article 311(2). In L.R. Khurana vs Union of India, ; at 911, this Court observed: "The question whether the case of the appellant was governed by Article 311 of the Constitution stands concluded by two decisions of this court. In Jagatrai Mahinchand Ajwani vs Union of India, C.A. 1185 of 1965 dated 6.2.1967 it was held that an Engineer in the Military Service who was drawing his salary from the Defence Estimates could not claim the protection of Article 311(2) of the Constitution. In that case also the appellant was found to have held a post connected with Defence as in the present case. This decision was followed in section P. Behl vs Union of India, C.A. 1918 of 1966 dated 8.3.1968. Both these decisions fully cover the case of the appellant so far as the applicability of Article 311 is concerned. ' ' Now the only question is whether the 1965 Rules framed under the proviso to Article 309 of the Constitution proprio vigore apply to the respondent or become inoperative in view of article 310 of the Constitution? Article 310(1) deals with the tenure of office of persons serving the Union or the State. It provides: "Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all lndia service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State." The article 310(2) deals with cases of persons appointed under contract. The doctrine of pleasure of the President is thus embodied under Article 310( l). The scope of this Article coupled with Article 309 has been explained in Ramanatha Pillai vs The State of Kerala, [l974] SCR 515 at 52l, where this Court observed: Article 309 provides that subject to the provisions of the Constitution, Acts of the appropriate Legislature may PG NO 1078 regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. Therefore, Acts in respect of terms and conditions of service of persons are contemplated. Such acts of Legislature must however be subject to the provisions of the Constitution. This attracts Article 31()(1). The proviso to Article 309 makes it competent to the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may direct in the case of services or posts in connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed, to such services and posts under the Union and the State. These Rules and the exercise of power conferred on the delegate must be subject to Article 310. The result is that Article 309 cannot impair or affect the pleasure of the President or the Governor therein specified. Article 309 is, therefore, to be read subject to Article 3l0. The operation of Rules made under the proviso to Article 309 on the pleasure doctrine embodied under Article 310(1) has been considered by this Court in Union of India vs Tulsi Ram, ; where it was observed at 483: "The opening words of Article 309 make that article expressly 'Subject to the provisions of this Constitution '. Rules made under the proviso to Article 309 or under Acts referable to that article must, therefore, be made subject to the provisions of the Constitution if they are to be valid. Article 3 lO( 1) which embodies the pleasure doctrine is a provision contained in the Constitution. Therefore, rules made under the proviso to Article 309 or under Acts referable to that article are subject to Article 310(1). By the opening words of Article 310(l) the pleasure doctrine contained therein operates ' Except as expressly provided by this Constitution". Article 31l is an express provision of the Constitution. Therefore, rules made under the proviso to Article 309 or under Acts referable to Article 309 would be subject both to Article 3l0(1) and Article 311. This position was pointed out by Subba Rao, J. as he then was. in his separate but concurring judgment in Moti Ram Deka. case PG NO 1079 ; at 734, namely. that rules under Article 309 are subject to the pleasure doctrine and the pleasure doctrine is itself subject to the two limitations imposed thereon by Article 311. In Tulsi Ram case, the decision in Challappan 's case (Divisional Personnel Officer, 5.Rly. Y. 1.R. Challappan, [1976l l SCR 783) which had taken a contrary view. has been expressly overruled on the ground that rules cannot do what the second proviso to Article 311(2) denies. " By virtue of Article 311(2), no civil servant can be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being beard in respect of the charges. Article 311(2) thus imposes a letter on the power of the President or the Governor to determine the tenure of a civil servant by the exercise of pleasure. Tulsi Ram case concerned with the exclusion of Article 311(2) by reason of second proviso thereunder. We are also concerned with the exclusion of Article 311(2), if not by second proviso but by the nature of post held by the respondent. We have earlier said that the respondent is not entitled to protection of Article 311(2), since he occupied the post drawing his salary from the Defence Estimates. That being the position, the exclusionary effect of Article 3l1(2) deprives him the protection which he is otherwise entitled to. In other words, there is no letter in the exercise of the pleasure of the President or the Governor. It was, however, argued for the respondent that 1965 Rules are applicable to the respondent, first, on the ground that Rule 3(1) thereof itself provides that it would be applicable, and second, that the Rules were framed by the President to control his own pleasure doctrine. and therefore, cannot be excluded. This contention, in our opinion, is basically faulty. The 1965 Rules among others, provide procedure for imposing the three major penalties that are set out under Article 311(2). When Article 311(2) itself stands excluded and the protection thereunder is withdrawn there is little that one could do under the 1965 Rules in favour of the respondent. The said Rules cannot independently play any part since the rule making power under Article 309 is subject to Article 311. This would be the legal and logical conclusion . The next contention urged for the respondent depends upon the admission made by the appellants before the High Court. The appel lants seem to have admitted before the PG NO 1080 High Court that the 1965 Rules would be applicable to the respondent. Relying on this admission it was argued before us that the decree under appeal should not be set aside. The poverty of the respondent and the long drawn litigation by which the respondent has suffered immeasurably were also high lighted. We gave our anxious consideration to this part of the submission. It is true that the parties appear to have proceeded before the High Court that the 1965 Rules would be attracted to the case of respondent. It might be on a wrong assumption of law. The appellants cannot he estopped to contend to the contrary. They are not bound by such wrong assumption of law. Nor it could be taken advantage of by the respondent. But the submission made before us about the poverty of the respondent and the long drawn litigation seems to be appealing. It is a plus point in his favour under equity. This Court while granting special leave has imposed a condition on the appellants that they will bear the cost of the respondent in any event. That was evidently because of the need to have the law clarified and inability of the respondent to come up to this Court. There cannot be any dispute about the poverty surrounding him. He has instituted the suit as an indigent person. There is yet another aspect. When the respondent commenced the litigation and continued up to the High Court the law on the question was nebulous. It was only thereafter an authoritative pronouncement was made by this Court with regard to the impact of Rules made under the proviso to Article 309 on the pleasure doctrine under Article 310(1). These facts and circumstances therefore call for a sympathetic consideration of the case of respondent. This Court will not deny any equitable relief in deserving cases. The case on hand cannot be an exception to that rule and indeed it is eminently a fit F case. We therefore accept the submission made for the respondent and decline to disturb the decree under appeal. In the result the appellants succeed on the question on law but the respondent retains the decree in his favour purely on compassionate grounds. The appellants also must pay the cost to the respondent as already bound. A.P.J. Appeal allowed.

Clause 1, of the agreement arrived at between the con sumerrespondents and the appellant Electricity Board, pro vided for constant supply of electrical energy to the con sumers. Clause 4 provided that even if the consumer does not consume electricity above the minimum guarantee then it will be incumbent upon the consumer to pay annual minimum charges. Clause 13 provided for the contingency that if the consumer is prevented from receiving or using the electrical energy due to strikes, riots, fire, floods, explosions, act of God or any other case reasonably beyond the control of the Board or if the Board is prevented from supplying such electrical energy owing to any of the causes mentioned then the consumer was entitled to a proportionate reduction of the annual minimum guarantee bill as determined by the Chief Engineer. The respondents were served with the hills for annual minimum guarantee for the years 1973 74 to 1982 83 by the Electricity Supply Division. The respondents filed their claims, under clause 13, with the Chief Engineer denying their liability to pay any such charges because the Board did not supply constant supply as provided in clause 1. It was alleged that during the period in question due to trip pings, load sheding and power cut the respondents suffered a great loss. The Chief Engineer negatived the claims of the respondents. A batch of writ petitions was filed in the High Court, challenging the order of the Chief Engineer. Although in these petitions relief sought was proportionate reduction of the annual minimum guarantee 169 bills but in view of the interpretation of clauses 1, 4 and 13 the High Court quashed the demand made by the Electricity Board by holding that under clause 1 it was incumbent for the Electricity Board to supply constant electricity supply and that the consumers will be liable to pay annual minimum guarantee charges only if the Board supplies the power as provided in the agreement but the consumer does not utilise the power. In these appeals by Special Leave, it was contended on behalf of the appellants that the 'constant supply ' men tioned in clause I cannot mean 'continuous supply '. The respondent consumers could not deny the liability to pay annual minimum guarantee bills if the Electricity Board could not supply power for all the 24 hours due to circum stances beyond the control of the Electricity Board. In case of shortage of supply due to circumstances beyond the con trol of the Board the consumers were entitled to a propor tionate reduction under clause 13 of the agreement. Allowing the appeals, the Court, HELD: 1. The High Court was not right in coming to the conclusion that the respondents were not liable at all to pay the annual minimum guarantee charges. [175C] 1.1. The High Court in its judgment clearly stated the hours every year in dispute when the power was not supplied and on this basis the respondent*consumers will only be entitled to proportionate reduction as ordinarily the con sumers are expected to have continuous power supply. Clause 13 clearly provides for the proportionate reduction of the annual minimum guarantee bills. [175D] 2. Clause 1 talks of constant supply of electrical energy providing for voltage, cycles, phases and wires. It does not talk of either of continuous or non continuons or intermittent supply. [173E] 3. The Respondent consumers are entitled to a propor tionate reduction of the minimum guarantee bill. The inabil ity of the Electricity Board to supply electrical energy due to power cut or any other circumstance beyond its control as per the demand of the consumer according to the contract will be reflected in and considered as a circumstance beyond the control of the consumer which prevented it from consum ing electricity as per the contract and to the extent it wanted to consume. [173G] 170 Northern India Iron & Steel Co. etc. vs State of Haryana 4. The Chief Engineer of the Electricity Board shall accordingly assess the proportionate reduction of the annual minimum guarantee bills in respect of disputed years on the basis of non supply as indicated in the High Court Judgment. [175D E] 4.1. Pending assessment, the power supply of the consum ers will not be disconnected on the ground of failure to pay the annual minimum guarantee bills. [175E] 4.2. The Electricity Board will be entitled to take recourse to the normal procedure if the consumers fail to pay after the proportionate reduction is made and fresh demand is made. [175E F] Amalgamated Electricity Co. Ltd. vs Jalagaon Borough Municipality, ; ; M/s. Man Industrial Corpo ration vs Rajasthan State Electricity Board and others, AIR and Mukand Iron and Steel Works Ltd. vs Maharashtra State Electricity Board and another, AIR 1982 Bombay 580, referred to.

: Criminal Appeal No. 7 of 1979. From the Judgment and Order dated 13.2.1978 of the Andhra Pradesh High Court in Criminal Appeal No. 812 of 1976 and 807 of 1977. K. MadhaVa Reddy, TVSN.Chari, Narashima P.V.P.L. and Ms. M. Gupta for the Appellant. R.K. Garg, T. Rama Mohan Raj, N.M. popli and V.J. Fran cis for the Respondents. The Judgment of the Court was delivered by AHMADI, J. Ram Subba Reddy, an advocate, politician ' (an ex MLA) cum trade unionist was done to death when he was sleeping on the terrace of his house in Proddatur, District Cuddapah, on the night 'between 14th and 15th April, 1975. The incident in question occurred at about 3.30 a.m. in which, apart from the deceased Ram Subba Reddy having re ceived fatal blows by lethal weapons, his daughter PW 1 Krishnaveni, aged about 24 years, received injuries when she attempted to 'go to help her father. As many as 19 persons were put up for trial before the learned Additional Sessions Judge, Cuddapah on different charges. Original accused Nos. 1 and 7 to 19 were charged for criminal conspiracy under section 120B; original accused Nos. 1 to 6, 12 and 13 were charged for rioting with deadly weapons under section 148; original accused No. 16 was charged under section 147 along with original accused Nos. 1 to 6, 12 and 13; original accused Nos. 1 to 6, 12 and 13 were also charged for murder under section 302; the said accused alongwith original accused No. 16 were also charged under section 302/149; original accused No. 5 was charged under section 324 and he as well as original accused Nos. 1 to 604 4, 6, 12, 13 and 16 were charged under Section 324/149, I.P.C. To bring home the charges against them the prosecu tion mainly relied on the testimony of PW 1 Krishnaveni, PW 2 Venkata Subbamma, widow of the deceased, PW 3, Venkat Rami Reddy and PW 4 Kasireddy sambasiva Reddy, both of whom it is claimed were sleeping on the ground floor of the house of the deceased and PW 5 Annapu Reddy Venkata Subba Reddy, a neighbour who arrived at the scene of incident on hearing the commotion and who at the instance of PW 1 lodged the FIR Exh. P 56 at about 4.30 a.m. The learned Additional Sessions Judge accepted the evidence of PWs 1, 2, 3 and 5, PW 4 having turned hostile, and convicted original accused Nos. 1 and 3 under section 148 and section 302 and 324 with the aid of section 149, I.P.C. and original accused ' No. 5 under sections 148, 302 and 324, I.P.C., substantively. All the three of them were sentenced to life imprisonment for mur dering Ram Subba Reddy and to rigorous imprisionment for 3 years under section 148, I.P.C. No separate sentence was imposed for causing injuries to PW 1. The rest were acquit ted of all the charges levelled against them. No appeal was preferred to the High Court against their acquittal but the three convicted accused preferred an appeal to the High Court challenging their conviction while the State appealed for enhancement of the sentence of accused No. 1 from life imprisonment to capital punishment. The High Court doubted the testimony of PWs 1, 2, 3 and 5 and their capacity to identify the assailants and, therefore, acquitted them of all the charges levelled against them. Consequently the State 's appeal for enhancement of accused No. 1 's sentence also failed. While the State has preferred this appeal against the order of acquittal or ' original accused Nos. 1, 3 and 5, no appeal has been preferred against the dismissal of he State 's appeal for enhancement of the accused No. 1 's sentence. A few facts leading to this appeal may be noticed. The deceased was a practising lawyer and a congressman. He was member of the Legislative Assembly during the 1967 ,1972 term. He had his own house in which he resided. AcCused No. 1, a medical practitioner, was a trade union activist be longing to the Communist party of India (Marxist Leninist group) and weilded considerable influence among the working classes. Accused No. 2 was a lower division clerk in the judicial department, District Cuddapah, but was on cave at the material time. He was a close associate of accused No. 1. Accused Nos. 3 and 5 were employees of Andhra Cotton Mills, Proddatur, while accused Nos. 4 and 6 were employees of International Packaging Company, Proddatur, and took part in trade union activities. In the first quarter of 1974 the workers of the International Packaging Com . 605 pany had served the management with a charter of demands and accused No. 1, who was the President of the Union had served the management with a strike notice on the ' failure of the negotiations which the management countered by declaring a lock out. Thereafter PW 21 Jutura Ramaniah partner of the company was assaulted on the night of March 30, 1974 for which a case was registered against accused No. 1 and his companions. The deceased who was a lawyer for the company is stated to have advised accused No. 1 not to resort to vio lence for settlement of such industrial disputes. As the deceased was representing the company the relations between the deceased and accused No. 1 which were cordial were soured and the latter stopped visiting the former. In the month of November 1974, on the advise of the deceased, the management brought workers from Bangalore and started the factory. However the workers ' union could prevail upon those workers not to report for. work and the unit again same to a standstill within about ten days of commencement. The dis pute was referred to the arbitration Of three persons but they could not resolve it on account of the uncompromising attitude of the workers led by accused No. 1. While this unrest continued trouble started brewing with the transport workers union of which accused No. 1 was the President striking work. Here too the management was repre sented by the deceased. The atmosphere in the township was surcharged and tense. With the intervention of the State Minister the dispute between the transport workers and the owners was settled but so far as the International PaCkaging Company is concerned its employees did not participate in the meeting called by the Minister. A warrant for the deten tion of accused NO. 1 under MISA was issued on February 14, 1975 but the same could not be executed as he went under ground. On the advice of the Minister the management unilat erally opened the factory w.e.f. March 19, 1975. The de ceased had throughout taken a very active interest in ensur ing the starting of the factory notwithstanding the stand taken by the union. The union had also complained about the unilateral imposition of certain conditions on the ' workmen but to no avail. The workers began to report for work though the union was not reconciled. On the other hand since the warrant for accused No. 1 's arrest could not be executed a warrant for the attachment of his properties was issued on April 9, 1975. PW 11 M. Sajjana, Assistant Station Master, Cuddapah, had started an INTUC branch at Cuddapah sometime ' in Decem ber, 1973. Under its banner a youth conference was organised on January 26, 606 1975. PW H presided. over that conference and a decision was taken explore the possibility of starting an INTUC branch at Proddatur with the help of the deceased. Pursuant thereto PW 11 and others visited Proddatur on March 27, 1975 to discuss the matter with the deceased. The deceased promised all possible help and agreed to provide space for the office of INTUC in his own office. Ultimately to counter the militant activities of accused No. 1 who was in control of most of the labour unions in the town a decision was taken to start an INTUC branch in Proddatur w.e.f. April 19,1975. Pamphlets were issued in this behalf soliciting the co operation ,of workers and others. This was the last straw on the camel 's back. The physical condition of the. place. of occurrence may be noticed to. appreciate the ocular evidence. The house faced southward and lay along a public road with open space in the front covered by a.compound,wall in the front with no such wall on the remaining three sides. In the front was a verandah and thereafter came the drawing room in which was installed a telephone. Further to the north was. a room and beyond that was a hall. Then came another covered verandah with a tin sheet sloping roof at a height of about 7 feet from the ground level. This was the ground floor accommoda tion. The staircase.leading ' to the terrace was situate in the hall. This staircase opened in a room leading to the open terrace. This terrace room had an asbestos 'sheet projection whereunder there was an electric bulb. The ter race had a parapet wall all round of the height of about 3 feet. On the south west side of the terrace room along. the parapet wall there existed a 24 feet long pial of the. height of 20 inches and width of 18 inches. A window in the western wall had a cement shade 4 feet x 2 feet in size, Adjacent to. that window was a telephone pole hardly five feet away from the wall with the upper end hardly 6 1/2 inches from the cement shade. The prosecution case is that this telephone pole was used by the assailants to launch the attack on the deceased. The family of the deceased comprised of his wife PW 2, two daughters, one of whom was married and lived with her husband and, the other PW 1 was a medical student, and three sons none of whom was in town on that day. Pw. 1 was study ing in the third year at Kakinada and had come home as the college was closed from April 12 to April 20, 1975. PW 1 deposed that on the date of the incident after dinner she and her parents chit chatted for sometime and thereafter her father went to the terrace as it Was summer and retired for the night. She continued to talk with her mother and in the meantime PWs 3 and 4 arrived. They carried their beddings to the verandah and slept 607 there. PW 3 used to sleep at their house since the last couples of years whereas PW 4 came there occasionally. After they left for the verandah the witness closed the 'ground floor door to the house, carried an anatomy book and went to the terrace to sleep. She read in the terrace light which was under the asbestos projection and then went to bed on the cot laid for her keeping the light on as was the usual practice. Her mother did not sleep on the terrace as she was not allowed to climb the stairs since she had recently undergone an operation. Her father was sleeping on the bed laid on the floor wearing a banian. A hurricane lantern was also kept lighted on account of frequent power failures. At about 3.30 a.m. she woke up hearing the cries of her father and saw accused No. 1 and 6 or 7 others stabbing her father with daggers. She raised an alarm and tried to go to the rescue of her father but she was prevented by three of them from getting up. According to her accused No. 3 had gagged her mouth with his hand and had pinned her down to the cot. Thereafter accused No. 5 tried to stab her with a dagger twice but on both the occasions she warded off the blows and in the process sustained injuries on her left index finger, thumb and palm region extending to another finger. Till the assailants had finished with her father she was pinned down to her bed and thereafter the assailants went to the west, climbed the parapet wall and went down the terrace. She then ran down crying that accused No. 1, whom she knew since quite sometime, and his companions had killed her father. She woke up her mother and informed her of what had hap pened. On hearing a knock on the main entrance to the house, she opened the door and found PWs 3 and 4 holding a torch. On inquiry she told them that accused No. 1 and his compan ions had killed her father and she too was injured. She learnt from them that they had seen accused No. 1 and 4 or 5 others slide down the telephone pole situated to the west of the house. She then tried to contact the police on phone but found that the same was disconnected. Since PW 5 a neighbour was there she requested him to go tO the police station and fetch the police. On receipt of information a Sub Inspector of police and a few constables arrived by about 5.00 or 5.30 a.m. to whom she narrated the incident whereupon her state ment was recorded which has been introduced on record as Exh. The Sub Inspector held the inquest on the dead body between 7.00 and 10.30 a.m., drew up a panchnama of the scene of occurrence, attached the anatomy text book and other blood stained articles from the terrace, including the electric bulb from the socket of the electric holder on the terrace, At the identification parade held later she identi fied accused Nos. 3 and 5 as the companions of accused No. 1. In cross examination she ' denied the suggestion that accused Nos. 3 and 5 were shown to her while they were in the sub jail before 608 she was asked to identify them. It transpires from her cross examination that the defence case was that she had not slept on the terrace, that the cut injuries on her left hand were self inflicted and that she was falsely implicating accused Nos. 3 and 5 as they had supported her rival Padma in a college election when she was in the B.Sc. class. It was also suggested that photographs of accused. Nos. 3 and 5 were shown to her from a group photo obtained from A.C. Mills Union Office. It may be mentioned that the suggestions made to this witness in regard to the identity of accused Nos. 3 and 5 are self contradictory in the sense that if the suggestion that she was falsely involving these two accused because they had helped Padma who contested the election against her is correct it would follow that they were known to her since long in which case there would be no need to point them out to her while they were in the sub jail or to show their photographs to her. Suffice it to say that. nothing very striking, except minor contradictions, has been elicited in her cross examination which would shake her credibility. PW 2, her mother, corroborates her say in regard to the incident and the involvement of accused No. 1. PW 3 has deposed that since he and PW 4 anticipated danger to the life of the deceased on account of the dis turbed management labour relationship they slept at the house of the deceased. PW 3 states that he saw eight persons sliding down the telephone pole. Amongst them were accused Nos. 1 to 5 and S.V. Subbarayadu whom he identified as accused No. 6. PW 4 has stated that on the date of the incident he had heard about the murder when he was at his residence at about 4.30 a.m. He was treated as hostile and was allowed to be cross examined by. the prosecution. PW 5, whose house was only about 100 yards away, deposed that when he was sleeping on his terrace he heard cries at about 3.30 a.m. and went to the house of the deceased. PWs 1 to 4 were present there alongwith other. neighbours. PWs 1 and 2 were.weeping while PWs 3 and 4 were trying to console them. PW 1 asked him to inform the police that her father was murdered. He then went and informed the police about the incident and returned with the police to the scene of of fence. Thus the evidence of this witness also corroborates PW 1. The inquest was!held between 7.00 and 10.30 ' a.m. The statements of PWs 1 to 5 were also recorded and certain articles were attached from the terrace. These included blood stained bed sheets, pillows, towel, shawl, shrit, etc., and Cunningham 's text book on. human anatomy which PW 1 was reading before going to bed. The telephone connection was found snapped and there were drops of blood from. the place where the dead body was found till the drawing room down stairs where the telephone was: installed which. corrobo 609 rated the story of PW 1. The banian worn by the deceased, was blood stained and had cuts corresponding to injuries found on. the chest of the deceased. Several other articles found on the person. of the deceased were blood stained. There were as many as 33 injuries on the person of the deceased which is clearly indicative of the involvement of a group of persons in the killing. This stands corroborated by the post mortem report. On the cot which was occupied by PW 1 there were blood drops on the bed, bed cover and bed sheet. The reports of the Chemical Analyser and Serologist, Exhs. P 18 and P 19. show that all the articles were stained with human blood. A lantern was burning nearby and the electric light on the terrace was also on. This inquest panchnama Exh. P 6 leaves no room for doubt that the inci dent occurred on the terrace portion of the residence of the deceased. PW 1 was medically examined by the medical officer PW 13 on the same day at about 11.45 a.m. She had incised wounds on the left index finger 1/2" x 1/4", on the left hand below tile wrist 1" x 118" x 1/8", on the middle of the left palm 1" x 1/8" x 1/8" and on the little finger of left hand 1/2" x 1/8" x 1/8". This would indicate that she received these injuries while trying to ward off the blows. Identification parades were held on May 23, 1975. In the first one accused Nos. 7, 10 and 11 were made to stand with non suspects, in the second parade accused Nos. 12, 13 and 16 were made to take their positions along with several others and in the last parade accused Nos.17, 18 and 19 were concerned. PW 1 could not identify any one from amongst the said accused persons in all the three parades. Out of the three parades PW 3 identified all the three accused of the second parade. In the evening an identification ' parade was held concerning accused Nos. 2 to 6 and 9. PW 1 could iden tify. 'accUsed Nos. 3 and 5 while PW 3 could not identify any of them. The defence of all the accused was of total 'denial and false involvement. In fact accused No. 1 contended that.he was out of station from May 13, 1975 and learnt of the murder on his return to Proddatur. When he learnt of his false involvement he surrendered before the Court. Accused Nos. 12, 13 and 16contended that they were shown to PW 3 before the identification parade while accused Nos. 3 and 5 pleaded that the police had taken a group photograph in which they figured from the union office and had shown it to PW Accused Nos. 7, 11, 14, 15, 17 and 19 were not examined under section 313 of the Criminal Procedure Code as no evidence incriminating them was tendered on record. No defence witness came to be examined. 610 The learned Additional Sessions Judge, Cuddapah, came to the conclusion that the prosecution had failed to establish the charge of criminal conspiracy under section 120B, I.P.C. He came to the conclusion that the evidence on record, however, indicated that accused Nos. 1 to 6 had a direct and strong motive to kill the deceased and the likelihood of the others having shared their feelings could not be ruled out altogether. The direct testimony of PWs 1 to 5 and the other circumstantial evidence adverted to earlier established beyond any manner of doubt that the incident occurred at 3.30 a.m. on the terrace of the residence of the deceased. The learned Judge held that intimation of the incident was given to the police without loss of time and PW 1 had lodged her complaint by about 6.00 a.m. when the police came to the scene of occurrence alongwith PW 5 who had gone to call them. The suggestion that injuries found on the person of PW 1 were selfinflicted or that PW 2 was giving false evidence as she was promised financial help to the tune of Rs. 1,50,000 were brushed aside by the learned Judge as totally imaginary ,and unfounded. The learned Judge, however, did not treat PW 1 's complaint EXh. P 1 as admissible in evi dence as he came to the conclusion that it was hit by sec tion 162 of the Code since information regarding the inci dent had reached the police station through PW 5. The learned trial Judge, therefore, accepted the evidence of PWs 1, 2, 3 and 5 as reliable and convicted them as stated earlier while acquitting their companions. The said three convicted accused preferred an appeal, being Criminal Appeal No. 812 of 1976, in the High Court. ,State also preferred an appeal for awarding capital punish ment to accused No. 1, being Criminal Appeal No. 807 of 1976. The State 's appeal came to be dismissed and that is where the matter rests. However, the appeal by the convicted accused came to be allowed and the appellants were acquit ted. It is against the said order of acquittal that the State has approached this Court by way of special leave. It would, therefore, be proper to ascertain the grounds on which the impugned order of the High Court is founded. The High Court came to the conclusion that the complaint of PW 1 was not recorded at the time it purports to have been for if it were so it would not have reached the con cerned Magistrate as late as 1.40 p.m. In that case even the inquest report Exh. P 6 would not have been delayed till 10.55 p.m. The explanation for the delay found in Exh. P 25 cannot be accepted at its face value. The evidence of PW 1 is tainted, in that, although she knew accused No. 1 as he visited her father quite often the rest of the assailants were total strangers and yet 611 the names of accused Nos. 2 and 4 appear in her statement Exh. P 1 which goes to show that she was tutored into giving their names. That according to the High Court raises a serious doubt regarding her trustworthiness. On the question of identity of accused Nos. 3 and 5, the High Court points out that even before the identification parade she had told the Magistrate that she would be able to identify only two persons and later pointed an accusing finger at accused Nos. 3 and 5 at the identification parade. This, says the High Court, reinforces the defence version that she was shown the group photo before she was called to identify the accused persons. The identification parade was delayed upto May 23, 1975 as till then the photograph was not secured by the police. In the circumstances the High Court did not find the evidence of PW 1 regarding the identity of accused Nos. 3 and 5 acceptable. The High Court also held that the injuries on the left hand of PW 1 were in all probability self in flicted, more so because she is not a left hander. So also the absence of blood stains on the bed lying on the floor of the terrace casts a serious doubt regarding her version of the incident. The High Court found the prosecution story that the electric light as well as the kerosene lamp were kept on throughout the night rather unusual. In this view of the evidence, the High Court did not consider PW 1 a truth ful witness. As regards PW 3 the High Court found his ver sion that he slept at the residence of the deceased since sometime unacceptable. It also noticed that PW 3 claimed to know accused Nos. 1 to 6 by their names and he gave out those names to the police and yet he could not identify any of them at the test identification parade. For this reason the High Court did not place reliance on his evidence. The High Court, therefore, found the evidence led by the prose cution untrustworthy and acquitted the accused/appellants. Hence the present appeal. Mr. Madhav Reddy, the learned counsel for the appellant State contended that the presence of PW 1 at the time of the incident was not only deposed to by PWs 2 and 3 but also by PW 5. The presence of PW 3 at the house at about 4.30 a.m. is deposed to even by the hostile witness PW 4. He, therefore, submitted that the presence of PWs 1 to 5 is clearly established and is reinforced by the evidence of PW 13, the medicalman, who examined PW 1 at the Government Hospital at about 11.45 a.m. on the same day. The Sub In spector PW 24 also deposes that PW 5 had told him that PW 1 had sent him to report the murderous assault on her father. He submitted that once the presence of PWs 1 and 3 was established there was no reason to doubt their testimony merely because PW 3 was honest enough not to falsely involve any one by pointing an accusing finger at the identification 612 parade. He submitted that even PW 1 was honest enough to identify only two persons, namely, accused Nos. 3 and 5, Whom she had an occasion, to see near her cot on the ter race. To reject her evidence as regards the identity of these two accused on the specious plea that their photo graphs were shown to her '. before the identification parade would be, to say the least, unjust. If she could be shown the photograph why not PW 3 also! He also submitted that it was preposterous to hold that the injuries found on the left hand of PW 1 were self inflicted. The absence of blood on the bed sheet of the bed on the floor of the terrace clearly explained that the deceased must have rolled onto the ter race floor where the presence of blood was noticed. He, therefore, submitted that the High Court had reversed the well reasoned judgment of the. trial court on totally imagi nary grounds which had resulted in grave miscarriage of justice. Mr. R.K.Garg, learned counsel for the respondents/ac cused, submitted that this Court should not interfere with the decision of the High Court ' unless it ' finds the view taken by the High Court as perverse and wholly improper, resulting in miscarriage of justice. In support he cited State of Jammu & Kashmir vs Hazara Singh & Anr., [1980] Supp, SCC 641. He also submitted that the investigating agency had shown extra zealousness as the deceased was a prominent lawyer and an ex MLA. Supporting the view of the ' High Court he urged that the presence of PW 1 was highly doubtful and in any case it would be risky to rely on her interested testimony regarding the identity of accused Nos. 3 and 5. The 'absence of blood on the bed shows that the same was planted after the event to concoct the story that PW 1 ' was sleeping on the cot and not downstairs with her mother PW 2 who ' had recently undergone an operation. ' Once the evidence of PW 1 is excluded there is no direct testimony since PW 3 had not identified any of the accused at the identification parades. In short he supported the judgment of the High Court and prayed that we should not interfere in exercise of our extra ordinary powers under Article 136 of the Constitution. The motive for the commission of the crime was the indus trial unrest occasioned on account of the strike by the workers of the International Packaging 'Company and later by the transport workers. Indisputably accused No.1 commanded considerable clout over the employees of various industrial units such as the International Packaging Company, Andhra Cotton Mills and the transport industry in Proddatur. Accused No. 1 was championing the cause of the workmen during the. prolonged agitation and strike by the workers of the Inter 613 national Packaging Company and also spearheaded the agita tion by the transport workers. The deceased was the lawyer for the managements and was considered the main obstacle, in the realisation of the workers* demands. There was, there fore, animosity between the deceased and accused No. 1. This is more than clear from the oral evidence of PWs 2.3.4, 10. 11.21 to 23 and from the documentary evidence tendered as Exhs. P 2 to P 5. P 30 to P 37 and P 40 to P 55. In view of this overwhelming documentary evidence which corroborates the ocular evidence of the aforesaid prosecution witnesses, it is established beyond any manner of doubt that the rival ry between the trade unions headed by accused No. 1 and the managements. advised by the deceased had assumed ugly. proportions. The starting of the INTUC branch at Proddatur with the active participation of the deceased was perhaps the last straw on the camel 's back which worsened the rela tions between accused No. 1 and the deceased. This is the motive according tO the prosecution for the crime in ques tion. But as has often been commented bitter animosity can be a double edged Weapon which may be instrumental for deliberate false involvement or for the witnesses wrongly inferring and strongly believing (without having actually witnessed it) that the crime must have been committed by the rival group. This possibility has to be kept in mind while evaluating the prosection evidence regarding the involvement of accused No. 1 and his companions in the commission of the crime. There is no dispute regarding the description of the residential house of the deceased and the location of the telephone pole to the west thereof. It is not disputed that the said pole could be conveniently used for slidding down from the terrace. So also the fact that the telephone con nection was snapped is not put in issue. The fact that the incident occurred on the terrace is not disputed but the fact that the deceased was sleeping on the floor and PW 1 was sleeping on the cot is disputed. It was suggested in the course of cross examination of the prosecution witnesses that the deceased alone was sleeping on the cot on the terrace and PW 1 was in fact not in town and even if she was in town she must have been sleeping with PW 2. Lastly the fact that the deceased died a homicidal death on receipt of as many as 33 injuries is not disputed The find of human blood on the various articles attached by the police, i.e. those worn by the deceased as well as PW 1 and those found lying on the terrace, is clearly established by the reports Exhs. P 18 and P 19 which have not been questioned. It is in this background that we must consider if the High Court has commit. ted any grave error requiring interference under Article 136 of the Constitution. 614 On the question of presence of PW 1 in Proddatur on the date of the incident, apart from the oral evidence of PWs 1 to 3 and 5, there is the documentary evidence in the form of the entry Exh. 56 recorded by PW 24 in the general diary on April 15, 1975 at about 4.30 a.m. That entry was made on the information supplied by PW 5. It is clearly stated therein by PW 5 that he had been told by PW 1 that her father was murdered at his residence. It was on receipt of this infor mation that the police went to the house of the deceased, drew up the inquest report and recorded the statements of those present there including PW I. The presence of PW 1 is, therefore, clearly established by this document prepared within an hour from the time of the incident. This contempo raneous document corroborates the oral evidence of the aforesaid witnesses. She was examined by the medical officer PW 13 on the same day at about 11.45 a.m. In addition there to, the find of the Anatomy book and slippers on the ter race, also lends assurance to the prosecution evidence in this behalf. Therefore, even if it is assumed that the time of recording her statement ' Exh. P 1 is not correctly re corded, her presence at the scene of offence at the material time is established beyond a shadow of doubt. Accused No. 1 was a friend Of the deceased till they fell out. He was a regular visitor to the house of the deceased and, therefore, PW 1 knew him quite intimately. She has frankly admitted that others were strangers but she was able to identify accused Nos. 3 and 5 because she had an opportunity to see them from close quarters when they were near her cot. The existence of a cot and a bed on the ter race is indicative of the fact that two persons were sleep ing on the terrace. There were only three family members present on the date of the occurrence, one of whom was PW 2 who had undergone surgery only recently and was advised not to climb the stairs. It is, therefore, obvious that the deceased and PW 1 slept on the terrace. The submission that the bed on the floor was planted is based on the fact that there was no blood on the bed sheet of that bed. But this submission overlooks the existence of blood drops nearabout the bed. The dead body of the victim was also found lying on the terrace floor nearby. The High Court relied on the photograph Exh. D 4 for holding that the bed was fresh and unused. But as is apparent from the, crossexamination of PW 24 that the said photograph shows "the bed sheet spread over the bed on the cot is tucked beneath the bed". Thus the said photograph is not of the bed on the floor. The High Court seems to have misread the evidence. Secondly, it is clear that the dead body was lying at some distance from the bed suggesting that the deceased had rolled over during the night or in the course of the attack. The 615 other articles lying nearby e.g towel, shawl, etc. were blood stained and there Were fresh drops of blood between the dead body and the western waif leading to the telephone pole. Since there were Only three family members one of whom, PW 2, had undergone an operation in the recent past, it is difficult to understand how PW 1 alone could shift the dead body of her father from the cot to the place where it was found to concoct evidence against the accused. It is too much to attribute such intelligence to PW 1 or for that matter PW 3 also. If the dead body which was bleeding had in fact been shifted there would have been blood drops from the cot to the place where it was found. Besides, where was the time for the entire exercise? PW 5 was sent to call the police and he had returned with the police after his report was entered in the general diary at 4. 30 a.m. It. there fore, seems difficult to believe that the bed on the floor was planted to support the prosecution version that PW 1 slept on the terrace that night. The medical officer PW 13 found four incised wounds on the left hand of PW 1, possible by a sharp cutting weapon like a dagger or knife. These injuries were indeed minor in nature. The High Court has concluded that the possibility of these injuries being self inflicted cannot be ruled out, PW 1 says she received these injuries in the process of warding off the blows aimed at her. PW 13 also deposes that these injuries could have been received while trying to ward off the blows on her. Thus the medical evidence supports her say. However, in crossexamination he stated that all the four injuries were cut injuries and not stab wounds. In response to a suggestion made in cross examination he stated that the possibility of the injuries being self inflicted was not an impossibility. Merely from this suggestion and PW 1 not being a left hander the High Court concluded that the possibility of the injuries being self inflicted could not be ruled out. With respect, the High Court failed to realise that when an injury is on an accessible part of, the body which the individual can himself reach, such any injury could also be self inflicted and when a medical witness is asked if it was possible to self inflict it he would have to answer in the affirmative unless the direction 'of the injury or such other factors show otherwise. But merely because the medical officer says that they could be selfin flicted, there is no reason. to jump to such a conclusion unless ' circumstances establish such a possibility. In the present case there was hardly any opportunity to self in flict them. Her not being a left hander should make no difference because she is bound to. use that hand to ward off the blows if her assailant is on that side of her bed. We, therefore, feel that the High Court was not justified in concluding that PW 1 had self inflicted the wounds found on her left hand. With 616 respect, this conclusion of the High Court is, to say the least, wholly conjectural and totally against the weight Of evidence on record. The delay in Sending the FIR Exh. P 1 to the Magistrate has been seriously commented upon by the High Court while rejecting the explanation given in Exh. This comment has lost its significance as the said document has not.been admitted in evidence by both 'the courts below on the ground that it is hit by section 162 of the Code. We would have examined the explanation if that document. had formed part of the record. ' Any way that cannot impinge On the credibil ity of PW 1 if her evidence is otherwise acceptable, which we find it is '. On the question of identity it is clear from the evi dence of PW 1 that accused No. 1 was known to her quite well Since before the incident. She could, therefore, have no difficulty in identifying him even in poor light. Immediate ly after the accused fled she ran down and informed her mother that accused. No. 1 and his companions had killed her father. Since PW 1 had not disclosed the name of accused No. 1 as one of the assailants to PW 5, the latter did not speak about him to the police and hence his name does not appear in the FIR recorded at 4.30 a.m. Accused No. 1 pleaded an alibi: which he miserably failed to probabilise. The absence of names of assailants in the general diary entry made on the basis Of information supplied by PW 5 at the behest of PW 1 has weighed considerably in the High Court doubting the version regarding the involvement of accused No. 1 in the commission of the crime. It must, however, be realised that PW 1 had disclosed the name of accused No. 1 at the earliest point of time when the complaint Exh. P I and the inquest report Exh. P 6 were recorded. It must also be realised that,PW 1 was under terrible strain at that time. Not only had this young girl lost her father in a ghastly assault, she had also to look after her ailing mother: and console her. She frantically tried to inform the police on telephone but found the instrument dead with the wires snapped. therefore, asked this young boy aged 'about 16 years, PW 5, to go to the police station and fetch the police. There was hardly any time to give details of the incident. Under the circUmstances the absence of the name of accused 'No. 1 as One of the assailants in the entry made in the general diary at the instance of PW 5 is quite understandable. Once it is accepted that PW 1 had slept on the terrace and had sus tained the injuries in the incident, her evidence regarding the identity of accused No. 1 who was quite well known to her cannot be doubted. 'We are, therefore, of the view that the High Court was not justified in disturbing the view taken by the trial court in this behalf. 617 That takes us to the question of the involvement of accused Nos. 3 and 5. The evidence of PW 1 is that when she heard the cries of her father she woke up and saw accused No. 1 and six or seven others belabouring him. This means that she did not know and could not identify the companions of accused No. 1. However, when she tried to raise an alarm three of the assailants approched her and pinned her down to the bed, and one of them threatended to stab her. He did carry out his threat as is evident from the injuries sus tained by her. She Was able to identify two of them 'at the identification parade held on May 23, 1975. This is proved through the 'evidence of PW 14 who conducted the test iden tification parades Now accused Nos. 3 and 5 had surrendered before the court on May 13, 1975. PW 14 received the requi sition for arranging a test identification parade on May 17, 1975. The identification parade was actually held on May 23, 1975. There ' is no valid explanation tendered by the prose cution for the delay in holding the. identification parades. The defence has suggested in the cross examination of PW 1 and PW 25 that in the meantime the accused who were in custody were shown to the witnesses and the police had secured a group photograph in which accused Nos. 3 and 5 figured to facilitate their identification. The High Court was, however, reluctant to place absolute reliance On the evidence of PW 1 regarding the identity of accused Nos. 3 and 5. In the absence of a ,valid explanation for the delay we do not think that this approach of the High Court can be said to be manifestly wrong to call for our intervention. ' In the result this appeal is partly allowed insofar as it relates to original accused No. 1 i.e., respondent No. 1 before us. The High Court 's order acquitting him is set aside. The appeal is, ' however, dismissed so far as original accused Nos. 3 and 5 i.e., respondent Nos. 2 and 3 before us are concerned We restore the order of conviction and sen tence of original accused NO. 1 respondent No. 1 recorded by the learned Additional Sessions Judge, Cuddapah for his involvement in the crime with several other unknown persons. We, however, give the benefit of doubt to original accused Nos. 3 and 5, i.e, respondent Nos. 2 and 3 and confirm the order of their acquittal recorded by tire High Court. The original accused No. 1 respondent No. 1 will submit to his bail forthwith The bail bonds in respect of other two respondents will stand cancelled.

One Ram Subba Reddy, an advocate, politician and a tradeunionist, was murdered on the night between 14th and 15th April, 1975, at his house in Proddatur, when the de ceased is stated to have received fatal blows by lethal weapons whilst his daughter (PW 1), sleeping nearby received injuries when she attempted to go to help her father. Ac cording to the prosecution, Accused No. 1 (Respondent No. 1), was a friend and a regular visitor to the house of the deceased, till they fell out on account of trade union activities. Accused No. 1 was the President of the workmen 's unions of Andhra Cotton Mills, Proddatur, International Packaging Company, Proddotur and Transport Workers, espous ing the cause of workmen and directing their union activi ties while the deceased, a practising Advocate represented the managements of these companies and tendered legal advice to them in connection with the various labour problems arising in those companies. The deceased who was a lawyer for the companies had advised the accused No. 1 not to resort to violence for settlement of industrial disputes. The fact that infuriated accused No. ' 1 further was the help which the deceased agreed to provide to PW 11 for setting up an office of INTUC in his own office. This was intended to counter the militant activities of Accused 1 who was in control of most of the labour unions in the town. According to the prosecution at about 3.30 a.m. on the day of occurrence, PW 1 who was sleeping on the terrace of the house nearby her father, woke up bearing the cries of her father ans saw accused 1 with 6 or 7 others stabbing her father with daggers. She raised an alarm and tried to go to rescue her father but she was prevented by three of them from getting up; accused No. 3 had gagged her mouth with his hand and had pinned her down to the cot. Thereafter accused 5 tried to stab her with a dagger twice but on both the occasions she warded off the blows and in the process sus tained injuries on her left index finger, 601 thumb and palm extending to another finger. After the as sailants left, she got down and informed her mother PW 2 about the incident; she opened the door to PWs 3 and 4, who were sleeping outside. She sent a message to the police through PW S, her neighbour, as telephone lines were cut. The police took up investigation and 19 persons including the respondents were put up for trial before the Additional Sessions Judge, Cuddapah on different charges e.g. criminal conspiracy, rioting and murder, etc. The learned trial judge came to ie conclusion that the prosecution had failed to establish the Charge of criminal conspiracy under Section 120B, I.P.C. It accepted the testimony of PWs 1to 5 and held (i) that the incident occurred at 3.30 a.m. on the terrace of the residence of the deceased; (ii) the injuries borne on the fingers of PW 1 were not self inflicted as suggested by defence and (iii) that the intimation of the incident was the police without loss of time. Accordingly the trial Judge convicted Accused Nos. 1 and 3 under Sections 148 and 302 and Sec. 324 with the aid of Section 149, I.P.C. and accused No. S under Section: 148, 302 and 324, I.P.C. and sentenced all the three to life imprisonment for murdering Ram Subba Reddy and to rigorous imprisonment for 3 years under section 148, IPC. The other 16 accused were acquitted. The convicted persons appealed to the High Court and the State filed an application for enhancement of the sentence imposed on Accused No. 1 to capital punishment. The High Court allowed the appeal by the convicted persons and acquitted them. Hence this appeal by the State against the order of acquit tal, by special leave. The High Court bold that the evidence of PW 1 is tainted in that the names of accused 2 and 4 who were strangers to her figure in her statement Exh. P 1 and further her statement regarding identity of Accused 3 and S was unacceptable. The High Court therefore found the evi dence led by the prosecution untrustworthy. and thus acquit ted the accused appellants before it. Partly allowing the appeal, this Court, HELD: On the question of presence of PW 1 in Proddatur on the date of the incident, apart from the oral evidence of PWs 1 to 3 and 5, there is the documentary evidence in the form of the entry exhibit S6 recorded by PW 24 in the general diary on April 15, 1975 at about 4 30 a.m. That entry was made on the information supplied by PW 5. It is clearly stated therein by PW S that he had been told by PW 1 that her father was murdered at his residence. It was on receipt of this information that the police went to the house of the deceased, drew up the inquest report and recorded the state ments of those present there including PW 1. The presence of PW 1 is, therefore clearly established 602 by this document prepared within an hour from the time of the incident. This contemperaneous document corroborates the oral evidence of the aforesaid witnesses. [614A.C] The High Court failed to realise that when an injury is on an accessible part of the body, which the individual can himself reach, such an injury could also be self inflicted and when a medical witness is asked if it was possible to self inflict it he would have to answer in the affirmative unless the direction of the injury or such other factors show otherwise. But merely because the medical officer says that they could be self inflicted, there is no reason to jump to such a conclusion unless. circumstances establish such a possibility. In the present case there was hardly any opportunity to self inflict them. Her not being a left hander should make no difference because she is bound to use that hand to ward off the blows if her assailant is on that side of her bed. The High Court was not justified in con cluding that PW 1 had self inflicted the wounds found on her left hand. This conclusion of the High Court is, to say the least, wholly conjectural and totally against the weight of evidence on record. [615F 616A] Once it is accepted that PW 1 had slept on the terrace and had sustained the injuries in the incident, her evidence regarding the identity of accused No. 1 who was quite well known to her cannot be doubted. [616G] The evidence of PW1 is that when she heard the cries of her father she woke up and saw accused No. 1 and six or seven others belabouring him. This means that she did not know and could not identify the companions of accused No. 1. However, when she tried to raise an alarm three of the assailants approached her and pinned her down to the bed, and one of them threatened to stab her. He did carry out his threat as is evidenced from the injuries sustained by her. She was able to identify two of them at the identification parade held on May 23, 1975. This is proved through the evidence of PW 14 who conducted the test identification parades. Now accused Nos. 3 and S had surrendered before the Court on May 13, 1975. PW 14 received the requisition for arranging a test identification parade on May 17, 1975.the identification parade was actually held on May 23, 1975 There is no valid explanation tendered by the prosecution for the delay in holding the identification parades. The High Court was reluctant to place absolute reliance on the evidence of PW 1 regarding the identity of accused Nos. 3 and 5. In the absence of a valid explanation for the delay, the Court did not think that this approach of the High Court can be said to be manifestly wrong to call for intervention. [617A E] 603 The Court, in the result, partly allowed the appeal in so far as it related to original Accused No. 1 respondent No. 1 set aside the High Court 's order acquitting him and restored the order of trial Judge convicting and sentencing him. The Court affirmed the High Court 's order of acquittal passed in respect of other accused, giving them the benefit of doubt. [617E G] State of Jammu and Kashmir vs Hazara Singh & Anr., , referred to.

Appeal No. 2111 of 1966. Appeal by special leave from the judgment and decree dated July 9, 1965 of the Madhya Pradesh High Court, Indore Bench in Second Appeal No. 254 of 1962. Rameshwar Nath and Mahinder Narain, for the appellant. M. C. Bhandare, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the respondents. The Judgment of the Court was delivered by Shah., J. Of Khasra Nos. 33 & 34 of Maheshwar, District Khargone, Madhya Pradesh, Nathu Prasad hereinafter called the plaintiff is the recorded pattedar tenant. On May 20, 644 1955 he granted a sub lease of the land, for a period of five years, to Ranchhod Prasad and Onkar Prasad hereinafter collectively called 'the defendants '. On June 30, 1960 the plaintiff commenced an action in the Court of the Civil Judge, Maheshwar against the defendants claiming that the sub lease being in contravention of section 73 of the Madhya Bharat Land Revenue and Tenancy Act 77 of 1950 the 'defendants were trespassers in the land. The defendants contended that the lease was valid, and since the plaintiff had received consideration, he was estopped from setting up the plea of invalidity of the lease. The Trial Court decreed the action, holding that the defendants were tres passers and could not acquire Bhumiswami rights claimed by them. The District Court agreed with the Trial Court. In second appeal the High Court of Madhya Pradesh allowed the appeal and dismissed the plaintiff 's action. In the view of the High Court the defendants had acquired rights as occupancy ,tenants under section 185(1)(ii)(b) of the Madhya Pradesh Land Revenue Code. In so holding the High Court relied upon the judgment of the Madhya Pradesh High Court Rao Nihalkaran vs Ramchandra(1). With special leave, the plaintiff has appealed to this Court. Section 73 of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) provides : "No Pakka tenant shall sub let for any period whatsoever any land comprised in his holdings except in the cases provided for in section 74. Explanation Section 74 deals with sub letting by disabled persons. Since the plaintiff is not a disabled person, the section need not be read. Section 75 provides : "A sub lease of the whole or any part of the holding of a Pakka tenant effected properly and legally prior to the commencement of this Act shall terminate after the expiry of the period of sub lease or 4 years after the commencement of this Act, whichever period is less." Section 76 provides. "(1) If the sub lessee does not hand over possession of the land sub let to him after the sub lease ceases to be in force under sections 74 and 75 to the lessor or (1) 645 his legal heir " he shall be deemed to be a trespasser and shall be liable to ejectment in accordance with the provisions of this Act. (2) . . " Section 78 provides "(1) Any possession who in contravention of the provisions of this Act, obtains possession of any land by virtue of a bequest, gift, sale, mortgage or sub lease, or of any agreement purporting to be a bequest, gift, sale, mortgage or sub lease shall be deemed to be a trespasser and shall be liable to ejectment in accordance with the provisions of section 58. . " The Madhya Bharat Legislature enacted the Madhya Bharat Ryotwari Sub lessee Protection Act, 1955 (Act 29 of 1955). The Act came into force on October 19, 1955. The Act was en acted to provide for stay of proceedings under section 76(1) for the ejectment of sub leases of ryotwari land after the termination of sub leases according to section 75 of the Madhya Bharat Land Revenue and Tenancy Act Samvat 2007. "Ryotwari sub lessee" was defined in cl. (b) of section 2 as meaning "a person to whom a pakka tenant of any Ryotwari land has sub let on sub lease any part of his Ryotwari land". Section 3 of Act 29 of 1955 provides: "Nothwithstanding anything contained in section 76 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, during the continuance of this Act but subject to the provisions contained in section 4 below, no Ryotwari sub lessee other than a sub lessee under section 74 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, and a sub lessee deemed to be a trespasser under section 78 of the said Land Revenue and Tenancy Act, shall be ejected from his land. " Section 3 clearly grants protection during the continuance of the Act to sub lessees. But sub lessees under section 74 of the Madhya Bharat Land Revenue and Tenancy Act and a sub lessee deemed to be a trespasser under section 78 of that Act are outside that protection. The Madhya Pradesh Land Revenue Code (Act 20 of 1959) was enacted by the State Legislature and was brought into force in the whole of the State of Madhya Pradesh. By that Code. Act 29 of 1955 was repealed. The expression "tenant" was defined in section 2 (y) as meaning "a person holding land from a Bhumiswami as an occupancy tenant under Chapter XIV. " Section 185, insofar as it is relevant, provides; 646 " (i) Every person who at the coming into force of this Code holds (ii) In the Madhya Bharat region (a) any Inam land as a tenant, or as a sub tenant or as an ordinary tenant ; or Explanation (b) any land as ryotwari sub lessee as defined in the Madhya Bharat Ryotwari Sub lessee Protection Act, 1955 (29 of 1955); or shall be called an occupancy tenant and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code. " By section 185 of the Madhya Pradesh Land Revenue Code a person who is holding land ,is a ryotwari sub lessee under Act 29 of 1955 is deemed to be an occupancy tenant and is entitled to all the rights and is subject to all the liabilities conferred or imposed upon an occupancy tenant by or under the Madhya Pradesh Land Revenue Code. A person inducted as a sub lessee, but who by express pro vision contained in section 73 read with section 78 of Act 66 of 1950 is declared a trespasser, does not acquire the status of an occupancy tenant under section 185 (1) (ii) (b) of the Madhya Pradesh Land Revenue Code. Act 29 of 1955 conferred protection only upon a ryotwari sub lessee, and a ryotwari sub lessee was defined in that Act as meaning a person in whose favour the land was settled. A person, the lease, in whose favour was declared void by virtue of Act 66 of 1950, could not claim the status of a sub lessee. That is so enacted in section 3 which excludes from the protection granted by Act 29 of 1955, amongst others, a sub lessee deemed to be a trespasser under section 78 of Act 66 of 1950. A person inducted as a sub lessee contrary to the provisions of section 73 of Act 66 of 1950 did not therefore acquire any right under a contract of sub letting and his possession was not protected under Act 29 of 1955. Such a person is not a ryotwari sub lessee as defined in the Madhya Pradesh Ryotwari Sub lessee Protection Act 29 of 1955, and it is only on "Ryotwari sub lessee" as defined in that Act that the right of occupancy tenant is conferred by section 185 (1) (ii) (b) of the Madhya Pradesh Land Revenue Code. Krishnan, J., regarded himself bound by the following observation made by a Division Bench of the Madhya Pradesh High Court in Rao Nihalkaran 's case(1) (1) 647 "By section 3 of this Act (Act 29 of 1955) a bar was created to the ejectment of these sub lessees whose continuance had become precarious under the existing law. The bar was to operate during the continuance of that Act which was for a definite duration notwithstanding anything contained in section 76 and 78 of the Madhya Bharat Land Revenue and Tenancy Act barring exceptions contained in section 74 of that Act. " The observation that protection was given to sub lessees, notwithstanding anything contained in section 78 was apparently made through oversight; it is contrary to the express provisions of the Act. The High Court was, in our judgment, in error in holding that the defendants had acquired the status of occupancy tenants by virtue of section 185(1)(ii)(b) of the Madhya Pradesh Land Revenue Code (Act 20 of 1959). The appeal is allowed. The order passed by the High Court is set aside and the decree passed by the District Court is restored. There will be no order as to costs in this Court and in the High Court. R.K.P.S. Appeal allowed.

The respondents were inducted as sub lessees in contravention of 'section 73 of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, 1950. On the question whether they acquired rights as occupancy tenants under section 185 (1) (ii) (b) of the Madhya Pradesh Land Revenue Code. HELD : A person inducted as a sub lessee, but who by express provision contained in section 73 read with section 78 of Act 66 of 1950 is declared a trespasser, does not acquire the States of an occupancy tenant under section 185(1)(ii)(b) of the Madhya Pradesh Land Revenue Code. Act 29 of 1955 conferred protection only upon a ryatwari sub lessee, and a ryotwari sub lessee was defined in that Act as meaning a person in whose favour the land was settled. A Person, the lease in whose favour was declared void by virtue of Act 66 of 1950, could not claim the status of a. sub lessee. That is so enacted in section 3 which excludes from the protection granted by Act 29 of 1955, amongst others, a sub lessee deemed to be a trespasser under section 78 of Act 66 of 1950. A person inducted as a sub lessee contrary to the provisions of section 73 of Act 66 of 1950 did not, therefore, acquire any right under a contract of sub letting, and his possession was not protected under Act 29 of 1955. Such a person is not a ryotwari sub lessee defined in the Madhya Bharat Ryotwari Sub lesse protection Act 29 of 1955, and it is only on 'Ryotwari sub lessee ' as defined in that Act that the right of occupancy tenants conferred by section 185(1)(ii)(b) of the Madhya Pradesh Land Revenue Code. [646 E] The observation contra in Rao Nihalkaran vs Ramchandra , disapproved.

(Civil) No. 231 of 1987. (Under Article 32 of the Constitution of India). Soli J. Sorabjee, P.H. Parekh, Rajender Mahapatra and Ms. Ayesha Misra for the Petitioner. K.K. Venugopal, D.R. Dhanuka, Mr. Kapil Sibal, Lalit Bhasin, Vineet Kumar and Ms. Nina Gupta for the Respondents. The following Judgments of the Court were delivered by KHALID, J. In this writ petition, filed by an Air India employee, who at the relevant time was Deputy Chief Air Hostess, notice was taken for the respondents when the matter came up for admission. We directed the respondents to file their Counter Affidavit. Accordingly Counter Affidavit has been filed. The Petitioner has filed her Rejoinder Affidavit also. Heard the learned counsel on both sides at some length. Under the existing rules, namely Regulation 46(1)(c) of the Service Regulation the petitioner was to retire on 28 2 1987 and in fact she retired on that date. The prayer in the writ petition is to quash the letter sent to her retiring her on 28 2 1987, to declare Regulation 46(1)(c) ultra vires, to direct reconsideration of the decision in Air India vs Nargesh Meerza, ; and to declare that the petitioner will retire only on her attaining the age of 58 years. Identical questions were raised before this Court in a few writ 730 petitions earlier by some other employees of Air India and they were considered at length by a bench of three Judges in Air India vs Nargesh Meerza and were considered in favour of Air India. We are bound by this decision. The learned coun sel for the petitioner submits that this decision needs reconsideration and made a fervent appeal to us to refer the matter for that purpose. We do not feel persuaded to accept this request. The main thrust of the submissions by the petitioner 's counsel is based on Article 14 and Article 15 of the Consti tution of India, in that Air India discriminates between the Air Hostesses and the officers like the petitioner of Indian origin and of foreign origin who are employees of Air India. The contention is that while the employees of India origin have to retire at 35 years with extension till 45, those of foreign origin can go beyond 45 years. This contention also was considered by this Court in the decision referred above. The case that Air Hostess recruited outside India can be in the employment of Air India beyond 45 years is met in the Counter Affidavit in the following paragraph: " . . Therefore, I submit that so far as Air India is concerned, it has not fixed any higher retirement age for Air Hostesses who are recruited outside India. In U.K. there are only six Air Hostesses and they are also being phased out. The Senior most Air Hostess in U.K. in terms of age is 41 years old. It is further pertinent to note that there are only six Air Hostesses presently employed in U.K. These Air Hostesses belong to different na tionalities and speak different European languages with a view to dealing with passen gers conversant only with these languages. I say that Air India has been encouraging its Indian Air Hostesses to learn European lan guages. In view of this position Air India is in the process of phasing out the European Air Hostesses employed in U.K. It is also perti nent to note that Air India has appointed a few Air Hostesses in Japan. These Air Hostess es were also appointed for the same reason i.e. their knowledge of the Japanese language. The Air Hostesses employed in Japan would also retire upon reaching the normal age of retire ment applicable to Indian Air Hostesses. I say that the service conditions and terms of appointment of the Air Hostesses appointed abroad are different than the service condi tions 731 of Air Hostesses appointed in India. It is of utmost importance to note that no Air Hostess appointed is promoted to the post of Deputy Chief Air Hostess, Additional Chief Air Host ess or Chief Air Hostess. These promotional avenues are available only to the Air Hostess es appointed in India From the above extract we find that Air India 's policy now is to phase out Air Hostesses recruited outside India and restore uniformity in their retirement age. In U.K., there are only six Air Hostesses, the senior most among whom is only aged 41. The provisions of Sex Discrimination Act, 1975 applicable to United Kingdom was brought to our notice. Part II deals with discrimination in the employment field. Section 6(1)(b) and Section 6(2) make discrimination against a woman in the terms of service, promotion opportunities and termination unlawful. But Section 6(4) protects provisions which relate to death and retirement from the vice of the above sections. We refer this only to reassure ourselves that it would be possible for Air India to phase out U.K. incumbents when they attain the age of 45. Air Hostesses employed in Japan would also retire upon reaching the normal age of retirement applicable to Indian Air Hostesses. It is useful to note that Air Hostesses who are recruited outside India are not entitled to the benefits of promotion to which Indian Air Hostesses are entitled. We are of the view that this should satisfy the petitioner. The case that the petitioner is not an Air Hostess, but belongs to a separate class can also not be accepted. This case did not find favour with this Court in the above deci sion either. The duties and functions of Deputy Chief Air Hostess includes operation service as a regular line Air Hostess and she will be required to perform the same func tions as that of other Air Hostesses. The writ petition thus is devoid of any merit and hence is dismissed. OZA, J. Having gone through the judgment dictated by my learned brother Khalid J. although I agree with the conclu sions arrived at by him but will like to add my own reasons for the conclusions. When this petition came up before us the main ground which moved us to issue notice was that the Air India employ Indian as well as girls coming from different nationalities as air hostesses and in respect of the age of retirement there are different rules for airhostesses recruited from different countries. It was alleged that whereas an Indian recruited as air hostess will normally retire at the 732 age of 35 years which could be extended upto 45, a British girl recruited as air hostess retires at the age of 55 years and this, according to the petitioner, was discrimination on the basis of colour. In return the stand taken by the Air India is that "As a matter of fact the Air Hostess recruited by British Airways in India retire at the age of 36 years in India whereas their counterparts in U.K. retire at the age of 55 years. " It is unfortunate that the second respondent a Corporation which is for all purposes State within the meaning of the term as provided in Article 12 of Constitution of India should follow the British Airways in treating Indians dif ferentially and discriminate against them. Reliance was also placed in return on the decision of this Court in Air India etc. vs Nergesh Meerza & Ors. ; , In return a passage has been quoted which appears at page 472 of the judgment. It is true that this is what has been observed in this judgment by a Bench of three Judges of this Court. It is observed: " . . There is no complaint by the peti tioners that between the separate class of AHs inter se there has been any discrimination regarding any matter. In fact, the only point raised on this aspect was that AHs employed by A.I. in U.K. have different conditions of service from AHs serving A.I. in countries other than U.K. Doubtless this distinction is there but this is really a fortuitous circum stances because A.I. was forced to comply with the local laws of U.K. in order to increase the age of retirement of AHs posted in Eng land. Surely we cannot expect A.I. to commit an offence by violating the laws of U.K . . " It appears as it was also contended that they are bound by the decision of this Court. It is no doubt true that this is the decision which is binding but even in a situation as has been indicated in this judgment that Air India in order to avoid committing an offence in accordance with the law of United Kingdom is choosing to disregard Article 14 of the Constitution. But I have no hesitation that an Indian citi zen in such a situation would prefer to walk off from a State where he may have to flout our Constitution to save himself from commission of an offence. All the more the same is expected of respondent No. 2, a corporation controlled by the Government of India. It is expected that this corpora tion would abide by the requirement of article 14 rather than anything else. If need be, it has to walk out of a country where it may become impossible to act in accordance with the ideals of our Constitution or where it may become necessary to disregard the provisions of our 733 Constitution and it is not something new as we have been keeping away from countries which follow apartheid policies. But I am happy that Shri Venugopal, senior advocate appear ing for respondent No. 2 frankly stated that his colleague learned counsel Shri Lalit Bhasin got the United Kingdom Sex Discrimination Act, 1975 further examined and now it is clear that in view of Section 6 sub clause 4 of that Act it will not be a contravention of that law to have the same age of retirement for an air hostess recruited in U.K. as is provided for an airhostess recruited of Indian origin. It appears that this was the law (United Kingdom Sex Discrimi nation Act, 1975) which was perhaps in the minds of the Judges in Air India 's case. In view of this learned counsel frankly stated that henceforth air hostesses recruited anywhere will be treated in the same manner as air hostesses recruited from India and it is only on this frank admission made by learned counsel for respondent No. 2 that we see no reason to entertain the petition. In this view of the matter I agree with the con clusions reached by my learned brother, Khalid, J. A.P.J. Petition dismissed.

The prosecution alleged that in order to wreak their vengeance on account of long drawn litigation in respect of certain agricultural property between P.W. 1 and the appel lants two real brothers and their three sons, the appel lants effected entry on the night of 13/14 8 1984 into the courtyard of the adjoining house where P.W. 1 and her two daughters. were sleeping and brutally attacked them with gandasas and a banka. The younger daughter was repeatedly struck with a gandasa and her neck was severed, as a result of which she died instantaneously, while the other daughter was struck on the neck and face with a banka and her right hand was chopped off with the gandasa, and she died later in the hospital. P.W. 1 was struck on the face and upper part of the body with the gandasa. She ran from the house through the village abadi and narrated the incident to P.W. 2 who, in turn, informed P.W. 5, the Village Pradhan. After visit ing the scene of offence, P.W. 3 filed a First Information Report. The appellants were tried and the two brothers were convicted under Section 302 of the Indian Penal Code on two counts of murder and were awarded capital punishment while the other three appellants were convicted under Section 302 read with Section 149 of Indian Penal Code and sentenced to life imprisonment. All the appellants were also convicted under Section 148 of the Indian Penal Code. 723 The High Court, affirming the conviction and sentences awarded to the two brothers, observed that it was satisfied that this was one of the 'rarest of the rare cases ' where death penalty was the only appropriate sentence which ought to be imposed on them. Dismissing the appeal, this Court HELD: 1.1 It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. [726B] 1.2 The punishment must fit the crime. The present cases were cold blooded brutal murders in which two innocent girls lost their lives. The extreme brutality with which the appellants acted shocks the judicial conscience. The only punishment which the appellants deserve for having committed the reprehensible and gruesome murders of two innocent girls to wreak their personal vengeance over the dispute they had with regard to property with their mother is nothing but death. [725H; 726B C] 1.3 Failure to impose death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality, will bring to naught the sentence of death provided by Section 302 of the Indian Penal Code. [726A B] 1.4 As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death on the two appellants is confirmed. [726C] 1.5 The two appellants were guilty of a heinous crime out of greed and personal vengeance and deserve the extreme penalty. This case falls within the test 'rarest of the rare cases ' as laid down by this Court. [725G H] Bachan Singh vs State of Punjab, [1980] SCC 684 and Machhi Singh vs State of Punjab, referred to.

Civil Appeal No. 7494 of 1983 Appeal by Special leave from the Judgment and order dated the 6th May, 1981 of the Punjab & Haryana High Court in R S A. No. 2944 of 1980. S.K. Bagga for the Appellants. The Judgment of the Court was delivered by MADON, J. This appeal by special leave from the Judgment and ' and decree in Second Appeal of the Punjab and Haryana High Court involves the determination of the question whether section 60 of the Code of Civil Procedure, 1908, applies to an attachments and sale in revenue recovery proceedings adopted under the Punjab Land Revenue Act, 1887 (hereinafter referred to as "the said Act"). The facts which have given rise to this question are that Dina Nath the Respondent along with one Gora Lal and Sat Pal, had been granted a liquor vending licence for the year 1968 69 ' by the Excise and Taxation Department of the State of Punjab, Patiala Division, in respect of which they had to pay a sum of Rs. 1,38,000 as licence fee. The licences paid a sum of Rs. 86,450, leaving the balance unpaid in spite of repeated reminders. Ultimately, recovery proceedings under the said Act were started by the department and the Collector. Excise and Taxation Department, Patiala, by his order 846 dated January 16, 1976, issued a proclamation prohibiting the transfer or creation of a charge by the Respondent of his half share in an immovable property consisting of a plot of land bearing Khewat No. 374, Khatuni NO. 511. Khasra No. 39710 19, situate in village Ghagga, with a building constructed thereon. The auction in respect of the said share of the Respondent in the said property was notified for June 14,1977. Just a day prior to the holding of the said auction sale the Respondent filed a suit in the Court of Sub Judge, 1st Class, Patiala C, being Suit No. 472/13 6 77, against the State of Punjab and the Collector cum Deputy Excise and Taxation Commissioner, Patiala Division, for a permanent injunction restraining the State and the Collector cum Deputy Excise and Taxation Commissioner from auctioning his said half share. The contention of the Respondent was that a part of the building standing on the said plot of land was being used by him for his residence and he had no other residential house and, therefore, his said half share was exempt from attachment under clause (ccc) of the proviso to sub section (l) of section 60 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code '), inserted in the said section 60 by a State amendment. The proviso to sub section (I) of the said section 60 sets out the properties which are not liable to attachment or sale, and the said clause (ccc) provides as follows: "(ccc) one main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment debtor other than an agriculturist and occupied by him; Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered. " It is pertinent to note that in the said suit the Respondent did not challenge his liability to pay the amount claimed from him. Several contentions were raised in the written statement filed by the Appellants, who were the defendants to the said suit, including the contention that the property attached and notified for sale was not exempt from attachment and sale. The Appellants also contested the jurisdiction of the court. The Trial Court upheld both these contentions and dismissed the suit with costs. The Respondent then filed 847 an appeal to the District Judge, Patiala, being Civil Appeal No. 554 of 5.9.79. The Additional District Judge, Patiala, who heard the said appeal, dismissed it with costs. The Respondent thereupon approached the Punjab and Haryana High Court in second appeal, being Regular Second Appeal No. 294 1 of 1980. The learned, Single t Judge of the High Court, who heard the said appeal, after observing that "the conclusion arrived at by the trial court on facts was per verse whereas the appellate court applied totally a wrong law in deciding the appeal", allowed the said second appeal, holding 'that the portion of the said building used for residence was exempt from attachment and sale under clause (ccc) of the proviso to the said section 60, while that portion in which the liquor shop was situated was liable to be attached, and accordingly issued a permanent injunction with regard to the portion in which the Respondent was residing and dismissed the suit so far 'as it related to the portion of the building in which the liquor shop was situated. The parties were further directed tn bear their own costs. The question of jurisdiction of the civil court to entertain and try the suit filed by the Respondent does not appear to have been raised before the High Court. It is against this judgment and decree of the High Court that this appeal is directed. In our opinion, the learned Single Judge of the High Court was wrong both in his criticism of the subordinate courts and in allowing the Respondent 's said Second Appeal. Section 60 of the Code specifies the properties which are liable to attachment and sale in execution of a decree. The opening words of sub section (I) of section 60 are "The following property is liable to attachment and sale in execution of a decree". Clause (2) of section 2 of the Code ' defines the term "decree". The relevant provisions of the said definition are as follows: "(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with ' regard to all or any of the matters in controversy in the ' suit and may be either preliminary of final. " Section 60 of the Code thus applies only to execution of the decrees of civil courts and declares what properties are liable to be attached and sold in execution of such a decree and the proviso to sub section (1) of section 60 sets out the properties which are not liable to such attachment or sale, The opening words of the said 848 proviso are "Provided that the following particulars shall not be liable to such attachment or, sale, namely".: The expression "such attachment or sale" in the said proviso refers to the attachment and sale mentioned in sub section (1) of section 60, that is, to attachment and sale in execution of a a decree. On a plain reading of the said section 60, it is clear that section has no application to attachment and sale in any proceedings other than in execution of a decree of a civil court. , The provisions of section 60 of the Code do not apply to an attachment and sale under any of her statute made expressly applicable thereto. So far as the said Act is concerned, it contains a complete code providing for the modes and machinery for recovery of arrears of revenue. The attachment in a question was levied under the provisions of the said Act and the sale which was notified was also under the provisions of the said Act. The attachment levied on, and the auction sale notified in respect of, the Respondent 's half share in the said property were not in execution of any decree of a civil court but were in pursuance of the order made by an officer authorized to adopt proceedings under the said Act for recovery of revenue due to the State. There is no provision in the said Act which makes the provisions of section 60 of the Code applicable to attachment and sale for recovery of revenue under the said Act. The properties, if my, which are exempt from attachment and sale in revenue recovery proceedings under the said Act would be only such properties as are so exempted by the said Act. There is no provision in the said Act corresponding to cl. (ccc) of the proviso to sub section (1) of section 60 of, the Code, and the half share of the Respondent in the said property was, therefore, not exempt from attachment and sale in revenue recovery proceedings adopted under the said Act. Consequently, the Respondents suit was liable to be y dismissed on this ground alone. For the reasons set out above, we allow this appeal and set aside the Judgment and Decree of the Punjab and Haryana High Court and dismiss with costs the said Regular Second Appeal No. 2944 of 1980 filed by the Respondent 2nd restore the decree passed by the Addition District Judge, Patiala C. in Civil Appeal No. 554 of 5.9.79 and the decree passed by the Sub Judge, 1st Class, Patiala C, in Suit No. 472/13.6.7?. The Respondent will pay to the Appellants the costs of this appeal.

This batch of appeals arose out of admissions sought by several candidates to post graduate courses in the Medical Colleges of Uttar Pradesh. While in some of them the candidates were the appellants and the State the respondent, in others it was vice versa. By an order dated 3 12 1980 the State Government had laid down that admissions were to be made purely on the basis of merit, the criterion being the total percentage of marks obtained by the candidate in the M.B.B.S. examination. In as many as 9 out of the 20 appeals, the candidates who had been given provisional admissions pursuant to interim orders made by the Court had completed their courses and only their results were to be declared. In all those cases, the State, realising the futility of forcing the candidates to complete the course all over again, conceded that the results of such candidates may be declared and on passing the same they would be admitted to the courses concerned though the candidates in question were lacking in merit and their original rejection was justified. In one of the appeals filed by the State, the candidate in question had obtained only 43 percent marks at the M.B.B.S. examination and happened to be the last candidate in the list of persons who had applied for admission to the post graduate course. Although the candidate had merely prayed for a writ directing the State or the college to consider his case for admission, the High Court, relying mainly on the fact that the candidate had a diploma to his credit, straightway issued a writ of mandamus directing the college to admit him to the course applied for, thereby granting a relief which the candidate himself had not prayed for. HELD: The practice of forcing the authorities to grant provisional admissions has been evolved keeping in view the fact that on account of huge accumulation of arrears in courts it takes a long time for petitions to be disposed of. By the time the cases come up for hearing, the rejected candidates might have completed their course and become eligible for admission to the higher course although the court may ultimately find that their initial rejection was justified and they did not deserve to be admitted to the course. Such a situation becomes a sort of fait accompli for those in charge of the institutions 303 as a result of which the candidates are admitted in due deference to the desire of the court by increasing or creating vacancies even in the absence of proper facilities to train the extra candidates. Unless the institutions can provide complete facilities for the training of each candidate admitted in the various disciplines, the medical education will be incomplete and the universities would be turning out doctors not fully qualified which would adversely affect the health of the people in general. Therefore, the practice of lightly granting provisional admissions should be discontinued in future. Whenever a writ petition is filed, provisional admission should not be given as a matter of course on the petition being admitted unless the court is fully satisfied that the petitioner has a cast iron case which is bound to succeed or the error is so gross or apparent that no other conclusion is possible. In order to test this fact, even a short notice may be given to explore as to what the other side has to say and thereafter if the court is satisfied that there is a strong prima facie case and the matter needs thorough examination, provisional admission may be given. The State Government order dated 3 12 1980 prescribing the criteria for admission to post graduate courses in Medical Colleges made under s.28(5) of the U. P. State Universities Act, 1973, is fully consistent with the tenor and spirit of the rules framed by the Medical Council of India. The rules framed by the Medical Council of India have a statutory effect under s.33 of the and are binding on all the colleges and universities providing for medical education in the country. The High Court had made a very arbitrary, casual and laconic approach to the case of the candidate who had obtained 43 per cent marks and based its judgment purely on speculation and conjectures swept away by the consideration that the candidate possessed a diploma to his credit when, in fact, other candidates also had obtained diploma and that could not be taken into consideration under the prescribed rules.

l Appeals Nos. 1549 to 1552 of 1968. Appeals from the judgment and order dated September 28, 1964 of the Calcutta High Court in Income tax Reference No. 18 1961. Sukumar Mitra, section K. Aiyar, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellant (in all the appeals). 806 M. C. Chagla, T. A. Ramachandran and D. N. Gupta, for the respondent (in all the appeals). The Judgment of the Court was delivered by Ramaswami, J. These appeals are brought by certificate from the judgment of the Calcutta High Court dated 28th September, 1964 in Income Tax Reference No. 18 of 1961. The respondent (hereinafter called the assessee) is a private limited company incorporated in India and is a subsidiary of the Imperial Chemical Industries, London, which holds the entire share capital of the assessee. The business of the assessee consists mainly of acting as selling agents in India for a large variety of goods such as chemicals, dyes, explosives etc. , manufactured or purchased by its London principals and sold in India. The Imperial Chemical Industries (Export) Glasgow [hereinafter referred to as the I.C.I. (Export) Ltd.] is another subsidiary of I.C.I. London which holds the entire share capital of I.C.I. (Export) Ltd. The I.C.I. (Export) Ltd. had appointed as their selling agents in India four companies, viz., (1) Gillanders Arbuthnot & Co. Ltd., Calcutta, (2) Best & Co. Ltd., Madras, (3) Anglo Thai Co. Ltd. Bombay and (4) Shaw Wallace & Co. Ltd. With effect from 1st April, 1948, the I.C.I. (Export) Ltd. terminated the services of the aforesaid selling agents and appointed the assessee as its sole selling agent. The I.C.I. (Export) Ltd. had agreed to pay to the former selling agents compensation at the rate of two fifth, two fifth and one and two fifths of the commission earned by the assessee for the three years from 1st April, 1948. The compensation was paid to the four companies through the accounts of the assessee. For this purpose the modus operandi adopted was as follows : The compensation payable to the former agents was spread over a period of three years and on the assumption that the turnover was constant, the compensation payable to the selling agents was on an average, an amount equal to the 11/15th of the commission earned by the assessee at the normal rates. In order to arrive at the amount of commission to be credited to the assessee 's profit and loss account each year the assessee in the first place credited the commission account and debited the I.C.I. (Export) Ltd. account with the full amount of compensation earned by it at normal rates on sales effected during the year. Next, the assessee transferred from the commission account to a special reserve account called the 'Explosives Ex Agents Compensation Reserve Account ', the proportion payable to the ex agents as compensation, namely, 11/15th (2/5+2/5+7/5= 11/5 X 1/3 = 11/15) (leaving 4/15th towards commission account) so that funds might be accumulated for payment to the four companies from time to time. 807 The year of account of the assessee is from 1st October to 30th September every year. As a result of the above method of accounting, the following figures appeared in the assessee 's books of accounts Gross Transfer toNet Commission Reserve forCommission compensa tion Rs. Rs. Rs. 1st April 1948 to 30th September 1948 2,91,396 2,03,503 87,893 Year ending 30th September 1949 7,67,294 5,41,526 2,25,768 Year ending 30th september 1950 7,52,204 5,29,284 2,22,920 year ending 30 th september 1951 10,20,922 4,00,052 6,20,870 TOTAL 28,31,816 16,74,365 11,57,451 For the assessment years 1949 50, 1950 51, 1951 52 and 1952 53 the assessee showed the net amounts of commission earned on the selling agencies by the I.C.I. (Export) Ltd. adding a foot note that the amounts were arrived at after deducting the amount of compensation payable to the out going agents. By his order dated 28th January, 1957 for the assessment year 1951 52 the Income Tax Officer held that the deductions were not permissible. In an appeal preferred by the. assessee the Appellate Assistant Commissioner confirmed the assessment by his order dated 25th November, 1957. The assessee took the matter in further appeal to the Appellate Tribunal which dismissed the appeal. The Appellate Tribunal held that there was no justification for the absence of a written agreement between the I.C.I. (Export) Ltd. and the assessee when the former selling agencies were terminated and the assessee was appointed as the sole selling agent. It was observed that the assessee was not collecting any commission on behalf of the outgoing agents and it was not their legal obligation to pay compensation to the out going agents. If the assessee was not entitled to more than 3/5th of commission during the first two years, it should have credited that amount whereas the assessee had actually credited four fifteenth on a notional basis which was not in consonance with the arrangement. The conclusion reached by the Appellate Tribunal was that "there was no agreement between the assessee and the I.C.I. (Export) Ltd. and if there was one it was not acted upon". It was held by the Appellate Tribunal that the payment of compensation was not because of an overriding title created either by the act of the parties or by operation of law. At the instance of the assessee the following question of law was referred to the High Court under section 66(1) of the Income Tax Act, 1922 (hereinafter called the Act): 808 "Whether the inclusion by the Income Tax officer. of Rs. 2,03,503, Rs. 5,411,526, Rs. 5,29,284 and 4,00,052 in the assessment for the years 1949 50, 1950 51, 1951 52 and 1952 53, for relevant accounting years ending the 30th Sept. 1948, 1949, 1950 and 1951 respectively in the computation of the total income of the assessee is justified and correct ?" The High Court answered the question in the negative in favour of the assessee holding that the inclusion of the amount of compensation in the total income of the assessee for the relevant assessment years was not justified. On behalf of the appellant it was contended that the High Court had no legal Justification for interfering with the finding of the Appellate Tribunal that there was no proof of the agreement between the assessee and the I.C.I. (Export) Ltd. with regard to the quantum of commission to be paid to the assessee for the period between 1st April, 1948 and 31st March, 1951. On this point reference was made by Mr. Chagla to (a) the letter dated 11th March, 1947 from the I.C.I. (Export) Ltd. to M/s. Gillanders Arbuthnot & Co., (b) the affidavits of Mr. W. A.Bell and Mr. J. W. Donaldson and (c) the letter dated 3rd January, 1958 of M/s. Lovelocke and Lewes, Chartered Accountants, Calcutta. It was argued that these documents established that there was an agreement between the I.C I. (Export) Ltd. and the assessee, that for the period 1st April 1948 to 31st March, 1951 the assessee was entitled to receive as its commission only the amounts representing the, difference between the normal rates of commission and the compensation payable to the former agents during that period. The Appellate Tribunal had considered all these documents and reached the conclusion that there was no agreement between the I.C.I. (Export) Ltd. and the assessee and 'if there was one it was not acted upon '. The Appellate Tribunal remarked that the letter dated 11th March, 1947 from the I.C.I. (Export) Ltd. set forth only the terms and conditions subject to which the selling agencies of the out going agents were terminated. It was silent on the crucial question of commission to be paid to the assessee during the three years from the date of its appointment as sole selling agent. The affidavits of Mr. Bell and Mr. Donaldson were produced for the first time before the Appellate Assistant Commissioner. The affidavits were made many years 'after the crucial date of the appointment of the assesee as the sole selling agent of the I.C.I. (Export) Ltd. The affidavits did not mention the amount of commission to be paid to the out going agents and the affidavits were also not consistent with the entries in the books of accounts of the assessee. The letter of M/s Lovelocke and Lewes was produced at a very late stage during the hearing of the appeal before the Tribunal and even, otherwise the 809 letter merely explains the method of accounting adopted by the assessee and did not carry the matter any further in the circumstances, the Appellate Tribunal held that there was no agreement between the assessee and the I.C.I. (Export) Ltd. and if there was any such agreement it was not acted upon. It is manifest that the finding of the Appellate Tribunal on this question is a finding on question of fact and the High Court was not entitled to interfere with this finding. It is well established that the High Court is not a Court of Appeal in a reference under section 66(1) of the Act and it is not open to the High Court in such a reference to embark upon a reappraisal of the evidence and to arrive at findings of fact contrary to those of the Appellate Tribunal. It is the, duty of the High Court while hearing the reference to confine itself to the facts as found by the Appellate Tribunal and to answer the question of law in the context of those facts. It is true that the finding of fact will be defective in law if there is no evidence, to support it or if the finding is perverse. But in the hearing of a reference under section 66(1) of the Act it is not open to the assessee to challenge such a finding of fact unless he has, applied for the reference of the specific question under s.66(1). In India Cements Ltd. vs Commissioner of Income Tax( ') it was held by this Court that in a reference the High Court must accept the findings of fact reached by the Appellate Tribunal and it is for the party who applied for a reference to challenge those findings of fact, first, by an application under section 66(1). If the party concerned has failed to file an application under section 66(1) expressly raising the question about the validity of the finding of fact, he is not entitled to urge before the High Court that the finding is vitiated for any reason. The same view has been expressed by this Court in Commissioner of Income Tax vs Sri Meenakshi Mills Ltd.(2) and Commissioner of Income Tax, Bombay City I vs Greaves Cotton & Co. Ltd.(3).In the present case the assessee has in his application under s.66(1) expressly raised the question about the validity of the finding of the Appellate Tribunal as regards the agreement but the question was not referred by the Appellate Tribunal to the High Court and the contention of the assessee with regard to the question must be deemed to have been rejected. The assessee did not thereafter move the High Court under section 66(2) of the Act requiring it to call for a statement of the case on that specific question. We are therefore of opinion that the High Court was in error in embarking upon a reappraisal of the evidence before the Appellate Tribunal and setting aside the finding of the Appellate Tribunal that "there was no agreement as alleged in the affidavits of Mr. W. A. Bell and Mr. J. W. Donaldson and "if there was such an agreement it was not acted upon". (1) (2) (3) 810 It was argued by Mr. Chagla that even if the agreement was not established,, the amount, Paid by the assessee as compensation to the ex agents was an expenditure laid out wholly and exclusively for the purpose of the business such is allowable under s.10(2) (xv) of the Act. The contrary view point was urged on behalf of the appellant,. It was pointed out that the assessee was acting as the agent of the I.C.I. (Export) Ltd. for the payment of compensation of the ex agents and the payment was made not in the character of a trader but in the character of the agent of its Principal. The contention of the appellant was that the assessee got the right to sell goods after 1st April 1948 and for getting that right the assessee parted with a portion of its commission for the first two years after 1st April 1948 and paid very much more than the commission earned in the third year. This position was borne out by the accounts of the respondent which show that the assessee received the commission at full rates and out of it created a reserve account of which these compensations were made to the ex agents. We have already referred to the finding of the Appellate Tribunal that no agreement between the assessee and the I.C.I. (Export) Ltd. has been proved. In the absence of proof of the exact terms and conditions of the 'agreement it is not possible to accept the argument of the assessee that the amount paid as compensation to the ex agents was an "expenditure laid out wholly and exclusively for the purpose of the business" under section 10(2) (xv) of the Act. It was finaly contended on behalf of the respondent that by virtue of an overriding title the income was diverted before it reached the assessee, and so, the amount of compensation paid to the ex agents did not form part of the income of the assessee. In other words, the contention was that the compensation payable to the ex agents was diverted from the income of the assessee by ,an overriding title arising under the agreement between the assessee and the I.C.I. (Export) Ltd. The argument was stressed that the commission payable as compensation to the ex agents did not form part of the income of the assessee. We are unable to accept this argument as correct. We have already pointed out that the finding of the Appellate Tribunal is that the precise terms of the agreement between the assessee and the I.C.I EXPORT Ltd. have not been established. In any event, even on basis of the affidavits of Mr. Bell and Mr. Donaldson the payment of compensation to the " agents was apparently made by the assessee for and on behalf of the I.C.I. (Export) Ltd. The assessee 's documents suggest that the payment of compensation was the exclusive liability of the I.C.I. (Export) Ltd. and the assessee was not under a legal obligation to pay the amount of compensation to the out .going agents. It is not established that the payment of compensation ,was by an overriding title ,created either by the act of the parties 811 or by the operation of law. An obligation to apply the income in a particular way before it is received by the assessee or before it has accrued or arisen to the assesses results in the diversion of income. An obligation to apply income accrued, arisen or received amounts merely to the apportionment of income and the income so applied is not deductible. The true test for the application of the rule of diversion of income by an overriding title is whether the amount sought to be deducted 'in truth never reached the assessee as his income. The leading case on the subject is Raja Bejoy Singh Dudhuria vs Commissioner of Income Tax(1) where the step mother of the Raja had brought a suit for maintenance and a compromise decree was passed in which the step mother was to be paid Rs. 1,100 per month, which amount was declared a charge upon the properties in the hands of the Raja by the Court. The Raja sought to,deduct this amount from his assessable income, which was disallowed by the High Court at Calcutta. On appeal to the Judicial Committee Lord Macmillan observed as follows "But their Lordships do not agree with the learned Chief Justice in his rejection of the view that the sums paid by the appellant to his step mother were not 'income ' of the appellant at all. This in their Lordships ' opinion is the true view of the matter. When the Act by section 3 subjects to charge 'all income ' of the individual, it is what reaches the individual as income which it is intended to charge. In the present case the decree of the court by charging the appellant 's whole resources with a specific payment to his step mother has to that extent diverted his income from him and has directed it to his step mother; to that extent what he receives for her is not his income. It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allocation of a sum out of his revenue before it becomes income in his hands". Another case of the Judicial Committee is reported in P. C. Mullick vs Commisisoner of Income Tax(2), where, a testator appointed the appellants as executors and directed them to pay Rs. 1,00,000 out of the income on the occasion of his addya sradh. The executors paid Rs. 5,537 for such expenses, and sought to deduct the amount from the assessable income. The Judicial Committee confirmed the decision of the Calcutta High Court disallowing the deduction and observed that the payments were made out of the income of the estate coming to the hands of the executors and in pursuance of an obligation imposed upon them by the testator. The Judicial Committee observed that it was not a case in which (1) (2) 812 a portion of the income had been diverted by an overriding title from the person who would have received it otherwise and distinguished Bejoy Singh Dudhuria 's case(1). In Commissioner of Income Tax Bombay City II vs Sitaldas Tirathdas(2), Hidayatullah, J., speaking for the Court observed as follows "There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, if is deductible; but where the income is required to 'be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of one 's income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable". In view of the principle laid down in these authorities we are of ,opinion that the payment of compensation by the assessee to the ex agents was not by an overriding title created either by act of the parties or by operation of law. We accordingly reject the argument of Mr. Chagla on this aspect of the case. For the reasons expressed we hold that the judgment of the Calcutta High Court dated 28th September, 1964 should be set aside and the question referred by the Appellate Tribunal should be answered in the affirmative and against the assessee. The appeals are accordingly allowed with costs. One hearing fee. G.C. Appeals allowed.

The respondent landlord let out to the appellant four shops and later one let out to him two more shops. The respondent filed a suit alleging that subsequent to the letting of the shops, by a contract, the rent was consolidated and increased and that the shops were sub let by the appellant, so the appellant be ejected from all the six shops under section 13 (1) (e) of the Rajasthan Premises (Control of Rent and Eviction) Act. The appellant denied the contract and denied the subletting altogether. The trial court dismissed the suit, and the first appellate court affirmed the decree. Both these courts concurrently found that new contract of tenancy was not created, it was only an increase of rent, the other terms of the tenancy remained unaltered, and that the two shops were sub let but with the permission of the landlord. The High Court, in second appeal, reversed the decree of the courts below, and held that there was one integrated tenancy of all the shops, that the four shops were sub let with the permission of the landlord, but the later two were sub let without permission, and that having sub let a part of the premises without the permission, the decree for possession of all the shops must be passed. appeal to this Court, the appellant tenant contended that (i) the tenancy of all the six shops were not one integrated; (ii) two shops were not sublet without the permission of the landlord; and (iii) the sub letting was before the Jaipur Rent Control Order, 1947 came into force, which was repealed and continued by the promulgation of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, and therefore ejectment could not be claimed under section 13(1) (e) of the Act. HELD : The appellant could not be ejected from four shops, but ought to be ejected from the two shops. (i) A mere increase or reduction of rent does not necessarily import the surrender of the existing lease and the grant of a new tenancy. In the present case the first two courts on a review of the entire evidence came to the conclusion that the increase of rent did not import a new demise. This finding of fact was binding on the High Court in second appeal and it erred in holding that there was one integrated tenancy of the six shops. [991 H 992 B] (ii) In the absence of any pleading and any issue on the question of sub letting, the first two courts were in error in holding that the two shops were sub let with the permission of the landlord. The permission of the landlord for the sub letting cannot be established from the mere fact that the landlord realised rent after the sub letting in the absence of proof that the landlord had then clear knowledge of the sub lease. [992 D] The date of the sub letting of the two shops is not mentioned in the plaint. In the absence of any pleading and any issue on this question the 990 High Court was error in recording the finding that the two shops were sub let towards the end of 1947 after the Jaipur Rent Control Order 1947 came into force. It can only be said that the sub letting was sometime after 1945. [992 E] (iii) Section 13(1)(e) of the Act was intended to apply to sub letting before the Act came into force. If the tenant had sub let the premises without the permission of the landlord either before or after the coming into force of the 'Act, he was not protected from eviction under section 13(1) (e), and it matters not that he had the right to sub let the premises under section 108(j) of the Transfer of Property Act. The present perfect tense, by words "has sub let" in section 13(1)(e) of the Act contemplates a completed event connected in some way with the present time. The words take within their sweep any sub letting which was made in the part and has continued up to the present time. It did not matter that the subletting was either before or after the Act came into force. Further sections 26 and 27(1) of the Act contemplated that grounds of eviction mentioned in section 13 may have arisen before the Act came into force. [993 D 994 A]

: Special Leave Petition (Criminal) No. 2636 of 1979. From the Judgment and Order dated 25 4 1979 of the Bombay High Court in Criminal Appeal No. 822/77. Pramod Swarup (Amicus Curiae) for the Petitioner. H. R. Khanna and M. N. Shroff for the Respondent. The Judgment of the Court was delivered by KRISHNA IYER, J. Shri Pramod Swarup appearing as amicus curiae has presented the case of the accused as effectively as the record permits. Indeed, he has gone to the extent of pressing into service points which do not appear to us to have any force. Moreover, he has tried to persuade us to believe that a dying declaration made by the lady who was burnt to death by the husband accused that is the charge on which the trial court and the High Court have found the petitioner guilty is exonerative of the accused husband and does not implicate him as the Court has construed. The declarant as she was dying was 1210 conscious enough to make a statement and in one of the several statements she made, it would appear, she said when her husband was being beaten up that even though she had been burnt, her husband should not be beaten. This is a sentiment too touching for tears and stems from the values of the culture of the Indian womanhood. A wife when she has been set fire to by her husband, true to her tradition, does not want her husband to be assaulted brutally. It is this sentiment which prompted this dying tragic woman to say that even if she was dying having been burnt, her husband should not be beaten. We are unable to appreciate how this statement can be converted into one exculpative of the accused. Anyway, we are mentioning these facts only because Shri Pramod Swarup contended that they were weighty circumstances sufficient to cancel the conviction. Wife burning tragedies are becoming too frequent for the country to be complacent. Police sensitisation mechanisms which will prevent the commission of such crimes must be set up if these horrendous crimes are to be avoided. Likewise, special provisions facilitating easier proof of such special class of murders on establishing certain basic facts must be provided for by appropriate legislation. Law must rise to the challenge of shocking criminology, especially when helpless women are the victims and the crime is committed in the secrecy of the husband 's home. We hope the State 's concern for the weaker sections of the community will be activised into appropriate machinery and procedure. We dismiss the special leave petition. S.R. Petition dismissed.

Section 79 I.P.C. provides that nothing is an offence which is done by any person who is justified by law in doing it, or, who by reason of a mistake of fact in good faith, believes himself to be justified by law, in doing it. The respondent complainant alleged that the film Satyam Shivam Sundaram was by its fascinating title misleadingly foul and beguiled the guideless into degeneracy and that obscenity, indecency and vice were writ large on the picture, constituting an offence under section 292 I.P.C. The Magistrate after examining some witnesses, took cognizance of the offence and issued notice to the appellant producer of the film. Thereupon the appellant moved the High Court under section 482 Cr. P.C. on the score that the criminal proceeding was an abuse of the judicial process and that no prosecution could be legally sustained as the film had been duly certified for public show by the Central Board of Film Censors. The High Court, however dismissed the petition. In the appeal to this Court it was contended on behalf of the appellant that once a certificate sanctioning public exhibition of a film had been granted by the competent authority under the , there was a justification for its display thereafter, and by virtue of the antidotal provisions in section 79 I.P.C., the public exhibition, circulation or distribution of the film, even if it be obscene, lascivious or tending to deprave or corrupt public morals, could not be an offence, section 292 I.P.C. notwithstanding. Allowing the appeal, ^ HELD: 1. The prosecution is unsustainable because section 79 I.P.C. is exculpatory when read with section 5 A of the and the certificate issued thereunder, and is therefore quashed. [517 G] 2. It is an antinomy to say that under section 5A(1A) of the Act, the Board certifies a film as suitable for public exhibition and for section 292 I.P.C. to punish such exhibition unless the ground covered by the two laws be different. [516 B] 3. The Penal Code is general, the is special. The scheme of the latter is deliberately drawn up to meet the explosively expanding cinema menace if it were not strictly policed. The cinema is a great instrument for public good if geared to social ends and can be a public curse if directed to 513 anti social objectives. So the Act sets up a Board of Censors of high calibre and expertise, provides hearings, appeals and ultimate judicial review, the precensorship and conditional exhibitions and other policing strategies to protect state and society. [516D; G H] 4. Neither the Penal Code nor the can go beyond the restrictions sanctioned by of the Constitution and once the special law polices the area it is pro tanto out of bounds for the general law. Section 79 I.P.C. resolves the apparent conflict between section 292 I.P.C. and part II of the Act relating to certification of films. If the Board blunders, the Act provides remedies. [517 B C] 5. Jurisprudentially viewed, an act may be an offence, definitionally speaking; but a forbidden act may not spell inevitable guilt if the law itself declares that in certain special circumstances, it is not to be regarded as an offence. The chapter on General Exceptions operates in this province. Section 79 makes an offence, a non offence, only when the offending act is actually justified by law or is bona fide believed by mistake of fact to be so justified. [517 E] 6. Once the Board of Censors, acting within their jurisdiction and on an application made and pursued in good faith, sanctions the public exhibition of a film, the producer and connected agencies enter the statutory harbour and are protected because section 79 exonerates them in view of the bona fide belief that the certificate is justificatory. [517 F] 7. Freedom of expression is fundamental. The Censor is not the moral tailor setting his own fashions but a statutory gendarme policing films under Article 19(2) from the angle of public order, decency or morality concepts themselves dynamic, and which cannot be whittled down to strifle expression nor licentiously enlarged to promote a riot of sexual display. [518 E] K. A. Abbas vs The Union of India & Anr. ; ; referred to

nder Article 32 of the Constitution for the enforcement of fundamental rights. K.L. Gauba, (Gopal Singh, with him), for the Petitioners in Petitions Nos. 337 to 343 and 481 of 1954. K.L. Gauba, (section D. Sekhri, with him), for the Petitioners in Petitions Nos. 344, 446 and 349 of 1954. K. L. Gauba, (R. Patnaik and section D. Sekhri, with him), for the Petitioner in Petition No, 345 of 1954, 166 K.L. Gauba, (N. C.Chakravarty and section D. Sekhri, with him) for the Petitioner in Petition No. 347 of 1954. K.L. Gauba, (B. Moropant and section D. Sekhri, with him), for the Petitioner in Petition No. 348 of 1954. Rajni Patel and M. section K. Sastri, for the Petitioner in Petition No. 364 of 1954. Rajni Patel and I. N. Shroff, for the Petitioners in Petitions Nos. 365 and 366 of 1954. J.B. Dadachanji and Rajinder Narain, for the Petitioner in Petition No. 690 of 1954. M.C. Setalvad, Attorney General for India, C. K. Daphtary, Solicitor General for India (P. A. Mehta, R. H. Dhebar for P. G. Gokhale, with them), for the Respondents in all Petitions. April 6. The Judgment of the Court was delivered by BHAGWATI J. These petitions under article 32 of the Constitution are directed against the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953, Bombay Act XXXIX of 1954 which was passed by the Legislature of the State of Bombay to abolish jagirs in the merged territories and merged areas in the State of Bombay. The Bill was passed by the Legislature on the 22nd September 1953 and received the sanction of the Upper House on the 26th September 1953. The President gave his assent to it on the 13th June 1954 and by a notification dated the 15th July 1954 it was brought into effect from the 1st August 1954. In view of the notification the Petitioners filed these petitions on the 30th July 1954 challenging the vires of the Act (hereinafter called the impugned Act) and asking for the issue of appropriate writs restraining inter alia the State of Bombay from giving effect to its provisions. On applications made to this Court on the 31st July 1954 the operation of the impugned Act was stayed pending the bearing and final disposal of the petitions, 167 The Petitioners in Petitions Nos. 337, 344, 345, 346, 347 and 349 of 1954 are relations of the Ruler of the erstwhile State of Idar. The Petitioners in Petitions Nos. 338 and 342 of 1954 are relations of the Ruler of the erstwhile State of Chhota Udaipur. The Petitioners in Petitions Nos. 339 and 341 are relations of the Ruler of the erstwhile State of Devgad Baria. The Petitioner in Petition No. 343 of 1954 is a relation of the Ruler of the erstwhile State of Rajpipla. The Petitioners in Petition No. 340 of 1954 are jagirdars of the erstwhile State of Rajpipla. The Petitioner in Petition No. 348 of 1954 is a relation of the Ruler of the erstwhile State of Bansda. The Petitioners in Petitions Nos. 365 and 366 of 1954 are jagirdars of the erstwhile States of Idar and Lunawada respectively. The Petitioner in Petition No. 481 of 1954 is a relation of the Ruler of the erstwhile State of Mohanpur. The Petitioners in Petition No. 690 of 1954 are the holders of personal Inams from the erstwhile State of Rajpipla. All the petitioners except the last claim to be hereditary jagirdars under grants made by the respective States for the maintenance of themselves, their families and dependents and hold the jagirs as Jiwai Jagirs. The holders of the personal Inams in Petition No. 690 of 1954 used to pay salami to the erstwhile State of Rajpila and are included within the definition of "jagirdar" being holders of agir villages within the meaning of the definition thereof contained in the impugned Act. The Petitioner in Petition No. 364 of 1954 claims to be the owner of 60 villages in the patta or territory of Moti Moree comprised in the erstwhile State of Idar as the Bhumia or under lord and contends that his holding does not fall within the definition of jagir as given in the impugned Act and that therefore in any event the State of Bombay is not entitled to enforce the impugned Act against him. All these Petitioners have challenged the vires of the imapugned Act mainly relying upon the agreements of merger entered into by the Rulers of the respective States with the Dominion of India on or about the 19th March 1948 and the collateral letters of guarantee 168 passed by the Ministry of States in their favour on subsequent dates, the contents of which were regarded as part of the merger agreements entered into by them with the Dominion of India. The merger agreements were in the form given in Appendix XIII to the White Paper at page 183: "FORM OF MERGER AGREEMENT SIGNED BY RULERS OF GUJARAT AND DECCAN STATES AGREEMENT MADE THIS day of between the Governor General of India and the of Whereas in the immediate interests of is desirous that the administration of the State should be integrated as early as possible with that of the Province of in such manner as the Government of the Dominion of India may think fit; It is hereby agreed as follows: ARTICLE 1. The of hereby cedes to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the Governance of the State and agrees to transfer the administration of the State to the Dominion Government on the day of 1948 (hereinafter referred to as "the said day"). As from the said day the Dominion Government will be competent to exercise the said powers, authority and jurisdiction in such manner and through such agency as it may think fit. ARTICLE 2. The shall with effect from the said day be entitled to receive from the revenues of the State annually for his privy purse the sum of rupees free of taxes. This amount is intended to cover all the expenses of the Ruler and his family, including expenses on account of his personal staff, maintenance of his residences, 169 marriages and other ceremonies, etc. and will neither be increased nor reduced for any reason whatsoever. The said sum may be drawn by the in four equal instalments in advance at the beginning of each quarter by presenting bills at the State Treasury or at such other Treasury as may be specified by the Dominion Government. ARTICLE 3. The shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of this agreement. The will furnish to the Dominion Government before the day of 1948 an inventory of all the immovable property, securities and cash balance held by him as such private property. If any dispute arises as to whether any item of property is the private property of the or State property, it shall be referred to such officer with judicial experience as the Dominion Government may nominate and the decision of that officer shall be final and binding on both parties. ARTICLE 4. The shall be entitled to all personalprivileges enjoyed by them whether within or outside the territories of the State, immediately before the 15th day of August 1947. ARTICLE 5. The Dominion Government guarantees the succession, according to law and custom, to the gadi of the State and to the personal rights, privileges, dignities and titles. In confirmation whereof Mr. Vapal Pangunm Menon, Secretary to the Government of India in the Ministry of States, has appended his signature on behalf and with the authority of the Governor General of Indiab and has appended his 22 170 signature on behalf of himself, his heirs and successors, of Dated Secretary to the Government of India, Ministry of States". The letters of guarantee subsequently executed by the Ministry of States in favour of the respective Rulers contained the following guarantees: "(1) Your privy purse will be fixed in accordance with the formula applied in relation to the fixation of the privy purse of the Deccan States Rulers whose States have merged into the Bombay Province. The amount will be fixed in perpetuity to you, your heirs and successors, and will neither be increased nor reduced for any reason whatsoever. It will be free of all taxes, whether imposed by the Government of Bombay or by the Government of India and it will not be taken into account in the assessment of your world income to income tax or super tax. (2) The cash balances and other assets of your State on the day you transfer the administration of your State to the Dominion Government will, as far as possible, be spent for the benefit of the people of your State. (3) You will be entitled to the full ownership, use and enjoyment of all Darbari or private properties (as distinct from State Properties) belonging to you on the date of your making over the administration of your State to the Dominion Government. Darbari properties will include palaces, houses, residences, guest houses, stables, garages, quarters, outhouses, etc. which are at the date of transfer of administration in bonafide personal use or occupation of the Ruler or members of his family or personal staff, irrespective of whether the property is situated in the Capital, or at any other place in the State, or in Bombay, or anywhere else outside. (4) The continuation in service of the permanent members of the public services of your State is hereby guaranteed on conditions which will be no less advantageous than those on which they were serving 171 on 1st April 1948. In the event of continuation of service not being possible in any case, reasonable compensation will be paid. (5) Pensions, gratuities, annuities, and allowances, granted by the State to the members of its public services who have retired or have proceeded on leave preparatory to retirement before 1st April 1948 as also the enjoyment of the ownership of Khangi villages, lands, jagir, grants, etc. existing on 1st April 1948 are hereby Guaranteed. This guarantee is without prejudice Co the right of Government of Bombay to issue any legislation which does, not discriminate against the states and their subjects. (6) All emblems, insignia, articles and other Paraphernalia of the Ruler will be considered as belonging to, and be regarded as his private property. (7) No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned unless the order was passed or action taken after the 1st of April 1948 and is considered by the Government of India to be palpably unjust or unreasonable. The decision of the Government of India in this respect will be final. (8) No enquiry shall be made nor shall proceedings lie in any Court in India against you, whether in a personal capacity or otherwise, in respect of anything done or omitted to be done by you or under your authority during the period of your administration of the State. (9) Every question of disputed succession in regard to a Gujarat State which has signed an agreement integrating the administration of the State with that of the Province of Bombay shall be decided by a Council of Rulers of Gujarat States after referring it to the High Court of Bombay and in accordance with the opinion given by that High Court. All questions relating to the rights, dignities and privileges of the Ruler will also be considered by the Council of Rulers who shall make suitable recommendations to the Government of Bombay and the Government of India. The Council shall consist of the Rulers of all 172 full jurisdictional Gujarat States, whether salute or non salute. No ruler who is less than 21 years of age shall however be a member of the Council. The Council will elect one of its members to be the President of the Council. The President and the members of the Council will hold office for a term of five years from the date on which they enter upon the duties of their respective offices. 2.The contents of this letter will be regarded as part of the merger agreement entered into by you with the Governor General of India". The contention which has been urged before us by the Petitioners relying upon clause 5 of the Letters of Guarantee aforesaid is that the enjoyment of the ownership of the jagirs existing on the 1st April, 1948 was guaranteed, that this guarantee was binding on the State of Bombay, that the State of Bombay and therefore the State Legislature had waived the right, if any, or in any event had no legislative competence to enact any legislation depriving the holders of the jagirs of their right of ownership over the same, and that even though the Government of Bombay has reserved to itself the right to issue any legislation which did not discriminate against the states and their subjects, the impugned Act was ultra vires inas much as no legislation could be undertaken which would have the effect of depriving the holders of the jagirs of their ownership over the same and the provisions of the impugned Act were in any event discriminatory against the States and their subjects or in other words the impugned Act was confiscatory and also discriminatory. It was contended on the other hand on behalf of the State of Bombay that the agreements of merger and the letters of guarantee were executed by the Dominion of India and were not binding on the State of Bombay, that the Petitioners were not parties to the agreements of merger and letters of guarantee and that they were not entitled to enforce the same, that even if they be treated as parties thereto the dispute between the parties arose out of the provisions of the agreements and covenants which were entered into or 173 executed before the commencement of the Constitution by the Rulers of the respective states and to which the Government of Dominion of India was a party and that therefore this Court had no jurisdiction to interfere in the said disputes by virtue of the provisions of article 363 of the Constitution, that the State Legislature had plenary powers of legislation within the ambit of its sphere unless the Constitution itself expressly prohibited legislation on the subject either absolutely or conditionally, that no such prohibition could be spelt out of the terms of clause 5 of the letters of guarantee and that the impugned Act was intra vires the powers of the State Legislature and could not be challenged. Once that position was established it was further urged that the jagirs in question were estates within the definition of the expression in article 31 A(2) (a) of the Constitution and the impugned legislation being a legislation providing for the acquisition by the State of the estates and the rights therein or for the extinguishment or modification of the same could not be challenged as void on the ground that it was inconsistent with or abridged any of the rights conferred by any provisions of Part III of the Constitution, and that therefore the impugned Act could not be challenged as violative of any of the fundamental rights of the Petitioners. It was also urged that none of the provisions of the impugned Act were confiscatory or in any manner whatever discriminatory, fair and adequate compensation having been provided for the abolition of the jagirs and the States and their subjects not having been dealt within any discriminatory manner as compared with the subjects of the original State of Bombay. As regards the contention that the agreements of merger and the letters of guarantee were executed by the Dominion of India and were not binding on the State of Bombay it was urged on behalf of the Petitioners that the Government of the Dominion of India was certainly bound by those guarantees and this obligation of the Dominion Government devolved upon the Province of Bombay when the erstwhile States which were parties to the agreements of merger 174 and the letters of guarantee became merged in the Province of Bombay, under clause 8 of the States ' Merger (Governors ' Provinces) Order, 1949 (Appendix XLIV, White Paper, Page 297), that these obligations were thus deemed to have been undertaken by the Dominion Government on behalf of the absorbing Province, viz., the Province of Bombay and were binding upon the Province of Bombay, and that when the Constitution came into force from the 26th January 1950 all rights, liabilities and obligations of the Government of each Governors ' Province whether arising out of any contract or otherwise were under article 294 of the Constitution to be the rights, liabilities and obligations respectively of the Government of each corresponding State and these obligations of the Province of Bombay accordingly became the obligations of the State of Bombay. It was further urged that the State of Bombay was thus bound by all the obli gations which bad been undertaken by the Dominion Government under the agreements of merger and letters of guarantee above referred to, and it could not lie in the mouth of the State of Bombay to repudiate the same. This argument is not without force, but we do not consider it necessary to decide this question because even assuming that the State of Bombay was bound by these obligations, the question still remains how far the Petitioners before us are entitled to enforce these obligations against the State of Bombay. The Petitioners were certainly not parties to these agreements of merger and letters of guarantee eo nominee. They could only claim to be parties to the same by reason of the fact that the Rulers of the erstwhile States did not negotiate these agreements of merger or obtain the letters of guarantee only in respect of their personal rights and properties but also represented the States and their subjects in the matter of obtaining the same and the subject of these States were therefore represented by the Rulers and were entitled to the benefit of whatever obligations were undertaken by the Dominion of India qua the States and their subjects. It is therefore arguable that the Rulers 175 of the erstwhile States as also their subjects would be in a position to enforce these obligations. This position was however sought to be negatived by relying upon the following observation of their Lordships of the Privy Council in Vajesingji Joravarsingji vs Secretary of State for India in Council(1) at page 360: "But a summary of the matter is this: when a territory is acquired by a sovereign state for the first time that is an act of state. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties". These observations were quoted with approval in Secretary of State vs Sardar Rustsam Khan & Others(2) at page 124. It was therefore urged that it will be the high contracting parties, viz., the Rulers of the respective States who would be in a position to enforce these obligations and not the Petitioners for whose benefit these obligations were undertaken by the Dominion Government. We do not feel called upon to pronounce upon the validity or otherwise of these contentions also for the simple reason that the Petitioners would be out of Court either way. If they were deemed to be parties to the agreements of merger and letters of guarantee they would be faced with the bar to the maintainability of the petitions under article 363 of the Constitution which lays down that neither the Supreme (1) 51 Indian Appeals 357.(2) 68 Indian Appeals 109.176 Court nor any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of the Constitution by any 'Ruler of an Indian State and to which the Government of the Dominion of India. . . . was a party. If on the other hand they were deemed not to have been parties to the same they would not be the contracting parties and would certainly not be able to enforce these obligations. It was therefore urged on behalf of the Petitioners that the dispute between the parties did not arise out of the provisions of the agreements of merger and the letters of guarantee which were entered into or executed by the Rulers of the respective States and to which the Government of the Dominion of India was a party. According to the Petitioners they merely challenged the vires of the impugned Act and relied upon clause 5 of the letters of guarantee in order to establish the position that the State Legislature had no legislative competence to legislate on the subject of the abolition of jagirs. That was, it was submitted, not a dispute arising out of the agreements of merger and letters of guarantee but arose out of the act of the State Legislature in enacting the impugned Act in direct contravention of the guarantee incorporated in clause 5 of the letters of guarantee. This argument however would not avail the Petitioners, because if one looked into the averments contained in their petitions it was clear that the whole ambit of the petitions was to enforce clause 5 of the letters of guarantee. The Petitioners relied upon clause 5 of the letters of guarantee which had been obtained by the Rulers of the erstwhile State from the Dominion Government and complained that the State Legislature had enacted the impugned Act which it had no power to enact having regard to clause 5 of the said letters of guarantee and were wrongfully depriving the Petitioners of the jagirs, the ownership of which had been guaranteed thereunder. The whole of the petitions were nothing else except the 177 claim to enforce the Petitioners ' rights under the letters of guarantee, and the disputes therefore were clearly in respect of the agreements of merger and the letters of guarantee and were covered by article 363 (1) of the Constitution. A similar contention had been raised on behalf of the plaintiffs in State of Seraikella and Others vs Union of India and Another(1) and was repelled by Kania, C.J. at page 490 as under: "The plaintiff contends firstly that it had signed the Instrument of Accession through its Ruler. The State next complains that, acting beyond the powers given over under the Instrument of Accession,.the Dominion of India and the State of Bihar are trespassing wrongfully on its legislative and executive functions, that the Dominion of India and the State of Bihar are making laws which they have no power to make, having regard to the Instrument of Accession, and are wrongfully interfering with the administration of the State beyond the rights given to them under the Instrument of Accession. The whole plaint is nothing else except the claim to enforce the plaintiff 's right under the Instrument of Accession. The dispute therefore in my opinion clearly is in respect of this Instrument of Accession and is covered by Article 363(1) of the Constitution of India. The question of the validity of the different enactments and orders is also based on the rights claimed under the Instru ment of Accession so far as the plaintiff is concerned". It could not therefore be urged that what the Petitioners were doing was not to enforce the obligations undertaken by the Dominion Government under the agreements of merger and the letters of guarantee, or that the disputes between the parties did not arise out of the provisions of the agreements of merger and the letters of guarantee which were entered into or executed by the Rulers of the respective States and to which the Government of Dominion of India was a party within the meaning of Article 363 of the Constitution. (1) ; 23 178 If that was the position the jurisdiction of this Court was ousted and this Court could not interfere in those disputes. Assuming however that the Petitioners were entitled to enforce the obligation and guarantee incorporated in clause 5 of the letters of s guarantee the further difficulty in the way of the Petitioners is that the State Legislature was fully competent to enact the impugned Act notwithstanding the terms of the guarantee. The legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the State Legislature enjoys to legislate on the topics enumerated in the Lists II & III of the Seventh Schedule to the Constitution. It was conceded on behalf of the Petitioners that the topic of legislation which was covered by the impugned Act was well within List II of the said Schedule and the vires of the impugned Act could not be challenged on that ground. The ground of attack was that the Dominion Government and therefore the State Government bad waived its right to legislate on the topic of the abolition of jagirs or had in any event put a fetter or limitation on their power to issue any legislation in that behalf by the terms of the guarantee contained in clause 5 of the letters of guarantee. It was contended that under the terms of clause 5 an absolute guarantee had been given by the Dominion Government in regard to the enjoyment of the ownership of jagirs and that the Dominion Government and therefore the State of Bombay were precluded from enacting any legislation which had the effect of destroying that ownership. This contention however could not be supported by the terms of clause 5 which embodied in the first part thereof the terms of the guarantee, and went on to provide in the second part that this guarantee was without prejudice to the right of the Government of Bombay to issue any legislation which did not discriminate against the States and their 179 subjects. It was therefore not an absolute guarantee but was circumscribed or cut down by the reservation of the power to make law with respect to jagirs provided such law did not discriminate against the States and their subjects. The right of the Government of Bombay which was thus reserved covered the whole of the guarantee embodied in the first part of the clause and there was nothing in these terms which would go to show that the ownership of the jagirs could not be touched and the legislation, if any, was to be enacted in regard to certain incidents of enjoyment of such ownership. The right of the Government of Bombay to issue any legislation with regard to the enjoyment of the ownership of jagir lands was expressly reserved and this right covered also legislation in regard to the abolition of the jagirs and the Government of Bombay was therefore entitled under the terms of this clause 5 to issue any legislation in regard to the same provided however that such legislation did not discriminate against the States and their subjects. That was the only fetter or limitation, imposed upon the right of the Government of Bombay to issue any legislation in regard to the enjoyment of the ownership of jagir lands and if that fetter or limitation could also be imposed on the State Legislature the Petitioners would have had a right to challenge the impugned Act on the ground that it discriminated against the States and their subjects. The fetter or limitation upon the legislative power of the State Legislature which had plenary powers of legislation within the ambit of the legislative heads specified in the Lists II & III of the Seventh Schedule to the Constitution could only be imposed by the Constitution itself and not by any obligation which bad been undertaken by either the Dominion Government or the Province of Bombay or even the State of Bombay. Under Article 246 the State Legislature was invested with the power to legislate on the topics enumerated in Lists II & III of the Seventh Schedule to the Constitution and this power was by virtue of article 245(1) subject to the provisions of the Constitution. The Constitution itself laid down the fetters 180 or limitations on this power, e.g., in article 303 or article 286(2). But unless and until the Court came to the conclusion that the Constitution itself had expressly prohibited legislation on the subject either absolutely or conditionally the power of the State Legislature to enact legislation within its legislative competence was plenary. Once the topic of legislation was comprised within any of the entries in the Lists II & III of the Seventh Schedule to the Constitution the fetter or limitation on such legislative power had to be found within the Constitution itself and if there was no such fetter or limitation to be found there the State Legislature had full competence to enact the impugned Act no matter whether such enactment was contrary to the guarantee given, or the obligation undertaken by the Dominion Government or the Province of Bombay or even the State of Bombay. The Petitioners would have a legitimate grievance in the matter of the deprivation of their rights of ownership of the jagir lands in so far as the States and their subjects were discriminated against, but they would not be able to have their grievance redressed by this Court for the simple reason that the State Legisla ture was at all events competent to enact the impugned Act not being fettered at all by the terms of clause 5 of the letters of guarantee. The provisions of article 294(b) of the Constitution which is said to have transferred the obligations of the Government of the Province to the State of Bombay would not by involving the transference of the obligation undertaken by the Dominion Government in clause 5 of the letters of guarantee to the State Government impose a fetter or limitation on the legislative competence of the State Legislature to enact legislation on any of the topics enumerated in Lists II & III of the Seventh Schedule to the Constitution. The remedy of the Petitioners would be else where and not in this forum. The learned Judges of the Federal Court gave an answer to a similar complaint of the Taluqdars of Oudh made by them against the United Provinces Tenancy Act XVII of 1939 in Thakur 181 Jagannath Baksh Singh vs The United Provinces(1) at page 87: "We desire, however, to point out that what they are now claiming is that no Legislature in India has any right to alter the arrangements embodied in their sanads nearly a century ago; and, for all we know, they would deny the right of Parliament itself to do so. We hope that no responsible Legislature or Government would ever treat as of no account solemn pledges given by their predecessors; but the readjustment of rights and duties is an inevitable process, and one of the functions of the Legislature in a modern State is to effect that readjustment, where circumstances have made it necessary, with justice to all concerned. It is however, not for this 'Court to pronounce upon the wisdom or the justice, in the broader sense, of legislative acts; it can only say whether they were validly enacted. . . . . . . " These observations were quoted with approval by Their Lordships of the Privy Council in Thakur Jagannath Baksh Singh vs The United Provinces(1) at page 122 and we also would observe in the same strain that we are not concerned with the policy of the State Legislature in enacting the impugned Act for abolition of jagirs but we are only concerned with the question whether the impugned Act was validly enacted. No argument has been advanced before us which would enable us to hold that the impugned Act was ultra vires the State Legislature, the only ground of attack being that it was in contravention of the guarantee given in clause 5 of the letters of guarantee. But that position is of no avail to the Petitioners. Considerable argument was addressed before us based on the comparison of the provisions of the various Acts of the Bombay State Legislature enacted during the years 1949 to 1953 in regard to the abolition of the various tenures obtaining within the State of Bombay with the provisions of the impugned Act, with a view to show that the provisions of the impugned Act were discriminatory against the States (1) (2) 1946 F.C.R. III. 182 and their subjects within the meaning of clause 5 of the letters of guarantee. We have not thought it necessary to refer to the same in view of the conclusion which we have reached above that the impugned Act was intra vires the powers of the State Legislature and the State Legislature was quite competent to enact the same. Even if it could be demonstrated that the provisions of the impugned Act were confiscatory as well as discriminatory in the manner suggested, the jagirs of the Petitioners (except in the case of the Petitioner in Petition No. 364 of 1954) were all estates within the meaning of the term as defined in Article 31 A(2)(a) of the Constitution and even if the impugned Act provided for the acquisition of the estates or of any rights therein or for the extinguishment or modifica tion of any such rights the impugned Act could not be challenged as void on the ground that it was inconsistent with or took away or abridged any of the fundamental rights conferred by Part 11I of the Constitution. Any challenge therefore on the ground of the impugned Act violating the fundamental rights of the Petitioners under article 14 or article 19(1)(f) or article 31(2) of the Constitution was not available to the Petitioners. On the other hand if the grievance was that the impugned Act had brought about dis crimination in breach of clause 5 of the letters of gua rantee then the dispute clearly arose out of the letters of guarantee and would by article 363 be placed beyond the jurisdiction of this Court. The Petitions of the Petitioners except Petition No. 364 of 1954 which would be dealt with immediately hereafter therefore fail and are liable to be dismissed. Petition No. 364 of 1954 In addition to the grounds common to all the Petitions which we have already dealt with above the Petitioner in Petition No. 364 of 1954 claims that he is the owner of the 60 villages in the Putta or territory of Moti Moree comprised in the erstwhile State of Idar as the Bhumia or underlord and contends that his holding does not fall within the definition of 183 jagir as given in the impugned Act. In support of his contention he has traced the history of Moti Moree since 1250 A.D. and in any event since 1800 A.D when the then Chieftain of Moti Moree entered into a treaty with the Maharaja Zalimsinh of Modasa whereby in consideration of payment of Rs. 361 annually the said Zalimsinh agreed to protect Moti Moree against the attacks of the neighboring State of Doongarpur. He has pointed out that thereafter Modasa was absorbed into the Taluka of Amnagar in 1821 and subsequently in about 1849 it reverted to Idar State and continued with the Idar State until the latter merged into the Province of Bombay in 1948. He contends that he and his predecessors were enjoying and exercising full sovereign rights over Moti Moree ever since the said treaty of 1800 and their position had remained unchanged, their only liability being to pay Rs. 361 annually for protection. He further contends that they were enjoying the rights of excise and customs and revenue, that they did not pay any revenue to the State of Idar and enjoyed and continued to enjoy rights over all lands, forests, minerals, river beds, village sites, etc. and that when the Ruler of Idar wanted that there should be uniform customs levy throughout the State, the said Ruler had to give compensation to the Petitioner and had also similarly negotiated with them and had to pay compensation to them in respect of salt, opium, excise etc. He has pointed out that Rs. 457 for customs ' Rs. 40 for opium and Rs. 7 for salt were being paid annually by the erstwhile State of Idar and thereafter by the Government of State of Bombay to him by way of compensation for these sovereign rights of his, which amounts were set off against Rs. 361 being the annual payment of protection which he paid as aforesaid to them. These rights of his recognised by the erstwhile State of Idar and also by the State of Bombay constituted him a Thakur or underlord of Moti Moree and he contends that his estate of Moti Moree is not a jagir within the definition of the term given in the impugned Act. Our attention has also been drawn in this behalf to 184 Bombay Gazetteer, Vol. 5 (1880), page 398, where Mori (Meghraj) is described as the estate of the original landlords Bhumias otherwise described as petty chiefs and underlords and to page 409 where the underlords (Bhumias) are stated to be the early chiefs who settled in Idar at least not later than the Rathod conquest (about 1250). The State of Bombay on the other hand has denied the several allegations contained in the petition and contends that in the year 1891 the erstwhile State of Idar had conferred upon the Thakore of Moti Moree the powers of a Third Class Magistrate as an act of "grace", that in 1902 the management of the estate was taken over by the erstwhile State of Idar and one Kamdar Mathurlaji was appointed as Japtidar, that in 1910 the management was lifted as a special case and the arrears of Nazrana were ordered to be recovered in installments by the erstwhile State of Idar that in several documents Moti Moree was described as Bhomia Jagir within the definition of the term Jagir as given in the impugned Act and that the sum of Rs. 361 was still being regularly paid even after merger as "Kichari hak". It therefore contends that the Thakore of Moti Moree, the Petitioner is a jagirdar and Moti Moree is a jagir within the meaning of the definition thereof given in the impugned Act. These allegations and counter allegations do not however carry the matter any further. In order to exclude Moti Moree and the Petitioner from the operation of the impugned Act it will be necessary for the Petitioner to establish satisfactorily that Moti Moree is, not a jagir within the definition thereof given in the impugned Act. Even though the allegations of the Petitioner go far enough to make it probable that Moti Moree was neither held by the Petitioner and his ancestors under a grant or was not recognised as a grant by the Ruler of the erstwhile State of Idar, that would not be enough to enable us to grant him the relief prayed for by him. The question requires to be completely thrashed out and adjudicated upon by a Court of law after going into the evidence 185 adduced before it by both the parties. The learned Attorney General appearing for the State of Bombay has therefore submitted that this question should be enquired into by a proper tribunal and the Petitioner should be referred to a civil suit in order to establish his rights. We accordingly feel that the Petition No. 364 of 1954 should be adjourned till after the disposal of a civil suit to be filed by the Petitioner in the proper Court for a declaration that Moti Moree is not a jagir within the definition of the term as given in the impugned Act and for consequential reliefs. The learned Counsel for the Petitioner has given us to understand that a formal notice under Section 80 of the Civil Procedure Code in this behalf has already been served by the Petitioner on the State of Bombay. We therefore order that the Petitioner do file the necessary suit within 3 months from this date and this petition do stand adjourned till after the hearing and final disposal of that suit. The stay granted by this Court in this petition will continue in the meanwhile. We may record here that the learned Attorney General on behalf of the State of Bombay has also given his undertaking not to take any steps against the Petitioner in the meanwhile. Petitions Nos.337 to 349, 365, 366, 481 and 690 of 1954 will therefore stand dismissed. Petition No. 364 of 1954 will stand adjourned sine die till after the disposal of the civil suit to be filed by the Petitioner as above indicated. If no such suit is filed within the aforesaid period this petition will also stand dismissed. Each party will bear and pay the respective costs of the petitions.

Purporting to act under r. 6.4 of the Punjab Civil Service Rules. the State imposed a cut of 5 per cent on the pension and death cum retirement gratuity of the respondent. who was a retired Government servant, on the ground that his service record was not satisfactory. The High Court allowed the respondent 's writ petition challenging the decision of the Government. Dismissing the appeal of the State. ^ HELD: The ground that superannuation pension is a bounty and is given as an act of grace is not available to the appellant. In Deoki Nandan Prasad vs The State of Bihar, [1971] Supp. S.C.R. 634, it was held by this Court (1) that pension is not a bounty payable on the sweet will and pleasure of the Government and the right of a Government servant to receive it is property under article 31 ( 1 ) of the Constitution. and so the State cannot withhold the same by a mere executive order: and (2) the claim to pension is property under article 19 (1) (f) of the Constitution and is not saved by cl. (5) of article 19. [362C D] (2) Though the impugned order imposing the cut in pension and gratuity is not one of reduction in rank falling within the purview of article 311(2), yet there can be no doubt that it adversely affected the respondent and such an order could not have been passed without giving him a reasonable opportunity of making his defence. [362G] State of Punjab vs K. R. Erry & Sobhag Rai Mehta [19731 2 S.C.R. 405, applied. (3) M. Narasimachar vs The State of Mysore [1960] 1 S.C.R. 981, is inapplicable to this case because the point as to whether an opportunity to show cause was to be afforded to a retired Government servant before applying the cut in his pension in view of the principle of natural justice of audi alteram partem was never urged or gone into in that case, nor was the question whether pension was a bounty or property arose in that case. [364 D E]

Appeal No. '285 of 1961. Appeal from the judgment and order dated December 6 1960, of the Gujrat High Court in Special Civil Application No. 434 of 1960. H.N. Sanyal, Additional Solicitor General of India, B. H. Dhebari, and T. M. Sen, for the appellants. I.M. Nanavati, section N. Andley, Rameshwar Nath and P. L. Vohra, for the respondents. August 21. The Judgment of the Court was delivered by DAS GUPTA, J. This appeal by special leave raises a question of the correct interpretation of some words in s.18A(1)(b) of the Industries (Development and Regulation) Act, 1951. The Central Government made an order under section 15 of that Act appointing a committee of three persons for the purpose of making full and complete investi 173 gation into the circumstances of the case as it was of opinion that there had been.or was. likely to be a, substantial fall in the volume of production in respect of cotton textiles manufactured in the industrial undertaking known as Hathisingh Manufacturing Company Ltd., Ahmedabad, for which having regard to the economic conditions prevailing there was no justification. After the committee made its report the Central Government being of opinion thereupon that this industrial undertaking was being managed in a manner highly detrimental to public interest made an order under s.18A of the Act authorising Ambalal Shah (the first appellant before us) to take over the management of the whole of the said undertaking. Against this order the industrial undertaking and its proprietor who are the two respondents before us filed a petition in the Gujarat High Court under article 226 of the Constitution praying for issue of writs directing the authorised controller and the Union of India not to take over the management on the basis of the order under s.18A. The main ground on which the application was based was that on a proper construction of s.18A(1)(b) the Central Government has the right to make an order thereunder only where the investigation made under section 15 was initiated on the basis of the opinion as mentioned in s.15(b) that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest. It was also urged that in fact the committee appointed to investigate had not directed its investigation into the question whether the industrial undertaking was being managed in the manner mentioned above. The other grounds mentioned in the petition which were however ' abandoned at the time of the hearing included one that. the alleged opinion formed by the Government as mentioned in the order under s.18A was in the absence of any material for the same in the report 174 of the investigating committee and therefore ' was arbitrary, capricious and malafide. On bahalf of the Government and the authorised controller it was urged that the question which one of the five opinions mentioned ins. 15 formed the basis of the investigation under that section was wholly immaterial. The allegation that the investigating committee had not directed its investigation into the question whether the undertaking was being managed in a manner. highly detrimental to the scheduled industry concerned or to public interest was also denied. The High Court however came to the conclusion that on a correct construction of section 18A (1)(b) it was necessary before any order could be made thereunder that the investigation should have been initiated on the basis of the opinion mentioned in s.15(b) of the Act. It also accepted the petitioners ' contention that no investigation had in fact been held into the question, whether the undertaking was being managed in a manner highly detrimental to public interest. Accordingly it made an order "setting aside the order of the Central Government dated 28th July, 1960, and directing the respondents not to interfere with or take over the management of the undertaking of the first petitioner, namely "Hathisingh Mills" by virtue of or in pursuance of the said order". It is against this decision that the present appeal is directed. The principal question in appeal is whether the High Court is right in its view as regards the construction of section 18A. The relevant portion of s.18A(1) runs thus "If the Central Government is of opinion that (a) x x x x (b) an industrial undertaking in respect of which an investigation has been made under section 15 (whether or not any directions 175 have been issued to the undertaking in pursuance of section 16), is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, the Central Government may, by notified order, authorise any person or body of persons to take over the management of the whole or any part of the undertaking or to exercise in respect of the whole or any part of the under taking such functions of control as may be specified in the order. . ." The dispute is over the construction of the words "an ]investigation has been made under section 15". Section 15 is in these words "Where the Central Government is of the opinion that (a)in respect of any scheduled industry or industrial undertaking or undertakings (i)there has been, or is likely to be a substantial fall in the, volume of production in respect of any article or class of articles relatable to that industry, or manufactured, or produced in the industrial undertaking or undertakings, as the case may be, for which having regard to the economic conditions prevailing, there is no justification ; or (ii)there has been or is likely to be a marked deterioration in the quality of any article or class of articles relatable to that industry or manufactured or produced in the industrial undertaking or undertakings, as the case may be, which could have been or can be avoided; or (iii)there has been or is likely to be,, a rise in the price of an article or class of articles recitable to that industry or manufactured or produced 'in the industrial undertaking or undertakings. As the 176 case may be for which there is on justification; or (iv)it is necessary to take any such action as is provided in this Chapter for the purpose of conserving any resources of national importance which are utilized in the industry or, the industrial undertaking or undertakings, as the case may be ;or (b)any industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, the, Central Government may make or cause to be made a full and complete investigation into the circumstances of the case by such person or body of persons as it may appoint for the purpose. " It may be mentioned here that s.15(b) as it originally stood was amended in 1955 and it was after the amendment that the words as mentioned above appear. Reference may also be made in passing to s16 under which once an investigation under s.15 has been commenced or completed the central Government if it considers desirable, may issue directions to the industrial undertaking or undertakings concerned in several matters. Section 17 of the original Act was repealed in 1953 by Act 26 of 1953. The same amending Act introduced into this Act two new chapters Chapter IIIA and Chapter IIIB of which s.18A in Chapter IIIA makes provisions as set out above for an order, by the Central Government authorising any person or body of persons to take over the management of the whole or any part of the under taking. These provisions of section 18A it may be mentioned take the, place of :the. provisions that previously appeared in s.17(1). That section, now repealed, had empowered the Central Government to authorise any person, or development council or any other 177 body of person,% to take,over the management of an undertaking or to exercise with respect thereto such functions of. control as might be provided by the order, in one class of cases only viz. , where after a direction had been issued in, pursuance of section 16 the Central Government was of opinion that the directions had not been complied with and that the industrial undertaking in respect of which directions had been issued was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest. The present section ISA empowers the Government to authorise any person or persons to take over the management or to excercise such functions of control as may be specified, in two classes of cases. the first of these classes is mentioned in el. (a) of s.18A(1), viz., where the Central Government, is of opinion that directions issued in pursuance of s.16 have not been complied with by an industrial undertaking. The second class with which we are here directly concerned is mentioned in el. (b) viz. , where the Central Government is of the opinion that an industrial undertaking in respect of which an investigation has been made under s.15 is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest irrespective of whether any directions had been issued in pursuance of s.16 or not. What is noticeable in the wording of this clause is that while an investigation under s.15 may be initiated in respect of an industrial undertaking where the Central Government is of any of the five opinions mentioned in s.15(a)(i), 15(a)(ii), 15(a)(iii), 15(a)(iv) and s.15(b), s.18A(1)(b) does not refer to any of these opinions( Indeed, it does not refer at all to the question of the initiation of the investigation and mentions only the making of the investigation under s.15. Read without the addition of anything more, the language of s.18 A (1) (b) empowers the Central Government.to authorise a person or persons to take over the management of an industrial undertaking 178 or to exercise specified functions of control in respect of that undertaking,if the one condition of an investigation made under s.15 has been fulfilled irrespective of on what opinion that investigation was initiated and the further condition is fufillled that the Central Government is of opinion that such undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest. The contention made on behalf of the respondents before us which found favour with the High Court is that when the legislature used the words "an investigation has been made under s.15" it meant "an investigation has been made under s.15 based on an opinion of the Central Government that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest. " We should have thought that if the legislature wanted to express such an intention it would not have hesitated to use the additional words mentioned above,. It was urged, however, on behalf of the respondents that these further words, viz., " 'based on an opinion of the Central Government that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest" are implicit in cl.(b) of s.18A. In his lengthy address to convince us of the correctness of this contention the learned counsel advanced in substance only two arguments. The first is that it is only where the investigation under s.15 is initiated on an opinion mentioned in s.15(b) that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interestthat the report of the investigation can furnish the government with materials on which any opinion can be formed that an industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public inter est. For this argument we can find no basis. It appears to 170 us that where the investigation has been initiated, in respect of an industrial undertaking, on an opinion that there has been or is likely to be a fall in the volume of production for which having regard to the economic conditions there is no justification s.15(a)(i) or an opinion that there has been or is likely to be a marlied deterioration in the quality of any article which could have been or can be avoided s.15(a)(ii); or an opinion that there has been or is likely to be a rise in the price of any article for which there is no justification s.15(a)(iii); or an opinion that it is necessary to take action for the purpose of conserving any resources of national importance s.15 (a)(iv), the investigation in order to be complete must also consider the quality of the management of the undertaking just as it would so consider the quality of management where the investigation is initiated on an opinion that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest. For, even when the investigation has been initiated on the Government 's forming any of the opinions mentioned in the four sub clauses of el. (a) of s.15, the investigator has necessarily to examine three matters : (1) whether the opinion formed by the Government is correct; secondly, what are the causes of this state of things, viz., the unjustifiable fall in the volume of production or the deterioration in the quality of the article or the rise in the price of the articles or the necessity of an action for the purpose of conserving the resources ; and thirdly how this state of things, if it exists can be remedied. In considering the second of these matters, viz., the cause of this state of things the investigator must examine how far and in what manner the quality of management is responsible for it. He may come to the conclusion that the management is in no way responsible and that some other cause lies at the root of the difficulty. He may hold on the other hand, that the 180 management is solely responsible or he may hold that while other causes. also play their part the defect in the quality of management is. , also in part responsible. Indeed, we find it difficult to understand how an investigator having embarked on an investigation. ordered by the Government in respect of an industrial undertaking on the basis of one or more of the opinions mentioned in section 15 (a) can avoid an inquiry into the quality of the management of the industrial undertaking. It is said that the use of the words "for which having regard to the economic conditions prevailing there is no justification" in cl. (a)(i) indicate and circumscribe the scope of the enquiry and that the investigator would only try to ascertain whether or not the economic conditions are such that do or do not justify the fall in the volume of production and then to see, where necessary, how these economic conditions can be altered. To say so is however to miss the entire scheme of the legislation providing for the investigation and for action following the same. Clearly, the purpose of this legislation is to,enable the Central Government to take suitable action to remedy the undesirable state of things mentioned in the different clauses of s.15. In order that Government may have proper materials to know what action is necessary the legislature empowered the Government to make or cause to be made "a full and complete investigation". In section 18, it empowered the person or body of persons appointed to make investigation to choose one or more persons possessing special knowledge to assist in the investigation and further vested the investigating committee with all the powers of. the Civil, Court under the Code of Civil Procedure, for the purpose of taking evidence,. on oath and for, enforcing the attendance of witnesses and compelling the production of documents and, material. objects. The whole purpopse of the legislation would be frustrated unless the investigation could be "full and complete. " No 181 investigation which has not 'examined the quality of management of the industrial undertaking could be said to be full or complete. It was next contended that the use of the words "circumstances of the case" shows that the investigation had to be made only into the matter in respect of which the government has formed an opinion and not into anything else. Assuming that it is so and that the investigator has primarily to conduct his investigation where the investigation has been initiated on the basis of an opinion as regards fall in production, into questions as regards such fall ; and similarly, where the investigation has been initiated on an opinion as regards the deterioration in quality, into the question of such deterioration, that does not other the fact that the investigator would have to try to ascertain the causes of the fall in production or: the deterioration in quality and this part, of the investigation would necessarily include an investigation into the quality of the management. Learned Counsel contended that if an investigation made on the basis of one or more of the opinions mentioned in el. (a) of s.15 was sufficient to furnish the materials on which the Government could form an opinion whether or not an industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, el. (b) would by wholly unnecessary. With this we are unable to agree. There may be many cases where there may be information justifying the formation of opinion that the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, even though,.there are no materials for an opinion that there has been or is likely to be an unjustifiable fall in production or an avoidable deterioration in quality or an unjustifiable rise in prices or the necessity of taking action for the purpose of conserving resources as 182 mentioned in the four sub clauses of cl. (a) of s.15. It was also urged that it would be unfair to expect the management, where the investigation has been initiated on the formation of an opinion as mentioned in cl. 15(a), to lead any evidence as regards the quality of its management and so there is risk of the investigator being misled. We can see no reason however for any management to have any doubt on the question that investigation would be directed among other things to the question of quality of management. We believe that one of the first things that any management would do when an investigation is initiated on the basis of any such opinion would be to try to show how efficient it was and how in spite of the high quality of,its management the misdeeds of labour or the unsympathetic attitude of Government or the difficulties of transport or some other cause beyond their control was responsible for the undesirable state of things into which the investigation was being held. The argument that except where the investigation has been initiated on the basis of an opinion mentioned in section 15(b) there would be no material for the Government to form an opinion that the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, therefore fails. Equally untenable is the second argument advanced by the learned counsel that absurd results would follow if the words "investigation has been made under section 16" are held to include investigations based on any of the opinions mentioned in s.15(a). Asked to mention what the absurd results would be the learned counsel could only say that an order under section 18A(1)(b) would be unfair in such cases, as the owner of an industrial undertaking would have no notice that the quality of management was being investigated. That will be says 183 the learned counsel, condemning a person unheard. This argument is really based on the assumption that when the investigation has been initiated on the basis of any of the opinions mentioned in cl. (a), the quality of the management will not be investigated As we have stated earlier, there is no basis for this assumption. We have therefore come to the conclusion that the plain words used by the legislature "in respect of which an investigation has been made under section 15" cannot be cut down by the restricting phrase "based oil an opinion that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest. " We must therefore hold that,the construction placed by the High Court on these words in s.18A(1)(b) is not correct. This brings us to the consideration of the other question raised, viz. , whether in fact the investigation had been held into. the question whether. the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest. On this question the High Court came to a conclusion adverse to the appellants. It is not clear how the respondents though abandoning the ground that Government had nonmaterial before it for forming the opinion that the undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, could still urge that no investigation had been actually held into the question whether the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest. The question whether investigation had in fact been held or not into the question whether the industrial undertaking was being managed in a Manner highly detrimental to the scheduled industry concerned or to public interest, would be relevant only to show that the Government 184 acted without any material before it or acted mala facie. If the allegation of ' mala fide or the allegation that there was no material before the Government for forming its opinion is abandoned, the question whether an investigation had in fact been held into the question whether the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, becomes irrelevant. We are satisfied however that the High Court was wrong in its view that it was not established that investigation had in fact been held into this question. We find that the assertion in the petition under article 226 that the investigation had not been directed "towards any alleged mismanagement of the mills" was denied in the affidavit sworn on behalf 'of the Union of India. When thereafter on October 10, 1960, affidavits in rejoinder filed on behalf of the petitioners affirmed 'that "no question was put which would suggest that the committee was investigating into any mismanagement of the mills," an affidavit of Mr. Thomas de Sa, who was a member of the investigating committee was, filed on behalf of the Union of India. This affidavit made the categorical assertion that the "committee" investigated not only into the question relating to the fall in the volume of production in respect of cotton textiles manufactured in the said industrial undertaking but also made a full and complete investigation into the circumstances of the working of the said industrial undertaking including the management thereof and as to whether the said undertaking was being managed in a manner detrimental to the industry concerned or to public interest. " The High Court has thought it fit to reject this testimony of Mr. De Sa for reasons which appear to us to be wholly insufficient. It appears that during the hearing the Advocate General asked for time to file an affidavit preferably of Mr. P. H. Bhuta who was. the lion official member of t he Committee of investigation but ultimately filed the 185 affidavit of Mr. De Sa and not the affidavit of ' Mr. Bhuta. The High Court seems to think that as. Mr. Bhuta was an independent member of the investigation committee while Mr. De Sa was in the service of the Government Mr. De Sa 's, statement is open to suspicion. In our view such suspicion of, high public officials is not ordinarily .,justified. , Mr. De Sa was as much a member of the investigating committee as Mr. Bhuta and so no less, competent than Mr. Bhuta to testify as regards the matter in issue. We do not think it right to suspect his honesty merely because he is an officer of the Union of India. The learned judges of the High, Court, appear also to have lost sight of, the fact that the questionnaire which annexed as annexure X to. the, affidavit of the second respondent Rajendra Prasad Manek Lal itself includes a number of questions which show unmistakably that the quality of management was being enquired into. A circumstance which appears to have weighed with the High Court is that the report of the committee which as the learned judges rightly say would be the best evidence to show "that there was in fact an investigation into the question of the management of the said undertaking" was not produced by the Union of India when called upon to do so by I. &. Nanavati on behalf of the petitioners. It is proper to mention that it does not appear that the learned judges themselves directed or desired the Advocate General to produce the report for their inspection. It further appears that no written application for the production of the docu ment was made on behalf of the petitioners. It does not seem to us to be fair to draw an inference against the Union of India merely because an informal request by the petitioners ' advocate was not acceded to. In view of what happened in the court below we asked the appellants ' counsel whether he was prepared to produce the report before us. The learned counsel readily produced the report and after examining the relevant portion 186 where the report deals with the question of management, we read it out in Court so that the respondents ' counsel could know the exact situation. This portion of the report says : ,,that the management is in the hands of a young and inexperienced person ; and the committee of the opinion that the present manager is incapable of handling the affairs of the mills ; the present managing agents are incapable of investing any further The fact that the report does contain such an opinion is sufficient to show that an investigation was actually held into the question of the quality of the management as affirmed by Mr. De Sa. The High Court 's view therefore that. no investigation was hold into the question of the management of the undertaking wag wrong. We have therefore come to the conclusion that the respondents were not entitled to any writ directing these appellants not to give effect to the, Government 's order under s 18A(1)(b). We therefore allow the appeal, set aside the order of the High Court directing the issue of the writ and order that the application under article 226 of the Constitution be dismissed. The appellants will get their costs both here and below. Apnpeal allowed.

The assessee, a company incorporated in the United Kingdom and having its registered office in London, manufactured yarn and cloth in their,mill at Pondicherry. The assessee had appointed another company in Madras as their agents. The manufactured goods were sold mostly in British India and partly outside British India. All the contracts in respect of the sales in British India: were entered into in British India and deliveries were made and payments were received in British India. In regard to sales outside British India also, payments were received in Madras 69 524 through the agents and it was found as a fact that, the entire profits were received in India: Held, (i) that in view of the finding of fact that the entire profits were received in India and the assessee was liable to tax under section 4 (1) (a), the provisions of section 42 (1) had no relevancy ; (ii)that the income received in British India could not be said to wholly arise in British India within the meaning of section 4A (c) (b) and that there should be allocation of the income between the various business operations of the assessee demarcating the income arising in the taxable territories in the particular year from the income arising without the taxable territories in that year for the purposes of section 4A (c) (b) of the Act. Commissioner of Income tax, Bombay vs Ahmedbhai Umarbhai & Co. ([1950] S.C.R. 335), Pondicherry Railway Company vs Commissioner of Income tax, Madras [1931] (58 I.A. 239), Turner Morrison and Co. vs Commissioner of Income tax [1951] (19 I.T.R. 451 ; , referred to.

Civil Misc. Petition No. 4673 of 1987. (In C.A. No. 452 1 of 1986). From the Judgment and order dated 20.12.1985 of the Patna High Court in C.W.J.C. No. 1133 of 1984. L.N. Sinha and M.L. Verma for the Petitioner. S.N. Kacker, S.B. Upadhyay, M.M. Kashyap and Smt. Asha Upadhyay for the Respondents. The following order of the Court was delivered: O R D E R This is an application made by the appellant for initiating proceedings for contempt against respondent No. 4 Ram Nath Singh and his son Vijendra Singh. It is alleged that despite the fact that this Court had on 19th December 1986 after hearing learned counsel for the parties granted special leave and also passed an order directing maintenance of status quo as in the High Court in the presence of learned counsel for respondent No. 4, three days after i.e. On 22nd December, 1986 respondent No. 4 Ram Nath Singh and his son Vijendra Singh filed a criminal miscellaneous petition No. 4841/86 (R) 871 before the Ranchi Bench of the Patna High Court alleging inter alia that respondent No. 4 had the right to collect slurry, deliberately and wilfully suppressed from the High Court the fact that this Court had directed maintenance of status quo, and thereby obtained an order from the High Court dated 3rd January, 1987 in the said proceedings by which respondent No. 4 was allowed to transport briquettes from the area in question i.e. Iands covered by the notification issued under section 9 of the Coal bearing Areas (Acquisition & Development) Act, 1957 including the disputed plot No. 370, and bad thus wilfully and flagrantly disobeyed and violated the status quo order of this Court. After hearing learned counsel for the parties at quite some length, we were satisfied that the High Court was not justified in passing the impugned order. We accordingly by order dated 23rd September, 1987 vacated the aforesaid order of the High Court dated 3rd January, 1987 and also allowed the application made by the apellant for grant of a prohibitory order and restrained respondent No. 4 Ram Nath Singh and his son Vijendra Singh and their agents and servants from lifting sludge/slurry from the lands covered by the notification under section 9 of the Act, in terms of the registered indenture of lease dated October 20, 1984 executed by the State Government in favour of respondent No. 4 and further directed that all operations carried on by them shall stop forthwith. There was a further direction made with regard to the withdrawal of the amounts deposited by respondent No. 4 and his son towards the price of slurry collected by them in pursuance of the order passed by the High Court dated l5th January, 1985 on furnishing bank guarantee. As the conclusion of the hearing we were inclined to the view that there was no contempt. The reasons therefor follow. The question whether respondent No. 4 Ram Nath Singh and his son Vijendra Singh are guilty of contumacious and wilful disregard of this Court 's order must depend on the precise meaning of the words `status quo as in the High Court '. There is not much of a controversy as to the scope and effect of the status quo order passed by this Court. Shri L.N. Sinha, learned counsel appearing for the appellant submitted that the words 'status quo as in the High Court ' mean status quo as prevailing between the parties when the matter was pending in the High Court and not after the High Court had passed the impugned judgment and disposed of the writ petition. The learned counsel contends that same meaning must be given to these words as otherwise, the application for grant of prohibitory order would be infructuous and the order passed by this Court meaningless. He placed emphasis on the 872 word 'in ' in the collocation of the words 'status quo as in the High Court ' to define the scope and effect of the status quo order. According to him, the word 'in ' must mean status quo while the matter was in the High Court; it was in seisin of the High Court till the moment before the delivery of the final judgment. Once the judgment had been delivered, the matter came to an end in the High Court. In substance, 13 the contention is that the status quo as prevailing between the parties when the matter was pending in the High Court had to be maintained. In reply Shri Kacker, learned counsel for respondent No. 4 Ram Nath Singh and his son Vijendra Singh submitted that the words 'status quo as in the High Court ' must be interpreted to mean that the parties were relegated back to the position that obtained between them when the writ petition was still pending. Upon that basis he submitted that the contemnors were governed by the terms of the earlier order passed by the High Court dated 15th January, 1985 permitting them to collect sludge/slurry from public land. It is urged that the disputed plot No. 370 is such public land from which respondent No. 4 in terms of the registered indenture of lease dated October 20, 1984 executed by the State Government in his favour, was entitled to remove sludge/slurry from the lands covered by the lease. The learned counsel points out that although respondent No. 4 had been restrained by the High Court by its earlier order dated 19th October, 1984 from removing sludge/slurry from the disputed plot of land, it had by the subsequent order dated 15th January, 1985 permitted him to collect sludge/slurry on certain conditions. One of the conditions was that respondent No. 4 was required to deposit Rs. 10000 in the High Court and that had been done. He also drew our attention to cl.(B) of that order which directed respondent No. 4 to deposit the price of slurry in court along with monthly returns and it is said that several lakhs of rupees are in deposit in the High Court on that account. The expression 'status quo ' is undoubtedly a term of ambiguity and at times gives rise to doubt and difficulty. According to the ordinary legal connotation, the term 'status quo ' implies the existing state of things at any given point of time. The qualifying words 'as in the High Court ' clearly limit the scope and effect of the status quo order. In the present case, the High Court determined only one question, namely, that slurry was not coal or mineral. It refrained from entering into the question of right or title of the parties on the ground that it involved investigation into disputed questions of facts. Therefore, apart from the abstract question that slurry was not coal or mineral, the impugned judgment does not adjudicate upon the rights of the 873 parties. Viewed from that angle, it is obvious that status quo as in the High Court cannot mean anything else except status quo as existing when the matter was pending in the High Court before the judgment was delivered. Both the parties understood the scope and effect of the status quo order as meaning the state of things existing while the writ petition was still pending i.e. till the delivery of the judgment by the High Court. Respondent No. 4 moved the High Court in Crl. M.P. No. 4841/86 (R) without impleading the appellant herein and obtained the impugned order from the High Court dated 3rd January 1987 which we have vacated. The proper course for respondent No. 4 to have adopted was to have approached this Court to seek clarification, if he had any doubt as to the meaning and effect of the status quo order. We highly deprecate the conduct of respondent No. 4 for having approached the High Court and obtained the impugned order by suppressing the fact that this Court had passed the status quo order. Even so, strictly speaking, no case for contempt is made out on the plain terms of the status quo order. The parties were relegated back to the position that obtained while the writ petition was pending. They were therefore subject to the order passed by the High Court dated 15th January, 1985. No other conclusion is possible looking to the terms of the status quo order. We must add that there is no merit in the contention that the disputed plot No. 370 was public land and the State Government was entitled to grant a lease for removal and collection of sludge/slurry despite the notification issued under section 9 of the Act. It is quite clear upon the terms of the notification issued that the Central Government has made the requisite declaration under section 9(1) of the Act for acquisition of the lands measuring 778.45 acres as specified in Schedule 'A ' and it specifically includes the disputed plot No. 370 in Village Sudamdih. The appellant in paragraph 11 of the application for contempt has averred that on the publication in the official gazette of such declaration by the Central Government under section 9(1) of the Act, the aforesaid lands vast absolutely in it free from all encumbrances. The aforesaid declaration by the Central Government under section 9(1) further specifies as enjoined by cl.(b) of sub s(2) thereof that the acquisition of the right in or over lands measuring 778.45 acres describe in Schedule 'A ' also carries with it the right to mine, quarry, bore, dig and search for, win, work and carry away minerals in the lands. It is pertinent to observe that respondent No. 4 Ram Nath Singh and his son Vijendra Singh have not in the counter affidavit denied the aforesaid averment made in paragraph 11 except to say that they are a matter of record. It is plain upon the terms that the area in question i.e. plot 874 No. 370 has been acquired under section 9(1) of the Act together with the right to mine, quarry, bore, dig and search for, win, work and carry away the minerals thereon. lt is idle to contend that the disputed plot No. 370 was open land. It is nothing but an afterthought and is illconceived. It is unfortunate that the appellant rested itself content by obtaining the status quo order in terms in which it was passed. It should instead have for safeguarding its interests insisted upon a prohibitory order. In the meanwhile, we are informed that respondent No. 4 Ram Nath Singh and his son Vijendra Singh have been taking advantage of the qualified status quo order by removing sludge/slurry or briguettes worth about Rs.50,000 per day. The appellant is at liberty to take recourse to such legal remedy as is available for the protection of its rights. We have tried to secure its interests to some extent by permitting withdrawal of the moneys deposited by respondent No. 4 Ram Nath Singh and his son Vijendra Singh in the High Court on furnishing bank guarantee. C.M.P. is disposed of accordingly. N.P.V. Petition disposed of.

The appellant and respondent married in 1977. In 1983, the appellant filed a suit for dissolution of the marriage, alleging that his wife was suffering from severe mental disorder, psychiatrically recognised as `Schizophrenia ' which rendered her unsociable and despite competent professional treatment, her condition deteriorated to the point of making manifest in her suicidal tendencies and aggressive violent behaviour towards others. The appellant could not therefore reasonably be expected to live with the respondent as man and wife. The Respondent denied the imputation of insanity and contended that the appellant was determined to get rid of her, as a result of the domestic discord between her and the appellant 's mother and sister. Both the husband and the wife gave evidence, to prove their respective cases. Other witnesses were also examined. The respondent wife produced a copy of the order passed by the Magistrate in proceedings initiated by the appellant under the Lunacy Act. for the committal of his wife to a mental asylum. The order stated that there was no abnormality in her, requiring institutional treatment. On appreciation of the evidence, the trial court accepted the case of the appellant and granted a decree for dissolution of the marriage. The Respondent wife appealed to the High Court. Allowing the appeal, the High Court reversed the decree of dissolution of marriage, granted by the trial court. It held that the appellant had not shown that his wife 's mental illness was so intense as to justify a reasonable apprehension that it would be impossible or unsafe for the appellant to live with her. PG NO 913 PG NO 914 In the present appeal before this Court, it was contended on behalf of the appellant that in assessing the reasonableness of the husband 's apprehension that he could not be expected to spend the rest of his life with a `Schizophrenic ', due acknowledgement required to be made to his subjective susceptibilities also. Dismissing the appeal, HELD: 1.1 Section 13(1)(iii) does not make the mere existence of a mental disorder of any degree sufficient to justify the dissolution of a marriage. The burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts. The context in which the ideas of unsoundness of `mind ' and `mental disorder ' occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the `mental disorder '. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. [921 C H; 922A] 1.2 scnizophrenia is said to be a difficult mental affliction. It is insidious in its onset and has hereditary pre disposing factor. Each case of Schizophrenia has to be considered on its own merits. Mere branding of a person as Schizophrenic will not suffice. For purpose of Sec. 13(1)(iii) Schizophrenia is what Schizophrenia does. Not all Schzophrenics are characterised by the same intensity of the disease.[924D;928D] 2. In the instant case, taking into account the facts and circumstances the High Court, on a reasonable assessment of the situation, rightly came to the conclusion that the requisite degree of the mental disorder which alone would justify dissolution of marriage has not been established and that the decree for the dissolution of the marriage. granted by the trial court was not justified. [917C D] Rita Roy vs Sitesh Chandra, AIR 1982 Cal 138, approved. McLoughin vs O 'Brian, ; ; Bennett vs Bennett. , relied on. John Searle `Minds, Brains and Science ' [l984] Reith Lectures, PP. 10 & 11, Concise Medical Dictionary, p. 566, Oxford Medical Publications, 1980, Philosophy and Medicine, Vol. 5, p.x. F.C. Redlich and Daniel X. Freedman. `The Theory and Practice of Psychiatry ' [1966] Edn. William Alanson White, New York, The Autobiography of a Purpose ' PG NO 915 Doubleday & Co. 1938 p. 53, Karl Menninger `Communication and Mental Health ', The Menninger Quarterly, [1962], p. 1., Richard C. Allen, Elyce Zennott Ferster, Jassee C. Rubin `Readings in Law and Psychiatry ', Revised & Expanded edn. (1975), p. 38 relied on.

l Appeal No. P 409 of 1958. Appeal by special leave from the judgment and order dated May 13, 1958, of the Punjab High Court at Chandigarh in First Appeal from Order No. 24 of 1958. C. B. Aggarwala and Naunit Lal, for the appellant. H. section Doabia, K. R. Chaudhury and M. K. Ramamurty, for the respondent No. 1. 1958. September 30. This appeal by special leave has been filed against the decision of the Punjab High Court confirming the order passed by the Election Tribunal by which the appellant 's election has been declared to be void. The appellant Shri Baru Ram was elected to the Punjab Legislative Assembly from the Rajaund constituency in the Karnal District. Initially seventeen candidates had filed their nomination papers in this constituency. Out of these candidates, thirteen withdrew and the nomination paper filed by Jai Bhagawan was rejected by the returning officer. That left three candidates in the field. They were the appellant Baru Ram, Mrs. Prasanni and Harkesh, respondents 1 and 2 respectively. The polling took place on March 14, 1957, and the result was declared the next day. Since the appellant had secured the largest number of votes he was declared duly elected. Soon thereafter Mrs. Prasanni, respondent 1, filed an election petition in which she alleged that the appellant had committed several corrupt practices and claimed a declaration that his election was void. The appellant denied all the allegations made by respondent 1. The election tribunal first framed six preliminary issues and after they were decided, it raised twenty nine issues on the merits. The tribunal was not 1406 satisfied with the evidence adduced by respondent I to prove her allegations in respect of the corrupt practices committed by the appellant and so it recorded findings against respondent 1 on all the issues in regard to the said corrupt practices. Respondent I had also challenged the validity of the appellant 's election on the ground that the returning officer had improperly rejected the nomination paper of Jai Bhagawan. This point was upheld. by the election tribunal with the result that the appellant 's election was declared to be void. The appellant then preferred an appeal to the Punjab High Court. He urged before the High Court that the election tribunal was in error in coming to the conclusion that the nomination paper of Jai Bhagawan ' had been improperly rejected. This contention was accepted by the High Court and the finding of 'the tribunal on the point was reversed. Respondent 1 sought to support the order of the election tribunal on the ground that the tribunal was not justified in holding that the appellant was not guilty of a corrupt practice under section 123(7)(c). This argument was also accepted by the High Court and it was held that the appellant was in fact guilty of the said alleged corrupt practice. In the result, though the appellant succeeded in effectively challenging the only finding recorded by the tribunal against him, his appeal was not allowed because another finding which was made by the tribunal in favour of the appellant was also reversed by the High Court. That is why the order passed by the tribunal declaring the appellant 's election to be void was confirmed though on a different ground. It is this order which is challenged before us by Mr. Aggarwal on behalf of, the appellant and both the points decided by the High Court are raised before us by the parties. At the hearing of the appeal Mr. Doabia raised a preliminary objection. He contends that the present appeal has been preferred beyond time and should be rejected on that ground alone. The judgment under appeal was delivered on May 13, 1958, and the petition for leave to appeal under article 136 of the Constitution 1407 has been filed in this Court on September 2, 1958. It is common ground that the appellant had appliedfor leave to the Punjab High Court on June 9, 1958,and his application was dismissed on August 22, 1958.If the time occupied by the appellants application for leave is taken into account, his appeal would be in time; on the other hand, if the said period is not taken into account, his application would be beyond time. Mr. Doabia argues that the proceedings taken on an election petition are not civil proceedings and so an application for leave under article 133 of the Constitution was incompetent; the time taken in the disposal of the said application cannot therefore be taken into account in computing the period of limitation. On the other hand, Mr. Aggarwal urges that section 116A (2) of the Representation of the People Act (43 of 1951) (hereinafter called the Act) specifically provides that the High Court, in hearing an appeal presented to it shall have the same powers, jurisdiction and authority and follow the same procedure with respect to the said appeal as if it were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction. The result of this provision is to assimilate the election proceedings coming before the High Court in appeal to civil proceedings as contemplated by article 133 of the Constitution and so, according to him, it was not only open to the appellant but it was obligatory on him to make an application for leave to the Punjab High Court under the said article. That is why the time occupied by the said proceedings in the Punjab High Court must be excluded in deciding the question of limitation. We do not propose to deal with the merits of these contentions. It is not seriously disputed by Mr. Doabia that parties aggrieved by orders passed by High Courts in appeals under section 116A of the Act generally apply for leave under article 133 and in fact such applications are entertained and considered on the merits by them. It is true that Mr. Doabia 's argument is that this practice is erroneous and that article 133 has no application to the appellate decision of the High Court under section 116A 179 1408 of the Act. Assuming that Mr. Doabia is right, it is clear that the appellant has merely followed the general practice in this matter when he applied for leave to the Punjab High Court; his application was entertained, considered on the merits and rejected by the High Court. Under these circumstances we think that even if we were to hold that article 133 has no application, we would unhesitatingly have excused the delay made in the presentation of the appeal; and so we do not think we can throw out the appeal in limine on the ground of limitation. If necessary we would excuse the delay alleged to have been made in presenting this appeal. On the merits, Mr. Aggarwal contends that the finding of the High Court that the appellant has committed a corrupt practice under section 123(7)(c) is not supported by any evidence. Before dealing with this argument it would be relevant to consider the legal position in the matter. Corrupt practice as defined in section 2(c) of the Act means " any of the practices specified in section 123 ". Section 123(7)(c) provides inter alia that the obtaining or procuring or abetting or attempting to obtain or procure by a candidate any assistance other than giving of vote for the furtherance of the prospects of that candidate 's election from any person in the service of the Government and who is a member of the armed forces of the Union, is a corrupt practice. The case against the appellant as set out by respondent 1 in her election petition on this point is that the appellant secured the assistance of Puran Singh who is a member of the armed forces of the Union. It was alleged that Puran Singh " actively canvassed for the appellant on March 11th to 13th, 1957, in his village and so much so that he subsequently served as his polling agent at polling booth No. 15 at village Kotra on March 14, 1957 ". Both the tribunal and the High Court are agreed in holding that it had not been proved that Puran Singh actively canvassed for the appellant on March 11th to 13th as alleged by respondent 1. They have, however, differed on the question as to whether the appellant had appointed Puran Singh as his polling agent for the 1409 polling booth in question. It would thus be seen that the point which falls for our decision in the present appeal lies within a very narrow compass. Did the appellant secure the assistance of Puran Singh by appointing him as his polling agent ? Going back to section 123, explanation (2) to the said section provides that " for the purpose of cl. (7) a person shall be ' deemed to assist in the furtherance of the prospects of a candidate for election if he acts as an election agent or polling agent or a counting agent of that candidate ". In other words, the effect of explanation (2) is that once it is shown that Puran Singh had acted as polling agent of the appellant, it would follow that the appellant had committed a corrupt practice under section 123(7)(c). But it is important to bear in mind that before such a conclusion is drawn the provisions of section 46 of the Act must be taken into account. Section 46 authorises a contesting candidate to appoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of such candidate at each polling station provided under section 25 or at the place fixed under subs. (1) of section 29 for the poll. There can be no doubt that, when explanation (2) to section 123 refers to a person acting as a polling agent of a candidate, it contemplates the action of the polling agent who is duly appointed in that behalf by the candidate under section 46. It is only when it is shown that a person has been appointed a polling agent by the candidate and has in consequence acted as such agent for the said candidate that explanation (2) would come into operation. If, without being appointed as a polling agent by the candidate, a person fraudulently, or without authority, manages to act as the polling agent of the said candidate, explanation (2) would not apply. That being the true legal position the short point which arises for our decision is whether the appellant had appointed Puran Singh as his polling agent and whether Puran Singh acted as such polling agent at the polling booth No. 15 at Kotra. What then are the facts held proved by the High Court in support of its conclusion against the appellant 1410 under section 123(7)(c) ? The first point which impressed the High Court is in respect of the writing by which the appellant is alleged to have appointed Puran Singh as his polling agent. The printed prescribed forms were not available to the candidates and so they had to copy the prescribed form for the purpose of appointing their polling agents. This position is not disputed. The form by which Puran Singh is alleged to have been appointed the appellant 's polling agent contains a glaring mistake in that while reciting that the polling agent agreed to act as such polling agent the form says " I agree to act as such following agent " (P. W. 48/1). The same glaring mistake is to be found in the form by which the appellant admittedly appointed Pal Chand to act as his polling agent at the same polling booth. The High Court thought that the identity of this glaring mistake in both the forms coupled with the similarity of the handwriting of the rest of the writing in them showed that the two forms must have been written by the same scribe. This is a finding of fact and it may be accepted as correct for the purpose of our decision. It would, however, be relevant to add that it is not at all clear from the record that the same scribe may not have written similar forms for other candidates as well. There is no evidence to show that the scribe who made this glaring mistake had been employed as his own scribe by the appellant. The High Court was also disposed to take the view that Puran Singh in fact had acted as the polling agent on the day of the election at the said polling booth. Respondent 1 had examined herself in support of this plea and Banwari Lal whom she examined supported her in that behalf. The tribunal was not impressed by the evidence of these two witnesses; and it has given reasons for not accepting their evidence as true or reliable. It is unnecessary to emphasize that, in dealing with an appeal under section 116A of the Act, High Courts should normally attach importance to the findings of fact recorded by the tribunal when the said findings rest solely on the appreciation of oral evidence. The judgment of the High Court does not show that 1411 the High Court definitely accepted the evidence of the two witnesses as reliable; in dealing with the question the High Court has referred to this evidence without expressly stating whether the evidence was accepted or not; but it may be assumed that the High Court was disposed to accept that evidence. In this connection, we would like to add that it is difficult to understand why the High Court did not accept the criticism made by the tribunal against these two witnesses. If we consider the verifications made by respondent I in regard to the material allegations on this point both in her petition and in her replication, it would appear that she had made them on information received and not as a result of personal knowledge; that being so, it is not easy to accept her present claim that she saw Puran Singh working as polling agent; but apart from this consideration, the evidence of respondent 1, even if believed, does not show that Puran Singh was working as a polling agent of the appellant ; and the statement of Banwari Lal that Puran Singh was working as the appellant 's polling agent loses much of its force in view of his admission that he had no knowledge that Puran Singh had been appointed by the appellant as his polling agent. Even so, we may assume, though not without hesitation, that Puran Singh did act as appellant 's polling agent as alleged by respondent 1. in dealing with this question the High Court appears to have been considerably influenced by the statement made by Jangi Ram whom the appellant had examined. In his cross examination, Jangi Ram stated that Jagtu and Pal Chand were the agents of Shri Baru Ram, but he added that Puran Singh was not at the polling booth. It may be mentioned that the appellant 's case was that he had appointed only one polling agent at Kotra; and this allegation, according to the High Court, was disproved by the statement of Jangi Ram inasmuch as he referred to two polling agents working for the appellant. In considering the effect of this statement, the High Court has failed to take into account the positive statement of the witness that Puran Singh was not at the polling 1412 station at all. The evidence of the witness may be rejected if it appears to be unreliable; but if it is accepted, it would not be fair to accept it only in part and to hold that two polling agents had been appointed by the appellant one of whom was Puran Singh. There is another serious infirmity in the inference drawn by the High Court from the statement of Jangi Ram ; that is that Jagtu to whom the witness has referred as a polling agent of the appellant appears in fact to have acted as a polling agent of Harkesh, respondent 2. Jhandu, another witness examined by the appellant has stated so on oath and his statement has not been challenged in cross examination. Thus, reading the evidence of Jhandu and Jangi Ram, it would be clear that Jangi Ram was right when he said that Jagtu was acting as a polling agent but he was wrong when he thought that Jagtu was the polling agent of the appellant. If the attention of the High Court had been drawn to the unchallenged statement of Jhandu on this point, it would probably not have drawn the inference that Jangi Ram 's evidence supports the case of respondent I about the appointment of Puran Singh as the appellant 's polling agent. The next ' circumstance on which reliance has been placed in the judgment of the High Court is that Puran Singh has signed the prescribed form appointing him as the polling agent and he must have presented it to the returning officer. The prescribed form requires that a candidate appointing his polling agent and the polling agent himself should sign the first part of the form. Then the polling agent is required to take the form to the returning officer, sign in token of his agreeing to work as a polling agent before the said officer and present it to him. The High Court has found that Puran Singh must have signed the form and presented it as required by law. Puran Singh was examined by respondent 1; but when he gave evidence, he was allowed to be treated as hostile and cross examined by her counsel. Puran Singh denied that he had acted as the appellant 's polling agent and that he had signed the form and presented it to the returning officer. It, however, appears that Chand 1413 Jamadar to whose platoon Puran Singh is attached gave evidence that the signature of Puran Singh on the form in question (P.W. 48/1) appeared to be like the signatures on acquittance rolls which had been admittedly made by him. On the same question hand writing experts were examined by both the parties. Mr. Om Parkas was examined by respondent I and he stated that he had compared the admitted signatures of Puran Singh with the disputed signature and had come to the conclusion that Puran Singh must have made the disputed signature. On the other hand, Mr. Kapur whom the appellant examined gave a contrary opinion. The tribunal thought that in view of this conflicting evidence it would not be justified in finding that Puran Singh had signed the form. The High Court has taken a contrary view. Mr. Aggarwal for the appellant contends that the High Court was in error in reversing the finding of the tribunal on this point. There may be some force in this contention ; but we propose to deal with this appeal on the basis that the finding of the High Court on this question is right. The position thus is that, according to the High Court, Puran Singh signed the form appointing him as the appellant 's agent and presented it before the officer. Puran Singh was seen at the polling booth and the scribe who wrote the form in question also wrote the form by which the appellant appointed Pal Singh as his polling agent at the same booth. The High Court thought that from these circumstances it would be legitimate to infer that the appellant had appointed Puran Singh as his polling agent and had in fact signed the form in token of the said appointment. It is the correctness of this finding which is seriously disputed by Mr. Aggarwal before us. It is significant that from the start the parties were at issue on the question as to whether Puran Singh had been appointed by the appellant as his polling agent; and so respondent 1 must have known that she had to prove the said appointment in order to obtain a finding in her favour on issue 29 under section 123 (7)(c) of the Act. Respondent I in fact led evidence to prove the signature of Puran Singh but no attempt 1414 was made by her to prove the signature of the appellant on the said form. The appellant had specifically denied that he had appointed Puran Singh as his polling agent and when he stepped into the witness box he stated on oath that he had not signed any form in that behalf. Under these circumstances, it was clearly necessary for respondent I to examine competent witnesses to prove the appellant 's signature on the form. It is true that the appellant 's signature on the form appears to have been overwritten, but it is only the expert who could have stated whether the overwriting in question made it impossible to compare the said signature with the admitted signatures of the appellant. It appears that after the whole of the evidence was recorded, respondent woke up to this infirmity in her case and applied to the tribunal for permission to examine an expert in that behalf. This application was made on February 6, 1958; and the only explanation given for the delay in making it was that it was after the appellant denied his signature on oath that respondent I realized the need for examining an expert. The tribunal rejected this application and we think rightly. In its order the tribunal has pointed out that respondent I had been given an opportunity to examine an expert and if she wanted her expert to give evidence on the alleged signature of the appellant her counsel should have asked him relevant questions when he was in the witness box. Thus the position is that there is no evidence on the record to support the case of respondent I that the said alleged signature has in fact been made by the appellant. The only relevant evidence on the record is the statement of the appellant on oath that he had not signed the form in question. Mr. Doabia fairly conceded that there was no legal evidence on this point; but his argument was that from the other findings of fact recorded by the High Court it would be legitimate to infer that the appellant had made the said signature. In our opinion this contention is wholly untenable. It must be borne in mind that the allegation against the appellant is that he has committed a corrupt practice and a finding 1415 against him on the point would involve serious consequences. In such a case, it would be difficult to hold that merely from the findings recorded by the High Court it would be legitimate to infer that the appellant had signed the form and had in fact appointed Puran Singh as his polling agent. Mr. Doabia argues that it is not always absolutely necessary to examine an expert or to lead other evidence to prove handwriting. It would be possible and legal, he contends, to prove the handwriting of a person from circumstantial evidence. Section 67 of the Indian Evidence Act provides inter alia that if a document is alleged to be signed by any person the signature must be proved to be in his handwriting. Sections 45 and 47 of the said Act (I of 1872), prescribe the method in which such signature can be proved. Under section 45, the opinion of the handwriting experts is relevant while under section 47 the opinion of any person acquainted with the handwriting of the person who is alleged to have signed the document is admissible. The explanation to the section explains when a person can be said to be acquainted with the handwriting of another person. Thus, there can be no doubt as to the manner in which the alleged signature of the appellant could and should have been proved; but even assuming that the signature of the appellant can be legally held to be proved on circumstantial evidence the principle which governs the appreciation of such circumstantial evidence in cases of this kind cannot be ignored. It is only if the court is satisfied that the circumstantial evidence irresistibly leads to the inference that the appellant must have signed the form that the court can legitimately reach such a conclusion. In our opinion, it is impossible to accede to Mr. Doabia 's argument that the facts hold proved in the High Court inevitably lead to its final conclusion that the appellant had in fact signed the form. It is clear that in reaching this conclusion the High Court did not properly appreciate the fact that there was no legal evidence on the point and that the other facts found by it cannot even reasonably support the 180 1416 case for respondent 1. We must accordingly reverse the finding of the, High Court and hold that respondent I has failed to prove that the appellant had committed a corrupt practice under section 123(7)(c) of the Act. This finding, however, does not finally dispose of the appeal because Mr. Doabia contends that the High Court was in error in reversing the tribunal 's conclusion that the nomination paper of Jai Bhagawan had been improperly rejected. Mr. Aggarwal, however, argues that it is not open to respondent I to challenge the correctness of the finding of the High Court on this point. In support of his objection, Mr. Aggarwal has referred us to the decision of this Court in Vashist Narain Sharma vs Dev Chandra (1). In this case, when the respondent, having failed on the finding recorded by the tribunal in his favour, attempted to argue that he could support the decision of the tribunal on other grounds which had been found against him, this Court hold that he was not entitled to do so. The provision of the Code of Civil Procedure which permits the respondent to adopt such a course, it was observed, has no application to an appeal filed by special leave under article 136. "We have no appeal before us on behalf of the respondent ", observed Ghulam Hasan J. " and we are unable to allow that question to be reagitated ". Mr. Doabia challenges the correctness of these observations. He relies on section 116A of the Act which empowers the High Court to exercise its jurisdiction, authority and power, and to follow the same procedure, as would apply to appeals preferred against original decrees passed by a civil court within the local limits of its civil appellate jurisdiction. There is no doubt that, in an ordinary civil appeal, the respondent would be entitled to support the decree under appeal on grounds other than those found by the trial court in his favour. Order 41, rule 22 of the Code of Civil Procedure, which permits the respondent to file crossobjections recognize the respondent 's right to support the decree on any of the grounds decided against him by the court below. In the present case no appeal (1)[1955] 1 S.C.R. 509. 1417 could have been preferred by respondent I because she had succeeded in obtaining the declaration that the appellant 's election was void and it should therefore be open to her to support the final conclusion of the High Court by contending that the other finding recorded by the High Court which would go to the root of the matter is erroneous. Prima facie there appears to be some force in this contention; but we do not think it necessary to decide this point in the present appeal. Mr. Aggarwal 's objection assumes that respondent I should have preferred a petition for special leave to appeal against the finding of the High Court on the issue in question; if that be so, the application made by her for leave to urge additional grounds can be converted into a petition for special leave to appeal against the said finding, and the delay made in filing the same can be condoned. As in the case of the preliminary objection raised by respondent 1 against the appellant on the ground of limitation, so in the case of the objection raised by the appellant against respondent I in this matter, we would proceed on the basis that we have condoned the delay made by respondent 1 in preferring her petition to this Court for leave to challenge the finding of the High Court that the nomination form of Jai Bhagawan had been properly rejected. That is why we have allowed Mr. Doabia to argue this point before us. We may add that the two points of law raised by the respective objections of both the parties may have to be considered by a larger Bench on a suitable occasion. On the merits, Mr. Doabia 's case is that the returning officer was not justified in rejecting Jai Bhagawan 's nomination under section 36(2)(b) of the Act. The facts on which this contention is raised are no longer in dispute. Mr. Jai Bhagawan who presented his nomination paper to the returning officer on January 29, 1956, was admittedly not an elector in the constituency of Rajaund in the District of Karnal. It is alleged that he was a voter in another constituency. When his nomination paper was presented, he did not produce a copy of the electoral roll of the said constituency or of the relevant part thereof or a certified copy of the 1418 relevant entries in the said roll; nor did he produce any of these documents on the first of February which was fixed for scrutiny of the nomination papers. When the returning officer noticed that the candidate had not produced the relevant document, he gave him, at his request, two hours time to produce it. The candidate failed to produce the document within the time allowed and thereupon the returning officer rejected his nomination paper tinder section 36 (2)(b) of the Act. It is true that the candidate subsequently purported to produce before the officer his affidavit that his name was entered as a voter in the list of voters (No. 1074, Constituency No. 6, Karnal Baneket No. 21, Vol. 10), but the returning officer refused to consider the said affi davit because he had already rejected his nomination paper under section 36(2)(b). Thus the rejection of the nomination paper was the result of the candidate 's failure to produce any of the prescribed documents before the returning officer. On these facts the question which arises for decision is whether the returning officer was justified in rejecting the nomination paper under section 36(2)(b). Section 33 of the Act deals with the presentation of nomination papers and prescribe , the requirements for valid nomination. It would be relevant to refer to sub sections (4) and (5) of this section. Sub section (4) provides that on the presentation of the 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 roll. The proviso to this sub section requires the returning officer to permit clerical or technical errors to be corrected. Under this sub section it would have been open to Jai Bhagawan while presenting his nomination paper to produce one of the prescribed documents to show his electoral roll number on the roll of his constituency. However, his failure to do so does not entail any penalty. Sub section (5) of section 33 deals with the stage of the scrutiny of the nomination papers and it provides that where a candidate is an elector of a different constituency, a copy of the electoral 1419 roll of that constituency or the relevant part thereof or a certified copy of the relevant entry of such roll shall, unless it is filed along with the nomination paper, be produced before the returning officer at the time of the scrutiny. It is thus clear that when the stage of scrutiny is reached the returning officer has to be satisfied that the candidate is an elector of a different constituency and for that purpose the statute has provided the mode of proof Section 36, sub section (7) lays down that the certified copies which are required to be produced under section 33 (5) shall be conclusive evidence of the fact that the person referred to in the relevant entry is an elector of that constituency. In other words, the scheme of the Act appears to be that where a candidate is an elector of a different constituency he has to prove that fact in the manner prescribed and the production of the prescribed copy has to be taken as conclusive evidence of the said fact. This requirement had not been complied with by Jai Bhagawan and the returning officer thought that the said non compliance with the provisions of section 33(5) justified him in rejecting the nomination paper under section 36(2)(b) of the Act. The question is whether this view of the returning officer is right. Section 36 of the Act deals with the scrutiny of nominations and the object of its provisions as shown by sub section (8) is to prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid and to affix it to the notice board of the returning officer. Sub section (1) of section 36 provides that on the date fixed for the scrutiny of nominations each candidate and one other person duly authorized may attend at such time and place as the returning officer may appoint and the returning officer is required to give them all reasonable facilities for examining the nomination papers of all candidates which have been duly delivered. Sub section (2) then deals with the scrutiny of the nomination papers and provides that the returning officer 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 enquiry, if any, as he thinks 1420 necessary, reject any nomination on any of the grounds mentioned in cls. (a), (b) and (c) of the said sub section. It is obvious that this enquiry must be summary and cannot be elaborate or prolonged. In fact, sub section (5) directs that the returning officer shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riots, by open violence or by causes beyond hip, control and the proviso to this sub section adds 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. Sub section (2) (b) deals with cases where there has been a failure to comply with any of the provisions of section 33 or section 34. There is no doubt that in the present case there was failure on the part of Jai Bhagawan to comply with section 33(5) and prima facie section 36(2)(b) seems to justify the rejection of his nomination paper on that ground. Section 33(5) requires the candidate to supply the prescribed copy and section 36(2)(b) provides that on his failure to comply with the said requirement his nomination paper is liable to be rejected. In other words, this is a case where the statute requires the candidate to produce the prescribed evidence and provides a penalty for his failure to do so. In such a case it is difficult to appreciate the relevance or validity of the argument that the requirement of section 33(5) is not mandatory but is directory, because the statute itself has made it clear that the failure to comply with the said requirement leads to the rejection of the nomination paper. Whenever the statute requires a parti cular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence. It is, however, urged that the statute itself makes a distinction between defects which are of a substantial character and those which are not of a substantial 1421 character. This argument is based upon the provisions of section 36(4) of the Act which provides that the returning officer shall not reject any nomination paper on the ground of any defect " which is not of a substantial character ". The failure to produce the requisite copy, it is urged, may amount to a defect but it is not a defect of a substantial character. We are not impressed by this argument. There is no doubt that the essential object of the scrutiny of nomination papers is that the returning officer should be satisfied that the candidate who is not an elector in the constituency in question is in fact an elector of a different constituency. The satisfaction of the returning officer is thus the matter of substance in these proceedings; and if the statute provides the mode in which the returning officer has to be satisfied by the candidate it is that mode which the candidate must adopt. In the present case Jai Bhagawan failed to produce any of the copies prescribed and the returning officer was naturally not satisfied that jai Bhagawan was an elector of ' a different constituency. If that in substance was the result of Jai Bhagawan 's failure to produce the relevant copy the consequence prescribed by section 36(2)(b) must inevitably follow. It is only if the returning officer had been satisfied that Jai Bhagawan was an elector of a different constituency that his nomination papers could have been accepted as valid. It is well settled that the statutory requirements of election law have to be strictly observed. As observed by Mahajan C. J. who delivered the judgment of this Court in Jagan Nath vs Jagwant Singh(1) ". an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power ". The learned Chief Justice has also added that ". it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law." In this connection we may usefully refer to another decision of this Court in Rattan Anmol (1)[1954] S.C. R. 892, 895, 896. 1422 Singh vs Atma Ram (1). While dealing with the question as to whether the requirements as to attestation were of a technical or of an unsubstantial character, Bose J. observed that " when the law enjoins the obser vance of a particular formality, it cannot be disregarded and the substance of the thing must be there ". We must, therefore, hold that the High Court was right in coming to the conclusion that the nomination paper of Jai Bhagawan had been validly rejected by the returning officer. Mr. Doabia, however, contends that the view taken by the High Court is purely technical and does not take into account the substance of the matter. This approach, it is said, is inconsistent with the decision of this Court in Pratap Singh vs Shri Krishna Gupta (1). It is true that in this case Bose J. has disapproved of the tendency of the courts towards technicalities and has observed that " it is the substance that counts and must take precedence over mere form ". But in order to appreciate the scope and effect of these observations, it would be necessary to bear in mind the relevant facts and the nature of the point raised before the court for decision in this case. The question raised was whether the failure of the candidate to mention his occupation as required by r. 9(1)(i) rendered his nomination paper invalid and it was answered by the court in the negative. The question arose under the provisions of the C. P. and Berar Municipalities Act 11 of 1922. It is significant that the decision of this Court rested principally on the provisions of section 23 of the said Act according to which " Anything done or any proceedings taken under this Act shall not be questioned on account of any. . defect or irregularity in affecting the merits of the case ". It was held by this Court that reading r. 9(1) (iii) (c) which directed the supervising officer to examine nomination papers, in the light of section 23, the court had to see whether the omission to set out a candidate 's occupation can be said to affect the merits of the case and on that point there was no doubt that the said failure could not possibly affect the merits of the case. The High Court had, however, taken a (1) ; , 488. (2) A.I.R. 1956 S.C. 140,141. 1423 contrary view and it was in reversing this view that Bose J. disapproved the purely technical approach adopted by the High Court. Where, however, the statute requires specific facts to be proved in a specific way and it also provides for the consequence of non P compliance with the said requirement it would be difficult to resist the application of the penalty clause on the ground that such an application is based on a technical approach. Indeed it was precisely this approach which was adopted by this Court in the case of Rattan Anmol Singh vs Atma Ram (1). Mr. Doabia has also relied upon a decision of the Andhra High Court in Mohan Reddy vs Neelagiri Muralidhar Rao (2) in support of his argument that the failure to produce the prescribed copy cannot justify the rejection of the nomination paper. In our opinion this decision does not assist Mr. Doabia 's contention. In this case it was urged before the High Court that the document produced by the party was riot a certified copy as required by section 33 (5) of the Act. This argument was based on the assumption that the certified copy mentioned in section 33(5) of the Act must satisfy the test prescribed by section 76 of the Indian Evidence Act. The High Court rejected this argument for two reasons. It held that the certified copy mentioned ins. 33(5) need not necessarily satisfy the test prescribed by section 76 of the Indian Evidence Act. Alternatively it held, on a consideration of the relevant statutory provisions, that the document in question was in fact and in law a certified copy under section 76 of the Indian Evidence Act. These points do not arise for our decision in the present appeal. Mr. Doabia, however, relies on certain observations made in the judgment of the nigh Court and it may be conceded that these observations seem to suggest that according to the High Court the provisions of sections 33(5) and 36(7) do not preclude proof by other means of the fact that the name of the candidate is on the relevant electoral roll. These observations are clearly obiter. Even so we (1) ; , 483. (2) A.I.R. 1958 Andhra Pradesh 485. 181 1424 would like to add that they do not correctly represent the effect of the relevant provisions of the Act. The result is the appeal is allowed, the order passed by the High Court is set aside and the election petition filed by respondent 1 is dismissed with costs throughout. Appeal allowed.

The first respondent filed an election petition against the 1404 appellant on the grounds: (i) that he committed the corrupt practice specified in section 123(7) Of the Representation of the People Act, 195I inasmuch as he had obtained the assistance of one P, a member of the armed forces, who had acted as his polling agent and (ii) that the nomination of one J had been improperly rejected by returning officer. The election tribunal held that the corrupt practice was not proved but that the nomination of J had been improperly rejected and consequently it declared the election of the appellant to be void. On appeal the High Court held that the nomination of J was not improperly rejected but that the corrupt practice alleged was established and dismissed the appeal. The High Court found that P had signed the form a pointing him as the appellant 's polling agent and had presented it before the presiding officer, that P was seen at the polling booth and that the scribe who wrote this form had also written the form by which the appellant had appointed another polling agent. From these circumstances the High Court drew the inference that the appellant had appointed P as his polling agent and had in fact signed the form in token of such appointment. With respect to the rejection of the nomination of J the High Court held that J was a voter in a different constituency and that he had failed to produce a copy of the electoral roll when he presented the nomination paper, nor was it produced at the time of the scrutiny or within the time given by the returning officer and that consequently the nomination was properly rejected. Held, that to establish that the appellant was guilty of the corrupt practice charged it was not sufficient to show that P had acted as his polling agent but it must also be proved that the appellant had appointed P as his polling agent. This fact the first respondent had failed to prove by any legal evidence. The facts and circumstances found by the High Court did not inevitably lead to the conclusion that the appellant had signed the form and hence such an inference could not be drawn. Held, further, that the nomination of J was not improperly rejected. Where a candidate is an elector of a different constituency he has to prove that fact in the manner prescribed by section 33(5) by the production of a copy of the electoral roll of that constituency or of the relevant part thereof or of a certified copy of the relevant entries thereof. In the present case there was failure on the part of J to comply with section 33(5) and his nomination was properly rejected under section 36(2)(b). The failure to comply with section 33(5) is not a defect of an unsubstantial character so as to attract the application Of section 36(4). When the statute requires specific facts to be proved in a specific way and it also provides for the consequences of non compliance with the said requirement the application of the penalty clause cannot be resisted on the ground that such application is based on a technical approach. jagan Nath vs jaswant Singh; , ; Rattan 1405 Anmol Singh vs Atma Ram, ; and Pratap Singh vs Shri Krishna Gupta, A.I.R. 1956 S.C. 140, referred to. Mohan Reddy vs Neelagiri Muralidhar Rao, A.I.R. 1958 A.P. 485, not approved.

N: Criminal Appeal No. 13 of 1951. Appeal by special leave from the judgment and order of the High Court of Madras (Rajamannar C.J. and Balakrishna Ayyar J.) dated 10 th April, 1950, in Contempt Application No. 10 of 1949. 426 S.P. Sinha (S.S. Prakasam, with him), for the appellant. R. Ganapathy Iyer, for the respondent. February 14. The Judgment of the Court was delivered by MUKHERJEA J. This appeal has come up before us on special leave granted by this court on May 23, 1950, and it is directed against a judgment of a Division Bench of the Madras High Court dated April 10, 1950, by which the learned Judges found the appellant guilty of contempt of court and sentenced him to serve simple imprisonment for three months. The appellant is the publisher and managing editor of a Telugu Weekly known as "Praja Rajyam" which is edited and published at Nellore in the State of Madras. In the issue of the said paper dated 10th February, 1949, an article appeared under the caption "Is the Sub Magistrate, Kovvur, corrupt?" The purport of the article was that Surya Narayan Murthi, the stationary Sub Magistrate of Kovvur, was known to the people of the locality to be a bribe taker and to be in the habit of harassing litigants in various ways. He was said to have a broker, through whom negotiations in connec tion with these corrupt practices were carried on. Several specific instances were cited of cases tried by that offi cer, where it was rumoured that he had either taken bribes or had put the parties to undue harassment, because they were obdurate enough to refuse the demands of his broker. The article, which is a short one, concludes with the fol lowing paragraph: "There are party factions in many villages in Kovvur Taluk. Taking advantage of those parties many wealthy persons make attempt to get the opposite party punished either by giving bribes or making recommendations. To appoint Magistrates who run after parties for a Taluk like this. . is to betray the public. It is tantamount to failure of justice. Will the Collector enquire into the matter and allay the public of their fears?" 427 The attention of the State Government being drawn to this article, an application was filed by the AdvocateGener al of Madras before the High Court on November 14, 1949, under section 2 of the Contempt of Courts Act (Act XII of 1926) praying that suitable action might be taken against the appellant as well as three other persons, of whom two were respectively the editor and sub editor of the paper, while the third was the owner of the Press where the paper was printed. On receiving notice, the appellant appeared before the High Court and filed an affidavit taking sole responsibility for the article objected to and asserting that the article was published because of his anxiety to uphold the highest traditions of the judiciary in the land and to create popular confidence in courts, the duty of which was to dispense justice without fear or favour and without any discrimination of caste, creed or community. It was said that before the article was published, numerous complaints had reached him from various quarters imputing corruption and disreputable conduct to this Magistrate and the only desire of the appellant was to draw the attention of the higher authorities to the state of public opinion in the matter and to invite an enquiry into the truth or otherwise of the allegations which were not asserted as facts but were based only on hearsay. The High Court after hearing the parties came to the conclusion that the publication in question did amount to contempt of court, as it was calculated to lower the pres tige and dignity of courts and bring into disrepute the administration of justice. As the appellant was not prepared to substantiate the allegations which he made and which he admitted to be based on hearsay and did not think it proper even to express any regret for what he had done, the court sentenced him to simple imprisonment for three months. The other three respondents, through their counsel, tendered unqualified apology to the court and the learned Judges considered that no further action against them was necessary. 428 The propriety of the decision of the High Court so far as it relates to the appellant has been challenged before us in this appeal and Mr. Sinha, who appeared in support of the same, raised before us a two fold contention; his first and main contention is that as the contempt in this case was said to have been committed in respect of a court subordi nate to the High Court and the allegations made in the article in question constitute an offence under section 499 of the Indian Penal Code, the jurisdiction of the High Court to take cognizance of such a case is expressly barred under section 2 (3) of the Contempt of Courts Act. The other contention advanced by the learned counsel relates to the merits of the case and it is urged that in publishing the article objected to, the appellant acted in perfect good faith, and as the article amounted to nothing else but a demand for enquiry into the conduct of a particular person who was believed to be guilty of corrupt practices in the discharge of his judicial duties, there was no contempt of court either intended or committed by the appellant. So far as the first point is concerned, the determina tion of the question raised by the appellant would depend upon the proper interpretation to be put upon section 2(3) of the Contempt of Courts Act which runs as follows : "No High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subor dinate to it where such contempt is an offence punishable under the Indian Penal Code. " According to Mr. Sinha, what the sub section means is that if the act by which a party is alleged to have commit ted contempt of a subordinate court constitutes offence of any description whatsoever punishable under the Indian Penal Code, the High Court is precluded from taking cognizance of it. It is said that in the present case the allegations made in the article in question amount to an offence of defama tion as defined by section 499 of the Indian Penal Code and consequently the jurisdiction of the High Court is barred. Reliance 429 is placed in support of this proposition upon the decision of the Nagpur High Court in Kisan Krishna Ji vs Nagpur Conference of Society of St. Vincent de Paul(1). This con tention, though somewhat plausible at first sight, does not appear to us to be sound. In our opinion, the sub section referred to above excludes the jurisdiction of High Court only. in cases where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code. This would be clear from the language of the sub section which uses the words "where such contempt is an offence" and does not say "where the act alleged to consti tute such contempt is an offence". It is argued that if such was the intention of the Legislature, it could have express ly said that the High Court 's jurisdiction will be ousted only when the contempt is punishable as such under the Indian Penal Code. It seems to us that the reason for not using such language in the sub section may be that the expression "contempt of court" has not been used as descrip tion of any offence in the Indian Penal Code, though certain acts, which would be punishable as contempt of court in England, are made offences under it. It may be pointed out in this connection that al though the powers of the High Courts in India established under the Letters Patent to exercise jurisdiction as Superi or Courts of Record in punishing contempt of their authority or processes have never been doubted, it was a controversial point prior to the passing of the Contempt of Courts Act, 1926, as to whether the High Court could, like the Court of King 's Bench in England, punish contempt of courts subordi nate to it in exercise of its inherent jurisdiction. The doubt has been removed by Act XII of 1926 which expressly declares the right of the High Court to protect subordinate courts against contempt, but (1) (1943) A.I.R. 1943 Nag. 430 subject to this restriction, that cases of contempt which have already been provided for in the Indian Penal Code should not be taken cognizance of by the High Court. This seems to be the principle underlying section 2(3)of the Contempt of Courts Act. What these cases are need not be exhaustively determined for purposes of the present case, but some light is undoubtedly thrown upon this matter by the provision of section 480 of the Criminal Procedure Code, which empowers any civil, criminal or revenue court to punish summarily a person who is found guilty of committing any offence under sections 176, 178, 179, 180 or section 228 of the Indian Penal Code in the view or presence of the court. We are not prepared to say, as has been said by the Patna High Court in Jnanendra prasad vs Gopal(1), that the only section of the Indian Penal Code which deals with contempt committed against a court of justice or judicial officer is section 228. Offences under sections 175, 178, 179 and 180 may also, as section 480 of the Criminal Proce dure Code shows, amount to contempt of court if the "public servant" referred to in these sections happens to be a judicial officer in a particular case. It is well known that the aim of the contempt proceeding is "to deter men from offering any indignities to a court of justice" and an essential feature of the proceeding is the exercise of a summary power by the court itself in regard to the delin quent. In the cases mentioned in section 480 of the Indian Penal Code, the court has been expressly given summary powers to punish a person who is guilty of offending its dignity in the manner indicated in the section. The court is competent also under section 482 of the Criminal Proce dure Code to forward any case of this description to a Magistrate having jurisdiction to try it, if it considers that the offender deserves a higher punishment than what can be inflicted under section 480. Again, the court is enti tled under section 484 to discharge the offender on his submitting an apology, although it has already adjudged him to punishment under section Pat. 172. 431 or forwarded his case for trial under section 482. The mode of purging contempt by tendering apology is a further char acteristic of a contempt proceeding. It seems, therefore, that there are offences which are punishable as contempt under the Indian Penal Code and as subordinate courts can sufficiently vindicate their dignity under the provisions of criminal law in such cases the legislature deemed it proper to exclude them from the jurisdiction of the High Court under section 2(3) of the Contempt of Courts Act;but it would not be correct to ' say that the High Court 's juris diction is excluded even in cases where the act complained of, which is alleged to constitute contempt, is otherwise an offence under the Indian Penal Code. This view has been taken and, in our opinion quite rightly, in a number of decisions by the Calcutta,(1) Patna,(2) Allahabad(3) and Lahore(4) High Courts. The only authority which Mr. Sinha could cite in support of his contention is the decision of the Nagpur High Court in Kisan Krishna Ji vs Nagpur Conference of Society of St. Vincent de Paul("). The authority is undoubtedly in his favour as it proceeds upon the assumption that the idea underlying the provision of section 2(3) of the Contempt of Courts Act is that if a person can be punished by some other tribunal, then the High Court should not entertain any proceeding for contempt. It is to be noticed that the learned Judge, who decided this case, himself took the opposite view in the case of Subordinate Judge, First Class, Hoshangabad vs Jawaharlal(6) and definitely held that the prohibition contained in section 2(3) of the Contempt of Courts Act refers to offences punishable as contempt of court by the Indian Penal Code and not to offences punishable otherwise than as contempt. This decision was neither noticed nor dissented from in the subsequent case, and it is quite possible that (1) Narayan Chandra vs Panehu Pramanik (A.I.R. ; Naresh Kumar.v. Umaromar (A.I.R. 1951 Cal. (2)Kaulashia vs Emperor (12 Pat. 1). (3) State vs Brahma Prakash (A.I.R. 1950 All. 556); Emperor vs Jagannath (A.I.R. 1938 All. 358). (4) Bennett Coleman vs G. section Monga (I.L.R. (5) A.I.R. 1943 Nag. (6) A.I.R. 1940 Nag. 56 432 the attention of the learned judge was not drawn to this earlier pronouncement of his, in which case the matter would certainly have been more fully discussed. We think further that the decision of the Calcutta High Court in V.M. Bason vs A. H. Skone(1) which was the basis of the decision of the learned Judge in the subsequent case does not really support the view taken in it. In the Calcutta case what happened was, that a clerk of the Attorney, who appeared for the respondent decreeholder, went to serve a notice under Order 21, Rule 37(1), of the Civil Procedure Code upon the appellant judgment debtor. The judgmentdebtor refused to take the notice and abused and assaulted the Attorney 's clerk. Upon that, contempt proceedings were started against him and Mr. Justice C.C. Ghosh, sitting on the Original Side of the High Court of Calcutta, held the appellant guilty of contempt and fined him Rs. 200. On appeal, this judgment was affirmed by the appellate Bench and there was a general observation made by Chief Justice Sanderson at the close of his judgment that it is not desirable to invoke the special inherent jurisdiction of the High Court by way of proceeding for contempt if ordinary proceedings in a Magistrate 's court are sufficient to meet the requirements of a case. This was not a case under section 2(3) of the Contempt of Courts Act at all and no question either arose or was decided as to whether if an act is otherwise punishable as an offence under the Indian Penal Code the jurisdiction of the High Court under that section would be ousted. Undoubtedly the High Court had jurisdiction in that case and whether such jurisdiction, which is certainly of a special character and is exercised summarily, should be called in to aid in the circumstances of a particular case would depend upon the discretion of the court. This has, however, no bearing on the point that has arisen for consideration before us. We would hold, therefore, that the right view was taken by the learned Judge of the Nagpur High Court in the earlier case and not in the later one, (1) I.L R. 433 It is next urged by Mr. Sinha that even assuming that this view is correct, the language of section 499 of the Indian Penal Code is wide enough to cover a case of contempt of court. What is said is, that if a libel is published against a judge in respect of his judicial functions, that also is defamation within the meaning of section 499 of the Indian Penal Code and as such libel constitutes a contempt of court, it may be said with perfect propriety that libel on a judge is punishable as contempt under the Indian Penal Code. We do not think that this contention can be accepted as sound. A libellous reflection upon the conduct of a judge in respect of his judicial duties may certainly come under section 499 of the Indian Penal Code and it may be open to the judge to take steps against the libeller in the ordinary way for vindication of his character and personal dignity as a judge; but such libel may or may not amount to contempt of court. As the Privy Council observed in Surendra Nath Banerjee vs The Chief Justice and Judges of the High Court,(1) "although contempt may include defamation, yet an offence of contempt is something more than mere defamation and is of a different character. " When the act of defaming a judge is calculated to obstruct or interfere with the due course of justice or proper administration of law, it would certainly amount to contempt. TIle offence of con tempt is really a wrong done to the public by weakening the authority and influence of courts of law which exist for their good. As was said by Willmot, C.J.(2) "attacks upon the judges excite in the minds of the people a general dissatisfaction with all judicial determi nations. and whenever man 's allegiance to the laws is so fundamentally shaken it is the most fatal and dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges as private indi viduals but because they are the channels by which the King 's justice is conveyed to the people". (1) I.L.R. at 131. (2) Willmot 's Opinions page 256; Rex vs Davies 30 at p. 40 41. 434 What is made punishable in the Indian Penal Code is the offence of defamation as defamation and not as. contempt of court. If the defamation of a subordinate court amounts to contempt of court, proceedings can certainly be taken under section 2 of the Contempt of Courts Act, quite apart from the fact that other remedy may be open to the aggrieved officer under section 499 of the Indian Penal Code. But a libel attacking the integrity of a judge may not in the circumstances of a particular case amount to a contempt at all, although it may be the subject matter of a libel pro ceeding. This is clear from the observation of the Judicial Committee in the case of The Matter of a Special Reference from the Bahama Islands(1). The first contention of Mr. Sinha, therefore, fails. The second point raised by the learned counsel does not appear to us to have any real substance. The article in question is a scurrilous attack on the integrity and honesty of a judicial officer. Specific instances have been given where the officer is alleged to have taken bribes or behaved with impropriety to the litigants who did not satisfy his dishonest demands. If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute. The appel lant, though he took sole responsibility regarding the publication of the article, was not in a position to sub stantiate by evidence any of the allegations made therein. He admitted that the statement was based on hearsay. Ru mours may have reached him from various sources, but before he published the article it was incumbent upon him as a reasonable man to attempt to verify the informations he received and ascertain, as far as he could. whether the facts were true or mere concocted lies. He does not appear to have made any endeavour in this direction. As the appel lant did not act with reasonable care and caution, he cannot be said to have acted (1) 435 bona fide, even if good faith can be held to be a defence at all in a proceeding for contempt. What is more, he did not express any regret for what he had done either in the High Court or before us and his behaviour does not show the least trace of contrition. In these circumstances, we think that the appeal cannot succeed and must be dismissed. Appeal 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.

l Appeals Nos. 51 and 52/61 Appeals from the judgment and decree dated September 23, 1959, of the Allahabad High Court (Lucknow Bench) at Lucknow in C. M. Applications Nos. 15 (O.J.) and 16 (O.J.) of 1957 respectively. C. B. Agarwala and C. P. Lal, for the Appellants (in both the appeals). A. V. Viswanatha Sastri, and K. L. Arora, for Respondent No. 1 (in both the appeals). February 7. The Judgment of the Court was delivered by SARKAR, J. These two appeals have been heard together. The, appellants in each case are the State of Uttar Pradesh, for short called U. P. and some of its officers and the respondents in one appeal are Lakshmi Ice Factory and certain of its workers and in the other the Prakash Ice Factory and certain of its workers. These appeals involve a question of construction of certain provisions of the U. P. , hereafter referred to as the Act. By a Notification issued on February 10, 1956, the Government of U. P. referred certain disputes which had cropped up between each of the Ice Factories and its respective workmen, to an Industrial Tribunal for adjudication. The details of these disputes are not material for these appeals. The Tribunal heard the matters but failed to pronounce its award in open court. Instead, on November 8, 1956, the Registrar of the Tribunal informed the Ice Factories that the award of the Tribunal had been submitted to the Government. On December, 15, 1956, the award was published in the U. P. Gazette and it appeared from this publication that the award was dated November 8, 1956. On December 26, 1956, the Regional Conciliation Offi cer appointed under the Act " called upon the Ice 61 Factories to implement the award immediately. Thereupon the Tee Factories moved the High Court at Allahabad on January 3, 1957 under article 226 of the Constitution for writs quashing the award and prohibiting the Government and the workmen from taking steps to implement it. They contended that the award sought to be enforced was a nullity as it had not been pronounced in open court as required by certain rules to which reference will presently be made. By a judgment passed on September 23, 1959, the High Court allowed the petitions of the Ice Factories and issued writs quashing the Notification publishing the award. The appeals are against this judgment of the High Court. Section 3 of the Act gives the Government power in certain circumstances to make provisions by general, or special order (1) for appointing Industrial courts, (2) for referring any industrial dispute for adjudication in the manner provided in the order and (3) for matters incidental or supplementary to the other provisions of the order. Under this power the Government had issued an Order dated July 14, 1954 and this Order is hereafter called the "Statutory Order. " It was under powers conferred by the Act read with the Statutory Order that the Government had issued the Notification of February 10, 1956. In exercise of powers conferred by el. 8 of the Statutory Order the Government had set up the Tribunal. Clause 9 of the Statutory Order provides for the procedure to be followed by the Tribunal. Sub clause (7) of this clause is in these terms: "The decision of the Tribunal shall be in writing and shall be pronounced in open court and dated and signed by the member or members of the Tribunal, as the case may be, at the time of pronouncing it. " Clause 11 of the Statutory Order gives power to Government to refer any industrial dispute to the Tribunal. Sub clause (9) of el. 9 of the Statutory Order 62 gives power to the Tribunal to make Standing Orders relating to its practice and procedure. Under this sub clause the Tribunal framed certain Standing Orders. Standing Order No. 36 provided. "Judgment shall be pronounced in open court either immediately after the close of the arguments or on a subsequent date of which previous notice shall be given to the parties. It shall then be signed and dated by the Tribunal. " Acting presumably under Standing Order No. 36, the Tribunal in the present case bad fixed a date on which it would pronounce its judgment in open court. This date does not appear on the record but on September 25, 1956, the Tribunal informed the parties that the date for pronouncing the award had been changed to October 9, 1956. On that date, however, the award was not pronounced in open court, nor was any intimation of any other date for its pronouncement given to the parties. The lee Factories first came to know of the making of the award from the letter of the Registrar of the Tribunal dated November 8, 1956 earlier referred to. The award had in fact never been pronounced in open court. The first question is whether the provisions in sub el. (7) of el. 9 are imperative. The High Court held that they were and thereupon quashed the Notification publishing the award. The appellants contend that the High Court was in error and that the provisions are only directory and that the failure of the Tribunal to pronounce the award in open Court did not result in the award becoming void. The Ice Factories contend for the contract view. Mr. Aggarwala for the appellants referred us to the rule of construction stated in Maxwell on Interpretation of Statutes, 10th ed. at p. 381, which is as follows : ",Where the prescriptions of a statute relate to the performance of a public duty and 63 where the invalidation of acts done in neglect of them, would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words as 'directory only". Ho said that sub el. (7) of cl. 9 of the Statutory Order imposed a public duty on the Tribunal and as none of the contesting parties to the proceedings before the Tribunal had any control over it, the provision in the Statutory Order as to how the Tribunal is to discharge its duty must be regarded as merely directory and therefore a disregard of that provision by the Tribunal would not render the thing done by it a nullity. It seems to us that the rule read from Maxwell is not applicable to this case. It applies only when to hold the prescriptions in a statute as to the performance of a public duty to be imperative would work injustice and hardship without serving the object of the statute. None of these conditions are present ill the statute now before us. The rule may be illustrated by reference to the case of Montreal Street Railway Co. vs Normandin(1) which is cited in Maxwell 's book. That was a case in which certain Statutory provisions as to how the jury list was to be revised had not been followed and the question arose whether the verdict of a jury empannelled out of a list revised in disregard of the provision was a nullity. It was hold that the verdict was not a nullity as the provision regarding the revision of the jury list was merely directory. It was further held that the object of the provision was to distribute the burden of jury equally between all liable to it, to secure effective jurors likely to attend and lastly to prevent packing of the jury. It was said that "It does far less harm to allow cases tried by a jury formed as this one was (1) ; 64 with the opportunities there would be object to any unqualified man called into the box, to stand good, than to hold the proceedings null and void. So to hold would not, of course, prevent, the courts granting new trials in cases where there was reason think that a fair trial had not been had": P. 176). The case in hand is wholly different. The proceedings that were had before the Tribunal would not become null and void if we hold el. 9(7) of the Statutory Order to be imperative,. A view that the provision was imperative would cause no serious hardship to any one. The Government can always require the Tribunal to pronounce, its decision in open court extending, if necessary for the purpose. he time fixed for giving its decision. Either party of the proceeding can also ask the Government to call upon the Tribunal to pronounce its award in open court. There is no doubt that the Government will go call upon the Tribunal when the defect s brought to its 'notice for the Government itself referred the matter to the Tribunal for if decision. As soon as the Tribunal pronounces it,; award in open court, the proceedings will become fully effective. It is also an accepted rule of construction that enactments regulating the procedure in courts are usually imperative : Maxwell on Interpretation of statues 10th ed. p. 379. It further appears to us that the object of the legislature would be defeated by reading cl. 9(7) of the Statutory Order as containing a provision which is merely director vs We now proceed to ascertain that object from the, other provisions in the Statutory Order, the Act and connected legislation. Section 6 of the IT. P. Act provides as follows : (1) When an authority to which an industrial dispute has been referred for 65 adjudication has completed it,% enquiry, it shall, within such time as may be ,specified, submit its award to the State Government. (2) The State Government may. enforce for such period as it may specify all or any of the decisions in the award. It was under this section that the Tribunal submitted it,% award to the Government and the Government issued the Notification in the Gazette dated December 15, 1956 earlier mentioned and directed that the award be enforced for a period of one year from the date of the publication. Since the award has to be submitted to the Government by the Tribunal under section 6 of the Act, the award has to be in writing, for a verbal award cannot obviously be submitted to the Government. It would therefore appear that the provision in sub cle. (7) of el. 9 of the Statutory Order that the decision of the Tribunal shall be in writing is imperative, This would be an indication that the other provisions in the same sub clause connected with it were intended to be equally imperative. Then we find that el. 18 of the Statutory Order is in these terms : "The Tribunal or the adjudicator shall hear the dispute and give its or his decision within 180 days (excluding holidays but Dot annual vacations observed by courts subordinate to the High Court) from the date of reference made to it or him by the State Government and shall thereafter as soon as possible, supply a copy of the same to the parties to the dispute. . . Provided that the State Government may extend the said period from time to time. " It seems to us that the provision in this clause in clearly mandatory. The Tribunal has no power to make an award after the time mentioned in it; if it had, the proviso to el. 18 would be wholly unnecessary. The result therefore is that it is 66 obligatory on the Tribunal to give its decision within 180 days from the date of the reference. A decision given, that is an award made, beyond this period would be a nullity. Now when cl. 18 talks of giving a decision, it can only mean giving it in the manner indicated in sub cl, (7) of cl. 9 of the Statutory Order, that is, by pronouncing it in open court, for that is the only manner of giving a decision which that order contemplates. It would follow that the terms of cl. 9(7) were imperative, for otherwise no one would know whether the terms of el. 18 of the Statutory Order had been complied with, that is to say, no one would know whether the award was void or not. The provisions of cl. IS may thus be rendered nugatory by holding el. 9(7) to be only directory. It would follow that unless the provision as to the pronouncement of the award in open court was mandatory, the intention of the framers of the Statutory Order would be defeated. Sub clause (2) of cl. 24 of the Statutory Order also leads to the same conclusion. That sub clause is in these terms : "Clerical or arithmetical mistakes in decisions or awards, or errors arising therein from any accidental slip or omis sion may, within one month of giving the decision or award be corrected by the Tribunal or the adjudicator, either of its or his own motion or on the application of any of the parties. " Under this rule therefore clerical or arithmetical errors or slips may be corrected within one month of the giving of the decision and the parties have the right to apply for such corrections within that time. The Tribunal has no right to correct an error beyond that time. Nor has a party a right to move the Tribunal for making any such corrections after the time has expired. In order that the intention of cl. 24 (2) may be, given effect to, it is necessary that the date of the 67 giving of the decision should be known. It cannot promptly be known to the parties unless the award is pronounced in open court. If any other Manner of the giving of the decision was permissible as would be the result if it was not obligatory to pronounce the decision in open court, then a party may be deprived of its right under cl. 24 to move the Tribunal for correction of errors. It is for this reason that cl. 9(7) provides that the decision shall be dated and signed at the time of pronouncing it in open court. This signing and dating of the award after its pronouncement in open court makes it possible to see whether the terms of cls. 18 and 24 (2) have been complied with in any case. The third thing which to our mind indicates that pronouncement in open court is essential is cl. 31 of the Statutory Order. That clause is in these terms : "Except as provided in this Order and in the Industrial Disputes (Appellate Tribunal) Act, 1950, every order made or direction issued under the provisions of this Order shall be final and conclusive and shall not be questioned by any party thereto in any proceedings. " The Industrial Disputes (Appellate Tribunal) Act, 1950 provides for appeals from decisions of certain Industrial Tribunals to the Appellate Tribunal established under it. Clause 31 therefore makes a decision of the Tribunal on a reference to it final subject to an appeal if any allowed under the Industrial Disputes (Appellate Tribunal) Act, 1950. Under a. 7 of the Act of 1950, an appeal shall lie to the Appellate Tribunal from any award or decision of an Industrial Tribunal concerning certain specified matters. Now an Industrial Tribunal mentioned in section 7 includes a Tribunal set up under a State law which law does not provide for an appeal : see a. 2(o)(iii) of the Act of 1950. The U. P. Act does not provide for any appeal expressly but cl. 31 of the Statutory Order makes a decision of the Tribunal final subject to 68 the provisions of the Act of 1950. It would therefore appear that an appeal would lie under the Act of 1950 to the Appellate Tribunal constituted under it from a decision of a Tribunal set up under the Statutory Order. Now under a. 10 of the Act of 1950, an appeal is competent if preferred within thirty days from the date of the publication of the award where such publication is provided for by the law under which the award is made, or from the date of the making of the award where there is no provision for such publication. Now the U.P. Act or the Statutory Order does not provide for any publication of an award. Therefore an appeal from the Tribunal set up under the Statutory Order has to be filed within thirty days from the making of the award. Hence again it is essential that the date of the making of the award shall be known to the parties to enable them to avail themselves of the right of appeal. This cannot be known unless the judgment is pronounced in open court for the date of award is the date of its pronouncement. Hence again pronouncement of the judgment in open court is essential. If it were not so, the provisions for appeal might be rendered ineffective. For all these reasons it seems to us that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and judgments not so pronounced would therefore be a nullity. In the view that we have taken it is unnecessary to deal separately with Standing Order No. 36. The provisions of that Standing Order and cl. 9(7) of the Statutory Order are substantially the same. They should therefore be interpreted in the same way. In any case since we have held the el. 9(7) of the Statutory Order to be imperative. it would not matter whatever view is taken of the Standing Order for the latter cannot affect the former. 69 Mr. Aggarwala then argued that cl. 9(7) of the Statutory Order and Standing Order No. 36 were ultra vires as being in conflict with the Act under which they had been framed. His contention was this : Under section 6 of the Act all that the Tribunal has to do is to submit its award to the Government after the conclusion of the enquiry before it. The section does not require the Tribunal to pronounce its decision in open court. The provisions in the Statutory Order and the Standing Order both of which were made under powers contained in the Act, were therefore in conflict with section 6 and of no effect. Hence he contended that the question whether the provisions of cl. 9(7) of the Statutory Order or of the Standing Order No. 36 were imperative did not really arise. It seems to us that this contention of Mr. Aggarwala is without any foundation. Section 6 when it requires that the Tribunal shall submit its award to the Government necessarily contemplates the making of the award. Neither section 6 nor any other provision in the Act provides how the award is to be made. Under section 3(g) however the Government has power by general or special. order to provide for incidental or supplementary matters necessary for the decision of an industrial dispute referred for adjudication under any order made tinder section 3. 'rho provision as to the pronouncement of the decision in open court in (19(7) of the Statutory Order clearly is within the power,; contemplated in section 3(g). Section 6 does not prohibit the making of such a provision. Its main purpose is to direct that the Tribunal shall submit the award to the Government so that it may be enforced. It has nothing to do with the manner in which the 'Tribunal is to make 70 its award. A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with section 6. The result is that these appeals fail and are dismissed with costs. Appeals dismissed.

The Government of Uttar Pradesh under section 3 of the U.P. , and the Statutory orders framed thereunder referred certain. disputes between the respondent Ice Factories and the respective workmen to an Industrial Tribunal. The Tribunal heard the matters but failed to pronounce its award in open court, as required under the clause 9 (7) of the Statutory Orders. Instead the Registrar of the Tribunal informed the Ice Factories that the award of the Tribunal had been submitted to the Government. The award was published in the U.P. Gazette and the Regional Conciliation officer called upon the Ice Factories to implement the award immediately. The Ice Factories moved the High Court at Allahabad alleging that the award was a nullity as it had not been pronounced in open court as required under the clause 9 (7) of the Statutory Orders and asking for writs to quash it. High Court issued the writs quashing the Notification publishing the award. The questions are whether the provisions of sub cl. (7) of cl. 9 of the Statutory Orders are imperative or merely directory and whether that sub clause is ultra vires as being in conflict with the Act under which it had been framed. Held, that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and a judgment not so pronounced would therefore be a nullity. The provision in sub cl.(7) of cl. 9 of the Statutory Order is imperative and not directory. Held, further, that the provisions as to the pronouncement of the decision in open court contained in cl. 9 (7) of the Statutory Order was clearly within the powers contemplated in section 3 (g) of the Act and section 6 of the Act does not prohibit the making of such provisions. A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with section 6 of the Act. Montreal Street Railway Co. vs Normandin, ; , referred to.

Appeal No. 873 of 1975. (From the Judgment and Order dated 11 11 1974 of the Allahabad. High Court in Civil Misc. Writ Petition No. 6976/74) AND Civil Appeal No. 1748 of 1975. (Appeal by Special Leave from the Judgment and Order dated ' 8 11 1974 of the Allahabad High Court in Civil Misc. Writ Petition No. 6932/74). AND Civil Appeal No. 1425 of 1974. (From the Judgment and Order dated 1 9 1972 of the Allahabad. High Court in Special Appeal No. 8/66). A.N. Parekh, for the appellants in CA 1748/75. Yogeshwar Prasad, for the appellants in CA 873/75. D.N. Misra for the appellant in CA 1425/74. L.N. Sinha, Solicitor General, S.N. Prasad (In CA 873/75) and Girish Chandra, for the respondents iii all the appeals. The Judgment of the Court was delivered by RAY, C.J. Civil Appeals Nos. 873 and 1425 are by cer tificate under Article 133(1) of the Constitution of India and Civil Appeal No. 1748 is by special leave. 605 (Ray, C.J.) These appeals turn on the question whether the Commis sion described as the Forward Market Commission under the Forward Contract (Regulation) Act, 1952, can impose condi tions under section 14 A and Section 14 B on the commodities in respect of which business can be carried on by persons who apply for registration. This Court in Union of India & Anr. vs M/s. Rajdhani Grains and Jaggery Exchange Ltd. & Ors. (1975 Supp. S.C.R.1) dealt with this specific question and came to the conclusion that the specification of the commodities in respect of which the business can be carried on is a condition con cerned with the regulation and control of the business relating to forward contracts. It is idle to suggest that the Commission in granting certificate of registration to carry on business will not be competent to specify the commodities in which the persons asking for registration will deal. Another contention was raised before us that the provi sions contained in Section 4 of the Forward Contract (Regu lation) Act 1952 do not confer power on the Commission to impose conditions. This contention is also repelled by the decision of this Court to which reference has already been made. It has been held in that case that the Commission alone is vested with power to impose conditions in regard to commodities in respect of which forward contracts can be entered into by a particular association. Sections 15 to 18 of the Act do not clash with the power of the Commission to impose conditions in respect of commodities in which busi ness of forward contract can be carried on. Another contention was advanced before us that with regard to the recognised associations the Commission had no power to impose conditions with regard to commodities in which they deal. This contention is also answered by the decision of this Court (supra). Further the provisions contained in Chapter III A specifically deal with registra tion of all associations concerned with regulation and control of forward contracts and the power of the Commis sion to grant or refuse such certificate of registration. All contentions advanced by the appellants are already answered ' by the decision of this Court (supra) and the observations made herein. The appeals are therefore dis missed. There will be no order as to costs. P.H.P. Appeals dismissed.

Consequent to reorganisation of States, the Maharash tra Government published seniority lists from time to time, erroneously according to the respondent a lower place of seniority with the result that juniors got promoted and his promotion was unduly delayed. The respondent filed a writ petition asking for due recognition of his seniority, and later amended his petition, claiming arrears of pay and allowances retrospectively from the date on which he ought to have been promoted according to the final gradation list wherein he was placed correctly and which was approved by the Central Government. The writ petition was allowed by the High Court. Before this Court the respondent contended that under rule 21 of the Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957, he was entitled to draw his pay and allowances from the date of his promo tion including the deemed date of promotion. Allowing the appeal by Special Leave, the Court, HELD: (1) The Maharashtra Government circular No. SRV 1064 dt. 25.2.1965 does not have the effect of altering the respondent 's conditions of service to his prejudice since the said circular issued by the State Government does not fall within the mischief of proviso to section 115(7) of the States Reorganisation Act. [592 A] (2) The circular deals with cases where Government servants who were superseded for promotion to the higher post are later promoted on orders of higher authorities who considered the supersession unjustified and who having power to set aside orders of supersession have set aside such orders. [590 D] (3) The circular dt. 25.2.1965 is not intended to govern questions of seniority and supersession arising as a result of Reorganisation of States. That circular by its language is designed to meet cases in which a Government servant apart from the provisions of States Reorganisation Act and apart from the problems arising out of reorganisa tion of States was denied his rightful seniority but is later accorded a due and appropriate place in the seniority list. [590 F G] (4) The circular issued by the Government of Maharashtra on February 25, 1965 does not take away from the respondent the right, if any, which was available to him under rule 21. Rule 21 is not in the nature of an entitlement. On the other hand, it restricts the right of the allocated Government servant to receive pay and allowances "only with effect from the date" from which he became available for service or would have been so available except for the causes mentioned in rule 2(d). [592 B D] 588 (5) The respondent 's case must fall within the Bombay Government Circular No. SR INT 1059 VI dt. 10.3.1960 in which case he would not be entitled to the arrears for salary for the period prior to the date of his actual ' promotion. [591 G]

Civil Appeal No.4094 of 1984. From the Judgment and order dated 9.7.1984 of the Punjab & Haryana High Court in Civil Writ Petition No.5371 of 1981. P.P. Rao, Sr. and Janendra lal for the appellants. S.C. Gupta, Rajinder Sachhar, Sudarshan Goyal, Vivek Bhandari, S.C.Patel, mahabir Singh and C.M. Nayar (NP) for the Respondents. The Judgment of the Court was delivered by K.RAMASWAMY, J. The appellants and the proforma respondents, thirty in number are employed in the Punjab Service of Engineers, Class II. The Governor, in exercise of the power under proviso to article 309 of the Constitution of India framed the Punjab Service of Engineers, Class I, P.W.D. (Road and Buildings) Rules. 1960 for short the Rules constituting the Punjab Service of 204 Engineers, Class I, P.W.D. (Roads and Buildings Branch), After the formation of State of Haryana w.e.f. November 1, 1966, the rules are called Haryana Service of Engineers, Class I, P.W.D. (Roads and Buildings Branch). The services consist of Asstt. Executive Engineers, Executive Engineers, Superintending Engineers, and Chief Engineers, as may be specified by the Government of Haryana from time to time (Rule 3(1). The recruitment to the service is made by the government as per Rule 5(1); (a) by direct recruitment; (b) by transfer from any other services of the State Govt. or of the Union of India; and (c) by promotion from Haryana Engineers, Class II Service. The appellants for short 'the promotees" from Class II Service were promoted as Executive Engineers by relaxing five years length of service as Class II Engineers in officiating capacity on various dates between January 6, 1969 to May 29, 1971, There of them, namely, A.N. Sehgal, Raj Kumar and H.C. Sethi were confirmed as Executive Engineers w.e.f. July 11, 1973, December 11, 1974 and December 9, 1975 respectively. The rest are yet to be confirmed. Raje Ram Sheoran was recruited and appointed directly as Asstt. Executive Engineer w.e.f October 25, 1971. He too was given relaxation of the length of service of five years as Asstt. Executive Engineer and was promoted as Executive Engineer on October 8, 1973. He was confirmed w.e.f. December 22, 1976. All the appellants except M.R. Gupta were further promoted as Superintending Engineers on different dates between 1980 to 1984 and Mr. Sheoran was promoted as Superintending Engineer on March 4, 1987 A.N. Sehgal was further promoted as Chief Engineer, Equally Mr. Sheoran was also promoted as Chief Engineer but the validity was challenged and it is not necessary to refer any further as it is subject matter of proceedings in the High Court. R.R. Sheoran who was shown junior to the appellants, field Writ Petition No. 5371/81 and sought a writ of mandamus directing the second respondent, State Government to consider his case for promotion as Superintending Engineer from the date on which the respondents were promoted; to quash the gradation list; to assign the seniority over the appellants and the consequential reliefs. On reference, a Division Bench of the High Court by its judgement dated July 9, 1984 agreed with the ratio laid down in M.S. Mighlani vs State of haryana & Anr., [1983] 1 S.L.R. 421 and held that R.R. Sheoran was a member of the service from the date of his initial appointment as Asstt. Executive Engineer and the appellants and the proforma respondents are not members of the service and directed the learned Single Judge to dispose of th matter on merit. This appeal on leave arises against the judgement of the Division Bench. 205 The controversy centres round the inter se seniority of the appellants and R.R. Sheoran. For its determination the Rules need interpretation. The counsel for parties agreed that we should decide the principles on consideration of the Rules and leave the matter for the State Govt. to determine the inter se seniority by applying the law, so for as the controversy relating to relaxation of the length of service is concerned it is set at rest by this Court in J.C. Yadav vs State of Haryana, and K.K. Khosla V. State of Haryana, [1990] 2 SCC 199 by a bench of three Judges to which one of us (K.N. Singh, J.) was a member. The only question which survives is as to when `the appellants ' and `R.R. sheoran ' become members of the respective services. Shri P.P.Rao, learned Senior Counsel for the appellants contends that the appellants were promoted as Executive Engineers against regular vacancies, which were neither a stop gap arrangement nor fortuitous, and they continued in service without any break from the respective dates of their promotion, therefore, they are members of the service in a substantive capacity as Executive Engineers from the respective dates of promotion. He further argued that since Raje Ram Sheoran was recruited as Asstt. Executive Engineer w.e.f. August 30, 1971 along after the promotion of the appellants upto B.L. Goyal, the appellants are senior to R.R. Sheoran as Executive Engineers. Proviso to Rule 5(2) entitles them to remain in a substantive capacity as Executive Engineers since requisite number of qualified Asstt. Executive Engineers were not available for promotion. In view of their continous officiation as Executive Engineers in terms of Rule 2(12)(a) of the rules, they must be deemed to be the members of the service from the dates of promotion and, therefore, they are seniors to R.R.Sheoran . M/s. Sachhar, learned counsel for the State and Gupta for R.R. Sheoran on the other hand contended that unless the appellants were appointed substantively to the cadre posts they could not be members of the service. R.R. Sheoran became member of the service from the date of his initial appointment as Asstt. Executive Engineer, therefore, he is senior to the appellants and proforma respondents and the High Court rightly interpreted rule 5(2). Since the High Court did not enter into the merits of the respective claims of the appellants and Sheoran, we express no opinion on merits except, as agreed by the parties, we declare the law on the interpretation of the rules and leave it to the State Govt. to decide the inter se seniority on merits. It is necessary to have a look into the Rules regulating the 206 service. Rule 3(1) postulates that the service shall comprise of Assistant Executive Engineers, Executive Engineers, Superintending Engineers and Chief Engineers. Rule 3(2) read with appendix `A ' enjoins the State of Haryana to determine the cadre strength of service each year. Appendix `A ' lays down procedure to determine the cadre strength of service. The senior posts include Executive Engineers and above while junior scale posts include Asst. Executive Engineers . Ex cadre posts also are contemplated in the respective senior posts and junior scale posts. Rule 5(1)(a) posits recruitment to the service: (a) by direct recruitment; (b) by transfer and (c) by promotion from Class II service. Sub rule (4) of Rule 5 says that all direct appointments to the service shall be to the post of Asstt. Executive Engineer. Proviso therein gives power to the government to appoint by direct recruitment as Executive Engineers, in exceptional circumstances, for reasons to be recorded in writing. Rules 6 and 7 prescribe qualifications and method of appointment by direct recruitment . Subrule (3) of Rule 7 states that appointment to the service shall be made according to the number of vacancies to be filled by direct recruitment strictly in the order of merit as indicated by the Public Service Commission. As per Rule 11(1) and direct recruit shall remain on probation for a period of two years or extended period upto maximum of three years. On satisfactory completion of probation, the government may confirm under clause (a) of sub rule (3) of Rule 11 or to discharge him from service otherwise. The post of Asstt. Executive Engineer is a junior scale post. Under rule 12(3), they year of allotment of an Asstt. Executive Engineer shall be the calendar year in which the order of appointment is issued by the government. Rule 2(1) defines appointment to the service which includes an appointment made according to the terms and provisions of the rules to an officiating vacancy or to an ex cadre post provided that an officer so appointed shall not be deemed to have become a member of the service as defined in Clause (12) of Rule 2. The Asstt. Executive Engineer means a member of the service in the junior scale of pay, (Rule 2(2)). Cadre post means permanent post in the service as per Rule 2(3). `Class II Service ' means the Punjab Service of Engineers, Class II, in the Buildings and Roads Branch and includes, for purposes of promotion to and fixation of seniority in the Class I Service, Temporary Asstt. engineers when a suitable Class II Officer is not available vide Rule 2(5). Direct appointment means an appointment by open competition but does not include (a) an appointment made by promotion; (b) an appointment by transfer of an officer from the service of the State Government or of the Union, (Rule 2(7). Ex cadre 207 post means a temporary post of the same rank as a cadre post vide Rule 2(10). A member of the service means an officer appointed sub stantively to a cadre post and includes (a) in the case of a direct appointment an officer on probation, or such an officer who, having successfully completed his probation, awaits appointment to a cadre post vide Rule 2(12)(a). A reading of the rules clearly indicates that an Asstt. Executive Engineer appointment by open competition to a substantive vacancy in a cadre post and put on probation is a member of the service. Equally such Asstt. Executive Engineer recruited by open competition and appointment to an ex cadre post and put on probation and who having successfully completed his probation and awaits appointment to a cadre post would also become a member of the service. The contention of Shri P.P.Rao is that an officer appointed substantively to a cadre post is a direct recruit and the inclusive definition encompasses within its ambit the promotee and the phase ``such an officer who having successfully completed his probation and awaits appointment to the cadre post ' ' is only referable to a promotee. So promotee is also a member of the service from the date of initial promotion. We may make it clear at this juncture that in normal service jurisprudence a direct recruit would always be recruited and appointed to a substantive vacancy and from the date he starts discharging the duty attached to the post he is a member of the service subject to his successfully completing the probation and declaration thereof at a later date and his appointment relates back to the date of initial appointment, subject to his being discharge from service on failure to complete the probation within or extended period or termination of the service according to rules. Equally it is settle law that a promotee would have initial officiating promotion to a temporary vacancy or substantive vacancy and on successful completion and declaration of the probation, unless reverted to lower posts, he awaits appointment to a substantive vacancy. Only on appointment to a substantive vacancy he become a member of the service. But confirmation and appointment to a substantive vacancy always an inglorious uncertainty and would take unduly long time. Therefore, the confirmation or appointment to a substantive capacity would not normally be a condition precedent to reckon the continuous length of service for the purpose of seniority. On the facts of the case and the settled legal position, at first blush the argument of Shri P.P.Rao carried weight that the appellants would get their seniority from the respective dates of the initial promotion as Executive Engineers. But we find that in the instant case the rules have made departure from the normal service jurisprudence as would 208 appear from the scheme under the rules. Para 11(b) of appendix `A ' read with Rule 3(2), while determining the cadre strength of the service, adumbrates creation and appointment of Asstt. Executive Engineers (direct recruit) to an ex cadre junior scale post in each year. Therefore in a given situation, a direct recruit appointed to an ex cadre post, cannot be kept in lurch until he is appointed to a cadre post so as to become a member of the service. Obviously to avoid such a hiatus, Rule 2(12)(a) was introduced. The main part o Rule 2(12)(a) declares that an appointee substantively to a cadre post i.e., permanent post is a member of the service. The inclusive definition brings an officer `by direct appointment on probation ' who having successfully completed probation and awaits appointment to a cadre post is also a member of the service. Take for instance if direct recruitment is made to fill in five posts of Asstt. Executive Engineers of which four are cadre posts and one ex cadre post and four persons are appointed to cadre posts in the order of merit and the last one to the ex cadre post. The first four officers appointed on probation to the substantive vacancies and they are covered by the main part of Rule 2(12)(a). The fifth one intended to cover the field of operation of the inclusive definition which says that `and also includes an officer directly appointed on probation ' `and such an officer who having successfully completed his probation, awaits appointment to a cadre post '. The words `and such an officer ' `directly appointed ' would obviously referable to an Asstt. Executive Engineer directly appointed to an ex cadre post; who may be placed on probation and awaits appointment to a cadre post. By operation of the definition clause he also becomes the member of the service from the date of initial appointment. This view is further fortified by the definition the `appointment to the service ' in Rule 2(1) which says that appointment to the service includes an appointment made according to the terms and provisions of these rules to an officiating vacancy or to an ex cadre post. Rule 2(7) says that direct appointment means appointment by open competition but excludes `promotee ' or `transferee '. So a promotee promoted to an officiating vacancy or on ex cadre post does not become member of the service unless he is appointed substantively to a cadre post. We, therefore, hold that a direct recruit appointed to an ex cadre post alone is a member of the service even while on probation and Rule 2(12)(a) applies to them and it does not apply to promotee from Class II service. An Asstt. Executive Engineer, on putting five years of service under rule 9(3)(a) and passing the department examination as 209 required under rule (15), (unless the qualifications are relaxed in exercise of the power under rule (22) of the rules) becomes eligible for promotion as Executive Engineer. The State Govt. had relaxed the required length of five years service of the promotees as well as direct recruits. R.R.Sheoran therefor became eligible to be considered for promotion. As per the procedure prescribed in this regard under rule 9(2), he was found fit and suitable and was promoted as an Executive Engineer w.e.f. October 8, 1973. Though M/s. Sachhar and Gupta contended that the direct recruit need not undergo the required probation ad Executive Engineer, we find no force in the contention. The normal channel of appointment to the post of Executive Engineer, a senior post, is by way of promotion to which a direct recruit Asstt. Executive Engineer is entitled to be considered. On promotion he shall be on probation for a period of one year as per Rule 11(1)(a), but the period spent on officiation as Executive Engineer shall be taken into account for purposes of completing the period of probation and on its successful completion, he shall remain in service As Executive Engineer. On a conjoint reading of Rule 12(3) and 12(5) it is clear that the year of allotment of the Asstt. Executive engineer in the post of Executive Engineer, shall be the calendar year in which th order of appointment as Asstt. Executive Engineer had been made. Thus his seniority as Executive engineer, by fiction of law, would relate back to his date of initial appointment as Asstt. Executive Engineer and in Juxta position to Class II officers ' seniority as Executive Engineer is unalterable. The date of the seniority of Mr. R.R.Sheoran 1971. The question then is what is the date from which the seniority of a promotee as Executive Engineer shall be reckoned? The contention of Shri P.P. Rao is that Rule 5(2) reserve 50% of the posts to the direct recruits but the proviso thereto makes a built in relaxation, namely, so long as the required number of direct recruits are not available to occupy those posts, the promotees are entitled to hold those posts also. Admittedly except R.R. Sheoran no other direct recruit was available. The promotees are eligible to occupy all the cadre posts even in excess of their quota. The seniority has to be determined from the respective dates of initial officiating promotion. Shri Rao ' further contention that the phrase `such an officer appointed to an officiating post ' has reference only to promotees cannot be accepted for the reasons given earlier. The officer appointed directly is referable only to Asstt. Executive Engineer and a promotee by operation of Rules 2(7) stands excluded until he is appointed substantively to a cadre post. 210 When an officer is appointed substantively to a cadre post, is the next question. It is settled law that all the rules should be harmoniously construed giving life, force and effect to every part of the rule of clause or word so that no part would be rendered redundant, ineffectual, nugatory or otiose. Rule 5(1) regulates recruitment to the service from three sources, namely, direct recruitment; by transfer and by promotion from Class II service. Sub rule (2) thereof prescribes the ratio between the promotees and others. It says that, "recruitment to the service shall be so regulated that the number of posts so filled by promotion from Class II service shall not exceed 50%" of the number of posts in the service excluding the posts of Asstt. Executive Engineers; provided that till such time the adequate number of Asstt. Executive Engineers who ar eligible and considered fit for promotion are available, the actual percentage of officers promoted from Class II service `may be larger than 50%. A reading thereof clearly manifests the legislative animation, namely, that the promotees from Class II service shall not exceed 50% of the posts in the service. The word `shall ' indicates that it is mandatory that the remaining 50% shall be kept open only to the Asstt. Executive Engineers who were directly recruited but later were found eligible and fit for promotion as Executive Engineers. Therefore, unless the government resorts exceptionally with prior permission of Public Service Commission, vide Rule 10 to recruitment by transfer of an officer from other service of the State Govt. or of the Union, the remaining 50% of the posts as Executive Engineers, Superintending Engineers and Chief Engineers shall be occupied only by the direct recruit Asstt. Executive Engineers. It is settled law that prescription of quota for recruitment from different sources is constitutionally a valid rule. Rule 5(2) limits 50% posts to the promotees from Class II Service and no further, but the proviso to the Rule lays down that till adequate number of Asstt. Executive Engineers are available, the rigour of 50% quota may be relaxed and Class II officers may be promoted in excess of their quota. What is the intendment of the class `the actual percentage of officers promoted from Class II service may be larger than 50% is the question. The mandate of Rule 5(2) is that the officers promoted from Class II service shall in no case exceed 50% of the number of posts in the service. Unless it is relaxed, the appointment and occupation of the posts by promotee in excess thereof is irregular or illegal and the government have no power to promote persons from Class II service to fill in such posts of Executive Engineers Superintending Engineers and Chief Engineers. It is common knowledge that direct recruitment as Asstt. Executive Engineers 211 or Executive Engineer; in exceptional circumstances is a tardy process and even after appointment they have to put in five years service. The balance 50% of the posts cannot be kept vacant. With a view to allow the wheels of the administration moving, the proviso carves out an exception and allows the promotees to occupy temporarily the posts in excess of their quota. In this view the contention of Shri Rao that the seniority as Executive Engineer is to be counted from the date of initial temporary promotion cannot be accepted as it would allow the promotees to occupy 100% posts of Executive Engineers, Superintending Engineers and Chief Engineers leaving little room for Rule 5(2) (a) to operate in full force. The exception would eat away the flesh and blood of Rule 5(2)(a) freezing the channel of promotion to the direct recruits to senior posts for a very long time to come. In the absence of rule of rotation there may be no chance to a direct recruits to occupy the senior posts. That does not appear to be the intendment, scope and operation of the proviso. The intendment appears to be that so long as the direct recruit Asstt. Executive Engineer, eligible and considered fit for promotion is not available, the promotee from Class II service in excess of the quota is eligible to occupy on officiating capacity the senior posts, i.e., Executive Engineers and above. The moment direct recruits are available, they alone are entitled to occupy 50% of their quota and the promotees shall give place to the direct recruits. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a cause which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it he used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such 212 that it is its necessary effect. In V.B. Badami, etc. vs State of Mysore, [1976] 1SCR 815 dealing with the problem arising out of quota rule between promotees, this Court observed that: "In working out the quota rule, these principles are generally followed. First, where rules prescribe quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre. Second, confirmed persons are senior to those who are officiating. Third, as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service. Fourth, direct recruitment is possible only by competitive examination which is prescribed procedure under the rules. In promotional vacancies, the promotion is either by selection or on the principle of seniority cum merit, a promotion could be made in respect of a temporary post or for a specified period but a direct recruitment has generally to be made only in respect of clear permanent vacancy either existing or anticipated to arise at or about the period of probation is expected to be completed. Fifth, if promotions ar made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place the direct recruits will occupy vacancies within their quota. Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case". With a view to have efficient and dedicated services accountable to proper implementation of Govt. policies, it is open, and is constitutionally permissible for the State, to infuse into the services, both talented fresh blood imbued with constitutional commitments, enthusiasm, drive and initiative by direct recruitment, blended with matured wealth of experience from the subordinate services. It is permissible to constitute an integrated service of persons recruited from two or more sources, namely, direct recruitment, promotion from subordinate 213 service or transfer from other services, Promotee from subordinate generally would get few chances of promotion to higher echolans of services. Avenues and facilities for promotion to the higher services to the less privileged members of the subordinate service would inculcate in them dedication to excel their latent capabilities to man the cadre posts. Talent is not the privilege of few but equal avenues made available would explore common man 's capabilities overcoming environmental adversity and open up full opportunities to develop one 's capabilities to shoulder higher responsibilities without succumbing to despondence. Equally talented young men/women of great promise would enter into service by direct recruitment when chances of promotions are attractive. The aspiration to reach higher echolans of service would thus enthuse a member to dedicate honestly and diligently to exhibit competence, straightforwardness with missionary zeal exercising effective control and supervision in the implementation of the programmes. The chances of promotion would also enable a promotee to imbue involvement in the performance of the duties; obviate frustration and eliminate proclivity to corrupt practices, lest one would tend to become corrupt, sloven and mediocre and a dead wood. In other words, equal opportunity would harness the human resources to augment the efficiency of the service and under emphasis on either would upset the scales of equality germinating the seeds of degeneration. With a view to achieve this objective, the rule making authority envisaged to appoint direct recruits as well as by promotion from Class II Service, otherwise by transfer from other services. In interpreting the rules, effect must be given to allow everyone drawn from these sources to have their due share in the service and chances of involvement of effectively discharge the duties of the posts honestly and efficiently with dedication. Any wanton or deliberate deviation in the implementation of the rules should be curbed and snubbed and the rules must be strictly implemented to achieve the above purpose. If wanton deviations are allowed to be repeated, it would breed indiscipline among the service and amounts to undue favour to some and denial of equality for many for reasons known or unknown subverting the purpose of the rules. It is settled law that appointment to a post in accordance with the rules is condition precedent and no one can claim appointment to a post or promotion, as of right, but has a right to be considered in accordance with the rules. Appointment by promotion or direct recruitment, therefore, must be in accordance with the rules so as to 214 become a member of the service in a substantive capacity. Seniority is to be fixed in accordance with the principles laid down in the rules. Rule 8 prescribes procedure for appointment by promotion from Class II services. Rule 9(2) states that promotion would be made by selection on the basis of merit and suitability in all respect and no member of the service shall have any claim, to such promotion as a matter of right by mere seniority. The committee as constituted under Rule 8 shall prepare the list of officers considered fit for promotion in the order of merit and on approval by the public Service Commission, the State Govt. shall appoint the persons from the list in the order in which the names have been placed by the Commission, Appointment by promotion may be made under Rule 8(12) to an excadre post or to any post in the cadre in an officiating capacity from the list prepared as aforesaid. On promotion, as per Rule 11(1), officer shall be on probation for a period of one year, but if the officer had been officiating as an Executive Engineer the period of officiation would be counted towards probation. Rule 11(4) provides the on satisfactory completion of the probationary period, the Govt. confirms the officiating promotee and "appoint him in a substantive capacity on a cadre post provided the post is available to him". If no cadre post is available, the officer has to wait for an appointment to the cadre post. A promotee within quota under rule 5(2) gets his seniority from the initial date of his promotion and the year of allotment, as contemplated in Rule 12(6) shall be the next below "the junior most officer in the service whether officiating or confirmed as Executive Engineer before the former 's appointment ' counting the entire officiating period towards seniority, unless there is break in the service or from the date of later promotion. Such promotee, by necessary implication, would normally become senior to the direct recruit promoted later. Combined operation of sub rules (3) to (5) of Rule 12 makes the direct recruit a member of the service of Executive Engineer from the date of year of allotment as an Asstt. Executive Engineer. The result is that the promotee occupying the posts within 50% quota of the direct recruits, acquired no right to the post and should yield to direct recruit though promoted later to him, to the senior scale posts i.e., Executive Engineer, Superintending Engineer and Chief Engineer. The promotee has right to confirmation in the cadre post as per Rule 11(4) if a post is available to him within his quota or at a later date under rule 5(2) read with 11(4) and gets appointment under section 8(11). His seniority would be reckoned only from the date of the date of the availability of the post and the year of allotment, he shall be next below to his immediate 215 senior promotee of that year or the junior most of the previous year of allotment whether officiating or permanent occupying the post within 50% quota. The officiating period of the promotee between the dates of initial promotion and the date of the availability of the cadre post would thus be rendered fortuitous and stands excluded. A direct recruit on promotion within his quota, though later to the promotee is interposed in between the periods and interjects the promotee 's seniority; shaps the links in the chain of continuity and steals a march over the approved promotee probationer. Harmonious construction of rule 2(1), 2(3), 2(7), 2(10), 2(12),(a) 5(2)(a), 8,9(2), 11, 12(3), 12(5) to 12(7) would yield to the above result, lest the legislative animation would be defeated and the rules would be rendered otiose and surpluses. It would also adversely effect the morale and efficiency of the service. Mere officiating appointment by promotion to a cadre post outside the quota; continuous officiation therein and declaration of probation would not clothe the promotee with any right to claim seniority over the direct recruits. The necessary conclusion would, therefore, be that the direct recruit shall get his seniority with effect from the date of the year of the allotment as Asstt. Executive Engineer which is not alterable. Whereas the promotee would get his seniority w.e.f. the date of the availability of the posts within 50% quota of the promotees. The year of allotment is variable and the seniority shall be reckoned accordingly. Appointment to the cadre post substantively and confirmation thereof shall be made under rule 8(11) read with Rule 11(4) of the rules. A promotee Executive Engineer would only then become member of the service, `Appointed substantively ' within the meaning of Rule 2(12) (a) shall be construed accordingly. We, further hold that the seniority of the promotee from Class II service as Executive Engineer shall be determined with effect from the date of which the cadre post was available to him and the seniority shall be determined accordingly. In K.C.Joshi & Ors. etc. vs Union of India & Ors., [1990]2 Scale 951 a Bench of three Judges to which one of us (K. Ramaswamy, J.) was a member, considered similar question. In that case U.P. Forest Service Rules, 1952 provides, two sources of recruitment to the post of Asstt. Conservators of Forest. The petitioners therein were Forest Range Officers in U.P. Forest Subordinate Service. The respondents were direct recruits as Asstt. Conservators of Forest. The rules prescribed ratio between direct recruits and promotees. Due to delay in recruitment as Asstt. Conservators of Forest, the Forest Rangers were promoted in excess of their quota as Asstt. Conservators of Forest temporarily and continued in service without any break for 5 to 12 216 years. The promotees claimed seniority from the date of their initial promotion. Considering the scope of the rules and rights acquired by the petitioners therein and the direct recruits, the Court held that: "When promotion was outside the quota, the seniority would be reckoned from the date of the vacancy within the quota, rendering the pervious service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies of expediency. The result of punishing down the promotees appointed in excess of the quota may work hardship but it is unavoidable and any construction otherwise would be illegal, nullifying the force of statutory rules and would offend articles 14 & 16(1). Therefore, the rules must be carefully applied in such a manner as not to violate the rules or equality assured under article 14 of the Constitution. This Court interpreted that equity is an integral part of article 14. So every attempt would be made to minimise, as far as possible inequity. Disparity is inherent in the system of working out integration of the employees drawn from different sources, who have legitimate aspiration to reach higher echolans of service. A feeling of hardship to one, or heart burning to either would be avoided. At the same time equality is accorded to all the employees". Shri P.P. Rao urged that the cadre posts in Rule 2(12) must include not only the permanent posts but also temporary posts continued for more than three years and notional posts which may have existed for short spells during preceding three years taking into account the number of months and days for which each post had existed as per the formula prescribed in appendix `A ' read with Rule 3 of the rules. He further urged that the promotees appointed to such posts should be treated to be `members of the service ' interms of Rule 2(12)(a) and that their promotion should be retrospectively declared to have been promoted w.e.f. the dates on which the posts were created. We are unable to accept this contention. Rule 3 read with 217 appendix `A ' confers power and also imposes duty on the State Govt. to determine the cadre posts from time to time and in the first five years on the first day of each year. This exercise should be done in the light of the criteria prescribed in appendix `A '. The present controversy does not concern itself with the method and manner of determination of th cadre posts, though determination of seniority hinge upon it. Therefore, for determining seniority, the State Govt. should undertake the exercise interms of Rule 3 read with appendix `A '. The rules postulate that substantive appointment to a cadre post is a condition precedent to become a member of the service. A class II officer shall be promoted to a temporary post or in an officiating capacity to a cadre post if vacancy exist ' when he occupies a vacancy in a substantive post and continued uninterruptedly it would be open to the appointing authority to put the promotee Executive Engineer on probation. Though confirmation is an inglorious uncertainty depending neither on the efficiency of the officer nor generally on the availability of the post, the mandate of Quota of 50% in Rule 5(2) should be adhered to. Declaration of probation and confirmation to a cadre post, if available, under Rule 11(4) shall be made. Seniority of such approved or confirmed promotee should be counted from the date of either initial officiating promotion of continous later officiation from the date of availability of the cadre post, however, should be next below his senior promotee or the junior most of the preceding year of allotment within the quota. If no post is available till such date of the availability, the entire period of continuous officiation would be rendered fortuitous. The contention, therefore, that the promotion would relate back retrospectively to the date of creation of the post and the appointment to the vacancy shall be with reference to the date of the creation of the post, would result anomalies and render Rule 5(2) to the direct recruits surplusage. Shri P.P. Rao 's further contention that the de facto promotion and the retrospective declaration of cadre post would make the Class II officers as de jure members of the service from the very date of temporary appointment w.e.f. the date of initial appointment also lacks force for the same reasons. The principles laid down in R.P. Khanna vs S.A.F. Abbas & Ors., [1973]3 SCR. 548 at 557 C J . is not applicable to the facts of this case. In that case the certain posts in State services were required to be declared as senior cadre posts in the All India Service, but before such declaration could be made some of the promotee officers officiated in the senior cadre post. In that context the Court observed that 1the promotee could not get the benefit of officiation unless the post was declared a equivalent to a senior cadre 218 post before the promotee was appointed; to officiate him would defeat the policy of the government ' and held that they are entitled to the benefit of the retrospective declaration `in the absence of things practical as well as reasonable. The scheme of the rules made a definite departure to the normal service jurisprudence and the operation of the scheme in the rules must be given full effect. In the instant case under the Rules `determination of seniority would be ' made only after the promotee becomes a member of the service. Therefore, the year of allotment must be determined having regard to (i) availability of the cadre post within quota; (ii) satisfactory completion of the probation; and (iii) appointment to the post in the substantive capacity in term of Rules 12(6) and (7) read with 11(4) and Rule 8(12). Any other construction would be contrary to the avowed object of the rules as a whole. The inclusive definition of Rule 2(12) (a) must be interpreted liberally and not restrictively. Undoubtedly the inclusive definition always receives liberal interpretation to bring within its ambit cognate but unforeseen similes. But the rules envisage only three sources of recruitment, namely, direct recruitment, appointment by promotion and in exceptional cases with prior approval of the Public Service Commission as per Rule 10, the appointment by transfer from other services of the State or Central Govt. Until the ex cadre posts are declared to be cadre posts they remain ex cadre posts. The promotion to the ex cadre post is temporary or to a cadre post could be only on officiating basis. It may be open to the government to abolish at any time the ex cadre posts. Determination of cadre strength is a condition precedent for Rule 5(2)(a) to operate. Till a promotee is confirmed in a substantive capacity as Executive Engineer, he continues to retain line in Class II service. The interpretation that the promotion to the temporary post or ex cadre post within the meaning of Rule 2(10) should also be deemed to be an appointment to a substantive post would do violence to the language of the relevant rules and the scheme. It is true that this Court in Baleshwar Dass & Ors. vs State of U.P. & Ors. , [1981] 1 SCR 449 at 463 held that there cannot be probation for a government servant who is not to be absorbed substantively in the service on completion. The ratio therein does not apply to the facts of this case for the reason that the Govt. itself did not understand the scope and operation of the rules properly as is amply demonstrated from their mutually irreconcilable inconsistent stand taken in the counter affidavits filed by the State Govt. in the High Court and in this Court. That apart, it would appear that in the instant case after the formation of the State of Haryana, adequate number of officers were 219 not available to hold the posts. The length of service and passing of prescribed tests were relaxed enmass. In view of the above peculiar and special facts merely because the promotee Class II Officers were put on probation and the same was declared it does not clothe them with any right to deemed appointment to substantive vacancies in excess of their quota with retrospective effect from the date of initial promotion to the cadre posts. The year of allotment of a direct recruit is always the year in which he is appointed to the junior scale post of Asstt. Executive Engineer but the year of allotment to the promotee is variable depending on the availability of the cadre post within quota of 50% and subject to taking the seniority next below the junior most promotee of the preceding year of allotment or immediate senior of the same year. If the contention of Shri P.P. Rao is accepted is accepted it would render Rule 8(11) mutually inconsistent with Rule 5(2w) read with Rules 2(7) and 2(12) and Rule 2(1). No countenance could be given to the contention that the officers put on probation in terms of Rule 11(1) irrespective whether they occupied declared posts, but also posts which ought to have been declared as such from time to time and have continuously remained in service entitle them to become member of service and that, as and when the posts occupied by them are declared as cadre posts with retrospective effect, they are entitled to be treated as members of the service w.e.f. the due dates. In other words it amounts to put a premium on the inaction on the part of the State Govt. to declare the cadre posts in terms of Rule 3(2) read with appendix `A ' defeating the scheme of the Rules. The contention that our interpretation renders Rule 2(12) arbitrary and discriminatory violating articles 14 and 16 is also not tenable. A direct recruit, by operation of Rule 2(12) (a) read with Rules 2(1) and 2(10), though appointed to an ex cadre post, by fiction of law, becomes a member of the service from the date of his initial appointment since being a fresh recruit. On his satisfactory completion of the prohibition and on availability of the cadre post as Asstt. Executive Engineer, he becomes a confirmed Asstt. Executive Engineer. While a promotee Executive Engineer continues to retain his line on the posts as Class II officers still he is appointed substantively to Class I service. There is reasonable classification and discernable distinction drawn between the direct recruit and the promotee. The nexus is to treat direct recruit Asstt. Executive Engineer appointed to the cadre posts as well as ex cadre post at par as members of the service and the deeming clause is to serve this purpose. Thus, there is nether invidious discrimination nor arbitrariness in Rule 2(12)(a) offending articles 12 & 16. The differentiation drawn between direct recruit and the 220 promotee bears rational relation to the object of Rule 2(12), the ratio of the Constitution Bench in B.S. Yadav vs State of Haryana, and The Direct Recruit, Class II Engineering Officers ' Association vs State of Maharashtra & Ors., ; at 745 cannot be imported bodily and applies to the ficts of the case in the light of the operation of the rules in question. The further contention that Rule 12 adumbrates that not only a member of the service, but even an officer officiating as an Executive Engineer before becoming a member of the service is entitled to an year of allotment because the rules nowhere say that only members of service are entitled to year of allotment is devoid of substance. As already discussed a promotee cannot be given year of allotment, before he becomes a member of the service and his seniority cannot be fixed arbitrarily with reference to the date of his initial promotion to an ex cadre post or continuous officiating in a cadre post without break, as the case may be. We accordingly, direct the Government of Haryana to determine the cadre posts, if not already done, regularly from time to time including the post created due to exigencies of service in terms of Rule 3(2) read with appendix `A ' and allot the posts ineach year of allotment as contemplated under rule 12 read with Rule 5(2)(a) and issue orders appointing substantively to the respective posts within the quota and determine the inter se seniority between the appellants promotees and R.R. Sheoran, direct recruits in the respective quota cadre posts of Executive Engineers etc. within four months from the date of receipt of this judgment. The inter se seniority of promotees and direct recruits shall be determined accordingly. All the inpugned promotions or those pending proceedings in the High Court or in this Court shall be subject to the above determination and the status quo would continue till the appointments according to the rules are made and seniority is determined in the light of the law declared inthis judgment. The appeals is disposed of accordingly. In the circumstances parties are directed to bear their respective costs.

For the academic year 1983 84, there was a vacancy for the post of Lecturer in Sanskrit, in the College managed by the appellant Trust. The said post was reserved for candidate from backward classes. The first Respondent, not belonging to any backward class, applied for the post, even before the appellant Trust issued an advertisement. An advertisement was issued later without mentioning the academic year for which the appointment was to be made, though admittedly it was for the academic year 1983 84. The advertisement specifically stated that the post was reserved for a backward class candidate and if no such candidate was available, a candidate from the non backward classes may be appointed for one year. Within a month, the advertisement was repeated and yet no application was received from any candidate from backward classes. Hence the appellant trust appointed the First Respondent, who had earlier applied, from 19.3.84 till 30.4.1984. Again, an advertisement was issued in 1984 for the academic year 1984 85. And there was no response from any candidate belonging to backward classes. The First Respondent was interviewed and appointed for one year, till 19.4.1985. For the academic year 1985 86, no advertisement was issued. The First Respondent was again appointment to the said post from July 10, 1985 to April 30, 1986. Thereafter her services were terminated after issue of notice. No appointment was made to the said post for the academic year 1986 87. However, on 1.5.1987, an advertisement was issued inviting applications for the said post from candidates belonging to all classes, 283 dereserving the post. Respondents 1 and 5 and another candidate, all belonging to non backward classes applied. The 5th Respondent was selected and appointed to the said post. Thereafter, in respect of non payment of salary for certain period and for setting aside her termination order, the First Respondent approached the College Tribunal. The Tribunal allowed her claim for salary for the relevant periods, but dismissed her claim for reinstatement, holding that her appointment was purely temporary and her claim that she should be deemed to have been confirmed because she had served for two academic years was not established in the circumstances of the case. Against the Tribunal 's decision, the First Respondent approached the High Court by way of a Writ Petition. The High Court allowed the Writ Petition holding that notwithstanding the break in her actual appointment, she was continuously in employment from March 19, 1984 to April 30, 1986, and hence entitled to the benefit of the resolutions of the State Government and the University directions which, according to the High Court, laid down that an employee who was appointed for two consecutive academic years must be deemed to have been on probation right from the time of the first appointment and, therefore, she should be confirmed in the post. The benefit of full back wages, seniority etc. was also ordered. Aggrieved by the Judgment of the High Court, the appellants preferred the present appeal, by special leave. Allowing the appeal, this Court, HELD: 1. The appellant Trust had violated the directions of the Government as well as of the University in the appointments in question as a result of which neither the appointment of the 1st respondent nor that of the 5th respondent can be said to have been validly made. Both the appointments were made without following the Government Resolutions and the University directions in the matter of reservation of seats for backward classes which are binding on the college. Unfortunately, these aspects of the matter which are evident from the record were lost sight of both by the Tribunal and the High Court. [287G H;288A] 2.1. Admittedly, the selection of the 5th respondent was made by a committee where neither the nominee of the Vice Chancellor nor the expert nominated by the University nor the nominee of the Director of 284 Education (Higher Education), i.e., the Director of Ayurveda, was present. The selection so made was, therefore, not valid. [289F] 2.2 There is nothing on record to show that when the appellant Trust forwarded its report on appointment of the 5th respondent, it apprised the University of the absence of the expert at the time of his selection. The University has not reserved the power to relax the rule and permit selection without the presence of the expert. There is nothing in the University 's letter to show why the University had condoned the absence of the expert. The approval given by the University being in ignorance of the true state of affairs and in breach of the rule, is legally ineffective and cannot validate the appointment. [289H,290A B] 3. Admittedly, the post was reserved for the academic year 1983 84. The Trust had not given three advertisements within six months for any of the academic years 1983 84, 1984 85 and 1985 86. On the other hand, for the academic year 1983 84, it issued only two advertisements. It is not known as to why even these two advertisements were not issued at the beginning of the said academic year. As regards the second academic year 1984 85, it issued only one advertisement, and no advertisement was issued for the academic year 1985 86. The initial appointment of the Ist respondent for the academic year 1983 84 and her continuation for the subsequent academic years, viz., 1984 85 and 1985 86 was thus in breach of the Government resolutions and the University direction and, therefore, illegal. Similarly, since the appointment of the 5th respondent was made without following the procedure prior to dereservation, viz., three advertisements repeated every year for all the three academic years for which the post was to be reserved, his appointment to the post, as if the post stood legally dereserved, was also illegal since the post could not have been dereserved to make it available for a non backward class candidate.[294B E] 4. Even assuming that her initial appointment and subsequent continuation of service was valid, the First Respondent would not be entitled to the benefit of the University direction of March 11, 1987 because her entitlement to the vacation salary does not extend her period of employment up to the end of the vacation. That is a perquisite which is conferred on every teacher who has served during the academic year. It has no connection with the continuation of the employment since even those teachers whose services are validly terminated before the beginning of the vacation period are given the benefit of the salary of the vacation period. [295E F] 285 5. The appellant Trust shall advertise the post three times sufficiently in advance and in any case within six months from the close of the present academic year, viz., 1990 1991 as a post reserved for the backward class candidate, and if no application is received from a suitable backward class candidate, the post will be deemed to have been dereserved. The Trust will then proceed to fill in the same by a candidate belonging to non backward classes. This fact may be made clear in all the three advertisements. The 5th respondent will be entitled to apply for the post notwithstanding the fact that he has become overaged. If he is selected on the basis of his other qualifications, the Selection Committee shall relax in his favour the condition with regard to the maximum age. If he is appointed to the post, his appointment will be a fresh one and his past service will not count for the probation period. The Trust shall constitute a proper Selection Committee according to the rules. [296D F] 6. To overcome the hardship to the students, the 5th respondent may be permitted to teach as a purely temporary teacher till the process is completed for the academic year 1991 92. [297C]

Civil Appeal No. 1755 of 1980. Appeal by Special Leave from the Judgment and order dated 8 8 1980 of the Allahabad High Court in Civil Misc. Writ Petition No. 4376/69. S.N. Kackar, R.B. Mehrotra and Pramod Swarup for the Appellants. O. P. Rana and Mrs. Shobha Dikshit for Respondent No. 1. Yogeshwar Prasad, Mrs. Rani Chhabra, P.K. Pillai and R.N. Trivedi for Respondent No. 2. The Judgment of the Court was delivered by KOSHAL, J. This appeal by special leave is directed against a judgement dated the 8th August 1980 of a Division Bench of the Allahabad High Court dismissing a petition instituted by the 18 appellants under article 226 of the Constitution of India in which the reliefs prayed for were (a) that the order dated the 19th July, 1969 (hereinafter referred to as the impugned order) passed by the Deputy Secretary (Judicial), Government of Uttar Pradesh, 1008 rejecting all the objections filed by the appellants to a scheme (hereinafter called the impugned scheme) published on the 21st January 1961 in the Government Gazette of Uttar Pradesh under section 68C of the (for brevity, the Act) be set aside as illegal. and (b) that the notification published in the said Gazette dated the 7th November, 1970 and approving the impugned scheme (for short, the 1970 notification) be quashed. The notification dated the 21st January 1961 declared that the State Government was of the opinion that "for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services on the routes mentioned at item No. 2 of the annexed schemes should be run and operated by the State transport undertaking to the complete exclusion of other persons" and the impugned scheme was being published on that account under section 68C of the Act read with rule 4(1) of the Uttar Pradesh State Transport Services (Development) Rules, 1958 (for short, the rules). The impugned scheme envisaged the plying of buses on the route Gorakhpur Khajni Gola via Dhuriapur and Malhanpur exclusively by the State transport undertaking (hereinafter described as the S.T.U.) and invited all persons whose interest was affected by it to file objections thereto within 30 days of its publication in the Official Gazette. The impugned scheme was later on modified by different notifications and three allied routes were brought within its purview. Supplementary objections to the scheme as amended were put forward by persons interested. Shri S.K. Bhargava, Deputy Secretary (Judicial) to the U.P. Government rejected all the objections and approved the scheme through the impugned order, in pursuance of which The 1970 notification was published in the Government Gazette. On behalf of the 18 appellants (out of whom appellants Nos. 1 to 17 are transport operators who were plying their buses on the routes covered by the impugned scheme while appellant No. 18 is the Motor operators Association, Gorakhpur) the following grounds were put forward before the High Court in support of the prayers made: (i) The impugned scheme was vitiated by mala fides inasmuch as it was the outcome of action taken by Shri Hanumant Singh Negi, Deputy Transport Commissioner, U.P., who had 1009 threatened Shri Bajrangi Lal, Pairokar for one of the petitioners, namely, Shri Kashi Prasad Gupta, that the disputed route would be nationalised in case the latter pursued in the Supreme Court the matter which had earlier been decided against him by the High Court. (ii) The impugned order did not deal at all with objections of a personal nature which had been filed by the appellants and which, inter alia, indicated that the scheme would operate to the great disadvantage of the appellants all of whom were plying buses on the disputed route and had invested huge sums of money for that purpose. (iii) The impugned order did not record specific findings on any of the objections of a "personal nature" and was liable to be quashed for that reason alone. (iv) It was incumbent on the author of the impugned order to compare the services rendered by the appellants with those to be rendered by the S.T.U. That not having been done, the impugned order and the 1970 notification were both vitiated. The High Court went at length into the question of mala fides and rejected the contention of the appellants in that behalf mainly on the ground that it was not Shri Hanumant Singh Negi who had initiated the nationalisation of the disputed route but that it was the State Government under whose decision the impugned scheme was formulated. In support of ground (ii) reliance on behalf of the appellants was placed before the High Court mainly on Gullapalli Nageswara Rao and Others vs Andhra Pradesh State Road Transport Corporation and Another, which was decided by a Bench of five Judges of this Court. The crucial question before the Court in that case was whether the authority deciding the objections under section 680 of the Act was bound to act judicially. Subba Rao, J. (as he then was), who answered the question in the affirmative on behalf of the majority consisting of himself, Das, C.J., and Bhagwati, ., dealt at length with the provisions of sections 68C and 68D of the act and while concluding that the matter partook the character of a dispute between two parties, observed: "The citizen may object to the scheme on public grounds or on personal grounds. He may oppose the scheme on the ground that it is not in the interest of the public or on the ground that the route which he is exploiting should be excluded from 1010 the scheme for various reasons. There is, therefore, a proposal and an opposition and the third party, the State Government is to decide that lis and prima facie it must do so judicially. The position is put beyond any doubt by the provisions in the Act and the Rules which expressly require that the State Government must decide the dispute according to the procedure prescribed by the Act and the Rules framed thereunder, viz., after considering the objections and after hearing both the parties. It therefore appears to us that this is an obvious case where the Act imposes a duty on the Stale Government to decide the act judicially in approving or modifying the scheme proposed by the transport undertaking. The scheme propounded may exclude persons from a route or routes and the affected party is given a remedy to apply to the Government and the Government is enjoined to decide the dispute between the contesting parties. The statute clearly, therefore, imposes a duty upon the Government to act judicially. Even if the grounds of attack against the scheme are confined only to the purposes mentioned in section 68C we cannot agree with this contention the position will not be different, for, even in that case there is a dispute between the State transport undertaking and the person excluded in respect of the scheme, though the objections are limited to the purposes of the scheme. In either view the said two provisions, sections 68C and 68D, comply with the three criteria of a judicial act laid down by this Court. " (emphasis supplied) Emphasis before The High Court was laid on the under lined portions of the above observations. On the other hand, attention of the Court was invited to Capital Multi Purpose Co operative Society Bhopal and Others vs The State of M.P. & Others. on behalf of the State for the proposition that the objections to the impugned scheme had to be related to the four purposes indicated in section 68C of the Act. After giving consideration to the matter the High Court held: "There can be no quarrel with the proposition that an objection of a personal nature can be filed but it should be for the purposes of showing that the four purposes indicated in section 68C cannot be achieved. In other words objections of the nature that the petitioners will suffer hardship and there will be financial loss to the petitioner or that the petitioners have 1011 invested large amount cannot per se be sufficient to nullify a scheme of the nature referred to above unless they have a material bearing on the purposes indicated in section 68C of the Act. When a scheme is framed for nationalisation of a route, whether wholly or partly, the necessary consequence will be that the persons who have invested their money in purchasing vehicles will be displaced and that there will be loss in their earnings. If this could have been the ground for rejecting or modifying a scheme, no scheme could be taken up. A bare perusal of section 68C indicates that the purpose of the scheme is to provide an efficient, adequate, economical and properly coordinated road transport service which is necessary in public interest, and such a scheme will be liable to be approved under the provisions of the Act. The objections of personal nature in the instant case in our opinion fail to establish that the four purposes which are sought to be achieved by the scheme will not be achieved and for that reason the scheme should either be rejected or modified. " Ground (iii) was repelled by the High Court with a remark that even if objections of a personal nature were covered by section 68C the impugned order was not liable to be quashed merely on the ground that its author did not record specific findings thereon. Support for this view was sought from a Full Bench decision of the same Court reported as Khuda Dad Khan vs State of U.P. and others The last ground of attack against the impugned order and the 1970 notification also did not find favour with the High Court as, according to it, in Capital Multi Purpose Co operative Society Bhopal and others vs The State of M.P. & others (supra), the Supreme Court had taken the view that it was not necessary for the concerned authority to compare the services rendered by the private operators with those to be expected from the S.T.U. It was in these premises that the High Court passed the judgment under appeal. Out of the grounds put forward before the High Court on behalf of the appellants, two, namely, those listed at serial Nos. (i) and (ii) above were not pressed before us by their learned counsel, Shri section N. Kacker, who, however, argued the point covered by ground (iv) with great force and also challenged the finding recorded by the High Court in relation to ground (iii). In order to determine 1012 the questions raised before us and canvassed by learned counsel for the parties it is necessary to undertake an analytical study of sections 68A to 68E contained in Chapter IVA which was added to the Act by Central Act 100 of 1956. Section 68A contains two definitions According to it "(a) 'road transport service ' means a service of motor vehicles carrying passengers or goods or both by road for hire or reward; "(b) 'State transport undertaking ' means any undertaking providing road transport service, where such undertaking is carried on by, (i) the Central Government or a State Government; (ii) any Road Transport Corporation established under section 3 of the ; (iii) any municipality or any corporation or company owned or controlled by the Central Government or one or more State Governments, or by the Central Government and one or more State Governments. " Section 68B gives over riding effect to the provisions of Chapter IVA. Contents of sections 68C and 68D are reproduced below: "68C. Where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State transport under taking may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct." "68D. (1) on the publication of any scheme in the Official Gazette and in not less than one newspaper in regional language circulating in the area or route which is proposed to be covered by such scheme 1013 (i) any person already providing transport facilities by any means along or near the area or route proposed to be covered by the scheme; (ii) any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government; and (iii) any local authority or police authority within whose jurisdiction any part of the area or route proposed to be covered by the scheme lies, may, within thirty days from the date of its publication in the official Gazette, file objections to it before the State Government. "(2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State transport undertaking to be heard in the matter, if they so desire, approve or modify the scheme. "(3) The scheme as approved or modified under sub section (2) shall then be published in the official Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route: "Provided that no such scheme which relates to any inter State route shall be deemed to be an approved scheme unless it has been published in the official Gazette with the previous approval of the Central Government. " Sub section (1) of section 68E gives to the S.T.U. power to cancel or modify at any time any scheme published under sub section (3) of section 68D and provides that "the procedure laid down in section 68C and section 68D shall, so far as it can be made applicable, be followed in every case where the scheme is proposed to be cancelled or modified as if the proposal were a separate scheme." Sub section (2) of section 68E confers on the Stale Government the power to modify a scheme published under sub section (3) of section 68D after giving the S.T.U. and any other person likely to be affected by the proposed modification an opportunity of being heard in respect thereof. 6. A bare reading of the sections noted above makes it clear that they provide for nationalisation of road transport services. However, such nationalisation, in view of the provisions of section 68C, 1014 is not nationalisation or nationalisation 's sake but nationalisation with a view to the achievement of certain specified objects. A break up of the section brings out the following essential features. (a) The S.T.U. is competent to prepare and publish a scheme under section 68C only after it has formed the opinion that it is necessary in the public interest that road transport services covered by the scheme should be run and operated by itself, whether to the exclusion, complete or partial, of other persons or otherwise. (b) The necessity for the road transport services to be run and operated by the S.T.U. must flow, in its opinion, from the purpose of providing an efficient, adequate, economical and properly coordinated road transport service. Unless a scheme conforms to these two conditions it will fall outside the ambit of section 68C. Section 68D gives the right to certain persons, associations and authorities to file objections to a scheme published under section 68C within the specified period of 30 days of its publication and also lays down the procedure for the hearing and disposal of such objections by the State Government. An important feature of sub section (2) of the section is that (every objector or his representatives and the representatives of the S.T.U. have to be given an opportunity of being heard in the matter and it is only thereafter that the State Government has to exercise its power to approve or modify the scheme, which power includes the power not to approve the scheme at all and to drop it in its entirety), as held in Malik Ram v State Of Rajasthan (981). The procedure provided in section 68D is thus designed to (a) enable parties affected by the scheme, to point out flaws therein, (b) enable the State Government to find out which flaws, if any, the scheme suffers from, and (c) enable the State Government either to remedy the flaws by a suitable modification of the scheme or to rescind the scheme altogether. This brings us to the main point of controversy in the case, that is, the nature of objections which parties affected by a scheme may prefer to it. Section 68D does not specify the type of objections 1015 envisaged by it but Then their purpose being to point out flaws in the scheme they must be confined to the matters covered by section 68C. In the opinion forming the basis of the scheme does not suffer from errors such as may render it obnoxious to the dictates of section 68C and on the other hand, conforms to the conditions laid down in that section, the scheme would be unobjectionable. Objections may thus be made to show : (a) that it is not necessary in the public interest for the concerned road transport services to be operated by the S.T.U.; (b) that it is not necessary in the public interest that such services be taken over by the S.T.U. to the complete exclusion (if such exclusion is envisaged by the scheme) of other persons and that their partial exclusion would suffice; (c) that it is not necessary in the public interest that such ser vices shall be taken over by the S.T.U. even to the partial exclusion of others; (d) that the scheme is not calculated to provide an efficient road transport service; (e) that the scheme would not provide an adequate road transport service; (f) that the road transport service envisaged by the scheme would not be economical, or (g) that the road transport service provided for by the scheme would suffer from lack of proper coordination. Objections falling outside the seven categories above set out would not be admissible inasmuch as they would not have anything to do with any of the conditions which a scheme must satisfy in order to be covered by section 68C. To this conclusion there is no challenge from either side, but then it has been vehemently contended on behalf of the appellants that a comparison of the road transport services operating on the route covered by a scheme with those envisaged by the scheme itself may be necessary in order to find out if the scheme conforms to the provisions of section 68C and this contention is controverted by learned counsel for the respondents on the strength of Capital Multi Purpose Co operative Society Bhopal and Others vs The State of M.P. & Others, wherein Wanchoo, J., speaking for a Bench of this Court which consisted of himself, Bachawat and Ramaswami, JJ., observed: 1016 "We are further of opinion that there is no question of consideration of comparative merits of the State Transport Undertaking and the private operators in the context of Chapter IV A. As we have said already Chapter IV A was enacted for nationalisation of road transport services in accordance with the amendment made in article 19(6) of the Constitution. The nationalised road transport under that Chapter can only be run by the State Transport Undertaking as defined in section 68 A(b) of the Act. In view of that fact, if nationalisation has to come as envisaged by the amendment of the Constitution, the only body which can run the nationalised service is the State Transport Undertaking, and in those circumstances we fail to see any necessity for comparison between a State Transport Undertaking on the one hand and individual operators on the other. "Apart from this general consideration, we are further of opinion that ordinarily no question of comparative merits based on past record between a State Transport Undertaking and individual operators can arise. Section 68 C provides the State Transport Undertaking has to run an efficient, adequate, economical and properly coordinated road transport service, and for doing that it does not take up just one route and put one transport vehicle on it. It takes up a large number of routes and puts a large number of transport vehicles on them in order to run an integrated service whether for passengers or for goods, or for both. In these circumstances it is difficult to see how one can compare such an undertaking with individual private operators who are running one transport vehicle or so on individual routes. Secondly, it would be unusual for the State Transport Undertaking to be running transport vehicles on individual routes before it produces a scheme for nationalisation of the type provided for in Chapter IV A, though it may be conceded that this may not be quite impossible, for some State transport undertaking might have entered into competition with private operators and might have obtained permits under Chapter V; (see for instance Parbani Transport Co operative Society Ltd. vs The Regional Transport Authority, ; Even so, when the State transport undertaking takes action under Chapter IV A of the Act there can in our opinion be no question of comparison between a State transport undertaking running an integrated service and individual operators running one transport vehicle or more on individual routes. We are therefore of opinion that 1017 the authority cannot be said to have gone wrong in not asking for past records of the Corporation in the present case for purposes of such comparison. It is true that section ' 68 C requires that the scheme should be in public interest. But unless the scheme is shown not to be efficient, adequate, economical and properly coordinated, it will in our opinion generally follow that it is in the public interest. We do not think therefore that the comparative merits of the Corporation as against individual operators require to be judged under Chapter IV A in the public interest." A careful study of these observations would show that they were meant to exclude from consideration a comparison between the S.T.U. and private operators for the purpose of finding out which of them should be preferred on the basis of their past performance and not to declare irrelevant a comparison between the service envisaged by the scheme and pre existing services for the purpose of determining whether the scheme as framed provides for the operation of a service which would be efficient, adequate, economical and properly coordinated. Normally, as pointed out by Wanchoo, J., a S.T.U. takes up a large number of routes and puts a large number of vehicles on them in order to run an integrated service while private operators cater to individual routes and may not, therefore, be in a position to provide what is described in section 68C as "a properly coordinated service". That does not mean, however, that. all schemes, howsoever framed, would in the very nature of things provide for services which conform to the quality insisted upon by section 68C. As stated above, objections calculated to show that a scheme does not provide a road transport service which can be considered efficient, adequate, economical or properly coordinated would certainly lie; and the adjectives "efficient", "adequate", "economical" and "properly coordinated" are not absolute but more or less comparative terms. A service consisting of only one round trip per day may be adequate if the traffic on the concerned route is lean. On the other hand, a hundred round trips may not be adequate for a route burdened with heavy traffic. If a private operator is running 10 buses either way and is sought to be replaced by the S.T.U. under a scheme which makes provision only for five round trips per day the proposed road transport service cannot be considered adequate if the number of round trips required to fully cope with the traffic is more than five. Efficiency of the service covered by a scheme may similarly have to be determined in comparison to that which pertains to the pre existing services. Economics and proper coordination of the service proposed in a scheme may again be 1018 matters for which a comparison with the pre existing services is called for. In order to find out, therefore, if the scheme fulfils the requirements of section 68C a comparison of the attributes of the two services, such as quality, capacity, financial implications and coordination would certainly fall within the scope of the inquiry to be conducted by the State Government, although a comparison, would not be permissible for the sole purpose of finding out whether the private operators should be given a preference over the S.T.U. If such a comparison as we have held to be permissible is ruled out, the result would be to shut out from the enquiry held by the State Government under section 68D most of the material relevant for determination of the validity of the scheme a result contemplated neither by section 68D nor by Wanchoo, J., in the observations above quoted, which, on the other hand, make it clear that the proposed scheme may certainly be shown (in whatever way it is possible) not to fulfil the criteria of efficiency, adequacy, economy and proper coordination. The comparison ruled out by him was not between the merits of the rival services but between the expectations from their operators in view of their respective past records including these relating to other areas and routes. The High Court thus erred in arriving at the conclusion that The Capital Multi Purpose case eschewed all comparison and its finding in that behalf, in so far as it runs counter to the opinion expressed by us above, is set aside. We may in passing refer to what are called objections of a "personal" nature. These may be of two types: (1) those challenging the scheme on the ground that it harms an existing operator and, (2) those which indicate the details of the services afforded by an existing operator for the purpose of showing that the service envisaged by the scheme would in comparison not be efficient, adequate, etc. Objections of the second type, as we have just above concluded, would be admissible for the reasons stated. Those of the first type, however, would be wholly irrelevant to the determination of the validity of the scheme in view of the postulates of section 68C and would, therefore, be inadmissible. This proposition may appear at first sight to run counter to those observations of Subba Rao, J., in Gullappalli 's case (supra) which we have extracted above but this is not really so. Those observations were made in the course of consideration by this Court of the sole question whether the State Government, in deciding objections under section 68D, acted judicially or purely in an administrative capacity. The answer to that question, according to Subba Rao, J., depended on whether the matter before the State Government amounted to a lis; and it 1019 was in that connection that he said that the citizen may object to the scheme on public grounds or on personal grounds and also that the Court did not agree with the contention that the grounds of objection against the scheme were confined only to those mentioned in section 68C. The Court was not called upon to decide as to whether the scheme of sections 68C and 68D embraced objections of a "personal" nature or not and it was only incidentally that reference thereto was made. We conclude that Gullapalli 's case (supra) is no authority for the proposition that "personal" objection not confined to the scope of the requirements of section 68C are admissible under section 68D. 9. Referring to ground (iii) pressed in the High Court on behalf of the appellants, Shri Kacker made a serious grouse of the fact that the impugned order did not so much as mentioned those objections made by the appellants which called for a comparing of the type held by us to be permissible and he contended that the impugned order was bad on that account. In reply learned counsel for the respondents argued that at the hearing before the State Government no such objections were pressed. Our attention has been drawn by Mr. Kacker to paragraphs 14, 20(a), 21, 26, 43, 49? 51, 61, 63, 64, 73 and 75 of the statement of objections forming annexure to the petition under Article 226 of the Constitution before the High Court. A perusal of those paragraphs makes it abundantly clear that quite a few of the objections were such as were related to the purposes mentioned in section 68C and called for a comparison of the proposed service with the existing one. That some of these objections were pressed before the State Government is apparent from the written arguments which were submitted to Shri section K. Bhargava who is the author of the impugned order and which were appended to the petition under Article 226 or the Constitution of India before the High Court in the form of Annexure J. The stand of the respondents to the contrary is thus not well founded. But then we further find that in the impugned order its author has devoted five paragraphs to the objections which called for comparison of both the types above discussed. In paragraphs 24 to 27 the impugned order rightly rejects the objections which were based on a comparison of the S.T.U. with the private operators in relation to their respective past performances, and in doing so relies correctly on The Capital Multi purpose case. It proceeds then (in paragraph 28) to take note of the further opinion expressed in the same case from which it follows that a scheme may nevertheless be shown not to be in public interest by demonstrating 1020 that it does not provide for a service which would be efficient, adequate, economical and properly coordinated; but then dismisses the matter with the remark that the appellants had not been able "to show anything substantial which may justify this inference that the proposed scheme in respect of the routes in question would not be efficient, adequate, economical and properly coordinated", a remark which is obviously meant to dispose of those objections to the scheme which called for a comparison of the service envisaged by it with that already available. The cryptic remark no doubt neither lists the objections disposed of by it nor discusses the relevant evidence but the reason for the absence of a discussion in this behalf appears to be that no such evidence had been produced before the State Government. And if that be so, much fault cannot he found with the brevity of the contents of paragraph 28. However, Mr. Kacker made another grouse in this connection, namely, that the State Government refused to summon witnesses and to enforce the production of documents at the request of the appellants and that in doing so it had acted illegally and by thus shutting out evidence had really denied to the appellants any real opportunity of being heard. We find that when the case was at the evidence stage before the State Government, the appellants submitted two applications requesting that witnesses, one of whom, namely, the Secretary, Legislative Assembly, U.P. was to bring the proceedings of that Assembly, relating to the speech of the Chief Minister delivered on the 13th July 1967 in relation to the budget of the Transport Department, be summoned through letters of request and examined. The applications were rejected by Shri S.K. Bhargava through an order dated the 20th March 1969, the relevant part of which runs thus: . "It is nat necessary to issue letters of request as prayed for. The objectors can only examine those witnesses whom they themselves brought. It is also not necessary to send for any record as prayed. No further reasons appear in the order for a rejection of the prayer made for issuing letters of request but it seems that while making the order Shri Bhargava had in mind the provisions of sub rules (2) and (4) of rule 7 of the Rules and of the absence from the Act and the Rules of any express provision conferring on the State Government the right to issue process for enforcing the attendance of witnesses and the production of documents. The said two sub rules may be reproduced: 1021 "(2) The said officer shall fix the date, time and place for the hearing of the objections and issue notices thereof to the objector, and the representatives of the State transport undertaking, calling upon them to appear before him in person, or through a duly authorised agent or counsel and to produce their oral and documentary evidence on the date fixed for hearing." "(4) Subject to the provisions of sub rule (7) the objector and the State transport undertaking shall produce their evidence and witnesses, necessary and relevant to the inquiry, on the first date fixed for the hearing. " The contention raised on behalf of the respondents is that the power the exercise of which the appellants sought by their applications had not been conferred by the Act or the Rules on the State Government and that, therefore, the order passed by Shri Bhargava was correct. We find substance in this contention. It is true that the State Government was acting in the discharge of its quasi judicial functions and it could devise its own procedure (in the absence of express provisions to the contrary) so that its functions could be effectively discharged. Further, when the statute gives the power to the State Government to afford to the objectors a reasonable opportunity of being heard and to take evidence, oral as well as documentary, in support of their objections the power to send letters of request to witnesses to appear and give evidence or to produce documents is inherent in the situation and needs no statutory sanction, although the power to enforce their attendance or compel them to produce documents is lacking on account of absence of conferment thereof by a statute. This view finds support from Nehru Mot Transport Co operative Society Limited vs The State of Rajasthan, in which also the argument raised was that there could be no effective hearing without a provision or coercive process compelling attendance of witnesses and production of documents. It was pointed out in that case that the Rajasthan Rules did not provide for compelling the attendance of witnesses and that it was enough if the authority took evidence of witnesses whom the objector produced before it. It was also remarked that the authority might 1022 help the objector to secure their attendance by issue of summonses, though in the absence of any provision in the law, the witnesses might or might not appear in answer thereto. But then the question arises whether an order of the State Government rejecting a prayer for issuance of summons or letters of request would be illegal. This question was answered in the negative by Wanchoo, J., in the Capital Multi purpose case (supra) with the following observations: "Further, reliance in this connection is placed on the observation of this Court in Nehru Motor Transport Co operative Society 's case (supra) that the authority might help the objectors by issuing summonses. This observation in our opinion does not mean, in the absence of any provision in the Act or the Rules, that the authority was bound to summon witnesses even though the persons summoned were not bound to obey the summonses as there was no provision in law for issue of such summonses. The use of the words 'by issue of summonses ' in the circumstances of that case was by oversight, for issue of summonses presumes that there is authority to issue them and the person to whom they are issued is bound to obey. But in the absence of such power all that the authority can do is to issue letters merely requesting persons to appear and it is open to those persons to appear or not. In this situation if an authority decides not to issue such letters it cannot be said that there was no effective hearing. " These observations have our concurrence and we do not find that any right of the appellants was infringed when their applications for summoning witnesses and production of documents were rejected. Here we may briefly advert to another aspect of the matter to which our attention was drawn on behalf of the respondents. Sub rule (5) of rule 5 of the Rules states "A person filing an objection and desiring to be heard shall also submit along with the memorandum of objections, a list of documents and witnesses with their names and addresses and a brief summary of the nature and type of evidence which each such witness is likely to give." No compliance with this rule was made by the appellants when the two applications just above considered were filed. The sub rule serves a salutary purpose and, that is, that the inquiring authority may shut out all evidence which is sought to be brought on the record 1023 but which is either irrelevant or otherwise inadmissible. The two applications, therefore, suffered from a serious flaw by reason of which alone they merited dismissal unless the summary insisted upon by sub rule (5) was supplied before they were disposed of. 10. In the result the appeal must fail in spite of the fact that we have accepted one main contention raised by Mr. Kacker, namely, that objections involving comparison of the pre existing services with those proposed in a scheme are relatable to the ingredients of section 68C and are, therefore, admissible under section 68D of the Act. Accordingly it is dismissed but with no order as to costs. S.R. Appeal dismissed.

The Central Secretariat Service (Amendment) Rules 1979 which inserted sub rule (2a) below sub rule (2) of Rule 12 of the Rules provided for the holding of a limited departmental competitive examination, including a statement of the conditions of eligibility and indicating how the selection would take place on such examination. The next higher category in the Central Secretariat Service above the Section officers ' Grade consists of Grade I posts. Recruitment to the Grade I posts are made under Rule 12 of the Central Secretariat Service Rules. For the purpose of such promotion a select list is prepared. Pursuant to an office Memorandum issued by the Department on 20th July, 1974, 15%, and 7%, of the promotion posts stand reserved for Scheduled Caste and Scheduled Tribes candidates respectively. The petitioners were permanent Section officers in the Central Secretariat Service and officiating as Under Secretaries in different Ministries. They alongwith several other officials were included in the field of selection for the purpose of drawing up the select list for the year 1977 for promotion to Grade I posts. Twenty seven vacancies reserved for members of the Scheduled Castes and Scheduled Tribes, remained unfilled because no candidate belonging to those categories was found suitable. For the purpose of filling those reserved vacancies, the Government of India decided to hold a limited departmental competitive examination confined to members of the Scheduled Castes and Scheduled Tribes. The petitioners argued that (i) the reservation of vacancies for members of the Scheduled Castes and Scheduled Tribes by the office Memorandum dated 20th July, 1974 was invalid (ii) the newly enacted sub rule (2a) of Rule 12, in the Central Secretariat Service Rules and the related regulations were invalid and the rule operated prospectively only and could not affect the 27 vacancies to be filled in the select list of 1977. The Respondents took a preliminary objection that it was not a contention raised in the writ petitions and should not be allowed to be raised for the first time by way of oral submission. Dismissing the petition. ^ HELD: 1. The entire scope of the petitions is limited to challenging the validity and application of the Central Secretariat Service (Amendment) Rules, 1979 and the consequent regulations for holding a limited departmental competitive examination. No relief has been sought for quashing the office Memorandum dated 20th July, 1974. No ground has been taken in the writ petitions assailing the validity of the office Memorandum. The Courts should 1185 ordinarily insist on the parties being confined to their specific written pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well known process of formally applying for amendment. It is not that justice should be available to only those who approach the court confined in a straight jacket; but there is a procedure known to the law, and long established by codified practice and good reason, for seeking amendment of the pleadings. [1189D F] If undue laxity and a too easy informality is permitted to enter the proceedings of a court, it will not be long before a contemptuous familiarity assails its institutional dignity and ushers in chaos and confusion undermining its effectiveness. [1189 F G] Oral submission raising new points for the first time tend to do grave injury to a contesting party by depriving it of the opportunity, to which the principles of natural justice held it entitled, of adequately preparing its response. [1189G H] Whether or not reserved vacancies should be dereserved is a matter falling primarily within the administrative discretion of the Government. There is no right in candidates seeking to fill vacancies belonging to the general category to insist on dereservation of reserved vacancies so long as it is possible in law to fill the reserved vacancies. If at all, a claim in that behalf can arise only if no valid arrangement can be made for filling the reserved vacancies and dereservation is called for by reason of the prohibition, in clause (v) of paragraph 2 of the office memorandum dated 20th July, 1974, against the carry forward of reservations from year to year in the event of an adequate number of Scheduled Caste and Scheduled Tribe candidates not being available in any particular year. Before reaching this extremity, the Government acts wholly within its power in adopting an alternative arrangement for filling the reserved vacancies. Dereservation as a process should be resorted to only when it is not reasonably possible, within the contemplation of law, to fill the reserved vacancies. The process of dereservation would otherwise be antagonistic to the principle embodied in Article 16(4) and Article 46 of the Constitution. [1190G F] 3. Once a decision has been taken to reserve vacancies for a backward class of citizens, the programming effected to that end should not be disturbed unless the avenues for fulfilling it have been explored and have failed. It is only reasonable that the Government should dereserve the vacancies in view of the prohibition against carrying them forward to the next year. [1190 G H, 1191B] 4. The question of holding the examination arises only, as sub rule (2a) of rule 12 declares that when the reserved vacancies cannot be filled because eligible officers from the Scheduled Castes and Scheduled Tribes are not available through the original process. Resort to the further process arises because of the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes because reserved vacancies must be filled if that is possible. It has not been shown that the general category vacancies have remained unfilled for want of suitable candidates. No need has arisen of being compelled to resort to a further process of selection in regard to such vacancies. There is no requirement in law that the select list pertaining to a particular year must be finalized within that year. [1191 E G, 1192 B] It is open to the Government to complete the process of selection and finalise it after the expiry of that year. It seems that when the Government found that suitable candidates belonging to the Scheduled Castes and Scheduled Tribes 1186 were not available for inclusion in the field of selection, it decided to consider the advisability of adopting some other mode of filling the reserved vacancies. The select list for 1977, which included already ninety one names of officers appointed to the general category vacancies, was held in abeyance for the purpose of filling the twenty seven reserved vacancies. After discussion with the Chairman of the Union Public Service Commission and consideration of the alternatives before it the Government decided on holding a limited departmental competitive examination. As long as the select list was not declared final, no officer could claim any right. [1192B E] 6. It is now well accepted, and has been affirmed by successive decisions of this Court, that relaxed eligibility criteria would be justified in the case of candidates of backward classes. The principle finds expression also in the original rule 12 of the Central Secretariat Service Rules. The record indicates that the lower eligibility standard was decided on after consultation with the Chairman of the Union Public Service Commission. [1192 GH, 1193A] General Manager, Southern Railway vs Rangachari, ; M. R. Balaji vs State of Mysore [1963] Supply. 1 S.C.R. 434 State of Kerala vs N. M. Thomas. , affirmed.

Appeal No.389 of 1956. 297 Appeal by special leave from the judgment and order dated April 19, 1955, of the Allahabad High Court in Agricultural Income tax Miscellaneous Case No. 202 of 1952. G. section Pathak and G. C. Mathur, for the appellants. K. L. Misra, Advocate General of Uttar Pradesh, and C. P. Lal, for the respondent. September 4. The Judgment of the Court was delivered by BHAGWATI, J. This appeal with special leave against the judgment of the High Court of Judicature at Allahabad raises a question of the interpretation of section 11(1) of the U.P. Agricultural Income tax Act, 1948, Act III of 1949 (hereinafter referred to as "the Act"). The appellants are the trustees of the estate settled on trust under the last will and testament dated May 17,1917, of one J. J. Holdsworth which, inter alia, comprised of a certain zamindari estate known as the Lehra Estate situate in the District of Gorakhpur, Uttar Pradesh. The clauses of the will so far as they are relevant for the purpose of this appeal provided that the trustees were to take possession of all real property in the United Provinces of Agra and Oudh and elsewhere in British India (including the houses at Lehra and Gorakhpur and the grounds thereof) and all live and dead stock in or about his estate in British India or any buildings thereon and the contents of any houses or stabling in British India belonging to him (which was called his estate) and manage the same in all respects and in such manner as they shall deem most advan. tageous and with all the powers of absolute owners. The trustees were to stand possessed of the net rents and profits of the settled estate after payment of the Government land revenue tax, and of all management expenses, upon trust to pay thereout certain annuities to 12 annuitants therein mentioned. If the net rents and profits of the said estate were less than seventy thousand rupees in any year or if the said estate or any portion thereof shall be sold at less than twenty years purchase of the net rent of seventy thousand rupees or 298 an equivalent proportion thereof in respect of the proportion so sold, the annuities bequeathed as above and for the time being payable except annuities Nos. (1), (2) and (3) were to abate proportionately and no such annuitant was entitled to have the deficiency of his or her annuity made good out of the rents and profits of the said estate in respect of any subsequent year. If there was no survivor alive then it was to go William Orlando Holdsworth, the son of the testator. Seven of the said annuitants died and at the relevant period the following annuities werepayable: (i) Mrs. J. C. Holdsworthpound 2,500/ (ii) Mr. W. 0. Holdsworthpound 1,000/ (iii) Miss Lucy Marion Holdsworthpound 50/ (iv) Lt. Col. L. R. J. C. Wilkinsonpound 500/ (v) Mr. Horace Claud Holdsworthpound 400/ The trustees entered upon the trust and managed the trust properties in accordance with the terms of the said will. The Act came into force in 1949 and a notice of assessment of agricultural income tax was issued to the trustees for the year 1357 Fasli (1949 50). The Additional Collector, Gorakhpur, the assessing authority for the area in question, by his order dated December 14, 1950, assessed the ' trustees to agricultural income tax upon the total agricultural income received by them, overruling their contention that the tax should be computed in accordance with the method of computation laid down in section 11(1) of the Act and that they should be called upon to pay the aggregate of the sums payable as agricultural income tax by each of the five annuitants. The trustees preferred an appeal before the Agricultural Income tax Commissioner, Lucknow, who by an order dated November 22, 1951, upheld the order of the Additional Collector. He observed that the beneficiaries were neither jointly interested in the land held by the trustees nor in the agricultural income derived therefrom, and that the agricultural income of the Lehra Estate accrued to the trustees and not to the beneficiaries directly as it left the hands of the various tenants who paid rent or from self cultivation that was done by the trustees themselves. , 299 The trustees then moved an application under a. 24 (2) of the Act before the Agricultural Income tax Board, U.P., for reference of certain questions of law to the High Court for its decision. The said Board however decided to act, under the third proviso to section 24(2) of the Act and to considerthe questions of law itself instead of referring them to the High Court for its decision. In the exercise of this power the Board held inter alia that the entire property vested in the trustees and that the latter could not claim the benefit of section 11 of the Act and refused to make a reference. The trustees moved an application under section 24(4) of the Act before the High Court of Judicature at Allahabad praying that the High Court may be pleased to require the Agricultural Income tax Board, U.P., Lucknow, to state a case and to refer to the High Court certain questions of law arising in the case. The application was allowed by the High Court on February 5, 1953, and an order was passed directing the said Board to refer the relevant question of law to the High Court. Accordingly a statement of case was drawn up by the Agricultural Income tax Board and submitted to the High Court and the following question of law was referred for its decision: " Whether on the facts and in the circumstances of the case the trustees can be said to be holding land on behalf of beneficiaries and can the beneficiaries be said to be jointly interested in the land or in the agricultural income derived therefrom within the meaning of Section 11 (1) of the U.P. Agricultural Income tax Act, 1948 ?" The said reference was heard by the High Court and by its judgment dated April 19, 1955, the High Court held that the trustees could be said to be holding land on behalf of beneficiaries but the beneficiaries could not be said to be jointly interested in the land or in the agricultural income derived therefrom within the meaning of section 1 1 (1) of the Act and accordingly answered the first part of the question in the affirmative and the latter half in the negative. 300 Thereupon the trustees filed an application before the High Court under article 133(1) of the Constitution for leave to appeal to this Court which was rejected with the result that the trustees applied for and obtained on April 16, 1956, special leave to appeal against the judgment of the High Court. Section 11(1) of the Act which falls to be considered by us runs as under: " Where any person holds land, from which agricultural income is derived, as a common manager appointed under any law for the time being in force or under any agreement or as receiver, administrator or the like on behalf of persons jointly interested in such land or in the agricultural income derived therefrom, the aggregate of the sums payable as agricultural income tax by each person on the agricultural income derived from such land and, received by him, shall be assessed on such common manager, receiver, administrator or the like, and he shall be deemed to be the assessee in respect of the agricultural income tax so payable by each such person and shall be liable to pay the same. " This section concerns itself with the mode of computation of agricultural income tax in certain cases. The charging section is however section 3 of the Act which talks of agricultural income tax and super tax at the rate or rates specified in the schedule to be charged for each year in accordance with, and subject to the provisions of the Act. and rules framed under cls. (a), (b) and (c) of sub section (2) of section 44, on the total agricultural income of the previous year of every person. "1 Person " is defined in section 2(11) to mean an individual or association of individuals, owning or holding property for himself or for any other, or partly for his own benefit and partly for that of another, either as owner, trustee, receiver, manager, administrator, or executor or in any capacity recognized by law, and includes an undivided Hindu family, firm or company but not to include a local authority. According to the above definition the trustees before us would be included in the definition of " person " and would as such be liable to agricultural income tax under the 301 charging section. That liability to pay income tax would however be on the trustees as a "person" without anything more. Where however section 11(1) comes into operation the agricultural income tax would be assessed not on the ordinary computation but on the computation specified therein which has the effect of reducing the incidence of the tax by reason of the person being liable to pay only the aggregate of the sums payable as agricultural income tax by each of the persons jointly interested in such land or in the agricultural income derived therefrom. Two conditions are requisite before section 11 (1) can come into operation: (1) that the person holds land from which agricultural income is derived, as a common manager appointed under any law for the time being in force or under any agreement or as receiver, administrator or the like on behalf of other persons and (2) such persons should be jointly interested in such land or in the agricultural income derived therefrom. If both these conditions are satisfied the person holding such land is liable to be assessed in the manner specified in section 11(1) of the Act and the aggregate of the sums payable as agricultural income tax by each of these persons jointly interested on his share of the agricultural income derived from such land and actually received by him is to be assessed on such common manager, receiver, administrator or the like, and the latter is to be deemed the assessee in respect of the agricultural income tax so payable by each such person and is liable to pay the same. It is to be noted that the primary liability for the payment of agricultural income tax is on the person who is interested in the land or in the agricultural income derived therefrom. The incidence of the tax is on that person and the amount of tax is determined with reference to the aggregate income derived by him. Inasmuch as however such land is held by some other person who@ is a common manager, receiver, administrator or the like on behalf of such person and others jointly interested in such land or in the agricultural income derived therefrom, the agricultural income tax is assessed on such common manager, 302 receiver, administrator or the like instead of the assessment being made on each of such persons who is jointly interested in such land or, in the agricultural income derived therefrom. Section 11.(1) prescribes a mode of assessing such common manager, receiver, administrator or the like and he is deemed to be the assessee in respect of agricultural income tax so payable by each such person and is liable to pay the same. Such common manager, receiver, administrator or the like would certainly be covered by the definition of person contained in section 2(11) of the Act because he would be holding property for others as receiver, manager, administrator or the like and would be liable to pay the agricultural income tax on the agricultural income derived by him from the land which he thus held. If there was nothing more, the incidence of the tax would be on the total income which has come to his hands. But, in so far as he holds the land from which agricultural income is derived as such common manager, receiver, administrator or the like on behalf of the persons jointly interested in such land or in the agricultural income derived therefrom, the agricultural income tax is levied not on the computation of the whole agricultural income which has come to his hands but if; limited to the aggregate of the sums payable as agricultural income tax by each of the persons jointly interested in such land or in the agricultural income derived therefrom and received by him. The agricultural income tax in such cases is determined with reference to each of the persons jointly interested in such land or in the agricultural income derived therefrom, and the agricultural income tax payable by each of such persons is computed on the actual amount of the agricultural income derived from such land and received by him and the aggregate of the sums payable as agricultural income tax by each of such persons is assessed on such common manager, receiver, administrator or the like with the result that he pays agricultural income tax which would be substantially lower than what he would have otherwise had to pay if the computation of such tax was on the total agricultural income 303 derived from such land and come to his hands. Such common manager, receiver, administrator or the like would in the course of management or administration of such land debit to the account of each such person an aliquot share of the whole of the agricultural income tax paid by him. If such common manager, receiver, administrator or the like were assessed on the total income derived from the land which comes to his hands, the amount thus debited to each of such persons would be larger than the amount which the latter would have to pay by way of agricultural income tax, if agricultural income tax was levied on the actual amount of agricultural income derived from such land and received by him as falling to his share. This provision therefore is designed to lower the incidence of the agricultural income tax upon each such person and such common manager, receiver, administrator or the like by virtue of these provisions is deemed to be the assessee in respect of agricultural income tax so payable by each such person and is made liable to pay the same. This position however is not available unless and until such common manager, receiver, administrator or the like holds, the land from which agricultural income is derived on behalf of persons jointly interested in such land or in the agricultural income derived therefrom. Such common manager, receiver, administrator or the like should hold the land on behalf of these persons and not on his own behalf. The very words " on behalf of " predicate that the land is held by such common manager, receiver, administrator or the like not as the owner but as the agent or representative of these persons and he manages or administers the same either in accordance with law or the terms of the agreement arrived at between the parties. There is no vestige of ownership in him and all that he is entitled to do is to manage or administer the land on behalf of persons who are jointly interested in the agricultural income derived therefrom. This could be predicated of receivers managers, administrators or the like but cannot be predicated of owners or 304 trustees who are equally with the manager, receiver, administrator or the like included within the definition of " person " contained in section 2(11) of the Act. The case of the owner does not require any elaboration. He holds the land on his own behalf and also for his own benefit. Ho certainly cannot come within the scope of section 1 1 (1) of the Act. The position of a trustee is also similar to that of the owner. A trust is thus defined in English Law: " A trust in the modern and confined sense of the word, is a confidence reposed in a person with respect to property of which he has possession or over which he can exercise a power to the intent that he may hold the property or exercise the power for the benefit of some other person or object." (Vide Halsbury 's Laws of England, Hailsham Ed., Vol. 33, p. 87, para. 140). " The property affected by the confidence is called the trust property or trust estate. It is usually in the legal ownership or under the legal control of the trustee. The cestui que trust is said to have a beneficial or equitable interest in it." (Ibid p. 89 para. A trustee is thus usually the legal owner of the trust property or the trust estate and holds it for the benefit of the certui que trust. Reliance was however placed upon an observation of Sir John Romilly, M. R., in Lister vs Pickford (1) " A trustee, who is in possession of land is so on behalf of his cestuis que trust, and his making a mistake as to the persons who are really his cestuis que trust cannot affect the question. " What the Court was considering there was the question of limitation and adverse possession and these observations were made in that context. It is significant however to note the further observations of the Master of the Rolls in that very context at p. 583: " Suppose that they had imagined bona fide that they themselves were personally entitled to the property, and that they were not trustees of it for anyone, it would, nevertheless, have been certain that they would (1) (1865)34 Beav. 576, 582; ; 305 have been trustees for the cestuis que trust, and no time would run while they were in such possession. The legal estate was vested in them, no other person could have maintained an ejectment against them; they are bound to know the law, they ought to have taken possession as soon as they saw who were the real beneficiary devisees, and, being in possession, they ought to have applied the proper proportion of the rents for the benefit of such residuary devisees. " The passage quoted above makes it abundantly clear that the legal estate is vested in the trustees and they hold it for the benefit of the beneficiaries. Whatever be the position in English Law, the (II of 1882) is clear and categoric on this point. Section 3 of that Act defines a Trust as an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner: the person who accepts the confidence is called the "trustee": the person for whose benefit the confidence is accepted is called the "beneficiary": "the beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust property; the subject matter of the trust is called "trust property" or "trust money. " These definitions emphasize that the trustee is the owner of the trust property and the beneficiary only has a right against the trustee as owner of the trust property. The trustee is thus the legal owner of the trust property and the property vests in him as such. He no doubt holds the trust property for the benefit of the beneficiaries but he does not hold it on their behalf. The expressions " for the benefit of " and " on behalf of " are not synonymous with each other. They convey different meanings. The former connotes a benefit which is enjoyed by another thus bringing in a relationship as between a trustee and a beneficiary or cestui que trust, the latter connotes an agency which brings about a relationship as between principal and agent between the parties, one of whom is acting on behalf of another. Section 11(1) therefore can only 39 306 come into operation where the land from which agricultural income is derived is held by such common manager, receiver, administrator or the like on behalf of, in other words, as agent or representative of, persons jointly interested in such land or in the agricultural income derived therefrom. Even though such persons were the beneficiaries cestui que trust under a deed of trust, they would not be comprised within the category of persons on whose behalf such land is held by the trustees and the trustees would not be included in the description of common manager, receiver, administrator or the like so as to attract the operation of section 11(1). Trustees do not hold the land from which agricultural income is derived on behalf of the benefi ciaries but they hold it in their own right though for the benefit of the beneficiaries. The beneficiaries are also not necessarily persons who are jointly interested in such land or in the agricultural income derived therefrom. The term "jointly interested" is well known in law and predicates an undivided interest in the land or in the agricultural income derived therefrom as distinguished from a separate or an individual interest therein. If on a true reading of the provisions of the deed of trust the interest which is created in the beneficiaries is a separate or individual interest of each of the beneficiaries in the land or in the agricultural income derived therefrom, merely because they have a common interest therein, that cannot make that interest a joint interest in the land or in the agricultural income derived therefrom. The words "jointly interested" have got to be understood in their legal sense and having been used in a statute are not capable of being understood in a popular sense as meaning a common interest or an interest enjoyed by one person in common with another or others. If regard be bad to the above construction put upon the terms of section 11 (1) of the Act, it follows that the appellants who were trustees of the deed of trust in the present case did not hold the land from which agricultural income is derived as common manager, receiver, administrator or the like on behalf of the annuitants 307 and the annuitants were not jointly interested in the land or in the agricultural income derived therefrom with the result that section 11(1) of the Act did not come into operation at all. The appellants were the legal owners of the trust estate and did not hold the land from which agricultural income was derived "on behalf of" the annuitants. Each of the annuitants, moreover, was separately or individually interested in the agricultural income derived from the land comprised in the trust estate to the extent of the annuity payable to him under the deed of trust and the interest of one annuitant was not affected by whatever happened to the interest of the other. There was thus no fulfilment of either of the two conditions pre requisite before section 11(1) of the Act could come into operation at all. The learned judges of the High Court were therefore in error in answering the first part of the question referred to them in the affirmative, though their answer to the latter part in the negative was correct. We are of opinion that both the parts of the question should have been answered by them in the negative. The ultimate result however is the same and this appeal of the appellants is therefore bound to fail. The appeal will accordingly stand dismissed with costs. Appeal dismissed.

The respondent assessee is a public limited company carrying on the business of manufacturing and selling sugar. During the assessment years 1956 57 and 1957 58 the company also held shares in the Premier Sugar Mills and Distillery Co. Ltd., Mardan, West Pakistan. The Pakistan company also carried on the business of manufacturing and selling sugar. The assessee company earned dividend income of Rs.2,30,832 and Rs.3,30,868 from the holdings in the respective previous years relevant to the assessment years aforesaid, while it incurred a business loss of Rs.20,30,006 and Rs.9,11,728 respectively from its business in India. The assessee claimed that the entire loss sustained by it in India in each year should be carried forward and set off against its business profits in India in future years in as much as the dividend income derived by it from the Pakistan company was not liable to tax in India by virtue of the Agreement for the Avoidance of Double Taxation between India and Pakistan. The Income Tax Officer rejected the said contention and determined the total loss in the relevant assessment years by making certain adjustments. The appeals before the Appellate Assistant Commissioner and the Income Tax Appellate Tribunal failed. However, in the reference made at the instance of the assessee the Delhi High Court answered the questions relating to the Pakistan dividend in favour of the assessee and against the revenue. Hence the appeals by certificate. Allowing the appeals, the Court, 151 ^ HELD: 1.1 The dividend income received from the Pakistan company is deductible in arriving at the total world loss of the assessee under sub section (1) of section 24 of the Indian Income Tax Act, 1922. [160F G] 1.2 Under sub section (1) of section 24 of the Indian Income Tax Act, 1922 an assessee who has sustained a loss of profits or gains in any year under any of the heads mentioned in section 6 is entitled to have the amount of the loss set off against his income, profits or gains under any other head in that year. The income, profits or gains against which the loss is set off must be such income, profits or gains as is assessable under the Indian Income Tax Act. The statute does not contemplate a setting off of loss against income which is not assessable at all under the Act. [157A C] 1.3 For the purposes of the assessment under the Indian Income Tax Act, the income of the assessee must be determined in the ordinary way under the Indian law. Having regard to the relevant entry 8 of the Schedule to the Agreement for the Avoidance of Double Taxation between the two Dominions of India and Pakistan, the Dominion of India is not entitled to charge the dividend income at all. Article IV of the Agreement makes it clear that each Dominion is entitled to make assessments in the ordinary way under its own laws. The process of determining the assessable income of the assessee is not affected by the Agreement. What the Agreement does is to give relief against double taxations. [156F G; 157D E] Ramesh R. Saraiya vs Commissioner of Income Tax, Bombay City 1 referred to. 1.4 The agreement for the Avoidance of Double Taxation functions in a different plane altogether. It enjoys no role in the application of the Indian law for the purpose of determining the total income of an assessee and the tax liability consequent upon such assessment. On the contrary, the provisions of the Agreement clearly envisage that full effect must be given to the operation of the tax law of each Dominion. All that the Agreement does is to permit a Dominion to retain the tax recovered by it pursuant to an assessment under its law to the extent that an abatement is not allowed under the provisions of the Agreement. Article IV specifically provides that each Dominion shall make assessment in the ordinary way under its own laws. Such assessment includes the determination of the consequential tax liability. Thereafter, the Agreement takes over and the Dominion must allow an abatement in the degree mentioned in Article IV. Clause (b) of Article VI permits the 152 Dominion to make a demand without allowing the abatement if the tax payable on the total income in the other Dominion is not known, but the collection of the tax has to be held in abeyance for a period of one year at least to the extent of the estimated abatement. If the assessee produces the certificate of assessment in the other Dominion within the period of one year or any longer period allowed by the Income Tax officer, the uncollected portion of the demand has to be adjusted against the abatement allowable under the Agreement. But if no such certificate is produced, the abatement ceases to be operative and the outstanding demand can be collected forthwith. Clause (a) of Article VII makes absolutely clear that nothing in the Agreement can be considered as modifying or incorporating in any manner the provisions of the relevant tax laws in force in either Dominion. Therefore, the Agreement cannot be construed as modifying or superseding in any manner the provisions of the Indian law in that regard. [158F H;159A D] 1.5 So long as it does not constitute the subject of exemption under any of the provisions (Sections 14 to 16) of the Indian Income Tax Act, the dividend income, in as much as it is taxable under the Indian Income Tax Act by virtue of sub clause (ii) of clause (b) of sub section I of section 4, must be brought into the net of income for assessment under the Indian law. [159G H; 160A ] 1.6 Merely because the assessee fails to claim the benefit of a set off cannot relieve the Income tax officer of his duty to apply section 24 in an appropriate case for the purpose of determining the true figure of the assessee 's taxable income and the consequential tax liability. How ever in the instant case a perusal of the assessment orders for two years shows clearly that the assessee did claim a set off of the Pakistan dividend against the losses of the Indian business. [160D E]

Appeal No. 335 of 1956. Appeal by special leave from the judgment and order dated August 25, 1954, of the Bombay High Court in Income tax Reference No. 1 of 1954. N.A. Palkhivala, section N. Andley, and J. B. Dadachanji, for the appellant. K.N. Rajagopal Sastri and D. Gupta, for the respondent. March, 4. The Judgment of the Court was delivered by S.K. DAS, J. This appeal by special leave is from the decision of the Bombay High Court dated August 25, 1954, in Income tax Reference No. 1 of 1954. The only question which falls for decision in the appeal is the true scope and effect of the third proviso to old section 12B(1) of the Indian Income Tax Act, hereinafter referred to as the Act. The facts relevant to the appeal are these: one Henry Gannon was a resident of British India, who used to be assessed to income tax under the Income tax law of this country. He left India in 1944 for the United Kingdom where he died on May 13, 1945. He left a will dated November 18, 1942 by which the National Bank of India Ltd., in London was appointed Executor of his estate. On October 1, 1945, probate 169 of the will was granted to the said Bank by a Court of competent jurisdiction in the United Kingdom. On October 25, 1945, a power of attorney was given by the Bank to James Anderson, who is now the appellant before us. He made an application to the High Court of Bombay under section 241 of the, Indian Succession Act and on that application obtained Letters of Administration with a copy of the will annexed. In the course of administration of the estate of Henry Gannon, the appellant sold certain shares and securities belonging to the deceased for the purpose of distributing the assets amongst the legatees. The sale of these shares and securities realised more than their cost price. The excess of the sale price over the cost price was treated by the Income Tax Officer as capital gain under section 12B of the Income Tax Act. For the assessment year 1947 48 the capital gain was computed by the Income Tax Officer at Rs. 20,13,738 and for the assessment year 1948 49 at Rs. 1,51,963. These amounts of capital gain were brought to tax for the assessment year 1947 48 and 1948 49 along with certain dividend and interest income which had accrued or had been received in the relevant years of account. Not satisfied with these assessments, the appellant preferred two appeals to the Appellate Tribunal, Bombay. These two appeals were consolidated. The appellant urged three points in support of his contention that the assessments were invalid: firstly, that section 12B imposing a tax on capital gains was ultra vires the Government of India Act, 1935 ; secondly, that. under section 24B of the Act, the appellant was only liable to pay tax which the testator would have been liable to pay and as these capital assets were not sold by the testator, there was no liability upon the appellant: and thirdly, that the sale of the shares and securities by the appellant under the will of Henry Gannon came within the purview of the third proviso to section 12B(1) and, therefore, was riot to be treated as a sale of capital assets under section 12B(1). The Appellate Tribunal repelled the first two contentions, but accepted the third as correct and in that view allowed the two appeals in part. It directed the Income Tax Officer to delete from the assessed income 22 170 the capital gains made by the sale of shares and securities. The Commissioner of Income tax, Bombay City, then moved the Appellate Tribunal to refer to the High Court of Bombay the question which arose out of the third contention, namely, the true scope and effect of the third proviso to old section 12B(1) of the Act. The Appellate Tribunal thereupon referred the following question of law to the Bombay High Court: " Whether the sale of the shares and securities by the administrator of the estate of late Mr. Gannon is not a sale for the purpose of Section 12B(1) in view of the third proviso to section 12B(1) of the Indian Income Tax Act. " At the instance of the assessee the other two questions which were decided against him were also referred to the High Court. The High Court of Bombay considered all the three questions in Income tax Reference No. 1 of 1954 and by its decision appealed from answered all the three questions against the assessee. The appellant then moved this Court for special leave which was granted on October 7, 1955. The question whether the levy of capital gains under section 12B is ultra vires no longer survives by reason of the decision of this Court in Navinchandra Mafatlal vs ' Commissioner of Income tax(1). This question was not therefore pressed before us. The question under section 24B was also not seriously pressed. The view of the Bombay High Court that section 24B does not limit the liability of the Administrator or Executor to the cases referred to under that section is correct; because the appellant is as much an assessee under the Act as any other individual and if he makes capital gains, he is as much liable to pay tax as any other individual. This position has not been seriously contested before us. We are, therefore, left only with the question which turns on the true scope and effect of the third proviso to old section 12B(1) of the Act. Capital gains were charged for the first time by the Income tax and Excess Profits Tax (Amendment) Act, 1947, which inserted section 12B in the Act. It taxed capital gains arising after March 31, 1946. The levy was virtually abolished by the Indian (1) ; [1955] I. S.C.R. 829. 171 Finance Act, 1949, which confined the operation of the section to capital gains arising before April 1, 1948; but it was revived with effect from April 1, 1957, by the Finance (No. , which substituted the present section. We are concerned in this appeal with the old section. That section, leaving out those parts which are not relevant for our purposes, ran as follows : " section 12B Capital gains (1) The tax shall be payable by an assessee under the head "capital gains" in respect of any profits or gains arising from the sale, exchange or transfer of a capital asset effected after the 31st day of March, 1946, and before the 1st day of April, 1948; and such profits and gains shall be deemed to be income of the previous year in which the sale, exchange or transfer took place: Provided further that any transfer of capital assets by reason of the compulsory acquisition thereof under any law for the time being in force relating to the compulsory acquisition of property for public purposes or any distribution of capital assets, on the total or partial partition of a Hindu undivided family, or on the dissolution of a firm or other association of persons, or on the liquidation of a company, or under a deed of gift, bequest, will or transfer on irrevocable trust shall not, for the purposes of this section, be treated as, sale, exchange or transfer of the capital assets: (2) The amount of a capital gain shall be computed after making the following deductions from the full values of the consideration for which the sale, exchange or transfer of the capital asset is made, namely : (i)expenditure incurred solely in connection with such sale, exchange or transfer; (ii)the actual cost to the assessee of the capital asset, including any expenditure of a capital nature incurred and borne by him in making any additions or alterations thereto but excluding any expenditure 172 in respect of which any allowance is admissible under any provisions of sections 8, 9, 10 and 12. (3) Where any capital asset became the property of the assessee by succession, inheritance or revolution or under any of the circumstances referred to in the third proviso to sub section (1), its actual cost allowable to him for the purposes of this section shall be its actual cost to the previous owner thereof and the provisions of sub section (2) shall apply accordingly; and where the actual cost to the previous owner cannot be ascertained, the fair market value at the date on which the capital asset became the property of the previous owner shall be deemed to be the actual cost thereof " Capital asset " is defined in section 2(4A) of the Act, and it was not disputed before us that the shares and securities which the appellant sold constituted capital asset within the meaning of that definition. We may shortly state here the scheme of sub sections (1), (2) and (3) of section 12B of the Act. Sub section (1) is the substantive provision which levies a tax in respect of profits or gains arising from the sale, exchange or transfer of a capital asset effected during a specified period. The admitted position in this case is that the appellant sold the shares and securities, which constituted capital asset, within that period and thus clearly came within sub section (1) of section 12B. Sub section (2) states how the amount of capital gain shall be computed,, and it allows certain deductions from the full value of the consideration for which the sale, exchange or transfer of capital assets is made. As nothing turns upon the deductions allowed under sub section (2), we need not refer to them. Sub section (3) refers to a capital asset which became the property of the assessee by succession, inheritance or devolution or under any of the circumstances referred to in the third proviso to sub section (1), and states what deductions the assessee is then entitled to. In one case, the assessee may be the administrator or executor who has himself sold the capital 173 assets ; in another case the assessee may be the person who has got the capital assets by succession etc. or under any of the circumstances referred to in the third proviso to sub section (1), and if in the latter case the assessee sells the capital assets, he brings himself within sub section (1) but is entitled to a deduction of the actual cost to the previous owner in accordance with the provisions of sub section (2); where, however, the actual cost to the previous owner cannot be determined, he is entitled to a deduction of the fair market value at the date on which the capital assets became the property of the previous owner. This in effect is the scheme of the three sub sections. Manifestly, the intention of the legislature is to tax the profits made by the sale, exchange or transfer of capital assets and the incidence of the taxation falls at the time of the transfer. If the sale is made by the administrator or executor, the liability under sub section (1) falls on him; if, however, the sale is made by a person who got the capital assets inter alia in any of the ways mentioned in sub section (3), he becomes liable to tax as and when he sells the capital assets and makes profits therefrom. Now, the question is what bearing the third proviso to sub section (1) has on the aforesaid scheme. This proviso states in effect that under certain circumstances mentioned therein a transfer of capital assets shall not be treated as a transfer for the purposes of the section. The circumstances enumerated are: (a) compulsory acquisition of property for public purposes, (b) distribution of capital assets on the total or partial partition of a Hindu undivided family, (c) distribution of capital assets on the dissolution of a firm or other association of persons, or on the liquidation of a company, and (d) distribution of capital assets under a deed of gift, bequest, will or transfer on irrevocable trust. In the present case we are concerned with the question whether there has been a distribution of capital assets by the appellant under a will so as to bring him within the ambit of the third proviso. If the appellant comes within that ambit, then the sales which he made of the shares and securities will not be treated as transfer within the meaning of sub s.(1). The contention of the appellant 174 is that there has been a distribution of capital assets by him under the Will of Henry Gannon and therefore he comes under the protection of the third proviso. The High Court took the view that the expression " distribution of capital assets " in the third proviso can only mean such distribution in specie; it cannot and does not mean distribution of the sale proceeds of the capital assets. The High Court, therefore, held that the appellant did not come within the protection of the third proviso, as he did not distribute the capital assets in specie. On behalf of the appellant it has been contended before us that the High Court came to an erroneous conclusion with regard to the scope and effect of the third proviso. Mr. N. A. Palkhivala who has argued the case on behalf of the appellant has put his argument in the following way. He has submitted that normally the purpose of a proviso is to carve out an exception from the substantive provision. Sub section (1) of section 12B, which is the substantive provision, imposes the liability to tax on an assessee in respect of profits or gains arising from the sale, exchange or transfer of a capital asset. Leaving out the case of compulsory acquisition of property Tor public purposes which may result in capital gains, Mr. Palkhivala has submitted that the other cases earlier enumerated as (b), (c) and (d) in the proviso cannot result in any capital gains by a mere distribution in specie; because on a distribution in specie upon a partition or upon a testamentary gift or gift inter vivos, no capital gain can possibly be made by the person who owned the assets before the distribution and who alone can be liable to tax under the section. If, therefore, the correct interpretation of the third proviso is distribution of capital assets in specie, the proviso does not serve any purpose. Therefore, Mr. Palkhivala has argued that the expression " distribution of capital assets " must be given a meaning which will fulfil a purpose and correlate the proviso to the substantive provision in sub section That meaning, according to him, is distribution of sale proceeds of capital assets. We are unable to accept the argument as correct. Firstly, having regard to the definition of the expres 175 sion "capital assets" it would be wrong to read "distribution of capital assets " as meaning "distribution of sale proceeds of capital assets". Obviously, there is a clear and vital distinction between " capital assets " and their " sale proceeds ". If capital assets are sold first and a distribution of the sale proceeds is made afterwards, then the sale precedes distribution and what is distributed is not capital assets but the sale proceeds thereof. Secondly, we do not agree that the third proviso serves no purpose if the expression " distribution of capital assets " is given its natural and plain meaning, viz. distribution in specie. The High Court expressed the view that by the proviso the legislature might have intended to protect an assessee from a possible argument by the Revenue that when (to take an example appropriate to the case) an executor or administrator transferred the estate or part of the estate to the person entitled to it, there was a transfer within the meaning of sub section (1) of section 12B. To us it seems that the purpose of the proviso is abundantly clear if the scheme of sub sections (1), (2) and (3) is kept in mind. Assume that there is distribution of capital assets in specie amongst legatees, and one of the legatees sells the capital assets which he got in one of the ways mentioned in third proviso; he at once becomes liable to tax on profits made on the sale. Sub section (3) makes that position clear and if the proviso is read in the context of the substantive provisions of section 12B its purpose is quite clear. The purpose is this: as long as there is distribution of the capital assets in specie and no sale, there is no transfer for the purposes of the section ; but as soon as there is a sale of the capital assets and profits or gains arise therefrom, the liability to tax arises, whether the sale be by the administrator or the legate. It is significant that the proviso uses the words " for the purposes of this section " and not merely sub section Indeed, Mr. Palkhivala was forced to concede that in view of the provisions of sub section (3) of section 12B, the expression " distribution of capital assets " must also mean distribution in specie because under sub section (3) it is the capital asset which becomes the property of the assessee under any of the circum 176 contended that the expression meant both distribution in specie and distribution of sale proceeds. We do not see why an unnatural or forced meaning should be given to the expression, when by giving the expression its plain and natural meaning the third proviso fits in with the scheme of sub sections (1), (2) and (3) of section 12B of the Act. It is necessary to point out here that on the interpretation sought to be placed on the third proviso on behalf of the appellant, the administrator will escape paying tax if he sells the capital assets; but the legate will not escape if he sells the capital assets after having received them in specie from the administrator. This is an anomaly which is against the scheme of section 12B of the Act. We are accordingly of the view that the High Court rightly held that the expression " distribution of capital assets " in the third proviso to sub section (1) of section 12B of the Act means distribution in specie and not distribution of sale proceeds. In the High Court an alternative argument was also presented on behalf of the assessee to the effect that the third proviso contemplated involuntary transfers. This argument was based on the use of the expression by reason of ' in the proviso, and the proviso was sought to be read as follows (omitting words not relevant to the case): " Provided further that any transfer of capital assets by reason of any distribution of capital assets under a. . . . will. . . shall not for the purposes of this section be treated as sale, exchange or transfer of the capital assets. " The argument was that inasmuch as the administrator sold the shares and securities for the purpose of distributing the sale proceeds to the legatees, the sale was involuntary and was necessitated by reason of ' the terms of the will; therefore, he was protected under the third proviso. The High Court repelled this argument and for good reasons. Firstly, the question whether the sale was voluntary or involuntary. is not, germane to the scheme of section 12B. Secondly, on a. proper reading of the proviso, the 177 expression 'by reason of ' goes with the clause relating to compulsory acquisition of property and not with the distribution of capital assets. The position seems to us to be so clear that it is un necessary to labour it or to refer to decided cases. Such decisions of the High Courts as have been brought to our notice are all one way and they take the same view as was taken by the High Court in the decision under appeal (see Sri Kannan Rice Mills Ltd. vs Commissioner of Income tax, Madras(1); Commissioner of Income tax, Bombay North vs Walji Damji (2); and Gowri Tile Works vs Commissioner of Income tax, Madras (3). For the reasons given above, we see no merit in the appeal and we dismiss it with costs. Appeal dismissed.

The appellant was the administrator of the estate of one Henry Gannon, a resident of British India, who left for the United Kingdom in 1944 and died there in 1945. In the course of administration the appellant sold certain shares and securities belonging to the deceased for the purpose of distributing the assets amongst the legatees and thereby realised more than their cost prime. The excess of sale price over the cost price was treated by the Income tax Officer as capital gain under section 12 B 168 of the Income tax Act and the appellant was assessed to tax on such capital gain for the assessment years 1947 48 and 1948 49. The appellant contended that there had been a distribution of capital assets by him under the will of Henry Gannon and therefore he came under the protection of the third proviso to section 12B(1) and was not liable to tax. Held, that the appellant was not protected by the third proviso to section 12B(1) as the expression " distribution of capital assets " in that proviso meant distribution in specie and not distribution of sale proceeds of the capital assets. So long as there was distribution of the capital assets in specie and there was no sale, there was no transfer for the purposes of section 12B, but as soon as there was a sale of the capital assets and profits or gains arose therefrom, the liability to tax also arose, whether the sale was by the administrator or by the legate. Sri Kannan Rice Mills Ltd. vs Commissioner of Income tax, Madras, ; Commissioner of Income tax, Bombay North vs Walji Damji, and Gowri Tile Works vs Commissioner of Income tax, Madras, , referred to.

vil Appeal Nos. 8 & 9 of 1989. From the Judgment and Order dated 17.2.1987 of the Bombay High Court in Appeal No. 179 and 149 of 1987. T.U. Mehta, A. Subba Rao, P. Parmeshwaran, Harish N. Salve, N.D. Garg, Rajiv K. Garg, P.H. Parekh, Ms. Ayesha Misra and M.N. Shroff for the appearing parties. By these two special leave petitions under Article 136 of the Constitution, the Union of India and the Chief and the Joint Chief Controllers of Imports and Exports seek special leave to appeal from two appellate Judgments of the Division Bench of the High Court of Judica ture at Bombay Both dated 17.2.1987 in appeal Nos. 179 of 1987 and 149 of 1987 affirming in appeal orders of learned Single Judges dated 5.9.1985 in W.P. 1125 of 1985 and dated 19.9.1985 in W.P. 1918 of 1986, respectively, by which the writ petitions filed by M/s. Suksha International and M/s. Nutan Gems, respondents in these appeals, were allowed and appellants directed to revalidate 4 the imprest licences of the respondents and endorse them for import of OGL items, under paragraph 185[4] of the Import Export Policy of 1982 83 [AM 1983.] 2. Special leave, in both the petitions, is granted and the appeals taken up for final hearing, heard and disposed of by this common judgment. We have heard Shri Subbarao, learned counsel for the appellants and Shri Harish Salve, learned counsel for the respondents who were the writ peti tioners before the High Court. M/s. Suksha International, respondent in SLP 2579 of 1987, is a diamond exporter and is a registered Export House for the purposes of the Import Export Policy. The said export house was granted an Imprest Licence No. 0451365 dated 15.6.1981 of a value of (Rs. 1,53,80,000) for import of 'uncut ' and 'unset ' diamonds with corresponding export obligations. Respondent claimed that upon the due fulfilment by it of its export obligations it became entitled to revalidation and endorsement for export of OCM items of the imprest, Accordingly, on 3.8.1983 the said Export House applied under paragraph 185(4) of AM/83 policy, for such revalidation and endorsement of its imprest licence. Appellant No. 3 by his decision dated 21.9.1983, rejected this claim of the re spondent. Aggrieved by this rejection, respondent filed in the High Court under Article 226 of the Constitution a writ petition assailing the legality of the order dated 21.9.1983 and seeking a mandamus to the appellants to en dorse the Imprest Licence. Learned Single Judge of the High Court by his order dated 5.9. 1986 allowed the writ petition and issued the direction preyed for. This order was carried up in appeal before the Division Bench of the High Court in appeal No. 179 of 1987. The appeal came to be dismissed on 17.2. M/s. Nutan Gems, respondent in SLP 2580 of 1987 is a recognised Export House which had, similarly, been granted an Imprest Licence dated 24.2. 1983 for the import of uncut and unset diamonds with certain export obligations attached to it and that after the due discharge of the export obliga tions, Respondent became entitled to a revalidation and endorsement of the Imprest Licence for import of DGL items. The application dated 19.1.1984 made in this behalf by the respondent was rejected by appellant No. 6 by his order dated 19.3. M/s. Nutan Gems filed writ petition No. 1813 of 1985 in the High Court for issue of an appropriate writ quashing the said order of rejection and directing appellants to revalidate and endorse the 5 Imprest Licence. On 19.9.1985. Learned Single Judge allowed the writ petition. This Order was affirmed in appeal No. 149 of 1985 by the Division Bench on 17.2. These appellate judgments of the High Court are assailed in these appeals. Though a number of contentions are raised in the Memorandum of Special Leave Petition, the points, however, pressed at the hearing admit of being formulated thus: (a) that in the Import Export Policy, 1982 83 the entitlement of Registered Export Houses to the facility of revalidation and endorsement of OGL items under paragraph 185(4) is subject to and conditioned upon the express limitation in clause (7) of paragraph 185 of the Policy and that the High Court was in error in di recting revalidation and endorsement without reference to the mandatory prescription in clause (7). (b) that the High Court was in error in ignoring the contention of the appellants that respondents had rendered themselves disentitled to relief on ground of the inordi nate and unexplained delay in filing the writ petitions. In W.P. 1125 of 1985 (from which SLP 2579 of 1987 arises) the rejection of the prayer for revalidation was on 21.9. 1983 and the writ petition was filed in April, 1985; and in WP 1813 of 1985 (from which SLP 2580 of 1987 arises) the rejection of the prayer was on 18.3.1984 and the writ petition was filed on 10.9.1986, after a lapse of one and a half years in each case. (c) that, at all events, the direc tions issued for the endorsement must be limited only to items as limited by the pro nouncement of this Court in Rajprakash Chemi cals Ltd. vs Union of India, and D. Navinchandra & Co. vs Union of India, ; and other cases bearing on the question; and not in terms now directed by the High Court. We may first dispose of contention (c) on which there does not appear to be much controversy. Shri Subba Rao submitted that the High Court was in clear error in brushing aside this argument and affirming the learned Single Judge on the basis that the S.L.P. filed by 6 the appellants in Ripal Kumar & Co. 's case had been rejected by this Court. Shri Harish Salve, however, submitted that the decisions of this Court in Indo Afgan Chamber of Com merce vs Union of India; , ; Rajprakash Chemi cals Ltd. vs Union of India, ; Union of India vs Godrej Soaps (Pvt.) Ltd., ; and D. Navinchandra & Co. vs Union of India, ; etc do not have any direct beating on the question of the enti tlement of the Export Houses to revalidation and endorsement for OCL items under para 185(4) of A M 1983 Policy but relate to the question as to the limitations on the permis sibility of the items of import, consequent upon the changes in the policy. This question becomes relevant, says Shri Salve, at a stage which is subsequent to the revalidation and endorsement of the Imprest Licence and that the position in the present cases has not yet reached that stage. Howev er, he submitted that as to the choice of items permissible for import, the matter would of course, have to be deter mined the guided by these pronouncements. As Contention (c) is not in controversy it is not necessary to dwell on it any further. What, however, remain to be considered are the contentions (a) and (b). Re: Contention (a): Clauses (3), (4), (5) and (7) of para 185 of the policy provide: (3) Where REP licence has been issued to the Export House on its own exports, the facility of importing OGL items under sub para(1) above will be allowed without debit to the value of such REP licence, provided the value of such imports does not exceed the value of the REP licence. (4) The facility for import of OGL items available in sub para (3) above, may also be allowed, on merits, to Export Houses against their advance/imprest licences on account of which they are rendered ineligible to obtain REP licence. In such cases, however, the value upto which the OGL import may be allowed, will not exceed the value to which the Export House would have been eligible to the REP licence, had he not obtained advance/imprest licence in question. This facility will be available to the Export House after he has discharged the export obligation imposed on the advance/imprest licence. There fore, if by the time, the Export House becomes eligible to this facility, 7 the advance/imprest licence has expired, or, if the original validity left unused by that time is less than six months, the licensing authority will revalidate the licence simulta neously so as to give to the licence holder a time of six months for the purpose of import ing OGL item under this facility. (5) Export Houses who wish to take advantage of this facility of import of OGL items should get the licences concerned en dorsed by the licensing authority as under: "This licence will also be valid for import of OGL items under para 125 of Import Export Policy, 1982 83, subject to the condi tions laid down, and shall be nontransferable." (7) Import of OGL items by Export Houses under these provisions shall be subject to the condition, inter alia that the shipment of goods shall take place within the validity of the OGL i.e. 31st March, 1983. or within the validity period of the import licence itself (without any grace period), whichever date is earlier. This restriction will also apply to licences issued before 1.4.1982 in respect of items which continue to be on OGL in 1982 83 policy. (The restriction regarding grace period will not, however, apply in cases where shipment can be made within the permis sible grace period on or before 31.3.1981). Appellants ' contention is that clauses (4) and (7) of para 135 are part of an integrated policy scheme, providing for certain incentives to export houses and have to be read together and that the import of OGL items is strictly sub ject to the specific condition that the shipment of goods shall take place within the validity of the OGL i.e. 31.3.1983 or within the validity period of the licence itself which ever date is earlier. If this condition is held to be attracted to the case of an Imprest Licence also, then, quite obviously, the claim in the writ petitions would have to fail, as the application for revalidation is beyond the outer most time limit set for the import itself. Indeed, this question was left open by this Court while dismissing SLP 7389 of 1985 (Union of India vs Messrs H. Patel & Co.). In its order dated 19.7.1985 this Court said: " . . We, however, make it very clear that we express 8 no opinion on the validity of the above said contention based on paragraph 185(7) referred to above. The true effect of the said provi sion is left open to be considered in an appropriate case when an occasion arises to do so. Sri Salve, submitted that in the very nature of the procedures and exercises inherent in the effectuation of an imprest licence, as distinguished from Replenishment Li cence, the Export House has first to import the uncut and unset diamonds and thereafter fulfill its export obligations of cut and polished diamonds as a necessary antecedent for the effectuation of its entitlement to a revalidation and endorsement for OGL items. The very nature of the time consuming transactions that are required to be gone through preceding the very creation of the right to revalidation and endorsement are inconsistent with the feasibility of compli ance with the time schedule in para 185(7). Learned Counsel says that the view that should commend itself, both on construction and in equity, is that having regard to the innate differences in the nature of the obligations and conditions to be fulfilled between the holders of imprest licences on the one hand and the replenishment licences on the other and having regard, further, to the circumstances that export houses, which, under Imprest Licences, have first to import uncut and unset diamonds and thereafter fulfill their export obligations before becoming entitled to the import of OGL items, it would be a wholly unreasonable exercise in construction to import the condition in clause (7) into clause (4) and that clause (4) should, therefore, be treated on its true construction, as a special provision constituting an exception to the generality of the provision in clause (7). Otherwise, says counsel, the resulting posi tion would be that the satisfaction of the cumulative condi tions in clauses (4) and (7) by an Export House under an Imprest Licence would well nigh be impossible. This way of hormonising clauses (4) and (7) of para 185, it is submitted, has commended itself to the High Court in several other writ petitions involving the interpretation of clauses (4) and (7) of paragraph 185 of the AM 1983 policy. Sri Salve submits that it is reasonable to exclude imprest licences from the requirement of clause (7). We have considered the rival contentions on the point. Para 185(4) was intended to provide certain incen tives to the Export Houses which, upon grant of Imprest Licences, fulfill their countervailing obligations in the matter of export commitments. The provision 9 is a beneficial one. Clauses (4) and (7), no doubt, on their plain wording present certain constructional difficulties and the view sought to be put across by Shri Subba Rao for the appellant, on the plain language of clause (7), is not without possibilities. However, the basis of a harmonious construction which commended itself to the High Court in other similar cases appears to us to advance and promote the objects of the policy in paragraph 185(4) and is, at all events, not an unreasonable view to take of the matter. In some of these cases this Court has declined to interfere with this interpretation by rejecting petitions for special leave. Acceptance of the interpretation suggested by Shri Subba Rao would, in our opinion, unduly restrict the scope of the beneficial provision and, in many instances which would otherwise fall within the beneficial scope of the policy in para 185(4), take away with one hand what the policy gives with the other. We think we should accept the submissions of Shri Harish Salve which is consistent with the view taken of the matter by the High Court in other cases and hold that the conditions in para 185(4) of the policy would not be attracted to the case of Export Houses which are granted Imprest Licences. Accordingly we hold and answer contention (a) against the appellants. (10) Re: Contention (b): This pertains to appellants ' plea of delay as a bar to relief. Appellants have aired a serious grievance over this aspect. Shri Subba Rao streneously contended that the re spondents had approached the High Court after an inordinate and unexplained delay of over one and a half years in each of these cases and that appellants ' objection as to the disentitlement of the respondents to relief on the ground of delay was not even so much as adverted to by the learned Single Judge or the Division Bench. Learned counsel submit ted that promptitude and vigilant pursuit of legal remedies with diligence is basic to the entitlement to relief in the jurisdiction under Article 226, which is both extraordinary and discretionary and that in the present cases the delay of one and a half years in moving the Court should have been held crucial particularly where grant of import licence is cancelled. The pleadings in the writ petitions are not before us. We will proceed on the assumption that appellants had taken this objection before the learned Single Judge of the High Court and raised the plea as to the bar of delay in their appeals before the Division Bench of the High Court. If this point had been taken, we are afraid the High Court 10 was not justified in ignoring it or brushing it aside. Indeed the learned Single Judge of the High Court allowed the writ petitions in both these cases by short orders in similar terms, relying upon an earlier decision dated 19/20th August, 1985, in writ petition No. 2477 of 1984. The relevant part of the order reads: "Relevant facts and circumstances of this petition are similar to the relevant facts and circumstances in Writ Petition No. 2477 of 1984 decided by this Court on 19/20th August, 1985. Besides, as in the said Writ Petition No. 2477 of 1984, in the present case also there is no such delay as to preclude the petitioners from the relief claimed. In all the circumstances and for reasons stated in Writ Petition No. 2477 of 1984 the following order is passed on this Writ Petition. The petition succeeds and the same is allowed. " Thereafter, the learned judge proceeded to issue specific directions. Shri Subba Rao would say that the reference in the order by learned Single Judge to the contention on the point of delay as bar to relief had nothing to do with the specif ic contention of the appellants ' that there was inordinate and unexplained delay in approaching the Court. This, learned counsel submits, would be clear, by a reference to the aspect of the delay dealt with and considered in WP 2477 of 1984, on which the learned Single Judge relied. The order of the same learned Single Judge in WP 2477 of 1984, in which the particular aspect of delay is considered is at para 8 of that order. That para in the order in WP 2477 of 1984 reads: "Mr. Joshi, learned counsel for the respondents, submitted that the petitioners were not entitled to relief because of delay. It is not possible to agree. After the redemp tion certificate on 16th November, 1983, application for revalidation and OGL endorse ment was made within four months therefrom on 12th March, 1984. There is, in the circum stances, no such delay as to warrant its ejection on that ground. The contention thus fails and is rejected. " Shri Subba Rao submits that the delay referred to in the above paragraph is the delay in seeking revalidation and endorsement after 11 the issue of redemption certificate and not the delay in filing the writ petition and that in both the present cases the plea of delay in filing the writ petitions has not received due consideration by the High Court. Shri Subba Rao referred to a number of pronouncements of this Court, to substantiate that such unexplained delay particularly in matters dealing with import licences would bar relief and that un explained delay, by itself and without more, is a factor disentitling a person to relief. He submitted that absence of prejudice to the opposite party, by itself, would not justify delay and that in the context of grant of import licences passage of time brings with it, as here, problems of conflicting policy considerations. Where change of policy would impart crucial significance to the delays, Courts, learned counsel says, should insist upon even a higher degree of promptitude. He, accordingly, submitted that the writ petitions should be dismissed on the ground alone of delay in filing them. This contention of the appellant cannot be brushed aside. If appellants had raised a specific plea of delay as a bar to the grant of relief and the delays in the present cases, having regard to the nature of the subject matter, were not inconsiderable it was perhaps necessary for the High Court to have specifically dealt with the plea. The aspect of delay adverted to by the learned Single Judge in the course of the order was a different one. However, we think it would be somewhat unfair for the respondents, who have succeeded in the High Court, to decide this question without an opportunity to them to satisfy the Court as to the reasons, if any, for the delay and as to the sufficiency of such reasons. We assume that the plea had been taken before the High Court by the appellants as this submission of the learned counsel for the appellant was not controverted. We think it would be appropriate that the appellants ' appeals before the High Court are remitted to the High Court for such consideration as the Appellate Bench may now bestow on this contention of the appellants. If the appellate bench is persuaded to view that the delay is satisfactorily explained it may proceed to confirm the orders of the learned Single Judge, subject, of course, to the question of permissibility of the importable items to be determined in the light of the pronouncements of this Court referred to at contention (c). If, on the contrary, the delay is held by the Division Bench to be such as to disen title respondents to relief, the Division Bench may proceed to allow the appeals and dismiss the writ petitions. All other controversies in the appeal shall be held to have been concluded in favour of the respondents. 12 Accordingly, the appellate judgments of the High Court under appeal are set aside and the appeals 149 of 1987 and 179 of 1987 before the High Court are remitted for a fresh disposal as indicated above. The High Court might also consider the desirability of a very early disposal of the appeals. These appeals are disposed of accordingly. There will, however, be no order as to costs in these appeals. N.V.K. Appeals disposed of.

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.

Civil Appeals Nos. 2585 and 2586 of 1978. From the Judgment and Order dated 14.2.1978 of the Kerala High Court in T.R. C. No. 6 and 9 of 1977. V.J. Francis for the Appellant. S.T. Desai (A.C.) for the Respondent. The Judgment of the Court was delivered by 138 PATHAK, J. These appeals by special leave are directed against the judgment and order dated February 14, 1978 of the High Court of Kerala dismissing two tax revision petitions arising out of assessments made under the Kerala General Sales Tax Act, 1963. The respondent, Messrs. K. Kelukutty is a partnership firm dealing in timber. It consists of six partners. It filed returns of its taxable turnover for the assessment years 1968 69 and 1969 70 under the Kerala General Sales Tax Act, 1963, and the assessments were completed by the Sales Tax Officer. Subsequently, the Sales Tax Officer discovered that the partners of the respondent firm owned a Saw Mill, and the Saw Mill was run by a partnership firm Messrs. K.K.K. Sons Saw Mills which consisted of the same partners as the respondent firm. He found that during the assessment years 1968 69 and 1969 70 they had sold saw dust from the mill, but had not been assessed to sales tax on that turnover. The Sales Tax Officer took the view that as both Messrs. K. Kelukutty and Messrs. K.K.K. Sons Saw Mills consisted of identical partners, the two businesses carried on respectively by them had to be treated as the business of a single partnership firm and, therefore, the turnover of the sale of saw dust had to be included in the earlier assessments made on the respondent firm. The assessment orders were upheld by the Appellate Assistant Commissioner, Sales Tax. Thereafter, the appeals filed by the respondent firm before the Sales Tax Appellate Tribunal were allowed by its order dated March 30, 1976 and the cases were remanded for fresh consideration. The Revenue applied to the High Court in revision, Tax Revision Cases Nos. 6 and 9 of 1977, on the following two questions: (a) Was the Appellate Tribunal justified in law in holding that the reasoning in the decision reported in is applicable to the instant case and directing a further investigation and denovo disposal of the matter, in the light of the observations contained in paragraph 15 of the order ? (b) In the light of admitted or proved fact that the partners of the assessee 's firm and that of the firm K.K.K. Saw Mills are the same, was the Appellate Tribunal justified in its view that there is no bar in there being two firms with the same partners, carrying on business independently ? Is not the said 139 approach and view against the principles of Partnership Act, and the ratio of the decision reported in 21 STC 72 and ? On February 14, 1978, the High Court of Kerala dismissed the two revision petitions in the view that Messrs. K.K.K. Sons Saw Mills was a partnership firm distinct from the respondent firm for the purposes of sales tax assessment and the turnover of one could not be included in the turnover of the other. Reliance was placed by the High Court on the decision of this Court in State of Punjab vs M/s Jullunder Vegetables Syndicare.(1) The word "dealer" has been defined by cl. (viii) of section 2 of the Kerala General Sales Tax Act to mean "any person who carries on the business of buying, selling, supplying or distributing goods. " and the word "person" has been defined by cl. (vvi A) of section 2 of the Act as including a firm. Therefore, a partnership firm must be regarded under that Act as an assessable entity separate and distinct from its individual partners. That would be in line with the view taken by this Court respecting a partnership firm as an assessable entity under the Income Tax Act. See Commissioner of Income Tax, West Bengal vs A. W. Figgies and Company and Others(2). The question remains, however, whether when the partners constituting a partnership firm carrying on one business constitute thereafter another partnership firm carrying on a separate and distinct business are there two distinct partnership firms in whose hand the turnover of the two businesses falls to be respectively assessed or is there in law only a single partnership firm liable to assessment on the turnover of both businesses ? Before we proceed to examine this question, reference may be made to some relevant decisions of the Courts. In Vissonji Sons & Company vs Commissioner of Income Tax, Central,(3) a case under the Indian Income Tax Act, 1922, Beaumont C.J., speaking for the Bombay High Court, expressed the view that in law a firm had no existence independently of its partners, and that if there are two firms consisting of exactly the same partners and they carry on separate businesses, the real position in law is that there is only one firm. 140 Subsequently, however, in Jesingbhai Ujmashi vs Commissioner of Income Tax, Bombay Mofussil, (1) the same High Court speaking through Chagla C.J., observed that the observations of Beaumont C.J. were obiter merely, and that it was perfectly permissible in law that the same partners should constitute two different firms for the purpose of the Income tax law leaving the question open as one of fact whether there are two separate firms or only one firm or whether one of the businesses carried on by one firm was in fact a business carried on by the other firm. That view was reaffirmed by the Bombay High Court in Jeshingbhai Ujamshi vs Commissioner of Income Tax, Bombay(2) where it was explained that there can be two separate firms in the eyes of the Income tax Act even if the partners are the same in both the firms provided the businesses carried on by the firms are different. It was further observed that the correct test to determine whether the businesses are the same or different businesses is whether there is any interlocking or interlacing between the two businesses. The point was considered by the High Court of Punjab and Haryana in R.N. Oswal Hosiery and Mahabir Woollen Mills vs Commissioner of Income Tax, Punjab, (8) which after considering the earlier authorities on the point concurred with the opinion of the Bombay High Court in Jeshingbhai Ujamshi (supra). A contrary view was taken by a Division Bench of the High Court of Andhra Pradesh in Addl. Commissioner of Income Tax, A.P. vs M. Venkata Narasimha Rao & Co.(4) but that decision was over ruled by a Full Bench of the same High Court in Commissioner of Income Tax, A.P. III vs G. Parthasarathy Naidu & Sons.(5) where the learned Judges agreed with the view expressed by the High Court of Bombay in Jeshingbhai Ujamshi (supra) and by the High Court of Punjab and Haryana in R.N. Oswal Hosiery and Mahabir Woollen Mills (supra). This Court in The State of Punjab vs Jullunder Vegetables Syndicate (supra) declared that although under the partnership law a firm is not a legal entity and only consists of the individual partners for the time being, it was a legal entity for the purposes of the Income tax law as well as the Sales tax law. That was a case where this Court was called upon to consider whether an assessment could be made on a firm under the Punjab Sales tax Act after its dissolution on the turnover of sales affected during its existence. In our opinion, that question cannot 141 be identified with the one before us. The Revenue has invited our attention to Mahendra Kumar Ishwarlal & Company vs The State of Madras,(1) but in that case the Madras High Court has assumed that the same partners cannot constitute two different partnership firms, and on that assumption has concluded that no sale transaction could take place between the two firms. Except for the observations of Beaumont C.J. in Vissonji Sons Company (supra) and the overruled decision of the High Court of Andhra Pradesh in M. Venkata Narasimha Rao & Co. (supra) the High Courts, in the cases mentioned earlier, have proceeded to hold that in the eyes of the tax law you can have two partnership firm composed of the same partners carrying on different businesses. The corner stone of that view is that for the purposes of the income tax law each partnership firm must be regarded as an assessable entity separate and distinct from its partners. The approach proceeds upon a conceptual perspective of the tax law and apparently assumes that otherwise, under the partnership law, the conclusion would have been that there is only one partnership firm carrying on two different businesses. It seems to us that the approach adopted by the High Courts is not sound, and that the true solution has to be found not in the tax law but in the partnership law. We are concerned here with the Kerala General Sales tax Act. There is no doubt that under that Act a partnership firm must be regarded as an assessable entity. What precisely is the significance of that concept ? Does the tax law clothe a partnership firm with juristic personality ? How far does the tax law depart from the fundamental concept embodied in the partnership law that a business carried on by a partnership firm is, in its material essence, a business carried on by individual members in partnership, and that a name given to a partnership firm is nothing more than a compendious description of the partners carrying on the business ? As long ago as Watson and Everitt vs Blundan,(2) Romer L.J. said that for taxing purposes "a partnership firm is treated as an entity distinct from the persons who constituted the firm". This 142 dictum was approved by the House of Lords in Income Tax Commissioners for City of London vs Gibbs,(1) and was accepted as good law in India in respect of a partnership firm under the Indian Income tax Act, 1922 in A. W. Figgies and Co. (supra). What that implies is that for the purposes of assessment to tax the income of the partnership firm has to be assessed in the hands of the firm as a single unit, the firm itself being treated as an assessable entity separate and distinct from the partners constituting it. The firm is an assessable unit separate and distinct from the individual partners, who as individuals constitute assessable units separate and distinct from the firm. It is on that basis that the provisions of the tax law are structured into a scheme providing for the assessment of partnership income. We do not think the principle goes beyond the purposes of that scheme. It does not confer a corporate personality on the firm. Beyond the area within which that principle operates, the general law, that is to say, the partnership law holds undisputed domain. Now in every case when the assessee professes that it is a partnership firm and claims to be taxed in that status, the first duty of the assessing officer is to determine whether it is, in law and in fact, a partnership firm. The definition in the tax law defines an "assessee" or a "dealer" as including a firm. But for determining whether there is a firm, the assessing officer will apply the partnership law, subject of course, to any specific provision in that regard in the tax law modifying the partnership law. If the tax law is silent it is the partnership law only to which he will refer. Having decided the legal identity of the assessee, that it is a partnership firm, he will then turn to the tax law and apply its relevant provisions for assessing the partnership income. The Kerala General Sales tax Act contains no provision which bears on the identity of a partnership firm. Therefore, recourse must be had for that purpose to the partnership law alone. Where it is claimed that they are not one but two partnership firms constituted by the same persons and carrying on different businesses, the assessing authority must test the claim in the light of the partnership law. It is only after that question has been first determined namely, whether in law there is only one partnership firm or two partnership firms, that the next question arises : whether the turnover is assessable in the hands of the partnership firm as a taxable entity separate 143 and distinct from the partners ? There is first a decision under the law of partnership; thereafter, the second question arises, the question as to assessment under the tax law. It is clear, therefore, that reference must be made first to the partnership law. The has, by s.4, defined a "partnership" as "the relation between persons who have agreed to share the profits a business carried on by all or any of them acting for all". The section declares further that the persons who have entered into partnership with one another are called individually "partners" and collectively "a firm". The components of the definition of "partnership", and therefore of "a firm" consist of (a) persons, (b) a business carried on by all of them or any of them acting for all and (c) an agreement between those persons to carry on such business and to share its profits. It is the relationship between those persons which constitutes the partnership. The relation is founded in the agreement between them. The foundation of a partnership and, therefore, of a firm is a partnership agreement. A partnership agreement is the source of a partnership; it also gives expression to the other ingredients defining the partnership, specifying the business agreed to be carried on, the persons who will actually carry on the business, the shares in which the profits will be divided, and the several other considerations which constitute such an organic relationship. It is permissible to say that a partnership agreement creates and defines the relation of partnership and therefore identifies the firm. If that conclusion be right, it is only a further step to hold that each partnership agreement may constitute a distinct and separate partnership and therefore distinct and separate firms. That is not to say that a firm is a corporate entity or enjoys a juristic personality in that sence. The firm name is only a collective name for the individual partners. But each partnership is a distinct relationship. The partners may be different and yet the nature of the business may be the same, the business may be different and yet the partners may be same. An agreement between the partners to carry on a business and share its profits may be followed by a separate agreement between the same partners to carry on another business and share the profits therein. The intention may be to constitute two separate partnerships and therefore two distinct firms. Or to extend merely a partnership, originally constituted to carry on one business, to the carrying on of another business. It will all depend on the intention of the partners. The intention of the partners will have to be decided with reference to the terms of the agreement and all the surrounding circumstances, including evidence as to the interlacing or 144 interlocking of management, finance and other incidents of the respective businesses. In the present case, there are two businesses, a business in timber and a business in saw dust. Both businesses are carried on by the same partners, one as a partnership firm called K. Kelukutty, and the other under the name Messrs. K.K.K. Sons Saw Mills, said to be a separate partnership firm. On the material before us it is not possible to say, in the light of the considerations to which we have adverted, whether there is one firm or two. That is a question which appropriately falls for examination by the authorities constituted under the Kerala General Sales Tax Act. While, therefore, we maintain the orders of the High Court dismissing the Tax Revision Cases 6 and 9 of 1977 and confirm the orders of the Sales Tax Appellate Tribunal remanding the cases, we do so for the considerations and upon the reasons set forth in this our judgment. In order to abridge the time which inevitably will be further taken in disposing of this already protracted litigation, we direct that instead of the cases going back to the assessing officer they shall stand remanded to the Appellate Assistant Commissioner, Sales Tax for taking up the appeals before him again, permitting the parties to lead evidence in the light of the considerations mentioned by us and disposing of those appeals in accordance with law. These appeals are disposed of accordingly. There is no order as to costs. N.V.K. Appeals dismissed.

The respondent in the appeal was a partnership firm dealing in timber and consisted of six partners. It filed returns of its taxable turnover for the assessment years 1968 69 and 1969 70 under the Kerala General Sales Tax Act, 1963 and the assessments were completed by the Sales Tax Officer. Subsequently, the Sales Tax Officer discovered that the respondent firm owned a Saw Mill and that the Saw Mill was run by another partnership firm which consisted of the same partners as the respondent firm. It was further noticed that during the relevant assessment years the Saw Mill firm had sold saw dust but had not been assessed to sales tax on that turnover. The Sales Tax Officer took the view that both she respondents timber firm and the Saw Mill firm consisted of identical partners, the two businesses carried on respectively, by them had to be treated as the business of a single partnership firm and, therefore, the turnover of the sale of saw dust had to be included in the earlier assessments made on the respondent Timber firm. The assessment orders were upheld by the Appellate Assistant Commissioner. The appeals filed by the respondent Timber firm before the Sales Tax Appellate Tribunal were allowed and the cases were remanded for fresh consideration. The Revenue applied to the High Court, but the revision petitions were dismissed. The High Court relying on the decision of this Court in State of 136 Punjab vs M/s. Jullundur Vegetables Syndicate, [1966] 17 STC 326 held that the Saw Mill partnership firm was a partnership firm distinct from the respondent Timber firm for the purposes of sales tax assessment and the turnover of the one could not be included in the turnover of the other. Dismissing the Appeals to this Court, ^ HELD: 1. The approach adopted by the High Court is not sound. The true solution has to be found not in the tax law but in the partnership law. The orders of the High Court dismissing the Tax Revision Cases are maintained. The orders of the Sales Tax Appellate Tribunal remanding the case are confirmed. Instead of the cases going back to the assessing officer they shall stand remanded to the Appellate Assistant Commissioner. [144 D E] State of Punjab vs M/s. Jullundur Vegetables Syndicate [1966] 17 S.T.C. 326, distinguished. In every case when the assessee professes that it is a partnership firm and claims to be taxed in that status, the first duty of the assessing officer is to determine whether it is, in law and in fact, a partnership firm. For determining whether there is a firm, the assessing officer will apply the partnership law, subject of course, to any specific provision in that regard in the tax law modifying the partnership law. If the tax law is silent, it is the partnership law only to which he will refer. Having decided the legal identity of the assessee, that it is a partnership firm, he will then turn to the tax law and apply its relevant provisions for assessing the partnership income. 142 D F] Commissioner of Income Tax, West Bengal vs A. W. Figgies and Company and Others, , Jesingbhai Ujamshi vs Commissioner of Income Tax, Bombay Mofussil, , Jeshingbhai Ujamshi vs Commissioner of Income Tax, Bombay, , R.N. Oswal Hosiery and Mahabir Woollen Mills vs Commissioner of Income Tax, Punjab, , Commissioner of Income Tax, A.P. III vs G. Parthasarathy Naidu & Sons. , , Income Tax Commissioner for City of London vs Gibbs, 10 I.T.R. Suppl. 121, referred to. In the instant case, there are two businesses, a business in timber and a business in saw dust. Both businesses were carried on by the same partners, one as a partnership firm called K. Kelukutty, and the other under the name M/s. K.K.K. Sons Saw Mills, said to be a separate partnership firm. On the material before the Court, it is not possible to say, whether there is one firm or two. That is a question which appropriately falls for examination by the authorities constituted under the Kerala General Sales Tax Act, 1963. 144 B C] 3. Having regard to the definitions of "dealer" and "person" in sections 2 (viii) and 2 (xvi A) of the Kerala General Sales Tax Act, 1963 a partnership firm must be regarded under that Act as an assessable entity separate and distinct from its individual partners. However, the Act contains 137 no provision which bears on the identity of a partnership firm. Therefore, recourse must be had for that purpose to the partnership law alone. Where it is claimed that there are not one but two partnership firms constituted by the same persons and carrying on different businesses, the assessing authority must test the claim in the light of the partnership law. It is only after that question has been determined namely, whether in law there is only one partnership firm or two partnership firms, that the next question arises: whether the turnover is assessable in the hands of the partnership firm as a taxable entity separate and distinct from the partner ? There is first a decision under the law of partnership, thereafter the second question arises, the question as to assessment under the tax law. [139 C D; 142 G H; 143 A] 4. Persons who have entered into partnership with one another are called individually "Partners", and collectively "a firm". The relationship between those persons constitutes the partnership, and is founded in the agreement between them, the partnership agreement. A partnership agreement is the source of a partnership, it also gives expression to the other ingredients defining the partnership, viz. specifying the business agreed to be carried on, the persons who will actually carry on the business, the shares in which the profits will be divided etc. Each partnership agreement may constitute a distinct and separate partnership, and therefore distinct and separate firms. The firm name is only a collective name for the individual partners but each partnership is a distinct relationship. The partners may be different and yet the nature of the business may be the same. An agreement between the partners to carry on a business and share its profits may be followed by a separate agreement between the same partners to carry on another business and share the profits therein. The intention may be to constitute two separate partnerships and therefore two distinct firms. Or to extend merely a partnership originally constituted to carry on one business to the carrying on of another business. It will all depend on the intention of the partners. The intention of the partners will have to be decided with reference to the terms of the agreement and all the surrounding circumstances, including evidence as to the interlacing or interlocking of management, finance and other incidents of the respective businesses. [144 C H]

ivil Appeal No. 685 Form the Judgment and order dated the 22nd November, 1963 of the Madras High Court in Appeal Nos 329 and 468 of 1959 F. section Nariman, A. Subba Rao, R. V. Pillai and P. Ramaswami, for the appellants. M. Natesan, P. section Srisailam and M. section Narasimhan, for L.rs. Of respondent No. 1 and respondents 2 and 3. FAZAL ALI, J. This is the plaintiffs ' appeal against the Judgment of the High Court of Madras dated November 22, 1963 by certificate. The appeal arises out of a partition suit filed by plaintiffs Nos. 1 to 4 for concellation of partition made between the father of the plaintiffs who is defendant No. 5 and defendant No. 1 the elder brother of defendant No. 5. It appears that as far back as May l, 1940 the two brothers, namely section M. Kuppuswami Chettiar defendant No. 1 and section M. Ranganatham Chettiar defendant No. S, who were originally members of Undivided Hindu Family partitioned their shares by virtue of a registered partition deed dated May 10, 1940. At the time when the partition was made plaintiffs Nos. 2 to 4 were minors and defendant No. 3 was also a minor. Under the partition deed both immovable and movable properties were divided between the two brothers voluntarily through the aid and assistance of D.W. 3 K. Narayanswami who was the family auditor of defendant No. 1 and was his friend and adviser. The partition deed with respect to the immovable properties is Ext. B l which appears at pp. 243 248 of the Paper Book. Under the partition deed two Lists were prepared itemising the properties which were to go to the two brothers. The list of properties is contained in Ext. B 115 of the Paper Book. As regards the movable properties it appears that the partition had taken place a month earlier i.e. On April 12, 1940 and 865 the partition deed is Ext. B 3, which consists of two Schedules Schedule A and Schedule B movables mentioned in Sch. A were allotted to the defendant No. 1 and those contained in Sch, were allotted to the share of defendant No. 5. The plaintiffs ' case was that the two brothers who were members or the Undivided Hindu Family along with the plaintiffs and other minor coparaceners betrayed the interests of the minors and the division made between them was both unjust and unfair and had the effect of depriving the minors of their legal shares in the properties the lion 's share having fallen to the lot of elder brother defendant No. 1 section M. Kuppuswami Chettiar hereinafter referred to as 'S.M.K. '. The plaintiffs? father who is defendant No. 5 being a person of weak intellect did not care to protect the interests of the minors and he accordingly accepted any share that was allotted to him without any objection. Defendant No. 5 section M. Ranganathan Chettiar would be hereinafter referred to as 'S.M.R. ' Plaintiffs also alleged that the partition was secured by practising fraud and undue influence and by suppressing large assets belonging to the family which were taken by defendant No. I by taking advantage of the weakness of the plaintiffs ' father. We might mention at the outset that Mr. F. section Nariman the learned counsel for the appellants did not at all press the plea of fraud and undue influence taken by the plaintiffs before the Trial Court and confined his arguments only to the allegation that the partition offered between the two brothers S.M.K. and S.M.R. was on the very face of it unjust and unfair and detrimental to the interests of the minors. The plaintiffs also laid claim to a sum of Rs. 10,000/ from the cash deposit which is said to have been given to the mother of defendants 1 & 5 but this claim was not pressed before us ill the course of the arguments. Other minor claims which were also made before the Trial Court were not pressed before us. The suit was resisted by defendant No. 1 S.M.K. and his major sons defendants 1 and 4 and a minor son defendant 3 who however attained majority during the pendency of the suit before the Trial Court. We might also mention here that plaintiffs Nos. 2 to 4 sons of S.M.R. were also minors at the time when the suit was filed but plaintiff No. 2 attained majority on October 3, 1958 just about a month and a half before the judgment in the suit was delivered by the Subordinate Jude, Coimbatore. The defendants stoutly denied the allegations made by the plaintiffs and averred that there was absolutely no disparity in the division of the properties, that no fraud ' or undue influence had been practised, that the properties were divided between defendants I and 5 with the explicit consent of defendant No. 5 and that the division of the properties would show that the partition was neither unjust nor unfair, both parties having taken equal shares in the immovable and movable properties. A number of other pleas was also raised by the defendants, but it is not necessary for us to deal with them in view of the points pressed before us by the learned counsel for the appellants. The Trial Court framed as many as 18 issues and after considering the oral and documentary evidence produced before it held that so far as the partition of the immovable properties was concerned which 866 was done by sparate document and was clearly severable from the partition of the movable properties, the partition was neither unjust nor unfair so as to entitle the minors to re open the partition after a long period. The learned Trial Judge, however, was of the opinion that so far as the partition of movable properties was concerned it was ex facie unjust and unfair and the plea of the plaintiffs for re opening the same must succeed. The Trial Court accordingly passed a preliminary decree for re partition of the movable properties and directed the appointment of a Commissioner to go into the valuation of the assets sought to be re partitioned. Both the plaintiffs and the defendants filed separate appeals before the High Court of Madras. The plaintiffs filed an appeal before the high Court against that part of the decree which dismissed their suit for re opening the partition of the immovable properties., while the defendants filed an appeal against the decree of the Trial Court directing reopening of the partition of movable properties and thus decreeing the plaintiffs ' suit to that extent. The High Court decided both the appeals by one common Judgment dated November 22, 1963 and by upholding the findings of the learned Subordinate Judge, Coimbator, the High Court made a slight variation in the decree by setting aside the directions of the Subordinate Judge for the appointment of a Commissioner and by quantifying the value of the disparity in the share of the plaintiffs the High Court passed a decree to the extent of 2/5th share of Rs. 17,700/. The plaintiffs alone have filed the present appeal against the judgment and decree of the High Court after obtaining a certificate from that Court. Before going into the merits of the case, it may be necessary to mention a few unique aspects of the present case. It would appear from the findings arrived at by the two courts that defendant No. 1 was undoubtedly an honest man and defendant No. S the younger brother appears to be an idealist a person to whom the value and prestige of the family was a consideration much above mundane monetary matters. Secondly, the partition between the two brothers was voluntarily made about 35 years ago and the father of the plaintiffs had most willingly and with good grace accepted the partition and the shares that were allotted to him. Thirdly, since a very long time had elapsed since the partition took place, it would be well nigh impossible for any court to determine the value of the assets, some of which might have disappeared, others may be shrouded in mystery, and for determining the rest the necessary data may not be available. It appears to us to be too late in the day in 1975 to appoint a Commissioner in order to go into a situation which existed in 1940 and the to pass a decree which may result in a fresh spate of litigation for another decade. It was possibly this consideration which weighed with the High Court in quantifying the amount of the share of the plaintiffs which they had suffered under the division of the assets. Finally, the plaintiff 's father defendant No. 5 was a shrewd business and after his elder brother had suffered from some illness, he was carrying on the business of the family a few years in before the partition. Both the parties were assisted by an Auditor Mr. K. Narayanswami in effecting the partition by metes and bounds. In these circumstances, therefore, there could be no question of practising 867 any fraud or undue influence as alleged by the plaintiffs and if the partition was unjust or unfair to the minors it was merely because defendant No. 5 made an error of Judgment with respect to some properties. Lastly, we have not been able to find any material to justify the conclusion of the High Court that the difference in the allotment of the shares to the plaintiffs would be 2/5th of Rs. 17,700/ .We shall deal with this point a little later and show that the difference is much more. Mr. Nariman learned counsel for the appellants submitted two points before us. In the first place, he assailed the partition of the immovable properties on the ground that no valuation of the properties was fixed according to the market value and that the plaintiffs were not given any share in the agricultural properties. As regards the movable properties it was argued that the division was wholly unjust and unfair because the lion 's share was taken by defendant No. 1 and the choice made by defendant No. S the father of the plaintiffs was neither wise nor prudent and was extremely detrimental to the interests of the plaintiffs. As an instance of the unfairness of the partition Mr. Nariman pointed out that a comparison of Schedules A and of Ext. B 3 would show that defendant No. 1 was allotted movable properties worth Rs. 1,10,274 2 6, whereas defendant No. 5 was given properties worth Rs. 90,142 4 0 there being a difference of about Rs, 20,000/odd. He also pointed out that shares of Lakshmi Textile Mills were allotted to defendant No. 1 which were extremely valuable and gave very rich dividends, where as defendant No. S was allotted the shares of Lakshmi Sugar Mills which was one of the sick Mills running at a loss whose dividends were insignificant. We shall consider this contention raised by counsel for the appellants a little later. The learned counsel appearing for the respondents Mr. Natesan, however, submitted that the present suit is frivolous and has been filed only with a view to harass the defendants and to re open a partition which was both just and equitable and which was entered by both the brothers with their eyes open and with the aid of their financial expert. Learned counsel for the respondents, further submitted that there is no reliable evidence to show that there was any cash deposits of Rs. 65,000 as mentioned in Sch. B, and if there was one it would have been divided on the spot instead of being postponed to a future date. Similarly it was submitted that so far as the shares are concerned they were chosen by defendant No. S himself and their valuation was equal. As regards the immovable properties we find ourselves in complete agreement with the arguments of the learned counsel for the respondents that the partition of these properties was fair and just and there is no material on the record to show that the partition worked in any way injustice or was detrimental in any way to the interests of the minors; In this collection we might try to illustrate our point from the findings of the Trial Court regarding the valuation of the immovable properties divided between the two; brothers. The partition of immovable properties Ext. B 1 which appears at pp. 243 to 248 of the Paper Book consists of to Schedules A & B. The Trial Court has, after careful consideration of the evidence, very scientifically itemised the properties 868 allotted to each of the brothers and the value of those properties. For A instance, item 1 of Sch. allotted to defendant No. 1 is a tank fed nanja land is Kurichi village measuring 3.80 acres and has been valued at Rs. 4,000/ . Item 2 is a similar land in village Kurichi which is self cultivated and has been valued at Rs. 7000/ . Thus [he total value of items 1 and 2 of Sch. A comes to Rs. 11,000/ . As against this defendant No. 5 was allotted item 2 of Sch. which on the basis of capitalised value at the rate of Rs. 601/ per month has been fixed at Rs. 14,000/ . Items 1 & 2 of Sch. A are the only agricultural properties possessed by the family and the Trial Court has rightly pointed out that whereas defendant No. 1 took the agricultural properties, defendant No. 5 got urban properties not only of the same value but of a higher value. Similarly item No. 3 of Sch. A allotted to defendant No. 1 is a house in the Big Bazaar Street and has been valued at Rs. 16,50/ . As against this the family house in the Oppanakkara Street has been allotted to defendant No. 5 whose value is much more than item No. 3 of Sch. The capitalised value of the family house in the oppanakkara Street on the basis of rental of Rs. 700/ per month would come to near about Rs. 96,000 . Item 4 of Sch. A is a house and site in Ramanathapuram and has been valued at Rs. 7,000/ because it was purchased in 1938 for a sum of Rs. 5,650/ vide Ext. B 139 dated March 6, 1938. The learned Subordinate Judge has roughly put the valuation of the said house and site at Rs. 7,000/ in 194(). As against this item 3 allotted to defendant No. 5 is a shop building in the Big Bazaar Street carrying a rental of Rs. 300/ per month at the time of the partition whose capitalised value would be Rs. 7,000/ . Item No. 5 of Sch. A which was allotted to defendant No. 1 has been valued at Rs. 2,300/ representing the purchase price of the property mentioned in Exts. B 140 to B 142. As against this item 4 of Sch. which has been allotted to defendant No. 5 was purchased for a sum of Rs. 2,100/ . It would thus appear that the division of immovable properties is just, fair and equal. It is true that the properties were not actually valued according to the market rate and that a notional valuation had been given in the partition deed. But in view of the detailed examination by the two Courts of the fact regarding capitalised value of the properties allotted to the two brothers it cannot be said that the partition of immovable properties was either unfair or unjust or in any way detrimental to the interests of the minors. After considering the evidence. , the Trial Court found as follows: "It is thus found from the available evidence that there was no unfairness or inequality in the partition of the immovable properties effected under Exhibit B 1 and that no ground exists for reopening that partition. " The High Court upheld the findings of the Trial Court in these words: "Thus in regard to the division of the immovable proper ties it is not possible for us to say that there was unfairness or fraud or irregularity in the allotment of the properties between the brothers. The scheme of the division of the immovable properties seems to us to be fair and we cannot say that the plaintiffs ' father (5th defendant) acted against the interests of his sons 869 or that the 1st defendant took any advantage of his position as the eldest member of the family and allotted to himself the best among the properties available for division. We there fore confirm the finding of the learned Subordinate Judge that the partition of the immovable properties effected under Exhibit B 1 is binding on the plaintiffs and that the plaintiffs are not entitled to reopen the partition. " It is a well settled practice of this Court not to interfere with a con current finding of fact given by the two Courts below in the absence of any extra ordinary or special reasons. In the instant case we hold that the finding of the l High Court as well as of the Trial Count based on a full and complete consideration of the evidence both oral and documentary and an elaborate and meticulous discussion of all the surrounding circumstances. We, therefore do not feel inclined to interfere with this concurrent finding of fact which is hereby affirmed. We might state that the objection regarding the properties not having been properly valued falls to the ground when we find that instead of notional value mentioned in the partition deed which is Rs. 12,517 13 0 for defendant No. l and Rs. 12,000/ for defendant No. S the capitalised value of the items allotted to the two brothers either on the basis of their purchase price or on the basis of the rent fetched by them is almost equal. The first contention regarding the partition of immovable properties raised by the learned counsel for the appellants being unfair and unjust must therefore be overruled. We now come to the question of the division of movable proper ties. In this connection our attention was drawn by Mr. Nariman to Ext. E 3 which is to be read along with the pencil note of K. Narayana swami D.W. 3, who was the auditor of Defendant No. 1 himself. Exhibit B 3 is the partition deed of movable properties consisting of shares, deposits, promotes, mortgage deeds and cash, particulars of which are given in Schs. A & B. Movable properties mentioned in Sch. A were allotted to defendant No. 1 and those mentioned in Sch. B, were allotted to defendant No. 5 father of the plaintiffs. It will appear from a plain examination of the two schedules that whereas defendant No. 1 admittedly got properties worth Rs. 1,10,274 2 6 defendant No. 5 got properties only worth Rs. 90,142 4 0 there being a clear disparity of Rs. 10,000/ because the share of each of the two defendants would be Rs. 1,00,2081 . On the defendant No. 1 's own documents, therefore? it is clear that a loss of Rs. 10,000/ was caused to defendant No. 5 in the year 1940 and the share of the plaintiffs in this loss would be 2/5th i.e. about Rs. 4,000/ which would swell into a large amount if we add interest for all these 35 years. That apart the learned counsel for the appellants has submitted that the document Ext. B 3 deliberately omits to mention a sum of Rs. 65,000/ which was a cash deposit alleged to have been kept in the safe and out of which Rs. 10,000/ were agreed to be given to the mother of the two brothers and the rest, viz. Rs. 55,000/ were to b divided between the two brothers, each defendant getting Rs. 27,500/ . This is 870 undoubtedly proved by Ext. A 2 where these figures are clearly mentioned. Entry No. l of Ext. A 2 runs thus: Total Settlement section M. K. section M. R. (1) (2) (3) (4) (5) (6) Thanichontham 65,000 55,000 27,500 27,500 Belonging exclusively *Scored out in pencil. This cash amount of Rs. 65,000/ is denied by defendant No. 1 and it is said that this amount might have been hidden money which never came to the share of the parties. D.W. 3 K. Narayanaswami has positively admitted in his evidence that he had made this entry in his on hand writing but he scored out this entry as the amount was not available. Both the Suborclinate Judge, Coimbatore and the High Court have accepted the explanation given by D.W. 3 Narayanaswami although the explanation appears to us to be prima facie false and unconvincing. Even assuming that this entry was made due to some mistake and had to be scored out, we cannot believe that a person of the expert knowledge and status of D.W. 3 Narayanaswami Iyer the Auditor would forget to make a corresponding correction in the total amount which is given below the statement of account signed by him. If the amount of Rs. 65,000/ was scored out, then the total would be Rs. 200116/ in Ext. A 2, but the total shown in pencil in Ext. A 2 is Rs 2,65,116/ which completely demolishes the case of defendant No 1 and the explanation given by D.W. 3 that the entry was made due to some mistake. The Courts below have however, relied on a number of circumstances which are purely of a speculative nature, in order to hold that the plaintiffs have not been able to prove the existence of the cash amount of Rs.65,000/ . One of the circumstances was that according to the evidence of defendant No. 5 the amount of Rs. 65,000/ was taken out from the safe and counted in the presence of defendants 1 and 5 and yet defendant No. 5 did not care to divide it at that time into two equal parts, nor did he insist on the same. Defendant No. S has, however, given an explanation that as his elder brother wanted that this money should be divided later he did not want to join issue on the subject and trusted his elder brother. A perusal of the evidence of defendant No. 5 clearly shows that he is an extremely emotional sort of a person who believes in the respect of the family above all consideration. It is. , therefore, not unlikely that defendant No. 5 quietly accepted the advice of his elder brother to divide the amount later on. It was however argued by the learned counsel for the respondents that defendant No. 5 was a shrewd business man having managed the family affairs for quite some time and if such a huge amount was concealed from him by his elder brother he would have undoubtely raised objection at any time before the suit. This conduct of defendant No. 5 cannot, however, put the plaintiffs out of court. He had decided to abide by the advice of his elder brother and if he thought that his elder brother did not want to divide the amount of Rs. 65,000/ he kept quiet which is quite in consonance with the 871 character of this man as revealed in his evidence and the circumstances of the case. Assuming however that defendant No. 5 did not take any objection, as the amount was very huge the silence of defendant No. 5 or even his acquiescence in allowing his elder brother to swallow this amount was not a prudent act and has caused serious detriment to the interests of the minors which he had to protect, because the minors at that time were members of the Hindu Undivided Family. In view of these circumstances, therefore, we are satisfied that the plaintiffs ' case regarding the deliberate suppression of the cash amount of Rs. 65,000/ has been proved and if this amount would have been available to defendant No. 5, then the plaintiffs would have got 2/5th share of Rs. 55,000/ , (Rs. 10,000/ reserved for the mother) viz. Rs. 27,500/ , as far back as 1940. The argument of Mr. Nariman on this point is, therefore, well founded and must prevail. The only other point that was stressed before us by the learned counsel for the appellants was that the Trial Court was right in ordering the appointment of a Commissioner for going into the assets of the movable properties, particularly the question of the shares of the Lakshmi Mills. We are, however, unable to agree with this argument. Mr. Natesan learned counsel for the respondents has drawn our attention to some important documents to show that the shares were equaly divided between defendants Nos. 1 and 5 and were actually chosen by defendant No. 5 with his eyes open. Exhibit B 153 which is a share market report dated April 5, 1940 shows that the paid up value of each share of Lakshmi Sugar Mills was Rs. 50 but the current price of the share at that time was Rs. 41/8/ i.e. it was Rs. 8/8/ below the paid up value and the dividend paid on the share was only Rs. 9/ yearly. It was, therefore, suggested by counsel for the respondents that defendant No. 5 was given the choice to take the shares of the Lakshmi Mills or the Lakshmi Sugar Mills and in view of the low market rate of the Lakshmi chose to take the shares of the Lakshmi Sugar Mills to the extent of Rs. 10,000/. In lieu of the shares of other Mills defendant No. 5 took a cash amount of Rs. 13,000/ as would appear from Ext. It is true that the shares of Lakshmi Textile Mills went up enormously a few years later in view of the international war situation in the continent but defendant No. 5 could not have foreseen such a contingency and if he had made the choice which he thought would be beneficial to the interests of the minors his conduct would have been at best an error of judgment which would not be sufficient to reopen the choice made by him. Mr Nariman, however, strenuously relied on the evidence of D.W. 3 Narayanaswami Auditor which was to the effect that he expressed great surprise when defendant No. 5 chose the shares of Lakshmi Sugar Mills and in his opinion that was his foolish act. This is, however, a matter of opinion but the fact remains that the market report of the Lakshmi Mills was not encouraging and therefore there was some justification for defendant No. 5 for not opting for the shares of the Lakshmi Mills. In these circumstances we hold that so far as the shares of the various Mills were concerned there was no unjust or unequal distribution between the parties. This item of movable properties, therefore, was correctly divided between the parties. 872 Learned counsel for the respondents submitted that taking a broad view of the whole case the Court should hold that it was not a case of unfair or unjust partition, because both defendant Nos. 1 and 5 were persons who had shrewd business experience and had voluntarily accepted the partition of the properties which was by and large equal. The learned counsel relied on the decision of this Court in Devarajan and Ors. vs Janaki Ammal and Ors(1) where this Court observed as follows: "Generally speaking, a partition once effected is final and cannot be reopened on the ground of mere inequality of shares, though it can be reopened in case of fraud or mistake or subsequent recovery of family property: [see Moro Vishvanath vs Ganesh Vithal Further an allotment bona fide made in the course of a partition by common consent of the coparceners is not open to attack when the shares are not absolutely equal, or are not strictly in accordance with those settled by law. It is true that minors are permitted in law to reopen a partition on proof that the partition has been unfair and unjust to them. Even so, so long as there is no fraud, unfair dealing or over reaching by one member as against another, Hindu law requries that a bona fide partition made on the basis of the common consent of coparceners must be respected and is irrevocable:" It was submitted that the evidence and circumstances of the case clearly show that there was no inequality of shares and the plea of fraud or mistake has not been accepted by the courts and that on the whole the partition was bond fide. It is true that if this was the position the ratio of the decision in Devarajan 's case (supra) would undoubtedly apply to this case. But this Court had taken care to point out in these very observations which are underlined by us that this rule did not apply to the minors who are undoubtedly permitted in law to reopen the partition once it is proved that the partition was unfair or unjust to them. In view of the concurrent finding of fact of the two Courts below that the partition of movable properties, excepting those with respect to the shares, was unfair and unjust, even according to the decision mentioned above the partition with respect to the movable properties has to be reopened. Moreover in an earlier decision of this Court in Bishundeo Narain and Anr. vs Seogeni Rai and Jagernath it was observed: "It is well established that a minor can sue for partition and obtain a decree if his next friend can show that that is for the minor 's benefit. It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partition between members of a joint family when one of the members is a minor. In the case of such lastly mentioned 873 partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Court will certainly set it aside. " In our opinion the present case falls within the ratio laid down by the decision cited above. Apart from that there are numerous authorities which have sonsistently held that where a partition is unjust and unfair and detrimental to the interests of the minors the partition would be reopened irrespective of the question of bona fides. In Lal Bahadur Singh vs Sispal Singh and Ors.(1) it was observed that even though the ground of fraud and mistake failed, the partition which affected the interests of the minor could be reopened. Similarly in Chanvira 'Pa ' vs Da 'Na ' 'Va ' & Ors.(2) a Division Bench of the Bombay High Court held that a partition will be binding on the minors only if it was just and legal, but if it was made and finalised there being no means of testing the validity of the assets the partition was not final. The same view was taken in Maruti vs Rama(3) Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge: (1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is bindig on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors. (3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. (4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times. If it is found that only one of these transactions is unjust and 874 unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair. The facts of the present case, in our opinion, fall squarely within propositions Nos. (3) and (4) indicated above. In the instant case we find from a perusal of the two schedules 'A ' and 'B ' of Ext. B 3 that there has been ex facie a disparity of about Rs. 10,000/ to which must be added Rs. 27,500/ which we have discussed above. Thus the total disparity comes to Rs. 37,500/ and the share of the minor plaintiffs would be 2/5th which comes to Rs. 15,000/ . This amount of Rs. 15,000/ should have been available to the minor plaintiffs as far back as 1940 when the partition was made and they have been deprived of that amount ever since. We find that in the peculiar facts and circumstances of the case as already stated it will not be in the interests of the minors nor conducive in the interests of justice to order the appointment of a Commissioner for reopening the entire partition when the shares of the minor plaintiffs are easily ascertainable in terms of money and can be quantified. In these circumstances we think the best course is to determine the money value of the share of the plaintiffs and to pass a decree for the same which will protect the minors from protracted litigation which might follow the passing of a preliminary decree. This was the approach made by the High Court but we do not agree with the amount quantified by it. If we add interest at the rate of 6% per annum as prayed for in the plaint on the amount of Rs. 15,000/ ,the interest calculated at this rate for 35 years from 1940 to 1975 would come to Rs. 31500/ . Thus the total amount payable to the plaintiffs comes to Rs. 46,500/ . We, therefore, allow the appeal in part and modify the decree of the High Court to the extent that there will be a decree for a sum of Rs. 46,500/ in favour of the plaintiffs/appellants which represents their share of the movable properties of which they were deprived of. The plaintiffs would be entitled to future interest at the rate of 6% per annum till payment. In the circumstances of the case, there will be no order as to costs. This course, in our opinion, safeguards the interests of the minors to give them their just due and to protect them from a protracted and fruitless litigation. V.P.S. Appeal partly allowed.

The 4 appellants were tried along with 14 others for the offence of rioting in the course of which 2 murders were committed at 6 30 a.m on 7 1967. The prosecution revealed a long standing enmity between the tyo groups; one to which the appellants belonged and the other to which the deceased belonged. The defence case was that people belonging to the group of the deceased killed the deceased and that thereafter they attacked the 3 injured appellants. At the trial however, the defence witnesses stated that the 3 witnesses who were injured(l a(tempted to save the deceased and were therefore injured. The prosecution evidence suffered from some quite obvious infirmitied. Each of the 4 injured eye witnesses while naming each of the IX accused persons as participants in the occurrence and specifying their weapons without any contradiction had failed to assign any particular part of any of them. Each injured eye witness said that all 18 accused persons were assaulting the injured. I his was hardly consistent with the medical evidence. The Trial Court acquitted 11 accused giving them the benefit of doubt and convicted 7 including the 4 appellants under section 302 read with section 149. The High Court gave the benefit of doubt to all the accused except the 4 appellants. The High Court came to the conclusion that the 4 appellants had taken part in The attack in view of the admission of the 4 accused about their participating in the occurrence corroborated by the injuries on the bodies of 3 of them. On appeal by Special leave it was contended by the appellants that since 14 out of 18 accused persons were actually acquitted the Court must presume that total number of assailants was less than 5 and that they. therefore cannot be convicted under section t 49 ^ HELD: 1. It is true that the acquittal of an accused person does raise in the eye of law, a presumption that he is innocent even if he was actually guilty. but it is only the acquitted accused person and not the convicted accused person who can as a rule get the benefit of such a presumption. The effect of findings on questions of fact depends upon the nature of those findings 1 only five known persons are alleged to have participated in an attack; and the counts find that 2 of them were falsely implicated it would be quite natural and logical to infer or presume that the participants were less than 5 in number. On the other. hand if the court holds that the assailant were actually 5 in number but there could be a doubt as to the identity of 2 of the alleged assailants and therefore acquits 2 of them the others will not get the benefit of douht. so long as there is a firm finding based on good evidence and sound reasoning that the participants were 5 or more in number. Such a ease is one of doubt only as to identity of some participants and not as to total number of participants. [594A C] 2. It is true that there are some unfirmities in the prosecution evidence However the impression of rustic witnesses sought to he conveyed through their statements cannot be interpreted as though they were made in carefully drawn up documents calling for a literal interpretation. [592 H] 588 3. The number and location of injuries on both sides also indicate an attack by a group of persons which must have surrounded the party of the deceased persons travelling in the Buggi. Even is 2 persons are engaged in stopping the Buggi and there are 2 on each side of the Buggi then the number would be 6. Again, even if one person Is assumed to be the assailant of each of the victims in a simultaneous attack upon them the number of such assailants alone would come to at least 6. The deceased had injuries with sharp edged weapons and lathis. It is therefore clear that each one was attacked by more than one person. These facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than 5. [593 C E] 4. Even if the number of assailants could have been less than 5 (which can the facts stated was really not possible) we think that the fact that the attacking party was clearly shown to have waited for the Buggi to reach near the field of Daryao in the early hours shows pre planning. Some of the assailants had sharp edged weapons. They were obviously lying in wait for the Buggi to arrive. A more convincing evidence of a pre concert was not necessary. Therefor if necessary. we would not have hesitated to apply section 31 of I.P.C. also to this case. The principle of vicarious liability does not depend upon the necessity to convict the required number of persons but it depends upon proof of facts beyond reasonable doubt which makes such a principle applicable. [594 F H 595 A] Yeshwant & Anr. vs State of Maharashtra [1973] 1 S.C.R. 291 It 302 303 at and Sukh Ram vs State of U.P. ; distinguished. 5.The age of appellant Om Pal at the time of trial was IS years. Section 29 of the U.P. Children Act 1951 was applicable to the case. This question was not raised either before the Trial Court or before the High Court. Although Om Pal accused was said to be armed with a lathi no specific part was assigned to him by the prosecution witnesses He must have been misled by the bad example of his elders. No previous participation in such a case and no previous conviction was shown against him. The appropriate ac(ion under section 29 of the Children Act could have been taken in his case is the question had been raised in time. The Court recommended the remission of the remaining period of Om Pal to the authorities concerned. [548D H. 599A C]

N: Criminal Appeal No. 615 of 1981. 356 Appeal by Special leave from the Judgment and Order dated the 6th May, 1981 of the Punjab & Haryana High Court in Criminal Revision No. 562 of 1979. Uma Datta, T.C. Sharma and A.D. Malhotra for the Appellant. R.N. Poddar for the Respondent. This appeal by special leave is directed against the judgment of the Punjab and Haryana High Court, dismissing Criminal Revision Case No. 562 of 1979 which was filed by the appellant against the judgment of the Additional Sessions Judge, Gurgaon who affirmed the judgment of the Chief Judicial Magistrate, Gurgaon sentencing the appellant to rigorous imprisonment for six months and a fine of Rs. 1,000 under section 16 (1) (c) of the as amended from time to time. We dismissed the appeal and confirmed the conviction and sentence on 5.4. 1983 for reasons to be giving later. We hereby give the reasons. The charge against the appellant was that when the Food Inspector, Gurgaon, Sant Lal Anand (P.W.2) went to the appellant 's grocery shop at Farrukh Nagar at about 4 p.m. on 27.8.1976 he prevented P.W.2 from taking a sample of dhania from the stock kept for sale by slipping away from the shop under some pretext. The case of prosecution was that when the Food Inspector (P.W.2) visited the appellant 's grocery shop accompanied by Dr. Aggarwal, Medical officer Incharge, Primary Health Centre, Farrukh Nagar (P.W.1) and Dr. Yadav, Chief Medical Officer (Health), Gurgaon (P.W.3). The appellant was found to have stored 6 kgs. of dhania for sale in his shop. P.W. 2 disclosed his identity to the appellant and demanded a sample of the dhania for analysis and sought to serve the notice Ex P/B and tendered Rs. 4.80 as the price of 600 gms. of dhania asked for. The appellant went away from the shop under the pretext of passing urine without accepting the notice exhibit P/B or the sum of Rs. 4.80 tendered by P.W.2 and he did not come back to the shop though P.Ws. 1 to 3 waited there for about 11/2 hours. There after P.W.2 took a sample from the shop in the absence of the appellant and prepared the spot memo exhibit P/A in the presence of P.Ws. 1 and 3 and subsequently filed the complaint exhibit P/C in the Court of the Chief Judicial Magistrate, Gurgaon against the appellant for contravention of s.16 (1) (c) of the Prevention of Food Adulteration as amended, by preventing him from taking a sample of the article of food. After the examination of P.Ws. 1 to 3 a charge was framed against the appellant for the offence punishable under section 16 (1) (c) of the Act and he pleaded not guilty to the charge and claimed to be tried. The prosecution relied on the evidence of P.Ws. 1 to 3 who deposed to the facts mentioned above. The appellant stated when examined under section 313 Criminal Procedure Code, that he is running a cloth business at Delhi and had casually visited his father 's grocery shop at Farrukh Nagar on 27.8.1976 when P.Ws. 1 to 3 came there and he went to call his father Uggar Sain (D.W. 1) and came back to the shop alongwith D.W. 1 after about 6 or 7 minutes and that P.Ws. 1 to 3 had gone from the shop by that time. The appellant examined his father as D.W. 1 in his defence. The learned Chief Judicial Magistrate, Gurgaon who tried the case rejected the evidence of D.W. 1 as being interested and unreliable and accepted the evidence of P.Ws. 1 to 3 of whom P.W. 1, however, could not identity the appellant as the person who went away from the shop without accepting the notice and cash tendered by P.W 2 and found following judgment of the Punjab and Haryana High Court in Krisha Lal & Ors. vs State of Haryana(1) that the appellant was guilty of having prevented the Food Inspector (P.W. 2) from taking a sample of the article of food by going away from the shop without accepting the notice and cash tendered by P.W. 2. Accordingly, the learned Magistrate convicted the appellant and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000 under section 16 (1) (c) of the Act. The conviction and sentence were confirmed on appeal by the learned Additional Sessions Judge, Gurgaon who found that the appellant was more than 18 years of age at the time of commission of the offence and was therefore not entitled to the benefit of section 360 Cr. P.C. in view of section 20 AA of the Act according to which section 360 Cr. P.C. is not applicable to the case of the accused who was more than 18 years of age at the time of commission of the offence. The Criminal Revision Case filed by the appellant in the Punjab and Haryana High Court against the judgment of the learned Additional Sessions Judge, Gurgaon was dismissed by S.S. Dewan, J. who confirmed the conviction and sentence. Hence, this appeal by special leave. 358 The prevention of Food Inspector from taking a sample of an article of food as authorised by the Act is an offence punishable under section 16 (1) (c) with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than on thousand rupees. Mr. Uma Datta, appellant 's learned counsel invited our attention to paragraph 10 of the judgment of the learned Additional Sessions Judge, Gurgaon where it has been found that the Food Inspector (P.W. 2) had in fact taken a sample in the presence of P.Ws. 1 and 3. But this must be noted that this was done after the appellant went away from the shop under the pretext of passing urine and did not return for about 1 1/2 hours, during which period P.Ws. 1 to 3 waited for him at the shop. The finding of fact that the appellant went away from the shop under the pretext of passing urine when the Food Inspector (P.W. 2) tendered the notice exhibit P/B and the cash of Rs. 4.80 for purchasing a sample of dhania and did not return for about 1 1/2 hours, during which period P.Ws. 1 to 3 waited at the shop for him cannot be canvassed in this appeal. The learned counsel for the appellant invited our attention to two decisions and submitted that the mere disappearance of the appellant from the shop after the sample was asked for by the Food Inspector without anything more did not amount to prevention of the Food Inspector from taking the sample. The first of those decisions is of C.P. Sen, J of the Madhya Pradesh High Court in Jagannath vs State of Madhya Pradesh(1) where the facts found were that when the accused was taking 5 litres of milk in his kothi for sale the Food Inspector stopped him as he suspected the milk to be adulterated and asked him to accompany him to the Municipal office for taking a sample and that on reaching the Municipal office the accused bolted away leaving the kothi of milk, and the learned Judge held that the accused did not prevent the Food Inspector from taking a sample simply because he bolted away from the spot and that the Food Inspector was free to take the sample from the kothi of milk left behind by the accused even in the absence of the accused. In holding so the learned Judge differed from the view taken in Municipal Board, Sambhal vs Jhamman Lal(2) where it has been held that the disappearance of the seller from the shop amounts to prevention of the Food Inspector from taking the sample and that over act on the part of the seller is not necessary to constitute an offence under section 16 (1) (b) of the Act as it then stood which corresponds to the present section 16 (1) (c). The second decision 359 relied upon by the learned counsel of the appellant is of the Full Bench of the Rajasthan High Court in Narain Prasad vs State of Rajasthan & Anr.(1) where Shrimal, J., speaking for the bench has observed: "Thus the consensus of the opinion of almost all the High Court barring a few on the point is that section 16 (1) (b) of the Act makes a person liable to punishment, who prevents the Food Inspector from taking the sample as authorised by the Act. Section 10 (1) (a) (i) gives the Inspector power to take sample of article of food from any person selling such article. Sub sec. (2) of Sec. 10 gives the Food Inspector power to enter any place where the article of food is exposed for sale. Sub sec. (4) of Sec. 10 provides for seizure of adulterated food. The Inspector has also power to break open the door or any package in which the article of food is kept. For all the purposes the Inspector has power to exercise the power of search and seizure of a police officer under the Crl. The Food Inspector is also authorised to exercise powers of a police officer under Section 57 of the Code i.e. to arrest an offender, if he refuses to tell his name and residence. Section 11 prescribes the procedure to be followed by the Food Inspector while taking sample. Therefore, the Food Inspector can follow one of the two modes; one where the vendor co operates, the other when he refuses to co operate. To prevent the Food Inspector from taking a sample, the accused must do something which makes it impossible for him to take the sample. " The learned Judges of the Full Bench appear to have held that some overt act on the part of the seller apart from mere refusal to sell the article of food to the Food Inspector is necessary to constitute an offence of prevention of the Food Inspector from taking the sample. On the other hand, Mr. R. N. Poddar, learned counsel appearing for the State of Haryana, invited our attention to two decisions and submitted that the conduct of the appellant in slipping 360 away from the shop when the Food Inspector disclosed his identity and asked for sale of a sample of dhania from his grocery shop, amounts to prevention of the Food Inspector from taking the sample as per the provisions of the Act. The first of those decisions is to H.C.P. Tripathi, J. in Mamchand vs State(1) where the learned Judge has observed: "The sample had to be taken in accordance with the provisions of the Act and Rules thereunder. As soon as the owner of the milk disappeared from the scene the Food Inspector could not have obtained the sample as required under law. By running away from the place the applicant did prevent the Food Inspector from taking sample as required under the Act though not from taking away the entire quantity of the milk which the Food Inspector could do in exercise of his powers under Section 10 (iv) of the Act. In the case of Municipal Board, Sambhal vs Jhamman Lal (AIR 1961 AII. 103), it was held by a Division Bench of this Court that if a person selling article leaves the shop he prevents Food Inspector from taking sample as authorised by the Act. In the instant case, the applicant left the milk, which he was exposing for sale, and thereby prevented the Food Inspector from taking its sample. " A learned single Judge of the Madhya Pradesh High Court has taken a similar view in Habib Khan vs State of Madhya Pradesh.(2) In that case a milk vendor on being accosted by the Food Inspector kept his milk can in the canteen and bolted away, and it has been held that the milk vendor prevented the Food Inspector from taking the sample and thus committed an offence under section 16 (1) (b) of the Act as it stood than. The learned Judge has observed in his judgment thus: "The power of taking the sample has been conferred on the Food Inspector so that he may prosecute the person found selling adulterated food stuff or found in possession thereof for the purposes of sale. Now, if a person bolts away and thus his identity remains undis 361 closed, the whole purpose of the exercise of the power conferred under section 10 on the Food Inspector is defeated. In such a case, it will have to be held that in bolting away the person prevented the effective exercise of the power by the Food Inspector. If this is so, it is difficult to see how the same action on the part of a known person would make any difference. If he bolts away, an additional burden will be cast on the Inspector if he decides to prosecute him for selling or keeping for sale adulterated food articles, to prove that the person who bolted away was the accused and that the article left by him was in his possession. Witnesses may not be available at the nick of the time and here, again, the result would be the same. This is why it is necessary to interpret the two expressions "prevents" and "in exercise of the powers under the Act" in the manner interpreted by the Allahabad High Court in Municipal Board, Sambhal vs Jhamman Lal (supra)", We are of the opinion that the view of the Allahabad High Court expressed in Municipal Board, Sambhal vs Jhaman Lal (supra) reiterated in Mamchand vs State referred to above and taken by the learned single Judge of Madhya Pradesh High Court in Habib Khan vs State of Madhya Pradesh (supra) and the Punjab and Haryana High Court in the judgment under appeal in this case is the correct view and that appellant in this case who bolted away from the shop under the pretext of passing urine when the Food Inspector (P.W. 2) went to his shop alongwith P.Ws. 1 and 3 and disclosed his identity and tendered the notice exhibit P/B and cash of Rs. 4.80 and asked for a sample of the dhania kept for sale in his grocery shop without accepting the notice and the cash prevented the Food Inspector (P.W. 2) from taking a sample in accordance with the provisions of the Act and the Rules made thereunder and that no other overt act is necessary on the facts of this case to constitute the offence for which the appellant has been convicted and sentenced and that he has been rightly convicted and sentenced by the Court below under section 16 (1) (c) of the Act. We accordingly, dismiss the appeal and confirm the conviction of the appellant and the sentence awarded to him. P.B.R. Appeal dismissed.

The disputes between the appellants and their workmen were referred to the Industrial Tribunal for adjudication by the appropriate Government, under the provisions of the . It was contended for the appellants that the reference to the Tribunal was bad because (1) the Act was ultra vires the Constitution inasmuch as its provisions are ,Violative of the fundamental rights enshrined in article 14 and article 19 (1) (f) and (g) of the Constitution, (2) the Industrial Tribunals are legislating in the guise of adjudication,, and this amounts to delegation of the powers of legislation which it was not competent to the Central Legislature to do so, and (3) the definition of the term " industry '. comprises industrial as well as non industrial concerns and, therefore, the Act was not within the legislative competence of the Central Legislature under Entry 29 of List III of the Seventh Schedule to the Government of India Act, 1935. Held: (1) The , is not unconstitutional and the provisions of the Act do not contravene articles 14 and 19 (1) (f) and (g) of the Constitution. The basic idea underlying all the provisions of the Act is the settlement of industrial disputes and the promotion of industrial peace so that production may not be interrupted and the community in general may be benefited, and the appropriate Government has, therefore, a discretion in the matter of making the reference to one or other of the Authorities under the Act and also in the matter of carrying out the, various provisions of the Act, including the curtailment or extension of the period 'of 136 preperation of the award of the Tribunal, having regard to the. exigencies of the situation and the objects to be achieved. (2) Industrial Tribunals while settling particular industrial disputes referred to them, lay down certain general principles to be observed in regard to the determination of bonus, reinstatement of dismissed or discharged employee,% and other allied topics mainly with the object of promoting industrial peace, but these principles or rules of conduct, though they are applied as precedents by the Industrial Tribunals while adjudicating upon other similar industrial disputes referred to them, are not rules of law and do not amount to legislation. (3) The Act is not ultra vires the legislature, as the matters included within the definition of the term " industry " are within the legislative competence of the Central Legislature under Entries 27 and 29 of List III of the Seventh Schedule to the Government of India Act, 1935.

ION: Civil Appeal No. 38(NCE) of 1981. Appeal by Special leave from the judgment and Order dated the 1st January, 1980 of the Madras High Court in Application No. 4309 of 1980 in Election Petition No. 17 of 1980. AND Special Leave Petition (Civil) No. 1580 of 1981 From the Judgment and Order dated the 13th January, 1981 of the Madras High Court in Election Petition No. 13 of 1980, 633 AND Special Leave Petition (Civil) No. 5178 of 1981. From the Judgment and Order dated the 8th July, 1981 of the Madras High Court in Application No. 1967 of 1981 in Election Petition No. 14 of 1980. AND Civil Appeal No. 4216(NCE) of 1982. Appeal by Special leave from the Judgment and Order dated the 22nd October, 1982 of the Madras High Court in Application No. 265 of 1981 in Election Petition No. 5 of 1980. AND Civil Appeal No. 1170 of 1981. Appeal by Special leave from the Judgment and Order dated the 4th February, 1981 of the Madras High Court in Application No. 189 of 1981 in Election Petition No. 7 of 1980. IN CIVIL APPEAL NO. 38/81 G. Ramaswamy, K. Rajendra Chowdhury, N.A. Subhramanyam and Mahabir Singh for the Appellant. N.T. Vanamalai, R.K. Garg, V.J. Francis and Bhaskar Shankar for the Respondent. A.V. Rangam for Respondent No. 10. A.T.M. Sampath for the intervener. IN SLP (C) NO. 1580 OF 1981 C.S. Vaidyanathan for the Petitioner. A.T.M. Sampath for Respondent No. 1. A.V.Rangam for Respondent No. 2. 634 IN SLP(C) NO. 5178 of 1981 K.R. Nambiar for the Petitioner. P.N. Ramalingam for the Respondent. IN C.A. NO. 1170 of 1981 G. Ramaswamy and A.S. Nambiar for the Appellant. A.T.M. Sampath for Respondent No. 1. A.V. Rangam for Respondent No. 2. IN CA. 4216 of 1980 A.S. Nambiar and P. Parmeswaran for the Appellant. A.T.M. Sampath for Respondent. A.V. Rangam for Respondent. The Judgment of the Court was delivered by SEN J. These appeals by special leave and the connected special leave petitions from the judgment and orders of the High Court of Madras raise the same question and therefore they are disposed of by this common judgment. In Civil Appeal No. 38 (NCE) of 1981, there is a further question involved. The facts are more or less similar in all these appeals, except that in Civil Appeal No. 38(NCE) of 1981 there are certain additional facts. It will suffice for our purposes to set out the facts giving rise to that appeal. At the last general election to the State Legislative Assembly of Tamil Nadu from the Anna Nagar Assembly Constituency No. 8 held in May 1980, the appellant, M. Karunanidhi, leader of the Dravida Munnetra Kazhagam party, contested as a candidate of that party and secured 51290 votes. As against this, the respondent Dr. H.V. Hande sponsored as a candidate by the All India Anna Dravida Munnetra Kazhagam secured 50591 votes. On June 1, 1980 635 the appellant, M. Karunanidhi, was consequently declared elected by a margin of 699 votes. The last date for filing an election petition to challenge his election was July 16, 1980. On July 14, 1980 the respondent, Dr. H.V. Hande, filed an election petition under section 81 read with section 100 of the Representation of People Act 1951 (for the sake of brevity hereinafter referred to as 'the Act ') challenging the election of the appellant on various grounds. The election petition was accompanied by a pre receipted challan prepared by the Accounts Department of the High Court on the basis of a lodgment schedule initialled by the Assistant Registrar II, High Court, showing that a sum of Rs. 2,000 had been credited on July 11, 1980, to the account of the Registrar, High Court, Madras, in the Reserve Bank of India, Madras, as security for costs along with the lodgment schedule signed by the Assistant Registrar II. The respondent pleaded, inter alia, in paragraph 18 of the petition that the appellant was guilty of corrupt practice under sub s.(6) of section 123 of the Act by incurring or authorising expenditure in contravention of section 77. It was alleged that he had failed to disclose certain items of expenditure in his statement of election expenses filed by him in connection with the election as detailed in subparagraphs (a) to (e) of paragraph 18 of the petition. The allegation in paragraph 18(b) related to an expenditure of about Rs 50,000 in erecting fancy banners throughout the constituency and it was alleged that there were such fancy banners about 50 in number, the cost of each banner being not less than Rs 1,000 It was averred in paragraph 18(b) that a photograph of one such banner was filed along with the petition. Admittedly, though the respondent had filed with the election petition a photograph of one such banner, a copy of the photograph was not annexed to the copy of the petition furnished to the appellant. On October 30, 1980 the appellant filed his written statement. He pleaded, inter alia, that the election petition was liable to be dismissed in limine under sub section (1) of section 86 due to non compliance with the requirements of sub s.(1) of s.117 of the Act read with rule 8 of the Madras High Court (Election Petitions) Rules, 1967, for the reason that there was no deposit of Rs. 2,000 in cash in the High Court as security for costs, and also for non compliance with the requirements of sub s.(3) of section 81 of the Act as the copy of the election petition served on the appellant was not accompanied by a copy of the photograph of the alleged fancy banner annexed to the 636 petition, as alleged in paragraph 18(b) of the petition. The appellant accordingly raised a preliminary objection as to the maintainability of the election petition. The High Court by its order dated December 1, 1980, overruled both the preliminary objections. In regard to the objection based on sub s.(1) of section 117 of the Act read with Rule 8 of the Madras High Court (Election Petitions) Rules, 1967 (for short 'the Election Petitions Rules '), the High Court held that a sum of Rs. 2,000 as security amount had been deposited by the respondent in the Reserve Bank of India to the credit of the Registrar, High Court, at the instance of the High Court, and in accordance with the procedure followed for deposit of amounts in court. In reaching that conclusion, the High Court relied upon the lodgment schedule presented by K. Subramaniam, counsel for the respondent, which had been prepared in the Registry by the Assistant Registrar II, and the challan in triplicate prepared by the Accounts Department of the High Court and signed by the official referee specifying the amount and the date within which it had to be deposited. It held that the requirements of sub s.(1) of section 117 of the Act read with rule 8 of the Election Petitions Rules for the making of the deposit of Rs. 2,000 as security for costs in the High Court were mandatory but the manner of making such deposit was directory and as the amount of Rs. 2,000 had, in fact, been deposited to the credit of the Registrar, High Court, within the time allowed therefor, there was substantial compliance with the requirements of sub section (1) of section 117 of the Act. As regards the objection based on the non supply of a copy of the photograph of the fancy banner adverted to in paragraph 18(b), the High Court relying upon the decision of this court in Sahodrabai Rai vs Ram Singh Aharwar,(1) held that the banner could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banners erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a breach of the provisions contained in sub s.(3) of section 81 of the Act. These findings were reached by the High Court on the basis of the affidavits filed by the parties and the material on record. The High Court had also before it a report from the Registry as to the procedure followed with regard to Court deposits: 637 "Any person desirous of paying money into Court shall present a lodgement schedule, duly vouched by the concerned Section regarding the quantum and the time limit, and initialled by the Officers of Original Side or Appellate side as the case may be, to the Accounts Department for the issue of a Challan to enable the party to make the payment into Reserve Bank of India, Madras to the credit of the case concerned. On the presentation of the Lodgement Schedule to the Accounts Department a Challan in triplicate specifying the amount and the date within which it should be paid will be issued by the Accounts Department to the person, desirous of making such payment, who will deliver the Challan to the Bank. The Bank in turn after deposit deliver one part of the Challan duly signed to the person making the payment. On the production of the Challan, the Accounts Department will make necessary credit entries in the ledgers and the receipt registers. The remaining two parts of the Challan are sent by Reserve Bank of India, Madras to Pay and Accounts Office, which in turn sends one part of it to this Office. Sometimes it takes about one or two months to receive the said Challan from the Pay and Accounts Office. In cases where advocates do not produce one part of Challan in Accounts Department, credit entries are made on the strength of the Challan from Pay and Accounts Office and the pass book from the Reserve Bank of India, Madras. Official receipt for such deposits are issued under the signature of the Assistant Registrar (Original Side) for Original Side Deposits and of the Deputy Registrar for Appellate Side Deposits to such of those parties who produce one part of the Challan and make a request for official receipt to that effect. It is also submitted that Accounts Department will not receive cash without specific orders to that effect. This is the procedure that is being followed by the Accounts Section of High Court with regard to Court Deposits. " It is against this order of the High Court that this appeal was filed. The appeal was first heard in April 1981, and this Court by 638 its order dated April 2, 1981, remitted back the issue with regard to the alleged non compliance with the requirements of sub s.(1) of section 117 read with rule 8 of the Election Petitions Rules to the High Court for a decision afresh, as it was felt that the point raised was primarily a matter of evidence, but the parties had unfortunately not led any evidence on the point. It accordingly directed the High Court to record the evidence that may be adduced as regards the practice and procedure followed by the High Court in regard to the making of an election petition under section 81 of the Act and the manner in which the security amount of Rs. 2,000 was deposited in the High Court in compliance with the requirements of sub s.(1) of section 117 of the Act read with rule 8 of the Election Petitions Rules. After the issue was remitted, the High Court allowed the parties to lead their evidence both oral as well as documentary and has recorded its findings dated July 20, 1981. The High Court adhered to its earlier view that on a construction of sub section (1) section 117 of the Act, the factum of making of deposit of Rs. 2,000 as security for costs in the High Court was mandatory but the manner of making such deposit was directory and further held that although there was no strict or literal compliance with the requirements of rule 8 of the Election Petitions Rules, there had been substantial compliance with the requirements of sub s.(1) of s.117 of the Act, in that the requisite amount of Rs. 2,000 had actually been deposited to the credit of the Registrar, High Court, in the Reserve Bank of India on July 11, 1980, that is, before the election petition was filed on July 14, 1980, and the same was available for payment of costs. In the connected cases also, the High Court reached the same conclusion after taking evidence of the respective parties. It appears from the evidence adduced in all these cases that after the general elections to the State Legislative Assembly of Tamil Nadu, the then Chief Justice Ismail, C.J., nominated K.S. Natarajan (P.W. 4) Assistant Registrar II, to deal with all election petitions filed under section 81 of the Act. The evidence of P.W. 4 shows that he met the officer in charge of the Accounts Department of the High Court and ascertained the procedure to be followed for making the security deposit of Rs. 2,000/ in cash in the High Court. He was informed by the officer in charge that the party filing the election petition should bring the lodgment schedule duly filed and that P.W.4 should initial it and then the lodgment schedule had to 639 be taken to the Accounts Department. He was told that the Accounts Department would prepare a challan in triplicate and hand over the same to the party for depositing the money in the Reserve Bank of India in the name of the Registrar, High Court, and that the duplicate challan must be filed along with the election petition. He deposed that the same procedure was adopted in all the cases. The lodgment schedule, Ex P 2B, prepared by K. Subramaniam (P.W.6), counsel for the respondent, had been initialled by him and that he had also put the date July 14, 1980 by which date the deposit had to be made K. Subramaniam (P.W.6), counsel for the respondent, stated that the respondent had given him the amount of Rs. 2,000 in the first week of July 1980, and accompanied by an authorised representative of the respondent, he took the lodgement schedule exhibit P 2B to K.S. Natarajan (P.W.4), Assistant Registrar II, who initialled the same and indicated the date by which the deposit was to be made. He then took the lodgment schedule to the Accounts Department where section Seturaj (P.W.1) working as challan issuing clerk, prepared the challan in triplicate. Thereafter, he took the challan in triplicate to the Reserve Bank of India and deposited the amount of Rs. 2,000 in cash in the name of the Registrar, High Court, and the duplicate copy of the challan was handed over to him. The duplicate copy of the challan, exhibit P 2C, bears the seal of the Reserve Bank of India, with the endorsement 'received in cash ' and is dated July 11, 1980. The duplicate copy of the challan Ex P 2C, was filed along with the election petition. At this point, it is necessary to refer to the entries of the duplicate copy of the challan. Column 1 of the challan bears the heading "By whom paid and name (or designation) and address of the person on whose behalf money is paid" and the entry reads "Registrar, High Court, Madras" and bears the seal of the High Court. Column 2 reads "On what account with authority, if any" and the entry bears the name of the counsel for the election petitioner and mentions that the amount was deposited as security deposit for the election petition. Column 3 bears the heading "Amount" and the amount deposited in each case is entered as Rs. 2,000. The last column bears the heading "Head of account" and gives the head as "P.D.A/c, Registrar, High Court, Madras". A bare reading of the challans would show that the amount of Rs. 2,000 as security for costs was received by the High Court and credited to its own account. When the High Court asked the counsel for the election 640 petitioner to credit the amount in the Reserve Bank along with the pre receipted challan, it must be deemed that the Reserve Bank was acting as an agent of the High Court. All the challans bear the seal of the Reserve Bank of India with the endorsement "received in cash". Article 329(b) of the Constitution provides that no election to either House of Parliament or to the House or either House of the Legislature of the State shall be called in question except by an election petition presented to such authority and in such manner as may be provided by or under any law made by the appropriate Legislature. The Representation of the people Act, 1951 is a law made by Parliament under article 327 of the Constitution to provide for adjudication of disputes regarding such elections. Part VI of the Act is headed "Disputes regarding elections ' and Chapter II in that Part deals with the presentation of election petitions to the High Court. Section 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. Section 80A provides that the Court having jurisdiction to try an election petition shall be the High Court. In N.P. Ponnuswami vs Returning Officer, Namakkal,(1) this Court restated the principle that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. The Court having regard to the non obstante clause in article 329 (b) held that the Act having furnished a complete Code for challenging an election, the election must be challenged in the manner provided. The Court relied upon the dictum of Wiles, J. in Wolverhampton New Water Works Company vs Hawkesford(2) which has become classical. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. As observed by this Court in Jagan Nath vs Jaswant Singh & Ors. ,(3) an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. It also added that: "It is a sound principle of natural justice that the success of a candidate who has won at an election should not be 641 lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. " At the same time, the Court added a note of caution: "It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence or does not lay down penalty for non compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected. " There are two questions that fall for determination. The first is whether the election petition filed by the respondent under section 81 read with s.100 of the Representation of the People Act, 1951 was liable to be dismissed in limine under sub section (1) of s.86 on the ground that there was non compliance with the requirements of sub section (1) of section 117 of the Act read with r. 8 of the Election Petitions Rules. The second is whether the election petition is also liable to be dismissed under sub section (1) of s.86 of the Act inasmuch as the copy of the election petition furnished to the appellant was not accompanied by a copy of the photograph of the fancy banner referred to in paragraph 18(b) of the petition as required by sub section (3) of s.81 of the Act. In view of the arguments addressed to us, it is necessary to set out a few of the relevant provisions which bear upon the points raised. S.81 deals with presentation of election petitions. It runs: "81. (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. 642 Explanation In this sub section, 'elector ' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. " Section 82 which is the next section lays down who shall be parties to an election petition. We need not refer to this section in detail since we are not concerned with it. S.83 is however material and it provides what shall be the contents of an election petition. It reads: "83 (1) An election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. " The next chapter which is Chapter III deals with the trial of election petitions but here we are concerned only with sub section (1) of 643 section 86 which interdicts that the High Court shall, in certain circumstances, dismiss an election petition in limine. Sub section (1) of section 86 provides as follows: "86 (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Explanation: An order of the High Court dismissing an election petition under this sub section shall be deemed to be an order made under clause (a) of section 98. " Sub section (1) of section 117 which is important for our purposes is in these terms: "117. Security for costs (1) At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the Rules of the High Court a sum of two thousand rupees as security for the costs of the petition. " Rule 8 of the Madras High Court (Election Petitions) Rules, 1967 framed by the High Court under article 225 of the Constitution which is also important for the purposes of these cases provides as follows: "8. An Election Petitioner before presenting his Election Petition shall deposit in the High Court in cash a sum of two thousand rupees towards security for costs as provided for under Section 117 of the Act and shall produce the receipt of the Registrar for the same at the time of presentation of the petition. " Rule 12 of the Election Petitions Rules is also relevant and reads: "12. Subject to the foregoing rules and to the extent they are not inconsistent with the provisions of the Act the Rules of the High Court, 1956 (Original Side) shall, as far as practicable, be observed in all Election Petitions and all applications taken in respect of them. " 644 Taking up the contentions in the order in which they were advanced, we shall first deal with the submission that there was non compliance with the mandatory requirements of sub section (1) of section 117 of the Act read with r.8 of the Election Petitions Rules framed by the High Court, which is common to all these cases. The factum of deposit of Rs. 2000/ in each of these cases on the strength of pre receipted challans issued by the Accounts Department of the High Court in the Reserve Bank of India to the credit of the Registrar, High Court, Madras as security for costs well within the period of limitation for filing the election petition is not in dispute and the controversy turns on the question whether the deposit of the security amount was in accordance with the rules of the High Court. There are different sets of rules framed by different High Courts under article 225 of the Constitution regulating the practice and procedure to be observed in all matters coming before the High Court in exercise of its jurisdiction under s.80A of the Act. The words "in accordance with the rules" must therefore connote "according to the procedure prescribed by the High Court". The mode of making deposit must necessarily be an internal matter of the concerned High Court. In support of this appeal, learned counsel for the appellant contends that the provisions of sub section (1) of section 117 of the Act are mandatory, non compliance of which will entail dismissal of the election petition in limine under sub section (1) of s.86 of he Act. It is urged that no distinction can be drawn between the requirement as to the making of a security deposit in the High Court under sub section (1) of section 117 and the manner of making such deposit and sub section (1) of section 117 cannot be dissected into two parts, one part being treated as mandatory and the other as directory. It is further urged that the words "in accordance with the rules of the High Court under sub section (1) of section 117" were as much a mandatory requirement as the requirement that the election petitioner shall, at the time of presenting an election petition, deposit in the High Court a sum of Rs. 2000/ as security for the costs of the petition. There is therefore no warrant for the view taken by the High Court that the factum of deposit of the security amount of Rs.2000/ in the High Court was mandatory and not the manner in which the security deposit was made. It is also urged that r.8 of the Election petitions Rules framed by the High Court under article 225 to regulate the mode of making deposit must be read as forming part of sub s.(1) of s.117 by incorporation and therefore the only manner prescribed is by 645 making deposit in cash with the Registrar. When a statute requires that something shall be done in a particular manner or from expressly declaring what shall be the consequence of non compliance with it, the requirement must be regarded as imperative. Having regard to the definite stand taken by the respondent that he had complied with the requirements of r.8, it is not permissible to fall back on the provisions contained in order 31 of the Madras High Court Rules relating to deposit of suitors ' money. The last submission is that in view of the finding reached by the High Court that there was no strict or literal compliance of r.8, the election petition must be dismissed. Even if the rule of substantial compliance applies, it is clear on evidence that there has been no compliance at all much less any substantial compliance. There is intrinsic evidence to show that there has been tampering with the documents. We are afraid, the contention that there was no compliance of sub section (1) of s.117 of the Act cannot prevail in the light of the well settled principles. The submissions advanced by learned counsel for the appellant cannot be accepted as they proceed on the assumption that no distinction can be drawn between the requirement as to the making of a deposit in the High Court under sub section (1) of s.117 and the manner of making such deposit. There was considerable emphasis laid by learned counsel that sub section (1) of s.117 cannot be dissected into two parts, one part being treated as mandatory and the other as directory. The contention is wholly misconceived and indeed runs counter to several decisions of this Court. It is always important to bear the distinction between the mandatory and directory provisions of a statute. Sub section (1) of s.117 is in two parts. The first part of sub section (1) of s.117 provides that at the time of presenting an election petition, the petitioner shall deposit in the High Court a sum of Rs. 2000/ as security for the costs of the petition, and the second is that such deposit shall be made in the High Court in accordance with the rules of the High Court. The requirement regarding the making of a security deposit of Rs. 2000/ in the High Court is mandatory, the non compliance of which must entail dismissal in limine of the election petition under sub section (1) of s.86 of the Act. But the requirement of its deposit in the High Court in accordance with the rules of the High Court is clearly directory. As Maxwell on the Interpretation of Statutes, 12th edn. at p.314 puts it: "An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled 646 substantially. " The rule of construction is well settled and we need not burden the judgment with many citations. It is well established that an enactment in form mandatory might in substance be directory and the use of the word "shall" does not conclude the matter. The general rule of interpretation is well known and it is but an aid for ascertaining the true intention of the Legislature which is the determining factor, and that must ultimately depend on the context. The following passage from Crawford on 'Statutory Construction ' at p.516 brings out the rule: "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. " This passage was quoted with approval by the Court in State of U.P. vs Manbodhan Lal Srivastava,(1) The State of Uttar Pradesh & Ors. vs Babu Ram Upadhya(2) and Raza Buland Sugar Co. Ltd. vs Municipal Board, Rampur.(3) The Court in Manbodhan Lal 's case, (supra) where article 320 (3) (c) of the Constitution was held to be directory and not mandatory, relied upon the following observations of the Privy Council in Montreal Street Railway Company vs Normandih(4): "The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th ed., p.596 and following pages. When the provisions of a statute relate to the performance of a public duty and the case is such 647 that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done." In Manbodhan Lal 's case, (supra) the contention was that the reduction in rank after departmental inquiry was invalid for noncompliance with the requirements of article 320 (3) (c) of the Constitution which read literally made it obligatory for the Government of India or a Government of a State to consult the Union Public Service Commission or the State Public Service Commission in all disciplinary matters affecting a person in service of the State. In turning down the contention it was observed by this Court: "The use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding, or the outcome of the proceeding, would be invalid. " Following the principle laid down by the Privy Council in Montreal Street Railway Company 's case, (supra) the Court held that article 320 (3) (c) itself contemplates three grounds, and the word "shall" appeared in almost every paragraph and every clause or sub clause of that Article. If it were held that the provisions of Art, 320 (3) (c) were mandatory in terms, the other clauses or sub clauses of that Article would have to be equally held to be mandatory. If they were so held, any appointments made to the public services without observing strictly the terms of these sub clauses in cl. (3) of article 320 would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in the matter and this could not have been contemplated by the makers of the Constitution. The Court held that if the Article were construed as mandatory, it would cause serious general inconvenience and injustice to persons who had no control over those entrusted with the duty. As the Privy Council itself pointed out, the question whether provisions in a statute are directory or mandatory cannot be decided 648 by laying down a general rule and in every case the object of the statute must be looked at. In Raza Buland Sugar Co. Ltd. 's case, (supra) the question for consideration was whether the whole of sub s.(3) of s 131 of the U.P. Municipalities Act, 1916 was mandatory, or the part of it requiring publication in the manner laid down in sub s.(3) of s.94 was merely directory. Per majority, the Court held that sub s.(3) of section 131 could be divided into two parts the first one providing that the proposal and draft rules for a tax intended to be imposed should be published for the objections of the public, if any, and the second laying down that the publication must be in the manner laid down in sub section (3) of section 94. Considering the object of the provisions for publication, namely, to enable the public to place its view point, the Court found it necessary to hold that the first part of the section was mandatory, for to hold otherwise would be to render the whole procedure prescribed for the imposition of tax nugatory. The second part of the section was however held to be merely directory. In that case, there was no regularly published local Hindi newspaper but the publication was made in Hindi in a local paper which on the evidence seemed to have good circulation in Rampur. There was, in the circumstances, substantial compliance with the provisions of sub s.(3) of section 94 of that Act. There was quite some discussion at the Bar as to the legality and propriety of the procedure adopted in the Madras High Court as to the making of a security deposit under sub section (1) of s.117 of the Act. The objection is to the manner of such deposit being made on the strength of pre receipted challan prepared by the Accounts Department on the basis of the lodgment schedule into the Reserve Bank of India to the credit of the Registrar, High Court, Madras. It was submitted that this was in complete violation of r.8 of the Election Petitions Rules. It is said that r. 8 must be read as forming part of sub s.(1) of section 117 and the only manner prescribed is by making deposit in cash with the Registrar and obtain his receipt therefor. It was urged that it is paradoxical to say that deposit of money into the Reserve Bank to the credit of the Registrar, High Court, Madras is a sufficient compliance of sub s.(1) of s.117 when r. 8 provides that the money should be deposited in the High Court in cash, and that is the only mode prescribed under sub s.(1) of section 117. We are afraid we are unable to accept this line of argument. 649 A literal and mechanical interpretation of r.8 would lead to manifest absurdity as it would imply that in every case the election petitioner shall have to pay to the Registrar a sum of Rs. 2,000 in cash towards security for costs as required by sub s.(1) of s.117 of the Act and obtain a receipt from him therefor. Rule 8 is silent as to how the cash is to be handled. It cannot ordinarily be expected that the Registrar of a High Court would accept the amount of security deposit in cash. The procedure adopted by II Assistant Registrar in directing that the money be deposited to the credit of the Registrar of the High Court in the Reserve Bank of India was in conformity with the requirements of r.8 of the Election Petitions Rules. Inasmuch as r. 8 does not lay down the procedure regulating the manner of deposit of cash, the matter falls to be governed by r.2 of Order 31 of the Madras High Court (Original Side) Rules, 1956 by reason of r. 12 of the Election Petitions Rules. Although Order 31, r. 2 does not in terms apply because Order 31 relates to "Payment into court of moneys to the credit of civil court deposits and account of suitor 's money", and though no lodgment schedule can be prepared under r.2 except in pursuance of a decree or order passed by the High Court i.e. in relation to some proceeding pending, or disposed of, by the High Court, still by virtue of r. 12 of the Election Petitions Rules that is the procedure to be adopted for deposit of Rs. 2000 in the High Court in cash i.e. by crediting the amount on the strength of a pre receipted challan prepared by the Accounts Department on the basis of a lodgment schedule. That was the only procedure applicable and there was nothing wrong in the procedure adopted in making the deposit. When the amount was so deposited with a pre receipted challan issued by the Accounts Department to the credit of the Registrar of the High Court and the Reserve Bank of India made the endorsement "Received in Cash", it must be regarded that the payment was made in the High Court and the pre receipted challan bearing the endorsement of the Reserve Bank of India must be treated as the receipt of the Registrar in terms of r. 8, the Reserve Bank acting as an agent of the High Court. We are informed that the same practice and procedure has been followed during the relevant period in all the election petitions filed in the Madras High Court and there was no separate receipt of the Registrar except in one case where the election petition was not tried. We need not dilate on the point any further. It must accordingly be held that there was due compliance with the requirements of sub s.(1) of section 117 of the Act read with r. 8 of the Election Petitions Rules. 650 The matter is no longer res integra. The submission runs counter to the decision of this Court in the well known case of K.Kamaraja Nadar vs Kunju Thevar & Ors.(1) That was a case under the old section 117 of the Act as it stood prior to its amendment by Act 47 of 1966. It read: "The petitioner shall enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees had been made either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition." In that case, the petitioner enclosed a Government Treasury receipt showing a deposit of Rs.1000 as security for costs in the State Bank of India, Ranchi Branch, but it did not show that the deposit had been made in favour of the Secretary to the Election Commission. A question arose whether the election petition was liable to be dismissed summarily under s.85 or sub s.(3) of s.90 as the requirements of section 117 of the Act had not been complied with. The Court analyzed section 117 and observed that it consisted of three parts, viz: (1) The Government Treasury receipt must show that such deposit had actually been made in a Government Treasury or in the Reserve Bank of India. (2) It must show that it had been made in favour of the Secretary to the Election Commission. And (3) it must further show that it had been made as security for the costs of the petition. The question then arose whether the words "in favour of the Secretary to the Election Commission" were mandatory in character so that if the deposit had not been made in favour of the Secretary to the Election Commission as therein specified, the deposit even though made in a Government Treasury or in the Reserve Bank of India and as security for costs of the petition, would be invalid and of no avail. This Court held that these words in section 117 were directory and not mandatory in their character and that the essence of the provision contained in section 117 was that the petitioner should furnish security for the costs of the petition and should enclose along with the petition a Government Treasury receipt showing that a deposit of Rs. 1000/ had been made by him either in a Government Treasury or in the Reserve Bank of India to be at the disposal of the 651 Election Commission to be utilized by it in the manner authorized by law and was under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorized by it to receive the same, be he the Secretary to the Election Commission or any one else. If this essential requirement was complied with, no literal compliance was at all necessary with the words "in favour of the Secretary to the Election Commission". Though therefore the making of the deposit and the presentation of the receipt thereof along with the petition was held to be mandatory, this Court held that the form in which the deposit should be made was only directory. This Court rejected the contention that the election petition was liable to be dismissed in limine under section 85 or sub s.(3) of section 90 for non compliance with the requirements of section 117 of the Act and observed: "It would be absurd to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would not be sufficient compliance with the provisions of section 117 and would involve a dismissal of the petition under section 85 or section 90(3). The above illustration is sufficient to demonstrate that the words "in favour of the Secretary to the Election Commission" used in s.117 are directory and not mandatory in their character. What is of the essence of the provision contained in section 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else." The same question was dealt with in Chandrika Prasad Tripathi vs Siv Prasad Chanpuria & Ors.(1) In that case, security deposit of Rs. 1000/ had been made, but not, in terms, in the name of the Secretary 652 to the Election Commission; instead, the deposit was made "refundable by order of the Election Commission of India, New Delhi". The Court held that the objection based on the peculiar wording of the deposit was purely technical. To the same effect are the decisions of this Court in Om Prabha Jain vs Gian Chand & Anr.(1) and Budhi Nath Jha vs Manilal Jadav.(2) The Court in all these cases followed the decision in Kamaraja Nadar 's case, (supra) that section 117 of the Act should not be strictly or technically construed and that substantial compliance with its requirements should be treated as sufficient. In contrast, the decisions in Charan Lal Sahu vs Nandkishore Bhatt & Ors.(3) and Aeltemesh Rein vs Chandulal Chandrakar & Ors.(4) were cases where the petitioners made no security deposit before filing their election petitions. In Charan Lal Sahu 's case, supra, the petitioner applied to the High Court for being absolved from making any security deposit or to reduce the amount required to be deposited under the Act. This Court referred to article 329 (b) of the Constitution and held that the petitioner had no right to file an election petition except in the manner provided by the Act. There being no provision to absolve the petitioner from payment of security for costs, this Court held that the Madhya Pradesh High Court was right in rejecting the election petition under sub section (1) of s.86 of the Act. In Aeltemesh Rein 's case, supra, it was stated in the petition that a security amount of Rs. 2000 was being deposited, but in fact no deposit was made. The Madhya Pradesh High Court dismissed the election petition. On appeal, the petitioner contended that sub section (1) of s.117 of the Act was ultra vires article 329 (b) of the Constitution and therefore the High Court was in error in dismissing the election petition on the ground of non compliance of the provisions of sub section (1) of s.117. This Court repelled the contention and expressed the view that the words "in such manner" in article 329(b) could not be limited in their operation to procedural requirements. The Court held : "The provision of law which prescribes that an election petition shall be accompanied by the payment of security amount pertains to the area covered by the manner of the 653 making of the election petition and is therefore within the authority of Parliament." Adverting to the dismissal of the election petition by the High Court, this Court held that the High Court had no option but to dismiss the petition as it was not accompanied by payment of the security deposit for sub section (1) of s.86 of the Act clearly provides that the High Court shall dismiss an election petition which did not comply with the provisions of s.81, or 82 or 117 of the Act. The remaining part of the case is not free from difficulty. There are two questions that arise, namely: (1) Whether the photograph referred to in paragraph 18(b) was a schedule or annexure within the meaning of sub section (2) of s.83 and therefore formed an integral part of the election petition and thus the failure to furnish the appellant with a copy of the photograph along with a copy of the election petition amounted to a non compliance of sub section (3) of s.81 (2) Whether the High Court was right in relying upon the decision of this Court in Sahodrabai Rai vs Ram Singh Aharwr(1) in holding that the photograph was merely a document filed along with the election petition as a piece of evidence in proof of the allegation contained in paragraph 18(b) and therefore there was no need for the respondent to supply the appellant with a copy of the photograph. To bring out the points in controversy, the averments in paragraph 18(b) may be set out ; "18. The Petitioner submits that the first Respondent is guilty of the corrupt practice under Section 123(6) of the Act by incurring and authorising expenditure in excess of the limit of Rs. 35,000/ fixed under Section 77 of the Act. The first Respondent has submitted a statement of election expenses disclosing a total of Rs. 10,125.75 only. A true photostat copy of the Return filed by him is filed herewith as Annexure V. He has, however, failed to disclose the following amount incurred by him in connection with the election, between the date of his nomination and the date of the declaration of the result thereof. (b) The first Respondent erected fancy banners throughout the constituency and the number of such 654 banners is about 50. A photograph of one such banner is filed herewith. The cost of each such banner will be not less than Rs. 1000. The expenditure involved in erecting these fifty banners is about Rs. 50,000. It is submitted that the first Respondent has incurred the above said expenditure which added to the amount disclosed in the Return of Election Expenses exceeds the amount fixed under Section 77 (3) of the Act thus amounting to a corrupt practice under Section 123(6) of the Act. " Admittedly, a copy of the photograph was not furnished to the appellant along with a copy of the election petition, The averment contained in paragraph 18(b) would be incomplete without a copy of the photograph being supplied with a copy of the election petition. The averment therein is that the appellant committed a corrupt practice under sub s.(6) of s.123 of the Act by incurring or authorising expenditure in contravention of s.77. It is alleged that the appellant had set up fancy banners throughout the constituency and the number of such banners was about 50, the cost of each such banner being not less than Rs. 1000 and therefore the expenditure involved in erecting these 50 banners was not less than Rs. 50,000/ , but that the appellant had not disclosed the amount in the return of the election expenses and thus committed a corrupt practice under sub s.(6) of s.123 of the Act. It is not possible to conceive of the dimension of the large fancy banner unless one has a look at the photograph. The photograph filed with the election petition gives a visual description of the fancy banner, the cost of which at a mere look would show that the expenditure in setting up each such banner would be Rs. 1000 or more. The photograph depicts two election banners. One of them is a huge fancy banner or a hoarding on the left side of the road and the other on the right is a smaller election banner. The fancy banner depicts two groups, and the appellant is present in both. On the left hand top there is a large picture of the appellant with the late Sri Annadurai and at the right hand below there is a smaller picture of the appellant with Smt. Indira Gandhi. The fancy banner shown in the photograph contains an election slogan in Tamil appealing to the electorate to vote for the appellant. This has been translated for us into English and it reads: 655 "To The Electorate in Anna Nagar Constituency I request you to mark on the Rising Sun and ensure success to enable service to you. Always your affectionate, Kalaignar M. Karunanidhi Polling Date 31.5.80" It is true that paragraph 18(b) must be read in conjunction with the opening part of paragraph 18. Though the words "in connection with" do not appear in paragraph 18(b), these words are there in paragraph 18 and therefore it must be taken that the fancy banners were set up in connection with the election. Nevertheless, without being furnished with a copy of the photograph, the averments in paragraph 18(b) would be incomplete as regards the allegation of the corrupt practice committed by the appellant. We are driven to this conclusion by the mandatory requirement of sub section (3) of section 81 of the Act which is in two parts. The first part of sub section (3) of s.81 provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and the second part relates to the manner in which such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. It has already been stated that mandatory provisions must be fulfilled exactly whereas it is sufficient if directory provisions are substantially fulfilled. In Ch. Subbarao vs Member, Election Tribunal, Hyderabad,(1) this Court held that (1) if there is a total and complete non compliance of the provisions of sub s.(3) of s.81 the election petition might not be "an election petition presented in accordance with the provisions of this Part" within the meaning of s.80 of the Act, and (2) by the expression "copy" in sub section (3) of s.81, it was meant not an exact copy but only one so true that nobody can possibly misunderstand it being not the same as the original. In Ch. Subbarao 's case, supra, there was no attestation at the foot of the copies that they were true copies. It was held that the absence in the copy of a note to the effect that it was a 'true copy ' 656 could not detract the copy from being a true copy. The facts and circumstances of the case therefore showed that there had been a substantial compliance with the requirements of sub s (3) of s.81 of the Act. The wider question whether sub section (3) of section 81 or a part thereof is mandatory or directory was left open. On the facts of that case the Court held that if there was substantial compliance with the requirements of sub section (3) of s.81, the election petition could not be dismissed. It was submitted on behalf of the appellant that there was total and complete non compliance of the requirements of sub section (3) of section 81 and therefore the election petition was liable to be dismissed in limine under sub section (1) of s.86. The argument to the contrary advanced on behalf of the respondent was that the photograph filed along with the election petition had to be treated as a document in proof of the allegations contained in paragraph 18(b) and not as a part of the election petition. The submission is that there is a distinction 'between a schedule or annexure to the petition referred to in sub section (2) of section 83" and "a document which is merely evidence in the case which is annexed to the election petition" and to such a document sub section (3) of s.81 is not attracted. The preliminary issue and the appeal turn on a short point of construction. The question that arises is whether the words "copies thereof" in sub section (3) of s.81 comprehend the election petition proper or do they also include a schedule or annexure annexed thereto. The controversy whether the photograph was a schedule or annexure in terms of sub section (2) of s.83 or merely a document only in proof of the allegations in paragraph 18(b) must turn on a construction of sub section (3) of s.81 read with sub s.(2) of s.83. It now appears to be well settled by Sahodrabai 's case (supra) that sub section (2) of s.83 applies only to a schedule or annexure which is an integral part of the election petition and not to a document which is produced as evidence of the election petition. In dealing with sub section (2) of s.83 of the Act it was observed: "We are quite clear that sub section (2) of s.83 has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples 657 from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondent if the requirement regarding service of the election petition is to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. The pamphlet therefore must be treated as a document and not as a part of the election petition in so far as averments are concerned. " The High Court rests its conclusion on the decision of this Court in Sahodrabai 's case, supra, but that decision, in our opinion, is inapplicable to the facts and circumstances of the present case. In Sahodrabai 's case (supra) an election petition was filled together with a pamphlet as annexure thereto. A translation in English of the pamphlet was incorporated in the body of the election petition and it was stated that it formed part of the petition. A preliminary objection was raised that a copy of the pamphlet had not been annexed to the copy of the petition served on the returned candidate and therefore the election petition was liable to be dismissed under sub s.(1) of s.86 of the Act. The Madhya Pradesh High Court sustained the preliminary objection and dismissed the election petition. On appeal, this Court held that the words used in sub section (1) of section 81 are only "the election petition" and there was no mention of documents accompanying the election petition. Since the election petition itself reproduced the whole of the pamphlet in translation 658 in English, it could not be said that the averments with regard to the pamphlet were themselves a part of the petition and therefore the pamphlet had in fact been served on the returned candidate although in a translation and not in the original. The Court then stated that even if it were not so, sub section (2) of s.83 of the Act has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures. It was observed that the details of averments may be too compendious for being included in the petition and may be set out in the schedule or annexure to the election petition. The Court then gave examples on which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. It then went on to say that such annexures or schedules are treated as integrated with the election petition and copies of them must be served on the returned candidate if the requirement regarding service of the election petition is to be wholly complied with. But that this rule was not applicable to documents which are merely an evidence in the case but which, for reasons of clarity and to lend force to a petition, are not kept back but are produced or filed with the election petition. The Court added: "They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof." In that view of the matter the Court held that the pamphlet in question had to be treated as a document and not as a part of the election petition so far as the averments were concerned. It said: "It would be stretching the words of sub section (2) of s.83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. In this particular case we do not think that the pamphlet could be so treated. " It follows as a necessary corollary that if the pamphlet had not been incorporated in the body of the election petition, the decision of the Court in Sahodrabai 's case, supra, would have been otherwise. That precisely is the case here. 659 In this connection, we may next refer to the decisions of this Court in Jagat Kishore Prasad Narayan Singh vs Raj Kumar Poddar & Ors. (1) and Satya Narain vs Dhuja Ram & Ors. (2) In Jagat Kishore Prasad Naryan Singh 's case, supra, there were serious discrepancies between the original election petition filed in the Court and the copies supplied to the contesting candidates. This Court dismissed the election petition on the ground of non compliance of sub section (3) of s.81 as the copies furnished to the contesting respondents were not true copies and there was divergence between the allegations made in the petition and the allegations made in the copies, and that such divergence was bound to mislead the contesting candidates and prejudice their defence, particularly in a case where the returned candidate is charged with corrupt practice. That is because he must know the nature of the charge against him, so that he may prepare his defence. It was observed: "The law requires that a true copy of an election petition should be served on the respondents. That requirement has not been either fully or substantially complied with. " The next case in point is Satya Narain vs Dhuja Ram & Ors.(supra) where the election petition was not accompanied by the requisite number of spare copies for service on the respondent and no schedules were filed along with the petition. When the petition came up for scrutiny, the Deputy Registrar of the High Court asked the election petitioner to remove the defects. Before the date refixed the spare copies were filed and the defect removed. The question before the Court was whether the petition was liable to be dismissed in limine under sub section (1) of s.86 of the Act for non compliance of sub section (3) of s.81. The importance of the decision in Satya Narain 's case (supra) lies in the fact that the Court laid down that the first part of sub section (3) of s.81 which required that the election petition should be accompanied by as many copies thereof as there were respondents mentioned in the petition, was mandatory in character and non compliance with it was fatal to the petition in view of sub section (1) of s.86. The decision in Kamalam vs Dr. V.A. Syed Mohamad(3) may also be referred. What had happened in that case was this. The signature of the election petitioner by way of authentication appeared 660 at the foot of the copy of the affidavit but there was no such signature separately appended at the foot of the copy of the election petition. There was a preliminary objection raised that since the copy of the election petition had not been attested by the petitioner under her own signature to be a true copy, there was no compliance with sub s.(3) of s.81 of the Act and hence the petition was liable to be dismissed in limine under sub section (1) of s.86 of the Act. In repelling the contention, the Court observed that the second part of sub s.(3) of s.81 had been complied with upon the view that the copy of the petition and the affidavit filed along with it as required by law constituted one single document and the signature in original of the petitioner in proof of the affidavit satisfied the requirements of sub s.(3) of s.81 of the Act. In explaining as to what constitutes an election petition for purposes of sub section (3) of s.81, it was observed: "Now, the first question which arises is as to what constitute an election petition for the purpose of section 81, sub section (3). Is it confined only to election petition proper or does it also include a schedule or annexure contemplated in sub section (2) of section 83 or a supporting affidavit referred to in the proviso to section 83, sub section (1)? To answer this question, we must turn to section 83 which deals with contents of an election petition. Sub section (1) of that section sets out what an election petition shall contain and provides that it shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. The proviso requires that where the petitioner alleges any corrupt practice, prescribed form in support of the allegation of such corrupt practice the election petition shall also be accompanied by an affidavit in the and the particulars thereof. The context in which the proviso occurs clearly suggests that the affidavit is intended to be regarded as part of the election petition. Otherwise, it need not have been introduced in a section dealing with contents of an election petition nor figured as a proviso to a sub section which lays down what shall be the contents of an election petition. Sub section (2) also by analogy supports this inference. It provides that any schedule or annexure to an election petition shall be signed by the petitioner and verified in the same manner as an election petition. It is now established by the decision of this Court in Sahodrabai Rai vs 661 Ram Singh Aharwar that sub section (2) applies only to a schedule or annexure which is an integral part of the election petition and not to a schedule or annexure which is merely evidence in the case but which is annexed to the election petition merely for the sake of adding strength to it. " The test to be applied in determining whether the photograph referred to in paragraph 18(b) is an integral part of the election petition or was merely a piece of evidence in proof of the allegations contained therein, depends on whether it is a part of the pleadings. Upon the view that the photograph was not merely a document accompanying the election petition but was a part and parcel of the pleading contained in paragraph 18(b), it is unnecessary for us to deal with the submission based on order VII, r.14 of the Code of Civil Procedure, 1908. Our attention was drawn to the passage in Sahodrabai 's case, supra, at p.18 of the Report. The Court observed that under order VII, r.14 where a plaintiff sues upon a document in his possession or power, he is required to file only one copy of the document and not as many copies as there are defendants and therefore a copy of the document is not expected to be deliberate with the copy of the plaint to the answering defendants when summons is served on them and that it would be too strict a reading of the provisions of sub section (3) of s.81 and sub section (2) of s.83 to lay down that the election law provides anything different. These observations cannot, in our opinion, be read out of context. The decision in Sahodrabai 's case, supra, was that since the election petition itself reproduced the whole of the pamphlet in a translation in English, the pamphlet filed along with the petition had to be treated as a document and not as a part of the election petition and that being so, the Court observed that it would be stretching the words of sub section (3) of s.81 and sub section (2) of s.83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. We would add for the sake of completeness that we have been referred to the decision of this Court in Sharif ud din vs Abdul Gani Lone (1) but that decision is not directly in point. One of us (Venkataramiah, J.) had occasion to deal with the corresponding sub section (3) of s.89 of the Jammu & Kashmir Representation of the people Act, 1957 which reads: 662 "Every election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition. " In that case, both the copies of the election petition contained the endorsement "Attested true copy, Piyare Lal Handoo, Advocate". The question arose whether there was a sufficient compliance with the provisions of sub section (3) of s.89 of that Act. The Court pointed out that sub section (3) of s.89 consists of two parts. The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The first part of the section has been held to be a mandatory requirement by this Court in Satya Narain 's case (supra) The Court held the second part also to be mandatory and observed: "It is true that sub s.(3) of s.89 of the Act was purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, the Courts have no option but to enforce the law as it is." Upon that view it was held that the attestation of the copies by counsel for the election petitioner as true copies was not a sufficient compliance with the provisions of sub section (3) of s.89 of that Act as it required attestation by the election petitioner himself. The decision is an application of the rule that mandatory provisions must be fulfilled exactly. It is obvious that photograph was a part of the averment contained in paragraph 18 (b). In the absence of the photograph the averment contained in paragraph 18 (b) would be incomplete. The photograph referred to in paragraph 18 (b) was therefore an integral part of the election petition. It follows that there was total non compliance with the requirements of sub section (3 of s.81 of the Act by failure to serve the appellant with a copy of the election petition. In 663 Ch. Subbarao 's case, supra, the Court held that if there is a total and complete non compliance with the provisions of sub section (3) of s.81, the election petition could not be treated an "election petition presented in accordance with the provisions of this Part" within the meaning of s.80 of the Act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan. The conclusion is irresistible that the words "copies thereof" in sub s.(3) of s.81 read in the context of sub s.(2) of s.83 must necessarily refer not only to the election petition proper but also to schedules or annexures thereto containing particulars of any corrupt practice alleged therein. That being so, we are constrained to reverse the judgment of the High Court insofar as it holds that the photograph of the fancy banner adverted to in paragraph 18 (b) could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of sub section (3) of s.81 of the Act. For these reasons, all the appeals and special leave petitions except Civil Appeal No. 38 (NCE) of 1981 must fail and are dismissed. Civil Appeal No.38(NCE) of 1981 partly succeeds and is allowed. The judgment of the High Court holding that the amount of Rs. 2000 having been deposited to the credit of the Registrar, High Court in the Reserve Bank of India on the strength of pre receipted challans issued by the Accounts Department on the basis of a lodgement schedule, there was substantial compliance of the requirements of sub section (1) of s.117 of the Act, is upheld. But the judgment of the High Court is set aside insofar as it holds that the failure to supply a copy of the photograph of the fancy banner referred to in paragraph 18 (b) along with a copy of the election petition to the appellant did not amount to a breach of the provisions contained in sub section (3) of s.81 of the Act, and instead we hold that the failure to do so amounted to non compliance of sub section (3) of s.81 inasmuch as the photograph of the fancy banner was an integral part of the election petition and therefore the election petition must be dismissed summarily under sub section (1) of s.86 of the Representation of the People Act, 1951. We further direct that the High Court shall permit the appellant to withdraw the recrimination petition filed by him under s.97 of the Act in terms of the undertaking given by learned 664 counsel for the appellant during the course of the hearing of the appeal. The costs throughout shall be borne by the parties as incurred. H.S.K Civil Appeal No. 38/81 partly by allowed. Petitions & Civil Appeal Nos. 4216/82 and 1170/81 dismissed.

Jagannathdas and his wife Premwati had no children. Premwati suffered from tuberculosis and died on September 24, 1951. Thereafter Jagannathdas created a trust in respect of his estate which comprised of properties falling to his share in a family partition. The appellant filed a suit claiming that he had been adopted by Jagannathdas and Premwati as their son on September 24,1951, that the trust was void and that he was entitled to a half share in the estate. The trial court decreed the suit after finding that the appellant had in fact been adopted by Jagannathdas and Premwati and that the adoption was valid. On appeal by the trustees the High Court reversed the finding of tho trial court taking a different view of the evidence on record and dismissed the suit. Allowing the appeal against the order of the High Court, ^ HELD: In an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. The principle is one of practice and governs tho weight to be given to a finding of fact by the trial court. 852 There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact. [856 D E; 857 B C] W.C. Macdonald vs Fred Latimer, A.I.R. 1929 P.C. 15; Watt vs Thomas, ; Sara Veeraswami alias Sara Veerraju v Talluri Narayya (deceased) and Ors. A.I.R. ; Sarju Parshad vs Raja Jwaleshwari Pratap Narain Singh and Ors. , ; ; and The Asiatic Steam Navigation Co. Ltd vs Sub Lt. Arabinda Chakravarti, [1959] Supp. 1 S.C.R. 979 referred to. In the instant case the question whether the appellant had in fact been adopted by Jagannathdas and Premwati had been determined by the trial court essentially on tho basis of oral testimony and reference had been made to a few documents only in supplementation of the oral evidence. The judgment of the trial court showed that it had analysed tho testimony of each material witness and in reaching its conclusions on the issues of fact it had relied in some instances upon its own appraisal of the manner in which the witnesses present before it had rendered their testimony and had weighed with great care the probative value of the evidence in the context of established fact and probability. But the High Court had, in disagreeing with the trial court, adopted an erroneous approach. It proceeded to judge the credibility of the witnesses mainly with reference to their relationship with the parties without placing adequate weight on the nature of the evidence and the probability of its truth in the context of the surrounding circumstances. It rejected the testimony of the appellant 's witnesses substantially on the ground that they were related to the appellant. This cannot, by itself constitute a sufficient basis for discrediting the witnesses. When a witness holds a position of relationship favouring the party producing him or of possible prejudice against ' the contesting party, it is incumbent on the court to exercise appropriate caution when appraising his evidence and to examine its probative value with reference to the entire mosaic of facts appearing from the record. It is not open to the court to reject the evidence without anything more on the mere ground of relationship or favour of possible prejudice. The High Court should also have reminded itself that the witnesses had given their evidence before the trial court which had the opportunity of seeing their demeanour in the witness box and tho appreciation of their evidence by the trial court bad to be given due consideration in the light of that fact. [856C; 857 D; 861 E G; 862 A B] (b) It is well settled that a person who seeks to displace the natural ' succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption ar d its validity. It is also true that the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth. Nontheless the fact of adoption must be proved in tho same way as any other fact. [862 C D] A. Ragavamma and Anr. vs A. Chanchamma and Anr. A.I.R. and. Kishori Lal vs Chaltibai [1959] Supp. 1 S.C.R. 698 referred to. 853 (c) For a valid adoption the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption. In some cases to complete the adoption a "datta homam" has been considered necessary but in the case of the twice born classes no such ceremony is needed if the adopted boy belongs to the same gotra as the adoptive father. [862 E; 863 B] Shoshinath v Krishnasunder (1881) L.R. 7 I.A. 250; Lakshman Singh v Smt. Rupkanwar ; and Bal Gangadhar Tilak vs Shrinivas Pandit (1915) L.R. 42 I.A. 135 referred to. In the instant case the High Court, relying on certain observations made by the Privy Council in Susroogan v Sabitra, held that the trial court had not scrutinised the evidence relating to the performance of the ceremony of giving and talking and also did not have due regard to the probabilities and, on that basis, proceeded to reappraise the evidence in elaborate detail. When the Privy Council made those observations it had in mind cases where it was possible no doubt to make the acknowledgements, observe the ceremonies and give the notices adverted to by it. The High Court applied that standard to a case which was quite different. The issue here was whether the adoption had been effected in circumstances which plainly did not permit time for making acknowledgements, observing elaborate ceremonies and giving notices generally. According to both the parties, Premwati was seriously ill. The appellant 's case is that she was so ill that she wanted to effect the adoption that very day. The respondents have alleged that she was already incapable of any activity. It is inconceivable that any elaborate arrangements for adoption could have been envisaged. In consequence, the High Court misdirected itself in applying a standard of proof to the evidence which the circumstances did not warrant. Even upon the approach adopted by the High Court its findings are vitiated by its failure to consider material evidence on record and by its reaching conclusions not sustainable in reason. The appellant has pleaded the custom of his community that the act of giving and taking suffices to effect a valid adoption and nothing has been shown to indicate that the further ceremony of 'datta homam ' was necessary [863 D H; 864 A D; 864 F; 863 B] Sutroogan vs Sabitra, referred to (d) Separation from a Joint Hindu Family is effected by a clear and unequivocal intimation on the part of a member of the Family to his co sharers of his desire to sever himself from the Family. A mere uncommunicated declaration amounts to no more than merely harbouring an intention to separate. A valid ' partition requires notice to the co sharers of the intention to separate. [869 C E] Girja Bai vs Sadashiv Dhundiraj, [1960] 43 I.A, 151; Bal Krishan and Ors. vs Ram Krishan and Ors., [1931] 58 I.A. 220; A Raghavamma and Anr. vs A Chenchamma and Anr A.I.R. ; Puttrangamma and Ors., vs M.S. Ranganna and Ors. ; and Kalyani (dead) by L. Rs. vs Narayanan and Ors. , ; referred to. 854 In the instant case the trust deed contained a declaration on the part of Jagannathdas of his intention to separate in the event of the adoption deed being found valid by the court but no notice of such intention was given nor could be inferred from Jagannathdas to the appellant. Both the trial court and the High Court rightly rejected the contention that the declaration in the trust deed must R be regarded as effecting partition. [869 E; 869 A]

minal Appeals Nos. 4, 23 and 28 of 1954. Appeal by Special Leave granted by the Supreme Court by its Order dated the 2nd April, 1953, from the Order dated the 12th January, 1953, of the High Court of Judicature at Bombay in Criminal Appeal No. 22 of 1953, arising out of the Judgment and Order dated the 6th October, 1952, of the Court of Sessions Judge, Greater Bombay, in Case No. 20 of 1952. A. K. Basu (J. B. Dadachanji and Naunit Lal, with him) for the appellant in Criminal Appeal No. 4 of 1954. T. Godiwala and B. P. Maheswhari for the appellant in Criminal Appeal No. 23 of 1954. Jai Gopal Sethi (B. P. Maheshwari and T. Godiwala, with him) for the appellant in Criminal Appeal No. 28. M. C. Setalvad, Attorney General for India (Porus A. Mehta and P. G. Gokhale, with him) for the respondent. 1954.October 22. The Judgment of Bhagwati and Venkatarama Ayyar JJ. was delivered by Bhagwati J. Jagannadhadas J. delivered a separate Judgment. 907 BHAGWATI J. Anokhelal Ranjit Singh, original accused I and appellant in Criminal Appeal No. 28 of 1954, Harnarain Nanakchand, original accused 2 and appellant in Criminal Appeal No. 23 of 1954 and Ramkishan Mithanlal Sharma, original accused 4 and appellant in Criminal Appeal No. 4 of 1954, along with one Rubidas Radhelal, original accused 3 since deceased and one Bankelal Devisingh still absconding were charged under section 397 read with section 395 of the Indian Penal Code with having committed dacoity and used deadly weapons at the time of committing the same and were also charged under section 396 of the Indian Penal Code with having committed the murder of Lawrence Quadros at the same time and place and in the course of the same transaction while committing the said dacoity. The trial was held before the Sessions Joe for Greater Bombay with the aid of a special jury. The jury returned unanimous verdicts of guilty against each of the accused and the learned Sessions Judge convicted them and sentenced each of them to transportation for life. An appeal filed by them to the High Court of Judicature at Bombay was summarily dismissed. Special leave was granted to them to appeal to this Court and these three special leave appeals have now come on for hearing and final disposal before us. The prosecution alleged that the Lloyds Bank Ltd. had a branch situated at Hornby Road and had three entrances, the main one on Hornby Road and two others on Outram Road and Bastion Road. It was customary for the Bank to send cash from time to time to the Reserve Bank whenever the Head Cashier thought that there was a surplus. On a day previous to the day when cash was to be sent, the Head Cashier would give the currency notes to the Assistant Cashiers. As a token of having checked up the notes each of the Assistant: Cashiers would put their signatures on the top and the bottom notes in a bundle containing 100 notes of Rs. 100 each, and would affix thereon the rubber stamp of the Bank. These notes then would be tied up in what are known as "thappis" each "thappi" consisting of 10 bundles of 100 notes each. On the day that the cash was to be sent an escort party would go to the 908 Reserve Bank with the cash consisting of two Assistant Cashiers, one European Officer and a peon. The Assistant Cashiers would then put the cash into a leather bag which bag would be attached by an iron chain to the person of the peon. The Lloyds Bank it appears had received a large deposit from the Bank of Iran a few days prior to the day in question and it was decided that an amount of Rs. 12 lakhs should be sent to the Reserve Bank of India on the 20th April, 1951. In the morning of the 20th April, the escort party consisted of Brightling, Sarkari and Doctor and the peon Rama Madura and taxi No. BMT 1829 was summoned to carry the party to the Reserve Bank. The escort party emerged from the rear door of the Bank and went up to the taxi. Bala Gopal Kadam, a watchman, was on duty on Bastion Road. When the escort party came out, the taxi 's bonnet was in the direction of the Empire Cinema and the driver Lawrence Quardros was at the driver 's seat. Brightling got into the taxi first and took his seat on the rear seat and was followed by Rama Madura. Sarkari went round in front and took his seat next to the taxi driver. Rama Madura after entering the taxi placed the bag on the taxi 's floor and was about to take his seat. Doctor was standing with his left hand on the rear door of the taxi on the Bank side waiting for Rama Madura to take his seat. It was at this juncture that accused 1, 2 and 4, Rubidas and Bankelal attacked the taxi and the escort party. One of these persons first wrenched open the door to the taxi driver 's seat, leaned inside and fired twice with a revolver. One of these shots caused an injury to Lawrence Quadros near the collar bone, which almost instantaneously caused his death and his body came out with the head first. The man who so shot after leaning into the taxi went round the front of the taxi and took his seat next to the driver 's seat. There was another man behind this one when the driver was shot, and he pulled out Lawrence Quadros from the taxi and took his seat at the steering wheel. That man was Rubidas one time a motor driver in the employ of the Pan American Airways at Delhi. Accused I also Armed with a revolver stood on the road side of the 909 taxi and fired twice at the taxi from that side and accused 2 and 4 were, either at the back or on the Bank side and were also armed with revolvers. Sarkari first thought that these shots were tyre bursts and naturally got out of his seat to inspect the tyres but hearing further shots he realised that an attempt was being made to loot the cash. He got frightened and went in the direction of Outram Road. Brightling got out of the taxi, first went a little towards the back of the taxi and then seeing that the taxi was surrounded, zigzagged and went towards the junction of Outram and Bastion Roads where he tried unsuccessfully to stop a passing car. Accused 1 who was firing at the taxi came near it, opened the back door of the taxi on the road side with his shoulder and got into the taxi. Accused 2 came towards the rear door of the taxi on the Bank side and fired at Doctor injuring him on the dorsum of his left palm. Kadam at about this time raised his baton, realising that Doctor was in danger whereupon accused 2 shouted "Khabardar, chhod do chale jao, bhago" or words to that effect and shot at him injuring him in his right eye. That injury resulted in the total loss of his right eye. Both the accused 2 and 4 were armed with revolvers. A driver by name Sarvarkhan, was sitting on the foot path near the taxi and seeing :the body of Lawrence Quadros falling out of the taxi 'he tried to go up to him but the accused 4 prevented him from doing so shouting at him "khabardar" and threatened him with his revolver. " During the course of the attack someone of these men shot at Rama Madura. Rama Madura became unconscious and accused 2 and another dragged him out from the taxi. The taxi was then started whereupon Brightling, who was still. on Bastion Road, after making signals to the Cash Department to show as to what was taking place picked up a motor cycle parked near the corner of the Parsi Lying in Hospital and threw it in the way of the taxi but Rubidas, who was driving that taxi, managed to drive it away. The taxi however had to be first driven at a slow speed and one Major Casey, who was standing at the corner of the foot path saw the whole of the incident and also those inside the taxi when it was 910 driven past him. The prosecution alleged that accused 1, 2 and 4, Rubidas and Bankelal surrounded and ,attacked the taxi and its inmates and after snatching away the bag tied to Rama Madura 's belt with the cash containing Rs. 12 lakhs drove away in that taxi. Brightling and some other employees of the Bank after some time secured a car which was parked nearby and went round in search of the taxi but to no purpose. Brightling then reported the matter to the Esplanade Police Station but before that the telephone operator of the Bank, Mrs. Paterson who with Miss Vida Palmer, a clerk, had seen the incident from the window on the mezzanine floor had telephoned to the police and several police officers arrived at the Bank soon after. Lawrence Quadros was already dead and his body was sent to the 'morgue. Doctor, Kadam and Rama Madura, who had all been injured, were sent to St. George 's Hospital. The taxi which was driven away by Rubidas with the accused and Bankelal seated therein was found abandoned at about 1 30 P.m., on that very day by the police not far from the Kashmir Hotel. The police made various efforts to trace accused 4 and Bankelal but were unable to find them and they therefore charge sheeted accused 1, 2 and Rubidas (who was original accused 3) and they were all committed to stand their trial in the Sessions Court. After those proceedings were over the accused 4 was arrested on the 25th December, at Bareli Station, and he too was charge sheeted and was committed to Sessions. Rubidas, the original accused 3, died on the 3rd August, 1952, with the result that accused 1, 2 and 4 stood their trial on the charges under section, 395, 397 and 396 of the Indian Penal Code. The defence of the accused 1, 2 and 4 was that they had nothing to do with the incident in question which took place in the morning of the 20th April, 1951. Though conceding that they had been in Bombay, accused 1 and 4 contended that accused I had left Bombay on the night of the 18th April, and accused 4 had left Bombay either on the 16th or 17th April, for Allahabad, that they were not in Bombay 'on the day in question but were in Allahabad where they had filed 911 two affidavits before one Tondon, the first class Magistrate at Allahabad. Accused 2 also conceded that he had stayed in Astoria Hotel with the accused 4 but, he had left that hotel on the 18th April, and had gone to stay in Kashmir Hotel on that day and had stayed there until the night of the 20th April, when he left Bombay for Delhi. His case was that he had come to Bombay to make purchases for his wedding and his business and that he had nothing to do with the incident in question. Before the learned Sessions Judge the prosecution led the evidence of various witnesses. That evidence may be grouped into three heads. One part of the evidence related to the movements and the activities of the accused before the 20th April, 1951, the other part of the evidence related to the actual participation of the accused in the occurrence which took place at Bastion Road on the morning of the 20th April, between 10 30 and 10 45 A.M., and the last part of the evidence related to the subsequent events including the arrest and the identification of the accused, the recoveries of the tin box containing the revolvers and the live cartridges, the steel trunk containing six 'thappis ' and five bundles of 100 rupee notes and disbursements of cash by the accused towards the end of April, or the beginning of May. The accused were represented by counsel and searching and vigorous cross examination was addressed to all the prosecution witnesses. The trial took considerable time. The counsel addressed the special jury at considerable length and the learned Sessions Judge summed up the whole case to the special jury in a charge which took well nigh three days. It was a very exhaustive and a fair charge and in several respects was favorable to the accused. The learned Judge summed up the evidence which had been led by the prosecution, pointed out the defects as also the contradictions in. the evidence of the several witnesses, administered the necessary warning in regard to the evidence of the identification parades, considered the cases of each of the accused separately and marshaled the evidence which had been led by the prosecution against each of them and fairly put to the jury the 912 questions which they had to determine before they could arrive at their verdict. The jury took time to consider their verdict and returned as stated above unanimous verdicts of guilty against all the accused in respect of both the charges. This being a trial by jury the appellants in order to succeed would have to establish that there were serious misdirections or non directions in the learned Judge 's charge to the jury such as would vitiate the verdict. The main contentions which were urged before us by the learned counsel for the appellants were (1)That evidence inadmissible under section 162 of the Criminal Procedure Code and under section 27 of the Indian Evidence Act had been admitted and that therefore there was an error of law which amounted to a misdirection to the jury; and (2)That there were misdirections in the learned Judge 's charge to the jury which had the effect of misleading the jury or were in any event such as to render the charge unfair and prejudicial to the accused, thus causing a failure of justice. The admission of inadmissible evidence was attacked on two counts: (1)That the evidence in regard to the test identification parades held at the instance of the police and under their active supervision was hit by section 162 of the Criminal Procedure Code; and (2)That the statement of the police officer that it was 'tat the instance of" or "in consequence of certain statement by" the accused that certain discoveries were made was hit by section 27 of the Indian Evidence Act. The investigation in this case was started on the 20th April, 1951, and the Bombay City Police were then governed in the matter of investigation by the provisions of the City of Bombay Police Act (Bombay Act IV of 1902). Section 63 of that Act provided : "(1) No statement made by any person to a police officer in the course of an investigation under this Act shall, if taken down in writing, be signed by the person making it nor shall such writing be used as evidence. 913 There was a proviso to that section which enabled such statements to be used by the accused to impeach the credit of such witness in the manner provided by the . It may be noted that under section 1(2) (a) of the Criminal Procedure Code the Code did not apply to the police in the towns of Calcutta and Bombay and therefore section 162 of the Criminal Procedure Code was not applicable to the investigations made by the Bombay City Police. On the 11th June, 1951, the State Legislature passed the Bombay Police Act (Bombay Act XXII of 1951). Section 167(3) of that Act repealed section 1(2) (a) of the Criminal Procedure Code so far as the police in the town of Bombay were concerned with the result that when this Act came into operation with effect from the 1st August, 1951, the Bombay City Police were also governed by the provisions of Criminal Procedure Code thus bringing into operation the provisions of section 162 thereof in the investigations conducted by the Bombay City Police. Section 162(1) of the Criminal Procedure Code provides: "No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of 'any offence under investigation at the time when such statement was made. " There is a proviso to this sub section which enables the accused to use such statements to contradict such witnesses in the manner provided by section 145 of the . The investigations conducted by the Bombay City Police were after the 1st August, 1951, assimilated to the investigations conducted by the police under the Criminal Procedure Code and oral statements made by persons to police officers in the course of the investigation also came within the ban of ' section 162 and could not be used for any purpose save that specified in the proviso to section 162(1). 914 The provisions of section 162 applied to investigations conducted by the Bombay City Police from and after the 1st August, 1951. They applied to investigations "under this chapter", i.e., investigations conducted under the Criminal Procedure Code, and therefore prima focie did not apply to the investigations conducted by the Bombay City Police prior to the 1st August, 1951, in which case section 63 of the City of Bombay Police Act IV of 1902 was applicable. It was however contended on behalf of the appellants that this section was a procedural one, that nobody had a vested right in any course of procedure, that alterations in procedure were to be retrospective unless there was some good reason against it or unless that construction be textually 'inadmissible [vide Banwars ' Gope vs Emperor(1) and Delhi Cloth Mills vs Incometax Commissioner, Delhi(1)], that the ban under section 162 was operative when evidence in regard to the test identification parades was led before the learned Sessions Judge and that therefore all evidence in regard to these test identification parades whether they had been held before or after the 1 st August, 195 1, was inadmissible. It was contended on the other hand by the learned Attorney General for the respondents that section 167(2) of the Bombay Police Act XXII of 1951 saved by clause (b) thereof any right, privilege, obligation or liability already acquired, accrued or incurred before such date and by clause (d) thereof any investigation, legal proceeding or remedy in respect of such right, privilege, obligation, liability, penalty, forfeiture or punishment and that therefore the investigation which had been made by the police under the provisions of the City of Bombay Police Act IV of 1902 was saved and did not come within the ban of section 162 of the Criminal Procedure Code. Both these contentions are untenable. Section 167(2)could only apply to those rights, privileges, obligations or ' liabilities already acquired, accrued or incurred under the City of Bombay Police Act IV of 1902 before the date of its repeal. An investigation conducted by the police under the provisions of that Act would not (1) A.I.R. 1943 Pat. (2) 915 create or impose any right, privilege, obligation or liability which could be saved by the provisions of section 167 (2) of the Bombay Police Act XXII of 1951. The investigation which bad been conducted up to the 1st August, 1951, would be governed by the provisions of City of Bombay Police Act IV of 1902 and unless there was something in the Bombay Police Act XXII of 1951 which referred to those investigations, all. the incidents of those investigations would be governed by the provisions of the repealed, Act and the question as to the admissibility in evidence of the results of such investigations would also have to be considered 'With reference to the provisions of that Act. Section 162 of the Criminal Procedure Code in terms applied to the investigations conducted "under this Chapter", i.e., Chapter XIV which relates to information to the police and their powers to investigate, whereas section 63 of the City of Bombay Police Act IV of 1902 specifically referred to the investigations conducted "under this Act", i.e., the City of Bombay Police Act IV of 1902. Section 162 of the Criminal Procedure Code therefore applied by reason of the context and the terms of that very section to investigations which had been conducted by the Bombay City Police after the 1st August, 195 1, and would not have a retrospective operation, because the investigations conducted up to the 1st August, 1951, by the Bombay City Police would certainly not be investigations conducted "under this Chapter", i.e., Chapter XIV of the Criminal Procedure Code. There is no substance therefore in either of these contentions and the question as to admissibility in evidence of the statements made in the course of investigation under the City of Bombay Police Act IV of 1902 would have to be considered in the light of the provisions of section 63 of that Act and not section 162 of the Criminal Procedure Code. It may be noted that the test identification parades in regard to the accused I and 2 were all held prior to the 1st August, 1951, and no question could therefore arise as to the provisions of section 162 of the Criminal Procedure Code being applicable to the evidence in 916 I regard to those parades. The test identification parades in regard to accused 4 however were held after the 1st August, 1951, between the 16th January and the 22nd January, 1952, and it remains to be considered how far the evidence in regard to those parades was admissible in evidence having regard to the provisions of section 162 of the Criminal Procedure Code. There has been a conflict of opinion between various High Courts in regard to the admissibility of evidence in regard to these test identification parades. The Calcutta High Court and the Allahabad High Court have taken the view that identification of a person amounts to a statement within section 162 and that therefore the fact of such identification is not admissible in evidence. *The High Court of Madras and the Judicial Commissioner 's Court at Nagpur have taken the contrary view. In Khabiruddin vs Emperor(1) the question arose as to the admissibility of identification of stolen property during investigation in the presence of police officers and it was held that section 162 embraced all kinds of statements made to a police officer in the course of an investigation, that the evidence of the fact of identification is nothing but evidence of the statements which constitute the identification in a compendious and concise form and that therefore any identification of stolen property in the presence of a police officer during investigation was a statement made to a police officer during investigation and was therefore within the scope of section 162. Pointing out by finger or nod of assent in answer to a question was held as much a verbal statement as a statement by word of mouth and no distinction was made between the mental act of the identifier on the one hand and the communication of that identification by him to another on the other. Even the fact of identification by the identifier himself apart from the communication thereof to another was considered to be within the ban of section 162. This decision was commented upon in Surendra Dinda vs Emperor(2). There also the question arose as to the admissibility of the evidence of the sub inspector (1) A.I.R. 1943 Cal. (2) A.I.R. 1949 Cal. 917 of police that the witnesses told him that the articles produced by him were identified by them as their property and the statements by the witnesses themselves A. that they had identified the articles to the sub inspector. It was held that the word "identified" had a ' double meaning. It meant the fact of actual recognition as well as the communication, of that fact to a third person. There was distinction between on the one hand the actual fact of identification which is a mental act on the part of the person identifying, seeing an object or person and recognizing that the object or person seen was identical with some particular object or person and on the other hand the communication to a third person of this mental act. The communication was of course a statement, but the identification by the identifier could not possibly be a statement. The Court however proceeded to observe that no distinction could be legitimately made between an actual verbal statement and some action on the part of the identifier disclosing the fact of his identification. Both were hit by section. The communication of his own mental act of recognition and identification to the police was what was hit but evidence in the Court subsequently by the actual identifier himself was not inadmissible under section 162. The Court further observed that it was not the actual act or process of seeing or recognising the accused in the presence of the officer which was affected by the provisions of the section, it was the communication of that fact to the police officer of which proof could not be given. It therefore held that the accused was entitled to ' object to the evidence of the sub inspector, that the witnesses "identified" the articles to him or the evidence of the witnesses when they said they "identified" the articles in the presence of the sub inspector in so far as, the latter expression was taken to mean and include not only that they recognised the articles as theirs but conveyed the fact of that recognition to the sub inspector. The Allahabad High Court in Daryao Singh vs State(1) followed this decision of the Calcutta High Court in terms without adding any comments of its own. (1) A.I.R. 1952 All. 117 918 These decisions of the Calcutta and the Allahabad High Courts seek to make a distinction between the mental act of identification and the communication of that fact to another person. The mental act of identification is not hit by section 162 but the communication thereof to another person either by an oral statement or even by signs or gestures including the pointing out by finger or nod of assent in, answer to a question put to the identifier in that behalf would come within the ban of section 162. Anything which amounts to a communication of the fact of such identification by the identifier to another person is banned and no evidence in respect thereof can be given in a Court of law under section 162. The High Court of Madras on the other hand in In re Kshatri Ram Singh (1) took the view that any evidence about the statements made by witnesses at the identification parades held by the police in the course of investigation was excluded by section 162, but the fact that witnesses had identified persons at parades held by the police might be proved. In coming to this conclusion the High Court followed an earlier decision of a Division Bench reported in Guruswami Thevan vs Emperor (2). In that case an objection had been taken to the admission of a note of an identification parade held by the police Sub inspector. It was contended that the document embodied a record of statements made by identifying witnesses to the sub inspector and as such was inadmissible under section 162. Mr. Justice Wadsworth who delivered the judgment of the Court observed that the question was not without difficulty, for in the nature of things it was probable that when a witness identifies a person in a parade he does make some statement or other as to the purpose for which he identifies him and anything said by a witness at an identification parade held by the investigating officer might well be considered to come within the purview of section 162. On the other hand the mere act of a witness in picking out one individual from a parade was a revelant circumstance concerning which evidence is admissible and if the investigating officer made a note of that circumstance which he himself had observed, there was no (1) A.I.R. 1941 Mad. 675 (2) 919 apparent reason why that note should, not be used in evidence. If in the course of that note he appends an inadmissible record of the statement of the identifying witnesses presumably any such portion of the note ' would have to be excluded from evidence. He applied that criterion to the document in question and the bare note of the personnel of the parade, the names of the witnesses, the way in which the parade was arranged and the numbers of the persons in the parade identified by each witness were held unobjectionable. 'What was excluded was the statement in regard to the identification of witnesses of the persons as having been concerned in the murder cases which were the subjectmatter of investigation. A distinction was thus made between the physical fact of identification and the statement made by the identifier as regards the persons identified having been concerned in the offence. The Judicial Commissioner 's Court at Nagpur in Ramadhin Brahmin vs Emperor (1) expressed a similar Opinion that evidence of police officers who give evidence with regard to the identification parades which were held and who depose to certain of the accused having been identified by prosecution witnesses in an identification parade was not inadmissible under section 162 as their evidence does not relate to any statement made to the police but is a simple exposition of a fact or circumstances witnessed by themselves. Here also a distinction appears to have been made between the physical fact of identification sought to be proved by the evidence of the police officers and the statements made by the identifier to the police. In order to resolve this conflict of opinion one has to examine the purpose of test identification parades. These parades are held by the police in the course of their investigation for the purpose of enabling witnesses to identify the properties which are the subject matter of the offence or to identify the persons who are concerned in the offence. They are not held merely for the purpose of identifying property or persons irrespective of their connection with the offence. Whether the police (1) A.I.R. 1929 Nag. 920 officers interrogate the identifying witnesses or the Panch witnesses who are procured by the police do so, the identifying witnesses are explained the purpose of holding these parades and are asked to identify the properties which are the subject matter of the offence or the persons who are concerned in the offence. If this background is kept in view it is clear that the process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject matter of the offence or the persons identified were concerned in the offence. This statement may be express or implied. The identifier may point out by his finger or touch the property or the person. identified, may either nod his head or give his assent in answer to a question addressed to him in that behalf or may make signs or gestures which are tantamount to saying that the particular property identified was the subject matter of the offence or the person identified was concerned in the offence. All these statements express or implied including the signs and gestures would amount to a communication of the fact of identification by the identifier to another person. The distinction therefore which has been made by the Calcutta and the Allahabad High Courts between the mental act of identification and the communication thereof by the identifier to another person is quite logical and such communications are tantamount to statements made by the identifiers to a police officer in the course of investigation and come within the ban of section 162. The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification and in so far as a police officer seeks to prove the fact of such identification such evidence of his would attract the operation of section 162 and would be inadmissible in evidence, the only exception being the evidence sought to be given by the identifier him self in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identification of the accused at the trial. We therefore approve of the view taken by the Calcutta and Allahabad High Courts in preference to the view taken 921 by the Madras High Court and the Judicial Commissioner 's Court at Nagpur. The learned Attorney General however sought to make a distinction between the statements made to the police officers and the statements made to the Panch witnesses called by the police officers when conducting the test identification parades. He urged that a statement made to the police officers would be within the ban of section 162. But if in spite of the test identification parades having been arranged, by the police Panch witnesses were called by the police and they explained to the identifying witnesses the purpose of the parades and the identification was made by the witnesses before them though in the presence of the police officers, the Panch witnesses could certainly depose to the fact of identification as also the statement made by the identifying witnesses to them without attracting the operation of section 162. He further urged that in such a case the identification would amount to a statement to the Panch witnesses even though the police officers were present at the time and it would be a question of fact whether the statement was made to the Panch witnesses or to the police officers which question would have to be determined having regard to the circumstances of each case. [Vide Abdul Kader vs Emperor(1) and Rao Shiv Bahadur Singh vs State of Vindhya Pradesh(2)]. He contended that the test identification parades were held in the present case in the presence of the Panch witnesses who were called by the police for witnessing the same, that the Panh witnesses explained to each identifying witness the purpose of holding the parade, that the identification took place in the presence of the Panch witnesses who noted down the result of the identification, that Panchnamas were prepared by the police after the identification was held and were signed by the Panch witnesses and that therefore the, identification of the accused by the identifying witnesses amounted to statements made by the identifiers to the Panch witnesses and not to the police and evidence in that behalf given by the Panch witnesses was therefore admissible in evidence. (1) A.I.R. 1946 Cal. (2) 922 This argument would have availed the learned Attorney General if after arranging the test identification parade the police had completely obliterated themselves and the Panch witnesses were left solely in charge of the parade. The police officers would certainly arrange the parade, would call the persons who were going to be mixed up with the accused in the course of the parade and would also call the Panch witnesses who were to conduct the parade. But once the Panch witnesses were called for the purpose the whole of the process of identification should be under the exclusive direction and supervision of the Panch witnesses. If the Panch witnesses thereafter explained, the purpose of the parade to the identifying witnesses and the process of identification was carried out under their exclusive direction and supervision, the statements involved in the process of identification would be statements made by the identifiers to the Panch witnesses and would be outside the purview of section 162. In the case of the, identification parades in the present case however the police officers were present all throughout the process of identification and the Panch witnesses appear only to have been brought in there for the purpose of proving that the requirements of law in the matter of holding the identification parades were fully satisfied. Not only were the police officers present when the identifying witnesses were brought into the room one after the other and identified the accused, they also prepared 'the Panchnama, read out and explained the contents thereof to the Panch witnesses, and also attested the signatures of the Panch witnesses which were appended by them at the foot of the Panchnama. The whole of the identification parades were thus directed and supervised by the police officers and the Panch witnesses took a minor part in the same and were there only for the purpose of guaranteeing that the requirements of the law in regard to the holding of the identification parades were satisfied. We feel very great reluctance in holding under these, circumstances that the statements, if a any, involved in the process of identification were statements made by the indentifiers to the Panch witnesses and not to the police officers as 923 otherwise it will be easy for the police officers to circumvent the provisions of section 162 by formally asking the Panch witnesses to be present and contending that the statements, if any, made by the identifiers ' were to the Panch witnesses and not to themselves. We are therefore of the opinion that the test identification parades in regard to the accused 4 which were held between the 16th January, and the 22nd January, 1952, attracted the operation of section 162 and the evidence of identification at those parades was inadmissible against accused 4. The question as to the admission of evidence inadmissible under section 27 of the really lies within a narrow compass. The contention in this behalf was based on the evidence of the Investigating Officer, Hujur Ahmed Khan, that on the 16th May, 1951, the accused I made a certain statement in consequence of which he took accused I and 2 to Itawa and leaving the accused 2 there the party proceeded to Bhagwasi with the accused I and his further evidence that the accused 1 there pointed out Baliram who at the instance of accused 1 dug out from a mud house a tin box containing three revolvers and two tins containing live cartridges. Exception was taken to the expressions "in consequence of a certain statement made by accused 1" and "at the instance of accused 1" which it was argued came within the ban of section 27. Section 27 of the runs as under : "Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. " Section 27 is an exception to the rules enacted in sections 25 and 26 of the Act which provide that no confession made to a police officer shall be proved as against a person accused of an offence and that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as 924 against such person. Where however any fact is discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, that part of the information as relates distinctly to the fact thereby discovered can be proved whether it amounts to a confession or not. The expression "whether it amounts to a confession or not" has been used in order to emphasise the position that even though it may amount to a confession that much information as relates distinctly to the fact thereby discovered can be proved against the accused. The section seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But clearly the extent of the information admissible must depend on the exact nature of the fact. discovered to which such information is required to relate. [Kottaya vs Emperor(1)]. On a bare reading of the terms of the section it appears that what is allowed to be proved is the information or such part thereof as relates distinctly to the fact thereby discovered. The information would consist of a statement made by the accused to the police officer and the police officer is obviously precluded from proving the information or part thereof unless it comes within the four corners of the section. If the police officer wants to prove the information or a part thereof, the Court would have to consider whether it relates distinctly to the fact thereby discovered and allow the proof thereof only if that condition was satisfied. If however the police officer does not want to prove the information or any part thereof, section 27 does not come into operation at all. What was stated by the Investigation Officer, Hujur Ahmed Khan, in the present case was that certain information was supplied to him by the accused 1 in consequence of which he took certain steps. He did not seek to prove that information or any part thereof in the evidence which he gave before the Court. Even when he said that Baliram dug out the tin box from the mud floor of a house at (1) A.I.R. 1947 P.C. 67. 925 the instance of the accused I he did not seek to prove what that information was. The operation of section 27 was therefore not attracted and _prima facie there was nothing to prevent that evidence being admitted against the accused 1. Reliance was however placed on an unreported judgment of Chagla C.J. and Gajendragadkar J. delivered on the 11 th January, 1950. in Criminal Appeals No. 454 of 1949 and No. 464 oil, 1949 with revisional application No. 952 of 1949 in the case of Rex vs Gokulchand Dwarkadas Morarka No. 1. An exception was there taken to the statement of the police officer that in consequence of certain statements made by the accused I and 2 in that case he discovered the missing pages of the Bombay Samachar of the 23rd April, 1948, and it was contended that statement was inadmissible in evidence. The question that really arose for the consideration of the Court there was whether the joint statement attributed to the accused I and 2 in that case was admissible without specifying what statement was made by a particular accessed which led to the discovery of the relevant fact and it was rightly held that a joint statement by more than one accused was not contemplated by section 27 and the evidence of Mistry, the police officer, in that behalf should therefore have been excluded. An argument was however addressed by the learned Advocate General who appeared for the State there that Mistry had not attempted to prove what statement the accused had made and all that he said was that in consequence of statements made by them a discovery was made. The learned Judges dealt with that argument as under: "In our opinion, this is a roundabout and objectionable way of attempting to prove the statements made by the accused without actually proving them. When the police officer speaks of "in consequence of a statement made by an accused a discovery was made", he involves the accused in the discovery. Whether he gives evidence as to the actual words used by the accused or not, the connection between the statement made by the accused and the discovery of the relevant fact is clearly hinted at. In our opinion, 118 926 therefore, evidence cannot be given of any statement made by accused which results in the discovery of a fact unless it satisfies the conditions laid down under section 27 and this would be so even if the actual statement is not attempted to be proved by the prosecution. Even if the statement is not proved, the statement must be such as can be proved under section 27." The learned Judges then proceeded to consider the following observations of Rankin C.J. in Durlav Namasudra vs Emperor(1) : "There seems to me to be nothing in section 24 or 25 to prevent evidence being given: 'In consequence of something said by the accused I went to such and such a place and the re found the body of the deceased. ' In cases under section 27 the witness may go further and give the relevant part of the confession." The learned Judges expressed their inability to agree with this view of the law observing that Ran kin C.J. was really dealing academically with the various sections of the and he was not called upon to decide this point. With the utmost respect the learned Judges of the Bombay High Court committed the same error which they thought Rankin C.J. had committed, because immediately thereafter they observed: "We would also like to add that, in the circumstances of this case, this discussion is somewhat academic, because even if we accept the contention of the Advocate General and hold that the statement of the investigating officer is admissible, it cannot, possibly help the prosecution case very much. " What they were considering was the case of a joint statement made by the accused 1 and 2 in that case and these observations made by them expressing their inability to agree with Rankin C.J. 's view of the law were clearly obiter. The evidence of the police officer would no doubt go to show that the accused knew of the existence of the fact discovered in consequence of information given by (1) Cal. 1040,1045. 927 him. But that would not necessarily show his direct connection with the offence. It would merely be a link in the chain of evidence which taken along with other pieces of evidence might go to establish his connection therewith. This circumstance would therefore be quite innocuous and evidence could certainly be given of that circumstance without attracting the operation of section 27. If it were necessary to do so we would prefer to accept the view of Rankin C.J. to the one expressed by the learned Judges of the Bombay High Court. This question as regards the inadmissibility of evidence under section 27 of the must therefore be answered against accused 1. Turning now to the misdirections and non directions such as to vitiate the verdict of the jury, the main misdirection which was pointed out by the learned counsel for all the accused before us was in regard to the question whether four or five persons were concerned in the commission of the offence. Particular exception was taken to paragraph 59 of the learned Judge 's charge to the jury: "Brightling, Baburao Raje, Miss Vida Palmer, Mrs. Paterson and witness Sarkari, if you were to accept his evidence here on this part of the case, were all definite that there were five or more men surrounding the taxi and concerned in the attack while Holmes said that there were at least four, if not more, which means that he was not certain about the number. If you were to find from the statement of Casey that he saw some men trying to pile into the taxi from the rear door. of the taxi on the Bank side, that would suggest that there were at least five men concerned even according to Casey. Consider this question carefully and then if you find after scrutiny of this evidence that there were at least five men conjointly concerned then only section 395 would apply. That briefly was the evidence so far as the question as to the number of men is concerned. " Our attention was drawn to the evidence of these several witnesses and it was pointed out that far from 928 their being definite that there were five or more men concerned in the commission of the offence there was evidence to show that only two persons were occupying the front seats and two persons were occupying the rear seats in the taxi which brought the number of persons to four and not five as contended by the prosecution. Exception was also taken to the manner in which the expression "piling into the taxi from the rear door of the taxi on the Bank side" was sought to be interpreted by the learned Judge, thus belittling the significance of the evidence of Major Casey that when the taxi went past him he saw two persons in the front seats and two persons in the rear seats of the taxi. It was further pointed out that according to the evidence of Miss Vida Palmer and Mrs. Paterson there were only five or six persons there in all. Their evidence did not definitely say that these five persons were the persons concerned in the commission of the offence and that some of them might as well have been passersby or Baburao Raje or Sarvarkhan, who happened to be present there at the scene of the occurrence and were certainly not concerned in the commission of the offence. It was also pointed out that Holmes, the sub manager of the Bank, who witnessed the occurrence from behind the double glasses of the windows was not in a position to know how many persons actually took part in the affair and was also not in a position to see how many persons had got into the taxi. We have carefully considered these criticisms of the evidence of the several witnesses but are unable to come to the conclusion that there was any misdirection on the part of the learned Judge in his summing up to the jury. The evidence of each of these witnesses was discussed by the learned Judge and the main defects and con tradictions in their evidence were clearly pointed out by him to the jury. The actual words used by him in the paragraph in question were that the several witnesses were all definite that there were five or more men surrounding the taxi and concerned in the attack and on the evidence as a whole we do not see any exception to the correctness of that statement. The explanation which was given, of the expression 929 "piling into the taxi from the rear door of the taxi on the Bank side" was also unobjectionable. The words " piling into the taxi" could certainly be appropriate when describing the getting into the taxi of "some other persons" and. that expression certainly was capable of being understood to mean that more than one person was trying to get into the taxi from its rear door on the Bank side. All these points were clearly put by the learned Judge to the jury and we are of the opinion that there was no misdirection at all in that part of the learned Judge 's summing up to the jury. It was strictly within the province of the jury on the evidence as it was summed up by the learned Judge to them on this aspect of the question to come to the conclusion whether four or five persons were concerned in the commission of the offence and they brought in a unanimous verdict of guilty under section 395 of the Indian Penal Code. The other misdirections which were sought to be pointed out by the learned counsel for the accused I and 2 were minor misdirections, if any, and need not detain us, as we are clearly of the opinion that even though those misdirections were there they were not such as to vitiate the verdict of the jury. We must however advert to the serious misdirection which it was contended was apparent on the face of the learned Judge 's charge to the jury and which was the result of the learned Judge 's not bringing into prominence the various points which could be urged in favour of the accused. It was contended that the learned Judge merely reiterated in various places the story of the prosecution and did not point out the weaknesses or the defects in that story, that he did not advert to the various criticisms which were leveled against the story of the prosecution by the counsel for the defence, that he did not point out to the jury the improbabilities of the prosecution story or the incredibility of the prosecution witnesses in regard to the salient features of the prosecution case, that he did not draw the pointed attention of the jury to the infirmities attaching to the prosecution evidence in regard to the test identification parades and that the learned Judge 's summing up to 930 the jury was on the whole unfair and prejudicial to the accused. Section 297 of the Criminal Procedure Code lays down that in cases tried by jury, when the case for the defence and the prosecutor 's reply (if any) are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided. The Judge lays down the law and directs the jury on questions of law. So far as the facts are concerned however they are within the exclusive province of the jury. But even there the Judge has to sum up the evidence for the prosecution and defence. Summing up does not mean that the Judge should give merely a summary of the evidence. He must marshall the evidence so as to bring out the lights and the shades, the probabilities and the improbabilities so as to give proper assistance to the jury who are required to decide which view of the facts is true. Vide Ilu vs Emperor(1). The Judge should give the jurv the help and guidance which they are entitled to expect from the Judge and which it is his duty to give. The charge should not consist of a long rambling repetition of the evidence, without any attempt to marshall the facts under appropriate heads, or to assist the jury to sift and weigh the evidence so that they will be in a position to understand which are the really important parts of ' the evidence and which are of secondary importance. It is necessary in every criminal case for the Judge carefully, properly and efficiently to charge the jury and he should not go into unnecessary details with regard to such aspects of the case which are really of very little importance. Vide Nabi Khan vs Emperor(2) It has been observed by the Privy Council however in Arnold vs King Emperor(6), that " A charge to a jury must be read as a whole. there are salient propositions of law in it, these will, of course, be the subject of separate analysis. But in a protracted narrative of fact the determination of which is ultimately left to the jury, it must needs be that the (1) A.I.R. 1934 Cal. (2) A.I.R. '1936 Cal. (3) Cal. 931 view of the Judge may not coincide with the view of others who look upon the whole proceedings in black type. It would, however, not be in accordance with usual or good practice to treat such cases as cases of misdirection, if, upon the general view taken, the case has been fairly left within the jury 's province. But in any case in the region of fact their Lordships of the Judicial Committee would not interfere unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred. '? Bearing these principles in mind we have got to scrutinise how far these criticisms levelled against the learned Judge 's charge to the jury are of any avail. We have been taken into the evidence of the several witnesses in great detail by the learned counsel for the accused but we are unable to come to the conclusion that there is any serious misdirection such as to vitiate the verdict of the jury or that there has been a failure of justice. The learned Judge 's charge to the jury has been scrupulously fair and he has in several places brought out the points which militate against the story of the prosecution and support the defence version. He has been at pains to point out the various defects and contradictions in the evidence of the prosecution witnesses and has fairly put it to the jury to consider whether in view of the same they would accept the testimony of the several witnesses. He has marshalled the evidence against each of the accused separately and has also pointed out in their proper places the criticisms which have been levelled against the evidence of the prosecution witnesses in regard to each of the accused, Apart from the general observations which he made in regard to the scrutiny of the evidence of the test identification parades he has also in appropriate places reiterated the warning in regard to that evidence and has put the jury wise to the whole position in regard to such evidence. On reading the charge as a whole we are of the opinion that there is nothing in the learned, Judge 's charge to the jury which would, to use the words of their Lordships of the Privy Council, " amount to a complete misdescription of the whole bearing of the evidence" or that "there is any failure of justice, 932 We are unable to agree with the submission made by the learned counsel for the accused before us that the charge was grossly unfair or contained any serious misdirection or non direction such as to vitiate the verdict of the jury. The result therefore is that so far as the verdict of the jury against accused I and 2 is concerned the same was not vitiated either by the admission of inadmissible evidence or by any misdirection or non direction. The convictions of these accused and the sentences passed upon them by the learned Sessions Judge will therefore be confirmed. As regards accused 4 however there has been an error of law in admitting evidence of the test identification parades in regard to him which we have held was inadmissible under section 162 of the Criminal Procedure Code. The admission of such inadmissible evidence would amount to a misdirection in the learned Judge 's charge to the jury in regard to that accused and it is necessary therefore to consider what would be the effect of the admission of such inadmissible evidence so far as that accused is concerned. Learned counsel for the accused relied upon the observations in Kabiruddin vs Emperor(1), that it was impossible to ascertain what was the effect of this evidence on the minds of the jury and that it was also impossible to say that this inadmissible evidence did not have considerable effect on the jury and their verdict. He therefore urged that the verdict should be set aside and the case remanded for retrial. A later decision of the Calcutta High Court reported in Surendra Dinda vs Emperor(1), however, took the view that every breach of section 162 would not vitiate a trial. Reception of evidence inadmissible under section 162 was not necessarily fatal and in an appeal the Court had to see whether the reception influenced the mind of the jury so seriously as to lead them to a conclusion which might have been different but for its reception. It must always be a question whether prejudice had been caused in such cases, and, if not, whether the materials (1) A.I.R. 1943 Cal. 644, 646, (2) A.I. R. 933 left were sufficient within the meaning of section 167 of the . The position in this behalf has got to be considered with reference to the provisions of section 537 of the Criminal Procedure Code and section 167 of the . Section 537 of the Criminal Procedure Code provides: " Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account. . (d) of any misdirection in any charge to a jury, unless such. . . misdirection has in fact . occasioned a failure of justice. " Section 167 of the provides: "The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised, that independently of the evidence objected to and admitted, there, was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision. " The latest pronouncement on this question was the decision of the Privy Council in Abdul Rahim vs KingEmperor(1), where it was laid down that where inadmissible evidence had been admitted in a criminal case tried with a jury, the High Court on appeal may, in view of section 167 of the after excluding such inadmissible evidence, maintain 'a conviction, provided that the admissible evidence remaining was, in the opinion of the Court, sufficient clearly to establish the guilt of the accused. It was observed that Misdirection is not in itself a sufficient ground to justify interference with the verdict. The High Court must under the provisions of section 423, subsection 2 and section 537 of the Criminal Procedure Code proceed respectively to consider whether the (1) (1946) L.R. 73 I.A. 77. 119 934 verdict is erroneous owing to the misdirection or whether the misdirection has in fact occasioned a failure of justice. If the Court so finds, then its duty is to interfere. In deciding whether there has been in fact a failure of justice in consequence of a misdirection the High Court is entitled to take the whole case into consideration and determine for itself whether there has been a failure of justice in the sense that a guilty man has been acquitted or an innocent one convicted. " This decision was followed by our Court in Mushtaq Husain vs State of Bombay(1) and the Court held that where a jury has been misdirected and has based its verdict on assumptions and conjectures, the Supreme Court may order a retrial or remit the case to the High Court with a direction that it should consider the merits of the case in the light of the decision of the Supreme Court and say whether there has been a failure of justice as a result of the misdirections, or it may examine the merits of the case and decide for itself whether there has been a failure of justice in the case and that in deciding whether there has been in fact a failure of justice in consequence of a misdirection the Court would be entitled to take the whole case into consideration. This Court discussed the statute law in India which in certain circumstances permitted an appeal against a jury verdict and authorised the appellate Court to substitute its own verdict on its own consideration of the evidence and came to the conclusion that unless it was established in a case that there had been a serious misdirection by the Judge in charging the jury which had occasioned a failure of justice and had misled the jury in giving its verdict, the verdict of the jury could not be set aside. What has therefore got to be done in cases where inadmissible evidence has been admitted and has been incorporated in the learned Judge 's charge to the jury is to exclude the inadmissible evidence from the record and consider whether the balance of evidence remaining thereafter is sufficient to maintain the conviction. A question was raised in this connection by the learned Attorney General whether having regard to (1) ; 935 the observations of their Lordships of the Privy Council in Abdul Rahim vs King Emperor (supra) and of this Court in Mushtaq Husain vs State of Bombay (supra) the Court was justified in considering the balance of evidence for itself and substituting its own verdict for the verdict of the jury. He relied upon the observations of the Privy Council approving the decision in Mathews vs Emperor(1) to the effect that the appellate Court was entitled to examine the evidence to see whether it justified the verdict pronounced or whether there had in fact been a failure of justice and also upon the observations of Mr. Justice Mahajan, as he then was, to the effect that on the materials on record no reasonable body of men could have arrived at the verdict. There is no doubt that these observations occur in the judgments above referred to. But if these judgments are read as a whole they go to show that it is for the Court of Appeal to take the whole case into consideration and determine for itself whether the verdict pronounced by the jury was justified or whether there had been in fact a failure of justice. The merits of the case, had to be examined by the Court. of Appeal and the Court had to decide for itself whether the conviction could be maintained. As a matter of fact this very question was mooted before the Privy Council in Abdul Rahim vs KingEmperor(2 ) as under: "The controversy which, as the reported cases show, has long existed in the High Courts of India has centered round the question whether the appellate court, in deciding whether there is sufficient ground for interfering with the verdict of a jury, particularly where there has been a misdirection by the judge, has the right and duty to go into the merits of the case for itself and on its own consideration of the evidence to make up its mind whether the verdict was justified or not. On the one hand, it has been said that the accused is entitled to have his guilt or innocence decided by the verdict of a jury and that the appellate court has no right to substitute its own judgment in place of a verdict by a jury. On the other hand, it (1) A.I.R. 1940 Lah. 87. (2) (1946) L.R. 73 I.A. 77, 93. 936 is argued that it is impossible for the court to perform the duty laid on it by the Code without applying its own mind to the soundness of the verdict. " Section 537 of the Criminal Procedure Code was then referred to as also the two distinct lines of cases supporting these ,divergent points of view. The, Privy Council then came to the conclusion that the ratio of cases beginning with Elahee Buksh(1) and ending with Mathews vs Emperor(1) was correct and held that the Court was entitled to examine the evidence for itself and see whether it justified the verdict pronounced or whether there had in fact been a failure of justice. The Court of Appeal is thus entitled to substitute its own verdict for the verdict of the jury if on examining the record for itself it comes to the conclusion that the verdict of the jury was erroneous or that there has been a failure of justice in the sense that a guilty man has been acquitted or an innocent man has been convicted. It is therefore necessary to consider whether the balance of evidence on the record after excluding the evidence of test identification parades in regard to accused 4 is sufficient to maintain his conviction. We have been taken through the evidence which wag led on behalf of the prosecution seeking to prove that accused 4 was concerned in the commission of the offence. Baburao Raje was no doubt characterised as an unreliable witness. But even apart from his evidence there was evidence of Sarvarkhan which was sufficient to establish the participation of accused 4 in the offence. His presence at the scene of the occurrence and his participation in the offence was clearly deposed to by Sarvarkhan and we see no reason in spite of the criticisms levelled against his evidence by learned counsel to discard his testimony in that behalf. There is also sufficient evidence of his previous conduct, his association with the accused I and 2, his activities in Bombay after he arrived there from Delhi in the beginning of April, 1951, in regard to the renting of rooms and garage from Tayabali Vaid and attempting to acquire the Vauxhall and the Chevrolet cars from ' Haribhau and Ramdas respectively, his (1) (2) A.I.R. 1940 Lah. 87. 937 conversations with Lalchand and in particular (1) the conversation outside the Sandhurst Road Branch of the Central Bank of India Ltd., and (2) the conversation at Apollo Bunder near the Sea Wall where he, accused 1 and Lalchand had gone after having the hair cut at the Taj Mahal Hotel and survey of the site of the Lloyds Bank by him along with the other accused as deposed to by Chinoy and Ramesh Chandra Mehta which make it highly probable that he must have been present at the scene of the occurrence and must have participated in the commission of the offence as deposed to by Sarvarkhan. His subsequent conduct also in leaving Bombay by the Calcutta Mail bound for Allahabad on the night of the 20th April, 1951, and the expression of relief at his finding accused 1 at the last moment entering his compartment, proved as it is by the evidence of Gogte contrary to his own assertion and the assertion of accused 1 that they had left Delhi for Kanpur on the 18th April, 1951, and had sworn an affidavit there before the Magistrate, Mr. Tandon, also support the same conclusion. All this evidence in our ' opinion is sufficient to establish the case of the prosecution against him and we are satisfied that even excluding the evidence of the test identification parades in regard to him the balance of evidence remaining on record is enough to maintain his conviction. The result therefore is that the appeals of all the accused fail and must stand dismissed. JAGANNADHADAS J. I agree that the appeals should be dismissed. But I consider it necessary to make a few observations as regards the questions debated before us in these cases with reference to section 162 of the Criminal Procedure Code and section 27 of the . I agree that the objection under section 162 of the Criminal Procedure Code to the admissibility of evidence relating to identification parades does not apply to those held prior to the 1st August, 1951. The only identification parade, therefore, objection to the admis. sibility of which requires consideration is that which relates to the fourth accused held in January, 1952. 938 The evidence in this behalf has been given by (1) the Police Inspector, P.W. 80, Huzur Ahmed Mahomedali Khan, (2) the Panch witness, P.W. 113, Damodar Dayaram, and (3) the two eye witnesses, P.Ws. 13 and 15, Baburao Parshram Raje and Sarwarkhan. An attempt has been made to argue before us that while the evidence of the police officer may be inadmissible, the evidence of the Panch witness as well as of the identifying witnesses themselves, relating to the fact of the prior identification, as an item of corroborative evidence is admissible. I agree that, on the evidence given in this case, there is no scope for such differentiation and that the entire evidence relating to the prior identification parades concerning the 4th accused is, in Substance, evidence only of the prior statements of the identifying witnesses to, the police officer and is hence inadmissible. But I wish to guard myself against being understood as having assented to the suggestion that in law a, differentiation can be made in such cases between the three classes of evidence, viz., (1) of the police officer, (2) of the Panch witness, and (3) of the identifying witness himself, in so far as they speak to a prior identification at a parade held by the police officer. I am inclined to think that such differentiation is unsound and inadmissible. The legal permissibility thereof is a matter of importance because, though the evidence of prior identification is only corroborative evidence, still such corroboration is of considerable value in cases of this kind. Next as regards the objection to the admissibility of evidence raised with reference to section 27 of the , the main items of evidence are (1) the recovery on the 16th May, 1951, of a tin box containing three revolvers and two tins containing live cartridges, and (2) the find on the 19th May, 1951, of a steel trunk containing Government currency notes of the value of Rs. 6,47,400 on the production thereof by Kamalabai, the wife of the first accused, at a village Bhagwasi which is her native place. So far as the first is concerned it is not of much consequence because the expert evidence did not show that any of the three bullets which were found at the scene of offence were 939 in fact fired from the three revolvers above recovered and this has been sufficiently indicated in the charge to the jury. It is the second item that is of importance. This arises from the fact that some of the currency notes had identification marks showing that they were part of the bundle of notes which formed the object of the offence. The evidence in this behalf is that of the Police Inspector, P.W. 80, which is as follows: "We started from Delhi at about 6 'A.M., and reached Bagwasi at about 2 or 3 P.m., on the 19th of May. The 1st accused took us to a certain house where he pointed out witness Kamala (wife of the first accused). At the instance of the 1st accused witness Kamala brought from somewhere outside that house a steel box. . . When it was opened I found therein six big bundles and five smaller bundles of hundred rupee G. C. Notes. " The portion in this evidence which is objected to is that this production was "at the instance of the first accused" seeking thereby to establish the direct connection of the first accused with the find of this very large sum of money which bears indications that it was out of that lost to the Bank by the offence. It may be that when a police officer speaks to a recovery being "on the information of" or "at the instance of" an accused, section 27 of the is not in terms attracted. But what is objected to on behalf of the appellants is that when a police officer speaks to a recovery of this kind as having been "at the instance of an accused" or "in consequence of information given by an accused" he is being allowed to place on record not merely the fact of his having received some information but also the implication thereof, viz., that the information is of a character which directly con nects the accused with the objects recovered. It is urged that the prosecution cannot be permitted to rely on such evidence without placing the admissible portion of the information on the record. I am inclined to think that there is considerable force in this objection. The information given by ;in accused in such a situation may be such which, if scrutinised, shows only his 940 remote connection and not direct connection. In such a situation evidence of the bare fact of information having been given may be inadmissible and such evidence may cause serious prejudice. I am not, therefore, prepared to say that the view expressed by Chief Justice Chagla in the unreported judgment(1), placed before us is erroneous. I would reserve my opinion in this behalf for fuller consideration. In the present case, however, even if the evidence of the police officer that the recovery was at the instance of or in consequence of information furnished by the first accused is ruled out, there is still the fact spoken to by him that the trunk containing the currency notes was produced by Kamalabai, wife of the first accused, at her native place. This item of evidence is clearly admissible against the first, accused as indicating his connection. Therefore no prejudice can be said to have been caused. It is also to be noticed that no objection under sect ion 27 of the appears to have been taken at the trial nor is there any indication of it in the grounds of appeal to the High Court. In view of our opinion that the evidence of identification parades relating to. the fourth accused was inadmissible, we were 'taken through the rest of the evidence as against this accused. I agree, on a consideration of that evidence, that this is not a case in which interference with the verdict even as against the fourth accused is called for. Appeals dismissed. (i) judgment of the Bombay High Court in Criminal Appeals Nos. 454 and 464 Of 1949 in the case of Rex vs Gobutchand Dwarkadas Morarka No. I, delivered on the 11th January, 1950.

The appellant obtained lease of an open land for construction of buildings. After the constructions, the appellant applied for determination of standard rent under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The application was rejected holding that the provi sions of the Act did not apply to open land let for construction. This view was confirmed by the High Court. Sometime thereafter in another case the High Court held that the question whether the provisions of the Act applied to any particular lease must be determined on its terms and a building lease in respect of an open plot was not excluded from the provisions of the Act solely because open land may be used from residence or educational purposes only after a structure is built thereon. Relying upon this judgment, the appellant filed a fresh application for determining the standard rent. The Trial Judge rejected the application holding that question of the applicability of the Act was res judicata since it had been finally decided by the High Court between the same parties in respect of the same land in the earlier proceeding for fixation of standard rent. The order was confirmed by first appellate court and on further appeal by the High Court. HELD:The judgment did not operate as res judicata. A question relating. to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the court holds that it has no jurisdiction, the decision will not, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the decision will not operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise. in determining the application of the rule of res judicata the court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in section 11, Code of Civil Procedure means the right litigated between the parties, i.e., the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded_ from challenging the validity of that order because of the rule of res judicata, for a rule of procedure cannot supersede the law of the land. 83 1 if the decision in the previous proceeding be regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of_the Court, in derogation of the rule declared by the Legislature. [835G 836 F] Parthasardhi Ayyangar vs Chinnakrishna Ayyangar, I.L.R. , Chamanlal vs Bapubhai, I.L.R. , Kanta Devi vs Kalawati, A.I.R. 1946 Lah. 419,, Tarini Charan Bhattacharjee vs Kedar Nath Haldar, I.L.R. , and Broken Hill Proprietary Company Ltd. vs Municipal Council of Broken Hill, , approved. Chandi Prasad vs Maharaja Mahendra Mahendra Singh, I.L.R. 23 All. ,5, disapproved. Bindeshwari Charan Singh vs Bageshwari, Charan Singh, L.R. 63 I.A. 53, doubted.

Civil Appeal No.4 of 1958. Appeal by special leave from the decision dated September 19, 1956, of the Labour Appellate Tribunal of India, Calcutta, in Appeal No. Cal. 235/56. B. Sen, section N. Mukherjee and B. N. Ghose, for the appellants. Sukumar Ghose, for the respondents. 46 1959. October 16. The Judgment of the Court was delivered by WANCHOO J. This appeal is directed against the decision of the Labour Appellate Tribunal of India in an industrial matter. The appellant is a partnership concern carrying on business in the manufacture of pharmaceutical products. There was a gratuity scheme in force in the appellant concern for a long time. This scheme was modified by an award of the industrial tribunal dated August 18, 1952 (hereinafter called the Award), and since then the modified scheme has been in force. The financial condition of the appellant deteriorated and consequently, it was compelled to retrench a number of workmen. It, therefore, applied to the Appellate Tribunal under section 22 of the Industrial Disputes (Appellate Tribunal) Act (No. XLVIII of 1950), for permission to retrench 89 workmen. The Appellate Tribunal granted permission for retrenchment of 75 workmen only. Consequently, after obtaining such permission, the appellant retrenched the workmen and paid them compensation as provided in section 25F of the (hereinafter called the Act). Thereupon a dispute was raised by the retrenched workmen through the union in existence in the appellant concern for gratuity on retrenchment under the award. This dispute was referred to the Second Industrial Tribunal, West Bengal, on March 23, 1956, for adjudication in the following terms: " Whether the seventy five retrenched employees (as per attached list) are entitled to gratuity in addition to retrenchment benefits ?" There was another matter included in the reference, but we are not concerned with that in the present appeal. The Industrial Tribunal came to the conclusion that the retrenched workmen were only entitled to relief as provided under section 25F of the Act and were not entitled to any gratuity under the Award over and above the compensation payable to them under the Act. Then followed an appeal by the workmen to the Appellate Tribunal which was allowed. The Appellate Tribunal held that the workmen were entitled to gratuity 47 under the Award, as gratuity benefit therein was not a retrenchment benefit. The appellant then applied for special leave to appeal, which was granted; and that is how the matter has come up before us. The general question has been considered by this Court in The Indian Hume Pipe Company Limited vs Its Workmen (1), judgment which is being delivered today. As the penultimate paragraph in that judgment shows, special considerations may arise on the terms of agreements or awards in particular cases and it is this aspect which falls to be considered in the present appeal. The sole question, therefore, for determination in this appeal is whether the retrenched workmen are entitled under the Award to gratuity provided therein in addition to retrenchment benefit under section 25F of the Act. We may therefore reproduce here the relevant part of the Award, which is in these terms: " The following gratuity scheme shalt be for cases of retrenchment or termination of service by the company for any reason other than misconduct or for cases of resignation with the consent of the management. The gratuity will be paid up to a maximum of 15 months ' basic pay at the following rates. The period of service to qualify for the gratuity shall be one year. Consistently with the modification about the maximum qualifying service, the basic pay for the purpose of gratuity shall be the average of the last 12 months ' basic pay drawn by the workmen concerned. " Then followed the rates; and it was also provided that no gratuity would be payable before the completion of one year of service and that persons discharged for misconduct would not be entitled to any gratuity. Finally, it was provided that in case of death of an employee, his widow or children or other dependents would be granted gratuity on the above basis. It will be seen that the Award is a composite scheme providing for what is termed gratuity therein under three conditions, namely, (1) where there is retrenchment, (ii) where there is termination of service for any (1) 48 reason other than misconduct, and (iii) where there is resignation with the consent of the management. Though the word " gratuity " has been used to cover all these three cases, it is clear that cases of retrench ment as such are also covered by the Award and payment to workmen retrenched has been called "gratuity". The name given to the payment is, however, not material and it is the nature of the payment that has to be looked into. Now, under this Award, it is obvious that this payment on retrenchment though called gratuity is really nothing more nor less than compensation on account of retrenchment. Further it is obvious from the terms of the Award that a retrenched workman could claim gratuity under the Award only oil account of retrenchment and could not claim it under the other two conditions therein. In other words, on a fair and reasonable construction of the Award, what the retrenched workman got is only compensation for retrenchment and not any amount by way of gratuity properly so called. This brings us to the provisions of the Act with respect to retrenchment. " Retrenchment " is defined under section 2 (oo) and means " the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superan nuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (c) termination of the service of a workman on the ground of continued illhealth ". If this definition is compared with the provisions of the Award, it will be found that the Award provides payment not only for retrenchment as such but also for other termination of service which is specifically excepted from the definition of " retrenchment ". Clauses (a) and (b) of section 2 (oo) are provided in the Award by the words "cases of resignation with the consent of the management ". Similarly, clause (c) of section 2 (oo) is provided for by the words " termination of service by the company for any reason other 49 than misconduct ". It is, therefore, obvious that the Award provides not only for payment on retrenchment but also for payment on termination of service for any reason other than misconduct and on retirement. It is thus a composite scheme; and merely because the payment is called gratuity even where it is payable on account of retrenchment, it cannot be anything other than compensation so far as the part of the Award relating to retrenchment is concerned. Chapter VA, containing sections 25F and 25J, with which we are concerned, was added in the Act by Act 43 of 1953, with effect from October 24, 1953. The reason for this addition was that though there were schemes in force in many concerns for payment to workmen on ,retrenchment, there were many other concerns where no such schemes were in force and the workmen got nothing on retrenchment unless there was an award by a Tribunal. Besides, where schemes were in force or awards were made rates of payment on retrenchment varied. The legislature, therefore, thought it fit by enacting Chapter VA to provide by section 25F a uniform minimum payment to workmen on retrenchment. This payment was called compensation. Section 25F provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched without payment of compensation which shall be equivalent to fifteen days ' average pay for every completed year of service or any part thereof in excess of six months. Then comes section 25J, sub section (1) whereof provides that the provisions of Chapter VA shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders. There is, however, a proviso to sub section (1), which says that nothing contained in the Act shall have effect to derogate from any right which a workman has under any award for the time being in operation or any contract with the employer. This clearly means that if by any award or contract a workman is entitled to something more as retrenchment compensation than is provided by section 25F, the workman will be entitled to get that and the provisions of section 25F will not derogate 7 50 from that right of the workman, i.e., will not reduce the compensation provided under the award or contract to the level provided under section 25F. It is obvious that it was not the intention of the legislature that a work man on retrenchment should get compensation twice,i.e., once under the Act and once under the scheme in force providing for retrenchment compensation, by whatever name the payment might have been called. We cannot agree with the Appellate Tribunal that the payment of gratuity in the event of retrenchment has nothing to do with the compensation payable to a workman under section 25F of the Act. The Appellate Tribunal seems to have been carried away by the word " gratuity " used in the Award and it seems to think that gratuity on retrenchment is something different from compensation on retrenchment. We are of opinion that this is not correct. Whether it is called "gratuity " or ,compensation " it is in substance a payment to the workman on account of retrenchment; and if a scheme like the present specifically provides payment for retrenchment as defined in section 2(00), we see no justification for compelling that payment twice over, once under section 25F and again under the scheme in force in the concern. The matter would be different if the scheme in force in any concern or any award provides gratuity which is different in nature from the retrenchment compensation under section 25F. We also cannot agree with the Appellate Tribunal that this gratuity under the Award in this case is not a retrenchment benefit. We have already analysed the Award above and shown that it deals with three contingencies, and one of them is payment due on retrenchment. On the terms, therefore, of the Award in this case it must be held that gratuity provided therein on retrenchment is nothing more nor less than retrenchment compensation provided under section 25F of the Act, and the workmen are only entitled to one or the other, whichever is more advantageous to them in view of section 25J. In the circumstances we are of opinion that the Industrial Tribunal was right in holding that the scheme of the Award in this case providing for gratuity on retrenchment was exacty the same as compensation 51 provided under section 25F, and as the provisions of section 25F are better than the provisions of the Award in respect of retrenchment the workmen would be entitled to compensation provided under section 25F only, and not both under that section and under the Award. The appellant has already paid the compensation provided under section 25F; the workmen therefore are not entitled to anything more under the Award. We therefore allow the appeal, set aside the decision of the Appellate Tribunal and restore that of the Industrial Tribunal in this matter. As this question has come up to this Court for the first time, we order the parties to bear their own costs. Appeal allowed.

The suit out of which the present appeal arose was one for redemption of some occupancy lands, owned and mortgaged by two brothers, S and A, the Khata of the lands standing in the name of S as the registered occupant under section 74 of the Bombay Land Revenue Code, 1879. The mortgage, which was a usufructuary one, was executed by S and A in 1888 in favour of the predecessors in interest of the appellants. By a Rajinama filed under section 74 of the Code in 1900, S made an unconditional 88 694 surrender of the occupancy. On the same day the mortgagees by a Kabuliyat prayed that the occupancy in the mortgaged property might be granted to them. Both the Rajinama and the Kabuliyat were granted by the Mamlatdar. By the Rajinama S did not, however, purport to relinquish the occupancy on behalf of A. After the death of S, A applied to the Mamlatdar for the cancellation of the transfer in favour of the mortgagees and registering the mortgaged property in his name. That application was rejected. The heirs of S, claiming also to be the heirs of A, brought the suit for redemption. The defence of the appellants was that the plaintiffs were not the heirs of A and that the right of redemption in the entire occupancy had been extinguished by the Rajinama. The administrators of the estate of A were then added as defendants but were later on transposed to the category of co plaintiffs. The courts below found against the appellants. Hence this appeal by special leave. The question for determination was whether the surrender by S amounted to a relinquishment of the entire occupancy including the share of A. Held, that the Rajinama could in no way affect the right of A to his share, in the occupancy and the right of redemption in respect of his share still subsisted. Under section 74 of the Bombay Land Revenue Code, 1879, rightly construed, the registered occupant had no inherent or independent right, in the absence of any authority, express or implied, which must be clearly pleaded and strictly proved, to give a notice of relinquishment so as to affect the interest of other occupants as well. Although the section conferred certain rights and imposed certain obligations on the registered occupant, it was not intended to take away the rights of other occupants. Lalchand Sakharam Marwadi vs Khendu Kedu Ugbade, 22 Bom. L.R. 1431, referred to. Held, further, that even though A 's application to get the mortgaged property registered his name had failed, there could be no question of adverse possession since the possession of the mortgagees had a lawful origin in the usufructuary mortgage. Nor could a mere assertion of adverse title affect the subsisting equity of redemption or shorten the prescribed period of limitation for the suit. Khiarajmal vs Diam, I.L.R. , referred to.

Appeals Nos. 351 356 and 358 369 of 1960. Appeals by special leave from the Award Part 1 of the Industrial Court, Bombay, in References IC Nos. 261, 297, 238, 241, 248, 263, 266, 271, 301, 302, 257, 237 296: 299, 300, 283 and 284 of 1959. 3 N. A. Palkhivala, I. M. Nanavati, section N. Andley J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants in C. A. No. 351 of 1960. N. A. Palkhivala, J. B. Mehta, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant; in C.As. Nos. 352 and 358 of 1960. R. J. Kolah, J. B. Mehta, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants in C.As. Nos. 353 and 362 of 1960. I. M. Nanavati, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants in C. As. Nos. 354, 356, 363 365, 367 and 369 of 1960. J. B. Mehta, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants in C. As. Nos. 355, 359 361, 366 and 368 of 1960. section R. Vasavada, for the respondent in C. As. Nos. 351, 352, 355, 358, 360 364, and 368 of 1960. N. H. Shaikh, for the respondent in C. As. Nos. 353 and 365 of 1960. N. M. Barot, for the respondent in C. As. Nos. 354, 359 and 367 of 1960. K. L. Hathi, for the respondent in C. As. Nos. 366 and 369 of 1960. December 7. The Judgment of Gajendragadkar, Sarkar, Wanchoo and Mudholkar, JJ. was delivered by Wanchoo, J. Subba Rao, J. delivered a separate Judgment. WANCHOO, J. These eighteen appeals by ' special leave raise a common question and will be dealt with by this judgment. The appellants are certain cotton textile mills in Ahmedabad while the respondent in each appeal is the Textile Labour Association, Ahmedabad, which is a representative union of the cotton textile workers in Ahmedabad. The total number of cotton textile mills in Ahmedabad is 66; therefore, 66 references under section 73 A of the Bombay Industrial Relations Act, No. XI of 1947 (hereinafter called the Act), were made to the industrial court for arbitration of disputes arising out of notices of change 4 given by the respondent making a demand for bonus for employees of textile mills in Ahmedabad. It appears that there was an agreement between the Textile Labour Association and the Ahmedabad Mill owners ' Association representing the member mills on June 27, 1955 (hereinafter referred to as the Agreement), with respect to payment of bonus by the mills to their employees. The Agreement was to remain in force for a period of five years, beginning with January 1, 1953, and ending with December 31, 1957, and related to bonus for the five calendar years from 1953 to 1957 (both inclusive). When the Agreement came to an end disputes arose about bonus for the year 1958. The Agreement was not extended and a notice of change under section 42 of the Act was given by the Textile Labour Association to the Ahmedabad Mill owners ' Association on July 21, 1959, claiming that all the employees employed during the year 1958 in the member mills be paid an adequate amount of bonus having regard to the volume of profits, if any, or some bonus irrespective of profits to fill the gap between the existing wage and the living wage so as to avoid unrest among the employees. It further appears that notice in the same terms was given to individual mills about the same time. As no agreement was arrived at between the parties, 66 references with respect to the sixty six mills were made to the industrial court as already mentioned above. The industrial court considered all the sixty six references together and came to the conclusion that the Agreement of 1955 had worked fairly to both sides and was substantially in accord with the long standing practice in the industry in Ahmedabad even before the Agreement and that its extension for one year was essential for keeping industrial peace. It therefore ordered the extension of the Agreement for the year 1958 and directed the parties to file within six weeks from the date of the award calculations of bonus payable for the year 1958 in the light of the decision and thereafter the court would proceed to award appropriate bonus in the case of each individual mill. Thereupon there were fifty two applications for special leave to 5 appeal to this Court in which special leave was granted. Thirty four of the appeals arising out of the special leave petitions have been withdrawn and only eighteen now remain for decision. It appears that the remaining fourteen mills accepted the decision of the industrial court, so that now forty eight mills are out of the picture and only eighteen are before the Court. The main contention of the appellants before the industrial court was that in view of the law laid down as to bonus by this Court in the Associated Cement Companies Ltd. vs The Workmen (1), it was not open to it to extend the Agreement for the year 1958 as that would be against the concept of bonus as understood in industrial law. The same point is being urged before us and the question that falls for decision is whether the industrial court was right in law in extending the Agreement for another year. In order to appreciate the dispute between the parties with respect to the extension of the Agreement we may refer to the salient terms of the Agreement. Before we do so, we may mention that the Agreement was "without renouncing the general principles enunciated in decisions and awards of the arbitration boards, the industrial court, the Labour Appellate Tribunal and the Supreme Court in respect of bonus or the rights and privileges created thereunder". It was entered into only with a view to creating goodwill among workers and for the purpose of maintaining peace in the industry and without creating a precedent for the future. The Agreement in the first place provided that the claim of the employees for bonus would only arise if there is an available surplus of profit after making provision for all the prior charges. These prior charges were: (i) statutory depreciation and the development rebate; (ii) taxes; (iii) reserve for rehabilitation, replacement and modernisation of block as calculated by the industrial court (basic year 1947); (iv) six per centum return on paid up capital including bonus shares; and (v) two per cent. return on reserves employed as working capital. After the available surplus was determined thus, a mill (1) 6 having an available surplus of profit had to pay to its employees bonus which would in no case be less than an amount equivalent to 4.8% of basic wages earned during the year; nor was it to exceed an amount equivalent to 25% of the basic wages earned during the year. It was also provided that in case the available surplus was more than sufficient for granting bonus at a higher figure than the ceiling of twenty five per centum of basic wages earned during the year and the maximum bonus of 25 per centum was paid, such a mill would be deemed to have set aside a part of the residue of available surplus after grant of maximum bonus not exceeding 25 per cent. of the basic wages earned during the year as a reserve for bonus for purposes of "set on" (adjustment) in subsequent years. Secondly it was provided that where in the case of a mill, the available surplus was not more than the ceiling of 25 per cent. of basic wages fixed for bonus, the bonus would be fixed after deducting at least Rs. 10,000 from the available surplus. Further it was provided that if a mill had an available surplus of profits which would suffice to pay bonus at a rate lower than the minimum of 4.8 per cent. it would pay the minimum and would be entitled to set off the excess amount thus paid against the available surplus in a subsequent year or years and there were provisions how this set off would be worked out. Lastly it was provided that if the profits of a mill were not sufficient to provide for all prior charges as mentioned above, though it had made profits, or where the mill had actually suffered a loss, such a mill would a& a special case for creating goodwill among its workers and for continuing peace in the industry but without creating a precedent pay to its employees the minimum bonus equivalent to 4.8 per cent. of the basic wages but would be entitled to set off this amount towards any available surplus in any subsequent years, subject, however, always to a payment of a minimum bonus at the rate of 4.8 per cent. of basic wages earned during the year. It has been contended on behalf of the appellants that the formula under the Agreement departs in 7 some vital aspects from what is known as the Full Bench formula evolved by the Labour Appellate Tribunal in The Mill owners ' Association, Bombay vs The Bashtriya Mill Mazdoor Sangh (1), which has been approved by this Court in the Associated Cement Companies ' case (2) and is thus the law of the land so far as bonus is concerned. It is urged therefore that inasmuch as the formula under the Agreement departs from the Full Bench formula which is now the law of the land, it was not open to the industrial court to extend the Agreement in the face of the decision of this Court in Associated Cement Companies ' case(1) and in so far as the industrial court has done so it has gone against the law relating to bonus and therefore the award should be set aside. Two questions immediately arise in this connection: the first relates to the jurisdiction of the industrial court to impose new obligations upon the parties and the second is whether if the industrial court has jurisdiction to impose new obligations it could do so in a matter of this kind considering the concept of bonus as laid down by the decisions of this Court. So far as the first question is concerned (namely, the general power of an industrial court to impose new obligations upon the parties), the matter is now well settled by the decisions of the Federal Court and also of this Court. It was held by the Federal Court in Western India Automobile Association vs Industrial Tribunal, Bombay and Others (3) that " adjudication does not in our opinion mean adjudication according to the strict law of master and servant. The award of the tribunal may contain provisions for settlement of a dispute which no court could order if it was bound by ordinary law, but the tribunal is not fettered in any way by these limitations. " The Federal Court also approved the view of Ludwig Teller that "industrial arbitration may involve the extension of an agreement or the making of a new one, or in (1) (2) (3) 8 general the creation of new obligations or modification of old ones while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements (see p. 345)." This Court also in Rohtas Industries Ltd. vs Brijnandan Pandey (1) held that " a court of law proceeds on the footing that no power exists in the courts to make contracts for the people; and the parties must make their own contracts. The Courts reach their limit of power when they enforce contracts which the parties have made. An industrial tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice and/or victimisation (see p. 810). " In Patna Electric Supply Co. vs Patna Electric Supply Workers ' Union (2), this Court held that "there is no doubt that in appropriate cases industrial adjudication may impose new obligations on the employer in the interest of social justice and with the object of securing peace and harmony between the employer and his workmen and full cooperation between them (see p. 1038)." and approved of the decision of the Federal Court in Western India Automobile Association 's case (3). There is no doubt therefore that it is open to an industrial court in an appropriate case to impose new obligations on the parties before it or modify contracts in the interest of industrial peace or give awards which may have the effect of extending existing agreement or making a new one. This, however, does not mean than an industrial court can do anything and every thing when dealing with an industrial dispute. This power is conditioned by the subject matter with which it is dealing and also by the existing industrial law and it would not be open to it while dealing with a particular matter before it to overlook the industrial (1) ; (2) [1959] SUPP. 2 S.C.R. 761. (3) 9 law relating to that matter as laid down by the legislature or by this Court. This brings us to the second question, which is the real question in dispute in this case, namely, when dealing with a bonus case, like the present, was it open to the industrial court to overlook the law laid 7 down by this Court in Associated Cement Companies ' case (1) and make an award extending the Agreement for a further period of one year? In order to determine this question, we have to look at the concept of bonus as evolved in the industrial law of this country by industrial tribunals and now by the decision of this Court. So far as we can see, there are four types of bonus which have been evolved under the industrial law as laid down by this Court. Firstly, there is what is called a production bonus or incentive wage (see Titaghur Paper Mills V. Its Workmen (2) ); the second is bonus as an implied term of contract between the parties (see Messrs. Ispahani Ltd. vs Ispahani Employees ' Union (3)); the third is customary bonus in connection with some festival (see The Graham Trading Co. vs Its Workmen (4)) and the fourth is profit bonus which was evolved by the Labour Appellate Tribunal in The Mill owners ' Association Bombay vs The Rashtriya Mill Mazdoor Sangh, Bombay (5), and which has been considered by this Court fully in two cases. We are in the present case dealing with bonus of the fourth kind, namely, profit bonus and what we say subsequently refers only to this kind of bonus. What is the concept of profit bonus with which we are concerned in this case, for it is this concept which will determine whether it was open to the industrial court in this case to extend the Agreement for 1958? In Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union (6), this Court pointed out that "There are two conditions, which have to be satisfied before a demand for bonus can be justified and (1) [1959] SUPP. 2 S.C.R. 1012. (3) [1960] 1 S.C.R. 24.(4) [1960] 1 S.C.R. 107. (5) [1955] 1 S.C.R. 991. 2 10 they are: (1) when wages fall short of the living standard, and (2) industry makes huge profits part of which are due to the contribution which the workmen make in increasing production. The demand for bonus becomes an industrial claim. . The basis for the claim is that labour and capital both contribute to the earning of the industrial concern and it is fair that labour should ' derive some benefit, if there is a surplus after meeting prior or necessary charges. . . The surplus that remained after meeting the aforesaid prior charges would be available for distribution as bonus. " The matter was again considered by this Court in the Associated Cement Companies ' case (1) where the Full Bench formula evolved by the Labour Appellate Tribunal was gone into at length. The workmen contended in that case that the formula required revision as the employers were becoming increasingly more rehabilitation conscious and their appetite for the provision for rehabilitation was fast growing with the result that in most cases, after allowing for rehabilitation, there was no surplus left for the purpose of bonus and the main object of the formula was thus frustrated. It was further contended for the workmen that the whole of rehabilitation expenses should not be provided for out of trading profits and that the claim for rehabilitation should be fixed at a reasonable amount and the industry should be required to find the balance from other sources. It was there held that"though there may be some force in the plea made for the revision of the Full Bench formula, the problem raised by the said plea is of such a character that it can appropriately be considered only by a high powered commission and not by this Court, while hearing the present group of appeals. "This Court also held that "the Full Bench formula had on the whole work ed fairly satisfactorily in a large number of industries all over the country, and the claim for bonus should be decided by the Tribunals on the basis of this formula without attempting to revise it. The (1) 11 formula was elastic enough to meet reasonably the claims of the industry and labour for fair play and justice. . It was based on two considerations: first, that labour was entitled to claim a share in the trading profits of the industry, because it had parti ally contributed to the same; and second, that labour was entitled to claim that the gap between its actual wage and the living wage should within reasonable limits be filled up. " The Full Bench formula provided for arriving at the available surplus after meeting prior charges, namely, (i) depreciation, (ii) taxes, (iii) return on paid up capital, (iv) return on working capital and (v) rehabilitation. The formula further dealt with the claim for bonus on the basis that the relevant year is a selfsufficient unit and appropriate accounts have to be made in respect of the said year. Finally, it was pointed out that it was only after all the prior charges had thus been determined and deducted from the gross profits that the available surplus could be ascertained for payment of bonus, and that when the available surplus had been ascertained, there were three parties entitled to claim shares therein, namely, (i) labour 's claim for bonus, (ii) industry 's claim for the purpose of expansion and other needs, and (iii) the shareholders ' claim for additional return on the capital invested by them; the ratio of distribution would neces sarily depend on several factors. It would thus be clear that the essential concept of profit bonus is that there should be an available surplus determined according to the principles laid down in the cases mentioned above for distribution. If there is no such available surplus for distribution, there can be no case for payment of profit bonus. This is the industrial law as laid down by this Court with respect to this kind of bonus in Associated Cement Companies ' case (1). It would in our opinion be not open to an industrial court or tribunal to ignore this law as to bonus and to extend an agreement for payment of bonus, which is against the basic concept of bonus as laid down by the decisions of this Court on the ground that an (1) 12 industrial court has power generally to extend agreements or to create new obligations. As already pointed out, that power has to be exercised keeping in view the subject matter before the tribunal and the law laid down by the legislature or by the decisions of this Court, with respect to that subject matter. The industrial court in this case was not unaware of this position, viz., that it *as departing from the law laid down in the Associated Cement Companies ' case (1) and other bonus cases; but it held that this Court was dealing in those cases with individual units, and not with a case where there were numerous concerns in an industry at one centre, with its particular historical back ground, where previous awards had been on an industry wise basis. It therefore held that the decisions of this Court could not apply in their entirety to the dispute before it and that this Court could not have intended that in a case where there was the additional circumstance that the parties had themselves voluntarily modified the bonus formula in some respects by a long term agreement, that could not be extended by an industrial court. It is the correctness of this view which has been strongly disputed before us by the appellants. Before deal with this matter, we should like to point out that the fact that there are numerous concerns in a particular place can have no relevance in considering the question whether the Full Bench formula can apply to cases like the present. Even though this Court was dealing with the case of one concern, namely, the Associated Cement Companies, it pointed out that the Full Bench formula had worked fairly satisfactorily all over the country and should continue to be applied without revision till such time as a high powered commission went into the question. There is in our opinion no question of industry cum region approach in the matter of a bonus dispute of this kind. There is no doubt that in many matters, like wages, conditions of service, over time allowance, dearness allowance, gratuity, and so on, industry cum region approach has been made by industrial courts (1) 13 in this country and, rightly so. But there is, in our opinion, no scope for an approach of this kind in the case of bonus, the basic concept of which is that payment depends on surplus of profits available according to some formula in the case of each industrial concern. Nor can it be said that the Agreement in this case is dealing with bonus in what is known as industry cumregion basis. Its salient terms as set out above will show that it deals with bonus according to available surplus of each mill, so that bonus paid by each mill depends on its own available surplus and the sixty six mills situate in Ahmedabad may pay different amounts of bonus varying from a minimum of 4 8 per cent. of the basic wages to 25 per cent. of the basic wages. Similar differences will arise if the Full Bench formula is applied to the sixty six mills in Ahmedabad. Thus the Agreement which has been extended, is not based on industry cum region approach, as it is understood. That approach, say, with respect to wages means that wages of all concerns situate in a particular area engaged in a particular industry should be the same. On that approach the bonus of all these sixty six mills should also be the same percentage for each mill in that area; but that is not the basis on which the Agreement was arrived at. The basis of the Agreement is that each individual mill is treated as a separate unit and its available surplus worked out according to the formula in the Agreement itself. This is also the basis of the Full Bench formula and the available surplus of each unit is worked out according to that formula, though the result of the application of the two formulae in each case may not be the same. There is in our opinion therefore no justification for the view that the Full Bench formula approved by this Court in the Associated Cement Companies ' case (1) can have no application where there are numerous concerns of one nature at one centre. Some bonus awards were brought to our notice to show that they were on industry cum region basis, namely, The Sugar Mills of Bihar vs Their Workmen (2) and The Sugar Mills, Uttar Pradesh vs (1) (2) [1951] I. L. L. J. 469. 14 Their Workmen(1). These awards related to sugar industry in Uttar Pradesh and in Bihar. As we read these decisions, we do not find real industry cumregion approach which would result in uniform bonus for all the mills dealt with by these two awards. What we find is that a different formula was worked out for awarding profit bonus linked with production on the basis that there were profits; but when the formula is worked for each mill the bonus would differ from mill to mill according to its production. Further, we find that in the Uttar Pradesh case there were certain exemptions granted to certain factories, presumably on the ground that they were not in a position to pay bonus for want of sufficient profits. It is true that in the Bihar case it was said that the question of bonus could be considered on industry wise and not on unit wise basis, but that only meant that one formula was evolved for the whole of Bihar and applied to every mill in that area. That is what exactly the Full Bench formula also has done, for it is the same formula which applies to all industrial concerns all over the country now after the decision of this Court. In the Bihar case, an argument was addressed to apply the Full Bench formula, but that was not accepted on the ground that balance sheets and profit and loss accounts were not reliable and therefore bonus was linked with production. In the Bihar case also some factories were exempted from paying bonus presumably on the ground that they were unable to do so not having made profits. These cases therefore are not instances of real industry cum region approach. Reference was also made to The, Textile Mills in Coimbatore District vs Their Workmen (2) relating to Coimbatore textile mills. In that case the industrial court considered whether bonus at a flat rate for all the mills should be awarded or whether a distinction should be made between mills and mills. It held that the mills themselves when they paid bonus observed or maintained no distinction; therefore in the peculiar circumstances of that case a uniform rate of 33 1/3 per cent. was awarded for all the mills as specially all the mills had (1) (2) 15 without exception 'made unique profits. As we have said already the basic concept of profit bonus, as it appears from the judgments of this Court, is that there should be an available surplus of profits in a particular concern in a particular year, to which the bonus relates and on this basic concept there is no scope for an approach on the basis of industry cum region in the matter of bonus in the sense that every mill in a region should pay the same bonus. There is therefore no question of industry cum region approach in the present case, and even the formula in the Agreement is not on a real industry cum region approach and has to be worked out from mill to mill, which is like the Full Bench formula. The reasons therefore which led the industrial court in this case to distinguish and depart from the decision of this Court in The Associated Cement Companies ' case (1) do not appear to us to be substantial and there was therefore no ground for departing from that decision for those reasons. This brings us to a consideration of the formula as provided in the Agreement and the Full Bench formula as approved by this Court. It was urged on behalf of the respondent that the two formulae were basically the same; both provided for prior charges and in both bonus was to be paid on the availability of surplus profits, though it was admitted that in certain respects there were differences. Now if these differences were merely of detail and did not affect some of the vital aspects of the Full Bench formula it might be said that there was no ignoring of the law as laid down by this Court and therefore the tribunal was not unjustified in extending the Agreement for a year. But a comparison of the formula in the Agreement with the Full Bench formula shows differences in three vital aspects. In the first place, rehabilitation provided in the Agreement differs vitally from rehabilitation as explained in The Associated Cement Companies case (1). In the second place, the formula in the Agreement provides for payment of a minimum bonus even though there may be no available surplus and even though the particular mill might have made actual (1) 16 loss. Thirdly, while the Full Bench formula as approved by this Court treats a particular year as a selfsufficient unit, there is provision for set off and set on in the formula in the Agreement. Can it therefore be said that the formula in the Agreement which departs in these vital particulars from the Full Bench formula in the matter of bonus could be extended for another year by the industrial court in the face of the decisions of this Court laying down the law as to what profit bonus is and how it should be worked out? The tribunal therefore when it extended the formula in the Agreement which departed from the Full Bench formula in certain vital aspects was undoubtedly ignoring the industrial law as laid down by this Court and going against it. It was its duty when dealing with the question of profit bonus to apply the Full Bench formula, as approved by this Court and then arrive at the quantum of bonus to be awarded in the case of each mill. In particular by extending the Agreement the tribunal made it possible for payment of a minimum bonus even when there was either insufficient available surplus to pay bonus or no available surplus at all or even actual loss; the tribunal was thus definitely going against the industrial law relating to bonus as laid down by this Court. It had in our opinion no power to do so and the reasons which it gave for departing from the law laid down by this Court are unsubstantial and do not commend themselves to us. In these circumstances the order of the tribunal extending the Agreement for a year cannot be upheld. Further it was urged that in any case the Agreement contemplates payment of bonus out of profits of the industry at Ahmedabad as a whole and that is why it has provided for set off and set on. Whatever may be said about this provision on a long term basis, the tribunal 's jurisdiction was limited by its terms of reference. There was not one reference before the tribunal on industry cum region basis but sixty six separate references, one relating to each mill. It was required to consider the question of bonus for each mill for the year 1958 only and thus had nothing to 17 do with set off and set on or the profits of the industry as a whole at Ahmedabad. The tribunal was only concerned with 1958 and no consideration as to what happened before that year or what may happen after 1958 could enter into its decision of the question of bonus for the year 1958. The principle of set off and set on therefore to be found in the Agreement could not convert payment of bonus for 1958, say, by a loss making mill into profit bonus as laid down by the decisions of this Court. The tribunal 's award in this case therefore would clearly be against the law as to bonus laid down by this Court, for its jurisdiction was confined only to the year 1958 and no more. It was however urged on behalf of the respondent that there is a fifth kind of bonus, namely, goodwill bonus and that the Agreement when it provides for a minimum bonus irrespective of availability of profits provides for such bonus in the interest of industrial peace. It is enough to say that so far as what is called goodwill bonus is concerned it pre supposes that it is given by the employer out of his own free will without any compulsion by an industrial court. As its very name implies it is a bonus which is given by the employer out of his free consent in order that there may be goodwill between him and his workmen; but there can be no question of imposing a goodwill bonus by industrial courts, as imposition of such a bonus is a contradiction of its very concept. We have already referred to four kinds of bonus which prevail in the industrial law in India and which can in certain circumstances be imposed by industrial tribunals; but there can be no question of the imposition of the so called goodwill bonus, for that bonus depends upon the goodwill of the parties and on their free consent. In the absence of such free consent, there can be no question of any goodwill bonus. Before we part with these appeals, however, we must briefly advert to the general considerations which have been pressed before us very strongly by Mr. Vasavada for the respondents and Mr. Ambekar for the intervening parties. It has been urged before us 18 that we should be reluctant to interfere with the agreement because it has worked satisfactorily in Ahmedabad, and the reversal of the award under appeal may lead to discontent in a very important centre of.textile industry in this country. It has also been strenuously argued that the Agreement offers a very reasonable solution to the vexed problem of bonus and the pattern set by it has been copied in Bombay, Madhya Pradesh and Coimbatore. If the pattern thus set for determining the textile employees ' claim for bonus has been adopted by a substantial part of the textile industry in this country, the Court should desist from disturbing the smooth working of the said pattern unless it is com pelled to do so. It may be conceded that some features of the Agreement are undoubtedly very reasonable and in the interest of the industry as a whole. The agreement has put a ceiling on bonus and that is a term very much in favour of the employer, because in some cases where the available surplus is very large, then under the working of the Full Bench formula the employees are tempted to claim, and industrial tribunals are justified in awarding, a pro portionately substantial amount as bonus reaching or even exceeding in some cases the level of basic wages of even 8 or 9 months. This trend has been controlled by the Agreement. It is true that the Agreement requires the payment of the minimum bonus but this provision is intended to work as a part of the larger agreement spreading over some years and the employer has agreed to pay the minimum bonus even though in a particular year he may have no available surplus, because he and his employees expect or anticipate that the employer may have available surplus in the succeeding year. The working of the Agreement is really intended to spread over a number of years and the account between the employers and the employees in that behalf is conceived as a continuing and running account. These features of the Agreement may be regarded as commendable. The problem of rehabilitation which has assumed a complex form has also been attempted to be solved by the Agreement in a practical way. The solution 19 adopted by the Agreement in that behalf, it is claimed, is based on the historical and factual genesis of the original formula evolved by the Full Bench of the Labour Appellate Tribunal when it dealt with the problem of the textile industry in Bombay. The argument is that until 1962, the Agreement should be allowed to work when the position may be reviewed at length. Since this Court delivered its judgment in the case of The Associated Cement Companies (1) it has come to our notice that in cases where the employer claims an exaggerated amount for rehabilitation, or where a reasonable claim made by the employer in that behalf is unreasonably challenged by the employees, the dispute is protracted. The trial of the issue tends to become complicated, and that leads to bitterness between the parties. It has been urged before us that time has now come when the industrial courts will have to face the problem of radically changing the formula. It is argued that modern economic thought does not encourage the theory that the whole of the rehabilitation amount must come from the current profits of the industry, and it was stated before us that Government may have gradually to step in to assist the industry by advancing sufficient loans on reasonable terms to enable the industry to meet the demand of its rehabilitation. However, as we pointed out in our decision in the case of The Associated Cement Companies (1) these matters can be properly and effectively decided by an industrial court if the major representative industries in the country and their employees are brought before it with a proper reference, or it can be tackled more appropriately by a high power commission appointed in that behalf. We were told that the Government of India has taken a decision to appoint such a commission, and that it would soon resolve this problem on a more rational and scientific basis. During the course of the hearing of these appeals we suggested to the parties that in view of the pending appointment of the commission, parties may settle the present dispute amicably and that the appellant mills may fall in line with the rest (1) 20 of the mills in Ahmedabad, but despite their best efforts the parties could not settle the dispute and wanted a decision from this Court on the points of law raised in the present appeals; that is why we have had to decide the points of law, and in doing so inevitably general considerations to which we have just adverted cannot play a material part. In the course of the argument reference was made by Mr. Ambekar to the concept of goodwill bonus; that again is a matter which may be evolved by agreement between the parties or decided by a highpower commission. If the matter has to be decided according to law as has been laid down by this Court then the conclusion would be inevitable that on essential points the Agreement departs from the Full Bench formula, and however commendable it may be on the whole it can continue only by agreement and cannot be enforced by industrial adjudication against the will of any of the parties; that is why we have come to the conclusion, though not without regret, that the appeals must be allowed and the matter must be sent back to the tribunal for disposing of the issue before it in accordance with law. We direct that the tribunal should proceed to try the question whether any bonus should be awarded to the employees of the eighteen mills before us on the basis of the Full Bench formula as interpreted by this Court in the case of The Associated Cement Companies (1). In the circumstances there will be no order as to costs. SUBBA RAO, J. I have had the advantage of perusing the judgment prepared by my learned brother, Wanchoo, J. I regret my inability to agree. As mine is a solitary dissent, it may not serve any useful purpose to elaborate on the question raised at great length. I would, therefore, briefly refer to the relevant facts which have already been fully stated by my learned brother and express my views concisely on the question. presented before us. These appeals raise a dispute between the Textile Labour Association,, Ahmedabad, the representative (1) 21 union of the textile industry in Ahmedabad, and the various textile mills in that area in respect of the bonus payable for the year 1958. The said Labour Union entered into a five year pact with the Ahmedabad Mill Owners ' Association, representing the member mills, in regard to payment of bonus for the years 1953 to 1957. The Labour Union demanded bonus for the year 1958 on the basis of the said pact. The mill owners claimed that the said pact was contrary to the law laid down by the decision of this Court in the case of The Associated Cement Companies Ltd., Dwarka Cement Works, Dwarka vs Its Workmen (1) and that, if the rehabilitation cost was calculated on the basis of the principles laid down therein, there would not be any "available surplus" to sustain the claim for bonus. The Industrial Court to which the dispute was referred elaborately. considered the arguments advanced and came to the conclusion that the five year pact which originated in Ahmedabad was not only fair in itself but also an important contribution to industrial peace, and that it did not in any way run counter to the law laid down by the Supreme Court. On that finding it extended the operation of the pact for one more year and directed the parties to file within six weeks from the date of the award calculations in respect of the bonus payable for the year 1958, in the light of its decision and on the footing that the five year pact was for six years. The main question in the appeals is whether the said pact violates the law laid down by this Court. Before considering this contention it would be convenient to notice the terms of the said pact. The said pact is a lengthy document, though precisely drawn, and to read it in full is to unnecessarily burden the judgment. I shall, therefore, briefly summarize its terms. The contracting parties were the Textile Labour Association of Ahmedabad, a representative union for the local area of Ahmedabad on the one part, and the Ahmedabad Mill Owners ' Association, Ahmedabad, representing its local member mills, on the other part. (1) 22 It was executed on June 27, 1955, to cover a period of five years from 1953 to 1957, inclusive of both years, for grant of bonus to the employees of the Cotton Textile Mills of Ahmedabad. The object of the agreement was to create good will among the workers and for the purpose of maintaining peace in the industry. The basis of the agreement was that it applied for the entire Ahmedabad Textile Industry and for a period of five years. The "available surplus" of each mill was ascertained in accordance with the Full Bench Formula laid down by the Labour Appellate Tribunal in Mill Owners ' Association, Bombay vs The Rashtriya Mill Mazdoor Sangh, Bombay (1). The maximum bonus payable by every mill of the said area was fixed at 25 per cent. of the total basic wages earned during the year, and the minimum was fixed at 4.8 per cent. of the said basic wages. If in a particular year a mill had an "available surplus" adequate for granting bonus at a higher quantum than the ceiling of 25 per cent. of the basic wages. it would nationally set aside the part of the residue of the "available surplus" after the grant of the maximum bonus not exceeding an amount equivalent to 25 per cent. of the basic wages earned during that year as a reserve for bonus for the purpose of "set on" (adjustment) in subsequent years. If the "available surplus" was adequate only to grant bonus at a rate lower than the ceiling, the quantum of bonus would be fixed in such a manner that there would remain with the mill at least a minimum of Rs. 10,000. If in respect of any year a mill had an "available surplus" adequate to pay bonus at a rate lower than the minimum rate, it would be entitled to "set off" the excess amount of bonus that would be payable in a subsequent year or years. In setting off the said amount of bonus that, would be payable against subsequent year or years, if the surplus was adequate only to grant bonus at a rate lower than the maximum rate, the mill would first set aside out of the "available surplus" an amount of Rs. 10,000 and, then out of the balance, it would further take out the excess amount paid by it as bonus in the previous (1) 23 year, and then it would distribute the remainder as bonus. Even if a mill had made a loss in a particular year, it had to pay the minimum bonus, but it would be entitled to "set off" the amount thus paid against the amount of bonus that would be payable in the subsequent year or years, in the same manner as in the case of a surplus adequate to grant bonus only at a rate lower than 25 per cent. of the basic wages. In short, when the surplus was adequate to pay bonus at 25 per cent. of the basic wages earned during the year, a mill had to pay the maximum of 25 per cent. of the basic wages. When it was adequate only to grant bonus of less than 25 per cent. of the basic wages, it would pay the said bonus after reserving a sum of Rs. 10,000 for itself. If there was loss, it would pay the minimum bonus. Whatever amounts were paid were adjusted on the principle of "set on" and "set off" in the subsequent years. There was also a provision that after the prescribed period all the outstanding liabilities under the formula of "set on" and "set off" would come to an end. Three principles clearly underlie the entire scheme, namely, (i) that though for the purpose of ascertaining the surplus, the profits of a particular mill were taken as the criterion, the position of the entire Ahmedabad Textile Industry was taken into consideration; (ii) that the beneficent features of the scheme could be gathered only by its long term operation; and (iii) that though in a particular year in the case of a particular mill there might not be "available surplus", the principles of "set on" and "set off" indicate that the bonus was linked with profits. As reasonable men trying to settle their disputes, both the parties, representing their respective associations, adopted an optimistic attitude and proceeded on the basis that the entire industry would make a profit and that every mill could be expected to make reasonable profits in at least some of the five years, though it might incur loss in other years. The validity of the agreement should be judged on the basis adopted. In the Ahmedabad Textile Industry, it is in evidence, the average monthly wage for workers in 1957 24 was Rs. 54. Fifteen days ' basic wages, i.e., the minimum bonus prescribed under the pact, would come to an average total wages for 5 days; and 3 months ' basic wages would come to 19 days ' total wages on the average. Prima facie the bonus fixed is very reasonable and cannot be said to be oppressive to the mill owners. The said bonus agreement, by its reasonableness and beneficent effects on the industry, attracted the attention of other mills throughout India. Exhibit U 2 shows the particulars of other mills which have adopted the agreement. The Bombay Textile Industry, The Madhya Bharat Mill owners ' Association, The Modi Spinning & Weaving Mills, Modinagar, and the cotton mills at Surendranagar (Saurashtra) ' Sidhpur, Viramgam Nadiad and Petlad, Cambay Baroda, Surat adopted the said scheme with suitable modifications. The silk industry in Bombay and the plantation industry in Madras also accepted the principles underlying the said agreement. We are told that even the Coimbatore area has recently adopted a similar agreement. The fact that the said five year pact was followed by so many other mills is a fair indication that it was basically sound and capable of yielding good results. Experienced members of the Industrial Courts spoke highly of the pact. Late Shri section H. Naik, a Member of the Industrial Court, adopted the pact in a dispute between the Bombay Mill Owners ' Association and the Rashtriya Mill Mazdoor Sangh, and in making an award in terms of a similar pact, made the following observations: "This award, based upon an agreement arrived at as a result of persistent and continued efforts on the part of both the parties, keeping in view the prosperity of the employers as well as the well being of the employees, will go down in history as a significant landmark in collective bargaining. It augurs well for the future of the industry, as well as those employed therein, particularly in view of the ambitious Second Five Year Plan on which the country will shortly launch. It also avoids, for 25 some time, and let us hope for all time to come, the bonus dispute which cropped up every year since 1947. I congratulate both the parties and compliment them on the successful termination of their efforts to bring peace to the industry and set an example to the employers and employees in the country. " The said weighty observations apply mutatis mutandis to the agreement in question. Shri H. V. Divatia, another experienced Member of the Industrial Court, in his award on the bonus dispute of the Ahmedabad Textile Mills for 1952 observed: "Ever since the former practice of taking all the textile mills in one centre as one unit for the purpose of determining the bonus was given up, there has been dissatisfaction on both sides on the bonus question every year and in my view this change as well as the formula set up by the Labour Appellate Tribunal have made the bonus issue a very complicated one resulting in bitterness on both the sides instead of promoting peace and harmony between the employers and workers. I hope the whole matter is reconsidered at the highest level. If bonus is to be given, it must be awarded in such a way that it does not defeat its purpose. " The agreement did nothing more than reverting to the former practice of taking all the textile mills in one centre as one unit for the purpose of determining. the bonus, though for ascertaining the quantum of bonus payable the balance sheets of individual units were taken into consideration. In making the present award the Industrial Court on a consideration of the entire material placed before it came to a definite finding that on the. whole the five year pact had worked fairly for both the parties and that the extension of the said agreement for one more year would help in promoting peace in that industry in Ahmedabad and that owing to the goodwill created by the five year bonus pact, the industry also benefited by schemes of rationalization. It was also brought to our notice that in the textile industry 4 26 in Ahmedabad area there were never any strike and the disputes in the recent years were settled amicably across the table. In such a situation this Court was asked under article 136 of the Constitution to set aside the award and to bring about chaos where peace existed and to introduce unrest and disharmony where stability and harmony prevailed. It was said that this Court had no option but to do so as the agreement was contrary to law as laid down by this Court. I shall now examine briefly the relevant decisions laying down the principle governing bonus to ascertain whether the impugned agreement is in any way inconsistent with them. In Muir Mills Co. Limited vs Suti Mills Mazdoor Union, Kanpur (1) this Court defined the term "bonus" and laid down the conditions which would give rise to the claim for bonus. Bhagwati, J., after considering the relevant decisions and text books on the subject, accepted the following definition of "bonus" given by the Textile Labour Inquiry Committee: "The term bonus is applied to a cash payment made in addition to wages. It generally represents the cash incentive given conditionally on certain standards of attendance and efficiency being attained. " The learned Judge then proceeded to state at p. 998 thus: "There are however two conditions which have to be satisfied before a demand for bonus can be justified and they are: (1) when wages fall short of the living standard and (2) the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production. The demand for bonus becomes an industrial claim when either or both these conditions are satisfied. " The learned Judge then referred to the formula evolved by the Full Bench of the Labour Appellate Tribunal in the Mill Owners ' Association, Bombay vs Rashtreeya Mill Mazdoor Sangh, Bombay (2) and narrated the first charges on the gross profits as laid. down by (1) ; (2) 27 that decision. The learned Judge then expressed his view thus at p. 999: "It is therefore clear that the claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits. If in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. Bonus is not a deferred wage." This decision lays down in clear terms that the payment of bonus is linked with profits. But this decision was given in a dispute between one specified mill, namely, Muir Mills Co. Limited and the Union, representing its employees. This Court was not considering a case of a bonus claim on industry cum region basis. The principle of the decision, namely, that the claim for bonus is linked with profits, may equally apply to such a case; but the working of the principle must necessarily depend upon the peculiarities of such a claim. Industrial law is in the process of evolution and it cannot be put in a straight jacket, but must be allowed to grow to meet varying situations that present themselves to industrial tribunals, subject of course to the statutory provisions and the general principles laid down by courts. The application of the principles laid down by this decision to a bonus claim on industry cum region basis would, to some extent, be different from its application to a single unit. I shall consider this aspect at a later stage of the judgment. It is unnecessary to consider the other decisions on this subject except the recent decision of this Court in The Associated Cement Companies Ltd., Dwarka Cement Works, Dwarka vs Its Workmen That decision reviewed the entire law on the subject vis a vis the profit bonus. It accepted the principles laid down by the said Full Bench Formula and elaborately considered the mode of application of the prin. ciples for ascertaining the "available surplus. " Gajendragadkar, J., who spoke for the Court, referred to the earlier decision and restated the basis for awarding bonus thus at p. 995: (1) 28 "We have already noticed that the formula for awarding bonus to workmen is based on two considerations: first, that labour is entitled to claim a share in the trading profits of the industry because it has partially contributed to the same; and second, that labour is entitled to claim that the gap between its actual wage and the living wage should within reasonable limits be filled up. " Then the learned Judge, after referring to the earlier decisions, gave the various amounts that should be deducted from the bonus year 's profits and the 'manner in which they should be done to ascertain the "available surplus." According to the learned Judge the following items have to be deducted: "(1) Depreciation, which should be the notional normal depreciation. (2) Income tax. (3) A return on paid up capital as well as working capital. Though the usual rates were mentioned, it was made clear that the rates were not inflexible but would vary according to the circumstances of each case. (4) Rehabilitation: For ascertaining the amount necessary for rehabilitation, it was pointed out that a multiplier and divisor should be adopted; the former to ascertain the probable price which may have to be paid for the rehabilitation, replacement or modernization of machinery, and the latter in order to ascertain the annual requirement of the employer in that behalf year by year. " Out of the balance, which was described as "available surplus", it was stated that three parties, namely, the labour, the industry and the shareholders, were entitled to claim shares. This is the broad picture drawn by that decision for fixing the bonus. That decision, therefore, restated the pre existing law and reaffirmed the doctrine that bonus is linked with profits and also the Full Bench Formula for ascertaining the "available surplus". That decision was also not concerned with a claim for bonus on industry cum region basis, but only with a claim in regard to a particular unit. It also did not lay down that employer and 29 employee could not agree in regard to the distribution of the available surplus or in respect of the amount required for rehabilitation. It also did not purport to prevent the parties from agreeing on the payment of bonus linked with profits on industry cum region basis spread over a number of years. Some of the observations in the judgment indicate the consciousness of the court that the formula accepted or the directions given therein could not meet every conceiv able situation that might arise in the complicated field of industrial relations. Does the impugned pact contravene the law laid down by this Court? It is contended that it infringes the law mainly in three respects, namely, (i) bonus was payable thereunder by a mill incurring loss; (ii) the pact did not provide for rehabilitation of the post 1947 block; and (iii) the depreciation and the interest on the reserves allowed were not in accordance with the formula. The first objection appears to be plausible and has also been upheld by my learned brethren. But, in my view, there is a fallacy underlying it. The contention invokes the law of bonus laid down in respect of an industrial claim for bonus for a particular year made by the employees of a single mill and seeks to apply it to a case of an agreement evolving a scheme of bonus on the basis of industry cum region spread over a reasonable period of time. Though the fundamental principle, namely, that bonus is linked with profits, applies to both, the application of the same to two different situations must necessarily differ. The short question is whether under the impugned agreement the claim for bonus was not based on profits. The agreement was a multilateral one involving mutual obligations. It was on industry cum region basis, that is, it was entered into between the employers of the entire industry and the employees thereof. The basis of the agreement was that the entire industry would make a profit. For the purpose of convenient payment of bonus it was worked out on the unit basis. All the parties to the agreement, the employers and the 30 employees of different mills in Ahmedabad, desired in dustrial peace in order to build up the textile industry. The industry comprised many units with varying prospects and different strata of financial stability and prosperity. Some mills may earn profits throughout the period, some may earn profits in some years and incur loss in other years and under extremely unfortunate and unexpected circumstances, a mill may incur loss throughout. Though a,particular mill may earn abnormal profits, another mill may be just able to make its both ends meet and another may have a narrow margin of profits or even incur loss. But all of them were sincerely interested in the general prosperity of the industry as a whole in the said area which would have its repercussions on individual units. A mill which earns large profits may have to pay more than 25 per cent. of basic wages for the year as bonus and a mill which incurs loss may not have to pay bonus at all. The employees of a particular mill may be entitled in a particular year, having regard to the profits, to get bonus far in excess of 25 per cent. of the basic wages. But in the general interest of all concerned, they were all willing to make a little sacrifice for the common good. Each mill undertook the liability to pay bonus to its employees with a minimum and maximum limits in consideration of a similar undertaking of liability by other mills. So too, the employees, in consideration of a minimum bonus being guaranteed to them, agreed not to claim more than the maximum fixed and the mills as a whole guaranteed payment of the minimum bonus. But what is important to remember is that the entire scheme of payment of bonus was linked with profits. It would be paid on the basis of profits earned or to be earned by a mill. If a mill did not make profits in a particular year, bonus would be paid on account to be adjusted in subsequent years. The formula of "set on" and "set off" emphasizes the integral connection between bonus and profits, and the fact that the total loss incurred by a particular mill during the entire period may break that formula does not affect the basis of 31 the agreement. In effect and substance, under the agreement, each of the mills agreed for a consideration on the happening of a contingency to treat certain amounts as notional profits adequate to pay the minimum bonus with a right to "set off" in subsequent years against larger profits, if any, earned by them. In the premises, it is not correct to state that bonus is not linked with profits for four reasons, namely, (i) the agreement was between the employers and employees of the entire textile industry in Ahmedabad; (ii) the basis of the agreement was that the industry as a whole would make a profit; there is nothing illegal in parties to the agreement, who had ,intimate knowledge of the financial position of the entire industry, from accepting that position; (iii) instead of the profits of the entire industry being ascertained and bonus paid to all the employees, under the agreement, each mill for a consideration, namely, obligations undertaken by other parties, agreed to pay bonus ranging between a maximum and a minimum; and (iv) each mill also agreed for a consideration, even if in fact it incurred a loss in a particular year. , to set apart a notional amount as profits adequate to pay the minimum bonus with a right to readjust its bonus account in subsequent years. In this view the impugned pact does not contravene the law of the land for the simple reason that there is no decision of this Court which prevents the making of ouch agreements so long as the fundamental principle is not violated; and in this case, for the reason given by me, I am of the view that the said principle, viz., that bonus should be linked with profits has been adhered to in the agreement. Now let us see whether the Full Bench Formula in regard to rehabilitation has been contravened by the impugned pact. The main emphasis is on the want of a provision in the agreement in regard to valuation of the block subsequent to 1947. In The Associated Cement Companies ' case (1) this Court observed at p. 971 thus: "it has also been observed by the Labour Appellate Tribunal that if an appropriate multiplier and (1) 32 divisor are determined they are generally used because the tribunals take the view that the reconsideration of the said multiplier and divisor should not be hastily undertaken and could be justified only on the basis of a stable character extending or likely to extend over a sufficient number of years so as to make a definite and appreciable difference in the cost of replacement." The Industrial Court in the bonus. case of the textile industry at Ahmedabad for the year 1949 fixed the cost of replacement of the block of the entire industry at Ahmedabad at Rs. 33.89 crores spread over 15 years from 1947. The Industrial Court, on the material placed before it, fixed the multiplier at 2.7 and the divisor at 15. The result is that the cost of the machinery and building as it existed in 1947 was multiplied by 2.7 and after making the necessary deduction therefrom, such as that of depreciation and reserves available and the breakdown value of machinery, divided the surplus by 15 years. Ordinarily, change in the said multiplier and divisor, as laid down by this Court, should not be hastily undertaken and could be justified only on the basis of a substantial change of a stable character extending or likely to extend over a sufficient number of years. In the impugned pact the parties agreed to abide by the said multiplier and divisor and they did not think fit to revise the same. The decisions of this Court do not preclude employers and employees from agreeing to a particular valuation of the block or to their agreeing to a particular multiplier and 'divisor having regard to the circumstances obtaining at the time of the agreement. Nor does the agreement infringe any of the principles laid down by the Full Bench Formula in the matter of fixing the prior charges. A perusal of paragraph 2(a) of the agreement shows that the prior charges mentioned therein are only those that are stated in the Full Bench Formula, though there is certainly a difference in the particulars under different heads, such as, interest, etc. Certainly the decisions of this Court do not preclude the parties from 33 agreeing to certain amounts or to certain rates under different heads of prior charges. As the agreement does not infringe the law laid down by this Court, it cannot be contended that the Industrial Court could not extend the said agreement, if it is necessary to secure industrial peace for another year. In effect and substance, the Industrial Court adopted the said agreement as a part of the award by giving it a span of six years instead of five years; with the result that the entire formula of "set on" and "set off" would automatically apply in the sixth year. Courts have held that Industrial Courts have power to extend agreements in appropriate circum stances. The Federal Court of India in Western India Automobile Association vs Industrial Tribunal, Bombay (1) explained the scope of industrial adjudication and the functions of an industrial tribunal in labour disputes thus at p. 345: "Adjudication does not, in our opinion, mean adjudication according to the strict law of master and servant. The award of the Tribunal may contain provisions for settlement of a dispute which no Court could order if it was bound by ordinary law, but the Tribunal is not fettered in any way by these limitations. In Volume 1 of 'Labour Disputes and Collectiv e Bargaining ' by Ludwig Teller, it is said at page 536, 'that industrial arbitration may involve the extension of an existing agreement or the making of a new one, or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements '. In our opinion, it is a true statement about the functions of an Industrial Tribunal in labour disputes." The same view in different phraseology has been expressed by this Court in Bohtas Industries Limited vs Brijnandan Pandey (2), section K. Das, J., speaking for the Court, observed at p. 810 thus: (1) [1949] F.C.R 321. (2) ; 5 34 "A Court of law proceeds on the footing that no power exists in the courts to make contracts for people; and the parties must make their own contracts. The courts reach their limit of power when they enforce contracts which the parties have made. An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimization. We cannot, however, accept the extreme position canvassed before us that an Industrial Tribunal can ignore altogether an existing agreement or existing obligations for no rhyme or reason whatsoever." This Court again reiterated the same principle in the case of Patna Electricity Supply Co. Limited (1) thus at p. 1038: "There is no doubt that in appropriate cases industrial adjudication may impose new obligations on the employer in the interest of social justice and with the object of securing peace and harmony between the employer and his workmen and full cooperation between them. This view about the jurisdiction and power of Industrial Tribunals has been consistently recognized in this country since the decision of the Federal Court in Western India Automobile Association vs Industrial Tribunal, Bombay (2)". These authorities clearly establish the proposition that an Industrial Tribunal can extend an existing agreement or make a new one if, for good reasons, it comes to the conclusion that such extension promotes industrial peace. If, as I have held, the impugned pact was lawful and did not contravene the law laid down by this Court, the Industrial Court in the present case was certainly within its rights to extend that pact for another year for the very good reasons given by it for doing so. I shall now state my view in the form of the following propositions: (1) Neither the Full Bench Formula nor the decisions of this Court affirming it preclude an (1) [1959] SUPP. 2 S.C.R. 76r. (2) 35 Industrial Court in appropriate cases from extending the terms of a pact by another year if that was necessary to maintain industrial peace. (2) The law laid down by the Federal Court and the Supreme Court recognizes such a power in an Industrial Court. (3) The fact that the subsequent block has not been valued does not affect the question, for the parties can certainly agree, for various reasons, that the value of the existing block should govern the situation for a specified period. (4) The impugned five year pact is not contrary to industrial law as laid down by this Court; indeed, it expressly followed the principles laid down in the Full Bench Formula which was subsequently affirmed by this Court in the case of Associated Cement Companies (1). (5) The impugned pact also does not infringe the principle that bonus depends upon profits; but it applied the same by evolving a formula of "set on" and "set off" to a complicated situation of the entire industry in a particular area for a number of years. For the foregoing reasons, and in view of the aforesaid definite findings of the Industrial Court, I hold that this is eminently a fit case for extending the agreement for the bonus year 1958. Before closing I must express my appreciation of the way in which the impugned pact was brought about between the parties. It is in the interest of both the employers and the employees while the employees of every mill are assured of payment of a minimum bonus, the employers of every mill also are assured protection against extravagant claims. The agreement avoided complicated and acrimonious disputes in courts every year in regard to bonus. The working of this agreement certainly helped the mills to achieve the introduction of schemes of rationalization. The agreement has become a model one for other mills. Ironically the Full Bench Formula, affirmed by this Court in the case of Associated Cement Companies Limited (1), mainly evolved to fix the amount required for rehabilitation in the interest of industrial peace, turned out to be the sheet anchor for (1) 36 the employers to depart from the path of negotiation and agreement which they were following all these years and to enter the arena of open fight with the employees. It may be, though it may turn out to be wrong, that they are under the belief that the Full Bench Formula, if strictly followed, would not leave any surplus and that they need not pay any bonus to the employees. This attitude is neither reasonable nor in the interest of industrial peace. I hope and trust that the parties, in spite of the temporary success in these appeals, would see better light and settle their disputes as they had been doing all these years. In the result, the appeals fail and are dismissed with costs. By COURT : In accordance with the opinion of the majority, the appeals are allowed and the matter sent back to the Tribunal for disposing of the issue before it in accordance with law. We direct that the Tribunal should proceed to try the question whether any bonus should be awarded to the employees of the eighteen mills before us on the basis of the Full Bench Formula as interpreted by this Court in the case of The Associated Cement Companies (1). In the circumstances, there will be no order as to costs. Appeals allowed. Cases remanded to the Tribunal.

It is not correct to say that section 79 of the , standardises the grant of annual leave with wages to employees to whom the Act applies and that neither the employer by voluntary agreement nor the Industrial Tribunal by its award can vary that standard. It is well settled that in construing the provisions of a welfare legislation, such as the Act in question which has for its object the preservation of the health, safety and welfare of the workmen, courts should apply the rule of beneficent construction and moreover, sections 78 and 84 of the Act put it beyond doubt that section 79(1) is not intended to standardise annual leave with wages by providing the maximum. Rightly construed section 78(1) of the Act not only protects past laws, awards, agreements and contracts but also those that are to come into existence in the future and does not prohibit a more generous agreement than that prescribed by section 79(1). Likewise the scope of section 84 of the Act which, in empowering the State to exempt a factory from all or any provisions of Ch. VIII of the Act, contemplates better amenities than those guaranteed by the Chapter, cannot be limited to benefits existing at the date of the Act but must also apply to future benefits which an employer may grant to his employees. Consequently, in a case where the Industrial Tribunal, on a consideration of awards and agreements between employers and employees in comparable concerns, awarded annual leave in excess of what is prescribed by section 79(1), Held, that the award was not open to challenge. Held, further, that the distinction generally made between operatives doing manual work and clerical and other staff is perfectly justifiable and so the award of privilege leave to the clerical staff could not be said to be discriminatory. Although the Industrial Tribunals in awarding privilege leave or sick leave must not fail to consider their effect on production and so on the interest of the community in general, this Court would be reluctant under article 136 of the Constitution to interfere with an award unless its provisions are unsustainable on any reasonable grounds and make a violent departure from the practice and trend prevailing in comparable concerns. 38 298

vil Appeal No. 1306 of 1988. From the Judgment and Order dated 2.4.1987 of the Allahabad High Court in Writ Petition No. 1818 of 1984. H.N. Salve, P.P.Tripathi, Manoj Swarup and K.J. Johan for the Appellants. B.Sen, Gopal Subramaniam, Prashant Kumar and Mrs. section Dikshit for the Respondents. The Judgment of the Court was delivered by RANGANATHAN, J. There was a time when, in almost every State in India, people were invited to avail of the supply of the electric energy produced in the State and offered special concessions when they agreed to 158 do so in bulk under long term contracts. A situation, however, has since developed when the demand for the energy increased so rapidly that, despite the quantity of available electric energy also having gone up tremendously the rates of supply agreed upon became uneconomical. The State and its instrumentalities, who were supplying the energy, found themselves without power to revise the rates to meet the altered situation until the legislature came to the rescue. It is this situation in the case of Kanoria Chemicals and Industries Ltd. (hereinafter referred to a `the appellant ') which has given rise to these appeals. The , (hereinafter referred to as `the 1948 Act ') entrusted the control over the generation and distribution of electric energy to Electricity Boards constituted under the Act. In the State of Uttar Pradesh, the U.P. State Electricity Board (hereinafter referred to as `the Board,) was constituted on 1.4.1959. At that time, the State Government (hereinafter referred to as `the State ') was in the process of establishing the Rihand Hydro Electric Generating Plant, which become operational w.e.f. 1.2.62, and attained an ultimate installed capacity of 300 M.W. The control of this remained with the State till 31.3.1965. Since the supply of electrical energy was then available in abundance and only the eastern area of the State was served by the plant, the State considered it expedient to enter into contracts with bulk purchasers both with a view to ensure maximum utilisation of the electricity available and with a view to the industrialisation of the eastern areas of the State. In particular the State was keen on the industrial development of the district of Mirzapur, which was considered to be an extremely backward area. The State was keen that power intensive units be set up in close proximity of Rihand so that electricity could be supplied to these units from the Rihand power plant. One feature of the supply of electricity from Rihand was that the metering was done at the point of generation so that transmission and distribution losses and costs could be borne by the consumers of electricity. The appellant set up an industry for manufacture of caustic soda at Renukoot sometime in 1964. According to the appellant, this industry involved the use of electricity as the main raw material, the other raw material needed being salt. It is said that there were considerable disadvantages in setting up the proposed caustic soda unit in the district of Mirzapur, principally due to its distant location from areas from which salt had to be transported. The appellant, it is said, could easily have set up its factory in some other State with greater facilities and advantages but it was induced to set up the caustic soda plant at Pipri in the district of Mirzapur on account of the assurance given by the State that it will supply hydro electric 159 power to the assessee from the Rihand power plant on a long term basis at a cheap rate. It is claimed that, but for this promise, the appellant would never have chosen Pipri or the district of Mirzapur for the location of this plant. After elaborate discussions between the State Government and the promoters of the appellant company, the plant was set up at Pipri and a contract was entered into between the State Government and the appellant on 30.9.1963 ensuring the supply of electricity from the point of generation to the appellant for a period of 25 years from 1.4.64. The supply, to the extent of 6.5 MW. was to be from Rihand hydel station at a fixed rates of 2.5 paise per unit. An additional supply of 1.5 MW was also promised from an inter connection at the rate of 5 N.P. per unit. The rates could be revised after the first sixteen years but any enhancement in rates was not to exceed 10 per cent of the rates agreed upon. The State agreed further to supply 4.5 MW to the appellant from the Obra Hydro Electric Project on such rates as would be fixed subsequently. It may be mentioned that this clause gave rise to disputes which were referred to arbitration. An award was made by justice D.P. Madan, a retired judge of this Court, which was made a decree of this Court by an order dated 1.4.1987. Under the award, the rate of supply was fixed at 8.69 paise per unit. The State 's grievance is that it incurred a loss of Rs. 10.55 crores by supplying electricity from Rihand between 1.4.64 and 19.5.83 at concessional rates instead of applying the uniform tariff applicable to other "bulk power" consumers, briefly referred to as "HV 2 rates. " It says also that it likewise suffered a loss of 12.4 crores due to the supply at 8.69 paise instead of normal rates, from Obra between 1.4.71 and 31.3.89, when the agreement, came to an end by efflux of time. Obviously, it was not economical to continue supplying energy at the preposterously low rates to which the State had committed itself in 1963 on account of the conditions that prevailed at the time of the agreement. The powers of the State or the Boards to revise contractual rates unilaterally were examined by this Court in Indian Aluminium Company Ltd. vs Kerala State Electricity Board [1976] 1 SCR 70. It is sufficient to say that, after considering the provisions of section 49 and 59 of the Supply Act, the Court held that the Electricity Board were not entitled to enhance charges in derogation of stipulations contained in agreement entered into between parties. This decision led to the provisions of the Supply Act being amended by various States. The State of Karnataka, Orissa and Rajasthan brought in amendments enabling the Electricity Board to supersede contracts and 160 revise the rates contained in earlier agreements. The U.P. Government, also enacted the Electricity Laws (Uttar Pradesh Amendment), Act, 1983, to vest the State 's agreement with the Board and to enable the Board to revise the contractual rates. The Act came into force from 20.5.1983. Section 7 of the said Act amended Section 60 of the Supply Act, 1948 by inserting the following sub sections (3) to (5) with retrospective effect from April 1, 1965 : (3) All expenditure which the State Government may, not later than two months from the commencement of the Electricity Laws (Uttar Pradesh Amendment) Act, 1983, declare to have been incurred by it on capital account in connection with the purposes of this Act in respect of the Rihand Hydro Power System shall also be deemed to be a loan advanced to the Board under section 64 on the date of commencement of this sub section and all assets acquired by such expenditure shall vest in the Board with effect from such commencement. (4) The provisions of the sub sections (1) and (1 A) shall, subject to the provisions of sub section (5) apply in relation to the debts and obligations incurred, contracts entered into and matters and things obliged to be done by, with or for the State Government in respect of the Rihand Hydro Power system after the first constitution of the Board and before the commencement of this sub section as they apply in relation to debts and obligations incurred, contracts entered into, matters and things engaged to be done by, with or for the State Government for any of the purposes of this Act before the first constitution of the Board. (5) All such contracts entered into by the State Government for supply of electrical energy based on or connected with the generation of electricity from the Rihand Hydro Electric Generating Station to any consumer and any contract entered into by the Board on or after April 1, 1965 for the supply of electrical energy to such consumer shall operate subject to the modifications specified in the following clauses, which shall have effect from the date of the commencement of the Electricity Laws (Uttar Pradesh Amendment) Act, 1983 (hereinafter referred to as the said date): 161 (a) the rates to be charged by the Board for the energy supplied by it to any consumer under any contract for which the payment will be due for the first time on or after the said date shall be such as may with the previous approval of the State Government be fixed by the Board, having due regard to the geographical position of the area of supply, the nature of the supply and purpose for which supply is required and any other relevant factor. (b) If the State Government directs the Board under Section 22 B of or under any other law for the time being in force to reduce the supply of energy to a consumer and thereupon the Board reduces the supply of energy to such consumer accordingly, the consumer concerned shall not be entitled to any compensation for such reduction, and if the consumer consumes energy in excess of the reduced limit fixed under the said section 22 B or any other law for the time being in force as the case may be, then the Board shall have the right to discountinue the supply to the consumers without notice ,and without prejudice to the said right of the Board, the consumer shall be liable to pay for such excess consumption at double the normal rate fixed under clause (a); (c) Any arbitration agreement contained in such contract shall be subjects to the provisions of this sub section. Parliament also, at about the same time, amended section 59 of the Act by Act 18 of 1983. The amended section 59(1), which is sufficient for our purpose reads thus : 59. General principles for Board 's finance (1) The Board shall, after taking credit for any subvention from the State Government under Section 63, carry on its operation under this Act and adjust its tariffs so as to ensure that the total revenues in any year of account shall, after meeting all expenses properly chargeable to revenues, including operating, maintenance and management expenses, taxes (if any) on income and profits depreciation and interest payable on all debentures, bonds and loan, leave such surplus as is not less than three per cent, or such higher percentage, as the State Government may, by notification in the official Gazette, specify in this behalf, of the value of the fixed assets of the Board in service at the 162 beginning of such year. Explanation For the purposes of this sub section. "value of the fixed assets of the Board in service at the beginning of the year" means the original cost of such fixed assets as reduced by the aggregate of the cumulative depreciation in respect of such assets calculated in accordance with the provisions of this Act and consumer 's contributions for service lines. It has been pointed out to us that the U.P. State amendment is somewhat different from those of the other States. The Karnataka legislature amended section 49 of the 1948 Act and the Orissa and Rajasthan legislatures inserted section 49A in the said Act. These provisions enabled the Boards ' to prescribe tariffs and these rates were to prevail over those specified in the agreement. The latter two amendments actually declare the relevant clauses in the agreement void from inception. The U.P. amendment. however, retains the effectiveness of the earlier contracts and only reads into them the rates that may be prescribed by the Board. This is the first difference. The second is that while the other legislations affect all agreements entered into before a specified date, the U.P. amendment is restricted to contracts for supply of electricity from the Rihand Hydro Electric Generating Station. We are informed that, when the above amendment was sought to be effected, the only outstanding contract of the State for the supply of electricity from the Rihand Hydro Electric Generating Station was the contract with the appellant on the 30th of September, 1963. There had been two agreements entered into for supply of electricity from this power station but the other one with Hindustan Aluminium Company had become ineffective since that company gave up its claim to supply from the above power plant in 1975 76 having been successful in putting up a power plant for its captive use. Thus, though the Act purports to be one of general application, it was really intended to enable the State and the Board to modify the rates of supply of electricity to appellant under the contract of 30.9.1963. At this stage it may be useful to refer also to the terms of section 49 of the Act. It reads thus : (1) Subject to the provisions of this Act and or regulations, if any, made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs. 163 (2) In fixing the uniform tariffs the Board shall have regard to all or any of the following factors, namely : (a) the nature of the supply and the purposes for which it is required : (b) the co ordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee: (c) the simplification and standardisation of methods and rates of charges for such supplies : (d) the extension and cheapening of supplies of electricity to sparsely developed areas. (3) Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee, having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors. (4) In fixing the tariff and conditions for the supply of electricity, the Board shall not show undue preference to any person. After the statute was thus amended, the Additional Chief Engineer of the Board wrote to the appellant on 6.2.1984 stating that, though the bills were being drawn on the basis of the agreement, the rates were subject to revision with effect from May 20, 1983 with the approval of the State Government and that a supplementary bill would be sent for the arrears as and when the rates were revised in pursuance of section 60(5) (a). On 5th April, 1984, the appellant filed Writ Petition No. 1818 of 1984 in the High Court of Allahabad assailing the validity of section 7 of the amending Act and the right of the Board to enhance the rates. While admitting the writ petition, the High Court passed an interim order to the effect that the State Government should provide an opportunity of hearing to the appellant before bringing about any change in the terms and conditions of the Agreement or tariff rates and that no revised rates shall be charged from the 164 appellant till it is heard, and the matter decided, by the State Government. On June 11, 1984, the Law Officer of the Board wrote to the appellant requesting it to give in writing the points which they wanted to urge before the rates were approved by the State Government. According to the appellant, this was not sufficient compliance with the court 's order and it moved the High Court for amending its petition and made further applications to the Court. It may be mentioned that the stand taken up by the Board in the writ petition was that the writ petition was premature as the State 's approval had not been obtained and no injury had been caused to the appellant. But, suddenly, on 31.1.85, the Board wrote to the appellant informing it that the State Government had approved the levy of rates as per Schedule HV 2 (as defined in the U.P. Gazette Notification dated 29th October, 1982) applicable to heavy power consumers in substitution of the rates mentioned in the agreement of 20th September, 1963. It was stated curiously enough that the approval of the State Government had been given on 28.9.1983. The effect of the revision was to oblige the petitioner to pay 57.71 paise per unit for 1983 84 and 61.60 paise per unit for 1984 85. An idea of the magnitude of the revision can be had by pointing out that supplementary bills raised on the basis of the revision for the period 20.5.83 to 31.12.1984 were to the tune of Rs. 3.07 crores. The appellant 's allegation is that no such approval had been given and it is asserted that the internal correspondence between Board and State would show that the legal Department of the Board had raised certain objections to the levy of HV 2 rates on the appellant, and that consequently Board had sent a fresh proposal in December 1983 seeking approval of the State Government for imposing a flat rate in respect of supplies to the appellant in place of earlier proposal. It is also stated no proposal was made, or approval sought, for imposing the revised rates w.e.f. 20.5.1983. The Board, however, proceeded to make demands against the appellant on the basis of the revised rates. According to the Board, reference was made to a resolution dated 30.1.85 to the withdrawal on that date of the proposal for a flat rate in place of HV 2 rates. Thus, demands on the basis of HV 2 rates were sought to be sustained. The demands amounted to several crores of rupees and disconnection was threatened in case of nonpayment. The appellant obtained certain interim orders from High Court (which have been subsequently considered and modified from time to time by this court during the pendency of these appeals). It is, however, not necessary to refer to these interim orders as the final liability of the appellant will have to be decided on the basis of the orders of this Court on the appeals. 165 The writ petition was heard by a Bench of two judges. Both judges repelled the challenge to the validity of the Amendment Act but differed on some of the points which came up for their consideration. Srivastava, J. was of the opinion that the intention and purpose of the Amendment Act was to revise the existing contractual rate of energy charges and charge higher rates upto the extent of uniform tariff rates for the supply of electricity to the consumers whose contract stood modified by the said statute. The rates so fixed had to be dependent upon the factors enumerated in section 60(5). According to him, the material on record showed that the factors enumerated in section 60(5) had not been taken into account by the Board before fixing the rates or by the State Government in according its approval to the same. The Board and the Government appeared to have acted upon a consideration of the factors mentioned in section 49(2) of the Act of 1948 while framing a uniform tariff but this was not sufficient compliance with the provisions of section 60(5). On the other hand, Mathur. J. was of the opinion that the move for amendment of the Act and enforcement of HV 2 tariff was initiated by the Board and that the notings contained a detailed justification for enforcing the said tariff. It also appeared from the statement of objects and reasons of the amending bill that the supply of electricity at concessional rates despite losses and the desirability of replacing the said rate by uniform tariff came up for discussion in the State Legislature and that the Board did not act wrongly or illegally if it felt that it had no option but to apply uniform rates in view of the statement contained in the objects and reasons of the bill and the discussion in the State Legislature. He was also of the opinion that the factors contemplated by section 60(5) (a) were similar to those envisaged by section 49(2), and since consideration had been given to the latter factors while farming the uniform tariff, no consideration of factors relevant to individual consumers was called for. The two learned judges thus differed on the following two points : (a) Whether the language of section 60 (5) (a) of U.P. Act No. 12 of 1983 required consideration of factors prescribed in section 60 (5) (a) viz., geographical position of the area of supply, the nature of supply and purpose for which supply is required and other relevant factors with reference to petitioner company for revising the existing contractual rate of H.C. tariff? (b) Whether the factors mentioned in section 49(2) of , having already been considered at the time of farming uniform tariff no fresh consideration of any factors mentioned in section 60(5)(a) of U.P. Act No. 12 of 1983 was required when the uniform tariff itself was being fixed while 166 revising the rate ? The difference of opinion was, therefore, referred to a third Judge, Mehrotra, J. This learned Judge answered that question referred to him as follows : (a) The language of section 60(5)(a) of U.P. Act 12 of 1983 requires consideration of factors prescribed in it with reference to the petitioner company for revising the existing contractual rate; and (b) Fresh consideration of the factors mentioned in section 60(5)(a) was required irrespective of the fact that factors mentioned in section 49(2) of the had already been considered at the time of framing of the uniform tariff which was being fixed for the petitioner company while revising the rates. Consequent on the opinion of this learned Judge the writ petition was allowed and a writ of certiorari was issued quashing the approval dated 28.9.1983 given by the State Government to the new rates and the consequent resolutions, sanctions, bills and demands of the Board and the State Government. A writ of mandamus was also issued commanding the respondents not to charge the uniform tariff rate for the period beginning from 20th May, 1983 till the rates were fixed in accordance with section 60(5) (a) of U.P. Act No. 12 of 1983. The Order disposing of the Writ petition finally is dated 2.4.1987. Immediately the judgement was pronounced the State Electricity Board and the State Government sought a certificate of fitness for preferring an appeal to this Court and the High Court granted the certificate, as prayed for. This appeal has not been numbered on account of delay. Though the High Court had quashed the revision of the rates, it had left it to the board and State to fix revised rates afresh. That apart, the appellant had also a grievance that, in applying the HV 2 rates which were applicable to other consumers, the Board and the State had not taken into account the special factors relevant to the supplies made to it. The appellant also, therefore, filed S.L.P. No. 13967 of 1987 for leave to appeal from the judgement dated 2.4.1987. Leave has been granted by this Court on 8.4.1988 and the appeal of the company had been registered as C.A. 1306 of 1988. In the meantime the Board and State were, apparently carrying on an 167 exercise for the revision of the rates afresh as directed by the High Court and, on 28.3.1988, the Board purported to fix the following revised rates for the supply from 20th May, 1983. Period Rate (Paise per unit) 20.5.1983 to 31.3.1984 70.21 1.4.1984 to 31.3.1985 74.93 1.4.1985 to 31.3.1986 85.14 1.4.1986 to 31.3.1987 88.60 It will be observed that rates thus fixed, and said to have been approved by the State Government, were much higher than the HV 2 rates fixed earlier, objected to by the appellant and quashed by the High Court. Having done this, this Board sought leave to withdraw the appeal preferred by it. So far the appellant 's appeal was concerned, it was contended that the appellant 's remedy was to challenge the revision of 28.3.1988, if so advised, in fresh proceedings. This was the position when these appeals came to be heard by us on April 10, 1991. We heard the appeals at length and reserved orders. In doing so we passed the following order : "The appeals pertain to the fixation of tariff rates for supply of electricity to the appellants caustic soda plant at Renukoot. The appellants originally came to court challenging the levy of the electricity charges on the basis of HV II rates applicable generally to consumers drawing supply from the U.P. State Electricity Board. However, the High Court held that the rates applicable to the appellants should be determined having regard to the individual circumstances of the appellants. This was by a majority judgement in the High Court. Subsequently, the Electricity Board had proposed, and the State Government has approved, certain rates for the period from 20.5.1983 to 31.3.1987 which are somewhat higher than the HV II rates originally approved. This is the bone of controversy between the parties. We find that the State Government and Board have filed no counter affidavits in regard to the challenge by the appellants to the revision of rates effected subsequent to the High Court 168 judgment. In the circumstances, before we pronounce our judgment we think that, in the interests of justice, it would be proper to direct the State Board and the State Government to reconsider the fixation effected by them on the basis of the following directions : 1. Within a period of three weeks from today, the appellants will file before the State Electricity Board (with a copy to the State Government) a representation setting out what, according to them, are the individual factors which should be taken into account in fixing the rates applicable to them within the meaning of section 60(5)(a), 1948 as amended in 1983. The State Electricity Board will consider this representation and make appropriate recommendations to the State Government. However, before doing so, and particularly if the Board intends to take into account any factors other than those mentioned in the appellants ' representation, they should indicate the factors which they so wish to take into account, in their recommendations to the State Government. A copy of the recommendations should be forwarded to the appellants within seven weeks from today. On receipt of the recommendations made by the Board, the appellants may submit to the State Government, if they so desire, any representation which they wish to make regarding the recommendations within a period of three weeks thereafter. The State Government will consider the recommendations of the State Board as well as the representations made by the appellants to the Board as well as to themselves and approve of the rates which they consider proper in the circumstances of the case by a reasoned order, giving a board indication of the factors which they have taken into account in fixing the rates. This decision should be arrived at within a period of four weeks from the date of the receipt of the representation of the appellants. As indicated above, since the High Court has decided that in fixing the rates the individual circumstances of the appellants should be taken into account, the State Board as well as the State Government should take into consideration the special 169 circumstances of the appellants in fixing the rates. The Government 's order may also, in case different rates for different periods are fixed, indicate the respective dates from which the several rates will come into operation. The rates and dates so fixed by the Government, will naturally be subject to the decision on these appeals. " Subsequent to our order, the appellant made a representation to the Board on 29.4.91. The Board made its recommendations thereon to the State Government on 26.6.91. Thereafter the appellant made its representation to the State Government on 22.7.91. The State Government has subsequently passed an order on 31.8.91 and submitted the same to us. It is perhaps sufficient to extract the concluding paragraphs of the order. "After analysing the contentions of Kanoria Chemicals and the State Electricity Board, the State Govt. comes to the conclusion that M/s. Kanoria Chemicals and Industries Ltd. has taken benefit of establishing this unit in a backward area for the last 19 years and there is no justification in giving this benefit in continuously future also because this area has been developed in comparison to earlier years. The request of M/s. Kanoria Chemicals and Industries Ltd. that the factors shown by State Electricity Board should be limited to Rihand Hydel Power Station, is without justification since at present, they are getting supply from U.P. Grid and not from Rihand Power Station. Hence, the point of view of the State Electricity Board is justifiable. After due consideration of representation dated 24.2.91 and 22.7.91 of M/s. Kanoria Chemicals and Industries Ltd. and the recommendations of the State Electricity Board dated 26.6.91, the State Govt. comes to the conclusion that M/s. Kanoria Chemicals and Industries Ltd. has failed to indicate any fact which comes under the provisions of Sec. 60(5)(a) of the and which has not been considered by the State Electricity Board while fixing the rates in March 88 has kept in mind the decision of Hon. High Court of Allahabad and 170 complied with the provisions of sec. 60(5)(a) of the . Since keeping in view the factors enumerated in sec. 60(5)(a) of the , the Rules were revised in March, 1988 in the following manner, hence there appears no necessity to change these rates : S.No. Period Rate 1. 20.5.83 to 31.3.84 70.21 paise/unit 2. 1.4.84 to 31.3.85 74.93 paise/unit 3. 1.4.85 to 31.3.86 85.14 paise/unit 4. 1.4.86 to 31.3.87 88.60 paise/unit In other words, the State and Board adhere to the rates fixed on 28.3.88. It may be interesting to set out a comparative table of the revisions effected by the Board originally (which was quashed by the High Court) and the rates now approved : Period HV 2 rate Revised rate Paise/unit paise/unit 20.5.83 to 31.3.84 55.71 70.21 1984 85 59.86 74.93 1985 86 63.89 85.14 1986 87 80.88 88.60 *1987 88 84.64 88.60 *1988 89 93.39 88.60 * The revised rates for 1987 88 and 1988 89 are stated to be provisional but so far till today no fresh rates have been fixed in respect of these periods. 171 The resultant position is that the appellant is now facing huge demands in respect of the period since 20.5.1983 and till 31.3.1989 when the agreement expires, at rates which will be higher than the HV 2 rates which had been sought to be applied in the first instance. The appellant vehemently challenges the fixation of rates on 28.3.88 and 31.8.91. A good part of the argument before us in these appeals, in the first instance, was addressed on the question whether the State Government was obliged to give a hearing to the consumer before revising the rates under section 60(5) and whether the factors relevant under s.60(5) can be said to have been taken into account on the ground that they had already been taken into account while fixing uniform rates under s.49. In this context, reference was made to several decisions and contentions where canvassed in regard to the nature of the process of fixation of rates of charges for supply of electricity. It is, however, unnecessary to go into all these aspects because, in pursuance of the directions of this Court dated 10.4.1991, the matter has been re considered by the Board and the State Government and fresh rates have been fixed along with the respective dates of operation after hearing the appellant 's representatives. Broadly two principal submissions have been addressed before us at this stage on behalf of the appellants. The first is that the fixation of rates as on 31.8.1991 is not valid as the respondents have not complied with the directions given by this Court in the order dated 10.4.1991. It is argued that the respondents have neither disclosed the factors based on which the rates were revised in March 1988 nor have they indicated the monetary incidence or impact of the factors taken into account, though a specific request was made in this regard by the appellant to the Board and to the State Government. The appellant, it is said, has been gravely prejudiced and handicapped, in the absence of any such disclosure, in making any effective representation. Further in the final order dated 31.8.91, the State Government has stated that the fixation of rate by the State Government was based upon the consideration of facts and data communicated by the Board to the State Government in March 1988 but, admittedly, no facts, data or basis had been placed before this court at the time of the original writ petition on the basis of which the State Government had fixed the rates in March, 1988 compelling this Court to remand the matter for fresh consideration. Suddenly the Board, while concluding its recommendation to the State Government on 26.9.91 reminded the State Government that prior approval of the State Government for the rates had already been obtained in March 88 and persuaded the State Government to mechanically uphold the pre determined rates. Finally, it is contended that even in this process of re fixation of the 172 rates there was no genuine exercise to consider relevant factors in determining the rate under section 60(5)(a). We do not think that there is any force in these contentions. By the time the matter came up before us for hearing in the first instance the State Government had already passed its order of revision dated March 28, 1988. The rates which had been recommended by the State Electricity Board and approved by the State Government were within the knowledge of the appellant. It was of course necessary and equitable that, before giving effect to these rates (if not even before they were recommended), the consumer should have had no opportunity of placing before the Electricity Board and the State Government its side of the picture. This opportunity has, however, been provided by to the appellant. The appellant has also filed its representation. After considering the representation, the Board made its recommendations to the State Government and a copy of these recommendations were also available to the appellant. The appellant also had full opportunity to meet the various points set out in the recommendations of the Board. The comments of both the Board and the appellant have been taken into account by the State Government before finally approving of the rates proposed by the Board. The grievance of the appellant seems to be that the Board has not set out anywhere the precise manner in which the rates recommended by them were arrived at and that this has considerably handicapped any effective representation being made by it to the Board and to the State Government. We do not think the proceedings are vitiated for this reason. It is true that the actual computations of the rates were not set out by the Board in its recommendations made in 1983 or 1985 or 1988 but the proper approach to the issue is not the one adopted by the petitioner. The section does not require the Board or the State Government to explain each and every step in its calculation. All that the State Government has to do is to take into consideration the factors relevant under section 60(5) and propose rates for fixation to the State Government. It is in order to ensure that these recommendations take into account all relevant factors that an opportunity has been provided to the consumer to satisfy the Board as well as the State Government that the fixation has not taken into account certain relevant factors. We, therefore, think the appellant must be held to have been given a fair opportunity under section 60(5)(a) so long as it had an opportunity to explain to the Board and the State Government the factors individual to its case and also as to how and why the rates recommended by the Board need modification. Moreover, the issue here was in a narrow compass for the following reason. On the passing of the Amendment Act, the Board decided to substitute the contract rates by the HV 2 rates. But this was rendered infructuous because of the terms of section 60(5)(a) which, it was said, were 173 different from those of section 49. If the factors under section 49 were alone to be taken into account then the consumers, one and all, would have been liable to pay for the electricity at the tariff rates. The claim of the appellant was that in applying these rates certain factors individual to it had not been taken into account. If one compares the two provisions, one will find that most of the elements are common to the two provisions. Both under section 49 and section 60 the authorities have to take into account the geographical position of any area, the nature of supply and purpose for which supply is required and any other relevant factor. The only difference between the two provisions is that since section 49 deals with a general fixation while section 60(5) deals with a fixation for a particular individual case, there may be some special factors to be taken into account which may or may not be germane while fixing the general tariff under section 49. Hence the only point which needed to be considered, when the matter was reexamined pursuant to our directions, was whether, having regard to the factors prevailing in the case of the appellant the rates to be fixed should be higher or lower than the HV 2 rates or whether they should be the same. It was open to the petitioner to contend, as it in fact did, that there are special features in its case which make it legitimate to fix some concessional rates as compared to other consumers. On the other hand, it is equally open to the State Electricity Board to contend that having regard to the prevalence of certain circumstances, the rates to be fixed should be higher than the tariff rates applicable generally. This is a short aspect on which both parties have made their positions clear. Apart from the general factors which have been taken into account in fixing the general tariff rates, the Board has, in making its recommendations, taken into account the purpose for which supply was required by the petitioner along with the factor of recurring losses incurred by the Board year after year and its statutory requirements to maintain a minimum surplus of 3 per cent as required under section 59 of the Supply Act, 1948. We are, therefore, satisfied that the appellant had full opportunity to place all its special features before the Board and the State Government and that all aspects have been fully considered by the authorities. The fixation of rates on 31.8.1991 is not, therefore, vitiated for the reasons urged by the appellant. The only other aspect that requires consideration is regarding the maintainability of the rates as now fixed by the Board and the State. Three questions arise in regard to this : (i) Can the Board fix rates higher than HV 2 rates in respect of bulk consumers like the company for whom a concessional rate had been granted on special considerations ? 174 (ii) Can the Board determine rates in 1991 and make them retrospective w.e.f. 1983? (iii)Was there material for the Board to fix rates which they have eventually fixed? We find that the answer to the first two questions posed only be in the affirmative. On the first issue, there are no obstacles, statutory or theoretical, standing in the way of the Board fixing rates for the company which will be higher than the rates applicable to bulk consumers. The provision in s.60(5)(a) is intended to enable the Board and State to cut off the shackles cast by an ancient contract entered into at a time when conditions were totally different. It confers an absolute and unrestricted enabling power to revise the rates in an appropriate manner and contains no restriction of the nature suggested for the appellant. In doing this, the only limitation which the statute requires the authorities to keep in mind are the factors mentioned in the section. Whether the revised rates for the consumer governed earlier by the contract should be higher or lower than, or equal to, the tariff rates would depend on a large number of considerations, in particular, the basis on which, and the point of time at which, those general rates were fixed. In principle, it is quite conceivable that, in an appropriate case, a consideration of the relevant factors may justify even a rate higher than the general tariff rates intended for the particular category of consumers. We shall examine later whether this was justified in the present case. At the moment, all we are concerned with is the legality of fixing such higher rates and we see no difficulty in this either on the language of the Statute or on other considerations. A retrospective effect to the revision also seems to be clearly envisaged by the section. One can easily conceive a weighty reason for saying so. If the section were interpreted as conferring a power of revision only prospectively, a consumer affected can easily frustrate the effect of the provision by initiating proceedings seeking an injunction restraining the Board and State from revising the rates, on one ground or other, and thus getting the revision deferred indefinitely. Or, again, the revision of rates, even if effected promptly by the Board and State, may prove infructuous for one reason or another. Indeed, even in the present case, the Board and State were fairly prompt in taking steps. Even in January 1984, they warned the appellant that they were proposing to revise the rates and they did this too as early as in 1985. For reasons for which they cannot be blamed this proved ineffective. They revised the rates again in March 1988 and August 1991 and, till today, the validity of their action is under challenge. In this 175 state of affairs, it would be a very impractical interpretation of the section to say that the revision of rates can only be prospective. The language of the section also supports this view. Slightly rearranging the syntax of the clause to facilitate easier understanding, what it provides is that the revised rates fixed by the Board shall be the rates to be charged by the Board for the energy supplied by it to any consumer for which the payment will be due for the first time on or after the 20th May, 1983. In other words, the rates eventually fixed will, by force of statute, apply to all supply of electricity for which the charges become payable in terms of the contract, after 20.5.1983. There are three objections suggested against this interpretation. The first is that it precludes the Board and State, where they choose to do so, from revising the rates prospectively or with effect from such dates, after 20.5.1983, which they may consider appropriate. We think this consequence does not flow from the language of the provision. The mandate is only that the rates to be charged on supplies for which payment becomes due after 20.8.83 shall be as fixed by the Board. The powers of the Board in fixing the rates including the dates from which they will be operative are not restricted in any manner. The Board is at complete liberty to fix different rates from different dates and that scheme of fixation will be read with the contract. Only the Board cannot revise the rates in respect of supplies for which payment under the contract, fell due before 20.5.83. The second objection, which is a follow up of the first, is that if the power u/s 60 is held exercisable more than once, the interpretation will permit successive revisions, each superseding the earlier one, a position that could lead to immense harassment. We have no doubt the power u/s 60 is exercisable more than once. All the same, the answer to the appellant 's objection is that, while this could be a basis of substantial harassment if repeated revisions are automatically dated back to 20.5.83 (as argued, on the first point, for the assessee), it loses all force on our interpretation leaving it open to the Board and State to fix the dates with effect from which revisions will be effective. In view of this, one can take in that, while making a subsequent revision, the authorities will not normally tamper with an earlier revision (s) or alter the dates of effectiveness fixed for the earlier revision (s) without a valid reason to do so. If this is done, it will be open to a court to examine the basis thereof and sustain it only where the earlier fixation was based on an error or misconception or the like and called for modification. The third objection is that the Hindi version of the Amendment Act is differently worded and does not contain the words "for the first time" found in the English version. Reliance is placed on the decision of a Bench of seven judges of the Allahabad High Court in Mata Badal Pandey vs Board of Revenue, (1974) U.P.T.C. 570 to 176 the effect that, where there appears a doubt or ambiguity on a plain reading of the English words as to the true intention of the legislature and the Hindi version is conflicting or different. the Hindi text will be the key for finding the answer. We do not think the Hindi version really alters the position; actually it is the presence of the words "for the first time" in the English version that create an ambiguity. Without these words, the clause clearly provides that all supply of electricity, for which payment is to be made after 20.5.83, will be charged at the rates to be fixed by the Board. We, therefore, reject the appellant 's contention and hold that the fixation by the Board of rates from 20.5.83 and, at different rates for different periods of time, is unexceptionable. This takes us to the real and crucial question in the case as to whether rates to be fixed in the present case should, on proper consideration, be less than, equal to or higher than the general HV 2 rates. The appellant contends that it should be charged at the cost of generation plus a reasonable margin of profit or at the rate at which the supply is made to the Madhya Pradesh State Electricity Board. At any rate, it is said, the rates charged to the appellant should be less than HV 2 rates. For this it relies on: (a) the special circumstance that the appellant, at great detriment to itself, agreed to set up a caustic soda plant in a backward area at the request of the State Government and in public interest only because of a promised concession in rates of electricity supply; (b) the fact that the supply to the appellant is metered at the point of generation with the result that the transmission and distribution losses, in so far as the appellant is concerned, are borne by the appellant and not by the Board as in the case of other consumers and (c) the important fact that electricity, in the case of the appellant, is one of the only two raw materials needed for its business. On the other hand, for the Electricity Board, it is contended that the appellant should be called upon to pay higher than HV 2 rates for the following reasons : (i) The appellant has been having substantial supplies of electricity at nominal rates of 2.5 paise and 2.75 paise per unit between 1963 and 1983. (ii) The supply to the assessee is being made only from the State Grid and there is no reason why it should draw the supply at lower rates than others : (iii) The Board had been incurring heavy losses over the years. This is to a considerable extent due to the spiraling demand for electricity, the Board 's responsibilities under the statute to co 177 ordinate development of the supply of energy throughout the State and the necessity to supply energy at concessional rates to certain sectors such as the agricultural sector. (iv) The Board is also entitled, under s.59 of the 1948 Act, to take into account the necessity of building up a surplus, statutorily fixed, in the fixation of rates of supply to all or any of its consumers. We have given careful thought to the considerations urged before us and we are of opinion that there is no material to justify any departure from the HV 2 rates in the case of the appellant. We find no force in the contentions put forward on behalf of the appellant to reduce the rates applicable to the appellant below HV 2 level. The special circumstances pleaded have lost their importance with the passage of time. It is obvious that the conditions that prevailed in 1963 are not valid and the appellant has had the benefit of concessional rates for twenty years. No doubt the benefits would have continued for five more years but for statutory intervention. But the statute permits a reconsideration of the situation as in May 1983 and it is unarguable, it seems to us, that the rate of 2.75 p. should continue even after 1983 or that the appellant should be entitled to any special concession. The consideration that electricity is a "raw material" in the assessee 's business is, again, irrelevant for it can mean nothing more than that the appellant needs substantial quantities of the energy and there is no reason why it should not pay for it at the normal market rates. The point regarding take off of supply at the generating point will no doubt have some relevance on the question of rates and we shall refer to this aspect later in the context of the pleas put forward by the Board. We are, therefore, of the view that the appellant has no valid justification for staking a claim to less than the HV 2 rates. Equally, it seems to us, the authorities have no case for seeking to raise the rates beyond the HV 2 rates. They are supplying energy to the appellant from the grid since 1968 and they cannot justifiably seek to demand higher rates from the appellant than from the HV 2 consumers. This is sought to be justified on the basis of the huge losses that the Board has been incurring and the statutory justification for escalation in the rates keeping in view the necessity to build up a surplus. This, however, is an aspect of working which should affect all the consumers equally. May be the Board can, in appropriate circumstances, seek to make up for a part of the losses by hiking up the rates to one particular category of consumers but that would not be justified here as the transmission and distribution losses 178 in respect of the supply to the appellant are borne by it and, in the absence of some special vital reason, it would not be equitable to fix the rates of supply to the appellant above the rates applicable to other HV 2 consumers. Some reference was made to the difficulties in completely fitting the scheme of computations for determining the HV_2 rates into the scheme under the appellant 's contract. It is, however, unnecessary to go into that aspect as we are only on the question of rates and holding that there is no justification for charging more than HV 2 rates from the appellant. Moreover, the appellant has been paying for the Obra supply at HV 2 rates since 1989. We have also been informed that in 1972 the appellant took a further additional supply of 8 MW and agreed to pay therefor at HV 2B rates as applicable to other Bulk Power Consumers in the State. In these circumstances, we have reached to the conclusion that there is no justification to charge more than HV 2 rates from the appellant. We, therefore, allow this appeal in part, quash the determinations of 1988 and 1991 and direct that the appellants should be charged from 20.5.83 to 31.3.89 at the HV 2 rates applicable to other consumers. The appeal of the appellant is partly allowed to the above extent. The Board 's appeal has not yet been numbered as it is delayed by a few days. It was, however, stated that the Board wishes to withdraw its appeal because of the subsequent developments. For these reasons and also in view of our above conclusion the Board 's appeal also stands dismissed. In the circumstances, we direct each party to bear its own costs. T.N.A. C.A. 1306/88 Partly allowed. C.A. 128/92 dismissed.

The respondent 's land admeasuring 5 acres 589 1/3 Sq. yards was acquired by the State Government in 1963 for a housing scheme and compensation at Rs.1.58 per Sq. yard was awarded. On reference, the Civil Court enhanced the compen sation to Rs. 10 per Sq. yard with solatium at 15 per cent and interest at 4 per cent. On appeal and cross appeals, the High Court confirmed the award. In the appeal before this Court, on behalf of the De partment, it was contended that the respondent had purchased the land in question in 1961 in three documents at Rs.0.42 p. per sq. yard and sold in 1963 one acre of the land at Rs.5 per sq. yard and, therefore, the deeds under which the transactions took place reflected the prevailing market value of the land in question, and courts below committed grave error in relying on a decision of the High Court awarding Rs. 10 per sq. yard in respect of another land acquired under a Notification of 1961, and that when a large extent of land was acquired for a housing scheme, at least 1/3 of the land should be deducted towards laying the roads, setting up parks, drainage and other amenities. Allowing the appeal, this Court, HELD: 1.1 The market value postulated in Section 23(1) of the Land Acquisition Act, 1894 is designed to award just and fair compensation for the lands acquired. The word "market value" would postulate price of the land prevailing on the date of the publication of the notifica 473 tion under Section 4(1). In determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis. For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price. The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land pos sessing similar advantages to the land in neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value. [475E G] Periya & Pareekanni Rubbers Lief. vs State of Kerala, [1990] Supp. 1 SCR 362, referred to. 1.2 In the instant case, admittedly, the claimant pur chased land at Rs.0.42 p. and in a span of one year and four months, sold at Rs.5 per sq yard. When the claimants them selves sold as a willing seller of an acre of land @ Rs.5 per sq. yard, if a large extent of five acres and odd under acquisition is offered to be sold as a block, it would not fetch higher rate but surely be negotiated for a lesser rate, if not the same market value of Rs.5 due to time lag of nine months. May be the payment of Rs. 10 per sq yard to the owner of another land acquired in 1961 was a windfall. Taking the totality of the facts and circumstances, the High Court committed grave error in completely ignoring the sale transactions of the lands under acquisition. In view of the time lag, the prevailing market value of the land as on the date of the notification would be Rs.6 per sq. yard. [476B, E G] 1.3 In Building Regulations, setting apart the lands for development of roads, drainage and other amenities like electricity etc. are condition precedent to approve lay out for building colonies. Therefore, based upon the situation of the land and the need for development, the deduction shall be made. Where acquired land is in the midst of al ready developed land with amenities of roads, drainage, electricity etc. then deduction of 1/3 would not be justi fied. In the rural areas housing schemes relating to weaker sections, deduction of 1/4 may be justified. [477G H, 478A] Spl. Tehsildar, Vishakapatnam vs Rednam Dharma Rao & Ors., CA No. 4187 of 1982 decided on July 17, 1990; Tribeni Devi & Ors. vs Collector of Ranchi, ; at 213; Smt. Kaushalya Devi Bogre & Ors. vs The Land Acquisi tion Officer, Aurangabad; , ; Vijay Kumar Motilal vs State of Maharashtra, ; Vijay singh Liladhar vs Special Land Acquisition Officer, 760; Spl. Land Acquisition Officer, Bangalore vs T. Adinaray an Setty, [1959] Sppl. 1 SCR 404 and The Tehsildar, Land Acquisition, Vishakapatnarn P. Narasing Rao & Ors., , relied on. 1.4 In the instant case, 1/3 of the market value should be deducted for development of the lands. [478B] 1.5 The market value is determined at Rs.6 per sq. yard and after deducting 1/3 for development of lands, it would be Rs.4 per sq. yard. [478C] 2. It is settled law that when wrong application of a principle has been made or important points affecting valua tion have been overlooked or misapplied by the High Court or Reference Court, this Court would, under Article 136 of the Constitution, correct the same. The Spl. Land Acquisition Officer, Bangalore vs T. Adina rayan Setty, [1959] Suppl. 1 SCR 404; Dattatrayaya Shankarb hat Ambalgi and Ors. vs The Collector of Sholapur and Anr., ; The Dollar Co. Madras vs Collector of Madras, and Padma Uppal etc. vs State of Punjab & Ors. , ; , relied on.

ivil Appeal No 3740 of 1988. From the Judgment and Order dated 7.7.1988 of the Patna High Court in C.R. No. 167 of 1988. Dr. Shankar Ghosh and D P Mukherjee for the Appeliant. H.K.Puri for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted. The appeal is disposed of by the judgment herein. This is an appeal from the judgment and order of the High Court of Patna (Ranchi Bench) dated 7th of. July, 1988 By the aforesaid order the High Court confirmed the striking off of the defence of the. appellant in a suit for eviction under the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter called `the Act ') on the ground of personal necessity and change of the nature of the business by the appellant etc. The plaintiff respondent filed a suit for eviction against the defendant appellant from the shop room under Section 11 of the said Act on the aforesaid grounds The appellant tiled the written statement contesting the said suit. The case Or the appellant was that the PG NO 411 respondent landlord 's case was false and a pretext for reletting the premises for much higher rent after her attempt to increase rent did not succeed. It was further alleged that the landlord had sufficient alternative accommodation which would not entitle him to get a decree. It was denied that there was no change of business carried on apart from those business permitted by the contract of tenancy. There was, however, no such bar in this case. On 4th of February, 1983, the asked for an order under Section 15 of the said Act against the appellant for deposit of arrears and current rent. The Trial Court by its order on that date directed the appellant to deposit the arrears, if ny, and continue to deposit rent month by month in future by 15th day of the month next following. It was stated that the appellant accordingly got challans passed for 2 months together each time and deposited the amount in time in the court treasury throughout. However, through some inadvertence, rent for the months of November and December, 1986 could not be deposited. It as alleged that the appellant had genuine belief that his son had deposited the same. It was further the case of the appellant that neither the landlord nor any court of law ever pointed out this non deposit to the appellant. The appellant further asserted that the challans for subsequent period having been passed without any objection, the appellant got the impression which was bona fide that he had complied with the earlier order of the court and continued to be in bona fide occupation of the premises in question. In the premises, the respondent filed a petition under section 15 of the Act in the trial court for a direction to strike out the defence on the ground that the appellant failed to deposit rent for the months of November and December, 1986. The appellant contested the application, inter alia, contending that the rent for the said period had been duly deposited and asked for a report from the Accounts Branch of the court. This, according to the appellant, was because the challan for that period was found missing from the record of the appellant as asserted by the appellant. It later transpired on the challans being produced that the rent for the months of November and December, 1986 had not been actually deposited. The appellant 's case was and throughout has been that this was a mistake. The appellant, therefore, got a fresh challan passed on or about 9th March, l988 and deposited the amount. It is further the case of the appellant that all subsequent amounts have been duly deposited for all subsequent periods. The respondent made his application, as mentioned hereinbefore, under section 15 of the Act for striking out the defence. On 27th March, 1988, the learned Subordinate Judge III, Jamshedpur found that the rent for the months of November and December, 1986 had not been deposited. The defence against the ejectment, therefore, was struck off. It PG NO 412 was contended before the learned Subordinate Judge that the time to deposit the rent from time to time, though originally granted for two months had expired, could be extended. On the other hand, on behalf of the respondent, it was urged that the defence was bound to be struck off since it was apparent that the amount had not been deposited. It was asserted that the defence of the appellant that the amount had been deposited, and the assertion to which the appellant struck was obstinate and wrong and, therefore, not bona fide. Taking view of these evidence, the learned Subordinate Judge came to the conclusion that the excuse for non deposit was not bona fide and there was unexplained delay to deposit the rent for the months of November and December, 1986 as enjoined by the order of the court, and, therefore, under section 15 of the Act, it was obligatory for the court to strike off the defence. The High Court was moved in revision. The High Court dismissed the application on the 7th July, 1988 in limine. Hence, this appeal. Section 13 of the Act enjoins making of an application for deposit by a tenant in suits for ejectment. The said section provides as follows: " 13. Deposit of rent by tenants in suits for ejectment. If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the Court, after giving an opportunity to the parties to be heard, may make order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month in the fifteenth day of the next following months, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposit rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant. " PG NO 413 In case an order of a deposit is made, the court may pass an order to deposit the rent on a particular date and/or on 15th day of the following month and if such a deposit is not made then the court shall order the defence against the ejectment to be struck out and the tenant be placed in the same position as he had not defended the claim for ejectment. The question is if the deposit is not made, the provision of the section mandates the court to strike out the defence. The question, therefore, arises whether there is any discretion for the court in case the deposit is not made within the stipulated time. Indisputably, in this case the deposit had not been made. The section is clear in its terms. The Act, as the preamble states, is inter alia `to prevent unreasonable eviction of tenants '. Therefore, though it is for protection of tenants, the Act is enjoined to regulate the rights and the duties of the landlords and the tenants. In the facts of this case, as found by the court, there was failure to deposit the rent within the stipulated time. The actual problem in the instant case is whether in a case of a genuine mistake, which, we must hold there was in this case does the court have jurisdiction to extend the time and treat the deposit subsequently made as properly made? In Ganesh Prasad Sah Kesari & Anr. vs Lakshmi Narayan Gupta, ; this Court was concerned with the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 and Section 11A thereof as it stood at the relevant time. The said section, like the present section 13, enjoins that `the court shall order the defence against ejectment to be struck out and the tenant be placed in the same position as if he had not defended the claim to ejectment '. This Court held that failure to comply with an earlier direction should not necessarily visit the tenant with the consequences of his defence being struck off because there might be myriad situations in which default may be commited. The Court should, therefore, adopt such a construction as would not render the court powerless in a situation in which the ends of justice demand relief being granted. It was found in that case that the tenant had deposited all arrears of rent though there were some irregularities in making the deposit, but it was not of such a nature as to visit the tenant with the consequence of striking off his defence. In that case, it was held that the defence should not be struck off and the Court should also not consider the word `shall ' in the context of the section as mandatory but directory. In the cue of Mrs. Manju Choudhary and Anr. vs Dulal Kumar Chandra, it was held that if there was `unexplained delay then the court is bound to strike off the defence. There was observation that there is a duty cast PG NO 414 on the court to strike off the defence if there is failure to deposit the rent in terms of the order of section 13 of the Act. The said observations would apply to the facts of this case and, therefore, the court must from a proper perspective judge the question whether the delay or failure to deposit the rent in terms of order under section 13 of the Act has been properly explained and if that delay has been properly explained, then the court has a discretion to excuse the delay, but if the delay has not been properly explained then the court has no discretion. In our opinion, such a construction would be a harmonious rendering of the language of section 13 to the claim for justice in each particular case. Therefore, the court should consider whether the delay has been reasonably explained or not. In construing that question the court in the scheme of the administration of justice must take a constructive and purposeoriented approach. If it does, then the element of discretion comes into play though not in the form of directory or mandatory provision but in considering whether the delay was properly explained or not. In the facts of this case. we find that there is good deal of justification for the delay and the delay has been properly explained in the background of the facts and the circumstances of the case. If that is the position, the court should consider the question in that light. The trial court did not look at it from that perspective. The court, therfore, committed an error resulting in miscarriage of justice. The High Court in not interfering with this miscarriage of justice too committed an error of jurisdiction. In this connection, reference may be made to the observations of this Court in M/s B.P.Khemka Pvt. Ltd. vs Birendra Kumar Bhowmick and Anr., [I971] 2 SCC 407. There, the court was concerned With the default in payment under the West Bengal Premises Tenancy Act, 1956 (as introduced by Ordinance 6 of 1967).There, the court had to consider the expresion `shall ' in section 17(3) of the West Bengal Act. It was held that the court 's power was discretionary and in that case the High Court was of the opinion that the delay of two months in payment of rent being of technical nature, the court should have exercised discretion and refused to strike off the defence. It was the view of the court that the words `shall order the defence against delivery of possession to be struck out ' occuring in section 17(3) of the West Bengal Act have to be construed as directory provision and not mandatory provision as the word `shall ' should b. read as `may '. The court expressed the view that such a construction was warranted because otherwise the intendment of the Iegislation as judged from the whole scheme in the preamble would be defeated and the class of PG NO 415 tenants for whom the beneficial provisions were made by the Ordinance in question in that case and the amending Act will stand deprived of them. This Court observed that the court is vested with the discretion either to order the defence to be struck out or not, depending upon the circumstances of the case in the interest of justice. There, the Court found that the delay was technical in nature. Therefore, the interest of justice which is the paramount justification of the administration of justice with the purpose of the Act, compels us to hold that if the delay is explained then there is no delay and the court in such a case cannot strike off the defence. If, on the other hand, the delay is not explained or the explanation is one which is not acceptable to the court, then the court must strike out the defence and there is no discretion. Read in that light, in our opinion, the learned trial judge of the High Court committed an error in exercising his jurisdiction. The orders of the High Court and the Trial Court are set aside. The defence of the appellant is restored since all the rents have been deposited. In view of the delay due to interruption in the prosecution of the case, it is desirable, if possible, to dispose of the trial within six months from today, particularly since the case has been pending since 1975. The appeal is, therefore, disposed of accordingly. In the facts and the circumstances of the case and the conduct of the appellant in taking an incorrect defence leading to subsequent proceedings, the appellant is directed to pay all costs of this appeal which are assessed as Rs. 1,500. R.S.S. Appeal disposed of.

The appellant assessee manufactures and supplies to the Indian Railway wheels, tyres and axles as separate items. The goods are forged products. After being forged, the goods are rough machined and polished before supplying, thus removing the excess layer of steel, commonly referred to as 'excess skin '. The appellant also makes and supplies to the Railways wheels and axles as composite units. Right from 1962 the appellant/assessee was filing classification lists showing the forged goods as liable to excise duty only under Tariff Item No. 26AA(ia) of the Central Excise Tariff set out in the First Schedule to the , and this classification was being accepted and approved by the Excise Authorities. It is common ground that duty under Tariff Item No. 26AA was payable on the forged product and duty under Tariff Item No. 68 was payable only at the stage of the completion of the manufacture of the finished goods. In 1981, the Assistant Collector, Central Exicse, called upon the appellant to show cause why it should not be proceeded against for contravention of Rule 173 B, 9(i) read with Rule 173(G)(i) and Rule 173(i)(a) on the ground that the goods supplied to the railways were not forged items as such, but the said goods after they had undergone machining and polishing after having been forged had been turned into a distinct commercial commodity which process amounted to manufacture and hence the goods were liable to excise duty as set out in Item 68. The notice also called upon the appellant to show cause as to why duty on the forged goods under Tariff Item No. 26AA(ia) should not be payable on the footing of the weight of the goods as forged and before 1024 the removal of the excess skin. The basic contention of the revenue was that the goods were liable to duties at two stages, namely, under Tariff Item No. 26AA(ia) when they were forged and under Triff Item No. 68 after they were machined and polished. The stand of the appellant was that the process of forging of the goods could be paid to be completed only after machining and polishing, that machining and polishing was required to be done in order to bring the goods in line with the specification of the Indian Railways, that the goods supplied have to be further precision machined and fine polished at the railway workshop before these could be put to use by the railways, and hence the machining by the appellant did not amount to manufacture. A Certificate issued by the Railways states that axles are supplied to the railways in rough machined condition and wheels, tyres and blanks are supplied in "as rolled/as forged" condition. It further states that these wheels, tyres, exles and blanks have to be sometimes rough machined partially to remove excess steel or manufacturing defects, and these products are subsequently precision machined by the Railways at their workshops before being put to use. The Collector rejected the stand of the appellant and held that the appellant was liable to pay differential duty under Item 26 AA (ia) on the difference between weight of the said goods when forged and the weight after machining to remove the excess skin as well as the duty under Tariff Item No. 68. The Collector also held that the appellant was liable to penalty of Rs.1 lac under Rule 173 Q for suppression of facts or giving misleading particulars. On that basis the Collector took the view that the period of limitation for making the demand was 5 years prior to the service of the show cause notice. The appellant filed writ petition in the Patna High Court for quashing the order passed by the Collector. The High Court accepted the conclusions of the Collector save and except that they took the view that there was no suppression or mis statement of facts and hence the period of limitation would be only 6 months prior to the service of the show cause notice. The Appellants contends before this Court that machining and polishing which is done in its workshop was not of a significant character and is only in the nature of shaping by removing the superficial material to bring the forged items upto Railways ' specifications. It is further 1025 contended that the weight should be measured only after the machining and polishing at the appellant 's workshop was complete. The Respondents, on the other hand, contend that the forging of the goods was complete before machining and polishing was done and that the duty on the forged goods under Tariff Item No. 26AA(ia) should be payable on the footing of the weight of the goods as forged and before the removal of the excess skin by machining. Three points arise for decision: (1) at what stage could the goods suplied by said to be forged, and in respect of the said goods whether the weight for the purpose of levy of excise duty under item 26AA(ia) should be taken before or after the machining and polishing is done by the appellant to remove excess skin; (ii) whether as a result of machining and polishing the forged goods were transformed into new commercial commodities; (iii) whether the appellant was guilty of misstatement of facts so as to attract longer period of limitation. Allowing the appeal, this Court, ^ HELD: (i) The removal of extra/unwanted surface steel by either trimming or skin cutting of the forged product must be regarded as incidental or ancillary to the process of "manufacture" as defined in sub section 2(f) of the . The appellant is, therefore, liable to pay duty on the goods referred to in the petition other than the composite units only under Item No. 26AA(ia) of the First Schedule to the Central Excises Act and the duty will be based on the weight after the machining carried out in the factory of the appellant to remove the excess skin or excess surface steel. [1030D F] (ii) It is quite clear on facts that the finished goods, namely, finished wheels, tyres, axles and blanks could be said to have come into existence only after the precision machining and other processing at the Railways ' workshops was complete and therefore the appellant is not liable to pay any duty on these goods as under Item No. 68 of the Central Excise Tariff. [1031F] (iii) It is common ground that right from 1962 the appellant 's classification lists were accepted and approved by the excise authorities. In these circumstances, it could not be said that the appellant was guilty of any suppression or mis statement of facts or collusion or violation of the provisions of the Central Excises Act as contemplated under the proviso to Section 11 A of the said Act. In view of this, the period of limitation would clearly be only six months prior to the service of the show cause notice. [1032E F 1026 (iv) In respect of the composite sets, it is beyond dispute, and it is conceded by the appellant, that the appellant is liable to pay duty both under Items Nos. 26AA(ia) and 68, but only for a period of six months prior to the service of the show cause notice. [1033A B] Metal Forgings Pvt. Ltd. vs Union of India, [1985] 20 E.L.T. approved.

Appeal No. 151 of 1953. Appeal by Special Leave granted by the Supreme Court of India by its Order dated the 29th May, 1953, from the Judgment and Order dated the 4th May, 1953, of the Election Tribunal, Allahabad, in Election Petition No. 270 of 1952. I C. K. Daphtary, Solicitor General for India (G. C. Mathur and C. P. Lal, with him) for the appellant. Naunit Lal for respondents Nos. I to 4. 1954. May 20. The Judgment of the Court was delivered by GHULAM HASAN J. This appeal preferred under article 136 of the Constitution against the order, dated May 4, 1951, of the Election Tribunal, Allahabad, setting aside the election of Sri Vashist Narain Sharma to the Uttar Pradesh Legislative Assembly, raises two questions for consideration. The first question is whether the nomination of one of the rival candidates, Dudh Nath, was improperly accepted by the Returning Officer and the second, whether the result of the election was thereby materially affected. Eight candidates filed nominations to the Uttar Pradesh Legislative Assembly from Ghazipur (South East) Constituency No. 345, three withdrew their 511 candidature and the contest was confined to the remaining five. The votes secured by these candidates were as follows 1. Vashist Narain Sharma 12868 2. Vireshwar Nath Rai 10996 3. Mahadeo 3950 4. Dudh Nath 1983 5. Gulab Chand 1768 They were arrayed in the election petition as respondents Nos. I to 5 respectively. The first respondent having secured the highest number of votes was declared duly elected. Three electors filed a petition under section 81 of the Representation of the People Act (Act XLIII of 1951) "praying that the election of the returned candidate be declared void and that respondent No. 2 be declared to have been duly elected; in the alternative, that the election be declared wholly void. The election was sought to be set aside on the grounds, inter alia, that the nomination of respondent No. 4 was improperly accepted by the Election Officer and that the result of the election was thereby materially affected. The Tribunal found that respondent No. 4, whose name was entered on the electoral roll of Gahmar Constituency Ghazipur (South East) 'personated ' (meaning passed himself off as) Dudh Nath Kahar and used the entries of his electoral roll of Baruin Constituency ghazipur (South West), that the Returning Officer had improperly accepted his nomination, and that the result of the election was thereby materially affected. Allegations of major and minor corrupt practices and non compliance with certain statutory rules were made but the Tribunal found in favour of the returned candidate on those points. Dudh Nath, respondent No. 4, is Rajput by caste. His permanent or ancestral home is Gahmar but since 1943 he had been employed as a teacher in the Hindu Higher Secondary School at Zamania a town 10 or 12 miles away and he had been actually residing at village Baruin which is quite close to Zamania. The person for whom Dudh Nath 'personated ' is Dudh Nath Kahar whose permanent house is at Jamuan, 512 but his father lives at Baruin. Dudh Nath Kahar used to visit Baruin off and on but he was employed at Calcutta. The nomination paper filed by Dudh Nath gave his parentage and age which more properly applied to Dudh Nath Kahar. He gave his father 's name as Shiv Deni alias Ram Krit. Ram Krit is the name of Dudh Nath Kahar 's father. The electoral roll (Exhibit K) of Gahmar gives Dudh Nath 's, father 's name as Shio Deni with no alias and his age as 39, while the electoral roll of Pargana Zamania Monza Baruin (Exhibit C) gives Dudh Nath 's father 's name as Ram Krit and his age as 31. In the electoral roll of Jamuan Dudh Nath 's age is entered as 34 but in the supplementary list it is mentioned as 30. When the nomination paper was filed on November 24, 1951, at 2 20 P.m. it was challenged by Vireshwar Nath Rai on the ground that Dudh Nath 's father 's name was Shivadeni and not Ram Krit but no proof was given in support of the objection and it was overruled on November 27. This order was passed at 1 P.m. One of the candidates, who later withdrew, filed an application at 3 25 P.m. before the Returning Officer offering to substantiate the objection which the objector had not pressed. This application was rejected on the ground that the nomination had already been declared as valid. In point of fact no evidence was adduced. This acceptance of the nomination on the part of the Returning Officer is challenged as being improper under section 36(6) of the Representation of the People Act and as the result of the election according to the objector has been materially affected by the improper acceptance of this nomination, the Tribunal is bound to declare the election to be wholly void under section 100(1) (c) of the Act. Mr. Daphtary on behalf of the. appellant has argued before us with reference to the provisions of sections 33 and 36 that this is not a case of improper acceptance of the nomination paper, because prima facie the nomination paper was valid and an objection having been raised but not pressed or substantiated, the Returning Officer had no option but to accept it. There was, as he says, nothing improper in the action of the, Returning Officer, On the contrary, 513 it may, according to him, be more appropriately described as a case of an acceptance of an improper nomination paper by the Returning Officer, inasmuch as the nomination paper contained an inherent defect which was not discernible ex facie and could be disclosed only upon an enquiry and upon the taking of evidence as to the identity which was,not then forthcoming. Such a case, it is argued, is not covered by section (1)(c) but by section 100(2)(c) in which case the election of the returned candidate is alone to be declared void, whereas in the former case the election is wholly void. We do not propose to express any opinion upon this aspect of the matter, as in our view the appeal can be disposed of on the second question. Section 33 of the Representation of the People Act, 1951, deals ' with the presentation of nomination paper and lays down the requirements for a valid nomination, On the date fixed for scrutiny of the nominations the Returning Officer is required to examine the nomination paper and decide all objections which may be made to any nomination, and after a summary enquiry. if any, as he thinks necessary he is entitled to refuse nomination on certain grounds mentioned in sub section (2) of section 36. Sub section (6) lays down that the Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. This sub section shows that where the nomination paper is accepted. , no reasons are required to be given. Section 100 gives the grounds for declaring an election to be void. The material portion is as follows: (1) If the Tribunal is of opinion (a). . . . . . . . (b). . . . . . . . (c)that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void. It is under this sub section that the election was sought to be set aside, 66 514 Before an election can be declared to be wholly void under section 100(1) (c), the Tribunal must find that "the result of the election has been materially affected. " These words have been the subject of much controversy before the Election Tribunals and it is agreed that the opinions expressed have not always been uniform or consistent. These words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. The next question that arises is whether the burden of proving this lies upon the petitioner who objects to the validity of the election. It appears to us that the volume of opinion preponderates in favour of the view that the burden lies upon the objector. It would be useful to refer to the corresponding provision in the English Ballot Act, 1872, section 13 of which is as follows: " No election shall be declared invalid by reason of a non compliance with the rules contained in the first schedule to this Act, or any mistake in the use of the forms in the second schedule to this Act, if it appears to the Tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non compliance or mistake did not affect the result of the election." This section indicates that an election is not to be declared invalid if it appears to the Tribunal that non compliance with statutory rules or any mistake in the use of such forms did not affect the result of the election. This throws the onus on the person who seeks to uphold the election. The language of section 100(1)(c), however, clearly places a burden upon the objector to substantiate the objection that the result of the election has been materially affected. On the contrary under the English Act the burden is placed upon the respondent to show the negative, viz., that the result of the decision has not been affected. This view was expressed 515 in Rai Bahadur Surendra Narayan Sinha vs Amulyadhone Roy & others (1), by a Tribunal presided over by Mr. (later Mr. Justice) Roxburgh. The contention advanced in that case was that the petitioner having established an irregularity it was the duty of the respondent to show that the result of the election had not been materially affected thereby. The Tribunal referred to the provisions of section 13 of the Ballot Act and drew a distinction between that section and the provisions of paragraph 7(1) (c) of Corrupt Practices Order which was more or lesson the same lines as section 100(1) (c). They held that the onus is differently placed by the two provisions. While under the English Act the Tribunal hearing an election petition is enjoined not to interfere with an election if it appears to it that non compliance with the rules or mistake in the use of forms did not affect the result of the election, the provision of paragraph 7(1) (e) placed the burden on the petitioner. The Tribunal recognized the difficulty of offering positive proof in such circumstances but expressed the view that they had to interpret and follow the rule as it stood. In C. M. Karale vs Mr. B. K. Dalvi etc. (2), the Tribunal held that the onus of proving that the result had been materially affected rests heavily on the petitioner of proving by affirmative evidence that all or a large number of votes would have come to the returned candidate if the person whose nomination had been improperly accepted had not been in the field. In Babu Basu Sinha vs Babu Rajandhari Sinha etc. it was emphasized that it is not enough for the petitioner to show that the result of the election might have been affected but he must show that it was actually affected thereby. The case of Jagdish Singh vs Shri Rudra Deolal etc. was one under section 100(1) (c) of the Representation of the People Act. It was held that the question should always be decided on the basis of the material on the (1) Indian Election Cases by Sen and Poddar, page 188. (2) Doabia 's Election Cases, Vol. 1 (P. I78). (3) Indian Election Petitions (Vol. III) by Shri jagat Narain, page So. (4) Gazette of India (Extraordinary) October 13, 1953. 516 record and not on mere probabilities. The Tribunal distinguished between an improper rejection and an improper acceptance of nomination observing that while in the former case there is a presumption that the election had been materially affected, in the latter case the petitioner must prove by affirmative evidence, though it is difficult, that the result had been materially affected. The learned counsel for the respondents concedes that the burden of proving that the improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of three ways: (1) where the candidate whose nomination was improperly accepted had secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes, (2) where the person referred to above secured more votes, and (3) where the person whose nomination has been improperly accepted is the returned candidate himself. It is agreed that in the first case the result of the election is not materially affected because if all the wasted votes are added to the votes of the candidate securing the highest votes, it will make no difference to the result and the returned candidate will retain the seat. In the other two cases it is contended that the result is materially affected. So far as the third case is concerned it may be readily conceded that such would be the conclusion. But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any 517 one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100(1) (c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the ' Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere, in his favour and would allow the election to stand. In two cases [Lakhan Lal Mishra vs Tribeni Kumar etc. (1) and Mandal Sumitra Devi vs Sri Surajnarain Singh etc. (2) ], the Election Tribunal, Bhagalpur, had to consider the question of improper acceptance of the nomination paper. They agreed that the question whether the result of election had been materially affected must be proved by affirmative evidence. They laid down the following test: "If the number of votes secured by the candidate, whose nomination paper has been improperly accepted, is lower than the difference between the number of votes secured by the successful candidate and the candidate who has secured the next highest number of votes, it is easy to find that the result has not been materially affected. If, however, the number of votes secured by such a candidate is higher than the difference just mentioned, it is impossible to foresee what the result would have been if that candidate had not been in the field. It will neither be possible to say that the result would actually have been the same or different nor that it would have been in all probability the same or different." In both the cases the margin of votes between the successful candidates and the next highest candidate was less than the number of votes secured by the candidate whose nomination was improperly accepted. They held that the result was materially affected. We are unable to accept the ' soundness of this view. It seems to us that where the margin of votes is greater (1) Gazette of India (Extry.) Feby. 2, 1953. (2) Gazette of India (Extry.) Feby. 26,1953. 518 than the votes secured by the candidate whose nomination paper had been improperly accepted, the result is not only materially not affected but not affected at all; but where it is not possible to anticipate the result as in the above mentioned cases, we think that the petitioner must discharge the burden of proving that fact and on his failure to do so, the election must be allowed to stand. The Tribunal in the present case rightly took the view that they were not impressed with the oral evidence about the probable fate of votes wasted on Dudh Nath Singh, but they went on to observe : "Considering that Dudh Nath respondent No. 4 received more votes than the margin of votes by which respondent No. 1 was returned we are constrained to hold that there was reasonable possibility of respondent No. 2 being elected in place of respondent No. 1, had Dudh Nath not been in the field. " We are of opinion that the language of section 100(1)(c) is too clear too any speculation about possibilities. The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has seen materially affected. The number of wasted votes was 111. It is impossible to accept the ipse dixit. of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal, nor this Court is concerned with the inconvenience resulting from the operation of the law. How this state of things can be remedied is a matter entirely for the Legislature to consider. The English Act to which we have referred presents no such conundrum and lays down a. perfectly sensible 519 criterion upon which the Tribunal can proceed to declare its opinion. It directs the Tribunal not to set aside the election if it is of opinion that the irregularity has not materially affected the result. Mr. Nauinit Lal argued that the finding that the result of the election has been materially affected is a finding of fact which this Court should not interfere with in special appeal but there is no foundation for the so called finding of fact. If the Tribunal could not be sure that the respondent No. I would get only 56 out of the wasted votes to give him an absolute majority, how could the Tribunal conjecture that all the wasted votes would go to the second best candidate. The Tribunal misdirected itself in not comprehending what they had to find and proceeded merely upon a mere possibility. Their finding upon the matter is speculative and conjectural. Mr. Naunit Lal also attempted to argue that he could support the decision of the Tribunal on other grounds which had been found against him and referred to the analogy of the Code of Civil Procedure which permits a respondent to take that course. That provision has no application to an appeal granted by special leave under article 136. We have no appeal before us on behalf of the respondents and we are unable to allow that question to be reagitated. The result is that we set aside the order of the Tribunal and hold that it is not proved that the result of the election has been materially affected by an improper acceptance of the nomination, assuming that the case falls within the purview of section 36(6) and that finding is correct. We accordingly set aside the order of the Tribunal and uphold the election of the appellant. The appellant will get his costs from :the respondents incurred here and in the proceedings before the Tribunal. Order accordingly.

The poll for election to the Gujarat State Assembly from Mehsana State Assembly constituency was taken on February 21, 1967. On February 18, 1967 one S.M. addressed public meetings at various villages which were part of the constituency. The appellant who was the successful candidate was present at those meetings and did not dissociate himself from any of the remarks in the speeches. Police con tables, under instructions of the Government, took down notes of the speeches and reported to their superior officers. These police constables did not take down every word spoken by S.M. but whatever was taken down was spoken by S.M.; and in the reports, though the exact words were not reproduced the substance of the speeches was correctly reproduced. These reports showed that S.M. made the following statements in his speeches (i) He appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader (Jagadguru Sankaracharya of Puri), particularly when he had fasted for 73 days in the cause of preventing cow slaughter; (ii) He put forward an appeal to the electors not to vote for the Congress Party but to vote for the Swatantra Party in the name of religion; (iii) He said that a relationship of cause and effect existed between the slaughter of 33,000 bullocks every day and natural calamities like famine and flood; (iv) He asked his voters to vote for the appellant because he was a Brahmin; and (v) He said that if the voters voted for the Congress who are responsible for 24 crore of cows being slaughtered then God will be displeased. On the questions : (1) whether the reports made by the police constables were admissible in evidence; (2) Whether any weight should be attached to them; and (3) Whether they showed that the appellant was guilty of corrupt practice within the meaning of section 123(2) and (3) of the Representation of the People Act, 1951 HELD (Per Sikri and Bachawat, JJ.) (1) The reports were properly used under section 160 of the Evidence Act, 1872, and were admissible in evidence. [406 C D] 401 Before a witness testifies to facts stated in a document, under section 160 of the Evidence Act two conditions must be satisfied namely : (a) that the witness bad no specific recollection of the facts themselves; and (b) the witness says that he is sure that the facts were correctly recorded in the document. For satisfying the conditions it is however not necessary that the witness should specifically state that he has no specific recollection of the facts and that he is sure that the facts were correctly recorded in the document. It is enough if it appears from the evidence of the witness that those conditions are established. [405 C E] In the present case, it could be implied from the Circumstances that the conditions of section 160 were satisfied. The witnesses were giving their testimony in Court after a lapse 'of 9 months after the speeches were made and it is implicit that they could have no specific recollection of the speeches, especially when they attended and 'reported many similar meeting as part of their duty during. the election campaign. The second condition is also satisfied because, the witnesses made notes on the spot and made out reports from those notes when the speeches were fresh in their memory. The reports are, strictly not substantive evidence as such and could only be used as part of the oral evidence on oath. The reports should therefore have been read out in Court and not marked as exhibits. But the practice of marking such a report as in exhibit is well established and avoids the useless formal ceremony of reading it out as part of the oral evidence. [405 E G; 406 D E] Wigmore on Evidence (Third Edn. III pp. 97 98), Mylapore Krishnaswami vs Emperor, , 395 and Mohan Singh Laxmansingh vs Bhanwarlal Rajmal Nahata, A.I.R. 1964, M.P. 137, 146, referred to. Public Prosecutor vs Venkatarama Naidu, I.L.R. [1944], Mad. 113, approved. Jagannath vs Emperor, A.I.R. 1932 Lah. 7 and Sodhi Pindi Das V. Emperor, A.I.R. 1938 Lah. 629, disapproved. (2) Though the reports were not taken down in short hand nor were the exact words spoken by S.M. taken down by the various police constables. the reports show a remarkable similarity of approach, appeal and attack on the Congress Party; and in those circumstances it must he held the police constables correctly reproduced the substance of the speeches. It is not necessary that the exact words must be reproduced before a speech can be held to amount to corrupt practice. [414 A C] (3) (i) This statement does not amount to corrupt practice, because, there was no proof that the Jagadguru was the religious head of the majority of the electors in this constituency or that he exercised great influence on them, and so, it could not be held that an ordinary Hindu voter of the constituency would feel that he would be committing a sin if he disregarded the alleged directive of the Jagadguru. [410 A C] Ram Dial vs Sant Lal, [1959] Supp. 2 S.C.R. 748, distinguished. (Per Hegde, J. dissenting) : The statement amounted to corrupt practice. What section 123(2) requires is to induce or attempt to induce 'an elector ' which means even a single elector that he will be rendered an object of spiritual censure if he exercises or refuses to exercise his electoral right in a particular manner. While undoubtedly the inducement or attempt 40 2 to induce complained of should be such as to amount to a direct or indirect interference with the free exercise of the electoral right it is not in the public interest to cut down the scope of the sub section. Whether a particular statement comes within it or not depends on various factors such as the nature of the statement, the person who makes it and the persons to whom it is addressed. Therefore, when a respected religious preacher induces or attempts to induce the illiterate and 'superstitious voters who form the bulk of the voters that they will become objects of divine displeasure if they do not exercise their franchise in a particular manner, though his statements are not supported by religious books and he himself may not be a religious head of the majority of electors, the statements may yet amount to a corrupt practice in law. [415 C G] (Per Sikri, and Bachawat, JJ.) : (ii) There is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion, or appealing to vote for the Swatantra Party because the people in that party are fond of their religion. What section 123(2) of the Representation of the People Act bars is that a candidate or his agent or any other person with the consent of the candidate or his agent should appeal to the voters to vote or refrain from voting for any person on the ground of his religion, that is the religion of the candidate. [410 C D; 411F] (iii) This statement does not amount to corrupt practice within s.123(2) proviso (a)(ii), because, the law does not place any bar on describing a party as irreligious or saying that because that political party is irreligious natural calamities had resulted on account if its disregard of religion. [411 E F] (iv) Asking the voters to vote for the appellant because he was a Brahmin, fell within the mischief of section 123(3). [411 F G] (Per Hegde, J. dissenting). : When he stated that there should be at least one Brahmin Minister in the Cabinet, S.M. was merely giving expression to the fact that communal and regional representations in our political institutions have come to stay and was not appealing to the voters to vote on the basis of the appellant 's caste. [415H] (By Full Court) : (v) As this statement constitutes an attempt to induce the electors to believe that they would become objects of divine displeasure if they voted for the Congress and thereby allowed cow slaughter to be continued, and as in the circumstances of the case, it must be deemed to have been made with the appellant 's consent, the appellant was guilty of corrupt practice within the meaning of section 123(2) proviso (a) (ii) [413C; 415B C] Narbada Prasad vs Chhagan Lal, ; followed.

rt allowed the reauction to be held on 19th April 1984. Since the highest bidder in the reauction did not deposit the necessary amount in time as required under the Rules the Court set aside the reauction. As the appellant offered to take the shop on lease for a sum of Rs. 30 lacs and the Additional Solicitor General appearing for the administration of Andaman and Nicobar Islands accepted the offer. The Court sanctioned the lease in favour of the appellant on the condition of making the necessary deposit within 10 days from that day. [36B; F G] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4416 of 1984 Appeal by Special leave from] the Judgment and order dated 4th April, 1984 of the Calcutta High Court in F. M. A. T. No. 992 of 1983 26 Vasanta Pai, Ms. section Vaidalingam and P. J. George for the Appellant. Bina Gupta for the respondent. K. G. Bhagat ' Addl Sol. General. R. N. Poddar and M. N. Krishnumani, for the Respondent. R. Karanjawala and Miss M. Karanjawala for the applicant in Intervention appln. K. Parasaran, Atty. General and D. N. Sinha at request of Court. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. "Curiouser and curiouser", Alice would have certainly exclaimed with us had the mischievous state of affairs of the present case come to her notice. We confess that the state of affair is but the inevitable consequence of a most curious procedure said to be followed over the years by the Calcutta High Court, a practice which we are happy to say, no other High Court in the country follows, a practice which do put in the mildest terms is unhealthy and likely to lead to harm and abuse and a practice which we now propose to forbid in the exercise of our powers under article 141 of the Constitution. The practice, the consequences and our precept will reveal themselves as we proceed to state the facts. We may mention at the Cutset Act in response to our invitation the learned Attorney General very graciously addressed us and indeed made forceful submissions. We are grateful to him to his valuable assistance. An auction of the right to sell liquor at Rangat, Andaman Islands was held on 15. 2. 84 by the Deputy Commissioner, Port Blair. One B. K. Hariwat was the highest bidder. M/s Samarais Trading Co. Pvt. Ltd. having an office at Port Blair, the petitioner before us in the Special Leave Petition, was one of the participants in the auction but not section Samual, S/o Swami Das Pillai, 12, Cathral Road, Madras, who figures before us as the first respondent. As B. K. Hariwat did not deposit fifty per cent of the license fee as clause 14 of the terms and conditions of the auction, the sale was not confirmed and the shop had to be auctioned again. The second auction was held on 28. 3. 1984. At this auction M/s Samarias Trading Co. Pvt. Ltd. was the highest bidder. The bid was for a 27 sum of Rupees 25 lakhs. section Samuel also participated in the auction A but his bid was just over Rupees 17 Lakhs only. The highest bidder (M/s Samarias Trading Co. Pvt. Ltd.) deposited sum of Rs. 10,000, 2,50,000 and 9,90,000 on 29. 3. 1984. 3. 1984 and 29. 3. 1984 respectively. The sale was confirmed and shop was awarded to M/s Samarias Trading Co. Pvt. Ltd. The license was to enure for the period 1. 4. 1984 to 31. 3. 1985. In the meanwhile, things moved at Calcutta on 30. 3. 1984. When the Court was about to rise for the day Shri Shankardas Banerjee Senior Advocate mentioned to a learned Single Judge of the Calcutta High Court (Shri Justice Pyne) that he desired to move an application before the judge in his chambers after the court rose. The learned judge granted leave and accordingly Sarvashari section D. Banerjee, Ashoke Kumar Ganguly and K. K. Bandopadhyay, learned Advocate purporting to appear on behalf of a person professing to be section Samuel moved the learned Single Judge of the Calcutta High Court in his chambers under article 226 of the Constitution and obtained an ex parte order in the following terms: "On the oral application of Mr. section D. Banerjee and upon his undertaking to move application by Tuesday next there will be an order as follows. The respondents are directed to maintain status quo in respect of the liquor shop at Rangat in Middle Andaman and not to proceed on the basis of the alleged liquor auction held on 28. 3. 1984. The order will remain in force till Tuesday next. Let a plain copy countersigned by Asstt. Registrar (Court) be given to the learned Advocate to the petitioner. Sd/R. N. Pyne. " The remarkable fact worthy of immediate attention is that there was no written application before the learned Judge. The order of the learned Judge was made on an oral application and makes not the slightest attempt to indicate even briefly the facts told him, the question of law, if any, raised before him and the reasons which prompted him to make the interim order that he did. All that we can gather from the proceedings and the record of the court is that some oral application was made, an oral undertaking was given to make a written application within four days and an interim order was issued by the court directing the maintenance of status quo in regard to an. auction of liquor shops already held. 28 The order does not disclose that the learned Single Judge was aware that the bid was for such a large amount as Rs. 25 lakhs, that at least Rupees Twelve and half lakhs would have been deposited by the time the order was made and that the license itself was to take effect from 1. 4. 1984. What was to happen to the amount already deposited ? Who was to run the liquor shop from 1. 4. 1994 ? What security had been taken from the petitioner to protect the revenue and the other respondents '? We get no indication from the order. In fact the order made no provision to protect any one from any resulting mischief. And all this on an oral undertaking given by an advocate that a petition would be filed on behalf of a party whose very existence we now find is doubtful, as we shall have occasion to point out hereafter. No record, not a scrap of paper, was filed into court at that stage and no contemporaneous record was prepared by anyone containing the barest allegations constituting the foundation of the oral application that was actually made, the written application that was proposed to be filed and the interim order issued. A most curious procedure indeed for a court of record to follow ! And, a situation where a judge would have to turn witness if any dispute arose subsequently as to what the allegations were and shy the judge made the order ! Shri section section Ray, who appeared before us at some stages of the case, informed us that a practice of this nature of obtaining interim orders on oral applications subject to undertaking being given proposing to file written applications later, had always been in vogue in the Calcutta High Court. It was a matter of great surprise to us that a court of justice and at that, a court of record, should have been following such a practice, The learned Attorney General informed us that such a practice was not followed in any other High Court and he placed before us substantial and compelling reasons vigorously deprecating such a practice, reasons which have found favour with us. Shri Lal Narain Sinha, former Attorney General, who practiced for a considerable length of time in the Patna High Court which generally inherited, if we may use such an expression, the practice and procedure of the Calcutta High Court and who happened to be present before us at another stage of the hearing of the cases and whose assistance we sought and for which we are grateful to him told us that in his long experience he was not aware of any such practice and that such a practice was never followed in the Patna High Court. . . . . . . We our selves are personally familiar with the practice followed in the Madras, Karnataka, Andhra Pradesh, Madhya Pradesh and 29 Rajasthan High Courts and we can assert that such a practice is not heard of in these courts. Some counsel from Bombay who . were present before us also told us that no such practice is followed in their High Court. We do not have the slightest doubt that, if the practice exists any where, it is a most unwholesome practice, likely to lead to vicious and pernicious results. It is a practice to be strongly deprecated, a practice reminiscent of the feudal days when the French nobility could procurea lettre de cachet under the Sovereign 's seal authorising a subject 's imprisonment with out trial and without mention of any reason. It is a practice which strikes at the very root of the system of open and even handed justice as we know it and the sooner it is abandoned the better for the administration of justice. We express our disapprobation and forbid the practice of entertaining oral applications by any court in matters of consequence without any record before it. We do not mean to suggest that oral application may never be made or entertained by a Court. Far from the contrary. For example, all applications for adjournment are generally made orally. Often, during the course of the hearing of a case it becomes necessary to n make applications of a formal nature and such applications are permitted by the Presiding judge. But in all such cases the court is already seized of the principal matter or dispute and there is a record pertaining to it before the court. But we hardly see any justification for the entertainment of an oral application and the issuance of an interim order with no record whatever of what was submitted to the court or the reasons for the order made by the court. To permit a procedure by which oral applications may be made and interim orders obtained without any petition in writing, without any affidavit having been sworn to as prima facie proof of allegations and without any record being kept before the court may lead to very serious abuse of the process of the court. In fact, we have come across instances in the past where the Calcutta High Court had exercised jurisdiction in matters in which no part of the cause of action arose within its jurisdiction, a situation which would surely not have arisen if a written and not an oral application had been made. Again, we do not mean to suggest that other urgent oral applications may never be made. If someone is going to be deported in a few minutes or if some grossly inenquitous act is about to be perpetrated and any delay would result in the fait accompli of a monstrosity, urgent oral applications may be moved and urgent interim order issued. If urgent interim orders are imperative, at least skeletal applications setting out the bare facts 30 and the questions involve(1 should be insisted upon. A detailed application could be permitted to be filed later. Surely a Court would be in a more advantageous position with something in writing from a party who can take responsibility for the statements made than an oral submission based on oral instructions from "God knows who". If the matter is so urgent as not even to brook any insistence upon a written application, the judge should at least take the trouble and the care to record in his order the facts mentioned to him and the submissions made to him. It is essential that there be a contemporaneous record. Otherwise the Court ceases to be a court of record. After all there are always two sides to a picture. In the absence of a petition in writing, in the absence of an order containing a narration of the facts and the reasons for the orders, what is an affected person to do ? What allegation is he supposed to meet ? How is he to avert the mischief and damage which may result from the order ? Is he to await the pleasure of the petitioner who having obtained an interim order is naturally interested in not filing his written petition till the very last minute so as to prolong the life of the interim order and the mischief. One may very well imagine a case where a party instructs an Advocate to move an oral application before a Judge, obtains an interim order and disappear from the scene without filing any regular petition. What is the under taking worth in such an event ? The facts of this very case, we shall presently point out, have led to such an abuse. To resume the Stranger than fiction story, on 30th March 1984 itself, Shri K.K. Bandhopadhyay, Advocate, Calcutta sent a telegram to the Deputy Commissioner, District Andaman, Port Blair. informing him about the order of stay granted by the Calcutta High Court. The Deputy Commissioner duly informed M/s Samerias Trading Co. Pvt. Ltd. about the stay granted by the Calcutta High Court. immediately on receipt of the information, the representative of M/s Samarias Trading Co. Pvt. Ltd. and their Advocate went to Calcutta on 2.4. 1984 where they obtained confirmation that a learned Single Judge of the Calcutta High Court had made an order such as claimed by Shri K.K. Bandhopadhyay in his telegram. M/s Samarias Trading Co. Pvt. briefed a senior Advocate, Shri Saktinath Mukherjee to appear before Shri Justice Pyne on 3.4.1984. The information was that the writ petition would be taken up for orders at 2.30 P.M. On 3.4.1984. While the representative of M/s. Samarias Trading Co. Pvt. Ltd and their advocate 31 were waiting in the court, they came to learn that the matter A had been mentioned to Shri Justice Pyne in his chamber by Shri Bhola Nath Sen the Senior Advocate representing Mr. section Samuel and that the order of status quo had been extended until further orders. The representative of M/s Samarias Trading Co. Pvt. Ltd. and their advocate and the Deputy Commissioner of Andamans, all of whom were waiting in the Court were not told that the matter was going to be mentioned in the learned Judge 's chamber. As soon as they came to know about the continuance of the order of status quo they requested Mr. Justice Pyne to re consider the order but the learned judge declined to do so. Interrupting our narrative here for a momemt, we are once again constrained to comment on the peculiar procedure that was adopted in the case. The reason, we are told, for moving the application in the chamber of the learned judge instead of in open Court was that Mr. Justice Pyne was sitting on the original Side in Court and so the application which had to made on the Appellate Side had to be moved in his Chamber. We are unable to understand why it should be so and why the application could not be moved in open court. A sitting in chambers could be held when both sides are represented and the sittings are held openly so that members of the public, if they desire to attend, may have access even in the chamber. To grant interim orders on oral application in chambers when the judge is otherwise sitting in open court for other matters would seriously reflect on the fairness of the procedure adopted by the courts and may have the unpleasant effect of undermining public confidence in courts. Sometimes when a learned judge is sitting in a Division Bench or a Full Bench, some application may have to be made to him individually in which case permission is always sought in open Court to move the application in the chamber. The Registry then prepares a special list, puts it up on the notice board and before and before the Judge 's chamber and also circulates a copy to the Bar Association. This procedure is followed in some High Courts and if such a procedure is followed then alone can we keep up the high tradition of open justice. A public hearing is one of the great attributes of a court, and courts of this country are therefore require to administer justice in public. Otherwise, there is a risk that justice may even be undone. As most admirably expressed by Fletcher Moulton L.J. in Scott vs Scott Courts of Justice who are the guardians of civil liberties, ought 32 to be doubly vigilant against encroachment by themselves. It is not as a matter of policy but as a matter of law ' that the hearing of a cause he public except in the limited class of cases with which we are not now concerned. Th It rule was violated by the learned Single Judge in this case. After all the administration of justice is a vital concern first of public more than any private party, the public has a right to present in court and watch the proceeding and its conduct except in the very rare cases where the very cause of advancement of justice requires that proceeding be held in camera. In Naresh Shridhar Mirajkar & ors. vs State of Maharashtra & Anr.(1) it was observed by this Court as follows: "It is well settled that in general, all cases brought before the Courts, whether civil, criminal or others, must be heard in open Court. Public trail in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public admission to the court room. As Bentham has observed: "In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial (in the sense that) the security of securities is publicity". (Scott vs Scott) In Mc pherson vs Mc pherson, (2) the Judicial Committee observed (1) [1966l 3 section C.R 744. (2) AIR 1936 PC 246. 33 "Moreover the potential presence of the public almost necessarily invests the proceedings with some degree of formality. And formality is perhaps the only available substitute for the solemnity by which, ideally at all events such proceedings,. should be characterised. That potential presence is at least some guarantee that there shall be ascertain decorum of procedure These are some of the considerations which have led their Lordships to take a more serious view the absence of the public from the trial of this (divorce) action that has obtained in the Courts below. influenced by them their Lordships have felt impelled to regard the inroad upon the rule of publicity made in this instance unconscious thought it was as one not to b. justified and now that it has been disclosed as one that must be condemned so that it shall not again be permitted. " To resume the narrative M/s Samarias Trading Co. Pvt. Ltd. immediately filed a Writ Appeal under the Letters Patent before the Division Bench consisting of Mr. Justice M M. Dutt r. and Mr. Justice Ajit Kumar Sen Gupta. The matter was mentioned before the Division Bench at 3 4S l '.M. By consent of parties the Writ Appeal filed by M/s Samaries Trading Co. Pvt. Ltd. and the Writ Petition filed by Samuel were both directed to be listed for hearing b(fore them on 4. 4. 1984. With great difficulty M/s Samarias Trading Co. Pvt. Ltd. were able to get a copy of the writ petition at that stage. The Division bench disposed of both the writ petition and writ appeal finally on 4 4. 1984 itself. The order of Division Bench was in the following terms: "By consent of parties, we treat the appeal as on day 's list. As prayed for by the learned Advocates for the parties, we also treat the Writ Petition as on day 's list. After hearing the learned Advocates for the parties and after considering the facts and circumstances of the case, we are of the view that the auction for vending of liquor that has been held should be set aside. Accordingly, we set aside the auction and direct the Deputy Commis 34 sioner of Andaman and Nicobar Islands to hold a fresh auction on the basis of the new terms and conditions that have already been circulated, being annexure to the Writ Petition. The auction will be held on the 19th, April, 1984 at 11 A. M. at the Conference Hall, Deputy Commissioner 's office, at Port Blair. The reserved price for the auction of the liquor shop is fixed at Rs. 30,00000 (thirty lacs). It must he made clear that the period for which the auction of the liquor shop will be held will be from 22nd April,1984 till 31st of March, 1985. The auction will be advertised once in the Statesman in Calcutta and once in the Indian Express in Madras at least five days before the auction. In the event the reserved price of rupees thirty lacs is not bid, in that case, the writ petitioner undertakes to this Court that he will take the license at the reserved price of rupees thirty lacs and in that event the appellant under takes to this Court not to carry on the business of liquor after the 21st of April, 1984. The participants in the bid will be at liberty to take with them their respective Advocates The appellant shall be liable to pay to the Administra tion the proportionate license fee for the days in the month of April upto 21st of April, 1984 during which he will carry on the business of liquor on the basis of his offer already made, that is, Rs. 2500000 (Twenty five lacs) for one year. The Deputy Commissioner is directed to refund to the appellant the amount of the deposit which he has made in respect of the disputed auction loss the proportionate license fee for the days for which he will carry on business in the month of April upto 21st April, 1984 immediately the day on which the appellant starts vending liquor. Further, the Deputy Commissioner shall issue necessary orders enabling the appellant to carry on the liquor business till 21st April, 1994. 35 The appeal and the writ appeal are disposed of as above. There will be no order for costs. The appellant does not admit the allegations made in the writ petition. Let plain copies of this order countersigned by the Assistant Registrar (Court) he given to the learned Advocates for the parties". On the next day, the order was modified as follows: This matter has been mentioned by both the parties for the purpose of rectifying one clerical mistake. It is directed in modification of our order dated April, 4 1984 that in the event the reserve price of Rs. 30,00000 (thirty lacs) is not bid, in that case, the writ petitioner undertakes to this Court that he will take the license at the reserved price of 30, 00000 and, in that case, the appellant undertakes to this Court not to carry on the business of liquor at Rangat, Middle Andmans, pursuant to the existing license after the 21st April, 1984. If, however, any new license is granted to the appellant pursuant to the auction that will be held on the 19th April, 1984, the appellant will, of course, be able to carry on the business of liquor at that place upto 31st March, 1985. Our order dated 4th April, 1984 is modified to the above extent and the rest of the said order will stand". Aggrieved by the order of the Calcutta High Court M/s Samarias Trading Co. Pvt. Ltd. filed the special leave petition out of which the present appeal arises on 11. 4. 1984. One George Joseph claiming to be "working for gain with Respondent No. 1, Shri Samuel" filed a counter affidavit purporting to be on behalf of Respondent No. 1. At the first hearing of the special leave petition on 17.4. 1984, Shri section section Ray, Senior Advocate, appeared for the respondent No. 1. On that day, the learned counsel appearing for the M/s Samarias Trading Co. Pvt. Ltd. produced before us an affidavit dated 16. 4. 1984 purporting to be that of section Samuel in which he disclaimed that he ever instructed any one to file any writ peti 36 tion in the Calcutta High Court on his behalf. This affidavit appeared to destroy the very foundation of the order of the Calcutta High Court. The genuineness of the affidavit was however, disputed by Shri George Joseph, who Was present in court and section section Ray, senior advocate appearing on behalf of section Samuel. In that situation we directed the issue of notice to all parties and bound over George Joseph to appear before us at the next hearing. We directed that section Samuel should be present before us at the next hearing. We also directed that the re auction, as ordered by the Calcutta High Court, should be held on April 19, 1984, but that the sale should not be confirmed. The matter came before us again on April 26, 1984. We were told that the re auction had fetched a bid of Rs. 36 lakhs and 80 thousand . We were also told that because of our direction that the sale should not be confirmed, the amount required to be deposited within 48 hours could not be deposited. We, therefore, directed the highest bidder to deposit the amount required to be deposited under the rules on or before April 30,1984. Fresh notices were issued to section Samuel and we instructed the Registry to mention in the notice that if Samuel failed to appear at the next hearing, a non bailable warrant would be issued for his arrest. We also issued a notice to Dr. D. K. Banerjee, Advocate who prepared the affidavit filed by Mr. section Samuel, in the Calcutta High Court to appear before us on may 3, 1984. George Joseph was bound over to appear before us. He was also directed to file an affidavit setting out the full facts of the case which were within his knowledge. At the next hearing on May 3, 19. 4, we were informed that Subramaniam had breached the undertaking given to us on April 26, 1984 that he would deposit the amount required to be deposited by the rules before April 30, 1984. We, therefore, had no option but to set aside the auction. Fortunately the petitioner, M/s. Samarias Trading Co. Pvt. Ltd. offered to take the shop on lease for a shop of Rs. 30 lakhs and the Additional Solicitor General appearing for the administration of the Andaman and Nicobar Islands accepted the offer. The lease was sanctioned by us subject to the petitioner making the necessary deposit within 10 days from that day. On August 7, 1984, George Joseph failed to appear before us notwithstanding that he had executed a bond undertaking to be present before us. We therefore, directed the issue of a non bailable warrant against him for his production before us on August 23, 1984 Mr. Samuel was also bound over to appear before us on August 37 23, 1984. On that day, Shri K.K. Bandopadhyay filed a statement before us seeking to explain the circumstances under which he appeared before Mr.Justice Pyne to assist Shri Ashok Kumar Ganguly. He is a junior advocate working in the chambers of Shri Mahitosh Majumdar at whose instance it was that he was asked to assist Shri A.K. Ganguly. He was told that Shri S.D. Benerjee, senior advocate, would make an oral application. He met a group of people, one of whom claimed to be section Samuel. A consultation was held by Shri A.K. Ganguly and the gentleman holding himself out as Samuel with Shri S.D. Banerjee in his presence in the court premises at about 3.15 p.m. On the same day. Thereafter Shri S.D. Banerjee entered the court room of Mr. Justice Pyne and moved an unlisted motion before the hon 'ble judge at 4.00 p.m. when the court was about to rise. Shri S.D. Banerjee sought the permission of the hon 'ble judge to move the matter in the chamber of the hon 'ble judge by way of an oral application. Leave was granted and the application was moved before the learned judge in his chamber at 4.10 p.m. Shri A.K. Ganguly and Shri K.K Bandyopadhyay appeared along with Shri S D. Banerjee. That evening the gentleman who held himself out as section Samuel and two or three others met Shri K.K. Bandyopadhyay and the latter requested Shri M. Lahiri, advocate to draft a writ petition. The two of them prepared the writ petition and got it ready for filing on April 3,1984. section Samuel also handed over a Vakalatnama to him. On 3rd, the said gentleman appeared before the oath Commissioner and the papers were duly lodged as Mr. Justice Pyne was sitting on the original side on April 3,1984 according to Shri Bandyopadhyay. The oral application had to be moved in the chamber of the learned judge. Accordingly, Shri B.N.Sen, senior counsel, moved the application assisted by Shri Lahiri and Shri Bandyopadhyay. Later the matter was mentioned in court on behalf of M/s. Samarias Trading Co. Pvt. Ltd. before the Division Bench and an oral prayer was made for suspending the order of Mr. Justice Pyne. Both the writ petition and the appeal were directed to be listed on the next day. As we thought it imperative that George Joseph should be present before us, we adjourned the matter to August 23,1984 for his production. On August 23,1984, when the matter was next taken up, George Joseph continued to be absent and a non bailable warrant was issued for his arrest and production on September 11, 984. Mr. Samuel was also bound over to be present in the court 38 on September 11, 1984. We also now have before us the affidavi ts of S/Shri section D. Banerjee, B. N. Sen, M. Mazumdar and A. K. Ganguly of the Calcutta Bar explaining the facts and circumstances pertaining to the proceedings that took place in the Calcutta High Court. Their affidavits which confirming the facts already narrated by us, disclose that none of them personally knew Samuel, as indeed one may not expect an advocate to know every client of his personally. They were like others, taken for a ride, if one may be permitted to use so common an expression. Their affidavits only emphasise what we have already said about the undesirability of making oral applications of consequence before courts with nothing placed in the court 's record to vouch for the authenticity of the facts forming the basis of the representations made to the court, etc. So far as this appeal is concerned, there is nothing further to be done by us we have now sanctioned the lease of the liquor shop in favour of the appellants for the year April 1, 1984 to March 31, 1985. We are, however, informed by the petitioner that though the lease has been confirmed in their favour from April l, 1984 to March 31, 1985 for a sum of Rs. 30 lakhs, the administration of the Andaman Nicobar Islands, is demanding from them a sum of Rs. One lakh and odd towards the lease for the few days that they ran the liquor shop after April 1, 1984 under the orders of Calcutta High Court, calculated at the rate of Rs. 25 lakhs per year. We are unable to see any justification for the demand since the lease as sanctioned and as confirmed is admittedly for the entire period April 1, 1984 to March 31, 1985 for Rs. 30 lakhs. The demand is directed to be withdrawn. The appeal is allowed in the terms indicated. A notice will however issue to George Joseph to show cause why he should not be committed for contempt of court for breaching the undertaking given by him. A nonbailable warrant will also issue for his production before us. Since the real Samuel has disclaimed all responsibility in the matter and since we do not know who was the person who represented himself as Samuel before the Calcutta High Court, we are unable to award costs against anyone.

A single Judge of the Calcutta High Court, on an oral application made in his chamber on behalf of a person professing to be respondent No. 1, and on giving an oral undertaking to make a written application within 4 days, issued an interim order directing maintenance of status quo in regard to an auction of a liquor shop held in favour of the appellant. The said order did not make any attempt to indicate even briefly the facts, the question of law, if any, raised before the Judge and the reasons which prompted him to make such an interim order. On receiving the information about the said order, the appellant contacted the High Court and got the information that the subsequent writ petition filed by respondent No. I under Article 226 would be taken up for orders at 2. 30 p.m. On 3. 4. 1984. While the representatives of the appellant and their advocate were wailing in the court, they came to know that the matter had been mentioned in the chamber of the learned Judge who had earlier granted stay and that the order of statues quo had been extended until further orders. The appellant told the learned Single Judge that they were waiting in the Court and . were not informed that the matter was going to be mentioned in his chamber and in view of this they requested the learned Judge to reconsider his order. But, the Judge declined to do so. There upon the appellant filed a Writ Appeal. The Writ Petition filed by respondent No. I along with the Writ Appeal of the appellant were heard together by a Division Bench which set aside the auction and directed that a fresh auction be held on 19th April 1984. Aggrieved by the said order, the appellant has filed the present appeal. Disposing of the appeal, ^ HELD: There is hardly any justification for the entertainment of an oral application and the issuance of an interim order with no record whatever of what was submitted to the court of the reasons for the order made by the court. To permit a procedure by which oral applications may be made and internal orders obtained without any petition in writing, without any affidavit having been sworn to as prima facie proof of allegations and without any record before kept before the court may lead to very serious abuse of the process of the court. Therefore, this Court expresses its disapprobation and forbids the 25 practice of entertaining oral applications by any court in matters of consequence A without any record before it. [29E G] (2) This Court does not mean to suggest that oral application may never be made. Often during the course of the hearing of a case it becomes necessary to make applications of a formal nature and such application are permitted by the Presiding Judge. But in all such cases the court is already seized of the principal matter or dispute and there is a record pertaining to it before the 13 court. Again, this Court does not mean to suggest that other urgent oral applications may never be made. If urgent interim orders are imperative, at least skeletal applications setting out the bare facts and the questions invoked should be insisted upon. A detailed application could be permitted to be filed later. If the matter is so urgent as not even to brook any insistence upon a written application, the judge should at least take The trouble and the care to record in his order the facts mentioned to him and the submissions made to him. It is essential that there be a contemporaneous record. Otherwise the court ceases to be a court of record. [29G H; 30A B] (3) A sitting in chambers could be held when both sides are represented and the sittings are held openly so that members of the public, if they desire to attend, may have access even in the chamber. To grant interim orders on oral applications in chambers when the judge is otherwise sitting in open court for other matters would seriously reflect on the fairness of the procedure adopted by the courts and may have the unpleasant effect of undermining public confidence in courts. A public hearing is one of the great attributes of a court, and courts of this country are therefore required to administer justice in public. Otherwise, there is a risk that justice may even be undone. It is not 'as a matter of policy but as a matter of law ' that The hearing of a cause be public except in the limited class of cases. That rule was violated by the learned Single Judge in this case. [3lE;H; 32A.B] Naresh Shridhar Mirajkar & ors. vs State of Maharashtra PC 246 referred to.

Transfer Petition No. 96 of 1978. Madan Bhatia and D. Gobardhan for the Petitioner. V. M. Tarkunde and Mrs. K. Hingorani for the Respondent. The Judgment of the Court was delivered by KRISHNA IYER, J. Mrs. Maneka Gandhi figures as an accused a prosecution launched against her and others by Miss. Rani Jethmalani for an offence of defamation in the Court of the Metropolitan Magistrate, Bombay. The former is the editor of a monthly called "Surya" and is the wife of Shri Sanjay Gandhi and daughter in law of Smt. Indira Gandhi, former Prime Minister. The latter is a young advocate and is the daughter of a leading advocate and currently an important Member of Parliament. The present petition has been made for a transfer of the criminal case from Bombay to Delhi, and a string of grounds has been set out to validate the prayer. We decline the transfer and proceed to give our reasons without making the least reflection on the merits of the case. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like minigrievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may. be myriad and vary from case to case. We have to test the petitioner 's grounds on this touch stone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances. 381 One of the common circumstances alleged in applications for transfer is the avoidance of substantial prejudice to a party or witnesses on account of logistics or like factors, especially when an alternative venue will not seriously handicap the complaint and will mitigate the serious difficulties of the accused. In the present case the petitioner claims that both the parties reside in Delhi and some formal witnesses belong to Delhi; but the meat of the matter, in a case of defamation, is something different. The main witnesses are those who speak to having read the offending matter and other relevant circumstances flowing therefrom. They belong to Bombay in this case and the suggestion of the petitioner 's counsel that Delhi readers may be substitute witness and the complainant may content herself with examining such persons is too presumptuous for serious consideration. Now to the next ground. The sophisticated processes of a criminal trial certainly require competent legal service to present a party 's case. If an accused person, for any particular reason, is virtually deprived of this facility, an essential aid to fair trial fails. If in a certain court the whole Bar, for reasons of hostility or otherwise, refuses to defend an accused person an extra ordinary situation difficult to imagine, having regard to the ethics of the profession it may well be put forward as a ground which merits this Court 's attention. Popular frenzy or official wrath shall not deter a member of the Bar from offering his services to those who wear unpopular names or unpalatable causes and the Indian advocate may not fail this standard. Counsel has narrated some equivocal episodes which seem to suggest that the services of an efficient advocate may not be easy to procure to defend Mrs. Maneka Gandhi. Such glib allegations which involve a reflection on the members of the Bar in Bombay may not be easily accepted without incontestible testimony in that behalf, apart from the ipse dixit of the party. That is absent here. It is difficult to believe that a person of` the position of the petitioner who is the daughter in law of the former Prime. Minister, wife of a consequential person and, in her own right, an editor of a popular magazine, is unable to engage a lawyer to defend her, while, as a fact, she is apparently represented in many legal proceedings quite competently. A more serious ground which disturbs us in more ways than one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of toughs and street roughs to violate the serenity of court is obstructive of the course of justice 382 and must surely be stamped out. Likewise, the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet and concern to a court of justice if a person seeking justice is unable to appear, present one 's case, bring one 's witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquillity at the trial. 'Turbulent conditions putting the accused 's life in danger or creating chaos inside the court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to hold a detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer. In a decision cited by the counsel for the petitioner, Bose, J. Observed: ". But we do feel that good grounds for transfer from Jashpurnagar are made out because of the bitterness of local communal feeling and the tenseness of the atmosphere there. Public confidence in the fairness of a trial held in such an atmosphere would be seriously undermined, particularly among reasonable Christians all over India not because the Judge was unfair or biassed but because the machinery of justice is not geared to work in the midst of such conditions. The calm detached atmosphere of a fair and impartial judicial trial would be wanting, and even if justice were done it would not be "seen to be done".(1) Accepting this perspective we must approach the facts of the pre sent case without excitement, exaggeration or eclipse of a sense of pro portion. It may be true that the petitioner attracts a crowd in Bombay. Indeed, it is true of many controversial figures in public life that their presence in a public place gathers partisans for and against, leading to cries and catcalls or 'Jais ' or 'zindabads '. Nor is it unnatural that some persons may have acquired, for a time a certain quality of reputation, sometimes notoriety, sometimes glory, which may make them the cynosure of popular attention when they appear in cities even in a court. And when unkempt crowds press into a court hall it is possible that some pushing, some nudging, some brash ogling or angry starting may occur in the rough and rumble resulting in ruffled feelings (1) G.X. Francis vs Banke Bihari Singh, A.I.R. 1958 S.C. 809 at 810. 383 for the victim. This is a far cry from saying that the peace inside the court has broken down, that calm inside the court is beyond restoration, that a tranquil atmosphere for holding the trial is beyond accomplishment or that operational freedom for the Judge parties, advocates and witnesses has ceased to exist. None of the allegations made by the petitioner, read in the pragmatic light of the counter averments of the respondent and understood realistically, makes the contention of the counsel credible that a fair trial is impossible. Perhaps, there was some rough weather but it subsided, and it was a storm in the tea cup or transcient tension to exaggerate which is unwarranted. The petitioner 's case of great insecurity or molestation to the point of threat to life is, so far as the record bears out, difficult to accept. The mere word of an interested party is insufficient to convince us that she is in jeopardy or the court may not be able to conduct the case under conditions of detachment, neutrality or uninterrupted progress. We are disinclined to stampede ourselves into conceding a transfer of the case on this score, as things stand now. Nevertheless, we cannot view with unconcern the potentiality of a flare up and the challenge to a fair trial, in the sense of a satisfactory participation by the accused in the proceedings against her. Mob action may throw out of gear the wheels of the judicial process. Engineered fury may paralyse a party 's ability to present his case or participate in the trial. If the justice system grinds to a halt through physical manoeuvres or sound and fury of the senseless populace the rule of E law runs aground. Even the most hated human anathema has a right to be heard without the rage of ruffians or huff or toughs being turned against him to unnerve him as party or witness or advocate. Physical violence to a party, actual or imminent, is reprehensible when he seeks justice before a tribual. Manageable solutions must not sweep this Court off its feet into granting an easy transfer but uncontrollable or perilous deterioration will surely persuade us to shift the venue. It depends. The frequency of mobbing manouvres in court precincts is a bad omen for social justice in its wider connotation. We, therefore, think it necessary to make a few cautionary observations which will be sufficient, as we see at present, to protect the petitioner and ensure for her a fair trial. The trial court should readily consider the liberal exercise of its power to grant for the accused exemption from personal appearance save on crucial occasions. Shri Tarkunde, for the respondent fairly agreed that it was the right thing to do and explained the special reason for its first rejection. If the application is again made, the magistrate will deal with it as we have indicated. This will remove much of the unsavoury sensationalism which the hearing may suffer from 384 The magistrate is the master of the orderly conduct of court proceedings and his authority shall not hang limp if his business is stalled by brow beating. It is his duty to clear the court of confusion, yelling and nerve racking gestures which mar the serious tone of judicial hearing. The officials whose duty is to keep the public peace shall, on requisition, be at the command of the court to help it run its process smoothly. When the situation gets out of hand the remedy of transfer surgery may be prescribed. Every fleeting rumpus should not lead. to a removal of the case as it may prove to be a frequent surrender of justice to commotion. The magistrate shall take measures to enforce conditions where the court function free and fair and agitational or muscle tactics yield no dividends. If that fails, the parties have freedom to renew their motion under section 406 of the Criminal Procedure Code. For, where tranquil court justice is a casualty the collapse of our constitutional order is an inevitability. We dismiss, for the nonce, this transfer petition. S.R. Petition dismissed.

The plaintiff (appellant), his father and step brother were owners of lands in a village in the former State of Hyderabad. Coming to know that the two brothers and father were contemplating to migrate to Pakistan, defendant No. 1 suggested to the plaintiff that he would manage their properties but that since he was not in good health, a nominal power of attorney might be granted in favour of defendant No. 34. The power of attorney (Ext. Pl) was granted tc defendant 34 by all of them. It was later supplemented by another deed (Ext. P2). The plaintiff alleged that sometime thereafter he realised that the two defendants in collusion with each other transferred his lands to others for no consideration or inadequate consideration and that thereby a fraud was perpetrated upon him by the defendants. Thereupon, it was further alleged, the plaintiff and his brother published in the newspapers and the official gazette a notice cancelling the power of attorney granted to defendant No. 34. The plaintiff sued the defendants for recovery of possession of lands and certain other benefits. The defendants on the other hand claimed that the two documents being valid the plaintiff could not resile from them. They also alleged that the plaintiff was not the full and absolute owner of the lands but was a benamidar. The trial court dismissed the plaintiff 's suit holding that the documents were valid The High Court upheld the trial court 's order. It however held that the plaintiff was the absolute owner of the suit properties Dismissing the appeals. ^ HELD 1(a) There is no force in the contention that it is impermissible for three persons to jointly grant a power of attorney in favour of defendant No. 34. Co principals may jointly appoint an agent to act for them and in such a case they become jointly liable to him and may jointly sue him. [430C,F] (b) The relation of agency arises when one person, called the agent, has authority to act on behalf of another called the principal and consents so to act. The relationship has its genesis in contract. In order to show that it is imper 425 missible for three principals to jointly constitute an agent by a common power of attorney it should be shown that the provisions of Contract Act or the general law of contract have been violated by such a contract. [430E] In the instant case there is no such violation. Halsbury 's Laws of England Vol. 1 4th Edn. para 726 referred to. 2. There is no force in the contention that since the two documents confer a joint power of attorney in respect of properties of the three co principals, the agent could look after the joint properties of the donors alone and not their individual affairs. What a power of attorney authorises depends on its terms and the purposes for which it was executed. Where someone other than the person Who has the right to act in respect of certain things, has under a contract of agency, the right to act on behalf of the principal, the authority conferred by the written instrument has to be strictly construed. Ordinarily the power of attorney is construed strictly by courts. It is equally well established that in considering a contract it is legitimate to take into account the surrounding circumstances for ascertaining the intention of the parties. [430H, 431A, 431H 432A, F] Bryant, Powis and Bryant Ltd vs La Banque du Peuple, at 177, Modi & Co. vs Union of India, referred to. In the instant case in Ext. P1 at three places the expressions used are" our power of attorney to act on our behalf and we empower the said person` '. 'on our behalf in all departments", and lastly, "acts done and effected by the agent shall be deemed to be acts done and effected by the principals. " The power of attorney having keen granted by three co principals in favour of one agent the expression "on our behalf" would hardly be decisive of the scope of authority conferred by the deed. The surrounding circumstances clearly established that each of the co principals had his land, each of them could not have access to this land and therefore could not manage them, and with a view to migrating to Pakistan each of them apparently wanted to dispose of his lands and collect cash and therefore for this purpose each of them wanted to constitute defendant No. 34 to be his agent in respect of his individual property. 1432C. G, 433F] 3. A general power of attorney is not a compulsorily registrable document. When those who executed a deed admit having executed it, the tact that the Sub Registrar failed to endorse that the executants were known to him would not render the deed invalid. Nor is there a legal obligation on the part of the Sub Registrar to make an endorsement that the persons executing a deed were either personally known to him or were identified by someone known to him. [434C, B] 4. There is no force in the submission that the authority given under exhibit P1 was only to manage the property and not to sell it. P1 clearly shows that apart from the power to manage the property a further power to purchase and sell lands was conferred on the agent. The general power of attorney conferred wide authority on defendant No. 34 to file suits, defend actions. engage lawyers. purchase and sell land and execute sale deeds and so on. [434D E, 435A] 5. A document will be considered as a whole for interpretation of particular words or directions. An ordinary authority given in one part of the instrument will not be cut down because there are ambiguous and uncertain expressions elsewhere. A power of wide amplitude conferring wide authority cannot by 9 978 SCI/78 426 construction be narrowed down to deny an authority which the donor expressly wanted to confer. [436B] Halsbury 's Laws of England 4th Edn. 1 para 733; referred to. (a) By a catena of decisions of this Court it is well established that Order 41 Rule 27 C.P.C. does not confer a right on a party to produce additional evidence before an appellate court. But if the court hearing the action requires any document to enable it to pronounce judgment, it has the jurisdiction to permit additional evidence to be produced. If the High Court considered production of registered sale deeds essential to enable it to pronounce judgment, there is no reason why this Court should interfere with the discretionary power properly exercised by the High Court in the interest of justice. [439E F] 7. (a) The contention that defendant No. 34 who was the constitute attorney acted as a mere rubber stamp in certain transactions has no force. Section 41 of the Transfer of Property Act provides that where, with the consent, express or implied of the person interested in immovable` property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it. [436D, 437F] (b) Even if the father of the plaintiff could be said to be the ostensible owner of the land and he purported to sell the land, the plaintiff had acquiesced in the sale and accepted the consideration. He would therefore be estopped from challenging the tile which was transferred pursuant to the sale. [437E] Ramcoomar vs Macqueen, 1872 I.A. 11 Bengal LR 46; referred to. (a) The contention that the plaintiff was a benamidar cannot be accepted. The genesis of the concept of benami is that consideration for a transfer must flow from one person and the transfer is taken in the name of the other person and the consideration so flowing for the transfer was not intended to be a "gift in favour of the person in whose name the transfer is taken. All these ingredients of benami ale absent in the instant case. [440H] (b) Section 82 of the provides that where property is transferred to one person for a consideration paid or provided by another person, and it appears that such person did not intend to pay or provide such consider for the benefit of the transferee, the transferee must hold the property for the benefit OF the person paying or providing, the consideration. [440F] (c) The plaintiff 's father held a high office in the Nizam 's Government. He might have influenced the Nizam to grant the land to his son. There is no evidence to show that the patta was for consideration. Even if the Nizam in appreciation of the service rendered by the plaintiff 's father granted the land to the plaintiff it could not be said that any consideration flowed from the father of the plaintiff so as to make him a benamidar. [440E, G]

Appeals Nos. 412 and 413 of 1956. Appeals by special leave from the judgment and order dated October 17, 1955, of the Patna High Court in M.J.C. No. 577 of 1953, made on reference by the Board of Revenue, Bihar in Appeals Nos. 495 and 496 of 1952. 1358 M. C. Setalvad, Attorney General, for India, Rajeshwari Prasad and section P. Varma, for the appellant. Mahabir Prasad, Advocate General for the State of Bihar and R. C. Prasad, for the respondent. February 19. The Judgment of Das, C.J. Venkatarama Aiyar, section K. Das and Sarkar, JJ. ",as delivered by Das C. J. Bose, J. delivered a separate judgment. DAS C. J. These two appeals, which have been filed with the special leave granted by an order made by this Court on April 3, 1956, and which have been consolidated together by the same order, are dire led against the judgment pronounced by the Patna high Court on October 17, 1955, in Miscellaneous Judicial Case No. 577 of 1953, deciding certain questions refer. red to it by the Board of Revenue, Bihar under section 25 of the Bihar Sales Tax Act, 1947 (No. XIX of 1947) hereinafter referred to as the 1947 Act. The said references arose out of two orders passed by the Board of Revenue in revision of two sales tax assessment orders made against the appellant company. The appellant company is a company incorporated under the Indian Companies Act. Its registered office is in Bombay; its factory and works are at Jamshedpur in the State of Bihar and its head sales ' office is in Calcutta in the State of West Bengal. It has store yards in the States of Madras, Bombay, West Bengal, Uttar Pradesh, Hyderabad, Madhya Pradesh, Punjab and Andhra. It carries on business as manufacturer of iron and steel and is a registered dealer under the 1947 Act, the registration No. being section C. 905. Its course of dealing is thus described in the judgment under appeal: " The intending purchaser has to apply for a permit to the Iron and Steel Controller at Calcutta, who forwards the requisition to the Chief Sales Officer of the assessee working in Calcutta. The Chief Sales Officer thereafter makes a "works order" and for. wards it to Jamshedpur. The " works order " mentions the complete specification of the goods required. 1359 After the receipt of the "works order" the Jamshedpur factory initiates a " rolling " or " manufacturing " programme. After the goods are manufactured, the Jamshedpur factory sends the invoice to the Controller of Accounts who prepares the forwarding notes, and on the basis of these forwarding notes, railway receipts are prepared. The goods are loaded in the wagons at Jamshedpur and despatched to various stations, but the consignee in the railway receipt is the assessee itself and the freight also is paid by the assessee. The railway receipts are sent either to the branch offices of the assessee or to its bankers, and after the purchaser pays the amount of consideration, the railway receipt is delivered to him. These facts are admitted and the correctness of these facts are not disputed by the State of Bihar. " The appellant company was separately assessed for two periods: (1) from July 1, 1947 to March 31, 1948, and (2) from April 1, 1948 to March 31, 1949. For the first period the appellant company filed a return under section 12(1) of the 1947 Act before the Sales Tax Officer showing a gross turnover of Rs. 12,80,15,327 8 5. From this gross turnover the appellant company claimed to deduct a sum of Rs. 2,88,60,787 13 0 being the amount of valuable consideration for the goods manufactured at Jamshedpur in the State of Bihar but sold, delivered and consumed outside that State on the ground that in none of the transactions in respect of the said sum did the property in the goods pass to the purchasers in the State of Bihar. The appellant company further claimed a deduction of Rs. 1,10,87,125 13 0 on account of railway freight, actually paid by it for the despatch of the goods. The Sales tax Officer, by his assessment order dated July 22, 1949, disallowed both the claims for deduction and, on the other hand added a sum of Rs. 13,66,496 11 0, being the amount of sales tax realised by the appellant company from its purchasers, to its taxable turnover and assessed the appellant company to sales tax amounting to Rs. 15,31,374 5 9. For the second period the appellant company filed a return showing a gross turnover of Rs. 21,64,45,450 0 0. 1360 From this gross turnover the appellant company claimed a deduction of Rs. 10,71,66,233 11 0 being the amount of valuable consideration for goods manufactured at Jamshedpur in the State of Bihar, but sold, delivered and consumed outside that State on the same ground as hereinbefore mentioned. The appellant company also claimed a deduction of Rs. 40,89,973 9 0 on account of railway freight actually paid by it for the despatch of the goods. The Sales Tax Officer by his assessment order dated September 24, 1949, disallowed both the claims and added the sum of Rs. 22,37,919 4 0, being the amount of sales tax realised by the appellant company from its purchasers, to its taxable turnover and assessed the appellant company to sales tax amounting to Rs. 28,30,458 6 0. Against these two assessment orders the appellant company preferred two appeals under section 24 of the 1947 Act to the Commissioner of Sales Tax of Chota Nagpur who, on April 29, 1950, dismissed both the appeals. The appellant company went up to the Board of Revenue on two revision applications against the two orders of the Commissioner. The Board of Revenue,by its order dated August 30, 1952, confirmed the orders of the Commissioner with certain modifications and remanded the cases to the Sales Tax Officer. The appellant company applied under section 25 of the 1947 Act to the Board of Revenue in Reference Cases Nos. 495 and 496 of 1952 for reference of certain questions of law to the High Court. By a common order dated October 5, 1953, made in the said two references the Board of Revenue referred the following questions of law to the High Court for its decision " (1) Is the Bihar Sales Tax Act, 1947, as amended in 1948, ultra vires the Provincial Legislature in view of the extended meaning of the expression taxes on sale of goods given in the Act in the light of the provisions of the Government of India Act, 1935 ? (2)Are the provisions of section 2(g) of the 1947 Act ultra vires the Provincial Legislature ? 1361 (3) Is it legal to include sales tax in the taxable turnover of an assessee like the petitioner ? (4) Was the Bihar Sales Tax (Amendment) Act of 1948 legally extended to Chotanagpur ? (5) Were the levy and collection of sales taxes for periods prior to the 26th January 1950, under the Sales Tax Act then in force rendered illegal by the provisions of the Constitution ? (6) Was the Commissioner, who passed orders, in appeal, after the Constitution came into force, bound to decide the appeal according to the provisions of the Constitution in respect of taxes levied or sought to be levied for periods prior to the 26th January, 1950, when the Constitution came into force ?" Out of these six questions, question No. 3 was decided in favour of the appellant company and the respondent State has not preferred any appeal against that decision or questioned its correctness. Question No. 4 was not pressed before the High Court and does not survive before us. Questions Nos. 1, 2, 5 and 6 were decided against the appellant company and the two consolidated appeals are directed against the High Court 's decision on these questions. It will be noticed that questions Nos. I and 2, in effect, raise the same problem, namely, as to the vires of the 1947 Act and questions Nos. 5 and 6 are concerned with the validity of the retrospective levy of sales tax by reason of the amendment of section 4 of the 1947 Act. The following points, as formulated by the learned Attorney General appearing for the appellant company, have been urged before us in support of these appeals: " (1) The tax levied under section 4(1) read with section 2(g), second proviso, cl. (ii), is not a tax on sale within the meaning of Entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935. (2) The doctrine of nexus is not applicable to sales tax. (3) In any event the nexus in the present case is not real and sufficient but is illusory. 1362 (4)Having regard to the provisions of the law mentioned above, the tax levied is in the nature of duty of excise rather than a tax on sale. (5)The retrospective levy by reason of the amendment of section 4(1) destroys its character as a sales tax and makes it a direct tax on the dealer instead of an indirect tax to be passed on to the consumer. " In order to appreciate the arguments that have been advanced before us on the points noted above, it is necessary to refer to the relevant statutory provisions, which were in force at the material times. Section 99, of the Government of India Act, 1935, authorised a Provincial Legislature, subject to the provisions of that Act, to make laws for the Province or for any part thereof. Section 100(3) of that Act provided that, subject to the two preceding sub sections, the Provincial Legislature had, and the Federal Legislature had not, power to make laws for any Province or any part thereof with respect to any of the matters enumerated in List 11 of the Seventh Schedule to that Act. The matter enumerated in Entry 48 in List II was as follows: " Taxes on the sale of goods and on advertisements. " It is in exercise of this legislative power that the Provincial Legislature of Bihar passed the 1947 Act which received the assent of the Governor General on June 21, 1947, and came into force on July 1, 1947, by virtue of a notification made in the official gazette under section 1(3) of the said Act. The relevant portion of section 4(1) of the 1947 Act, which was the charging section, was, prior to its amendment hereinafter mentioned, expressed in the following terms: " Subject to the provisions of sections 5, 6, 7 and 8 and with effect from such date as the Provincial Government may, by notification in the official gazette, appoint, being not earlier than 30 days after the date of the said notification, every dealer whose gross turnover during the year immediately preceding the commencement of this Act on sales which had taken place both in and outside Bihar exceeded Rs. 10,000 shall be liable to pay tax under this Act 1363 on sales which have taken place in Bihar after the date was notified. " It should be noted that, although the 1947 Act came into force on July 1, 1947, by virtue of a notification published in the official gazette under section 1(3) thereof, the charging section quoted above did not come into operation because, by its own terms, it required a further notification in the official gazette to bring it into effect. For some reason, not apparent on the record, the Provincial Government did not issue any notification as contemplated by section 4(1). To cure this omission Ordinance III of 1948 was promulgated by the Governor amending section 4(1)(a) of the 1947 Act. Section 4(1), as amended, read as follows: " Subject to the provisions of sections 5, 6, 7 and 8 and with effect from the commencement of this Act, every dealer, whose turnover during the year immediately preceding the date of such commencement, on sales which have taken place both in and outside Bihar exceeded Rs. 10,000, shall be liable to pay tax under this Act on sales which have taken place in Bihar on and from the date of such commencement. " On March 22, 1949, Ordinance III of 1948 was replaced by Bihar Sales Tax (Amendment) Act, 1948 (VI of 1949) hereinafter referred to as the amending Act. Section 16 of this amending Act provided that the substituted section 4(1) should form part of the 1947 Act and should always be deemed to have formed part thereof with effect from its commencement, that is to say, from July 1, 1947, as hereinbefore mentioned. Two things should be noted, namely, (1) that the person sought to be charged was every dealer whose gross " turnover" during the specified period on " sales " which had taken place both in and outside Bihar exceeded Rs. 10,000 and (2) that the liability to pay tax was on " sales " which had taken place in Bihar on and from the date of such commencement. This takes us back to section 2(g) which defines " sale ". The material part of the definition of " sale ", previous to the amendment made by the amending Act, 173 1364 read as follows: " 'Sale ' means, with all its grammatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of contract but does not include a mortgage, hypothecation, charge or pledge: Provided . . . . . . . . . Provided further that notwithstanding anything to the contrary in the Indian (III of 1930), the sale of any goods which are actually in Bihar at the time when, in respect thereof, the contract of sale as defined in section 4 of that Act is made, shall, wherever the said contract of sale is made be deemed for the purpose of this Act to have been made in Bihar. . . . . . . . . . . Section 2 of the amending Act amended section 2(g) of the 1947 Act by substituting a new proviso to cl. (g) for the original second proviso thereto. The material part of section 2(g), thus amended, read as follows: " 'Sale 'means, with all its grammatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of contract but does not include a mortgage, hypothecation, charge, or pledge: Provided . . . . . . . . . Provided further that notwithstanding anything to the contrary in the Indian (111 of 1930), the sale of any goods (i) which are actually in Bihar at the time when, in respect thereof, the contract of sale as defined in section 4 of that Act is made, or (ii) which are produced or manufactured in Bihar by the producer or manufacturer thereof, shall, wherever the delivery or contract of sale is made, be 1365 deemed for the purposes of this Act to have taken place in Bihar. The amending Act by section 3 substituted for the old sub section (1) of section 4 of the 1947 Act the following sub ' section, namely: " (1) Subject to the provisions of sections 5, 6, 7 and 8 and with effect from the commencement of this Act, every dealer whose gross turnover during the year immediately preceding the date of such commencement, on sales which have taken place both in and outside Bihar exceeded Rs. 10,000 shall be liable to pay tax under this Act on sales which have taken place in Bihar on and from the date of such com mencement: Provided that the tax shall not be payable on sales involved in the execution of a contract which is shown to the satisfaction of the Commissioner to have been entered into by the dealer concerned on or before the 1st day of October, 1944. " Although the amending Act received the assent of the Governor General on March 15, 1949, it came into force on October 1, 1948, as provided in section 1(2) thereof. Section 16 of the amending Act, however, provided that the amendment made by section 3 should form part and should be deemed always to have formed part of the 1947 Act as if the said Act had been enacted as so amended from the commencement thereof, that is to say, from July 1, 1947. The 1947 Act was further amended in 1951 by Bihar Act VII of 1951 and again in 1953 by Bihar Act XIV of 1953, but we are not, in the present case, concerned with those amendments. Although the charging section, namely, section 4(1), as amended, operates from July 1, 1947, the definition of sale as amended, became operative only from October 1, 1948. Therefore, the definition of " sale ", as it stood prior to the amendment, was applicable to all sales made by the appellant throughout the first period hereinbefore mentioned, i.e., the period from July 1, 1947 to March 31, 1948 and also to those made during the period from April 1, 1948 to October 1, 1948, which was only a portion of the second 1366 period hereinbefore mentioned and the amended definition applied to all sales made by the appellant during the remaining portion of the second period, i.e., from October 1, 1948 to March 31, 1949. Bearing in mind the relevant provisions of the 1947 Act as they stood both before and after the amendment and the period of their applicability we now proceed to consider the points urged before us by the learned Attorney General appearing for the appellant company. Points Nos. 1 and 4: It will be convenient to take up those two points together for they have been dealt with together by the learned Attorney General. The validity of section 4(1) read with section 2(g), second proviso, is challenged in two ways. In the first place it is urged that section 100(3) of the Government of India Act, 1935 read with Entry 48 in List II of the Seventh Schedule thereto authorised the Legislature of Bihar to make a law with respect to tax on the sale of goods. " Sale of Goods ", as a legal topic, has well defined and well understood implications both in English and Indian Law. The English Common Law relating to sale of goods has been codified in the English Sale of Goods Act, 1893. In India the matter was originally governed by the provisions of Chapter VII of the . Those provisions have since been replaced by the Indian Sale of Goods Act, Act III of 1930. Our attention has been drawn to section 4 of the Indian Sale of Goods Act which clearly makes a distinction between a sale and an agreement for sale. It is pointed out that that section groups " sales " and " agreements to sell " under the single generic name of " contract of sale ", following in this respect the scheme of English Sale of Goods Act, 1893, and that it treats " sales " and "agreements to sell " as two separate categories, the vital point of distinction between them being that whereas in a sale there is a transfer of property in goods from the seller to the buyer, there is none in an agreement to sell. It is then urged, on the authority of a decision of this Court in the Sales Tax Officer, Pilibhit vs Messrs. Budh Prakash 1367 Jai Prakash (1) that there having thus existed at the time of the enactment of the Government of India Act, 1935, a well defined and well established distinction between a " sale " and an " agreement to sell " it would be proper to interpret the expression " sale of goods " in Entry 48 in the sense in which it was used in legislation both in England and in India and to hold that it authorised an imposition of a tax only when there was a completed sale involving the transfer of title in the goods sold. Reference is then made to the decision of the Federal Court in the case of Province of Madras vs Boddu Paidanna and Sons (2) where the Federal Court at page 101 observed that in the case of sales tax the liability to tax arose on the occasion of a sale " which Patanjali Sastri C. J. in his judgment in the State of Bombay vs United Motors (India) Ltd. (3) described as " the taxable event. " The argument is that the Bihar Legislature could only make a law imposing a tax on the sale of goods, that is to say, on a concluded sale involving the transfer of property in the goods sold from the seller to the buyer as contemplated by the Sale of Goods Act. The Bihar Legislature could not, by giving an extended definition to the word "sale", extend its legislative power under Entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935, so as to impose a tax on anything which is short of a sale. For our present purpose no exception need be taken to the proposition thus formulated and indeed in Budh Prakash Jai Prakash 's case (1) this Court struck down that part of the definition of it sale " in section 2(h) of the Uttar Pradesh Sales Tax Act, 1948, which enlarged the definition of " sale " so as to include " forward contracts". But is the position the same here? We think not. It will be noticed that section 4(1) imposed on the dealer the liability to pay a tax on " sale " as defined in section 2(g). Both before and after the amendment of section 2(g) the principal part of the definition meant the transfer of the property in goods. All that the second proviso did was not to extend the (1) ; , 247. (2) (3) ; , 1088. definition of "" sale but only to locate the I" sale " in certain circumstances mentioned in that proviso in Bihar. The basis of liability under s 4(1) remained as before, namely, to pay tax on " sale . The fact of the goods being in Bihar at the time of the contract of sale or the production or manufacture of goods in Bihar did not by itself constitute a " sale " and did not by itself attract the tax. The taxable event still remained the " sale " resulting in the transfer of ownership in the thing sold from the seller to the buyer. No tax liability actually accrued until there was a concluded sale in the sense of transfer of title. It was only when the property passed and the " sale " took place that the liability for paying sales tax under the 1947 Act arose. There was no enlargement of the meaning of " sale " but the proviso only raised a fiction on the strength of the facts mentioned therein and deemed the " sale " to have taken place in Bihar. Those facts did not by themselves constitute a" sale " but those facts were used for locating the situs of the sale in Bihar. It follows, therefore, that the. provisions of section 4(1) read with section 2(g), second proviso, were well within the legislative competency of the Legislature of the Province of Bihar. The vires of section 4(1) read with section 2(g), second proviso, is also questioned on the ground that it is in reality not a tax on the sale of goods but is in substance a duty of excise within the meaning of Entry 45 in List I of the Seventh Schedule to the Government of India Act, 1935, with respect to which the Provincial Legislature could not, under section 100 of that Act, make any law. Our attention is drawn to cl. (ii) of the second proviso which contemplated a sale of the goods by the producer or manufacturer thereof. It is urged that, according to this clause, tax was not imposed on all sales of goods produced or manufactured in Bihar, but was imposed only on those goods produced or manufactured in Bihar which were sold by the producer or manufacturer. It is pointed out, as and by way of an illustration, that if the goods produced or manufactured in Bihar were taken out of the Province of Bihar and then gifted away by the producer or 1369 manufacturer to a person 'outside Bihar and that person sold the goods, he would not be liable under the proviso. This argument, however, overlooks the fact that under cl. (ii) the producer or manufacturer became liable to pay the tax not because he produced or manufactured the goods, but because he sold the goods. In other words the tax was laid on the producer or manufacturer only qua seller and not qua manufacturer or producer as pointed out in Boddu. Paidanna 's case (1). In the words of their Lordships of the Judicial Committee in Governor General vs Province of Madras (2), " a duty of excise is primarily a duty levied on a manufacturer or producer in respect of the commodity manufactured or produced. It is a tax on goods and not on sales or the proceeds of sale of goods. " If the goods produced or manufactured in Bihar were destroyed by fire before sale the manufacturer or producer would not have been liable to pay any tax under section 4 (1) read with section 2 (g), second proviso. As Gwyer C. J. said in Boddu Paidanna 's Case (1) at page 102 the manufacturer or producer would be "liable, if at all, to a sales tax because he sells and not because he manufactures or produces; and he would be free from liability if he chose to give away everything which came from his factory. " In our judgment both lines of the argument advanced by the learned Attorney General in support of points and 4 are untenable and cannot be accepted. Re. point No. 2: The theory of nexus has been applied in support of tax legislation in more cases than one, not only in this country but also in Australia and England. In Wanganui Rangitikei Electric Power Board vs Australian Mutual Provident Society (3) Dixon J. observed: " So long as the statute selected some fact or circumstance which provided some relation or connection with New South Wales, and adopted this as the ground of its interference, the validity of an enactment. . would not be open to challenge." The same learned Judge in Broken Hill South Ltd. vs (1) (3) ; , 600. (2) (1945) L.R. 721.A. 91, 103. 1370 Commissioner of Taxation (N. section W.)(1), said at page 375: " If a connection exists, it is for the legislature to decide how far it should go in the exercise of its ,powers. As in other matters of jurisdiction or authority courts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised. No doubt there must be some relevance to the circumstance in the exercise of the power. But it is of no importance upon the question of validity that the liability imposed is, or may be, altogether disproportionate to the territorial connection. " Even the dissenting Judge Rich J. accepted the theory of nexus at page 361: " I do not deny that once any connection with New South Wales appears, the legislature of that State may make that connection the occasion or subject of the imposition of a liability. But the connection with New South Wales must be a real one and the liability sought to be imposed must be pertinent to that connection. " The Estate Duty Assessment Act 1914 1928 which charged estate duty on moveable properties situate abroad which had passed from a deceased person domiciled in Australia by gift intervivos made by him within a year of his death was not struck down for extra territoriality but was upheld as constitutional in The Trustees Executors and Agency Co. Ltd. vs The Federal Commissioner of Taxation (2). The nexus theory was applied in full force in Governor General vs Raleigh Investment Co. (3); Wallace Brothers and Co. Ltd. vs Commissioner of Income Tax, Bombay City (4) and A. H. Wadia vs Commissioner of Income Tax, Bombay (5). In Raleigh Investment Co. 's case(3) the assessee company was a company incorporated in England. Its registered office was in England. It held shares in nine Sterling Companies incorporated (1) ; (2) ; (3)[1944) F.C.R. 229. (4) (5) 1371 in England. Those nine Sterling Companies carried on business in British India and earned income, profits or gains in British India and declared and paid dividends in England to its shareholders including the assessee company. Tile assessee company was charged to income tax under section 4 (1) of the Indian Income tax Act. It should be noted that the assessee company was not resident in British India, carried on no business in British India and made no income, profits or gains out of any business carried on by it in British India. It invested its money and acquired shares in England in the nine Sterling Companies which were English Companies. It was only when those nine Companies declared and paid dividends in England that the assessee company really earned its income, profits or gains, out of its investments in England in shares of nine Sterling Companies. The circumstance that the nine Sterling Companies derived their income, profits or gains, out of business carried on by them in British India out of which they paid dividends to the assessee company was regarded as sufficient nexus so as to fasten the tax liability on the assessee company in respect of the income, profits or gains, it derived from the nine Sterling Companies. Even such a distantly derivative connection with the source of income was held as a sufficient nexus to enable the British Indian tax autho rities to charge the assessee company with income tax. The conclusions reached by Spens C. J. in Raleigh Investment Co. 's case, (1) are formulated thus at page 253: " If some connection exists, the legislature is not compelled to measure the taxation by the degree of benefit received in particular cases by the taxpayer. This affects the policy and not the validity of the legislation ". In Wallace Brothers case (2) the connection of the assessee company with British India was not so remote as in Raleigh Investment Co. 's case (1), for in the former case the assessee company was a partner in a (1) 174 (2) 1372 firm which carried on business in British India but that connection was held to be sufficient nexus to bring to British Indian tax not only the income, profits or gains made by the assessee as a partner in the firm but also its income, profits or gains which accrued without British India in the previous year. In Wadia 's case (1), also an income tax case, it was held that a law imposing a tax cannot be impugned on the ground that it is extra territorial, if there is a connection between a person who is subjected to a tax and the country which imposes that tax. The connection must, however, be a real one and the liability sought to be imposed must be pertinent to that connection. At page 140 Chief Justice Kania observed: " Generally, States can legislate effectively only for their own territories, but for purposes of taxation and similar matters, a State makes laws designed to operate beyond its territorial limits." The learned Attorney General points out that the three last mentioned cases in which the nexus theory was applied were income tax cases and submits that that principle cannot be extended to sales tax laws. He points out that in Bengal Immunity Co. Ltd. vs The State of Bihar (2) this Court expressly left open the question, whether the theory of nexus applied to legislation with respect to sales tax. The passage at page 639 relied upon by the learned Attorney General only refers to the fact that the different State Legislatures considered themselves free to make a law imposing tax on sales or purchases of goods provided the State concerned had some territorial nexus with such sales or purchases and went on to say that the question whether they were right or wrong in so doing had not been finally decided by the courts. That passage, properly understood, can hardly be said to indicate that the theory of nexus does not apply to sales tax legislation at all. The drift of the meaning of the passage was that the sufficiency of the different next relied on by the different States had not been tested by the courts. The passage strongly relied upon by the learned Attorney General is to be (1) (2) 1373 found at page 708 where Bhagwati J. after referring to the earlier cases, observed : " It is a moot point whether this theory of territorial connection or nexus which has been mainly applied in income tax cases, is also applicable to sales tax legislation, the sphere of income tax legislation and sales tax legislation being quite distinct. Whereas in the case of income tax legislation the tax is levied either on a person who is within the territory by exercising jurisdiction over him in personam or upon income which has accrued or arisen to him or is deemed to have or arisen to him or has been derived by him from sources within the territory and it is, therefore, germane to enquire whether any part of such income has accrued or arisen or has been derived from a source within the territory, in the case of sales tax legislation it is the sale or purchase of goods which is the subject matter of taxation and it cannot be predicated that the sale or purchase takes place at one or more places where the necessary ingredients of sale happen to be located. The theory of territorial connection or nexus was not put to the test at any time prior to the enactment of the Constitution and it is not necessary also for us to give a definite pronouncement on the subject. " Apart from the fact that the concluding words in the passage quoted above may be read as indicating that the observations were obiter, it appears to us to be too late in the day to contend that the theory of nexus does not apply to sales tax legislation at all. Indeed an examination of the decisions of this Court will clearly show that the applicability of the theory of nexus to sales tax legislation has been clearly recognised by this Court. In The State of Bombay vs The United Motors (India) Ltd. (1) this Court bad to interpret the true meaning of the explanation to article 286(1)(a) of the Constitution. That explanation created a fiction locating the situs of a sale or purchase in the State in which the goods had actually been delivered as a result of such sale or purchase for the purpose of consumption in that (1) ; , 1088. 1374 State notwithstanding the fact that, under the general law relating to sale of goods, the property in the goods had, by reason of such sale or purchase, passed in another State. This Court by a majority then held that in view of the fiction created by the explanation the sale which was in reality an inter State sale became an intrastate sale and consequently the delivery and consuming State had the, right to impose tax on that sale. It is true that that decision has been departed from in the Bengal Immunity Co. 's case (1) on the question of the interpretation of article 286 of the Constitution, but on the point we are now discussing that decision clearly implies a recognition of the applicability of the nexus theory to the imposition of sales tax. The observations of Patanjali Sastri C. J. on the question of nexus in that case cannot, therefore, be said to be unnecessary for the decision of that case. In Poppatlal Shah vs The State of Madras (2) Mukherjea J. delivering the unanimous judgment of the Constitution Bench of this Court definitely applied the theory of nexus to sales tax legislation. Support for that conclusion was found directly in the decision of the Judicial Committee in Wallace Brothers and Co. Ltd. vs Commissioner of Income Tax, Bombay City (3) which, it was said, had been applied by this Court to sales tax legislation in the United Motors ' case (4), but it is quite clear that the decision had, independently of the United Motors ' case (4), adopted the principle of Wallace Brothers and Co. 's case (3) to sales tax legisla tion. In a recent case, The State of Bombay vs R.M.D. Chamarbaugwala(5), which was concerned with tax on cross word competition, this Court applied the theory of nexus and upheld the legislative competency of the Bombay Legislature to impose tax on the gambling competitions. At page 901 this Court said: " The doctrine of territorial nexus is well established and there is no dispute as to the principles. As enunciated by learned counsel for the petitioners, if there is a territorial nexus between the person sought to be charged and the State seeking to tax him the (1) (3) (5) ; ,901. (2) ; (4) ; , 1088. 1375 taxing statute may be upheld. Sufficiency of the territorial connection involve a consideration of two elements, namely, (a) the connection must be real and not illusory and (b) the liability sought to be imposed must be pertinent to that connection. It is conceded that it is of no importance on the question of validity that the liability imposed is or may be altogether disproportionate to the territorial connection. In other words, if the connection is sufficient in the sense mentioned above, the extent of such connection affects merely the policy and not the validity of the legislation. " Applying these principles to the facts of that case this Court came to the conclusion that they constituted sufficient territorial nexus which entitled the State of Bombay to impose a tax on the gambling that took place within its boundaries and that the law could not be struck down on the ground of extra territoriality. It is not necessary for us on this occasion to lay down any broad proposition as to whether the theory of nexus, as a principle of legislation, is applicable to all kinds of legislation. It will be enough, for disposing of the point now under consideration, to say that this Court has found no apparent reason to confine its application to income tax legislation but has extended it to sales tax and to tax on gambling and that we see no cogent reason why the nexus theory should not be applied to sales tax legislation. The learned Attorney General submits that the theory of nexus cannot be applied to sales tax legislation because such legislation is concerned with a tax on the transaction of sale,, that is to say, a completed sale and to break up a sale into its component parts and to take one or more of such parts and to apply the theory to it will. mean that the State will be entitled to impose a tax on one or more of the ingredients or constituent elements of the transaction of sale which by itself or themselves will not amount to a sale. This argument overlooks the fact that the provisions of the sales tax legislation we are considering limit its charging section to " sale ". In order to attract the charging section there must be a completed 1376 sale involving the transfer of property in the goods sold from the seller to the buyer. The nexus theory does not impose the tax. It only indicates the circumstance in which a tax imposed by an act of the ,Legislature may be enforced in a particular case and unless eventually there is a concluded sale in the sense of passing of the property in the goods no tax liability attaches under the Act. One or more of the several ingredients constituting a sale only furnished the connection between the taxing State and the "sale". The learned Attorney General also said that one and the same transaction of sale may be taxed by different States by applying the nexus theory and there will be multiple taxation which will obstruct the free flow of inter State trade. There is no force in this argument, for article 286(2) of the Constitution, as it stood originally, was a complete safeguard against such eventuality and after the amendment of that Article and the relevant entries in the Legislative List such contingency will not arise. In our opinion the arguments advanced by the learned Attorney General on this point cannot be accepted. Re. point No. 3: The learned Attorney General next contends that in any case the nexus must be real and pertinent to the subject matter of taxation. He contends that the presence of the goods in Bihar referred to in the old second proviso, which is reproduced in el. (i) of the second proviso as amended, is of no consequence. The production or manufacture, according to him, has no connection with and never enters into the transactions of sale. He relies on the observations of Chief Justice Gwyer in Boddu Paidanna 's case (1), at page 102, namely, that " a sale bad no necessary connection with manufacture or production." That observation was made by the learned Chief Justice in order to emphasise the fact that the tax levied on the first sale by the manufacturer or producer was a tax imposed on him qua seller and not qua manufacturer or producer. The question whether the fact of production or manufacture of goods may legitimately form a nexus between the transaction of sale and the taxing (1) 1377 State was not in issue in that case at all. It is un necessary in this case to lay down any hard and fast test as to the sufficiency of nexus which will enable a State to impose a tax or to enumerate the instances of such connection. For the purpose of the present, case it is sufficient to state that in a sale of goods the goods must of necessity play an important part, for it is the goods in which, as a result of the sale, the property will pass. In our view the presence of the goods it the date of the agreement for sale in the taxing State or the production or manufacture in that State of goods the property wherein eventually passed as a result of the sale wherever that might have taken place, constituted a sufficient nexus between the taxing State and the sale. In the first case the goods are actually within the State at the date of the agreement for sale and the property in those goods will generally pass within the State when they are ascertained by appropriation by the seller with the assent of the purchaser and delivered to the purchaser or his agent. Even if the property in those goods passes outside the State the ultimate sale relates to those very goods. In the second case the goods, wherein the title passes eventually outside the State, are produced or manufactured in Bihar and the sale wherever that takes place is by the same person who produced or manufactured the same in Bihar. The producer or manufacturer gets his sale price in respect of goods which were in Bihar at the date when the important event of agreement for sale was made or which were produced or manufactured in Bihar. These are relevant facts on which the State could well fasten its tax. If the facts in the Raleigh Investment Co. 's case (1), were sufficient nexus there is no reason why the facts mentioned in the proviso should not also be sufficient. Whatever else may or may not constitute a sufficient nexus, we are of opinion that the two cases with which we are concerned in this case are sufficient to do so. Re. point No. 5: The argument on this point is that sales tax is an indirect tax on the consumer. The (1) [1044] F.C.R. 229. 1378 idea is that the seller will pass it on to his purchaser and collect it from them. If that is the nature of the sales tax then, urges the learned Attorney General, it cannot be imposed retrospectively after the, sale transaction has been concluded by the passing of title from the seller to the buyer, for it cannot, at that stage, be passed on to the purchaser. According to him the seller collects the sales tax from the purchaser on the occasion of the sale. On that time goes past, the seller loses the chance of realising it from the purchaser and if it cannot be realised from the purchaser, it cannot be called sales tax. In our judgment this argument is not sound. From the point of view of the economist and as an economic theory, sales tax may be an indirect tax on the consumers, but legally it need not be so. Under the 1947 Act the primary liability to pay the sales tax, so far as the State is concerned, is on the seller. Indeed before the amendment of tile 1947 Act by the amending Act the sellers had no authority to collect the sales tax as such from the purchaser. The seller could undoubtedly have put up the price so as to include the sales tax, which he would have to pay but he could not realise any sales tax as such from the purchaser. That circumstance could not prevent the sales tax imposed on the seller to be any the less sales tax on the sale of goods. The circumstance that the 1947 Act, after the amendment, permitted the seller who was a registered dealer to collect the sales tax as a tax from the purchaser does not do away with the primary liability of the seller to pay the sales tax. This is further made clear by the, fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and sometimes by reason of competition with other registered dealers he may find it profitable to sell his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. The buyer is under no liability to pay sales tax in addition to the agreed sale price 1379 unless the contract specifically provides otherwise. See Love vs Norman Wright (Builders) Ltd. (1). If that be the true view of sales tax then the Bihar Legislature acting within its own legislative field had the powers of a sovereign legislature and could make its law prospectively as well as retrospectively. We do not think that there is any substance in this contention either. For reasons stated above none of the contentions urged by the learned Attorney General in support of these appeals can be sustained. The result, therefore, is that these appeals must be dismissed with costs. BOSE J. With great respect I cannot agree. It will not be necessary to elaborate my point of disagreement at length because this is pro Constitution legislation and much of what we decide in this case wilt not affect post Constitution Acts. Put very shortly, my view is this. First, a State can only impose a tax on the sale of goods. It has no power to tax extra territorially, therefore it can only tax sales that occur in the State itself. With great respect I feel it is fallacious to look to the goods, or to the elements that constitute a sale, because the power to tax is limited to the sale and the tax is not on the goods or on the agreement to sell or on the price as such but only on the sale. Therefore, unless the sale itself takes place in the State, the State cannot tax. That brings me to the next point, the situs of a sale. Now I know that this is a matter on which many different views are possible but what is clear to me is that a sale cannot have more than one situs. It is not a mystical entity that can be one in many and many in one at one and the same time, here, there and everywhere all at once nor is it a puckish elf that pops up now here, now there and next everywhere. It is a very mundane business transaction, of the earth. earthy. It can have only one existence and one situs. Opinions may differ on where that is and how it is to be determined, but it is our duty, as the supreme authority on the law of the land, to choose (1) I75 1380 one of those many views and say that that is the law of our land and that in India the situs is determined in this way or that and, having determined it, make it uniform for the whole country. I am conscious that the selection must be arbitrary, but for all that, it must be made. Left to myself, I would have preferred Chesbire 's view about the proper law of the contract set out by him in Chapter VIII of his book on Private International Law, 4th edition. I referred to this in The Delhi Cloth and General Mills Co. Ltd. vs Harnam Singh(1). I quote him again: "The proper law is the law of the country in which the contract is localised. Its localisation will be indicated by what may be called the grouping of its elements as reflected in its formation and in its terms. The country in which its elements are most densely grouped will represent its natural seat." He is not dealing with this question. He is dealing with International Law and the difficulties that arise in dealing with contracts whose elements are grouped in different States with different, and often conflicting, laws. He is developing the theme that for any one contract there should be but one law to govern it in all its stages and that the most logical conclusion is to select the law of the country in which the contract has its natural seat. But whether his view is accepted or any of the others that he discusses, he stresses the need for one objective rule and contends strongly that the choice should not be left to the parties to the deal, even as I say that it should not be left to the States. He quotes an American Judge, at page 203 of his book, who says that " Some law must impose the obligation, and the parties have nothing whatsoever to do with that, no more than with whether their acts are torts or crimes. " Now none of that is of immediate application here but it contains the germ of an idea and points to the embarrassment and folly of letting differing laws run amuck in governing a single transaction. Following up that thought I would say that we are dealing here with a Constitution Act that speaks with one voice (1) , 418. 1381 and authority throughout the land. It tells the various States, as one day some international voice that will rule the world will say to the peoples in it, " you may do this and may not do that " ; and " this " and " that " mean, but one thing everywhere. One writ runs throughout the land and it has but one meaning and one voice. " When I say that you may only legislate for your own territory and that you may tax certain sales, you must realise that the meaning that I give to I sale ' is the meaning that my Supreme Court shall give to it and that it cannot mean differing things in different areas ; and you must realise that the only sales that you may tax are the ones that lie in your own territory. My Supreme Court shall determine where a sale is situated and once that is determined it cannot be situated anywhere else. If it does not happen to be in your territory you cannot tax it. " Our present Constitution did not adopt Cheshire 's view. It made another choice. In the old Explanation to article 286 (now repealed) it selected the place where the goods are actually delivered, as a direct result of the sale or purchase, as the situs. Well, so be it. That is as good as any other and I would have been as happy to select that as any of the other possibilities. But what I do most strongly press is that a Constitution Act cannot be allowed to speak with different voices in different parts of the land and that a mundane business concept well known and well understood cannot be given an ethereal omnipresent quality that enables a horde of hungry hawks to swoop down and devour it simultaneously all over the land: " some sale; some hawks " as Winston Churchill would say. I would therefore reject the nexus theory in so far as it means that any one sale can have existence and entity simultaneously in many different places. The States may tax the sale but may not disintegrate it and, under the guise of taxing the sale in truth and in fact, tax its various elements, one its head and one its tail, one its entrails and one its limbs by a legislative fiction that deems that the whole is within its claws simply because, after tearing it apart, it finds a hand 1382 or a foot or a heart or a liver still quivering in its grasp. Nexus, of course, there must, be but nexus of the entire entity that is called a sale, wherever it is deemed to be situate. Fiction again. Of course, it is fiction, but it is a fiction as to situts imposed by the Constitution Act and by the Supreme Court that speaks for it in these matters and only one fiction, not, a dozen little ones. My point is simple. If you are allowed to tax a dog it must be within the territorial limits of your taxable, jurisdiction. You cannot tax it if it is born elsewhere and remains there simply because its mother was with you at some point of time during the period of gestation. Equally, after birth, you cannot tax it simply because its tail is cut off (as is often done in the case of certain breeds) and sent back to the fond owner, who lives in your jurisdiction, in a bottle of spirits, or clippings of its hair. There is a nexus of sorts in both cases but the fallacy lies in. thinking that the entity is with you just because a part that is quite different from the whole was once there. So with a sale of a motor car started and concluded wholly and exclusively in New York or London or Timbuctoo. You cannot tax that sale just because the vendor lives in Madras, even if the motor car is brought there and even assuming there is no bar on international sales, for the simple reason that what you are entitled to tax is the sale, and neither the owner nor the car, therefore unless the sale is situate in your territory, there is no real nexus. And once it is determined objectively by the Constitution Act or in Supreme Court how and where the sale is situate, its situs is fixed and cannot be changed thereafter by a succession of State legislatures each claiming a different situs by the convenient fiction of deeming. The only question is whether it is too late in the day to take this view because of our previous decisions and those of the Federal Court. I say not, for, though there is a consensus of opinion that there must be a territorial nexus and that it must not be illusory, no decision that I know of says that when you are given the right to tax a certain thing which is a composite 1383 entity, quite separate and distinct from the various elements of which it is composed, you may tear that whole apart and seize on some, element that is quite a different thing from that which you are entitled to tax and hold that the taxable entity is in your State simply because at some relevant point of time one of the ingredients that went to make up the whole but which is a separate and distinct thing from the whole, as different from it as chalk is from cheese, happened to be within your clutches. I do not intend to analyse the cases on this point because it is pointless to pursue a matter that will only be of academic interest. All I will do therefore is to say that the question of nexus has been referred to in the following cases and that none of them reaches a decision on this particular point. These cases are Governor General in Council vs Ratleigh Investment Co., Ltd. (1), A. H. Wadia vs Commissioner of Income tax, Bombay Poppatlal Shah vs The Slate of Madras (3), State of Travencore Cochin vs Shanmugha Vilas Cashew Nut Factory (4), and The Bengal Immunity Co., Ltd. vs The State of Bihar (5). I would allow the appeals. ORDER OF THE COURT. In view of the opinion of the majority, the appeals are dismissed with costs. Appeals dismissed. (1) [1944] 229, 247, 253. (2) [1048] F.C.R. 121, 153, 154, 165. (3) ; (4) [1954]S.C.R. 53, 101. (5) , 708, 768, 769.

The appellant company, carrying on business as manufacturer of iron and steel, with its factory and works at Jamshedpur in Bihar, was assessed to sales tax for two periods prior to the Constitution, under the Bihar Sales Tax Act, 1947 (No. XIX Of 1947), enacted by the Bihar Legislature in exercise of its exclusive power under the Government of India Act, 1935. The company used to send its goods from Jamshedpur to various parts of India. In the railway receipt the company itself figured as the consignee, it paid the freight and the receipt was sent either to its branch offices or bankers to be handed over to the purchaser when he paid the price. From the amounts shown as gross turn over in the two returns for the two periods, the company claimed deduction of certain amounts, being the valuable consideration for the goods manufactured in Bihar but sold, delivered and consumed outside, on the ground that in none of the transactions in respect of the said sums did property in the goods pass to the purchasers in Bihar. The appellant claimed further deductions on account of the railway freight paid by it. The Sales Tax Officer disallowed both the claims and added the amounts of sales tax realised by the appellant from its purchasers to the taxable turnover. The company appealed against the orders of assessment, but the Commissioner of Sales Tax dismissed its appeals. The Board of Revenue, in revision, confirmed the orders of the Commissioner with certain modifications and remanded the matters to the Sales Tax Officer. On the appellant 's application for reference of certain questions of law, the Board referred them to the High Court. One of them related to the legality of adding the Sales Tax to the turn over and was answered in favour of the appellant and the respondent did not appeal. The other questions decided by the High Court against the appellant related to the vires of the Act and the validity of retrospective levy of sales tax under section 4(1) of the Act. The appellant 's contentions in the appeals were that the tax levied under section 4(1) read with section 2(g) second proviso, cl. (II), of the Act, was not a sales tax within the meaning of Entry 48 in List II of the Seventh Schedule to the Govern ment of India Act, 1935, but was in the nature of excise duty 172 1356 which a provincial legislature had no power to impose, that the theory of territorial nexus was inapplicable to sales tax and, in any case, there was no real or sufficient nexus in the present cases and that retrospective levy of the sales tax under section 4(1) Of the Act destroyed the indirect nature of the tax, thus making it a direct tax on the dealer which could not be passed on to the consumer: Held, (per Das, C. J., Venkatarama Aiyar, section K. Das and A.K. Sarkar, jj., Bose, J. dissenting), that the contentions raised on behalf of the appellant must be negatived. The provisions of section 4(1) read with section 2(g), second proviso, of the Bihar Sales Tax Act, as amended by the Bihar Sales Tax (Amendment) Act, 1948, (VI Of 1949), were within the legislative competence of the Legislature of the Province of Bihar. Both before and after the amendment, the word 'sale ' as used in section 4(1) and as defined by section 2(g) of the Act, meant the transfer of property in the goods sold. The second proviso added by the amending Act did not extend that meaning so as to include a contract of sale. What it actually did was to lay down certain circumstances in which a sale, although completed elsewhere, was to be deemed to have taken place in Bihar. Those circumstances did not constitute the sale, but only located the situs of the sale. Sales Tax Officer, Pilibhit vs Messrs. Budh Prakash jai Prakash; , , distinguished. Nor was it correct to contend that the tax levied under section 4(1) read with section 2(g) Of the Act was in the nature of excise duty. Under cl. (ii) of the second proviso to section 2(g) of the Act the producer or manufacturer became liable to pay the tax not because he produced or manufactured the goods but because he sold them. Province of Madras vs Boddu Paidanna and Sons, [1942] F.C.R. go and Governor General vs Province of Madras, (1945) L.R. 72 I.A. 91, referred to. There can be no doubt that the theory of territorial nexus does apply to sales tax legislation. Although sales tax can be levied only on a completed sale, this theory has its use in indicating the circumstances in which the tax may be enforced in a particular case. One or more of the several ingredients of a sale may furnish the connection between the taxing State and the sale. State of Bombay vs United Motors (India) Ltd., [1953] S.C.R. 1069, Poppatlal Shah vs The State of Madras, [1953] S.C.R. 677 and The State of Bombay vs R.M.D. Chamarbaugwala, ; , relied on. Bengal Immunity Co. Ltd. vs The State of Bihar, , considered. Case law reviewed. 1357 As in a sale of goods, the goods must necessarily play an important part, the circumstances mentioned in the proviso to section 2(g) of the Act, namely, the presence of the goods in Bihar at the date of the agreement of sale or their production or manufacture there must be held to constitute a sufficient nexus between the taxing province and the sale wherever that might take place. Governor General vs Raleigh Investment, , relied on. Province of Madras vs Boddu Paidanna and Sons, [1942] F.C.R. go, distinguished. It would not be correct to contend that the theory of nexus might lead to multiple taxation or obstruct inter State trade. Article 286(2) of the Constitution and the relevant entries in the Legislative List are a complete safeguard to any such contingency. Although as a matter of economic theory, sales tax maybe an indirect tax realisable from the consumer, it need not be legally so and is not so under the Bihar Sales Tax Act, 1947, which imposes the primary liability on the seller. A buyer, moreover, is not bound to pay sales tax over and above the agreed sale price unless he is by contract bound to do so. There can, therefore, be no scope for the argument that the retrospective enforcement of the tax under section 4(1) of the Act could destroy the character of the tax or that it was beyond the legislative competence of the Bihar Legislature. Love vs Norman Wright (Builders) Ltd., L.R. (1944) 1 K.B. 484, referred to. Per Bose, J. Sales tax can be imposed only on the sale. It is, therefore, wrong to look to the goods or the agreement to sell or any other elements that constitute a sale in order to impose the tax. A State can tax a sale of goods that takes place within its boundary. It has no power to tax extra territorially, and since a completed sale can have only one situs no State Legislature can be allowed to break up a sale into its component parts, which are separate and distinct from the sale itself, and by an application of the theory of nexus claim that ,,he sale wholly took place within it. The nexus can only be in respect of the entire sale, wherever it may take place and not of its several parts.

ION: Criminal Appeal No. 66 of 1954. Appeal from the judgment and order dated the 31st December, 1953 of the Punjab High Court in Criminal Appeal No. 540 of 1953, arising out of the judgment and order dated the 14th September, 1953, of the Court of Special Judge, Amritsar, in Corruption Case No. 13/1 10/3 of 1953. Shaukat Hussain, for the appellant. Gopal Singh and T. M. Sen, for the respondent. October 25. The following judgment of the Court was delivered by 763 KAPUR J. The sole point in this appeal against the judgment and order of the Punjab High Court pronounced on December 31, 1953, is the validity and effect of the sanction given under section 6(1) of the Prevention of Corruption Act (Act 2 of 1947), hereinafter termed the Act. The appellant was prosecuted for receiving illegal gratification and the charge against him was in the following terms: "That, you, Jaswant Singh, while employed as a Patwari, Fatehpur Rajputan habitually accepted or obtained for yourself illegal gratification and that you received in the sum of Rs. 50 on 19 3 1953 at Subzi Mandi Amritsar from Pal Singh P. W. as a reward for forwarding the application Es. P. A. with your recommendation for helping Santa Singh father of Pal Singh in the allotment of Ahata No. 10 situate at village Fatehpur Rajputan and thereby committed an offence of Criminal misconduct in the discharge of your duty mentioned in section 5(1)(a) of the Prevention of Corruption Act, 1947, punishable under sub section 2 of section 5 of the aforesaid Act and within my cognizance. " The Special Judge found that the appellant had accepted illegal gratification from Pal Singh, Hazara Singh, Harnam Singh, Joginder Singh, Atma Singh, Hari Singh and Ganda Singh and that he had received Rs. 50 from Pal Singh on March 19, 1953, at Subzi Mandi, Amritsar. He then held: "The charge under section 5 (1)(a) of the Prevention of Corruption Act, 1947, has been established against him beyond reasonable doubt. He is guilty of an offence punishable under sub section (2) of section 5 of the said Act. " The appellant took an appeal to the High Court of the Punjab and Dulat J. held that taking into consideration the sanction which will be quoted hereinafter: " The appellant could neither have been charged nor convicted of what is probably a much graver offence of habitually accepting bribes. " 97 764 But he held that sanction was valid qua the charge of accepting illegal gratification of Rs. 50 from Pal Singh. The conviction was therefore upheld but the sentence was reduced to the period already undergone and the sentence of fine maintained. The argument raised by the appellant in this court is that as the sanction was confined to illegal gratification of Rs. 50 paid by Pal Singh and the charge was for habitually accepting illegal gratification the trial was without jurisdiction and the appellant could not be convicted even for the offence which was mentioned in the sanction. The sanction was in the following terms: " Whereas I am satisfied that Jaswant Singh Patwari son of Gurdial Singh Kamboh of village Ajaibwali had accepted an illegal gratification of Rs. 50 in 5 currency notes of Rs. 10 denomination each from one Pal Singh son of section Santa Singh of village Fatehpur Rajputan, Tehsil Amritsar for making a favorable report on an application for allotment of an ahata to section Santa Singh father of the said section Pal Singh. And whereas the evidence available in this case clearly discloses that the said section Jaswant Singh Patwari had committed an offence under Section 5 of the Prevention of Corruption Act. Now therefore, 1, N. N. Kashyap, Esquire I.C.S. Deputy Commissioner, Asr, as required by Section 6 of the Prevention of Corruption Act of 1947, hereby sanction the prosecution of the said section Jaswant Singh Patwari under section 5 of the said Act. " Section 6(1) of the Act provides for sanction as follows: " No Court shall take cognizance of an offence punishable under Section 161 or Section 165 of the Indian Penal Code or under sub section (2) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction. " Section 5 (1)(a) relates to a case of a public servant if he habitually accepts illegal gratification and section 5(1)(d) 765 if he obtains for himself any valuable thing or pecuniary advantage. The contention comes to this that as the sanction was only for receiving Rs. 50 as illegal gratification from Pal Singh and therefore an offence ' under section 5 (1)(d) the prosecution, the charge and conviction should have been under that provision and had that been so there would have been no defect in the jurisdiction of the court trying the case nor any defect in the conviction but as the appellant was tried under the charge of being a habitual receiver of bribes and the sanction was only for one single act of receiving illegal gratification the trial was wholly void as it was a trial by a court without jurisdiction. The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness; Basque Agarwala vs King Emperor (1). The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself tile evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. In Gokulchand Dwarkadas Morarka vs The King (2) the Judicial Committee of the Privy Council also took a similar view when it observed: " In their Lordships ' view, to comply with the provisions of cl. 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the Sanction, but this is not essential, since cl. 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction ' the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. (1)[1945] F.C.R. 93,98 (2) [1948] L.R. 75 I.A.30, 37 766 It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. In Yusofalli Mulla Noorbhoy vs The King (1) it was held that a valid sanction on separate charges of hoarding and profiteering was essential to give the court jurisdiction to try the charge. Without such sanction the prosecution would be a nullity and the trial without jurisdiction. In the present case the sanction strictly construed indicates the consideration by the sanctioning authority of the facts relating to the receiving of the illegal gratification from Pal Singh and therefore the appellant could only be validly tried for that offence. The contention that a trial for two offences requiring sanction is wholly void, where the sanction is granted for one offence and not for the other, is in our opinion unsustainable. Section 6(1) of the Act bars the jurisdiction of the court to take cognizance of an offence for which previous sanction is required and has not been given. The prosecution for offence under section 5(1)(d) therefore is not barred because the proceedings are not without previous sanction which was validly given for the offence of receiving a bribe from Pal Singh, but the offence of habitually receiving illegal gratification could not be taken cognizance of and the prosecution and trial for that offence was void for want of sanction which is a condition precedent for the courts taking cognizance of the offence alleged to be committed and therefore the High Court has rightly set aside the conviction for that offence. In Hori Ram Singh vs The Crown(1) the charges against a public servant were under sections 409 and 477A, Indian Penal Code, one for dishonestly converting and misappropriating certain medicines entrusted to the public servant and the other for wilful omission with intent to defraud to record certain entries in the (1)(1949) L.R. 76 I.A.158 (2)[1939] F.C.R.159. 767 account books of the hospital where he was employed. Thus two distinct offences were committed in the course of the same transaction in which the one, under section 477A, Indian Penal Code, required sanction under,s. 270(1) of the Government of India Act and the other under section 409, Indian Penal Code, did not. But the bar to taking cognizance of the former offence was not considered a bar to the trial for an offence, for which no sanction was required and therefore the proceedings under section 477A were quashed as being without jurisdiction but the proceedings under section 409 Indian Penal Code were allowed to proceed. Similarly the Supreme Court in Basir ul Huq vs The State Of West Bengal (1) held section 195, Criminal Procedure Code to be no bar to the trial for a distinct offence not requiring sanction although disclosed by the same facts if the offence is not included in the ambit of an offence requiring such sanction. The want of sanction for the offence of habitually accepting bribes therefore does not make the taking of cognizance of the offence of taking a bribe of Rs. 50 from Pal Singh void nor the trial for that offence illegal and the court a court without jurisdiction. The submission next raised is that the evidence in support of being habitually a receiver of bribes has caused serious prejudice to the defence of the appellant but no such prejudice has been shown nor does the judgment of the High Court which has proceeded on the evidence in support of the charge of Pal Singh 's transaction, indicate the existence of any prejudice and there was nothing indicated before us leading, to the conclusion of prejudice or to consequent failure of justice. The High Court came to the conclusion that the trial for the offence of habitually accepting illegal gratification could not be validly tried and evidence led on that charge could not be considered but the conviction of receiving a bribe of Rs. 50 from Pal Singh is well founded and also that the appellant has not been prejudiced in the conduct of his defence. (1) ; 768 No arguments were addressed to this court on the correctness of the finding of the High Court in regard to the conviction for receiving illegal gratification from Pal Singh. We agree with the opinion of the High Court that the offence under section 5(1) (d) of receiving illegal bribe of Rs. 50 has been made out and would therefore dismiss this appeal. Appeal dismissed.

In 1989, respondent 1 and his sister applied for migration from Mumbili Medical College in the Faculty of Medicine, affiliated to the University of Dar es Salam to a recognised medical college in India. The Medical Council of India turned down this application. A writ petition was filed in the Court at Jabalpur. The High Court directed that the appellant and other authorities consider the case of the petitioners. Thereafter the Executive Committee of the Medical Council reconsidered the case on 20th August, 1991. It found that the grounds for migration were not sufficient; that it was. the course of stud already undergone vis a vis that being taught in the medical college in which migration was sought, and not the facts of individual case, which was relevant. Also the candidate had not furnished enough materials to make the comparison. The Council therefore rejected the application. A review petition and contempt petition filed in the High Court were dismissed. Thereupon, in a miscellaneous petition filed on the same grounds seeking admission in the second year or the 1 year professional MBBS Course at Medical College, Jabalpur the High Court directed that the petitioners be given provisional admission. The petitioners however, did not produce the required documents and the college did not provisionally admit them. In an interlocutory application, the High Court permitted one of the petitioners to withdraw herself from the petition and directed that the other petitioner 788 (respondent I before this Court) he granted provisional admission on his filing necessary forms and depositing the fees without insisting ton the Production of any other certificate or testimonials or syllabus (of Dar es Sala in University On fear of contempt, the Dean had to comply with this order. On an application before it, this Court stayed the interim order and requested the High Court to dispose of the main petition expeditiously. The High Court allowed the %Tit petition and quashed the resolution dated 20th August, 1991. refusing migration, holding that there was no application of mind by the Council. On appeal before this Court, it was contended that the High Court erred in directing admission of respondent in a recognised medical college from an unrecognised medical college by way of migration , that Regulation V had been misread and that not having under gone study in a recognised medical college nor having passed the first professional examination, he could not be admitted to the second year; that he had failed in anatomy and had not sat for his supplementary examination and had therefore ceased to be a student of Dar es Salam University and that the first year course at Dar es Salam University and in India were not equivalent. Equivalence in any case, it was urged, is to be decided by an expert body and is not in the domain of the Court. For respondent 1, it was argued that the self contradictory stand of the Council on equivalence had led to the High Court deciding the issue; that equity was in his favour; that he had in any event passed his pre medical test in 1991; and that he belongs to a scheduled tribe. Allowing the appeal, this Court, HELD: 1. The Medical Council has come to the correct conclusion that there cannot he migration from unrecognised institution to a recognised medical college. (799 G) Dar es Salam University has not been recognised as provided in the Indian Medical Council Act, 1956.(7% A) 2. The High Court does not have the necessary expertise to determine equivalent. The Medical Council is the main authority in this respect. (799 C) 789 3. what is material for grant of permission for migration is the course of study which a student has undergone vis a vis the courses being taught in the medical college in which the migration is sought, and not the individual case. (799 D) The material placed before the Council was not sufficient to decide equivalence. The concerned authority is to verify the disputed factual position concerning his performance in the 1991 pre Medical test and decide on considering him for admission for the academic year 1993 94. (800 E G)

No. 151 of 1967. Petition under article 32 of the Constitution of India for the enforcement of fundamental rights. M. C. Chagla and Mohan Behari Lal, for the petitioner. section T. Desai and O. P. Rana, for respondent No. 1. C. B. Agarwala and O. P. Rana, for respondent No. 2. O. P. Rana, for respondent No. 3. P. M. Mukhi, Bishamber Lal and H. K. Puri, for the intervener. The Judgment of WANCHOO, C.J., SIKRI, SHELAT and VAIDIALINGAM, JJ. was delivered by SHELAT, J. BHARGAVA, J., delivered a separate opinion. Shelat, J. On August 17, 1934 the Governor in Council of the then United Provinces, in exercise of powers under section 3 (1) of the Indian Electricity Act, IX of 1910 issued three licences to M/s. Alopi Parshad & Sons Ltd. for the supply of electrical energy within the tahsil areas of Firozabad in the district of Agra Shikohabad in the district of Manipur and Etawah in the district of Etawah. The licences inter alia provided that the licensee would be supplied electrical energy in bulk by the Public Works Department, U.P. and the licensee in its turn should transmit the same on its own high tension mains within the areas of the licences. The licences also provided that the responsibility for the maintenance of supply of electrical energy in the licensee 's, plant shall be borne entirely by the Public Works Department and thereafter by the licensee. In 1937 the licences were assigned by the said M/s. Alopi Parshad and Sons Ltd. to the petitioner company with the consent of the Government. The petitioner company has since then been supplying under the said licences electricity to consumers within the said areas of the licences. It is an admitted 314 position that though the petitioner company had the said licences assigned to it it did not acquire any exclusive or monopolistic right of supplying electrical energy within the said areas. Clause (e) of sec. 3(2) of 1910 Act which governed the said licences provides that the grant of a licence thereunder shall not in any way hinder or restrict the grant of a licence to another person within the same area of supply for a like purpose. The Electricity (Supply) Act, LIV of 1948 (hereinafter referred to as 1948 Act) by sec. 5(1) enjoins upon the State Government to constitute a State Electricity Board. 19(1) provides that the Board may, subject to the provisions of this Act, supply electricity to any licensee or person requiring such supply in any area in which a scheme sanctioned under Chapter V is in force. The proviso to Sec. 19(1), however, lays down that the Board shall not : "(b) supply electricity for any purpose to any person, not being a licensee for use in any part of the area of supply of a licence without the consent of the licensee, unless the maximum demand of the licensee, being a distributing licensee and taking a supply of energy in bulk is, at the time of the request, less than twice the maximum demand asked for by any such person; or the licensee is unable or unwilling to supply electricity for such purpose in the said part of such area on reasonable terms and conditions and within a reasonable time. " Section 26 provides that "Subject to the provisions of this Act, the Board shall, in respect of the whole State, have all the powers and obligations of a licenses, under the , and this Act shall be deemed to be the licence of the Board for the purposes of that Act. " The definition of a licensee in section 2(6) of 1948 Act, however, states that it would not include the Board. Though the Board is not a licensee for the purposes of the 1948 Act the Act being deemed to be the licence for the Board under Sec. 26 it is a licensee under the 1910 Act. 26 however is subject to the provisions of the Act which means that it is inter alia subject to the provisions of sec. Therefore, in the absence of a scheme under Chapter V, the Board, though a licensee under the 1910 Act, was not competent to supply directly electrical energy to consumers such as the 3rd respondent. This was the position until 1961, When the U.P. legislature to remove this disability of the Board, passed the Indian Electricity (U.P.) Amendment Act, XXX of 1961. Section 2 of the Amendment Act substituted the following, for cl. (e) of sec. 3(2) of the 1910 Act: 315 "(e) grant of a licence under this Part for any purpose shall not in any way hinder or restrict (i) the grant of licence to another person within the same area of supply for a like purpose; or (ii) the supply of energy by the State Government or the State Electricity Board wihin the same area, where the State Government deems such supply necessary in public interest. " It also added after sub sec. 2, the following sub sec. 3: "(3) Where the supply of energy in any area of the State Electricity Board is deemed necessary under subclause (ii) of clause (e) of sub section (2), the Board may, subject to any terms and conditions that may be laid down by the State Government, supply energy in that area notwithstanding anything to the contrary contained in this Act or the Electricity Supply Act, 1948. " Sec. 3 of the Amendment Act also added a new sub sec. (1 B) in sec. 28 of the 1910 Act. The new sub section reads as under: "(1 B). The State Government may notwithstanding that sanction for engaging in the business of supplying energy to the consumer in an area has been given to any person under sub section (1), whether before or after coming into force of the Indian Electricity (U.P. Sanshodhan) Adhiniyam, 1961, give direct supply, or authorise the State Electricity Board to give direct supply, in the same area. " This sub section has no application to the licensees for, it empowers the State Government either to supply directly or authorise the Board to directly supply energy even in an area for which it has given sanction to a person other than a licensee to engage in the business of supplying energy to the public in such area. A perusal of these provisions makes it clear that the Board can directly supply electricity to the consumers and the State Government also can authorise the Board to do so provided the State Government deems it necessary in public interest that it should be so done. The condition precedent for the direct supply by the Board to the consumers in the area where a licence has been granted to a licensee is that such supply by the Board must be deemed necessary by the State Government in public interest. In pursuance of the powers under sees. 46 and 49 of the 1948 Act, the Board by a notification dated April 24, 1962 fixed the rates and tariffs for electrical energy for the Ganga Sarda 316 Grid. These were to apply to both the licensees obtaining bulk supply from the Board and to consumers to whom electrical energy was being supplied direct by the Board in the area covered by the said Grid. According to these rates, consumers to whom electrical energy was being supplied direct by the Board would pay a demand charge at the rate of Rs. 8/ per KVA and on energy charge at the rate of 4.5nP per KWH for the first 170 KWH per KVA, at the rate of 3.5nP for the next 170 KWH per KVA and at the rate of 3.0 nP per KWH for the remaining KVA consumed during the month. For the licensees, the rates were Rs. 12.75 per KVA for the demand charge for the first 500 KVA, Rs. 10 per KVA for the next 1500 KVA and Rs. 8.50 per KVA for above 2000 KVA of the chargeable demand during the month. For energy charge, the rates were 5 nP per KWH for the first 170 KVM per KVA, 4nP per KWH for the next 170 KWH per KVA and 3nP per KWH for the remaining KWH per KVA of chargeable demand consumed during the month. The rates chargeable from licensees were thus higher than those applicable to the consumers both in respect of demand and energy charges even though licensees would be larger customs who in the normal course of business would be charged lower rates than the consumers. The notification is not under challenge before us and therefore it is not necessary for us to consider its validity. As the Board was not yet authorised by the State Government to supply electricity directly to the consumers within the areas of the petitioner company 's licences the 3rd respondent entered into an agreement in 1964 for a period of 3 years under which the petitioner company was to supply electricity to it. On September 21, 1966 the State Government issued a notification which stated that the Governor deemed it necessary in public interest that the State should supply energy to the 3rd respondent and in exercise of the power under sec. 3 (2) (e) of the 1910 Act as amended by Act XXX of 1961 directed the Board to give direct supply of energy to the 3rd respondent on the same terms and conditions on which the Board was supplying energy I to other consumers. Thereupon the 3rd respondent by its notice dated January 19, 1967 terminated the said agreement. It seems that the Board was still not ready to supply energy direct to the 3rd respondent and therefore on April 18, 1967, only one day before the said agreement would have ended, the 3rd respondent withdrew the said notice. On June 23 1967, the 3rd respondent, however, gave a fresh notice terminating the said agreement as from September 23, 1967. The result of the notification dated September 21, 1966 was two fold : (1) that notwithstanding the subsistence of the petitioner company 's licences and its right thereunder to supply energy to consumers within the areas of its licences, the Board 317 was directed to supply energy to the 3rd respondent and (2) that the Board was directed to supply energy to the 3rd respondent at rates lower than the rate charged by the Board from the petitioner company as the licensee. Mr. Chagla appearing for the petitioner company raised the following three contentions : ( 1 ) that the amended sec. 3 (2) (e) was invalid on the ground that it amounted to acquisition of the petitioner company 's property and as no compensation has been provided for such acquisition cl. (e) of section 3 (2) was in violation of article 31(2) of the Constitution; (2) that the notification dated September 21, 1966 was ultra vires sec. 3 (2) (e) as the direction by the State Government to the Board to supply electricity directly to the 3rd respondent was not founded on public interest; and (3) that the said direction to supply electricity at rates chargeable from the consumers as against the rates chargeable to the licensees was discriminatory. The respondents, on the other hand, contended that the 3rd respondent was a concern in which the Government has an interest to the extent of 51 % of its share capital, that therefore, it was almost a public utility concern, that supply by the petitioner company to the 3rd respondent was found to be defective resulting in lay off of labour on several occasions and consequent loss in production and that therefore the Government was justified in public interest to issue the said notification. In support of these allegations the respondents filed an annexure to their counter affidavit showing low voltage and high tension trippings during the months of April, May and June 1966. It was alleged that owing to defective and short supply by the petitioner company there Were high tension trappings on numerous occasions resulting in low voltage, the consequence Whereof was that the 3rd respondent was obliged to stop the working of the Mills sometimes for several hours. The petitioner company 's case, however, was that these allegations were an afterthought and that the real object in issuing the notification dated September 21, 1966 was to subvert the petitioner company 's rights under the said licences. We are inclined to think that there is considerable force in the contention of the petitioner company. Though the allegation was that supply of energy by the petitioner company to the 3rd respondent suffered from shortage and other defects the 3rd respondent does not seem to have at any time made any complaint about such shortage or defects either to the petitioner company or to the Board or to the State Government. Similarly, the Board also does 318 not seem to have at any time complained to the petitioner company about such defective supply. Even when the petitioner company, after the said notification was issued, made a representation to the State Government to reconsider its decision the Government did not, while rejecting it, rely upon the fact that the petitioner company was not in a position to give full and proper supply of energy to the 3rd respondent or that supply by it was, as now alleged, short or defective. It is an undisputed fact that the petitioner company has been throughout all these years supplying high tension energy to the 3rd respondent and the 3rd respondent has been converting such high tension energy into low tension energy through its own transformers. The aforesaid annexure shows that though the high tension trippings were only for a few minutes except on three or four occasions low voltage was for several hours. In some cases though there was no tripping at all there was low voltage for as long as sixteen hours. It is clear, therefore, that the petitioner company had no difficulty in maintaining supply of high tension electrical energy to the 3rd respondent and there must have been some defect in the stepping down system of. the 3rd respondent resulting in low voltage. It is impossible thus to find from the annexure that the petitioner company was guilty in any manner of shortage or defective supply of high tension energy to the 3rd respondent. The allegation therefore that the 3rd respondent suffered in production and losses as a result of short or defective supply by the petitioner company is not borne out by the record in this case. If there was any justification for the allegation now made by the respondents it is inconceivable that for all these years the 3rd respondent would not have made any complaint for such defective supply either to the Board or to the State Government. It is certain that but for the amendment of sec. 3 (2) (e) of 1910 Act, the Board, though a licensee under that Act, could not have supplied energy directly to the 3rd respondent in the absence of a scheme under sec. 19 of 1948 Act. Under the proviso to that section the Board would not have been entitled to supply energy for any purpose to any person not being a licensee for use in any part of the area of supply of a licensee without the consent of such licensee. It is true that under its licences the petitioner company was not conferred monopolistic rights to supply energy to the consumers and the Government could have granted another licence to another licensee. But the Government has not granted such licence to any other person. But it was said that the Board was another such licensee. As already stated the Board could not have distributed energy to the consumers though it is a licensee under 1910 Act unless (a) there was a scheme or (b) that it was authorised in public interest under the amended sec. 3 (2) (e). Neither of these two conditions having been fulfilled it 319 is clear that the notification of September 21, 1966 and the direction contained therein to the Board to supply energy to the 3rd respondent were in breach of the petitioner company 's rights under its licences and the requirements of the amended sec. 3 (2) (e). Apart from its being in breach of the amended sec. 3 (2) (e) and the petitioner company 's rights under its licences, the notification and the Government 's direct on to the Board therein results in clear discrimination. If the Board were to supply energy directly to the 3rd respondent it has to do so at rates lower than the rates at which electricity is supplied by it to the petitioner company. The petitioner company being thus charged at higher rates must as a distributor charge hi her rates from its other consumers with the result that the 3rd respondent would get energy at substantially lower rates than other consumers including other industrial establishments in the area. The notification thus results in discrimination between the 3rd respondent on the one hand and the other consumers on the other as also between the 3rd respondent and the petitioner company. It follows therefore that the notification of September 21, 1966 cannot be sustained as a valid notification as it is discriminatory and is also in breach of the amended sec. 3 (2) (e) of 1910 Act. In that view the Board is not entitled to supply directly electricity to the 3rd respondent as the direction contained in the said notification which is the only authority under which it could so supply is invalid in law. In this view, it is not necessary for us to decide the question whether the amended sec. 3 (2) (e) amounts to acquisition and whether such acquisition is in violation of article 31 of the Constitution. The said notification being thus invalid respondents 1 and 2 are directed not to, supply electrical energy directly to the 3rd respondent. The respondents will pay to the petitioner company the costs of this petition. Bhargava, J. I agree with my brother Shelat J. that the notification of September 21, 1966 cannot be sustained as a valid notification because it is discriminatory and consequently I concur in the order proposed by him. I am, however, not prepared to hold that that notification is also invalid, on the other two grounds, viz., that the notification and the directions contained therein to he Electricity Board to supply energy to the third respondent were in breach of the petitioner Company 's rights under its licence and of The requirements of the amended section 3 (a) (e). I may briefly indicate the reasons for my view. It is admitted on all hands that under its licences, the petitioner company was not conferred monopolistic rights to supply energy 320 to the consumers in the area covered by the licences and that Government could have granted another licence to another licensee to supply energy in the same areas without violating any provision of the Electricity Act of 1910 or of the conditions or which licences were granted to the petitioner Company. It in true that the Government has not granted any such licences to any other person but, in my opinion the effect of the subsequent legislation is to bring into existence another statutory licencee viz., the Electricity Board and any directions permitting the Elec tricity Board to supply electricity in the areas covered by the petitioner Company 's licences cannot be held to be in violation of the conditions of those licences. By the Electric Supply Act 1948, the Board 'was constituted a licensee for purposes of the Electricity Act of 1910, though section 26, which brought about this result, provided that in that capacity, the Board was subject to other provisions of the Electric Supply Act 1948. One such provision is contained in section 19(1) of the Act of 1948. The U.P. Electricity Amendment Act 1961, however, introduced provi sions in the Act of 1910 the result of which was that the Board, in acting as a licensee under the Act of 1910, was no longer subject to the limitation laid down in section 19(1) of the Act of 1948. It has not been contended that either the Supply Act of 1948 or 'the U.P. Electricity Amendment Act of 1961 was not competently enacted by the appropriate legislature. The Supply Act of 1948 was no doubt passed by the Central Legislature in respect of a concurrent subject but the U.P. Electricity Amendment Act of 1961 was reserved for the assent of the President and, having received the assent of the President, the provisions of that Act would prevail to the extent to which they may be inconsistent with the, Central Act of 1948. The result of that legislation was that the Electricity Board became a licensee under the Electricity Act of 1910 and was no longer subject to the limitation laid down in section 19(1) of the Electricity Supply Act of 1948. The only limitation after the enactment of the U.P. Electricity Amendment Act 1961 that remained was that the Board could supply electricity only after the Stat Government issued a valid notification under clause (e) of section 3(2) of the Act of 1910. If the State Government was competent under the original section 3(2) (e) of the Act of 1910 to grant a licence to any person for supply of electricity in the areas covered by the licences issued to the petitioner Company, I do not see why v similar result could not be validly brought about by legislation, by the appropriate legislatures creating a statutory licensee for purposes of the Act of 1910. Consequently, the power granted to the Electricity Board by the notification of September 21, 1966 to supply electricity to a consumer in the area covered by one of the licences of "he petitioner Company cannot be, held to be in violation of the conditions of the licence. 321 I further considered that, in view of the language of the provisions contained in the amended section 3(2) (e) of the Act of 1910, it is not competent for this Court in this writ petition, on the material available, to declare that the notification of September 21, 1966 is invalid because the direction contained therein was not made by the State Government in public interest. The power under the amended section 3 (2) (e) is to be exercised when Government deems it necessary in public interest. The notification, on the face of it, shows that the State Government did apply its mind before issuing that notification and form the opinion that in this particular case it was necessary in public interest that the Board should be directed to supply electricity to respondent No. 3 in the area covered by one of the licences of the petitioner Company. The opinion was formed by the. State Government on material which I do not think can be said to be totally irrelevant for the purpose of forming such opinion. As long as the State Government based its order on an opinion formed on relevant material, it is not open to the courts to examine and take a different view on the basis of other material such as want of complaints by respondent No. 3 to the Government that the supply of energy by the petitioner Company was not satisfactory. It is not for courts to sit in judgment over the view of the State Government which the State Government is required to form in order to make an order under the amended section 3 (2) (e). Consequently, I cannot hold that the notification of September 21, 1966 was invalid on the ground that it was issued in breach of the amended section 3(2) (e) of the Act of 1910.

The respondent who was a permanent official in the Delhi Administration was appointed to the Punjab Civil Service (Executive Branch). He was on probation in the new post for a period of 18 months subject to extension of the period and subject to his completing training. He passed all the departmental examinations. The period of probation expired in July 1954, and there was no extension of it. In January 1957, he received a charge sheet with a letter from the Anti Corruption Department asking him to reply to the charge sheet and to, state whether he would like to be heard in person. The respondent replied that be wanted an opportunity of being heard in person. There was however no enquiry at all, and much later, by an order dated 23/26th May 1958, the Punjab Government reverted him to his substantive post in the Delhi. Administration without making any reference to the charges. The respondent thereupon challenged the order on the grounds namely (1) that on the expiry of the period of probation and on his passing the departmental examinations he became entitled to a substantive permanent appointment; (2) that the impugned order terminated his service under the Punjab Government and removed him from the said service, in viola tion of the provisions of article 311(2) of the Constitution; and (3) under r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, it was mandatory that, before his employment as a probationer could be terminated, be should have been apprised of the grounds of the proposed termination and given an opportunity to show cause against it. The High Court accepted the second contention and allowed the petition. In appeal to this Court, HELD : (1) Merely because the respondent had passed all the departmental examinations and completed the period of probation fixed, he could not be considered to be holding the post substantively, or as being entitled to it. [239 E F] (2) The respondent could not complain against the order reverting him to his former post because, the order of reversion was not by way of punishment. [239 F] The circumstances preceding or attendant on the order of termination of service of a public servant have to be examined in each case, f(t determining whether the order was by way of punishment. The motive behind it is immaterial. it is only in a case whether either of the two tests, namely, (a) whether the public servant had a right to the Post or rank. or (b) whether the public servant, no matter whether he was a probationer or a temporary servant, has been visited with evil consequences or an aspersion has been cast on his character or integrity, that the order could be said to be by way of punishment. But the services of a temporary 235 servant or a probationer can be terminated under the rules of his employment and such termination without anything more, will not attract the operation of article 311. [240 A; 244 A B, C D] Parshotam Lal Dhingra vs Union of India, ; , State of Orissa vs Rain Narayan Das, ; , R. C. Lacy vs State of Bihar, C.A. No. 590 of 1962 dated 23 10 63, A G. Benjamin vs Union of India , C.A. No. 1341/66 decided on 13 12 66, followed. Madan Gopal vs State of Punjab, [1963] 3 S.C.R. 716, State of Bihar V. Gopi Kishore Prasad, A.I.R. 19 S.C. 689 and Jagdish Mitter V. Union of India, A.I.R. 1964 S.C. 449. referred to. (3) As the High Court had not considered the contention of the respondent based on r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, the matter should be remanded to the High Court for consideration of that question. [244 H]

ON: Criminal Appeal Nos. 335 36 and 523 of 1982. From the Judgment and order dated the 31st of March, 1982 of the High Court of Punjab and Haryana in Criminal Revision No. 977 of 1980. R.L. Kohli, M K. Dua, S.K. Mehta, P.N. Puri and R.C. Kohli for the appellants. S.K. Bagga for the respondents. The Judgment of the Court was delivered by FAZAL ALI, J. In these appeals by special leave four persons, namely, Mohinder Singh, Gurcharan Singh, Bharpur Singh and Jagvinder Singh were tried by the Sessions Judge for offences under Sections 302/34 and 307/34 IPC and also under Section 27 of the . After recording the entire evidence the trial court convicted Mohinder Singh under section 304 IPC sentenced him to 7 years rigorous imprisonment. The other three accused were acquitted by the Sessions Judge. Mohinder Singh filed an appeal before the High Court of Punjab and Haryana against his conviction and sentence. The State Government also filed an appeal against Gurcharan Singh, Bharpur Singh and Jagvinder Singh so far 490 as their acquittal was concerned and against Mohinder Singh so far as his acquittal under Section 302 IPC was concerned. The High Court without making any real attempt to analyse and appreciate the evidence led in support of the prosecution came to a general conclusion that the judgment of the learned Sessions Judge was not in accordance with law and that he had not dealt with some points or omitted to consider some points, and remanded the case back to the trial court for writing a fresh and proper judgment. So far as the acquitted accused were concerned although the appeal was filed by the Public Prosecutor as directed by the State Government yet the High court on its own or perhaps at the instance of the acquitted accused on a petition filed by them held that there was no proper direction by the Government for filing the appeal except in case of Mohinder Singh. There was undoubtedly a direction to the Public Prosecutor to file appeal against acquitted accused as indicated above. The High Court, however, at the instance of the acquitted accused tried to re open the matter in order to find out the manner and various stages through which the sanctioned to file an appeal was chanalised. With due respects to the learned judges we feel that this was not at all proper for the High Court to do. Whenever, a Government seeks opinion it consults various agencies, namely, the Advocate General, Public Prosecutor, Legal Remembrancer and others and thereafter the order is passed by the Government through the Secretary incharge. In the instant case it was not disputed that the Public Prosecutor was directed by the Under Secretary to the Government in charge to file appeal against all the appellants. The High Court, however, seems to have gone deeper into the matter by making a roving inquiry into what had happened when the matter was under consideration of the Government and how things shaped and held after making this roving inquiry, that the authority given to the Public Prosecutor was only in respect of Mohinder Singh and not others. Therefore, the High Court was of the opinion that direction to file appeal against acquitted accused Gurcharan Singh, Bharpur Singh and Jagvinder Singh was non est and hence appeal filed by the State was not properly presented so far as they are concerned. It appears that a clear direction has been given to the Public Prosecutor to file appeal against all the four accused, three of them against acquittal and as regards Mohinder Singh against his acquittal under Section 302 IPC. Having gone through the entire record we are unable to agree with the High Court that there was any interpolation with 491 respect to acquitted accused. It may be that various agencies may A have expressed different views but by and large the final decision taken by the Under Secretary prevailed as a result of which the Public Prosecutor was authorised to file an appeal before the High Court against all the acquitted accused. In such a situation, therefore, the High Court erred in holding that the appeal presented by the State was not properly presented as against the said three accused, and it should have heard the appeal on merits alongwith the care of Mohinder Singh. As we intend to send the case back to the High Court for fresh decision in accordance with law after taking into consideration the fact that the appeal by the State was properly constituted it is not necessary for us to give further details. We might, however, mention that the High Court instead of analysing and appreciating evidence, remanded the case back to the Sessions Judge for writing a proper judgment. In the first place, assuming that the High Court was right in thinking that the judgment suffered from tome infirmities and there were certain facts which were not taken into consideration they would not be grounds remanding the case to the Sessions Court to write a proper judgment. The High Court itself was a final court of facts and it was its duty to satisfy itself regarding the correctness and acceptability of the evidence. Thus, it was entirely open to the High Court to reappraise the evidence once again to consider the facts which may have been overlooked by the Sessions Judge and it should have decided the appeal itself instead of remanding the case to the Sessions Court. It being a moot point, we refrain from expressing any opinion on the question whether the first appellate court of fact can in a criminal case send the case back to the Sessions Court for writing a fresh judgment. The proper order in such a case should be either to decide the case itself or to send it for re trial. The question of re trial does not arise in the view we have taken in this case. We, therefore, allow one Appeal 523 of 1982 and the other appeals in part set aside the order of the High Court and direct to re hear the appeals on merits according to law. We think it proper and expedient in the interest of justice that this appeal should be heard by a different bench of the High Court. N.V.K Appeals allowed.

Appeal against acquittal by state Government to High Court Powers of appellate court What are High court final court of facts Correctness and acceptability of evidence Duty To be satisfied Open to re appraise evidence and decide appeal or order re trial Not proper to remand case to trial court for writing a fresh judgment Proper direction by Government to file appeal Existence of High Court whether competent to go through the sanction file. The four appellants in the appeal were tried by the Sessions Judge for offenses under Sections 302/34 I.P.C. and also under Section 27 of the . The court convicted the first appellant under Section 304 Part I I.P.C. and sentenced him to 7 years rigorous imprisonment and acquitted the others. The first appellant filed and appeal before the High Court and the State Government filed appeals against the acquittal of the other appellants and also of the first appellant 's under Section 302 I. P. C. The High Court came to a general conclusion that the judgment of the Sessions Judge was not in accordance with law and had not dealt with some of the Points raised in the appeals, and remanded the case back to the trial court for writing a fresh and proper judgment. As far as the acquitted accused were concerned although the appeals were filed by the Public Prosecutor as directed by the State Government, the High Court hold that there was no proper direction by the Government for filing the appeals except in the case of the first appellant . Allowing the Appeals to this Court, ^ HELD: Assuming that the High Court was right in thinking the judgment suffered from some infirmity and there were certain facts which were not taken into consideration they would not be grounds for remanding the case to the Sessions Court to writ a proper judgment. The High Court itself was a final court of facts and it was its duty to satisfy itself regarding the correctness and acceptability of the evidence. It was entirely open to the High Court to re appraise the evidence once again to consider the facts overlooked by the Sessions Judge and to have decided the appeal 489 itself instead of remanding the case to the Sessions Court. The proper order in such a case should be either to decide the case itself or to send it for re trial. The question of re trial does not arise in the instant case. The order of the High Court is set aside and the High Court is directed to re hear two appeals on merits according to law. [491D F] 2. Whenever the Government seeks opinion it consults various agencies namely the Advocate General, Public Prosecutor, Legal Remembrancer and others and thereafter the order is passed by the Government through the Secretary incharge. [490E] In the instance cases it is not in dispute that the Public Prosecutor was directed by the Under Secretary to the Government in charge to file appeals against all the appellants. A clear direction had been given to the Public Prosecutor to file appeals against all the four accused and as regards the first appellant against his acquittal under Section 302 IPC. The High Court at the instance of the acquitted accused tried to re open the matter in order to find out the manner and various stages through which the sanction to file an appeal was chanalised. This was not at all proper for the High Court to do. [490E; G; F]

minal Appeal No. 116 of 1973. Appeal by special leave from the judgment and order dated May 28, 1973 of the Punjab and Haryana High Court at Chandigarh in Criminal Writ No. 9 of 1973. B. K. Garg and section C. Agarwala, for the appellant. V. M. Tarkunde, section K. Mehta and R. N. Sachthey, for respondents Nos. 1 and 2. The Judgment of the Court was delivered by ALAGIRISWAMI, J. This is an appeal against the judgment of the High Court of Punjab & Haryana dismissing the appellant 's petition under Article 226 of the constitution of India read with section 491 Cr. P.C. for the issue of a writ in the nature of habeas corpus or any other appropriate writ, order or direction for his production before the Court and to be set at liberty. The appellant is a British citizen. employed in the Accounts Branch. Head Post Office Brimingham and General Secretary of the United Kingdom Akali Dal. He came to India oil 6 11 1972 to attend the Bhog ceremony of 'Sant Fateh Singh who died on 30th October, 1972. He was arrested on 16A 1 1972 in pursuance of an order for his detention under the provisions of sub section (2) of section 3 read with section 3 (1) (a) (i) & (ii) of the . This order was approved by the State Government oil 27 11 1972. The Advisory 664 Board 's report in respect of the detention was made on 4 1 1973 and the State Government confirmed the order of detention on 16 1 1973. The grounds of detention were as follows : (a) That you on 11 11 72 held secret meeting in Gurdwara Rani Bazar Sharifpura, Amritsar at 7.00 p.m. . In the meeting you told them that the Sikhs could not get justice at the hands of Hindus in India. Therefore, it was necessary to secure Home Land for Sikhs by resorting to the use of force as the Bania Government at the Centre could not accept the demand of Sikh Home Land by persuasion or other peaceful means. You further assured them that there was no paucity of funds with U. K. Akali Dal and sufficient amount could be made available which could be spent in the achievement of Home Land on the lines suggested above. You also informed them that your organisation (U.K. Akali Dal) had made , Rs. 50,000/available in India for use for the achievement of the Home Land. You further told them that you could also be receiving sufficient money from your organisation in U.K. in the near future. You further exhorted them to organise the movement in a systematic manner, raising volunteers and setting offices at suitable places in Punjab. You further directed them to collect arms, explosives etc for use for the achievement of the object at the proper time. You further instigated them to create hatred amongst Hindus and Sikhs and cause communal disturbances in Punjab. You also advised them to enlist large number of paid workers who could work as "suicide squads" at the proper time and till then their services could be used in doing propaganda in the villages for creating favorable atmosphere amongst the Sikh masses in support of the creation of Sikh Home Land. (b) That you on 12 11 1972 again addressed a secret meeting in Gurdwara Rani Bazar, Sharifpura, Amritsar at 8.00 p.m. . In this meeting you instigated them that the Sikh community could not survive in India in the present Hindu Raj. Therefore, the Sikhs must secure separate Home Land by force so that they could live with honour and dignity. You further added that Sikhs could only prosper if separate Home Land for Sikhs is achieved. You further instigated them that they would have to make all sorts of efforts including use of arms and indulgence in violence in order to achieve the Home Land. You further exhorted them to enlist the services of young elements in the Sikhs 665 who would work wholeheartedly for the achieve ment of the Home Land and were prepared to make big sacrifices. You further informed them that your Organisation (U.K. Akali Dal) would be prepared to provide them with any amount they would be requiring for organising the movement and for purchasing the arms etc. You further suggested that they should create cells in the Sikh Units of Armed Forces of India and police for enlisting their sympathy and support which would be of great help for the creation of the Home Land. You also instigated them to create hatred amongst the Hindus and Sikhs in order to create tension and communal disturbances which would be great help in achieving their object. (c) That you again on 14 11 1972 addressed another meeting at Jullundur. . In this meeting you told the participants that if the Sikh Home Land was not achieved the Sikhs would be reduced to status of 'Ghasiaras ' and they could not live an honorable life like a free citizen of India and further told them that the "Panth" created by sacrifices of great Gurus would be eliminated. You further instigated them that the Sikhs would have to make all sorts of sacrifices to achieve the Home Land for Sikhs. You also suggested to them that the active workers should propagate the ideology of Sikh Home Land amongst the Sikh masses particularly in youth and students. You further assured them that you would arrange funds for them from U.K. for the purchase of arms which could be used in the struggle for the Home Land. The also suggested that the Sikhs who go to U.K. should be asked to get arms licenses in India and they would be provided arms in U.K. by ' him free of cost. They on return could make use of these arms in the struggle for the Home Land. You also instigated them to create tension amongst the Hindus and Sikhs and cause communal disturbances. You also suggested the participants that they should propagate in the Sikh masses that the Sikhs were being given step motherly treatment in the matter of selection of services in the 'Bania ' Govern ment and to the Sikh agriculturists. AR the participants assured you to work on the lines suggested by you." To complete the narration of facts it is necessary to refer to the proceedings of the Punjab Legislative Assembly on 7 3 1973 in which the Chief Minister of Punjab replying to a representation for the release of the appellant from detention did not mention any of the grounds contained in the order of detention, but sought to justify it by saying that the petitioner was in Pakistan at Nankana Sahib at the time of Guru Nanak 's Birthday in November 1971 alongwith a Pakistani 666 official, that he had been photographed getting down from a Pakistani plane, and that he had made a statement to a newspaper that 'India was a prison house for Sikhs. ' The petitioner had also alleged in his writ petition that when the Prime Minister of India visited England in 1971 the Sikh community residing in the U.K. had staged a .demonstration expressing its concern against the Government of India 's interference in the management of Sikh Gurdwaras of Delhi State by taking over the management of the Gurdwaras and handing over the same to a Board nominated by it from amongst its own henchmen, that the Prime Minister of India was annoyed and irritated on account of this demonstration and the petitioner being one of the foremost organisers of that demonstration incurred the displeasure of the Prime Minister 's partymen and under their direction a false story has been concocted to harass him and to prevent him to return to England to join his service. Nothing was, however, said about this during the course of the arguments. Mr. Garg did not seek to argue nor could he argue that any of the grounds given for the appellant 's detention were vague or irrelevant. It is now settled law that preventive detention is not a punishment for the past activities of a person but is intended to prevent the person detained from indulging in future in activities which may produce the results mentioned in section 3 of the . It is also well settled that the Court will not go into the truth or .otherwise of the facts alleged as grounds of detention. The sufficiency of the grounds for detention is not also a matter which the court will go into. There can also be so doubt that the appellant 's activities detailed in grounds (a) to (c) bring his case squarely within the ambit of sub clauses (i) & (ii) of clause (a) of subsection (1) of ' Section 3 of the . The argument, however, was advanced that in respect of a foreign clause (a) of sub section 3(1) should be read along with clause (b) of that sub section, and if so read an order of detention in respect of ' a foreigner can only be made with a view to regulate his continued presence in India and to making arrangements for his expulsion from India. It was, therefore, urged that as the appellant had made arrangements for his departure to England on 18 12 1972, his detention for purposes other than that of regulating his presence in India or making arrangements for his expulsion from India was illegal. It was also urged that even at this stage the appellant is anxious to go to England and that he would be satisfied if an order is made to take him wider proper escort and put him on a plane leaving for England. We are not impressed with this argument. The power of a State to deal with foreigners committing offenses inside its territory is not ill dispute, The power of a State to detain even a foreigner who is found inside its territory in order to prevent him from indulging in prejudicial activities inside its territory cannot also be questioned. Mr. Garg did not seek to question the power of Parliament to legislate with regard to that subject. But he contended, however, that the power of Parliament in respect of preventive detention is found in Entry 9 of List I, 'Schedule VII of the Constitution. and the power of the Parliament 667 and the State Legislature in entry 3 of the Concurrent list, that clause (b) of section 3(1) of the Will not fall under either of those entries and that only clause (a) will fall within the ambit of that power and the power given by clause (b) can therefore be used only in aid of the power given by cause (a). We are unable to accept this contention either. Clause (a) and clause (b) deal with two different kinds of powers. Under clause (a) the power is given to the State to detain any person, including a foreigner for any of the purposes mentioned in that clause. Under clause (b) power is given to detain a foreigner either for regulating his continued presence in India or for making arrangements for his expulsion irom India. It is within the competence of the detaining authority to exercise the power conferred on it under clause (a) or clause (b). In this case the order of detention is made under clause (a) and therefore clause (b) does not come into picture at all. We are not able to agree with the contention that clause (b) would be beyond the legislative competence of Parliament unless it is interpreted in the manner in which Mr. Garg wants it to be interpreted. It is well established that the various legislative entries should be interpreted in a broad manner and if any legislation could be brought within the ambit of any one or other of the legislative entries the validity of that legislation cannot be questioned. Entry 10, List I, Schedule VH: Foreign Affairs; all matters which bring the Union into relation with any foreign country, would certainly cover clause (b). We may also refer to the which confers much more stringent powers in relation to a foreigner than clause (b). It has not been argued that those powers are not valid or that the is not a valid piece of legislation. We may legitimately presume that the laws of various countries of the world confer similar powers on their respective Governments in relation to foreigners. In Hans Muller of Nurenburg vs Superintendent Presidency Jail, Calcutta & Ors.(1) this Court held that section 3(1)(b) of the , which is exactly similar to clause (b) of section 3(1`) of the , as well as section 3 (2)(c) of the , on which it is based are not ultra vires of the Constitution. It was also held that section 3(1) (b) of the is reason. ably related to the purpose of the Act, namely preventive detention. , inasmuch as the right to expel a foreigner conferred by section 3 (2) of the Foreigners Art on the Central Government and the right to make arrangements for expulsion include the right to make arrangements for preventing any breach or evasion of the order; and the confers the power to use the means of preventive detention as one of the methods of achieving this end. This decision does not mean that section 3 (1) (a) could not be used for the purposes for which it is plainly intended, We are conscious that the whole question at issue in this case is not whether the appellant could be detained in order that he might be expelled but whether he could continue to be detained except for that purpose. In the face of the very clear provisions of section 3 (1 ) (a), (1) 668 we have no doubt on that point. Indeed the Parliament to have specifically contemplated the contingency and provided for it. It is not only in a case where a foreigner wants to continue in India that the power is, available but even where in order to avoid preventive detention he offers to go out of the country. it was urged that to place such an interpretation on this provision would be contrary to Article 51 of the Constitution, that if it all possible the section should be so interpreted as not to conflict with the provisions of Article 51. We see no such contradiction if it is interpreted as we have done. Reliance was placed upon a statement in Starke 's Introduction to International Law (7th Edn.) found at page 348 where it is stated that "Detention prior to explosion should be avoided, unless the alien concerned refuses to leave the State or is likely to evade the authorities. Reference, was also made to Oppoenheim 's International Law (7th Edn.) where at page 631 it is stated that "Just as a State is competent to refuse admission to an alien, so, in conformity with its territorial supremacy, it is competent to expel at any moment an alien who has been admitted into its territory. " It was urged that is the only power which State has in dealing with an alien who had come to a country under a passport which, as was held by Lord Alverstone, C.J. in R.v. Brailsford, (1) is a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual 's protection as a Britsh subject in foreign countries. It was therefore, urged that to detain a foreigner who has come to the country with a passport would be a breach of international amity. It is obvious in this case that the appellant taking advantage of the fact that by race he is an Indian proposed to indulge in activities which are a danger to the integrity and security of this country. The first duty of a state is to survive. To do so it has got to deal with enemies both overt and covert whether they be inside the country or outside. This fact that the appellant if released would go to England and from there continue to indulge in activities prejudicial to the security and integrity of this country is a relevant factor in determining whether he could be detained in this country when he is found in this country. It is not necessary for the purposes of this case to consider whether if the appellant had not come to this country at all and stayed in England and continued to indulge in activities prejudicial to the integrity and safety of this country a detention order could be passed against him and he could be brought to this country. Even persons, whether they are Indian citizens or foreigners. who have committed crimes in this country but have escaped to another country could be brought back only if there are extradition arrangements with the country to which they have escaped and the offence is an extraditable offence. We are aware that there is no law in this country providing for extradition of persons against whom this country would consider it necessary to pass an order for Preventive detention. It is not to be assumed that this country Will indulge in such a useless, and pointless exercise. But that is quite different from saying that there cannot be (1) 669 a law in this country providing for such detention. But if such a person happens to come to this country we presume he can be detained. We do not accept the argument that a person like the appellant could be detained only if it is apprehended that if not detained he would indulge in prejudicial activities in this country and not if his activities are outside this country even though they may have a prejudicial effect on this country. Take the case of a person acting prejudicially to the security of a State in this country while residing in another State. We have no doubt that he can be detained by the former State. The same analogy applies to this case. International Law does not seem to deal with the case of nationals of one country acting in that country to the prejudice of the security and integrity of another country and whether anything could be done about them. To allow a person like the appellant to go bac k to England at his request in spite of the certainty that while in England he will continue to indulge in activities prejudicial to the security and integrity of this country would be like the action of some foolish people who take a rat caught in a trap in their house to the road and release it. It was urged that only where the grounds of detention were based on facts which can be held to amount to an offence either in India or in a foreign country for which he could be punished could he be detained. We are not able to appreciate the import of this argument. As is well known, preventive detention is not a punishment for an offence. To accept the argument on behalf of the appellant would make the grounds given in section 3(1) of the meaningless. Take for instance action prejudicial to the relations of India with foreign powers. As far as we are aware, there is no law enabling anybody in India to be punished for acting in a mannerprejudicial to the relations of India with foreign powers. it cannothowever be argued that detention on that ground is not permissible. Take again the case of activities prejudicial to the Defence of India. For the present of course, we have the Defence of India Act still in force. Let us assume a period when it was not in force, does it mean that a person acting in a manner prejudicial to the defence of India cannot be detained even though there is no law dealing with that question. That is why the , which was passed when there was no war and no emergency, provided for detention on the same grounds as in . In the absence of a law dealing with that question, naturally enough the will have to decide whether the activity for which a person is detained is one prejudicial to the defence of India; so also an activity prejudicial to the security of India. Defence of a country or the security of a country is not a static concept. The days are gone by when one had to worry about the security of a country or its defence only during war time. A country has to be in a perpetual state of preparedness. Eternal vigilance is the price of liberty. So it is that the founding fathers with considerable wisdom and foresight provided for laws for preventive detention and the limitations thereon mentioned in Article 22 of the Constitution. Preventive detention is, of course, an anthema to champions of individual liberty. But times being what they are, the Constitution makers in their wisdom have 670 provided for it. It is not necessary to give further examples to show that prejudicial activities contemplated under section 3(1) of the are not necessarily activities prohibited or made punishable by a specific provision of law. The cases relied upon to support the contrary proposition should be confined to the facts of those cases. The only other question that remains to be dealt with is the one that arises out of the statement of the Chief Minister of Punjab in the Legislative Assembly on 7 3 1973. The argument is that the Chief Minister 's reply shows that the, appellant has been detained and is, continued to be detained, not for the reasons which were intimated to him in the form of grounds of detention but really for the reasons mentioned in the Assembly and the detention is therefore, bad. It is pertinent to remember in this context firstly that the order for the detention of the appellant was made by the District Magistrate of Amritsar. He could not have known of the activities of the appellant which the Chief Minister mentioned in the Assembly. Secondly, the approval by the Government of Punjab of the appellant 's detention was made on 16 1 1973. There. is nothing to show that on that day the Government of Punjab knew of the matters which the Chief Minister brought up in the Legislative Assembly on 7 3 1973, and the detention was approved by the Government only for those reasons. We arc not prepared to assume, as was urged on behalf of the appellant, that the three matters mentioned in the Chief Minister 's speech should, have come to the notice of the Indian High Commission as soon as they took place and that they should have alerted the Punjab Government at once. There is no warrant for such an assumption. Except that one of the activities is said to be in 1971, we do not even know about the dates of the others. Moreover, the Chief Minister 's reply was in answer to the demand of the Akali Dal Party for the appellant 's release. The grounds of appellant 's detention must have been known to them. The Chief Minister should, therefore, have been giving them additional information which came to his knowledge subsequently. We are not, therefore, prepared to assume that the grounds for approval of the appellant 's detention were not the same grounds on which he was detainedbut some others, and therefore malice in law has been established. Furthermore, by a Presidential order Articles 14, 19 and 22 of theConstitution have been suspended during the subsistence of the Proclamation of Emergency. This contention is based on decisions of this Court interpreting Article 22. They are, therefore, irrelevant in considering a petition under section 491 Cr. We see no merit in the points raised on behalf of the appellant. The appeal is dismissed.

The appellant, a British citizen, was detained under section 3(2) read with section 3 (1) (a) (i) and (ii) of . The grounds of detention were that he was engaged in subversive activities by instigating and creating hatred between the Hindus and Sikhs and by calling upon the Sikhs to establish a separate homeland by resorting to violent methods. In reply to ,I representation by the Akali party for the release of the appellant from detention the Chief Minister of Punjab stated in the State Assembly that the appellant was in Pakistan in November. 1971 alongwith a Pakistani official, that he had been photographed getting down from a Pakistani plane, and that he had made a statement to a newspaper that 'India was a prison house for Sikhs; but, he did not mention any of the grounds contained in the order of detention. The appellant 's petition for the issue of a writ of habeas corpus on the ground that he had made arrangements to leave the country was dismissed by the High Court. Dismissing the appeal to this Court, HELD : Clauses, (a) and (b) of section 3(1) of the deal with two different kinds of powers. Under clause (a) power is given to the State to detain any person including a foreigner for any of the pur poses mentioned therein and under el. (b) power is given to detain a foreigner either for regulating his continued presence in India or for making arrangements for his expulsion from India. It is not only in a case where a foreigner wants to continue in India that the power to detain under el. (a) was available but it is available even where, in order to avoid preventive detention, the foreigner offers to go out of the country. [667 B C] (2)It is not correct to say that el. (b) is beyond the legislative competence of Parliament, and, that, therefore, the order under el. (a) could only be made with a view to regulate the presence of the appellant in India and not when the appellant wanted to leave India. It is well established that various legislative entries should be interpreted in a broad manner and if any legislation could be brought within the ambit of any one or other of the legislative entries the validity of the legislation cannot be questioned. Entry 10, List I, Schedule VII to the Constitution deals with foreign affairs and all matters which bring the Union into relations with a foreign country, would certainly cover el. Therefore, it is within the competence of the detaining authority to exercise the power conferred on it either under el. (a) or. [667 C D] (3)The decision of this Court in Hants Muller of Nurenburg vs Superintendent, Presidency fail, Calcutta that section 3(1)(b) of Preventive Detention Act which is exactly similar to section 3 (1) (b) of the conferred power to use the means of preventive detention as one of the methods of achieving expulsion of a foreigner does not mean that section 3 (1) (a) of the cannot be used for the purpose for which it is plainly intended. [667 E F] (4)The appellant, taking advantage of the fact that by race he is an Indian, proposed to indulge in activities which were a danger to the integrity and security 663 of tile country. The first duty of the State is to survive. To do SO it had got to deal with enemies both overt and covert whether they be inside the country or outside. The fact that the appellant, if released, would go to England and from there continue to indulge in activities prejudicial to the security and integrity of this country was a relevant factor in determining whether he could be detained when he was found in this country. It is true that there is no law in this country providing for extradition of persons against whom this country would consider it necessary to pass an order for preventive detention. But if such a person hap pened to come to this country he could be detained. It is not correct that a person like the appellant could be detained only if it was apprehended that if not detained he would indulge in prejudicial activities within the country. [669 E F, H] (5)Preventive detention is not a punishment for an offence. To accept the argument of the appellant that only where the grounds of detention were based on facts which could be held to amount to an offence either in India or in a foreign country, that he could be detained would make the grounds given in section 3(1) of the , meaningless. Preventive detention is an anathema to champions of individual liberty, but times being what they are, the Constitution makers in their wisdom have provided for it in article 22. In the absence of a law dealing with the matter the courts will have to decide whether the activities for which a person was detained was one prejudicial to the defence and security of India. [669 D E,H] (6)The District Magistrate who made the order of detention could not have known of the activities of the appellant which the Chief Minister mentioned in the Assembly. Moreover, the Chief Minister 's reply was in answer to a demand of the party for the appellant 's release. The grounds of the appellant 's detention must have been known to them. The Chief Minister was, therefore, only giving them additional information which came to his knowledge subsequently. There fore, it could not be contended that the grounds for approval of the appellant 's detention were not the same grounds on which he was detained but some others, Hence no malice in law has been established. [670 C, E, F]

Appeal Nos. 252 and 253 of 1958. Appeals by Certificate and special leave from the judgment and order dated August 5, 1955, of the former Andhra High Court in Writ Appeal No. 13 of 1955. AND VICE VERSA D. Narsaraju, Advocate General for the State of Andhra Pradesh, D. Parsanna Kumari, P. V. R. Tatachari and P. D. Menon., for the, appellant (In C. A. No. 252 of 58) and Respondent No, 1 (In C. A. NQ 253 of 58). 175 P. Ram Reddy, for the the appellants (In C. A. No. 253 of 58) and Respondent No. 1 to 3 (In C. A. No. 252 of 58). A. V. Vishwanatha Sastri and K. R. Choudhri, for the respondent No. 2 (In C. A. No. 253 of 58). April 2. WANCHOO, J. These are two connected appeals arising out of the same judgment of the, Andhra Pradesh High Court. The main appeal No. 252 is by the State of Andhra Pradesh while the other appeal No. 253 is by Duvvura Balarami Reddy and others. We shall dispose of them by this common judgment and will hereinafter refer to the State of Andhra Pradesh as the appellant and Duvvuru Balarami Reddy and others at the respondents. The brief facts necessary for present are these. The respondents had filed a writ petition for the issue of a writ in the nature of mandamus or any other ap propriate writ directing the appellant to give permission to the respondents to carry on mica mining operations in survey No.49/1 in the village of Ananthamadugu in Rapur Taluk of Nellore district subject to the respondents executing as agreement in the manner provided under the Mineral Conces sion Rules, 1949 (hereinafter referred to as the Rules) and conforming to the conditions mentioned therein. The case of the respondents was that they had obtained leases for mica mining purposes from various co owners in the shrotriem village of Ananthamadugu on March 24, 1952. Thereafter on May 27, 1953, this village was notified under the Madras Estates (Abolition and Conversion into Ryotwari) Act, No. XXVI of 1948, (hereinafter referred to as the Act) and the interest of the shrotriem owners was taken over by the appellant. The leases granted to the respondents were for a period of one year and one of the terms provided that the lessors were bound to extend and renew the period 176 of lease for such period as may be desired by the lessess subject to the Rules. After the estate was taken over, the question arose whether the leases were enforceable against the Government under s.20 "1 of the Act. In November 1953, the Manager of Estates, appointed on behalf of the Government, held that the leases were enforceable against the Government. This order was confirmed by the Collector of Nellore. Thereupon there was a revision petition by one of the co owners of the shrotriem who was not a party to the leases before the Board of Revenue. The respondents also applied to the Government for permission to work the mines. The Government however did not grant such permission. The respondents contended that the Government had no right to withheld permission to work the mines. Therefore, the writ petition was filed asking for the issue of a writ in the nature of mandamus or any other appropriate writ directing the appellant to give permission to the respondents to carry on mica mining in accordance with the leases. The petition was opposed on behalf of the appellant and the main contention on its behalf was that the village in question being a shrotriem inam village there was no presumption that the inam grant included the grant of sub soil rights also to the shrotriemdars. Therefore, the respondents could not claim any rights higher than these of their lessors. In effect, the appellant had contended that the lessors had no rights to the minerals and therefore the leases even if not void within the meaning of s.20 of the Act would not confer any rights on the respondents to claim as a matter of right the grant of permission to work the mines from the appellant and that it was entirely within the discretion of the State whether to grant a mining lease or not in accordance with the Rules. It was also stated in that the revision filed before the Board of Revenue had been stayed as the Points 177 raised before the Board were covered by the questions involved in the writ petition. On these pleadings the main question that arose for decision was whether the shrotriemdars had any rights in the minerals at all and were entitled to grant leases thereof If the shrotriemdars had no right in the minerals the grant of lease by them would be of no value and would not entitle the respondents to claim a mining lease under the Rules from the appellant as a matter of right. The learned Single Judge who heard the writ petition came to the conclusion that there was nothing to show that the inam grant in the present case covered the right to minerals. In consequence, it was held that the respondents did not get any rights under the said leases to the minerals. The learned Judge then considered the other points raised in the petition with which we are however not concerned and eventually dismissed it. The respondents went in appeal to a Division Bench of the High Court, and the appeal court seems to have held on a review of the various,standing orders of the Board of Revenue of the composite State of Madras that the State was only entitled to impose a royalty on minerals taken out by the shrotriem inamdar. It was pointed out that this seemed to be in accordance with common sense as the "grantee is entitled to the surface rights and the grantor to the sub soil rights and as the latter rights can only be exercised by entering upon the surface. it is only natural and just that they should share what is produced by working the mine, since one cannot enter upon the land, as he has no right to do so and the other cannot work the mine, as he has no right to the land". This would seem to suggest that the appeal court held that the sub soil right,,; belonged to the State and not to the inamdars; but because of the difficulty that arose on account of 178 the surface rights being in the inamdar and sub soil rights being in the State, it apparently head that the inamdar and the Government should share what is produced by working the mine. Finally, however, the appeal court dismissed the appeal on the ground that the period of one year for which the leases had been granted had expired and the period of renewal which the respondents could get under the Rules also had expired before the decision of the appeal court. It relied in this connection on the decision of this Court in K. N. Guruswamy vs The State of Mysore (1) : but as the respondents had failed on account of the expiry of time they were allowed their costs. This was followed by an application by the State for a certificate which was granted, and that is how the State 's appeal has come up before us. As for the appeal by special leave by the respondents, they contend that the decision being in their favour on the merits, the High Court should have ordered the State to grant them a lease even though the period fixed in the original leases and the period of renewal permissible under the Rules had expired. The main question therefore that fails for decision in these appeals is whether shrotriemdars can be said to have rights in the minerals. This matter has been the subject of consideration by the Madras High Court on a number of occasions and eventually the controversy was set at rest by the decision of the Judicial Committee in Secretary of State for India in Council vs Srinivasa Chariar (2) That case came on appeal to the Judicial Committee from the decision of the Madras High Court in the Secretary of State for India in Council vs,. Sreenivasa Chariar (3). The controversy before the Madras High Court was with respect to a shrotriem inam which was granted by the Nawab of Carnatic (1) ; (2) (1920) L.R. 48 I. A. 56. (3) Mad. 179 in 1750 and had been enfranchised by the, British Government in 1862. The inamdar started quarrying stones in the land granted to him and '. the Government claimed that it had a right to levy royalty or seigniorage fee on stones quarried by the inamdar. The inamdar contended on the other hand that an enfranchised inam was exactly. in the same position as a zamindari estate under the permanent settlement and that he was entitled to the entire sub soil rights and the Government was not entitled to levy royalty or seigniorage fee on stones quarried by him. The High Court held that under the terms of the grant, the grantor conveyed all that the grantor had in the. soil including sub soil rights and therefore it was not open to the Government to levy any royalty or seigniorage fee on stones quarried by the inamdar. In effect, the decision of the High Court negatived the claim of the Government to sub soil rights, for the Government could only levy royalty or seigniorage fee if it bad sub soil rights and the inamdar had no such rights. This decision was taken in appeal to the Judicial Committee as already indicated above, and the controversy between the parties, was that the inamdar claimed a decree establishing his full rights to the said village to the rocks and hills within its boundaries. The State on the other hand while admitting that there had been an inam grant of the village to the inamdar contended that there was no conveyance of the rights to minerals in the village. The Judicial Committee held that the grant of a village in inam might be no more than an assignment of revenue, and even where there was included a grant of land, what interest in the land pawed must depend on the language of the instrument and the circumstances of each case. The Judicial 'Committee also considered the standing orders of the Board of Revenue of 1890 and 1907 ,which have been referred to by the appeal court in 180 the judgment under appeal. This decision thus establishes that the mere fact that a ' person is the holde 'r of an inam grant would not by itself be enough to establish that the inam grant included the grant of sub soil rights in addition to the surface rights and that the grant of sub soil rights would depend upon the language used in the grant. If there are no words in the grant from which the grant of subsoil rights can be properly inferred the inam grant, would only convey the surface rights to the grantee, and the inam grant could not by itself be equated to a complete transfer for value of all that was in the grantor. In particular, the Judicial Committee stressed the use of the words "the produce of the seasons each year" used in the grant to show that, only the surface rights were granted in that case. It is not disputed that eversince the decision of the Judicial Committee in Srinivasa Chariar 's case(1) that has been the law with respect to sub soil rights of inamdars as distinct from zamindars under. the permanent settlement. The Boards standing orders of 1890 and 1907 to which the appeal court has referred in its judgment were also considered by the Judicial Committee and it is now too late in the day to use them to find out the rights of the inam dars and the Government in the minerals under the soil. As the decision of ' the Judicial Committee, shows, the standing orders of the Board of Revenue themselves show how the views of the Government changed from time to time on this question. , The older view seems to have been that the sub soil rights were in the inamdars but from 1907 at any rate the Government has taken the view that. sub soil rights are in the Government unless there: is anything in the grant to the contrary. It is this later view which was upheld by the Judicial, Committee in Srinivasa Chariar 's case(1).and this view has ever since prevailed as to the rights of the Government in the minerals under the soil in the case of (1) (1920) L.R.48 I.A. 56. 181 inams. We are unable to see bow this decision as to the rights of the Government to the minerals under the soil can be distinguished on the ground that the decision dealt only with the question of royalty. It is obvious that the Government could charge royalty only if it had the right to the minerals under the soil and not the inamdars. What therefore we have to see is whether on the terms of the grant in this case the shrotriemdars can be said to have been granted the sub soil rights also. So far as, this matter is concerned, here does not seem to have been a serious controversy in the High Court and it does not appear that the respondents contended that under the term$ of the grant to the shrotriemdars the latter were entitled to sub soil rights. We have already referred to that part of the judgment of the appeal court which suggests that ' even the appeal court was of the view that the subsoil rights were in the Government in this case and the surface rights were in the shrotriemdars. The orioinal grant is not available and all that we have is the inam fair register of 1861 and all that is stated in that register is that the grant is for the personal ad vantage of the holder. There is nothing therefore in the inam fair register to show that the grant included the grant of sub soil rights. It is however urged on behalf of the respondents that the grant included Poramboke, and from the fact that Poramboke was also included it should be inferred that mere surface rights were not the subject matter of the grant. Reliance in this connection has been placed on the decision of the Judicial Committee in Secretary of State vs Krishna Rao. The dispute in that case related to levy of water cess under the Madras Irrigation Cess Act, .(No. 7 of 1865). The Judicial Committee pointed out that the inam grant in that case included not only dry, wet. and garden land but also poramboke (1) (1945) L.R. 721.A. 211 182 i.e. unculturable land. This was held to indicate that full proprietary rights were granted and therefore the Government could not charge any water cess. It is urged for the respondents that this case shows that where poramboke is also granted, the grantee gets all the rights including the sub soil rights in full proprietorship. It should however be remembered. that the dispute in that case was whether the inamdar was entitled to free irrigation from water sources lying in the shrotiem village by virtue of the grant or whether the grantor could levy a cess under the Madras Irrigation Cess Act. There was no dispute as to the sub soil rights 'in that case, the dispute being confined to surface rights relating to water. The Government contended in that case that the grant to .the inamdar was only of the melvaram or the right of the revenue from the lands. while the respondent 's contention was that the grant I carried not only the meraram but also the proprietary interest in the land itself and therefore the Government had no right to levy the irrigation cess. It was in that connection that the Judicial Committee held that the grant of poramboke i. e. unculturable land, was one of the factors that indicated that it was not a mere grant of melvaram but full proprietary right. It is remarkable however that though the Judicial Committee came to the. conclusion in that case that full proprietary right had been granted, it referred to the earlier decision in Srinivasa Chariar 's case during the course of the .judgment. This later decision therefore in our opinion cannot be read in such a way as to lay down that wherever poramboke is included in the grant, a presumption must be drawn that the inam grant included sub soil rights also all that may be possible to infer by the inclusion of poramboke on the basis of this decision is that all the surface rights were granted and not merely the melvaram as 183 was contended in that case. The fact therefore that in the inam fair register in this case the grant includes poramboke would not by itself ' establish that sub soil rights were also included in the grant. So far as sub soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that sub soil rights were also included therein. We have already remarked that the original grant in this case is not available and we have only the inam fair register to go ' by. There can be no doubt therefore on the facts of this case that the learned Single Judge was right in holding that the grant of sub soil rights to shrotriemdars is not established. The appeal court also does not appear to differ from this view of the learned Single Judge. Once the conclusion is reached that sub soil rights were not granted to the shrotriemdars it seems to us that the inference is plain ' that it was not open to the shrotriemdars to grant any lease of minerals lying under the soil to any one. Therefore, the leases granted by the shrotriemdars to the respondents in this case would be of no legal effect in conveying any right to them in the minerals under the soil. In the circumstances the respondents cannot put forward the leases in their favour to claim a mining leases under the Rules. With respect, we have not been able to understand how the difficulty which may arise in practice, on account of the sub soil rights being in the Government and the surface rights being in the shrotriemdars, in the working of the mines would make the shrotriemdars shares in the sub soil rights and therefore entitled to grant a lease of the sub soil rights. Whatever may have been the practice in the past and howsoever the Government may have been getting over the practical difficulty in the past would not confer any right to the minerals upon the shrotriemdar so as to enable 184 him to grant a mining lease to; any one. It follows therefore that the mining,, leases granted in this case were granted by persons who had no right to the minerals and therefore confer no rights on the respondents to claim at; of right from the Government that they should be granted a mining lease under the Rules. In view of the above decision appeal No. 252 must be allowed and appeal No. 253 must fail. We therefore allow appeal No. 252 and setting aside the order of the appeal court dismiss the writ petition with costs to the State throughout. Appeal No. 253 is hereby dismissed but in the circumstances parties will bear their own costs. C. A. No. 252 of 1958 allowed. C. A No. 253 if 1958 dismissed.

The appellants were convicted of offences under section 302 read with section 34 and section 201 read with section 34 Indian Penal Code by the Sessions judge. On appeal to the High Court there was a difference of opinion between the two judges who heard it and the case was referred under section 429 Code of Criminal Procedure to a third judge. The third judge upheld the con victions. The appellants contended that where a case was referred under section 429, the opinion of the judge acquitting the accused had to be treated as a judgment of acquittal and that the third judge must consider all the reasons given by the acquitting judge and his judgment should indicate the reasons for disagreeing with the opinion of the acquitting judge. The appellants further contended that there were certain circumstances proved by the evidence on the record which showed that the eye witnesses could not be relied upon. Held, that there was nothing in section 429 which required the third judge to whom the reference was made to act as though he was sitting in appeal against acquittal. He had to consider the opinion of the two differing judges and to give his own opinion. Held, further (per Kapur and Das Gupta JJ. Dayal. J. contra) that the judgment of the High Court suffered from such infirmities as placing the onus of proof of certain facts on the appellants and using of inadmissible evidence. The case was full of so many inconsistencies and improbilities and peculiarities that it made it difficult to rely upon the testimony of the eye witnesses and to hold that the case against the appellants was established beyond reasonable doubt. Per Dayal J. The circumstances urged by the appellant did not make out a case for interference with the findings of facts of the High Court.

Appeal No. 498 of 1966. Appeal by special leave from the order dated July 10, 1964 of the Industrial Tribunal Delhi in O.P. No. 79 of 1962. Bishan Narain, P.C. Bhartari, J.B. Dadachanji and C.L. Chopra, for the appellant. H.R. Gokhale, Janardan Sharma and T.R. Bhasin, for the respondent. The Judgment of the Court was delivered by Bhargava, J. The Central Bank of India Ltd., New Delhi has flied this appeal, by special leave, challenging an order of the Industrial Tribunal, Delhi, refusing to accord approval to an order of dismissal of the respondent, Prakash Chand Jain, under section 33(2)(b) of the (hereinafter referred to as "the Act"). A charge sheet, containing two charges was served on the respondent on 21st July, 1961 in order to initiate formally an enquiry for the purpose of taking disciplinary ,action against him. The two charges flamed were as follows : "1. On 14 1 1960, a sum of Rs. 30,400/ was paid to Mr. P.C. Jain by the Assistant Cashier Mr. Nand Kishore out of the cheque No. 43004 dated 14 1 60 drawn by Messrs Mool Chand Hari Kishan for Rs. 63,000/ . Taking this money Mr. P.C. Jain on the same day i.e. 14 1 1960 left for Muzaffarnagar in company of some persons to retire the following bills drawn by M/s. Gupta Iron Industries :Naya Bazar LBC 3 drawn on Puran Chand . Rs. 5,100/ Naya Bazar LBC 5 drawn on Hiralal Shyam. Rs. 4,950/ Thus it was within the knowledge of Shri P.C. Jain that the bills of Messrs Gupta Iron Industries were drawn on bogus firms and that those were retired by drawer 's representative who accompanies Mr. P.C. Jain to Muzaffarnagar. Instead of reporting, such serious matters to higher authorities, Mr. P.C. Jain claims that he had never visited Muzaffarnagar. Mr. P.C. Jain encashed on 25 2:60 cheque No. 400506 for Rs. 46,000/ from the United Bank of India Ltd., Chandni Chowk and brought cash to Naya Bazar after 11.30 a.m.i.e. after the time for presenting of the clearing cheques at the State Bank of India. To cover the misdeeds of Mr. Shiv Kumar Sharma the then 737 Sub Agent of Naya Bazar Office, Mr. P.C. Jain Treasurer 's representative stated in his explanation dated 16 2 1961 that cash was received at the office at about 11 a.m.i.e. before the clearing time. The above acts of Mr. Jain were prejudicial to the interests of the Bank as defined in ' paragraph 521 4(J) of the Sastry Award and amount to gross misconduct. The inquiry will be held on 12 8 1961 at Chandni Chowk Branch at 10.30 a.m. by Mr. P.B. Tipnis, Chief Agent, Agra." Subsequently, an enquiry was held by Mr. Tipnis, one of the senior Officers of the Bank. The Enquiry Officer, after recording evidence tendered on behalf of the Bank as well as the evidence given by the respondent, recorded his findings holding that both the charges were proved against the respondent and, basis, came to the view that the actions of the respondent were prejudicial to the interests of the Bank and amounted to gross misconduct, so that he proposed to award the punishment of dismissal from the Bank 's service. The respondent was given a week 's time to show cause against this proposed punishment and, thereafter, an order was made dismissing the respondent with effect from 18th July, 1962 and a month 's wages were paid to him in accordance with the provision contained in section 33(2)(b) of the Act. Since an industrial dispute was pending before the Industrial Tribunal, Delhi, an application under section 33(2)(b) of the Act was made requesting the Tribunal to accord approval to this order of dismissal. The Tribunal, when dealing with this application, held that the enquiry, which had been held by the Enquiry Officer, was fair and was not vitiated by any irregularity or unfairness, but refused to accord approval on the ground that the findings accorded by the Enquiry Officer were perverse and were not based on evidence inasmuch as most of the findings were the result of mere conjecture on behalf of the Enquiry Officer. It is this order of the Tribunal that has been challenged in this appeal. Learned counsel appearing for the appellant Bank urged that the Tribunal, in refusing to accord approval and in disregarding the findings recorded by 'the Enquiry Officer, exceeded its jurisdiction conferred by section 3 '3(2) (b) of the Act. It was further ' urged that, when the Tribunal found that. the enquiry was fair, the Tribunal had no jurisdiction to go into the question whether the findings of fact recorded by the Enquiry Officer were correct and could not sit in judgment over those findings like a Court of Appeal. The Tribunal should have accepted those findings and only examined whether a prima facie case was made out for ' according an approval. If the Tribunal had proceeded in accord 738 ance with this principle, there. would have been no justification for the Tribunal to refuse to approve the order of dismissal. The jurisdiction and functions of a Tribunal under section 33(2) (b) of the Act were 'explained by I this Court in Bangalore Woolien, Cotton and Silk Mills Company Ltd. vs Dasappa (B) (Binny Mills Labour Union) and Others(1), where it was held : "The settled position in law therefore is that permission should be refused if the tribunal is satisfied that the management 's action is not bona fide or that the principles of natural justice have been violated or that the materials on the basis of which the management came to a certain conclusion could not justify any reasonable person in coming to such a conclusion. In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workman 's misconduct that the management has not acted bona fide. A finding that the management has acted bona fide will ordinarily not be reached if the materials are such that a reasonable man could not have come to the conclusion which the management has reached. In every case, therefore, it. would be proper for the tribunal to address itself to the question, after ascertaining that the principles of natural justice have not been violated, whether the materials on which the management has reached a conclusion adverse to the workman, a reasonable person could reach such a conclusion. " The point was again considered by this Court in the case of Lord Krishna Textile Mills vs Its Workmen(2) and it was held : "In view of the limited nature and extent of the enquiry permissible under section 33 (2)(b) all that the authority can do in dealing with an employer 's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by section 33(2)(b) and the proviso are satisfied or not. Do the standing orders justify the order of dismissal ? Has an enquiry been held as required by the standing order ? Have the wages for the month been paid as required by the proviso '?; and, has an application been made as prescribed by the proviso ?" (1) [1960] II L.L.J. 39. (2) ; 739 The Court then proceeded to consider whether the Tribunal in that case had acted rightly, and noted that one had merely to read the order to be satisfied that the Tribunal had exceeded its jurisdiction in attempting to enquire if the conclusions of fact recorded in the enquiry were justified on the merits. The Tribunal did not hold that the enquiry was defective or the requirements of natural justice had not been satisfied in any manner. The Court then indicated that the Tribunal had proceeded to examine the evidence, referred to some discrepancies in the statements made by witnesses and had come to the conclusion that the domestic enquiry should not have recorded the conclusion that the charges had been proved against the workmen in question. It was then held that, in making these comments against the findings of the enquiry, the Tribunal clearly lost sight of the limitations statutorily placed upon its power and authority in holding the enquiry under section 33(2)(b). The Court then indicated the principle applicable by saying: "It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which 'is. entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under section 33(2)(b). It is conceivable that even in holding an enquiry under section 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence. " These decisions make it clear that, when an Industrial Tribunal is asked to give its approval to an order of dismissal under section 33(2) (b) of the Act, it can disregard the findings given by the Enquiry Officer only if the findings are perverse. The test of perversity that is indicated in these cases is that the findings may not be supported by any legal evidence at all. This principle was further affirmed in a different context in State of Andhra Pradesh V.S. Sree Rama Rao, (1), where this Court had to consider whether a High Court, in a proceeding for a writ under article 226 of the Constitution, could interfere with the findings recorded by departmental authority ill disciplinary proceedings taken against a Government servant, The Court held : (1) ; 740 "But the departmental authorities are, if the enquuiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Art, 226 of the Constitution." In this connection, reference was also made to some cases where this Court has held that a finding by a domestic tribunal like an Enquiry Officer can be held to be perverse in those cases also where the finding arrived at by the domestic tribunal is one at which no reasonable person could have arrived on the material before the tribunal. Thus, there are two cases where the findings of a domestic tribunal like the Enquiry Officer dealing with disciplinary proceedings against a workman can be interfered with,and these two are cases in. which the findings are not based on legal evidence! or are such as no reasonable person could have arrived at on the basis of the material before the Tribunal. In each of these cases, the findings are treated as perverse. It is in the light of these principles that we have to see whether the Industrial Tribunal, Delhi, in the present case, was justified in refusing to accord approval to the order of dismissal which was passed on the basis of the evidence recorded 'by the Enquiry Officer, Mr. Tipnis. We have already reproduced above the charges that were framed against the respondent and we proceed to examine how far the Tribunal was correct in holding that the Enquiry Officer 's findings on these charges were without legal evidence and were based merely on conjecture. The first charge consisted of the following elements : (i) that on 14 1 1960, a sum of 30,400 was paid to the respondent by the Assistant Cashier Nand Kishore out of the amount payable on a cheque drawn by M/s. Mool Chand Hari Kishan for Rs. 63.000; ' (ii) that the respondent left the same day for Muzaffarnagar; (iii) that he left for Muzaffarnagar in company of some persons to retire the bills drawn by M/s. Gupta Iron Industries; (iv) that these bills of M/s. Gupta Iron Industries had been drawn on bogus firms; (v) that these bills were retired by the drawer 's representative who accompanied the respondent to Muzaffarnagar; 741 (vi) that the respondent failed to report these serious matters to higher authorities; and (vii) that the respondent, instead, wrongly claimed that he had never visited Muzaffarnagar. The Tribunal in its Order has held that on all these elements the findings recorded by the Enquiry Officer were perverse, because they were based on hearsay evidence and on conjecture. Learned counsel appearing for the Bank took us through the entire evidence recorded by the Enquiry Officer in order to canvass his argument that these findings recorded by the Enquiry Officer were based on the material before him. We have found that, on two of these points, there was material before the Enquiry Officer which could be held to be legal evidence and, consequently, we have to hold that, on those two points, the Tribunal was incorrect in recording its view that the findings of the Enquiry Officer were defective and could be disregarded by the Tribunal. These two are elements Nos. (ii) and (vii). The finding that the respondent left for Muzaffarnagar on 14 1 1960 was based on the inferences drawn by the Enquiry Officer from the records of the Branch of the Bank in which the respondent was working on that day. The facts found by the Enquiry Officer were that, in the cash receipt book of that date, there were only four entries in the handwriting of the respondent that he made no payments on that day; that, though he was in charge of the entire cash department, he had no knowledge that cash of Rs. 1 sac was brought from the Chandni Chowk Office of the Bank three times during that day; that the Godown Keeper had also verified several vernacular signatures when it was the respondent 's duty only to verify them; and that the cash account of that day was closed by the Godown Keeper instead of the respondent who should have done so if he was in the Bank until the closure of the work on that day. These circumstances were brought to the notice of the Enquiry Officer from the records of the Bank by Management 's witness, J.J. Daver. In our opinion, the Tribunal was incorrect in holding that the Enquiry Officer was acting on mere conjecture when, on the basis of these circumstances, he drew the inference that the respondent had left his work in the Naya Bazar Branch of the Bank on 14 1 1960 after working there for a short time only. Further, the Enquiry Officer in his report mentioned that three witnesses, S: C.L. Chawla, Officer Incharge of the Muzaffarnagar Office of the Bank, Inder 'Sain Jain, Cashier in the Muzaffarnagar Office, and Nihalchand Jain, who was a Clerk in the Muzaffarnagar Office, had stated that they had seen the respondent at Muzaffarnagar Office on 14 1 1960, and relied on their evidence to hold that the respondent did go to Muzaffarnagar on that day leaving his work in the Naya Bazar Office of the Bank at Delhi. The Tribunal criticised the evidence of these three witnesses and 742 came to the view that the Enquiry Officer was not justified in believing these witnesses and in holding on the basis of their evidence that the respondent was in Muzaffarnagar on that day. It is clear that, in adopting this course, the Tribunal exceeded its powers. It was not for the Tribunal to sit in judgment over the view taken by the Enquiry Officer about the value to be attached to the evidence of these witnesses, even though the Tribunal thought that these witnesses were unreliable because of circumstances found by the Tribunal in their evidence. What the Tribunal at this stage did was to interfere with the finding of fact recorded by the Enquiry Officer by making a fresh assessment on the value to be attached to the evidence of these witnesses which was not the function of the Tribunal when dealing with an application under section 33 (2 )(b) of the Act. In these two respects. we find that the Tribunal fell into an error. However, we find that, on the other ingredients of the first charge, the Tribunal was justified in arriving at the conclusion that the findings recorded by the Enquiry Officer Were perverse. The Tribunal gave the reason that these findings were based on hearsay evidence. This view taken by the Tribunal appears to be fully justified. The first and the third elements of the charge relating to payment of the sum of Rs. 30.400 to the respondent by Nand Kishore, and of the respondent leaving for Muzaffarnagar in the company of some persons in order to retire the bills drawn by M/s. Gupta Iron Industries, were sought to be proved before the Enquiry Officer by the evidence of the Internal Auditor, N. N. Vazifdar, but the latter could not give any direct evidence. as he was not present at the time when money was paid to the resplendent or when the respondent left for Muzaffarnagar. He purported to prove these elements of the charge by deposing that a statement was made to him by Nand Kishore to the effect that Nand Kishore had paid Rs. 30,400 to the respondent and that, thereafter, the respondent left for Muzaffarnagar in the company of two persons. The Enquiry Officer accepted this evidence of Vazifdar, but, ignored the. fact that Vazifdar 's evidence was not direct evidence in respect of the elements of the charge sought to be proved, and that Vazifdar was only trying to prove a previous statement of Nand Kishore which, as rightly held by the Tribunal, would amount to hearsay evidence. Nand Kishore himself was also examined as a witness, but, in his evidence, which was admissible as substantive evidence, he made no statement that this sum of Rs. 30,400 was paid by him to the respondent or that the respondent left for Muzaffarnagar in the ' company of some persons to retire the bills drawn by M/s. Gupta Iron Industries. In fact. Nand Kishore even went further and denied that he had made any statement to Vazifdar as stated by Vazifdar. The Enquiry Officer was, of course, entitled to form his own opinion and 743 to believe Vazifdar in preference to Nand Kishore; but, on this basis, the only finding that the domestic tribunal could record was that Nand Kishore 's statement given before him was incorrect and that Nand Kishore had made statements to Vazifdar as deposed by Vazifdar. Those statements made by Nand Kishore to Vazifdar could not, however, become substantive evidence to prove the correctness of these elements forming part of the charge. It is in this connection that importance attaches to the views expressed by this Court in the cases cited above, where it was pointed out that a finding of a domestic tribunal may be perverse if it is not supported by any legal evidence. It is true that, in numerous cases, it has been held that domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. In fact, learned counsel for the appellant Bank was unable to point out any case at all where it may have been held by this Court or by any other Court that a domestic tribunal will be justified in recording its findings on the basis of hearsay evidence without having any direct or circumstantial evidence in support of those findings. In the case of Khardah Co. Ltd. vs Their Workmen(1), this aspect was noted by this Court as follows : "Normally, evidence on which the charges are sought to be proved must be led at such an enquiry in the presence of the workman himself. It is true that in the case of departmental enquiries held against public servants, this Court has observed in the State of Mysore vs S.S. Makapur(2) that if the deposition of a witness has been recorded by the ' enquiry officer in the absence of the public servant and a copy thereof is given to him, and an opportunity is given to him to cross examine the witness after he affirms in a general way the truth of his statement already recorded, that would conforms the requirements of natural justice; but as has been emphasised by this Court in M/s. Kesoram Cotton Mills Ltd. vs Gangadhar(3) these observations must be applied (1) ; at pp. 512 13. (2) ; (3) ; 744 with caution to enquiries held by domestic tribunals against the industrial employees. In such enquiries, it is desirable that all witnesses on whose testimony the management relies in support of its charge against the workman should be examined in his presence. Recording evidence in the presence of the workman concerned serves a very important purpose. The witness knows that he giving evidence against a particular individual who is present before him, and therefore, he is cautious in making his statement. Besides, when evidence is recorded in the presence of the accused person, there is no room for persuading the witness to make convenient statements, and it is always easier for an accused person to cross examine the witness if his evidence is recorded in his presence. Therefore, we would discourage the idea of recording statements of witnesses ex parte and then producing the witnesses before the employee concerned for cross examination after serving him with such previously recorded statements, even though the witnesses concerned make a general statement on the latter occasion that their statements already recorded correctly represent what they stated. " In the case of M/s. Kesoram Cotton Mills Ltd. vs Gangadhar and Others(1) referred to in the quotation above, it was held : "Even so, the purpose of rules of natural justice is to safeguard the position of the person ' against whom an inquiry is being conducted so that he is able to meet the charge laid against him properly. Therefore, the nature of the inquiry and the status of the person against whom the inquiry is being held will have some bearing on what should be the minimum requirements of the rules of natural justice. Where, for example, lawyers are permitted before a tribunal holding an inquiry and the party against whom the inquiry is being held is represented by a lawyer, it may be possible to say that a mere reading of the material to be used in the inquiry may sometimes be sufficient see New Prakash Transport Co. vs New Suwarna Transport Co. (2)] but where in a domestic inquiry in an industrial matter lawyers are not permitted, something more than a mere reading of statements to be used will have to be required in order to safeguard the interest of the industrial worker. Further, we can take judicial notice of the fact that many of our industrial workers are illiterate and sometimes even the representatives of labour union may not (1) ; (2) 745 be present to defend them. In such a case, to read over a prepared statement in a few minutes and then ask the workmen to cross examine would make a mockery of the opportunity that the rules of natural justice require that the workmen should have to defend themselves. It seems to us, therefore, that when one is dealing with domestic inquiries in industrial matters, the proper course for the management is to examine the. witnesses from the beginning to the end in the presence of the workman at the enquiry itself. Oral examination always takes much longer than a mere reading of a prepared statement of the same length and bring home the evidence more clearly to the person against whom the inquiry is being held. Generally speaking, therefore, we should expect a domestic inquiry by the management to be of tiffs kind. " Proceeding further, the Court held : "The minimum that we shall expect where witnesses are not examined from the very beginning at the inquiry in the presence of the person charged, is that the person charged should be given a copy of the statements made by the witnesses which are to be used at the inquiry well in advance before the inquiry begins and when we say that the. copy of the statements should be given well in advance, we mean that it should be given at least two days before the inquiry is to begin. If this is not done and yet the witnesses are not examined in chief fully at the inquiry, we do not think that it can be said that principles of natural justice which provide that the person charged should have an adequate opportunity of defending himself are complied with in the case of a domestic inquiry in an industrial matter." These views expressed by this Court, in our opinion, bring out what was meant when this Court held that findings recorded by an Enquiry Officer must be supported by legal evidence. The evidence, as indicated in these cases, should consist of statements made in the presence of the workman charged. An exception was envisaged where the previous statement could be used after giving copies of that statement well in advance to the workman charged, but with the further qualification that previous statement must be affirmed as truthful in a general way when. the witness is actually examined in the.presence of the workman. Applying this principle to the present case, it is clear that the previous statement made by Nand Kishore to Vazifdar could not be taken as substantive evidence against the respondent, because 746 Nand Kishore did not affirm the truth of that statement when he appeared as a witness and, on the other hand, denied having made that statement altogether. Even though his denial may be false, that fact would not convert his previous statement/into substantive evidence to prove the charge against the respondent when that statement was given to Vazifdar in the absence of the respondent and its truth is not affirmed 'by him at the time of his examination by the Enquiry Officer. This statement of Nand Kishore made to Vazifdar being ignored, it is clear that no other material was available to the Enquiry Officer on the basis of which he could have held that the sum of Rs. 30,400 was paid to the respondent by Nand Kishore and that Nand Kishore, there.after left for Muzaffarnagar in the company of some persons with that money. The fourth element of the charge was that the bills of M/s. Gupta Iron Industries were drawn on bogus firms. We think that the Tribunal is quite correct in its comment that the Enquiry Officer, in holding that the bills were drawn on bogus firms, proceeded to do so without any evidence altogether. In fact, the Enquiry Officer has not referred to any material which was available to him before accepting the allegation against the respondent that the bills had been drawn. on bogus firms. Even in the course of his submissions before us, learned counsel for the Bank was unable to point out any evidence which would support this part of the charge. The only evidence to which learned counsel could refer was the statement of Nihal Chand Jain who said that intimations of the bills were sent to the parties: mentioned in the bills by post, but were received back unserved. Those intimations were not produced before the Enquiry Officer and there is no mention of the reason why the postal authorities returned those intimations. The mere return of the intimations could not possibly lead to the inference that the parties, to whom they were addressed, were bogus. It is quite likely that their addresses there incomplete, so that the postal authorities were unable to trace them. Clearly, in these circumstances, the finding on this point recorded by the Enquiry Officer was without any evidence or material. The same remarks apply with regard to the element of the charge to the effect that the bills were retired by the drawer 's representative who accompanied the respondent to Muzaffarnagar. : 'The Enquiry Officer again does not mention any witness who may have stated that the bills were retired by the drawer 's representative or that representative had accompanied the respondent. The only evidence on this point, to which our attention was ,drawn, was that of T.C. Jain who purported to prove a previous :statement of Inder Sain Jain made to him. According to T.C. 747 Jain, Inder Sain Jain had come to him and told him that Prakash Chand Jain had come with the representative of the drawer to retire the bills, This evidence of T.C. Jain was rightly not relied upon or referred to by the Enquiry Officer, because Inder Sain Jain, when he appeared as a witness before him, did not state, that he had made any such statements to T.C. Jain and, in his examination, he excluded the possibility of his having made that statement. According to Inder Sain Jain 's statement before the. Enquiry Officer, the respondent only accosted him once and bid him "Jai Ram Ji Ki". He had no other talk with him. He also. stated that this happened about two hours after the bills had been retired. Consequently, according to Inder Sain Jain 's statement before the Enquiry Officer, the respondent was not present when the bills were retired and there was no question of the respondent. accompanying the drawer 's representative for retiring the bills. Inder Sain Jain also did not state that the bills were retired by the representative of the drawer. Thus, on this point also, there is no legal evidence on which a. finding could have been recorded against the resrpondent. So far as the sixth element of the charge is concerned, that becomes totally immaterial when it is found that the Enquiry Officer 's findings that the bills were drawn on bogus firms and that they were retired by the drawer 's representative accompanying the respondent are held to have been given without any legal evidence. If the bills are not proved to have been drawn on bogus firms and to have been retired by the drawer 's representative with the aid of the respondent, there was nothing that the respondent was required to convey to higher authorities. So far as the second charge is concerned, we find that, similarly, the principal findings given by the Enquiry Officer are not supported by any legal evidence. The substance of the charge was that the respondent encashed the cheque for Rs. 46,000 ' from the United Bank of India Ltd. and brought the cash after 11.30 a.m., but wrongly stated that he had brought the cash to the Naya Bazar Office of the Central Bank before 11 a.m. The significance of the time we emphasised by the Enquiry Officer because, according to him, 11 a.m. was the clearing time of another cheque of Rs. 15,000 which had been marked as "good for payment" by the then Sub Agent, Shiv. Kumar Sharma and the respondent had to show that cash in respect of the other cheque of Rs. 46,000 had been brought to the Bank at Naya Bazar for deposit in the account of the Drawer of that cheque of Rs. 15,000 so as to justify the endorsement made by the Sub Agent that it was 'good for payment '. We examined the whole record and we are unable to find any evidence at all in support of the fact accepted by the Enquiry Officer that the clearing time was 11 a.m. On the contrary, the only evi 748 dence on this point, which was that of Management 's witness J.J. Daver, was to the effect that the clearing time was 11.30 a '.m. Ignoring tiffs evidence altogether, the Enquiry Officer proceeded to record his findings against the respondent on the basis that the clearing time was 11 a.m. without at all referring to any evidence in support of this fact. The second significant point was as to the time by which the respondent brought the cash in respect of the cheque of Rs. 46,000/ from the United Bank of India Ltd., Chandni Chowk, to his own Central Bank Branch in Naya Bazar. No one gave any ' direct evidence as to the time when the respondent brought the money. The Enquiry Officer has proceeded to hold that the money could not have been brought before 11 a.m. because there is an endorsement on that cheque of Rs. 46 '000/which, according to the Enquiry Officer, shows that cheque was presented for encashment at the United Bank of India Ltd., Chandni Chowk, at 11.15 a.m. This endorsement was also examined by us as it appeared on the photo stat copy of the cheque. The endorsement consists of a number 37 beneath which as noted the time 11.15 a.m. with a line drawn between them. From this endorsement alone, the Enquiry Officer proceeded to infer that this cheque was presented for encashment at 11.15 a.m., even though no evidence at all was given by anyone working in the United Bank of India Ltd., Chandni Chowk, to prove that this endorsement of time of 11.15 a.m. represented the time of presentation of the cheque at that Bank. In fact the Enquiry Officer has not made reference to any evidence at all when holding that this cheque was presented for payment at 11 a.m. at the counter of the United Bank of India. Learned counsel for the Bank, however, referred us to the evidence of J.J. Daver on this point. Darer in this case was discharging a dual function as a witness and as the prosecutor of the case against the respondent for the Bank. In his evidence, Darer stated that this endorsement represented the time when the token was issued to the person encasing the cheque. Later, while prosecuting the case against the respondent on behalf of the Bank, Darer urged before the Enquiry Officer that this endorsement of 11.15 a.m. represented the time of presentation of the cheque and this was noted by the Enquiry Officer in his proceedings. Obviously, the time of presentation of the cheque and the time of issue of 'the token in respect of it would not be identical. In fact, there can be a lapse of an appreciable interval between the two. In spite of this fact, the Enquiry Officer seems to have proceeded on the basis 'of what was urged before him by J.J. Darer while acting as prosecutor, and what was stated in that capacity was not evidence at all. The evidence given by Darer was different and that was not relied upon by the Enquiry Officer. On the face of it, the proper evidence, by which it could have been proved that the cheque was either presented at 11.15 a.m. or that the token in respect of it 749 was issued at 11.15 a.m., could have been obtained if the Bank had cared to examine the person in charge of encashing the cheque at the United Bank of India, Chandni Chowk. Daver was not present when the cheque was presented and he has not explained on what basis he stated in his evidence that this endorsement represented the time when the token was issued. It is clear that, era this charge also on the two crucial points of the time, viz., the clearing time of the cheque of Rs. 15,000/ as well as the time when the second cheque of Rs. 46,000/ was presented for encashment at the United Bank of India Ltd., Chandni Chowk, the Enquiry Officer has recorded findings without those findings being supported by any legal evidence. In these circumstances, it is clear that the Tribunal was fully justified in holding that the findings recorded by the Enquiry Officer on both the charges were perverse in the sense of not being supported by any legal evidence, of course, with the exception of the finding recorded to the effect that on 14 1 1960 the respondent, after doing some work in the Naya Bazar Branch of the Bank, left for Muzaffarrnagar and was seen in Muzaffarnagar on that day. It was to this liraired extent that the first charge only could have been held to have been proved before the Enquiry Officer against the respondent. On this limited proof and on holding that the Enquiry Officer 's findings were correct in respect of this part of the charge only, the Tribunal would be fully justified in withholding its approval of the order of dismissal which was passed by the Bank on the basis that all the elements of both the charges had been proved. The order of the Tribunal refusing to grant approval was, therefore, not vitiated by any error and must be upheld. The appeal fails and is dismissed with costs. G.C. Appeal dismissed.

The respondent was an employee of the appellant. After a domestic inquiry in respect of alleged misconduct he was dismissed. As an industrial dispute was pending an application was made to the Industrial Tribunal under section 33(2)(b) of the . The tribunal held that though the enquiry was fair, the findings of the enquiry Officer were perverse and therefore it did not give its approval the order of dismissal. By special leave the appellant came to this Court, contending that since the enquiry was held to be fair the Tribunal no jurisdiction to interfere with the findings of fact arrived at by the Enquiry Officer. HELD: (i) Earlier decisions of 'this Court make it clear that when in Industrial Tribunal is asked to give its approval to an order of dismissal under section 33(2)(b) of the Act, it can disregard the findings given y the Enquiry Officer only if the findings are perverse. The findings are reverse when either they are not based on legal evidence or they are such as no reasonable person could have arrived at on the basis of material before the domestic tribunal. [739 G 740 C] Bangalore Woolien, Cotton and Silk Mills Company Ltd. vs Dasappa B) (Binny Mills Labour Union) & Ors. [1960] II L.L.J. 39, Lard Krishna Textile Mills vs Its Workmen, ; , State lndhra Pradesh vs section Sree Rama Rao; , , applied. (ii) A domestic tribunal though not bound by the technical rules rout evidence contained in the Indian Evidence Act cannot ignore subsintive rules which would form part of principles of natural justice. The principle that a fact sought to be proved must be supported by statements lade in the presence of the person against whom the enquiry is held nd that statements made behind the back of the person charged are not be treated as substantive evidence, is one of such basic principles which. domestic tribunal cannot disregard. The previous statement of a witness not substantive evidence unless affirmed as truthful by the witness when actually examined in the presence of the workman charged. A finding by the domestic tribunal based not on substantive evidence but on hearsay, is perverse, because hearsay is not legal evidence. [743 C E; 745 Khardah Co. Ltd. vs Their Workmen, ; , State of ysore V.S.S. Makapur; , and M/s. Kesoram Cotton ills Ltd. vs Gangadhar, ; , relied on. (iii) In the present case the findings of the Enquiry Officer were held by the Industrial Tribunal to be perverse as they were not sed on legal evidence and were not justified by the material before m. [749 C E] 736

Civil Appeal No. 2434 of 1977. Appeal by Special Leave from the Judgment and Order dated 4/5th November, 1976 of the Gujrat High Court in S.A. No. 685/69. U. R. Lalit (A.C.),1. N. Shroff and H. section Parihar for the Appellant. section T. Desai, Vimal Dave and Miss K. Mehta for the Respondent. The Judgment of the Court was delivered by, KOSHAL, J. The facts giving rise to this appeal by special leave against a decree dated November 5, 1976 of the High Court of Gujarat 294 may be better appreciated with reference to the following pedigreetable: NARANJI | | Dahyabhai Haribhai | | | | Ranchhodji | | | | Bhimbhai Mohanbhai (died childless in | 1913) | | | Parvatiben=Dayalji Dahyabhai (Plaintiff 8 (Plaintiff 7 | | | | | Bhikhubhai Thakorbhai Nirmalben Padmaben (Plaintiff 5) (Plaintiff 6) (Plaintiff 7) (Plaintiff 10) NARANJI (contd. ) | | Gulabhai Vallabhhai | | Motabhai | | | Nichhabhai= Surbhai | Amba Bai Bai Vijia | (Defendant 1) | | | | | Ghelabhai Lallubhai Chhotubhai Manibhai | (Plaintiff 3) (Plaintiff 4) | | Thakorbhai Ramanbhai (Plaintiff 1) (Plaintiff 2) 2. In the year 1908 Ranchhodji son of Dahyabhai instituted Civil Suit No. 403 of 1908 against Bhimbhai son of Haribhai, Dayalji and Dahyabhai sons of Mohanbhai, Motabhai son of Gulabbhai, Bai Amba widow of Nichhabhai and Bai Vajia widow of Surbhai, for a partition of the joint Hindu family properties belonging to the parties. The suit resulted in a decree dated August 18, 1909 which provided, inter alia, that Dayalji and Dahyabhai sons of Mohanbhai, and Motabhai son of Gulabbhai would be full owners of Survey Nos. 31 and 403 and also owners of a half share in Survey Nos. 591, 611, 288 295 and 659/3. These persons were burdened by the decree with the responsibility to pay an yearly maintenance allowance of Rs. 42/ to Bai Vajia on Magsher Sud 2 of every year and the decree further provided that in the event of default in payment of such allowance continuing for a period of a month after the due date, Bai Vajia would be entitled to take possession of the land above mentioned in lieu of the maintenance awarded to her and would enjoy the income thereof without however being competent to sell, mortgage, bequeath, gift or otherwise transfer the same. The decree declared that any alienation made by Bai Vajia in contravention of the direction given by the decree in that behalf would be void. By clause 8 of the decree sons of Mohanbhai as well as Motabhai were also deprived of the right of alienation of the land during the lifetime of Bai Vajia. Default having been made in the payment of maintenance to Bai Vajia according to the terms of the decree, she took out execution and obtained possession of the land above detailed. Thereafter Dayalji and Dahyabhai sons of Mohanbhai deposited in court the arrears of maintenance and filed an application with a prayer that the land of which possession had been given to Bai Vajia in execution of the decree be restored to them. That application was dismissed on the 8th March 1912 and more than 2 1/2 years later, i.e., on 27th October 1914, Dahyabhai son of Mohanbhai instituted Civil Suit No. 576 of 1914 in the court of the Additional Sub Judge, Valsal, for a declaration that the dismissal of his application was null and void and for recovery of possession of the land which Bai Vajia had taken in execution of the decree. The suit was decreed by the trial court but was dismissed in first appeal on the 13th March 1918. Bai Vajia continued to enjoy the land till the 21st October 1963 when she made a sale of Survey No. 31 in favour of one Dhirubhai Paragji Desai. The sale was challenged in Civil Suit No. 110 of 1966 by 10 persons being the heirs of Mohanbhai and Motabhai as shown in the pedigree table above, the defendants being Bai Vajia and the said Dhirubhai Paragji Desai. It was claimed by the plaintiffs that Bai Vajia had no right to alienate in any manner the land obtained by her in execution as per the terms of the decree, that sub section (1) of section 14 of the (hereinafter referred to as the Act) had no application to her case which was covered by sub section (2) of that section and that the sale by her in favour of defendant No. 2 was null and void. Bai Vajia contested the suit and contended that the sale was good in view of the provisions of subsection (1) abovementioned which enlarged her limited ownership 296 into full and absolute ownership and that sub section (2) aforesaid did not cover her case. The suit was decreed by the trial court and Bai Vajia remained unsuccessful in the appeal which she instituted in the court of the District Judge, Bulsar. A second appeal was filed by her before the High Court of Gujarat and during the pendency thereof she expired when one Dhirubhai Dayalji Desai was substituted for her as her sole heir and legal representative. The appeal came up for hearing before a learned Single Judge of the High Court who by its judgment dated 5th November, 1976 dismissed it holding that the decree passed in Civil Suit No. 403 of 1908 did not recognise any "pre existing" right of Bai Vajia in the property in dispute. In coming to this conclusion, the learned Judge followed Naraini Devi vs Smt. Ramo Devi and others.(1) The legal representative of Bai Vajia is the sole appellant in the appeal before us, the respondents thereto being nine of the plaintiffs and six legal representatives of plaintiff No. 5 as also the purchaser from Bai Vajia who is arraigned as respondent No. 11. At the outset it was pointed out by Mr. I. N. Shroff, learned counsel for the appellant, that Naraini Devi 's case (supra) has since been over ruled by the decision of this Court in V. Tulasamma & others vs V. Sesha Reddi(2) and we find that this is so. In the case last mentioned, the facts were these. The husband of Tulasamma died in the year 1931 in a state of jointness with his step brother V. Sesha Reddi. A decree for maintenance was passed in favour of Tulasamma against V. Sesha Reddi on June 29, 1946. On the 30th July 1949, a compromise between the contending parties was certified by the Court executing that decree. Under the compromise, Tulasamma was allotted certain properties in lieu of maintenance, her right being limited to enjoyment thereof coupled with the specific condition that she would not have any right of alienation whatsoever. Tulasamma took possession of those properties and continued to enjoy them till the early sixties. On 12th of April 1960 she leased out some of the properties to two persons and on the 26th of May 1961 made a sale of some others to another person. V. Sesha Reddi filed a suit on July 31, 1961 for a declaration that the alienations made by Tulasamma were not binding on him and could remain valid only so long as she was alive. The basis of the action was that Tulasamma acquired a restricted estate under the terms of the compromise and that her interest could not be enlarged under sub section (1) of section 14 of the Act in view of sub section (2) of that section. The 297 suit was decreed by the trial court whose decision however was reversed in appeal by the District Judge, with a finding that the allotment of properties to Tulasamma by the terms of the compromise had been made in recognition of a "pre existing" right a finding which was reversed by the High Court, who restored the decree passed by the trial court. The matter came up to this Court in appeal by special leave and Fazal Ali, J., who wrote an exhaustive judgment thus formulated the two points falling for determination: (1) Whether the instrument of compromise under which the properties were given to the appellant Tulasamma before the in lieu of maintenance falls within section 14(1) or is covered by section 14(2) of that Act. (2) Whether a Hindu widow has a right to property in lieu of her maintenance, and if such a right is conferred on her subsequently by way of maintenance it would amount to mere recognition of a pre existing right or a conferment of new title so as to fall squarely within section 14(2) of the . Fazal Ali, J., was of the opinion that the resolution of the dispute made it necessary that the real legal nature of the incidents of a Hindu widow 's right to maintenance be considered. He referred to various works by celebrated authors on Hindu Law and in doing so cited passages from 'Digest of Hindu Law ' by Colebrooke, 'Hindu Law ' by G. section Sastri, 'Hindu Law and Usage ' by Mayne and 'Principles of Hindu Law ' by Mulla and came to the conclusion that the widow 's right to maintenance, though not an indefeasible right to property, is undoubtedly a "pre existing" right. A survey of various judicial pronouncements was then undertaken by Fazal Ali, J., and as a consideration thereof he arrived at the following propositions : "(1) A Hindu woman 's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow. 298 (2) Though the widow 's right to maintenance is not a right to property but it is undoubtedly a pre existing right in property, i.e., it is a jus ad rem, not jus in rem, and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court. (3) The right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow 's right to maintenance, the purchaser is legally bound to provide for her maintenance. (4) The right to maintenance is undoubtedly a pre existing right which existed in the Hindu Law long before the passing of the Act of 1937(1) or the Act of 1946,(2) and is therefore, a pre existing right. (5) The right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of co owner in the property of her husband, though her co ownership is of a subordinate nature. (6) Where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make arrangements for her maintenance. " Fazal Ali, J., then embarked on a consideration of the scope and meaning of section 14 of the Act in the light of various pronouncements made by this Court as also of the decisions rendered by various High Courts in relation to the points in dispute. During the course of the discussion he made the following pertinent observations: "It is true that a widow 's claim for maintenance does not ripen into a full fledged right to property, but nevertheless it is undoubtedly right which in certain cases can amount to a right to property where it is charged. It cannot be said that where a property is given to a widow in lieu of 299 maintenance, it is given to her for the first time and not in lieu of a pre existing right. The claim to maintenance, as also the right to claim property in order to maintain herself, is an inherent right conferred by the Hindu Law and, therefore, any property given to her in lieu of maintenance is merely in recognition of the claim or right which the widow possessed from before. It cannot be said that such a right has been conferred on her for the first time by virtue of the document concerned and before the existence of the document the widow had no vestige of a claim or right at all. Once it is established that the instrument merely recognised the pre existing right, the widow would acquire absolute interest. Secondly, the Explanation to section 14(1) merely mentions the various modes by which a widow can acquire a property and the property given in lieu of maintenance is one of the modes mentioned in the Explanation. Subsection (2) is merely a proviso to section 14(1) and it cannot be interpreted in such a manner as to destroy the very concept of the right conferred on a Hindu woman under section 14(1). Sub section (2) is limited only to those cases where by virtue of a certain grant or disposition a right is conferred on the widow for the first time and the said right is restricted by certain conditions. In other words, even if by a grant or disposition a property is conferred on a Hindu male under certain conditions, the same are binding on the male. The effect of sub section (2) is merely to equate male and female in respect of grant conferring a restricted estate. " Finally, Fazal Ali, J., made a reference to Naraini Devi 's case (supra) to which he himself was a party (apart from Sarkaria, J., who delivered the judgment of the Court) and in relation thereto made the following observations: "This case is no doubt directly in point and this Court by holding that where under an award an interest is created in favour of a widow that she should be entitled to rent out the property for her life time, it was held by this Court that this amounted to a restricted estate under section 14(2) of the 1956 Act. Unfortunately the various aspects, namely, the nature and extent of the Hindu women 's right to maintenance, the limited scope of sub section (2) which 300 is a proviso to sub section (1) of section 14 and the effect of the Explanation, etc., to which we have adverted in this Judgment, were neither brought to our notice nor were argued before us in that case. Secondly, the ground on which this Court distinguished the earlier decision of this Court in Badri Parshad vs Smt. Kanso Devi(1) was that in the aforesaid decision the Hindu widow had a share or interest in the house of her husband under the Hindu Law as it was applicable then, and, therefore, such a share amounted to a pre existing right. The attention of this Court however, was not drawn to the language of the Explanation to section 14(1) where a property given to a widow at a partition or in lieu of maintenance had been placed in the same category, and therefore, the reason given by this Court does not appear to be sound. For the reasons that we have already given, after taking an overall view of the situation, we are satisfied that the Division Bench decision of this Court in Naraini Devi 's case (supra) was not correctly decided and is therefore overruled. " Summarising the conclusions of law which Fazal Ali, J., reached after an exhaustive consideration of the texts and authorities mentioned by him, he enumerated them thus: "(1) The Hindu female 's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre existing right. 301 "(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of females so as to advance the object of the 1956 Act and promote the socio economic ends sought to be achieved by this long needed legislation. "(3) Sub section (2) of section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by section 14(1) or in a way so as to become totally inconsistent with the main provision. "(4) Sub section (2) of section 14 supplies to instruments, decrees, awards, gifts, etc., which create independent and new titles in favour of females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre existing rights. In such cases a restricted estate in favour of a female is legally permissible and section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub section has absolutely no application and the female 's limited interest would automatically be enlarged into an absolute one by force of section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of subsection (2) and would be governed by section 14(1) despite any restrictions placed on the powers of the transferee. "(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance" "or arrears of maintenance", etc., in the Explanation to section 14(1) clearly makes sub section (2) inapplicable to these categories which have been expressly excepted from the operation of sub section (2). "(6) The words "possessed by" used by the Legislature in section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. 302 Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. "(7) That the words "restricted estate" used in section 14(2) are wider than limited interest as indicated in section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee". Applying these principles Fazal Ali J., held: "(i) that the properties in suit were allotted to the appellant Tulasamma on July 30, 1949 under a compromise certified by the Court; (ii) that the appellant had taken only a life interest in the properties and there was a clear restriction prohibiting her from alienating the properties; (iii) that despite these restrictions, she continued to be in possession of the properties till 1956 when the Act of 1956 came into force; and (iv) that the alienations which she had made in 1960 and 1961 were after she had acquired an absolute interest in the properties. " In this view of the matter Fazal Ali, J., allowed the appeal of Tulasamma 's legal representatives. Bhagwati, J., wrote a separate judgment in Tulasamma 's case and A. C. Gupta, J., agreed with him. He also allowed the appeal substantially for the same reasons as had weighed with Fazal Ali, J., and in doing so observed: "Now, sub section (2) of section 14 provides that nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other 303 instrument or the decree, order or award prescribe a restricted estate in such property. This provision is more in the nature of a proviso or exception to sub section (1) and it was regarded as such by this Court in Badri Pershad vs Smt. Kanso Devi.(1) It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub section (1). It cannot be interpreted in a manner which would rob sub section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub section (1). The language of sub section (2) is apparently wide enough to include acquisition of property by a Hindu female under an instrument or a decree or order or award where the instrument, decree, order or award prescribes a restricted estate for her in the property and this would apparently cover a case where property is given to a Hindu female at a partition or in lieu of maintenance and the instrument, decree, order or award giving such property prescribes limited interest for her in the property. But that would virtually emasculate sub section (1), for in that event, a large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficent provision enacted in sub section (1), since in most of such cases, where property is allotted to the Hindu female prior to the enactment of the Act, there would be a provision, in consonance with the old Sastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of subsection (1). The Explanation to sub section (1) which includes within the scope of that sub section property acquired by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because there 304 would hardly be a few cases where the instrument, decree, order or award giving property to a Hindu female at a partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property The social purpose of the law would be frustrated and the reformist zeal underlying the statutory provision would be chilled. That surely could never have been the intention of the Legislature in enacting sub section (2). " Bhagwati, J., laid down the nature of the right which a Hindu widow has to be maintained out of the joint family estate in the following terms: "It is settled law that a widow is entitled to maintenance out of her deceased husband 's estate, irrespective whether that estate may be in the hands of his male issue or it may be in the hands of his coparceners. The joint family estate in which her deceased husband had a share is liable for her maintenance and she has a right to be maintained out of the joint family properties and though, as pointed out by this Court in Rani Bai vs Shri Yadunandan Ram(1) her claim for maintenance is not a charge upon any joint family property until she has got her maintenance determined and made a specific charge either by agreement or a decree or order of a Court, her right is "not liable to be defeated except by transfer to a bonafide purchaser for value without notice of her claim or even with notice of the claim unless the transfer was made with the intention of defeating her right". The widow can for the purpose of her maintenance follow the joint family property "into the hands of any one who takes it as a volunteer or with notice of her having set up a claim for maintenance". The courts have even gone to the length of taking the view that where a widow is in possession of any specific property for the purpose of her maintenance, a purchaser buying with notice of her claim is not entitled to possession of that property without first securing proper maintenance for her, vide Rachawa & Ors. vs Shivayanappa(2) cited with approval in Ranibai 's case (supra). It is, therefore, clear that under 305 the Sastric Hindu Law a widow has a right to be maintained out of joint family property and this right would ripen into a charge if the widow takes the necessary steps for having her maintenance ascertained and specifically charged in the joint family property and even if no specific charge is created, this right would be enforceable against joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim. The right of the widow to be maintained is of course not a jus in rem, since it does not give her any interest in the joint family property but it is certainly jus ad rem, i.e., a right against the family property. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property. It would not be a grant for the first time without any pre existing right in the widow. The widow would be getting the property in virtue of her pre existing right, the instrument giving the property being merely a document effectuating such pre existing right and not making a grant of the property to her for the first time without any antecedent right or title. There is also another consideration which is very relevant to this issue and it is that, even if the instrument were silent as to the nature of the interest given to the widow in the property and did not, in so many terms, prescribe that she would have a limited interest, she would have no more than a limited interest in the property under the Hindu Law as it stood prior to the enactment of the Act and hence a provision in the instrument prescribing that she would have only a limited interest in the property would be, to quote the words of this Court in Nirmal Chand 's case (supra), "merely recording the true legal position" and that would not attract the applicability of sub section (2) but would be governed by sub section (1) of section 14. All the three Judges were thus unanimous in accepting the appeal on the ground that Tulasamma 's right to maintenance was a pre existing right, that it was in recognition of such a right that she obtained property under the compromise and that the compromise there fore did not fall within the ambit of sub section (2) of section 14 of the Act but would attract the provisions of sub section (1) thereof coupled with the Explanation thereto. With respect we find our selves in complete agreement with the conclusions arrived at by 306 Bhagwati and Fazal Ali, JJ., as also the reasons which weighed with them in coming to those conclusions. Mr. section T. Desai, learned counsel for the plaintiffs respondents, and Mr. U. R. Lalit who very ably assisted the Court at its request, contended that for a Hindu female to be given the benefit of subsection (1) of section 14 of the Act she must first be an owner, albeit a limited owner, of the property in question and that Tulasamma not being an owner at all, the Bench presided over by Bhagwati, J., did not reach a correct decision in holding that the sub section aforesaid covered her case. We find that only that part of this argument which is interpretative of sub section (1) is correct, namely, that it is only some kind of "limited ownership" that would get enlarged into full ownership and that where no ownership at all vested in the concerned Hindu female, no question of the applicability of the sub section would arise. We may here reproduce in extenso section 14 of the Act with advantage: "14(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. "Explanation: In this sub section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner what so ever, and also any such property held by her as "Stridhana" immediately before the commencement of this Act. "(2) Nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribed a restricted estate in such property." A plain reading of sub section (1) makes it clear that the concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub section. If it was intended to enlarge any sort of a right which could 307 in no sense be described as ownership, the expression "and not as a limited owner" would not have been used at all and becomes redundant, which is against the well recognised principle of interpretation of statutes that the Legislature does not employ meaningless language. Reference may also be made in this connection to Eramma vs Verrupanna & others(1) where in Ramaswami, J., speaking on behalf of himself, Gajendragadkar, C.J., and Hidayatullah, J., interpreted the sub section thus: "The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to section 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words "as full owner thereof and not as a limited owner" as given in the last portion of sub section (1) of section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, section 14(1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called 'limited estate ' or 'widow 's estate ' in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words, the provisions of section 14(1) of the Act cannot be attracted in the case of a Hindu female who is in possession 308 of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser with out any right to property." This interpretation of sub section (1) was cited with approval in Mangal Singh and Others vs Shrimati Rattno & Another(1) by Bhargava, J., who delivered the judgment of the Court and observed: "This case also, thus, clarifies that the expression "possessed by" is not intended to apply to a case of mere possession without title, and that the legislature intended this provision for cases where the Hindu female possesses the right of ownership of the property in question. Even mere physical possession of the property without the right of ownership will not attract the provisions of this section. This case also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of ownership and, while the Hindu female possesses the rights of ownership, she would become full owner if the other conditions mentioned in the section are fulfilled. The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could, in no manner, exercise her rights of ownership in that property any longer." Limited ownership in the concerned Hindu female is thus a sine qua non for the applicability of sub section (1) of section 14 of the Act but then this condition was fully satisfied in the case of Tulasamma to whom the property was made over in lieu of maintenance with full rights of enjoyment thereof minus the power of alienation. These are precisely the incidents of limited ownership. In such a case the Hindu female represents the estate completely and the reversioners of her husband have only a spes successionis, i.e., a mere chance of succession, which is not a vested interest and a transfer of which is a nullity. The widow is competent to protect the property from all kinds of trespass and to sue and be sued for all purposes in relation thereto so long as she is alive. Ownership in the fullest sense is a sum total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not full ownership but something less. When a widow holds the property for her enjoyment as long as she lives, nobody is entitled to deprive her of it or to deal with the property in any manner to her detriment. The 309 property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion of all others. Such a relationship to property in our opinion falls squarely within the meaning of the expression "limited owner" as used in sub section (1) of section 14 of the Act. In this view of the matter the argument that the said sub section did not apply to Tulasammas 's case (supra) for the reason that she did not fulfil the condition precedent of being a limited owner is repelled. The next contention raised by Mr. Desai and Mr. Lalit also challenged the correctness of the decision in Tulasamma 's case. They argued that in any case the only right which Tulasamma had prior to the compromise dated July 30, 1949 was a right to maintenance simpliciter and not at all a right to or in property. For the reasons which weighed with Bhagwati and Fazal Ali, JJ., in rejecting this argument we find no substance in it as we are in full agreement with these reasons and the same may not be reiterated here. However we may emphasize one aspect of the matter which flows from a scrutiny of subsection (1) of section 14 of the Act and the explanation appended thereto. For the applicability of sub section (1) two conditions must co exist, namely: (1) the concerned female Hindu must be possessed of property and (2) such property must be possessed by her as a limited owner. If these two conditions are fulfilled, the sub section gives her the right to hold the property as a full owner irrespective of the fact whether she acquired it before or after the commencement of the Act. The Explanation declares that the property mentioned in sub section (1) includes both movable and immovable property and then proceeds to enumerate the modes of acquisition of various kinds of property which the sub section would embrace. Such modes of acquisition are: (a) by inheritance, (b) by devise, (c) at a partition, (d) in lieu of maintenance or arrears of maintenance, (e) by gift from any person, whether a relative or not, before, at or after her marriage, (f) by her own skill or exertion, 310 (g) by purchase, (h) by prescription, (i) in any other manner what so ever, and (j) any such property held by her as "stridhana" immediately before the commencement of this Act. A reference to the Hindu law as it prevailed immediately before the commencement of the Act would lead one to the conclusion that the object of the Explanation was to make it clear beyond doubt that all kinds of property which fell within the ambit of the term "stridhana" would be held by the owner thereof as a full owner and not as a limited owner. Reference may in this connection be made to the following enumeration of "Stridhana" in paragraph 125 of Mulla 's Hindu law: (1) Gifts and bequests from relations. (2) Gifts and bequests from strangers. (3) Property obtained on partition. (4) Property given in lieu of maintenance. (5) Property acquired by inheritance. (6) Property acquired by mechanical arts (7) Property obtained by compromise. (8) Property acquired by adverse possession. (9) Property purchased with stridhana or with savings of income of stridhana. (10) Property acquired from sources other than those mentioned above. These heads of property are then dealt with at length by Mulla in paragraphs 126 to 135 of his treatise. Prior to the commencement of the Act, the Hindu female did not enjoy full ownership in respect of all kinds of "Stridhana" and her powers to deal with it further varied from school to school. There was a sharp difference in this behalf between Mitakshara and Dayabhaga. And then the Bombay, Benaras, Madras and Mithila schools also differed from each other on the point. Succession to different kinds of "Stridhana" did not follow a uniform pattern. The rights of the Hindu female over "Stridhana" varied according to her status as a maiden, a married woman and a widow. The source and nature of the property acquired also placed limitations on her ownership and made a difference to the mode of succession thereto. A comparison of the contents of the Explanation with those of paragraph 125 of Mulla 's Hindu Law would show that 311 the two are practically identical. It follows that the Legislature in its wisdom took pains to enumerate specifically all kinds of "Stridhana" in the Explanation and declared that the same would form "property" within the meaning of that word as used in sub section (1). This was done, in the words of Bhagwati, J, "to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society". It was a step in the direction of practical recognition of equality of the sexes and was meant to elevate women from a subservient position in the economic field to a pedestal where they could exercise full powers of enjoyment and disposal of the property held by them as owners, untrammelled by artificial limitations placed on their right of ownership by a society in which the will of the dominant male prevailed to bring about a subjugation of the opposite sex. It was also a step calculated to ensure uniformity in the law relating to the nature of ownership of "Stridhana". This dual purpose underlying the Explanation must be borne in mind and given effect to when the section is subjected to analysis and interpretation, and sub section (2) is not to be given a meaning which would defeat that purpose and negative the legislative intent, if the language used so warrants. A Combined reading of the two sub sections and the Explanation leaves no doubt in our minds that sub section (2) does not operate to take property acquired by a Hindu female in lieu of maintenance or arrears of maintenance (which is property specifically included in the enumeration contained in the Explanation) out of the purview of sub section (1). Tulasamma 's case (supra) having, in our opinion been decided correctly, the appeal in hand must succeed as the facts in the latter are on all fours with those in the former. Mr. Desai did vehemently argue that this was not so inasmuch as by the decree dated August 18, 1909 the ownership of the land in dispute was vested in Dayalji and Dayabhai sons of Mohanbhai and Motabhai son of Gulabbhai while Bai Vajia was only given the right to possess it for her life the ownership remaining all along in the said three persons, but this argument does not find favour with us. It has to be noted that so long as she lived, Bai Vajia was to have full enjoyment of and complete control over the land, barring any right to alienate it. Such a right was also taken away from the said three persons. The arrangement meant that whatever rights existed in relation to the land during the life time of Bai Vajia, were exercisable by her alone and by nobody else. Not even the said three persons could deal with the land in any manner whatsoever, and if they did, Bai Vajia had the right to have their acts declared null and void during her life time. After the land 312 was made over to her she became its owner for life although with a limited right and therefore only as a limited owner. Under the decree the land vested in the said three persons only so long as they were not dispossessed of it at the instance of Bai Vajia in accordance with the terms stated therein. As soon as Bai Vajia took possession of the land, no rights of any kind whatsoever in relation thereto remained with them and thus they ceased to be the owners for the span of Bai Vajia 's life. Following Tulsamma 's case we hold that Bai Vajia became a full owner of the land in dispute under the provisions of sub section (1) of section 14 of the Act and that sub section (2) thereof has no application to her case, the land having been given to her as a limited owner and in recognition of her pre existing right against property. In the result therefore, the appeal succeeds and is accepted. The judgment and the decree of the High Court are set aside and the suit giving rise to this appeal is dismissed. In the circumstances of the case, however, we leave the parties to bear their own costs throughout. S.R. Appeal allowed.

As per the decree in a partition suit dated August, 18, 1909 Motabhai and two sons of Mohanbhai being two predecessors in interest of the plaintiffs respondents were burdened with the responsibility of paying an yearly maintenance allowance of Rs. 42/ to Bai Vajia appellant on Magsher Sud 2 of every year. The decree further provided that in the event of default in payment of such allowance continuing for a period of a month after the due date, Bai Vajia would be entitled to take possession of the land allotted to them under the decree viz. Survey Nos. 31, 403, 591, 611, 288 and 659/3 in lieu of the maintenance awarded to her and would enjoy the income thereof without however being competent to sell, mortgage, bequeath, gift or otherwise transfer the same. The decree declared that any alienation made by Bai Vajia in contravention of the direction given by the decree in that behalf would be void. By clause 8 of the decree Motabhai and sons of Mohanbhai were also deprived of the right of alienation of the land during the lifetime of Bai Vajia. Default having been made in the payment of maintenance to her according to the terms of the decree, the appellant, took out execution and obtained possession of the lands in question, which she continued to enjoy till October 21, 1963 when she made a sale of Survey No. 31 in favour of one D. P. Desai. The sale was challenged by the plaintiffs in Civil Suit No. 110/66 which was decreed by the trial Court. The District Court in first appeal confirmed it and the High Court in second appeal upheld the decree of Bai Vajia. Allowing the appeal of the Legal Representative by special leave. the Court. ^ HELD: 1. A combined reading of sub sections (1) and (2) of Section 14 of the and the Explanation following sub section (1) makes it clear, that sub section (2) does not operate to take property acquired by a Hindu female in lieu of maintenance or arrears of maintenance (which is property specifically included in the enumeration contained in this Explanation) out of the purview of sub section (1). [311 D E] 2. For the applicability of sub section (1) of Section 14 two conditions must coexist namely. (1) the concerned female Hindu must be possessed of property; and 292 (2) such property must be possessed by her as a "limited owner". If these two conditions are fulfilled, the sub section gives her the right to hold the property as a full owner irrespective of the fact whether she acquired it before or after the commencement of the Act. [309 D F] The Explanation declares that the property mentioned in sub section (1) includes both movable and immovable property and then proceeds to enumerate the modes of acquisition of various kinds of property which the sub section would embrace. Two such modes are "in lieu of maintenance or arrears of maintenance", and "any such property held by her as Stridhana" immediately before the commencement of the Act. It, therefore, follows that the Legislature in its wisdom took pains to specify all kinds of "Stridhana" in the Explanation and declared that the same would form "property" within the meaning of that word as used in sub section (i). This was done "to achieve a social purpose by bringing about change in the social and economic position of women in Hindu Society". It was a step in the direction of practical recognition of equality of the sexes and was meant to elevate women from a subservient position in the economic field to a pedestal where they could exercise full powers of enjoyment and disposal of the property held by them as owners, untrammelled by artificial limitations placed on their right of ownership by a society in which the will of the dominant male prevailed to bring about a subjugation of the opposite sex. It was also a step calculated to ensure uniformity in the law relating to the nature of ownership of 'Stridhana '. This dual purpose underlying the Explanation must be borne in mind and given effect to when the section is subjected to analysis and interpretation, and sub section (2) is not to be given a meaning which would defeat that purpose and negative the legislative intent, if the language used so warrants. A D] 3. It is true that it is only some kind of "limited ownership" that would get enlarged into full ownership and that where no ownership at all vested in the concerned Hindu Female, no question of the applicability of subsection (1) of section 14 of the Act, would arise. [306 B C] 4. A plain reading of sub section (1) of section 14 of the Act makes it clear that the concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub section. If it was intended to enlarge any sort of a right which could in no sense be described as ownership, the expression "and not as a limited owners", would not have been used at all and becomes redundant, which is against the well known principle of interpretation of statutes that the Legislature does not employ meaningless language. [306 H, 307 A] Eramma vs Veerappanna and Ors., ; Mangal Singh and Ors. vs Srimati Rattno & Anr., ; ; reiterated. Limited ownership in the concerned Hindu female is thus a sine qua non for the applicability of sub section (1) of section 14 of the Act. In a case where this condition is fulfilled the Hindu female represents the estate completely and the reversioners of her husband have only a spes succession is i.e. a mere chance of 293 succession which is not a vested interest and a transfer of which is a nullity. The widow is competent to protect the property from all kinds of trespass and to sue and be sued for all purposes in relation thereto so long as she is alive. Ownership in the fullest sense is a sum total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not full ownership but something less. [308 E H] When a widow holds the property for her enjoyment as long as she lives, nobody is entitled to deprive her of it or to deal with the property in any manner to her detriment. The property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion of all others. Such a relationship to property falls squarely within the meaning of the expression "limited owner" as used in sub section (1) of Section 14 of the Act. [308 H, 309A] 6. In the instant case: Bai Vajia became a full owner of the land in dispute under the provisions of sub section (1) of section 14 of the Act and that sub section (2) thereof has no application to her case, the land having been given to her as a limited owner and in recognition of her pre existing right against property. So long as she lived, she was to have full enjoyment of and complete control over the land, barring any right to alienate it. Such a right was also taken away from Motabhai and two sons of Mohanbhai. The arrangement meant that whatever rights existed in relation to the land during the life time of Bai Vajia were exercisable by her alone and by nobody else. Not even the said three persons could deal with the land in any manner whatsoever, and if they did, Bai Vajia had the right to have their acts declared null and void during her life time. After the land was made over to her she became its owner for life although with a limited right and therefore only as a limited owner. Under the decree the land vested in Motabhai and sons of Mohanbhai only so long as they were not dispossessed of it at the instance of Bai Vajia in accordance with the terms stated therein. As soon as Bai Vajia took possession of the land, no rights of any kind whatsoever in relation thereto remained with them and thus they ceased to be the owners for the span of Bai Vajia 's life. [311 G H, 312 A D] V. Tulasamma and Ors. vs Sesha Reddy, [1977] 3 S.C.R. 261; discussed in extenso and followed.

Appeals Nos. 1194, 11 96, 1197 & 1250 of 1967. 400 Appeals by certificate from the judgment and order dated November 22, 23 and 24, 1966 of the Bombay High Court in Special Civil Applications Nos. 1476 and 1424 of 1966. G. L. Sanghi, C. K. Ratnaparkhi and A. G. Ratnaparkhi, for the appellant (in C.A. No. 1194/67). B. N. Lokur, C. K. Ratnaparkhi, A. G. Ratnaparkhi and B. M. Srivastava, for the appellant (in C.A. No. 1196/67). M. C. Bhandare, B. D. Sharma, for the appellants (in C.As. 1197 and 1250/67 and Respondent No. 2 (in C.As. 1194 and 1196/67). Sharad Manohar and B. P. Maheshwari, for respondent No. 1 (in C. As. 1194 and 1197 of 1967). M. N. Phadke, Sharad Manohar and B. P. Maheshwari, for respondent No. 1 (in C.As. 1196 & 1250/67). B. N. Lokur, G. L. Sanghi, C. K. Ratnaparkhi, A. G. Ratna parkhi and B. M. Srivastava, for respondent No. 2 (in C.As. 1197 & 1250/67). The Judgment of the Court was delivered by MATHEW, J. The respondents in these appeals filed writ peti tions in the Bombay High Court challenging the validity of the Borough Municipalities (Validation of Certain Taxes on Buildings and Lands) Act, 1965 (Maharashtra Act No. 111 of 1966), hereinafter called the "Validating Act", on the ground that the provisions of the Act violated their fundamental rights under article 14 of the Constitution and for restraining the appellants from levying house tax on the mills, factories and buildings connected therewith of the respondents or collecting the same from them. A Division Bench of the High Court held that sections 3(b), 4(1), 4(2) and 5 of the Validating Act were invalid as they contravened article 14 and granted the prayer for restraining the appellant Municipality from levying and collecting the tax. These appeals, by certificate, are directed against the judgment of the Division Bench. Till the year 1947, the appellant Municipality used to levy house tax on the mills, factories and buildings connected therewith of the respondents in these appeals on the basis of their annual letting value and the annual letting value for this purpose was ascertained in the normal way, that is, by ascertaining the amount at which the buildings might reasonably be expected to let from year to year. In 1947, the appellant Municipality made fresh rules for levy of house tax and rule 2 (c) of the new rules ran as follows 401 "2(c) In the case of mills and factories and buildings connected therewith, house tax on buildings shall be levied at the usual rate on the annual rental value fixed at Rs. 40/ for every 100 square feet or portions thereof for each sterey, floor or cellar. "Explanation : The expression "building connected therewith" means and includes warehouses, godowns, millshops, etc. which are within the compound of mill premises but does not include residential buildings, such as bungalows, out houses. "Note : Buildings which are not taxed under Rule 2(c) shall be taxed under the ordinary rules. " Under this rule, the annual rental value of all the buildings of mills and factories other than residential buildings was fixed at a uniform rate of Rs. 40/ for every square foot of floor area irrespective of the actual rental value of the premises. One of the respondents, namely, Lokamanya Mills. Barsi, Limited, claimed refund of amounts paid by them on the basis that Rule 2(c) was ultra vires the Boroughs Act and they filed 4 suits for the same. Against the decrees dismissing the suits, appeals were preferred to this Court and they were finally disposed of by this Court in Lokamanya Mills, Barsi Ltd. vs Barsi Borough Municipality(1). This Court, after referring to the provisions of section 78 and the explanation to section 75 of the Boroughs Act, held that the Municipality could levy a rate on lands and buildings on the basis of their capital or annual letting value and that in framing rule 2(c), the Municipality had adopted a mode of valuation different from the one sanctioned by the Boroughs Act. The Court also observed : "The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes which are in their nature not similar, may reasonably fetch if let out to tenants and in the virtual deprivation to the rate payer of his statutory right to object to the valuation." Accordingly, the Court allowed the appeals and decreed the suits. The main objects of the Validatting Act were to enable the municipalities governed by the Boroughs Act to levy house tax on mill 's factories and buildings connected therewith on the basis of rule 2(c) and to validate the levy and collection of the tax with retrospective effect. Section 3 of ,the, Validating Act (1) ; 402 brings about certain amendments in the Boroughs Act. In section 3 of the Boroughs Act, a clause is inserted which lays down that " rate on buildings or lands" includes any tax imposed on buildings or lands. Another amendment introduced in the Boroughs Act is with reference to Explanation to section 75. Prior to the amendment, the explanation to section 75 was as follows : "In the case of lands the basis of valuation may be either capital or annual letting value. " This explanation was substituted by the Validating Act by an explanation which reads "Explanation : For the purposes of a rate on buildings or lands, the basis of valuation may be (i) the annual letting value. (ii) the annual value; (iii) the floor area, in the case of mills, factories buildings and lands connected therewith; (iv) the capital value in the case of vacant lands". Both these amendments were given retrospective effect from the commencement of the Boroughs Act. Sections 4 and 5 of the Validating Act are designed to validate with retrospective effect, the levy and collection of tax notwithstanding the decision of this Court. Sub section (1) and (2) of section 4 provide "4(1) Any house tax and any water tax levied or purported to be levied and collected in respect of any mills, factories and buildings and lands connected therewith or in respect of any vacant lands, under the Boroughs Act and rules made thereunder, at any time before the commencement of this Act shall be deemed to have been levied and collected by or under the Boroughs Act as amended by this Act; and accordingly notwithstanding anything in any judgment, decree or order of any Court any such house tax or water tax levied and collected shall, for all purposes be deemed to be, and always to have been, validity levied and collected, and shall not be called in question merely on the ground that the tax was not levied on the basis of the annual letting value, or was levied on the basis of a uniform rate on the floor area, or that it was levied on the basis 403 of capital value or a percentage on such value, or on the ground that any proceeding laid down in the Boroughs Act or in the rules was not followed." "4(2) anything done or any action taken, by or on behalf of any Borough Municipality or any officer of such Municipality, acting or purporting to act under the provisions of the Boroughs Act or any rules made thereunder for or in connection with the levy or collection of the said taxes, shall be deemed for all purposes to have been validly done or taken; and no suit or other legal proceedings whatsoever shall be entertained or continued in any Court on any or all of the grounds mentioned in sub section (1). " Section 5 provides, among other things, for recovery of tax by the municipal authority concerned and the period within which it should be recovered, etc. The two points which arise for consideration in these appeals are, whether rule, 2(c) was available to the appellant Municipality for imposing house tax on mills, factories and buildings connected therewith of the respondents and whether the rule can be deemed to have been in operation in order that the levy and collection of house tax might be validated with retrospective effect It may be recalled that rule, 2 (c) was struck down by this Court in Lokamanya Mills, Barsi Ltd. vs Barsi Borough Muni cipality (1) on the, basis that the Boroughs Act authorized levy of house tax only on the basis of annual letting value or capital value of the land or building as the case may be, and that rule 2(c) as it purported to levy house tax on the basis of the floor area was ultra vires the Act. When the rule was struck down by this Court, the effect was, that the rule could never be deemed to have been passed. Apart from rule 2(c), there was no charging provision similar to rule 2(c) either in the Boroughs Act, or in the Validating Act for levying house tax on mills, factories and buildings connected therewith. After rule 2(c) was struck down, the Municipality did not frame any rule under the provision of section 75 of the Boroughs Act for imposing house tax on mills factories or buildings connected therewith. The Validating Act has not also revived or resurrected rule 2(c). Therefore, the position was ,that there was no charging provision for imposition of house tax on the mills, factories or buildings connected therewith. It is only if there was a charging provision for imposing house tax on the mills, factories or buildings connected therewith that any house tax could be imposed upon the mills, factories or buildings connected therewith of the respondents. All that the explanation to section 75 substituted by the Validating Act did was (1) ; 404 to enact that, for imposing house tax, floor area will be the basis of valuation in the case of mills, factories or buildings connected therewith. The consequence is that (there could be no levy of house tax on the mills, factories or buildings connected therewith of the respondents nor could any demand be made on the respondents on the basis of any levy. The High Court was, therefore, right in restraining the appellant Municipality from levying house tax on the mills, factories or buildings connected therewith of the respondents and in quashing the demand notice issued. Section 4 did not resurrect rule 2(c) with retrospective effect in order that it might be said that there was, in the eye of law, a provision for charging house tax on mills, factories or buildings connected therewith so that the tax levied and collected might be validated. Even if section 4 had resurrected rule 2(c) and said that it shall be deemed to have been passed under the Validating Act with retrospective effect, that might not have cured invalidity on account of its being violative of article 14 of the Constitution as it imposed a flat rate on the floor area without making any classification of the area on the basis of income, productivity. or age of building, etc. But we do not think it necessary to pass upon this hypothetical question as section 4 did not revive or resurrect rule 2(c), much less, give it retrospective operation. In this view, we have no occasion to reach ?the constitutional question as regards the validity of the impugned sections of the Validating Act and we express no opinion upon it. We think that it was not necessary for the High Court to have struck down the provisions of sections 3(2), 4(1), 4(2) and 5 of the Validating Act. When rule 2(c) was held to be inoperative by virtue of the decision of this Court, all the reliefs claimed by the respondents in the writ petitions could have been given to them without striking down these provisions. It is a wise tradition with Courts not to decide a constitutional question if the case can be disposed of on other grounds. We dismiss the appeals but, in the circumstances, make no order as to costs. S.B.W. Appeals dismissed.

The Supreme Court, in Lokmanya Mills, Barsi Led. vs Barsi Borough Municipality ; struck down Rule 2(c) as being violative of article 14 of the Constitution of India, for the vice of assumed uniformity of return per sq. from structures of different classes which are in their nature not similar. The Maharashtra Legislature passed Borough Municipalities (validation of certain taxes on buildings and lands) Act 1965, to validate the levy and collection of the tax with retrospective effect and to enable the municipalities to levy house tax on mills factories and buildings on the basis of Rule 2(c). Explanation to Sec. 75 of the Act was substituted by the new explanation, by the Validating Act. Ss. 4 and 5 are designed to validate the levy and collection of tax with retrospective effect. On challenge through a Writ Petition, the Division Bench of the Bombay High Court struck down Sections 3(b), 4(1), 4(2) and 5 of the Validating Act for their contravention of article 14. The appeal filed by the State and the Barsi Municipal Council before this Court among other things, raised a question as to whether the Validating Act has resurrected the provisions of Rule 2(c) and levy and collection were validated as required by law. Dismissing the appeal, HELD : When the rule was struck down by this Court, the effect was that the Rule could never be deemed to have been passed. Apart from Rule 2(c), there was no charging provision 'similar to Rule 2(c) either in the Boroughs Act or in the Validating Act for levying house tax on mills, factories and buildings connected therewith. After Rule 2(c) was struck down, the Municipality did not frame any rule under the provisions of Section 75 of the Boroughs Act for imposing tax on mills, factories or buildings connected therewith. Section 4 of the Validating Act does not revive or resurrect Rule 2(c). Since the charging section is not revived, there was no authority under law to collect tax on the said categories of properties. Since in the eye of law there was no charging provision, there could be no validation of any levy or collection. [403G] Held further, that the above holding was enough to grant all reliefs claimed by the respondent in the Writ Petition and there was no need to express an opinion on the validity of the impugned sections of the Validating Act. [404F]

Appeal No. 542 of 1962. Appeal from the judgment and order dated April 7, 1960, of the Andhra Pradesh High Court in Tax Revision case No. 27 of 1958. Setalvad, K. Srinivasamurthy and Naunit Lal, for the appellant. A.Ranganadham Chetty and B. R. G. K. Achar, for the respondent. February 6, 1964. The Judgment of the Court was delivered by SHAH, J. With certificate of fitness granted by the High Court of Andhra Pradesh this appeal is preferred by Shree Bajrang Jute Mills Ltd. The appellant is engaged in the manufacture of jute goods, and is a registered dealer under the Madras General Sales Tax Act. For the assessment year 1954 55 the appellant submitted its return for sales tax claiming a deduction of Rs. 21,80,118 1 3 from the turnover in respect 693 of the jute goods supplied by rail to the Associated Cement Company Ltd. hereinafter for the sake of brevity called 'the A.C.C. under despatch instructions from that Company. The Commercial Tax Officer rejected the claim of the appellant for deduction and that order was confirmed in appeal to the Deputy Commissioner of Commercial Taxes. In appeal to the Sales Tax Appellate Tribunal, the order was reversed, the Tribunal holding that the appellant was entitled to exemption in respect of the turnover for the goods supplied to the A.C.C. A revision petition presented against the order to the High Court of Andhra Pradesh was heard with a large number of other petitions which raised certain common questions. The High Court reversed the order of the Tribunal and restored the order passed by the Deputy Commissioner of Commercial Taxes. The factory of the appellant is situated at Guntur. The A.C.C. owns cement factories at many places (including one at Tadepalli in the State of Andhra called the Krishna Cement Works) and for the purpose of marketing its products it requires jute packing bags. For securing a regular supply of jute bags, the A.C.C. entered into a contract with the appellant of which the following four conditions are material : "1. All the goods are sold F.O.R. Guntur unless otherwise expressly stated in this contract. Goods to be packed . well pressed and marked in. bound bales of. per each. Payments to be, made in cash, in exchange for Mills Delivery Order on sellers on due date or for Railway receipts or for Dock receipts, or for Mate 's receipts, (which Dock receipts or Mate 's receipts are to be handed by a Dock 's or Ship 's Officer to the seller 's representative). The buyers agree that the property in the goods sold shall not pass from the sellers to the buyers so long as the sellers are in possession of any bills of lading, railway receipts, dock warrants or Mate 's receipts or any other document of 694 title whether such documents are in the names of sellers or buyers, until payment is made in full. (a) The buyers agree that the risk of loss, deterioration or damage in the goods during transit whether by land or canal or sea or when the goods are in the custody of the seller or any third person in a warehouse, dock or any premises shall be borne by the buyers notwithstanding that the property in the goods does not pass to the buyers during such transit or custody." As and when the gunny bags were needed for packing its products the A.C.C. issued despatch instructions calling upon the appellant to send jute bags by railway to the cement factories of the A.C.C. outside the State of Andhra. Pursuant to those instructions the appellant loaded the goods in the railway wagons, obtained railway receipts in the name of the A.C.C. as consignee and against payment of the price, delivered the receipts to the Krishna Cement Works, Tadepalli which, it is common ground, was for the purpose of receiving the railway receipts and making pay ment, the agent of the A.C.C. It is also common ground that the jute bags were sold to the A.C.C. for the purpose of packing cement by the factories of the A.C.C. to which they were sent and not for any other purpose. The assessing authority and the Deputy Commissioner held that as the railway receipts were delivered to the agent of the buyer within the State of Andhra, and price was also realized from the agent of the buyer within the State, the goods must be deemed to have been delivered to the buyer in the State of Andhra, and the appellant was liable to pay sales tax on the price of the goods sold. With that view the High Court agreed Under the Government of India Act, 1935, the Legislatures of every Province could legislate for levying tax on sales of goods in respect of all transactions, whether the property in the goods passed within or without the Province, provided the Province had a territorial nexus with one or more elements constituting the transaction of sale : Poppat 695 Lal Shah vs The State of Madras(1) and The Tata Iron & Steel Company Ltd. vs State of Bihar(1). But this resulted in simultaneous levy of sales tax by many Provinces in respect of the same transaction each fixing upon one or more element constituting the sale, with which it had a territorial nexus. With the dual purpose of maintaining an important source of revenue to the States, and simultaneously preventing imposition of an unduly heavy burden upon the consumers by multiple taxation upon a single transaction of sale, the Constitution made a special provision imposing restrictions upon the legislative power of the States in article 286 which as originally enacted ran as follows : "(1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India. Explanation. For the purposes of sub clause (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State. (2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State trade or commerce : Provided that the President may by order direct that any tax on the sale or purchase of goods which (1) ; (2) ; 696 was being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions of this clause, continue to be levied until the thirty first day of March, 1951. (3) No law made by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent." After the enactment of the Constitution, by a Presidential Order the Provincial Sales Tax Acts were made to accord with the restrictions imposed by article 286 of the Constitution. It is manifest that by article 286 the legislative authority of the States to impose taxes on sales and purchases was restricted by four limitations in respect of sales or purchases outside the State, in respect of sales or purchases in the course of imports into or exports out of India, in respect of sales or purchases which take place in the course of interState trade or commerce and in respect of sales and purchases of goods declared by Parliament to be essential for the life of the community. These limitations may overlap, but the power of the State to tax sale or purchase transactions may he exercised only if it is not hit by any of the limitations. The restrictions are cumulative. The sales in the present case are not sales, which have taken place in the course of inter State trade or commerce. The only point of contest is whether they are "outside the State ' of Andhra. It is now well settled that by article 286(1) (as it stood before it was amended by the Constitution Sixth Amendment Act, 1956) sales as a direct result of which goods were delivered in a State for consumption in such State i.e. the sales falling within the Explanation to article 286(1) were fictionally to be regarded as inside that State for the purpose of cl. (1) (a) and so within the taxing 697 power of the State in which such delivery took place and being outside all other States exempt from sales tax by those other States : Tobacco Manufacturers (India) Ltd. vs The Commissioner of Sales tax, Bihar, Patna(1): Indian Copper Corporation Ltd, The State of Bihar and others (2) and The State of Kerala and others vs The Cochin Coal Com pany Ltd.(3). But the Explanation is not exhaustive of what may be called "inside sales". Clause (1)(a) excludes from the reach of tile power of the States sales outside the State but it does not follow from the Explanation that it localises the situs of all sales. The power of the State under Entry 54 List II of the Seventh Schedule to tax sales [not falling within cls. (1)(b), (2) and (3)] which are outside the Explanation, and which may for the sake of brevity be called 4non Explanation ' sales, remains unimaired. It is not necessary for the purpose of this case to express an opinion, whether the theory of territorial nexus of ;the taxing State, with one or more elements which go to make a completed sale authorises since the promulgation of the Constitution the exercise of legislative power under Entry 54, List II of the Seventh Schedule to tax sales, where property in goods has not passed within the taxing State. The question which then falls to be determined is whether the sales to the A.C.C. by the appellant may be regarded as "non Explanation sales". There can be no doubt that if the goods were delivered pursuant to the contracts of sale outside the State of Andhra for the purpose of consumption in the State into which the goods were delivered, the State of Andhra could have no right to tax those sales by virtue of the restriction imposed by article 286(1) (a) read with the Explanation. The facts found by the taxing authorities clearly establish that property in the goods despatched by the appellant passed to the A.C.C. within the State of Andhra when the railway receipts were handed over to the agent of the A.C.C. against payment of price. The question still remains : were (1) ; (2) ; (3) ; 698 the transactions 'non Explanation sales ' i.e. falling outside the Explanation to article 286(1)? To attract the Explanation, the goods had to be actually delivered as a direct result of the sale, for the purpose of consumption in the State in which they were delivered. It is not disputed that the goods were supplied for the purpose of consumption outside the State of Andhra, and in the States in which they were supplied. It is submitted that the goods were actually delivered within the State, when the railway receipts were handed over to the agent of the buyer. But the expression "a actually delivered" in the context in which it occurs, can only mean physical delivery of the goods, or such action as puts the goods in the possession of the purchaser : it does not contemplate mere symbolical or notional delivery e.g. by entrusting the goods to a common carrier, or even delivery of documents of title like railway receipts. In C. Govindarajulu Naidu & Company vs State of Madras(1) Venkatarama Ayyar, J., dealing with the concept of actual delivery of goods, so as to attract the application of the Explanation to article 286(1) (a) rightly observed: "In the context it can mean only physical delivery and not constructive delivery such as by transfer of documents of title to the goods. The whole object of the Explanation is to give a power of taxation in respect of goods actually entering the State for the purpose of use therein and it will defeat such a purpose if notional delivery of goods as by transfer of documents of title to the goods within the State is held to give the State a power to tax, when the good are actually delivered in another State. " A similar view has been expressed in two other cases M/s. Capco Ltd. vs The Sales Tax Officer and another (2 ) and Khaitan Minerals vs Sales Tax Appellate Tribunal for Mysore (3). (1) A.I.R. 1953 Mad. (3) A.I.R. (2) A.I.R. 1960 AM. 699 Counsel for the respondent State relied upon section 39ofthe Indian , which provides inso far as it is material, by the first sub section that where,in pursuance of a contract of sale, the seller is authorisedto send the goods to the buyer, delivery of the goods toa carrier, for the purpose of transmission to the buyer, is prima facie deemed to be delivery of the goods to the buyer. But that provision will not make mere delivery of the railway receipts representing title to the goods, actual delivery of goods for the purpose of article 286. The rule contained in section 39(1) of the Indian raises a prima facie inference that the goods have been delivered if the conditions prescribed thereby are satisfied: it has no application in dealing with a constitutional provision which while imposing a restriction upon the legislative power of the States entrusts exclusive power to levy sales tax to the State in which the goods have been actually delivered for the purpose of consumption. The High Court was therefore in error in inferring from the fact that the property had passed within the State of Andhra against delivery of the railway receipts, that the goods were actually delivered within the State. If the inference raised by the High Court that the goods were actually delivered within the State of Andhra cannot be accepted, on the facts found there is no escape from the conclusion that the State of Andhra had no authority to levy tax in respect of those sale transactions in which the goods were sent under railway receipts to places outside the State of Andhra and actually delivered for the purpose of consumption in those States. The appeal must therefore be allowed. The order of the High Court is set aside and the order of the Appellate Tribunal is restored. The appellant to get its costs in this Court and the High Court from the respondent State.

The respondent, a company incorporated in the former State of Bhopal, presented a petition in August 1960 under article 226 of the Constitution in the High Court of Madhya Pradesh for a writ restraining the State of Madhya Pradesh from enforcing the Bhopal State Agricultural Income tax Act, 1953, claiming that the Act contravened the respondent 's right under article 14 of the Constitution. By the the territory of the State of Bhopal was 847 incorporated from November 1, 1956 into the newly formed State of Madhya Pradesh. The by section 119 continued the operation of the laws in force in the territories in which they were previously in force until the competent legislature or authority amended, altered or modified these laws. Shortly after the reorganisation. the Madhya Pradesh Adaptation of Laws Order, 1956 was issued so as to make certain laws applicable uniformly to the entire State and later the Legislature by the Madhya Pradesh Extension of Laws Act, 1958 made other alterations in the laws applicable to the State. But Bhopal Act 11 of 1953 remained unamended or unaltered: nor was its operation extended to the other areas or regions in the State with the result that Agricultural Income tax was levied within the territory of the former State of Bhopal and not in the rest of the territory of the State of Madhya Pradesh. The High Court held that the provisions of Bhopal Act 11 of 1953 contravened article 14 of the Constitution and observed that though the State had removed diversity in some of the laws of the component regions, no attempt was made to remove discrimination between the territory of the former Bhopal State and the rest of the territories of the State of Madhya Pradesh with respect to this law. Held: (i) Where application of unequal laws is reasonably justified for historical reasons, a geographical classification founded on those historical reasons would be upheld. The legislature has always the power to make special laws to attain particular objects and for that purpose has authority to select or classify persons, objects or transactions upon which the law is intended to operate. Differential treatment becomes unlawful only when it is arbitrary or not supported by a rational relation with the object of the statute. Bhaiyalal Shukla vs State of Madhya Pradesh, [1962] Supp. 2 S.C.R. 257, The State of Madhya Pradesh vs The Gwalior Sugar Co., , Maharaj Kumar Prithivi Rai vs State of Rajasthan, C.A. Nos. 327 328, dated 2 11 1960 and Anand Prasad Lakshminivas Ganeriwal vs State of Andhra Pradesh, A.I.R. 1953 S.C. 853. relied on. State of Rajasthan vs Rao Manohar Singhji, [1954] S.C.R. 996, explained. (ii) It would be impossible to lay down any definite time limit within which the State had to make necessary adjustments so as to effectuate the equality clause of the Constitution. It cannot be said that because a certain number of years have elapsed or that the State has made other laws uniform, the State has acted improperly in con tinuing an impost which operates upon a class of citizens more harshly than upon others. (iii) To make out a case of denial of the equal protection of laws under article 14, a plea of differential treatment is by itself not sufficient. An applicant pleading such denial must make out that not only he 848 had been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is Unjustifiably made.

N: Civil Appeal Nos. 1629 to 1631 of 1968. Appeals from the judgment and order dated January 29, 1965 of the Calcutta High Court in Wealth Tax Matter No. 372 of 1961. B. Sen, T.A. Ramachandran, R.N. Sachthey and B.D. Sharma, for the appellant (in 'all the appeals). M.C. Chagla, R.K. Choudhury and B.P. Maheshwari, for the respondent (in all the appeals). The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by certificate granted under section 29(1) of the Wealth Tax Act,1957 (hereinafter referred to as the Act) against the judgment of the Calcutta High Court dated January 29, 1965 in Wealth Tax Matter No. 372 of 1961. The respondent is a company which is assessed to wealthtax for the assessment years 1957 58,1958 59 and 1959 60. In computing the net wealth of the respondent on the respective valuation dates the Wealth Tax Officer proceeded under section 7(2)(a) of the Act and included the full value of the fixed assets as shown by the respondent in the respective balance sheets without any adjustment, after rejecting its contention that the fixed assets should be assessed at their written down value as computed for the purposes of income tax. In the assessment order 791 for 1957 58 the Wealth tax Officer gave his reasons as follows : "The assessee claimed that since the full amount of depreciation which was admissible under the Incometax Act was not provided in the balance sheet the amount of depreciation not provided for earlier should now be deducted from the value of the assets in order to arrive at the net wealth. This contention can hardly be accepted. The depreciation allowable under the Income tax Act does not determine the market value of the assets. The object of allowing depreciation in the income tax assess ment is quite different For the purpose of the wealth tax assessment the value of the assets as estimated by the assessee itself in its balance sheet has been accepted". Similarly in his assessment order for 1958 59 the Wealth tax Officer stated as follows : "Excluding the value of land, the total value of the fixed assets as per balance sheet amounts to Rs. 60,53,811 whereas the assessee has shown in its return the value of the same at Rs. 7,69,435. These values have been shown by the assessee on the basis of income tax written down value and not on the basis of the balance sheet values as required under the global system of valuation. It is common knowledge that the values of the imported machinery has increased considerably during the last few years and, on the valuation date, I do not think that their value should be less than that provided for in the balance sheet". On appeal the Appellate Assistant Commissioner confirmed the valuation of the fixed assets. On further appeal the Income tax Appellate Tribunal held that it would be fair in the circumstances of the case to adopt the written down value of the assets as value thereof for all the years under appeal. In the course of its order the Appellate Tribunal said: "The income tax assessment depreciation is calculated upon the original cost in a scientific and systematic manner with due regard to the nature of the asset. Therefore, the written down value as determined in the income tax assessment may be taken as the fair index of the net value of the business assets in most cases . . It cannot however be laid down as an inflexible rule of law that in every case the written down value must be taken to be the net 792 value of the business assets. If that were so. the Legislature would have said so in clear terms instead of indulging in the circumlocution in section 7(2)(a). In this particular case, it appears, the assessee did not make any reserve for depreciation and the assets are old dating back from the inception of the business long ago. In these circumstances, in our opinion, it would be fair to adopt the written down value of the assets as the value thereof for all the years under appeal . " At the instance of the Commissioner of Income tax the Appellate Tribunal stated a case to the High Court under section 27(1) of the Act on the following question of law : "Whether on the facts and in the circumstances of the case, for the purpose of determining the net value of the assets of the assessee under section 7(2) of the the Tribunal was right in directing that the written down value of the fixed assets of the assessee should be adopted as the value thereof, instead of their balance sheet value ?" By its judgment dated January 29, 1965 the High Court answered the question in the affirmative and in favour of the respondent. Section 7 of the Act stood as follows at the material time : "(1) The value of any asset, other than cash, for the purposes of this Act, shall be estimated to be the price which in the opinion of the Wealth tax Officer it would fetch if sold in the open market on the valuation date. (2) Notwithstanding anything contained in subsection (1), (a) where the assessee is carrying on a business for which accounts are maintained by him regularly, the Wealth tax Officer may, instead of determining separately the value of each asset held by the assessee in such business, determine the net value of the assets of the business as a whole having regard to the balance sheet of such business as on the valuation date and making such adjustments therein as the circumstances of the case may require. 793 In Kesoram Industries & Cotton Mills Ltd. vs Commissioner of Wealth Tax, (Central) Calcutta(1) the appellant company had shown in its balance sheet for the period ending March 31, 19.57, the appreciated value on revaluation of its assets, after making certain adjustments, at Rs. 2,60,52,357 and had introduced in the capital reserve surplus a corresponding balancing figure of Rs. 1,45,87,000 representing the increase in the value of the assets upon re valuation. For the purposes of wealth tax the officer took the sum of Rs. 2,60,52,357 as the value of the assets, whereas the company contended that an adjustment ought to be made in view of the increase in the value shown in the balance sheet on re valuation. It was held by this Court that as no one could know better the value of the assets than the assessee himself, the Wealth tax Officer was justified in accepting the value of the assets at the vigour shown by the appellant company itself. It was open to the appellant company to convince the authorities that that figure was inflated for acceptable reasons; but it did not make any such attempt. It was also open to the Wealth tax Officer to reject the figure given by the appellant company and to adopt another figure if he was, for sufficient reasons, satisfied that the figure given by the appellant was wrong. It is argued on behalf of the appellant in the present case that the High Court was not right in holding that the principle laid down by this Court in Kesoram Industries(1) case is not applicable. In our opinion there is justification for this argument. Under sub section (1 ) of section 7 of the Act the Wealth tax Officer is authorised to estimate for the purpose of determining the value of any asset, the price which it would fetch, if sold in the open market on the valuation date. But this rule in the case of a running business may often be inconvenient and may not yield a true estimate of the net value of the total assets of the business. The legislature has, therefore, provided in sub section (2) (a) that where the assessee is carrying on a business for which accounts are maintained by him regularly, the Wealth tax Officer may determine the not value of the assets of the business as a whole, having regard to the balancesheet of such business as on the valuation date and make such adjustments therein as the circumstances of the case may require. The power conferred upon the tax officer to make adjustments as the circumstances of the case may require is also for the purpose of arriving at the true value of the assets of the business. It is of course open to the assessee in any particular case to establish after producing relevant materials that the value given of the fixed as.sets in the balance sheet is artificially (1) ; 794 inflated. It is also open to the assessee to establish by acceptable reasons that the written down value of any particular asset represents the proper value of the asset on the relevant valuation date. In the absence of any material produced by the assessee to demonstrate that the written down value is the real value, the Wealth tax Officer would be justified in a normal case in taking the value given by the assessee itself to its fixed assets in its balance sheet for the relevant year as the real value of the assets for the purposes of the wealth tax. It is a question of fact in each case as to whether the depreciation has to be taken into account in ascertaining the true value of the assets. The onus of proof is on the assessee who must produce reliable material to show that the written down value of the assets and not the balance sheet value is the true value. If, therefore, the assessee merely claims that the written down value of the assets should be adopted but fails to produce any material to show that the written down value is the true value, the Wealth tax Officer is justified in rejecting the claims and adopting the values shown by the assessee himself in his balance sheet as the true value of his assets. In our opinion the High Court should have based its decision on the principle of Kesoram Industries(1) case and the question of law should be answered in the manner stated by us in this judgment. But it is necessary to give certain effective directions in this case. Section 27(6) of the Act requires the Tribunal on receiving a copy of the judgment of the Supreme Court or the High Court as the case may be to pass such orders as are necessary to dispose of the case conformably to such judgment. This clearly imposes an obligation upon the Tribunal to dispose of the appeal in the light and conformably with the judgment of the Supreme Court. Before the Tribunal passes an order disposing of the appeal there would normally be a hearing. The scope of the hearing must of course depend upon the nature of the order passed by the Supreme Court. If the Supreme Court agrees with the view of the Tribunal the appeal may be disposed of by a formal order. But if the Supreme Court disagrees with the Tribunal on a question of law, the Tribunal must modify its order in the light of the order of the Supreme Court. If the Supreme Court has held that the judgment of the Tribunal is vitiated because it is based on no evidence or because the judgment proceeds upon a misconstruction of the statute, the Tribunal would be under a duty to dispose of the case conformably with the opinion of the Supreme Court and on the merits of the dispute and re hear the appeal. In all cases, however, opportunity must be afforded to the parties of being heard. In Income(l) ; 795 tax Appellate Tribunal, Bombay vs S.C. Cambatta & Co. Ltd.(1) the Bombay High Court has explained the procedure followed in the disposal of an appeal conformably to the judgment of the High Court. Chagla C.J. in delivering the judgment .of the Court observed : ". . when a reference is made to the High Court e her under section 66(1) or section 66(2) the decision of the Appellate Tribunal cannot be looked upon as final; in other words, the appeal is not finally disposed of. It is only when the High Court decided the case, exercises its advisory jurisdiction, and gives directions to the Tribunal on questions of law, and the Tribunal reconsiders the matter and decides it, that the appeal finally disposed of . . it is clear that what the Appellate Tribunal is doing after the High Court has heard the case is to exercise its appellate powers under section 33 . The shape that the appeal would ultimately take and the decision that the Appellate Tribunal would ultimately give would entirely depend upon the view taken by the High Court. " This passage was quoted with approval by this Court in Esthuri Aswathiah vs Commissioner of Income tax(2). In the present case, therefore, the answer we have furnished to the question in the reference means that the Appellate Tribunal must now, in conformity with the judgment of this Court, act under section 27(6) of the Act, that is to say, dispose of the case after rehearing the respondent company and the Commissioner in the light of the evidence and according to law. There will be no order as to costs. G.C. (1) , 120.

The respondent company was assessed to wealth tax for the assessment years 1957 58, 1958 59 and 1959 60. In computing the net wealth of the respondent on the respective valuation dates the Wealth Tax Officer proceeded under section 7(2)(a) of the Act and included the full value of the fixed assets as shown by the respondent in the respective balance sheets without any adjustment, after rejecting` its contention that the fixed assets should be assessed at their written down value as computed for the purposes of income tax. The Appellate Assistant Commissioner confirmed the valuation but the Income tax Appellate Tribunal held that it would be fair in the circumstances of the case to adopt the written down value of the asset 's as value thereof for all the years under appeal. On reference being made to it under section 27(1) of the Wealth Tax Act the High Court held in 'favour of the respondent. The Revenue appealed, HELD: The rule of valuation on the basis of market value under section 7(1) of the Act may not yield a true estimate of the net value of the total assets in the case of a running business. The legislature has therefore provided in sub section (2)(a) that when the assessee is carrying on a business for which accounts are maintained by him 'regularly, the Wealth Tax Officer may determine the net value of the business as a whole, having regard to the balance sheet of such business as on the valuation date and make such adjustments therein as the circumstances of the case may require. The power conferred upon the tax officer to make adjustments as the circumstances of the case may require is also for the purpose of arriving at the true value of the assets of the business. It is of course open to the assessee in any particular case to establish after producing relevant materials that the value given of the fixed assets in the balance sheet is artificially inflated. It is also open to the assessee to establish by acceptable reasons that the written down value of any particular asset represents the proper value of the asset on the relevant valuation date. In the absence of any material produced by the assessee to demonstrate that the written down value is the real value the Wealth tax Officer would be justified in a normal case in taking the value given by the assessee itself to its fixed assets in the balance sheet for the relevant year as the real value of the assets for the purposes of the Wealth tax. It is a question of fact in each case as to whether the depreciation has to be taken into account in ascertaining the true value of the assets. The onus of proof is on the assessee who must produce reliable material to show that the written down value of the assets and not the balance sheet value is the true value. [793 E 794 C] 790 If, therefore, the assessee merely claims that the written down of the assets should be adopted but fails to produce any material to show that written down value is the true value, the Wealth tax Officer is justified in rejecting the claims and adopting the values shown by the assessee himself in his balance sheet as the true value of his assets. [794 C D] Kesoram Industries & Cotton Mills Ltd. vs Commissioner of Wealthtax (Central) Calcutta, ; , applied. (ii) Section 27(6) of the Act requires the Tribunal on receiving a copy of the judgment of the Supreme Court or the High Court as the ease may be to pass such orders as are necessary to dispose of the case conformably to such judgment. [794 E] If the Supreme Court agrees with the view of the Tribunal the appeal may be disposed of by a formal order. But if the Supreme Court disagrees with the Tribunal on a question of law, the Tribunal must modify its order in the light of the order of the Supreme Court. If the Supreme Court has held that the judgment of the Tribunal is vitiated because it is based on no evidence or because the judgment proceeds upon a misconstruction of the statute, the Tribunal would be under a duty to dispose of the case conformably with the opinion of the Supreme Court and on the merits of the dispute and re hear the appeal. In all cases, however, opportunity must be afforded to the parties of being heard. [794 F H] Income tax Appellate Tribunal, Bombay, vs S.C. Cambatta vs Commissioner of Income tax, , applied.

Civil Appeal No. 2057 of 1979. Appeal by Special Leave from the Judgment and Order dated 11 1 1979 of the Delhi High Court in L.P.A. No. 46/73. S.R. Srivastava for the Appellant and Dr. N.C. Shinghal (in person) P.P. Rao, and Miss A. Subhashini for Respondents 1 & 2. B.R. Aggarwal for Respondent No. 15. The Judgment of the Court was delivered by DESAI, J. A highly qualified ophthalmic surgeon feeling aggrieved that he has not been justly treated in the matter of promotion to a post in Supertime Grade II seeks redress of his grievance praying for a mandamus that he may be deemed to have been promoted from February 18, 1971, failing which more out of frustration and less by any justification he seeks quashing of the promotion of respondents 4 to 24 though convinced that even if the Court were to accede to his request he is in no way likely to be benefited by this bizarre exercise. 51 First to the fact situation. The Union of India has framed Central Government Health Scheme and in implementation thereof has set up various institutions for medical relief and medical education. A Central Health Service became a necessity for effectively implementing the scheme. With a view to constituting the Service, Central Health Service Rules 1963 ( '1963 Rules ' for short), were framed and brought into operation on May 15, 1963. The Rules envisaged categorisation of personnel manning the Service into five different categories, to wit, category 'A ' supertime scale Rs. 1600 2000, category 'B ' supertime scale Rs. 1300 1600, category 'C ' senior scale Rs. 675 1300, category 'D ' junior scale Rs. 425 950 and category 'E ' class II scale Rs. 325 800. On account of various imponderables the Service could not be constituted and 1963 Rules were amended by Central Health Service (Amendment) Rules, 1966, ( '1966 Rules ' for short). Initial constitution of Service was to be on and from September, 9, 1966. 1966 Rules contemplated again the division of Service into four categories, namely, category I comprising supertime grade I Rs. 1800 2250; supertime grade II Rs. 1300 1800; category II consists of Specialists ' grade Rs. 600 1300; category III includes General Duty Officers grade I Rs. 450 1250; and category IV comprises General Duty Officers grade II Rs. 350 900. 1966 Rules provided the method of initial constitution of the Service. Rules 7A(1) and 7A(2) provided for absorbing departmental candidates holding posts in categories 'A ' and 'B ' under 1963 Rules in posts in supertime grade I and supertime grade II respectively of reorganised Service under the 1966 Rules. Those in service on September 9, 1966, and holding post in categories 'C ', 'D ' and 'E ' were absorbed either in the Specialists ' grade or General Duty Officers, grade as the case may be. For the purposes of constitution and absorption of departmental candidates on the date of initial constitution of re organised service a Selection Committee was set up and absorption was made in accordance with the recommendations of the Committee This process of absorption was over in March 1967, but the constitution of the Service was deemed to be effective from September 9, 1966. There were some promotions to supertime grade II up to 1971 but as they are not the subject matter of dispute in this appeal they may be ignored. There was also direct recruitment to the Service between 1966 and 1971. Between February 1971 to July 17, 1978, when the appellant came to be promoted to supertime grade II, respondents 4 to 24 were promoted on different dates to supertime grade II, The promotion of respondents 4 to 24 is challenged by the appellant on diverse grounds 52 but the principal contention is that their promotions are in contravention of rule 8 of 1966 Rules. Rule 8 provides for future maintenance of the Service. Relevant for the present appeal is rule 8(3) which provides for recruitment to supertime grade II both by promotion and nomination by direct recruitment. As the appellant claims promotion to supertime grade II from February 18, 1971, and simultaneously questions promotion of respondents 4 to 24 to supertime grade II on various dates after February 18, 1971, and before July 17, 1978, when he was actually promoted, on a certain interpretation of the relevant rule, it may be here extracted: xx xx xx "8. Future maintenance of the service After appointments have been made to the Service under rule 7 and rule 7A, future vacancies shall be filled in the following manner, namely: xx xx xx (3) Supertime Grade I (a) Fifty percent of the vacancies in Supertime Grade II shall be filled by promotion of: (i) General Duty officers, Grade I, with not less than ten years of service in that category; or (ii) Specialists ' Grade officers with not less than eight years of service in that category; in the ratio of 2:3 on the recommendation of a Departmental Promotion Committee on the basis of merit and seniority of the officer 's concerned; Provided that no person shall be eligible for appointment to any such post unless he possesses the qualifications and experience requisite for appointment to such post. Provided that where the case of an officer appointed to any post in the grade of General Duty Officer, Grade I or the Specialists ' Grade, as the case may be, is considered for the purposes of promotion to any posts in Supertime Grade II under this sub rule, the cases of all persons senior to such officer in the grades of General Duty Officer, Grade I or Specialists ' Grade, as the case may be, shall also be considered, notwithstanding that they may not have rendered 10 years or 8 years of service, respectively, in those grades". To appreciate the contention of the appellant as to how he claims promotion to supertime grade II on February 8, 1971, it may be noted 53 that effective from that date the Central Government converted one post from amongst unspecified specialists ' Grade posts in supertime Grade II in Ophthalmology Speciality at Willingdon Hospital and transferred Dr. B.S. Jain, respondent 3, who was then working as Chief Ophthalmologist cum Associate Professor of Ophthalmology, Himachal Pradesh Medical College, Simla, and offered the vacancy in super time grade II caused by the transfer of respondent 3, to appellant who was next in seniority by way of promotion on ad hoc basis as per memorandum dated December 7, 1970. Appellant responded to this offer as per his letter dated December 9, 1970, wherein after putting forward various personal inconveniences and a possible loss in emoluments even on promotion, he concluded his response to the offer as under: "In view of my personal problems and in the public interest I most humbly request that this promotion may kindly be granted to me while in Delhi. " Thereafter the Government offered the post to Dr. Radha Natarajan but she declined the offer. Subsequently the Government offered the post to Dr. M.C. Sharma who accepted the same but he was not appointed and ultimately Dr. G.C. Sood was promoted to supertime grade II post and was appointed at Simla. Appellant contends that when a post in Ophthalmology at Willingdon Hospital was created on February 1, 1971, by conversion of one post from amongst unspecified Specialists ' grade posts in supertime grade II that post could only have been filled in by promotion from amongst those holding the post in Specialists ' grade in ophthalmology speciality and he being the seniormost and otherwise qualified, he should have been promoted from that date. Simultaneously he contends that filling in the post so created in supertime grade II at Willingdon Hospital by transfer of respondent 3 Dr. B.S. Jain was in violation of the statutory rule and hence invalid. He also contends that as he was not qualified to hold the post of Chief Ophthalmologist cum Associate Professor of Ophthalmology, Himachal Pradesh Medical College, Simla, because it was a teaching post and he lacked teaching experience which was an essential qualification, the offer of that post to him was merely an eye wash and he could not have accepted the same. It is necessary to examine three different limbs of the submission separately. Rule 5 of 1966 Rules provides for authorised strength of the Service. The authorised strength of the various categories of the service on the date of commencement of 1966 Rules shall be as specified in the first schedule. Part A of the first schedule deals with supertime 54 grade I and Part B deals with supertime grade II. Part C deals with Specialists ' grade. The vertical promotional channel is from specialists ' grade and General Duty Officers Grade I to supertime grade II and from thereon to supertime grade I. On the date of initial constitution of Service there were 275 permanent and 102 temporary, in all 377 posts in specialists ' grade. Out of this strength of posts in specialists ' grade, 28 posts were upgraded to supertime grade II, 19 being classified as unspecified specialists ' posts and 9 unspecified posts. To that extent the permanent strength of posts in specialists ' grade was reduced by 28 so as to leave it at 247. There is no dispute that 19 unspecified Specialists ' posts and 9 unspecified posts were upgraded to supertime grade II. The controversy is how these posts were to be filled in. Appellant contends that as these 28 posts were in Specialists ' grade and the strength of Specialists ' grade posts was reduced by 28, whenever any post out of these 28 posts added to supertime grade II is required to be filled in, it can only be filled in by promotion from amongst those originally belonging to specialists ' grade, i.e. category 'C ' under 1963 Rules. Simultaneously he contends that as these unspecified specialists ' grade posts and unspecified posts, 28 in number, can be filled in from those belonging to specialists ' grade, ipso facto they can only be filled in by promotion and not either by direct nomination or by transfer. In support of this submission reliance is also placed on an affidavit filed on behalf of Union of India in a petition filed by Dr. B.S. Jain wherein it was in terms stated that these 28 posts could only be filled in by promotion and in no other manner. The raison d 'etre for upgrading the 28 posts from specialists ' grade to supertime grade II yet dividing them in two separate categories each having its own nomenclature, viz., 19 posts designated as unspecified Specialists ' grade posts and 9 designated as unspecified posts is not difficult to discern. Unlike other professions, medical profession has developed branchwise expert specialised knowledge referable generally to number of parts in which human anatomy is divisible. General medicine and general surgery are two broad genus but under each one of them there are numerous specialities and there is intensive study and research in speciality for being qualified for the speciality. Being an expert in any one speciality simultaneously results in being excluded from other specialities even though the specialities may be species of a genus like general medicine or general surgery. Again, in each speciality there will be a post of a Lecturer, an Assistant Professor, an Associate Professor and a Professor with a vertical movement by way of promotion. In a non teaching hospital there will be posts like Junior Surgeon, 55 Senior Surgeon, Head of the Department and so on. In a profession so compartmentalised specialitywise, ex hypothesi it is difficult to provide for promotional avenue by way of a general seniority list integrating different specialities categorywise, cadrewise or gradewise. If such a general seniority list including persons belonging to different specialities albeit in the same grade is drawn up for purposes of promotion it might lead to a startling result because the need may be of a promotional post in a speciality and the man at top of the seniority list may not belong to that speciality but may belong to a different speciality and if any promotion was to be given to him to a post in a speciality for which he is neither qualified nor eligible it would be impossible to give vertical promotions by referring to such general seniority list. If the promotion is to a post generally called administrative post in a hospital a general seniority list including experts belonging to different specialities may be helpful but when promotions are to be given to posts in different specialities a general seniority list is not only unhelpful but may really impede the process of promotion. Again, demands of different specialities for additional strength may differ from hospital to hospital, from area to area and even from time to time. In order to meet such unforeseen eventualities the rules provide for an addition to the strength of supertime grade II by keeping 19 posts designated as unspecified Specialists ' grade posts and 9 unspecified posts in a pool. Whenever a demand came for providing a higher post in supertime grade II in any particular speciality ordinarily where the strength of the service is prescribed a post will have to be created which any one familiar with bureaucratic jagornot would immediately realise how time consuming it is. Anticipating such a situation and to meet with the demands of specialities within a reasonable time it was provided that there would be a pool of 19 unspecified Specialists ' posts in supertime grade II and 9 unspecified posts also in supertime grade II. This would facilitate conversion from the pool of unspecified Specialists ' posts of an unspecified Specialists ' post to a specified Specialist post in a speciality where a need has been felt. Once the need is felt and a post is converted from an unspecified post to a specified post in supertime grade II it becomes an addition to the strength of that speciality and the post can be filled in, in accordance with the relevant rule. But it is implicit in this arrangement that the person to be appointed to such a post would be one who is eligible to be appointed to that speciality and not some one who is on top of the general seniority list in Specialists ' grade or general duty officers ' grade from which promotion is to be made. If promotion has to be made from a general seniority list which includes all Specialists in the Specialists ' grade the one at the top may be a Cardiologist and the post may be converted into Anesthesiology and it 56 does not require long persuasive argument to hold that a Cardiologist cannot be appointed as an Anaesthetic. It is, therefore, crystal clear that when a post from amongst unspecified Specialists ' posts is converted to a specified post which means specified in the speciality in which a need has been felt from amongst those in the specialists ' grade belonging to that speciality and in order of their inter se seniority a promotion could be given. This position is inescapable and it is difficult to comprehend a position contrary to this. In fact, this situation has been expressly recognised by this Court in Union of India & Ors. vs section B. Kohli & Another, wherein it was held that for being appointed as a Professor in a particular speciality in that case Orthopaedics, the condition that a person must have a post graduate degree in Orthopaedics would not result in any classification without reference to the objectives sought to be achieved and this would not result in any discrimination nor would it be violative of Article 16. In passing a contention of the appellant that all 28 posts which were deducted from the strength of permanent posts in Specialists ' grade and added to supertime grade II must on that account alone be filled in by promotion from those belonging to the specialists ' grade only may be examined. There is no merit in this contention. If there was any substance in this contention there was no reason to provide for two different designations and divide the 28 posts in two different nomenclatures. 28 posts are made up of 19 posts designated as unspecified Specialists ' posts and 9 unspecified posts. Undoubtedly 19 posts which were designated as unspecified Specialists ' post must be filled in from amongst those belonging to the Specialists ' grade but that itself also shows that the remaining 9 unspecified posts can be filled in from amongst those who may be promoted from 'General Duty Officers grade I because General Duty Officers grade I are also promotable to supertime grade II. The nomenclature unspecified Specialists ' post and unspecified post provides an effective answer and indicates that while in the case of the former promotion must be given from Specialists in respect of the latter General Duty Officers Grade I would be eligible for promotion. Merely because all 28 posts were deducted from the strength of posts in Specialists ' grade it could not be said that all 28 posts would be available for promotion to those belonging to Specialists ' grade only. The language employed in rule 5 also points in this direction. There is, therefore, no substance in the contention that all 28 posts must be filled in by promotion from amongst those who belong to Specialists ' grade only. 57 The last limb of the argument is that the 19 unspecified Specialists ' posts in supertime grade II can only be filled in by promotion and not in any other manner and particularly not by transfer. The provocation for this submission is posting of Dr. B. section Jain in supertime grade II post created at Willingdon Hospital in February 1971. Undoubtedly one unspecified Specialists ' grade post was converted and was designated as specified post in supertime grade II in Ophthalmology speciality at Willingdon Hospital in February 1971. Appellant says that once an unspecified Specialists ' grade post was converted into a specified post and that as it was assigned to Ophthalmology speciality, he being the seniormost Ophthalmologist and qualified for the post, that post could only be filled in by promotion and he should have been promoted and the posting of Dr. B. section Jain by transfer to that post was illegal and invalid. Rule 8 provides for future maintenance of the Service. Rule 8(3) provides for 50% of the vacancies in supertime grade II to be filled in by promotion of General Duty Officers Grade I and Specialists ' grade officers in the ratio of 2:3 and the remaining 50% of the vacancies to be filled in by direct recruitment in the manner specified in the second schedule. Now, once an unspecified specialists ' grade post in supertime grade II is converted and made a specified post in a speciality it is an addition to the strength of the speciality and the filling in of such post shall be governed by rule 8 (3). Undoubtedly if it is to be filled in by promotion, that would only be from amongst those belonging to Specialists ' grade officers as the converted post was unspecified Specialists ' post. But to say that it can be filled in only by promotion is to ignore the mandate of statutory rule 8(3) which provides for filling in posts in supertime grade II by either promotion or nomination in the ratio therein prescribed. Once there is a post in supertime grade II which is to be filled in subsequent to the initial constitution of the Service, rule 8 (3) will be attracted in all its rigour. And it should not be overlooked that rule 8 (3) provides for filling in of posts in supertime grade II by promotion as well as by direct recruitment in the ratio of 1:1. On a true interpretation of the 1966 Rules in general and rule 8 (3) in particular it could not be, gainsaid that whenever an unspecified Specialists ' post is converted into a specified post and assigned to a speciality it can be filled in either by promotion or by direct recruitment as the situation warrants according to the rule and as determined by the quota rule. But it was very strenuously contended that the Central Government in implementing the rule has understood and in fact implemented the rule to this effect that whenever an unspecified Specialist 's post is converted as a specified post and assigned to a speciality it can only be filled in by promotion. Reliance was placed upon an affidavit made on behalf of the Central Government in a writ 58 petition filed by Dr. B. section Jain in Delhi High Court. In the counter affidavit on behalf of the Central Government a stand was taken that the 19 unspecified Specialists ' posts were meant only for promoting category 'C ' clinical Specialists to supertime grade II. In Union of India vs Bhim Singh & Ors., the Court refers to the stand taken on behalf of the Union of India in that case as under: "Learned counsel for the appellant (Union of India) submits that these posts were included in supertime grade II not with reference to the actual number of officers who had completed 8 years of service or more on a particular date but only with a view to providing opportunities of promotion to the former Category 'C ' officers holding clinical Specialist posts". It does appear that such a stand was taken on behalf of the Union of India but simultaneously it may be noted that the Court has not accepted the stand. And it would be too late in the day to say that on such a stand of the Union of India, if it runs counter to the rule explicit in meaning, any argument can be founded or any relief can be claimed unless estoppel is urged. And no such estoppel is claimed In P. C. Sethi & Ors. vs Union of India & Ors., the petitioners urged that the view put forward on their behalf had been admitted by the Government in its affidavit filed in connection with certain earlier proceedings of similar nature and other admissions in Parliament on behalf of the Government. Negativing this contention this Court held that such admissions, if any, which are mere expression of opinion limited to the context and not specific assurances, are not binding on the Government to create and estoppel. Similar view was also expressed in J. K. Steel Ltd. vs Union of India where following the earlier decision of this Court in Commissioner of Income tax, Madras vs K. Srinivasan and K. Gopalan, it was observed that the interpretation placed by the Department on various sub sections in the instructions issued by the Department cannot be considered to be proper guide in a matter wherein the construction of a statute is involved. Therefore, it cannot be said that 19 unspecified Specialists ' posts could only be filled in by promotion and such an interpretation or stand would run counter to the express provision contained in rule 8(3) which is statutory. Even if such be the stand of the Central Government it will have to be negatived and was in fact negatived in the case of Dr. B. section Jain. 59 Incidentally it would be incongruous to hold that when a post is created in a certain grade, category or cadre and it is to be filled in, some one who is already in that grade, category or cadre cannot be transferred to that post and the post so vacated by him can be filled in, in the manner prescribed. Even if there was some substance, though there is none, in the contention on behalf of the appellant that whenever unspecified Specialists ' post is converted into a specified post it can only be filled in by promotion yet when some one who is already in that grade is transferred to the newly created post and the post vacated by such transferred employee is offered by way of promotion which in fact was done in this case there is any violation of the rule. As pointed out earlier, when a post is created it is an addition to the strength of that particular category and the additional strength has to be filled in the manner prescribed in the rule and that no sanctity attached to the place where the post is created but the sanctity attaches to the number of posts and the manner of filling them. Now, Dr. B. section Jain was already holding the post in supertime grade II at Simla when a post in supertime grade II in Ophthalmology was created at Willingdon Hospital from amongst unspecified Specialists ' posts. Even if this additional post has to be filled in by promotion as contended by the appellant, it is not open to him to urge that the post at Willingdon Hospital alone must have been filled in by Promotion. Dr. B. section Jain was transferred to the post created at Willingdon Hospital and the post vacated by him which was in supertime grade II was offered to the appellant as and by way of promotion. Therefore, even if the contention of appellant is to be accepted, there is no violation of rule 8(3). Equally it is also not correct to contend that Dr. B. section Jain could not have been transferred to the post created at Willingdon Hospital. Transfers in posts which are in the same grade or are considered equivalent can be affected on administrative exigencies. Once a new post is created and it is an increase in the strength of the Cadre in which the post is created, every one in that cadre is eligible to fill in that post and transfer is permissible. Transfer of Dr. B. section Jain is, therefore, beyond question. In E. P. Royappa vs State of Tamil Nadu & Anr., it is observed that the services of cadre officers are utilised in different posts of equal status and responsibility because of exigencies of administration and employing the best available talent in suitable post. There is no hostile discrimination in transfer from one post to other when the posts are of equal status and responsibility. Therefore, it is futile to urge that filling in the post created at Willingdon Hospital in supertime grade II by transfer of Dr. B. section Jain, a person already promoted to supertime grade II was invalid 60 in as much as the post was not filled in by promotion or direct recruitment but by transfer. The next contention is that the refusal of the appellant to accept the post at Simla offered to him will not debar him from promotion because the appellant was not qualified for the post at Simla. If an employee eligible for promotion is offered a higher post by way of promotion, his refusal to accept the same would enable the employer, the Central Government in this case, to fill in the post by offering it to a junior to the Government servant refusing to accept the post and in so acting there will be no violation of article 16. Further, the Government servant who refuses to accept the promotional post offered to him for his own reasons cannot then be heard to complain that he must be given promotional post from the date on which the avenue for promotion opened to him. Appellant being conscious of this position tried to circumvent it by saying that the Post at Simla offered to him by way of promotion in super time grade II was a teaching post for which he was not qualified and, therefore, his refusal to accept the same cannot come in his way from claiming promotion from the very date on which he refused to accept the promotion to a post for which he was not qualified. Appellant went so far as to suggest that the Government action in offering him the post at Simla was actuated by malice in that while making a show of offering him a promotional post it so deliberately acted as would impel the appellant to refuse the same. Says the appellant that one post from the pool of unspecified specialists, posts was converted to a specified post in Ophthalmology and was sanctioned at Willingdon Hospital which is not a teaching hospital and, therefore, the appellant was fully qualified for being promoted to that post. Instead of acting in this straight forward manner the Government transferred Dr. B. section Jain from Simla to the post newly created at Willingdon Hospital and purported to offer the Simla post to the appellant for which appellant was not qualified and thus deliberately thwarted the promotional opportunity of the appellant and that this smacks of malice. To substantiate this submission the appellant points out that the designation of the post at Simla was Chief Ophthalmoligist cum Associate Professor of Ophthalmology, Himachal Pradesh Medical College, Simla. This according to the appellate was a teaching post and the qualification prescribed by the regulation framed by the Medical Council of India requires as an essential qualification a teaching experience as Reader or Assistant Professor in Ophthalmology for five years in a Medical College after requisite post graduate qualification. It was further stated that the appellant had no teaching qualification though he started teaching at the Safdarjang Hospital when he was recognised as a post graduate teacher in Ophthalmology but 61 his teaching experience extended to barely two weeks. It was also said that essential teaching experience prescribed by the Medical Council of India under its regulation is not relaxable and that, therefore, appellant was not qualified for the post of Associate Professor which was offered to him. In S.B. Kohli 's case (Supra) this Court did observe that a discretion to relax teaching experience qualification is conferred only on the U.P.S.C. in cases of direct recruitment and not to the Departmental Promotion Committee in case of promotion. That being the intent of the law it is to be given effect to. This observation is in a slightly different context but one may safely proceed on the assumption that essential teaching qualification for the post of an Associate Professor prescribed by Medical Council of India is not relaxable. Therefore it can be said with some justification that the appellant who did not have the requisite teaching experience was not qualified for the post of Associate Professor. But this want of qualification impelling refusal to accept promotion appears to be an afterthought on his part. When the promotional post was offered to him as per letter dated December 7, 1970, appellant did not reply by saying that he was not qualified for the post. In his reply dated December 9, 1970, to the offer made by the Government appellant pointed out that he was involved in some litigation with regard to his house and that his stand for eviction would be weakened by his transfer. He then proceeded to point out that he was suffering from chronic bronchitis and that the climate at Simla may not suit him. He also pointed out the adverse effect of climate on the health of his wife. He then proceeded to point out that apart from his personal problems he was engaged in the Safdarjang Hospital for teaching of post graduate students and, therefore, he requested the Government "the post of Chief Ophthalmologist cum Associate Professor of Ophthalmology may kindly be bestowed on me at Safdarjang Hospital where there is essential need for such a post". Could this be the stand of a person offered a promotional post honestly believing that he was not qualified for the same? The post offered to him was of Chief Ophthalmologist cum Associate Professor. Appellant believes and now says that he was not qualified for the same if the post was at Simla but if the same post was created at Delhi with the same designation with the same responsibility for teaching and that too at the post graduate level he considered himself to be fully qualified for the same and requested the Government to bestow that post on him. He then proceeds to point out his merits and puts forth his disinclination for being promoted to the post at Simla. In the face of his bold statement that he is prepared to be appointed as Chief Ophthalmologist continuing to do teaching work at the post graduate level at the Safdarjang Hospital, he now wants to assert that he was not qualified for the post. This convenient after 62 thought cannot decry the fact that the appellant declined to accept the post at Simla not because he believed he was not qualified for the post but because he was not inclined to leave Delhi, may be for reasons which may be true and compelling for him. This becomes explicit from a further averment in paragraph 7 of his reply wherein he pointed out to the Central Government that even though he was selected by the U.P. Government for the post of Chief Medical officer, Gandhi Memorial Eye Hospital, Aligarh, on a fabulous salary of Rs. 3,000/ p.m. and which offer was transmitted to him through the Government so as to enable the Government to release him and although the Government was considering his release on deputation for the post but he himself declined the offer because of domestic problems. There is thus no room for doubt that the appellant considers himself qualified for any post in Delhi and was under no circumstances willing to leave Delhi and his disinclination to accept any post at Simla stemmed not from his honest belief that he was not qualified for the post but because he was not inclined to leave Delhi. Undoubtedly it may be that under the regulation stricto sensu he may not be qualified for the post of Associate Professor because he did not possess the requisite teaching experience. But an ad hoc arrangement could have been made and it was open to the central Government, if the appellant had accepted the post, to move the Medical Council of India to permit the Central Government to appoint the appellant at Simla. Some way could have been found but the door was bolted by the appellant himself declining the offer for reasons other than his qualification which he may have found compelling. In this background it is difficult to accept the submission of the appellant that the offer made by the Government was an eye wash or a make believe and, therefore, his refusal to accept the offer of promotion would not postpone his promotion. Incidentally it would be advantageous to take note of the fact at this stage that the appellant was promoted to supertime grade II on July 17, 1978 and between February 1971 when he declined to accept promotion and July 1978 when he was in fact promoted, no one junior to him in the speciality to which he belongs was ever promoted overriding his claim to supertime grade II. Therefore, if since his refusal to accept promotion at Simla appellant was never superseded by any one junior to him in his speciality it is difficult to entertain the contention that in refusing promotion to him when some posts were converted from unspecified Specialists ' posts into different specialities and were filled in by those who were qualified to be promoted in the respective speciality in which the post was created he could be said to have been superseded in violation of article 16. And in this view of the matter nothing more need be examined but as certain other contentions were advanced 63 which even if accepted would not in any case benefit the appellant, it appears to us an exercise in futility but we would rather dispose them of than gloss over them. In the High Court appellant canvassed twofold contention that between 1966 and 1971, i.e. after the initial constitution of service and before the proposal offering promotion to the appellant at Simla was made 25 promotions were given to supertime grade II to persons who were ineligible for the same and secondly after February 1971 and before July 1978 when he was actually promoted to supertime grade II, 29 promotions were given to supertime grade II some of whom are respondents 4 to 24 and that their promotion was in contravention of rule 8(3) of the Rules and, therefore, invalid. Before this Court the first limb of the argument, namely, invalidating promotions between 1966 and 1971 to supertime grade II was not canvassed. It was the second limb of the argument that was pressed into service. None of those who were promoted between February 1971 and July 1978 belonged to the speciality to which appellant belongs. Each of them belonged to a different speciality and admittedly appellant was not qualified for being promoted to any supertime grade II post in the speciality in which each one of them was promoted. When this aspect became clear a question was posed to the appellant how he would be benefited even if his contention were to prevail that none of them was eligible for promotion to supertime grade II and, therefore, the promotion of each of them deserved to be quashed. The answer was that there is a common seniority list of persons belonging to supertime grade II and promotion to supertime grade I is by seniority and that promotion of respondents 4 to 24, if quashed, would push the appellant higher up in seniority above them and would enhance his chances of promotion to supertime grade I. Remote chances of promotion could hardly be said to be condition of service which if impaired would be violative of article 16. Even assuming that a remote chance of promotion if adversely affected would give a cause of action, it was made clear that the appellant is retiring on superannuation in the last quarter of this year and that even if he is assigned a deemed date of promotion somewhere in February 1971 yet there are number of persons above him in supertime grade II who were promoted between 1966 and 1971 and appellant has not even a remote chance of promotion. Appellant at that stage reacted by saying that even if it be true, yet the promotions of respondents 4 to 24 ought to be quashed because when he with respondents 4 to 24 and others belonging to supertime grade II attend a meeting convened to discuss some administrative matter or for holding charge of higher post temporarily vacant they claim seniority over him and his dignity is impaired. This calls for no comment save 64 and except saying that the approach appears to be more emotional rather than realistic. However, the contention may be examined on merit. Promotion of respondents 4 to 24 was questioned on the ground that each of them was ineligible for promotion to supertime grade II on the date on which each of them was promoted in view of the provision contained in rule 8(3). Rule 8(3) has been extracted herein before. The contention is that since the initial constitution of service on September 9, 1966, any future promotion to supertime grade II from departmental candidates could be from amongst those who qualify for the same as provided for in rule 8(3). Apart from academic qualification, the experience qualification prescribed is that, the General Duty Officers grade I and Specialists ' grade officers should have put in 10 years and 8 years of service respectively in that category. Appellant contents that service in the category means service in that category which was constituted under the 1966 amendment rules. Rule 2(c) defines category to mean a group of posts specified in column 2 of the table under rule 4. Rule 4 provides for classification, categories and scales of pay. It provides that there shall be four categories in the service and each category shall consist of the grade specified in column 2 of the table appended to the rule. The four categories are: first category which includes supertime grade I and supertime grade II posts. Category two is Specialists ' grade posts, category three comprises General Duty officers, grade I and category four includes General Duty Officers grade II. It was contended that the service to be rendered for the qualifying period must be in the category and, therefore, a general Duty Officer grade I can only become eligible for promotion after he renders 10 years of service in that category which came into existence on September 9,1966, and this would apply mutatis mutandis to the Specialists ' grade officers who must put in 8 years of service in the category which came into existence on September 9, 1966. If this contention were to prevail, apart from anything else, appellant himself would not have been qualified for promotion to supertime grade II in February 1971 from which date he claims as being eligible for promotion to supertime grade II because he had not put in 8 years of service in the category of specialists ' grade officers formed on September 9, 1966. That apart, it is impossible to overlook the history of the Service. The rules were initially framed in 1963. At that time the service was sought to be classified in 5 categories styled category 'A ' to category 'E '. Expression 'category ' in 1963 Rules was defined to mean a group of posts carrying the same scale of pay. Another salient feature of which notice should be taken is that save and except upward revision in scale, category I under the 1966 amendment Rules includes cate 65 gories 'A ' and 'B ' under 1963 Rules. Category 'C ' has been designated as Specialists ' grade, i.e. category II under the 1966 Rules. Category 'D ' is equated with General Duty Officers grade I styled category III and category 'E ' is equated with General Duty officers grade II, i.e. category IV. Expression 'service in the category ' has to be understood in this historical background. It is difficult to entertain the contention that the past service of Specialists ' category 'C ' officers got wholly wiped out merely because the nomenclature of category 'C ' Specialists officers was changed to Specialists ' grade officers replacing the expression 'category C ' by category II. And that would apply mutatis mutandis to General Duty Officers grade I and grade II. The change in the definition of the expression 'category ' appears to be instructive in that by the change service in the post is emphasised and the question of the grade of pay is relegated into background. And this change appears to be with a purpose inasmuch as when certain qualifying service is prescribed for being eligible for promotion in a category the emphasis is on service rendered in a post irrespective of the grade. A specialists ' grade officer belonging to category II was a specialists ' grade officer in category C. He was even then eligible for promotion to supertime grade II. Was it ever intended that a Specialists ' grade officer belonging to category 'C ' under 1963 Rules who had put in more than 8 years of service but who was not promoted prior to September 9, 1966, the date of initial constitution of service, or on the date of initial constitution of service, would be ineligible for promotion for a period of 8 years simply because the designation of the category changed? Was it intended that there should be a complete hiatus for a period of 8 years in promoting Specialists ' grade officers to supertime grade II and for a period of 10 years in case of General Duty Officers grade I. There is no warrant for such an inference from the Rules. Such an intention cannot be attributed to the framers of the Rules nor is it possible to accept the submission of the appellant that the posts could have been filled in by direct recruitment because where candidates eligible for promotion were not available it was open to resort to direct recruitment as provided in the Rules. It is a well recognised canon of construction that the construction which makes the Rules otiose or unworkable should be avoided where two constructions are possible and the Court should lean in favour of the construction which would make the rule workable and further the purpose for which the rule is intended. While prescribing experience qualification in 1966 Amendment Rules, the framers of the Rules could not have intended to ignore wholly the past service. A specialist who was in category 'C ' was included in category II with the designation specialists ' grade officer. Similarly, General Duty Officer grade I in category 'D ' acquired the same nomenclature General Duty Officer grade I in cate 66 gory III. There was an upward revision of pay scales of both the categories. Should the change in designation be understood to mean that the past service rendered as Specialist or as General Duty Officer is wholly wiped out for any future promotion ? Even after change of designation it is not suggested that the duties underwent any change. Same duty was performed a day prior to September 9, 1966, and the day thereafter by both the categories in the respective posts. In this background the High Court was right in holding that the word 'category ' used in rule 8(3)(a) has to be understood to mean the post included in that category and consequently service in that category would mean service in a post included in that category. The appellant contended that this construction would run counter to the posting of former categories 'D ' and 'E ' officers on probation on September 9, 1966, in specialists ' grade and General Duty Officers grade I. In this connection it must be recalled that on initial constitution of Service some persons who were in the category of General Duty Officers were absorbed and appointed in Specialists ' grade and vice versa was true of some persons. It is equally true that Officers belonging to categories 'D ' and E ' were considered in a category lower to category 'C '. It is equally possible, therefore, that on September 9, 1966, i.e. the date of initial constitution of Service some of the officers belonging to categories 'D ' and 'E ' who were absorbed in categories II and III respectively may have been put on probation but for qualifying service for upward promotion service rendered as probationer is not to be ignored. Viewed from either angle it is crystal clear that service rendered in equivalent post prior to the date of initial constitution of Service could be taken into account in calculating qualifying service for next promotion. This was the stand taken by the Government in the affidavit filed in Civil Writ No. 1155/71 filed by Dr. Chandra Mohan in the High Court of Delhi and that appears to be consistent with the construction of rule 8(3). The contention, therefore, that executive instruction cannot run counter to the statutory rule must be rejected as untenable in the facts of this case. It was next contended that the Government was guilty of legal malice in that in February 1971 on a need being felt, a post in supertime grade II in Ophthalmology speciality was sanctioned at Willingdon Hospital and filled in by transfer of Dr. B.S. Jain overlooking and ignoring the rightful claim of appellant and on transfer of Dr. B.S. Jain on March 7, 1972, to Safdarjang Hospital, the post was also transferred to Safdarjang Hospital. In this connection appellant also pointed out that there is material on record to show that the Superintendent of Willingdon Hospital felt an acute need for a post in super 67 time grade II in Ophthalmology speciality and yet it was not created while on the other hand in order to accommodate some favourites like respondents, 4, 5,8,9,12,13 and 15 some posts in different specialities where they could be accommodated were created without the need for the same. There is evidence to the effect that appellant had sent a proposal duly recommended by Medical Superintendent of Safdarjang Hospital to the authorities for creating a supertime grade II post in Eye Department in May 1971 as per letter dated May 3, 1971. There is also material to show that some ad hoc appointments were made in supertime grade II. It is, however, not possible to strike down those appointments on the ground that some posts were created in supertime grade II though not needed wherein some of the respondents were promoted or that there was no justification for creation of posts or for making ad hoc appointments. It should be distinctly understood that not a single post was created in Ophthalmology speciality to which appellant could have been appointed. The need for the post of the requirements of the hospital, or the need for an ad hoc or additional appointment is a matter which the Government is competent to decide and in the absence of requisite material the Court cannot interpose its own decision on the necessity of creation or abolition of posts. Whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity. The Government is a better Judge of the interests of the general public for whose service the hospitals are set up. And whether a hospital catering to the needs of general public providing medical relief in different specialities has need for a particular post in a particular speciality would be better judged by the Government running the hospital. If Government is a better judge it must have the power to create or abolish the posts depending upon the needs of the hospital and the requirements of general public. Creation and abolition of posts is a matter of Government policy and every sovereign Government has this power in the interest and necessity of internal administration. The creation or abolition of post is dictated by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general public (see M. Ramanatha Pillai vs The State of Kerala and Anr). The Court would be the least competent in the face of scanty material to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from malafide, legal or factual. In this background it is difficult to entertain the contention of the appellant that posts were created to accommodate some specific individuals ignoring the requirements of the hospital or the interests of the general public at large. 68 It was next contended that respondent 9, Dr. K.P. Mathur and respondent 23, Dr. A. R. Majumdar should have been considered ineligible for promotion because both of them were adversely commented upon by the Madras High Court as being negligent in discharge of duties and the Government had to pay a sum of Rs. 10,000/ as compensation by way of damages for their negligence. He sought inspection of some files to substantiate this allegation. Unfortunately though respondents 9 and 23 were made parties they did not appear to controvert this fact. But it appears from the record that they were promoted after they were selected by the Departmental Promotion Committee and the promotion was approved by U.P.S.C. Appellant contended that this averment on his part has remained uncontroverted and it must be taken as having been admitted and proved. It may be mentioned that in the petition filed by the appellant in the Delhi High Court this allegation was not specifically averred. In a subsequent affidavit filed by him this allegation was put forth. If respondents 9 and 23 had not appeared in the High Court the appellant should have shown that this subsequent affidavit was served upon them, and in that event alone some adverse inference may be drawn against them. It may be that the Government may not be interested in either denying or admitting this averment which directly and adversely affects respondents 9 and 23. However, in view of the fact that they were selected by the Departmental Promotion Committee and the promotion was approved by the U.P.S.C. it is difficult to entertain the contention at the hand of the appellant who is not in any way going to be benefited by the invalidation of their promotion. It was incidentally urged that promotions given to respondents 9,12,13 and 15 must be set aside because they belonged to former category 'D ' and were given promotions against 19 unspecified posts in contravention of the affidavit of the Government. As stated earlier, there were some specialists in category 'D ' also. At the time of initial constitution of service those who qualified for being appointed General Duty Officers from category 'D ' were absorbed in category III and those who were eligible for being absorbed in Specialists ' grade were so absorbed. After absorption they belonged to the respective category. Thereafter on conversion of posts from the pool of 19 unspecified specialists ' posts they were promoted as being found qualified for the same and for the post to which each one of them was promoted appellant was not qualified and, therefore, the contention that the promotion of the aforementioned four respondents should be set aside has no merit in it. Having examined the challenge to the promotion of respondents 4 to 24 on merits, it must be made clear that the appellant is least 69 qualified to question their promotions. Each one of them was promoted to a post in supertime grade II in a speciality other than ophthalmology and appellant admittedly was not qualified for any of these posts. Even if their promotions are struck down appellant will not get any post vacated by them. Incidentally High Court also upheld their promotions observing that by the time the petition was heard each one of them had requisite service qualification and, therefore, the promotions could not be struck down. Once the challenge on merits fails the second string to the bow need not be examined. Having said all this, appellant is least competent to challenge their promotions. In a slightly comparable situation this Court in Chitra Ghosh and Anr. vs Union of India and Ors. observed as under: "The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the nominations made to the reserved seats. It seems to us that the appellants do not have any right to challenge the nominations made by the Central Government. They do not compete for the reserved seats and have no locus standi in the matter of nomination to such seats. The assumption that if nominations to reserved seats are not in accordance with the rules all such seats as have not been properly filled up would be thrown open to the general pool is wholly unfounded. " It was last urged that the High Court has set aside the promotion of respondent 18, Dr. P. C. Sen who was promoted in 1971 and, therefore, there was an opening in supertime grade II in September 1971 and appellant should be considered eligible for promotion to the post from that date and that this Court should consider appellant 's eligibility for promotion from September 1971 and if found eligible, should grant the same. Dr. P.C. Sen was General Duty Officer grade I and he was posted as Director of Health Services, Manipur. Appellant contends that he was in Specialists ' grade and was senior to Dr. Sen and was not unqualified for the post of Director of Health Services, Manipur, but the post was not offered to him and, therefore, he must be considered eligible for promotion from the date on which Dr. P.C. Sen was promoted. The High Court in L.P.A. 46/74 filed by the appellant has set aside the promotion of Dr. P.C. Sen as also of Dr. Jasbir Kaur but the High Court has not thought fit to direct the Government by a mandamus to consider eligibility of the appellant for the post of Director of Health Services, Manipur. There is no material before us whether the appellant was qualified for the post. If he was eligible it would be for the Government to consider how it should deal with the post. We 70 are, however, surprised that the appellant who was not prepared to go to Simla in February 1971 would have been willing to go to Manipur in September 1971. In our opinion it would be giving him an unfair advantage now by giving a technical benefit of a situation whereby promotion of Dr. Sen has been invalidated by the High Court. Neither Dr. Sen nor the Government have preferred appeal against the judgment by which the promotions of Dr. P.C. Sen and Dr. Jasbir Kaur were invalidated by the High Court. But the matter must remain at that stage and there is no justification for giving a direction that the appellant should be considered for the post which is deemed to have fallen vacant in September 1971 on the invalidation of promotion of Dr. P.C. Sen. In this connection it may be pointed out that some time after the hearing was over in this Court learned counsel for the appellant has circulated a letter that the High Court has set aside the promotion of respondent 7, Dr. Ramesh Prasad Singh as also of respondent 21, Dr. Brij Gopal Misra. It is undoubtedly true that the learned single Judge who heard the petition initially had set aside the promotion of Dr. Brij Gopal Misra to the post of Regional Deputy Director, N.M.E.P., Hyderabad. But neither from the judgment of the learned single Judge nor from the judgment of the Division Bench it is possible to ascertain that the promotion of Dr. Ramesh Prasad Singh has been invalidated. No direction in that behalf can be given. Before we conclude it may be pointed out that on the conclusion of hearing of this appeal in order to heal the wound caused by impaired dignity of the appellant as herein before mentioned, a suggestion was made to the Government to see if the present appellant could be accommodated in some way where he may not feel the humiliation which he claims he suffers. Mr. P. Parameswara Rao, learned counsel for the Government promised to discuss the matter with the Government and ultimately on March 7. 1980, the Central Government offered the post of Director and Head of the Department for a programme concerned with vision impairment and amelioration thereof. In that post the appellant would be the Head of the Department and would continue to be in supertime grade II. This offer did not appeal to the appellant and the matter was left at that. There is no substance in any of the contentions urged on behalf of the appellant and, therefore, this appeal fails and it is dismissed with no order as to costs. V.D. Appeal dismissed.

Section 7(3) of the East Punjab Essential Services (Mainten ance) Act, 1947, provides that "no court shall take cognisance of any offence under this Act except upon complaint in writing made by a person authorised in this behalf by the State Government". Held, that the law does not require that the particular com plaint should have been authorised by the State Government and it is sufficient if it has been filed by a person authorised by the State Government to do so. Neglect of duty as contemplated by section 29 of the , is quite different from abandoning an employment or absenting oneself from work without reasonable cause within the meaning of section 5(b) of the East Punjab Essential Services (Maintenance) Act. The respondent, a constable, on account of physical infirmity was not assigned any "work" in the Police Lines within the meaning of el. (b) of section 5 of the East Punjab Essential Services (Maintenance) Act. He absented himself from the Police Lines without permission. Held, that his absence from Police Lines during the relevant time may have amounted to neglect of duty but he could not be convicted under section 5(b).

ivil Appeal No. 10747 of 1983. From the Judgment and order dated 26.8.1983 of the Rajasthan High Court in S.B. Civil Second A. No. 153 of 1983. Shiv Dayal Srivastava, S.K. Bagga and Mrs. S.K. Bagga for the Appellants. Dr. Y.S. Chitale and Aruneshwar Gupta for the Respondents. The Judgment of the Court was delivered by OZA, J. This is an appeal filed by the tenant after obtaining leave from this Court against a decree for eviction granted by the trial court and ultimately affirmed in second appeal by the High Court of Rajasthan by its judgment dated 26.8.83. It appears that the appellants became tenants in 1947 but in 1958 the predecessors in 127 title of the respondents one Shri Bhonri Lal Surender Kumar and Rajinder Kumar purchased the property and thereafter in 1959 they became the tenants of Bhonri Lal and others. It is alleged that originally the rent was Rs.135 but later on was raised to Rs.145. The premises in question is a showroom and apparently is a business premises. In the year 1974, Bhonri Lal, Surendra Kumar and Rajinder Kumar filed a suit for eviction against the present appellant in respect of this show room which is situated at M.I. Road, Jaipur, on the ground of bona fide need, material alterations in the premises and default in payment of rent. During the pendency of this suit the present respondent purchased the property from Bhonri Lal and others in 1979. In substance the present respondent Harsh Wardhan Himanshu and Smt. Ritu Kasliwal purchased this property during the pendency of the suit and continued with the suit but the only ground on which eviction was granted and which was pressed before us and also before the High Court was the ground that the tenant present appellant without the permission of the landlord has made material alterations in the premises. The learned Judge of the High Court has maintained the finding of the construction of a balcony (Dochatti) and maintained the order of eviction on the ground that it is material alterations in the premises. The decree has been passed under Section 13(1)(c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 which reads as under: "13(1)(c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the court has materially altered the premises or is likely to diminish the value thereof. " It is only on this ground that the decree has been passed which has been challenged by the appellant before us. It is contended by learned counsel for the appellant that in the plaint what was alleged by the plaintiff was as stated in Para 5: "Para 5 That the defendants had constructed one Dochatti as balcony which is covering good area and is utilizing this Dochhati for his business. This work done by defendant is material alteration in the rented premises and this being without permission of plaintiffs is against the 128 law and on this Court the plaintiffs are entitled to get eviction decree for tenanted property. " In the written statement this Para 5 after amendment reads thus: "Firm oriental Engineering Co. constructed a storey like balcony over the disputed show room in 1958 with the permission of the plaintiff. " It was contended by learned counsel that what the courts below have tried to infer on the basis of some inspection note and some affidavit filed at the back of the appellant and on the basis of no other evidence that it is a structure permanent in nature and that it has been affixed in the wall and that it has also been affixed on the floor, this according to learned counsel, is all based on no evidence at all. It was contended by the learned counsel that the only pleading was that this wooden balcony (Dochhatti) has been raised by the tenant. It is significant that even this is not alleged in the plaint when this was done whereas in the written statement it was clearly stated that this Dochhatti was made in 1958. It was further contended that in fact there is no material or evidence to come to the conclusion that this was constructed at what time. It is significant, according to the learned counsel for the appellant, that the two notices which were given before filing of the suit by the predecessors in title of the respondent this was not alleged as one of the grounds of eviction and in his own statement in cross examination what was stated has significantly been omitted from consideration by the three courts, the trial court, the appellate court and the High Court of Rajasthan. Learned counsel referred to this part of the statement and contended that it is clear that in the notice this was not made as a ground. In his cross examination he stated that when the tenant assured that it will be removed when he will vacate, he gave up and that was not taken as a ground for eviction in the notice. Apart from it, it was contended that in fact in 1964 a window was opened just to give sufficient light and air to this Dochhatti or balcony which is alleged to have been constructed by the tenant and for this purpose the expenses were borne by the landlord which is admitted by the predecessors in title of the respondent in their own statement and which is not disputed in these proceedings. On the basis of this it was contended that in fact the finding reached by the three courts is not based on evidence. It is also contended that the material evidence has not been looked into at all and that the material which could not be said to be evidence in the case has been looked into to reach this conclusion. 129 It was further contended that apart from this the inference that this is a material alteration is contrary to the principles laid down by this court in number of decisions. According to the learned counsel, it could not be said to be a construction which materially altered the premises in question. On the basis of the statement of the respondents predecessor in title Bhonri Lal in cross examination, the absence of this being a ground of eviction in the two notices issued by the respondent Bhonri Lal before filing of the suit and the payment of the expenditure incurred for opening a window to provide light to this balcony by the landlord himself are circumstances, according to the learned counsel, which clearly go to show that this Dochhatti or balcony was constructed with the permission of Bhonri Lal and others who were the predecessors in title. It is also clear that for all these years this was present in the show room as is clear from the evidence that it is visible from outside. Therefore it could not be said that the landlord did not notice it and still no objection was raised. Learned counsel for the appellant further contended that the making of the balcony which is the wooden structure supported on wooden pillars and supported on wooden beams could not in any manner be said to be a material alteration of the building itself and in support of this contention the learned counsel placed reliance on the decision of this Court in Om Prakash vs Amar Singh and another, AIR 1987 SC 617. It was also contended that the landlord having seen the balcony constructed and not having raised any objection in so much so that even in the notice he did not raise an objection nor it is made a ground for eviction clearly goes to show that it was with the implied consent of the landlord that this Dochhatti or balcony was constructed. It is also clear from the circumstances that in order to provide light and air to this balcony in the upper portion a window was made in the show room and the cost of the construction of this window was paid by the landlord as is admitted by him. This also goes to show that this balcony or this wooden cabin was constructed or made with the implied consent of the landlord. The statement made by Bhonri Lal in cross examination clearly shows, according to the learned counsel, that even if any right accrued to him on the ground of this alteration he waived it and for this purpose learned counsel placed reliance on Dawsons Bank Ltd. vs Nippon Menkwa Kabushihi Kaish, AIR 1935 Privy Council P 79 (Japan Cotton Trading Co. Ltd.). On the question of waiver, learned counsel for the appellant also referred to certain observations in Maxwell on the Interpretation of Statutes and also to certain observations from the American Jurisprudence. 130 Learned counsel for the respondents, on the other hand, referred to the plaint paragraph 5 quoted above and also the written statement para 5 after amendment and contended that on these allegations the courts below came to a finding of fact. However it was not disputed that what construction has been made is a finding of fact but whether it amounts to material alteration or not is undoubtedly a question of law. It was further contended by the learned counsel that as all the three courts have concurrently came to the conclusion on question on fact, it is not open to this Court to reopen that question. It was also contended by learned counsel that the inspection note by the learned trial Judge, no doubt, has been relied upon but it is contended that as observed by the teamed Judge of the High Court it is relied upon only for purposes of appreciating evidence but unfortunately the learned counsel for the respondents himself could not refer to any other evidence except the statement of the tenant the appellant himself and apart from it even the allegations contained in para S of the plaint do not clearly make out that how this construction is such which was affixed on the wall and on the basis of which an attempt was made to contend that in fact it could not be removed unless the walls are demolished. This argument and the inferences drawn by the courts below apparently are not based on any evidence at all. The learned counsel contended that the balcony is strongly annexed lo the walls with the beams and the structure is 10`x25 ' to the entire breadth of the showroom and also contended that it could not be removed without damaging the walls and thereby damaging the property itself but unfortunately learned counsel could not refer to any evidence in the case which could suggest these facts which were alleged by the learned counsel during the course of his arguments. Counsel in support of his contentions placed reliance on the decision of this Court in Om Prakash 's case (supra) and also on Babu Manmohan Das Shah & Ors. vs Bishun Das, ; and it was also contended that question of waiver does not arise, according to the learned counsel, as if the landlord wants not to raise any objection, he could grant a permission to the tenant but in absence of that the question of waiver could not be raised. Learned counsel attempted to contend that Bhonri Lal who filed this suit in 1974 filed the suit on that ground and therefore it could not be said that he waived the right to file a suit on this ground. Learned counsel did not refer to the statement of Bhonri Lal himself in cross examination. It was contended that it was in 1972 that the landlord for the first time came to know about the construction of this balcony and in 1974 suit was filed. It was therefore contended that the appeal deserves to be rejected. 131 The first notice given on behalf of Bhonri Lal is through an advocate and in this notice it is clear that this objection about any construction or material alteration is not at all mentioned. Another notice which is given just a little before the filing of the suit is a notice dated 13.8.74 and in this notice also there is no mention of any material alteration or construction of the Dochhatti or balcony. Although in this there is a reference to some damage to the floor of show room which was also made as one of the grounds which later on was not pressed and given up. It is therefore plain that if this Dochhatti or balcony which is a wooden construction put on was a matter which was without the permission of the landlord and about which the landlord had not consented, he would have made it as a ground for termination of the lease or a ground of eviction in any one of these two notices if not in both. It is very clear that this fact has not at all been alleged in these notices given to the tenant appellant. In the cross examination of Bhonri Lal, it is clearly stated when he was asked as to why in the notices which he gave before the filing of the suit this was not made a ground for termination of the lease, he plainly stated "no notice was given for the reason that the defendant had said that when they would vacate the show room they would remove the balcony. On their saying so, I did not have any objection about the balcony. On the eastern side there is a window. I do not know its length and breadth. This is correct that this window was constructed in the year 1964. The cost of construction of the window amounting to Rs.199.85 p. has been paid by me to the defendant. The balcony gets light and air through this widow. " It is significant as referred to above that in the two notices this was not made as a ground. It is also significant that when this was brought to the notice of Bhonri Lal the landlord who filed this suit originally he gave the above explanation. The present respondent in fact purchased during the pendency of the suit this property and indirectly purchased this litigation. Statement which has been quoted above goes to show that he gave up his objection to the balcony, it is also clear from his evidence that a window which was opened to give light and air to this balcony, the cost of it was also borne by the landlord himself. In the context of this evidence it is significant that even in the plaint it was not clearly stated that this balcony was made in the year 1972 as is now alleged. It is also significant that what is now alleged that this balcony is supported on beams which have been fixed in the walls and pillars which have been fixed in the floor is also not alleged in the plaint at all. It is also not alleged in the plaint as to how this structure which is 132 a wooden structure easily removeable according to the defendant appellant could be said to be a material alteration or as to how it has impaired or damaged or lowered the value of the property of the appellant. It is no doubt true that the Section as it stands does not require that in addition to material alteration it should be to lower or reduce the value of the property as was clearly observed by the learned Judge of the High Court and on that count there appears to be not much controversy. It is significant that all the three courts neither considered the omission of this allegation in the notices nor the statement made by Bhonri Lal quoted above and descripancies in pleadings referred to above and have come to conclusions which could not be reached. The only possible conclusion from these facts could be that either this balcony was constructed with the implied consent of the landlord or that after seeing it and understanding and on assurance given by the tenant the landlord decide to waive his objection to it and therefore did not make it as a ground for termination of the lease in his notice before the suit and even in the earlier notice which was given by him if at all there is any doubt it is clear that the landlord waived his right to file a suit on this ground. Unfortunately all the three courts failed to look into these conclusions appearing in evidence and failed to appreciate the matter in this light. On the question of waiver, in Maxwell on the Interpretation of Statutes it is observed as under: "In Stylo Shoes, Ltd. vs Prices Tailors, Ltd., (75) a notice to determine an existing tenancy under the Landlord and Tenant Act, 1954 had not, it was argued. been served "by leaving it for the tenants at their last known place of abode in England" as required by section 23(1) of the Act. The tenants had in fact received the notice, had intimated to the landlords that they would not be willing to give up possession of the premises, and had issued an originating summons for a new tenancy. On the facts, Wynn Parry J. held that the notice had been properly served; but he added that, even if it had not been duly served, the tenants must in the circumstances be taken to have waived any invalidity in the service." (75) " It clearly goes to show that if a party gives up the advantage he could take of a position of law it is not open to him to change and say that he can avail of that ground. In Dawsons Bank, Ltd 's case, (supra) the Lordships were considering the question of waiver as a little 133 different from estoppel and they observed as under: "on the other hand, waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right. If an agent, with authority to make such an agreement on behalf of his principal agrees to waive his principal 's rights then subject to any other question such as consideration the principal will be bound, but he will be bound by contract." But in the context of the conclusion that we have reached on the basis of circumstances indicated above that it could not be held that the tenant had constructed this Dochhatti or balcony a wooden piece without the consent express or implied of the landlord, in our opinion, it is not necessary for us to dialate on the question of waiver any further and in this view of the matter we are not referring to the other decisions on the question of waiver. It was contended on behalf of the respondents that the finding about the construction without the consent of the landlord is a finding of fact and therefore could not be gone into in this appeal on leave under article 136 of the Constitution but it is clear that if the Courts below while coming to a conclusion of fact has omitted to consider material pieces of evidence and have drawn inferences without looking into the material pieces of evidence which prove circumstances on the basis of which a contrary inference could be drawn, such findings are not binding on this Court and in this view of the matter therefore in our opinion the conclusions reached by the courts below could not be accepted. The next question which was debated at length by learned counel for parties is as to whether the said construction of the wooden Dochhatti or a balcony is a material alteration within the meaning of Sec. 13(1)(c) of the Act quoted above and in this regard it is undisputed that what has been constructed is a wooden structure which makes in the showroom a cabin and on the roof of the cabin a kind of balcony with a wooden staircase from inside the cabin to go to this balcony. Admittedly this all is a wooden structure built on beams and planks inside the showroom itself and in order to come to the conclusion whether such a wooden cabin made up inside the showroom could be said to be a material alteration or not, we can draw much from Om Prakash 's case (supra) where it was observed: 134 "The Act does not define either the word 'materially ' or the word 'altered '. In the absence of any legislative definition of the aforesaid words it would be useful to refer to the meaning given to these words in dictionaries. Concise oxford Dictionary defines the word 'alter ' as change in character, position ' "materially" as an adverb means important essentially concerned with matter not with form. In Words and Phrases (Permanent Edition) one of the meanings of the word 'alter ' is to make change, to modify, to change, change of a thing from one form and set to another. The expression 'alteration ' with reference to building means 'substantial ' change, varying, change the form or the nature of the building without destroying its identity". The meaning given to those two words show that the expression 'materially altered ' means "a substantial change in the character, form and the structure of the building without destroying its identity". It means that the nature and character of change or alteration of the building must be of essential and important nature. In Babu Manmohan Dos Shah vs Bishun Dos, ; 1967 SC 643), this Court considering the expression 'material alterations ' occuring in section 3(1)(c), U.P. (Temporary) Control of Rent and Eviction Act, 1947 observed; "Without attempting to lay down any general definition as to what material alterations mean, as such, the question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the front and structure of the premises. " It is no doubt true that in the last part of this passage quoted above it has been clearly stated that no definition could be drawn of the material alteration but it will have to be decided on the basis of facts and circumstances appearing in each case but the material consideration would be whether the construction carried out by the tenant alters the front show or the structure of the premises and considering this aspect of the law it was further observed: "In determining the question the Court must address itself to the nature, character of the constructions and the extent 135 to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provided a ground for tenants ' eviction, it took care to use the word "materially altered the accommodation". The material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as in spite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation. " Here it has been observed that the essential element which needs consideration as to whether the construction are substantial in nature and they alter the front elevation or the front and the structure of the building itself and it is in the light of this that ultimately in this decision what was constructed has been held not to be material alteration as it was observed: "The partition wall was made without digging any foundation of the floor of the room nor it touched the ceiling instead; it converting a big hall into two portions for its convenient use, it could be removed at any time without causing any damage to the building. The partition wall did not make any structural change of substantial character either in the form or structure of the accommodation. " The question as to whether the construction is of a permanent nature 136 or a temporary nature also was considered by this Court in the decision quoted above and it was observed: "The High Court observed that the fact that a construction is pennanent or temporary in nature does not affect the question as to whether the constructions materially alter the accommodation or not. We do not agree with this view. The nature of constructions, whether they are permanent or temporary, is a relevant consideration in determining the question of 'material alteration '. A permanent construction tends to make changes in the accommodation on a permanent basis, while a temporary construction is on temporary basis which do not ordinarily affect the form or structure of the building, as it can easily be removed without causing any damage to the building. " It is thus clear that what is alleged to have been constructed in the present case, in the light of the test laid down by this Court in the decision referred to above, could not be said to be material alteration in the premises in question. In Venkatlal G. Pittie & Anr. vs M/s Bright Bros. (Pvt.) Ltd., (3) SC 139 the question was not about material alteration but the question was whether the construction carried out by the tenant were permanent in nature and were such which has diminished the value of the property and further that the construction have been made after encroaching on the land which was not the part of the lease and in that context the question as to whether the structures raised were permanent or temporary have been considered and the nature of the things as appeared in that case apparently is of no avail so far as the case in hand is concerned as it was observed in that case: "Two questions arise for consideration in these appeals (i) whether the structure constructed by the tenant in the premises in question amounted to permanent structure leading to the forfeiture of the tenancy of the tenant; (ii) what is the scope and extent of the jurisdiction of the High Court under Article 227 of the Constitution on questions of facts found by the appellate bench of Small Causes Court. " In Babu Manmohan Das Shah 's case, (supra) the question which was be fore this Court was not as tn whether the construction made was such which could be said to be a material alteration but the real question which was raised before the Court was whether it is necessary further to hold 137 that this construction diminishes the value of the accommodation although in the Section it was material alteration or such construction which diminishes the value of the accommodation used but it was contended that it will amount to and considering this aspect of the matter in this judgment it was observed: "As already stated, even if the alterations did not cause any damage to the premises or did not substantially diminish their value the alterations were material alterations and on that basis alone the appellants were entitled to evict the respondent. " It is thus clear that even this judgment is of no assistance so far as the present case is concerned. In the light of the discussions above and in the light of the test laid down by this Court in Om Prakash 's case. supra it is clear that this construction of the balcony or Dochhatti which is a wooden structure does not amount to material alteration which could give a cause of action to the respondent landlord for filing a suit of eviction. No other question was pressed. In the light of the discussions above therefore the appeal has to be allowed. It is therefore allowed. The judgment and decree passed by the courts below are set aside and the suit filed by the respondent is dismissed. In the circumstances of the case parties are directed to bear their own costs so far as this Court is concerned. S.L. Appeal allowed.

% The respondent was appointed a transport and handling Contractor by the appellant subject to the terms and conditions mentioned in three successive written agreements entered into by both the parties. After disputes arose between the parties, an arbitrator was appointed as per the arbitration clause to adjudicate upon the disputes. The arbitrator made and published an award which was a speaking one. He did not allow the appellant 's claim for demurrage and wharfage charges paid to the Railways amounting to Rs.15,63,863.02 by reason of the alleged wrongful conduct of the respondent but awarded only 25% of the claim. The arbitrator also did not allow the appellant 's claim for shortage in transit but reduced the claim by 40% and allowed only 60% of it amounting to Rs.52,971.99. The arbitrator awarded to the respondent Rs.12,64,175.97 and pendente lite interest at 6% per annum. The appellant filed objections in the High Court under sections 30 and 33 of the ( 'The Act ') for setting aside the award. The High Court (Single Judge) set aside the award. The respondent filed an appeal to the Division Bench of the High Court which allowed the same, setting aside the judgment of the learned single judge and upholding the award. Being aggrieved by the decision of the High Court, the appellant appealed to This Court for relief by special leave under Article 136 of the Constitution. Disposing of the appeal, this Court, ^ HELD: While issuing notice on the application under Article 136 of the Constitution, it was indicated that only three questions would be adjudicated upon in this appeal, viz, Rs.13,94,982.46 being the amount allowed on account of demurrage and wharfage charges mentioned in the award, secondly, the sum of Rs.2,35,769.46 and lastly, the question of interest. [332G] 330 So far as the second question was concerned, counsel for the appellant did not make any submission before the Court. The Court also could not find any substance in this aspect. Therefore, it was not necessary to deal with this aspect of the matter. [332H; 333A] So far as the amount of Rs.13,94,982.46 on account of demurrage and wharfage was concerned, which was allowed, it appeared that the total demurrage and wharfage charges paid by the Corporation to the Railways in respect of the wagons cleared by the claimant firm, respondent herein, after obtaining such waiver as the Railways were persuaded to make were Rs.15,63,863.21. There was no dispute about the actual payment of the charges. The appellant 's case was that it was entitled to recover the entire amount it had to pay on account of the demurrage and wharfage charges from the respondent under clause 9(a) of the agreement. [333B C] Under clause 9(a) according to the appellant, the Agent was liable to make good any compensation/demurrage/wharfage as per Railway rates in force during the period of contract and other charges or expenses that might be incurred by the Corporation on account of delay in loading/unloading of trucks/carts and unloading/loading of wagons unless the delay was for reasons beyond the Agent 's control. It appeared that the appellant had periodically served notices upon the respondent of firm calling upon it to pay demurrage and wharfage charges with liberty prefer objections. Such objections as the respondent firm preferred were disposed of by the District Manager. This procedure continued till the end of November, 1975. Then the respondent firm went to the Civil Court and obtained discontinuance of all proceedings for the recovery of demurrage and wharfage charges. The arbitrator noted that as a result of the hearings by the Corporation upto November, 1975, relief to the tune of Rs.1,21,884.55 was granted to the respondent firm and the recovery of Rs.45,996.20 was made from the respondent firm 's bills. The Corporation, therefore, claimed before the arbitrator recovery of the remaining or the claim of Rs.13,94,982.46. Counsel for the appellant drew this Court 's attention to clauses 9(a) and (b) of the agreement and submitted that the adjudication made by the Manager was final and there was no dispute thereafter. According to him, no further deduction was possible from what had been granted by the Manager for determination on account of demurrage and wharfage charges, nor was it arbitrable because it was final. [334B E] It appears on the facts as recorded by the arbitrator in his award that there was adjudication really by the Manager of the claims upto 331 November, 1975. Thereafter, there could be no adjudication as a result of injunction obtained from the Court. Therefore, it appeared that there was in fact no adjudication of all the disputes. The remaining points were arbitrable because of the amplitude of the arbitration clause. It was not brought to the notice of the Court that there was an adjudication by the Manager of the claim for the period beyond November, 1975, as mentioned hereinbefore. Therefore, the arbitrator was not in error in proceeding in the manner he did. There was no other aspect of law on this aspect of the matter to which the attention of the Court was drawn. The submission on this aspect was, therefore, negatived and the challenge to the award on this aspect must fail. [337C D; 338B] So far as the grant of interest pendente lite in the award was concerned, reliance was placed on various decisions of this Court. In deference to the latest pronouncement of this Court, which is a pronouncement of three learned Judges, in Executive Engineer Irrigation Galimala & Ors. vs Abaadute Jena, (J.T. , the Court held that the grant of pendente lite interest in this case was was not justified. Though the award in this case was a speaking award, it was not made clear on what basis the interest was awarded. The arbitrator was in error in granting the interest in the manner he did . It was true that in specific terms there was no denial on this right to grant interest, but there was denial as to get it in accordance with law.[338C D; 340E F] In awarding the interest the arbitrator committed an error of law. With this modification, the judgment and order of the High Court were affirmed. [340F G] Wadsworth vs Smith, L.R. Vol. VI Q.B. 332; State of Orissa and others, vs Construction India, J.T. [1987] 4 S.C. 588; Executive Engineer Irrigation Galimala & Ors. vs Abaaduta Jena, J.T. , Firm Madan lal Roshanlal Mahajan vs Hukumchand Mills Ltd., Indore, [1987] 1 S.C.R. 105; State of Madhya Pradesh vs M/s. Saith & Skelton (P) Ltd., ; ; M/s. Ashok Construction Company vs Union of India, and M/s. Alopi Parshad referred to.

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.

Appeal No. 231/1955. Appeal from the Judgment and Decree dated February 16, 1954, of the Patna High Court in Title Suit No. 105/1953. 446 N. C. Chatterjee, Sanjeev Choudhuri and Ganpat Rai, for the appellant. C. K. Daphtary, Solicitor General of India, P. K. Chatterjee and T. M. Sen, for respondent No. 1. * Lal Narayan Sinha, Bajrang Sahai and R. C. Prasad, for respondent No. 2. 1960. August 31. The Judgment of the Court was delivered by WANCHOO J. This is an appeal from a decree of the Patna High Court. The appellant is a Public Limited Company with its registered office at Calcutta. A mining lease was granted to it by the Raja of Ramgarh on December 29, 1947, for a period of 999 years in respect of 3026 villages situate within the Ramgarh Estate and the appellant was put in possession thereof. On February 1, 1950, the appellant granted a sub lease of two of the villages comprised in its grant to one Bhagat Singh for a term of 15 years. In the meantime the Mines and Minerals (Regulation and Development) Act (LIII of 1948), (hereinafter called the Act), had come into force along with the Mineral Concession Rules, 1949 (hereinafter called the Rules), in the area in which the two villages lay. Bhagat Singh then applied to the Deputy Commissioner, Hazaribagh, for the grant of a certificate of approval under the Rules. Thereupon the Deputy Commissioner, taking the view that the sub lease granted was in contravention of the Act and the Rules, filed a complaint on September 25, 1951, before a magistrate against two directors and the secretary of the appellant charging them with the breach of r. 45 of the Rules and also rr. 47 and 49 (now r. 51) read with r. 51 (now r. 53) and section 9 of the Act. While the criminal case was going on, the appellant filed a suit challenging the validity and constitutionality of the Act and the Rules. A number of grounds were taken in support of this challenge but it is not necessary now to set out all of them, as learned counsel for the appellant has confined his arguments only to two points, namely, (i) a sub lease is not covered by the definition of the term ' mining lease ' in section 3(d) of the 447 Act and therefore the Act and the Rules do not apply to a sub lease at all, and (ii) as these Rules were made under sections 5 and 6 of the Act and not under section 7 they have no application to a sub lease granted by a lessor, even after the coming into force of the Act and the Rules, where the lessor 's own lease was of a date anterior to the coming into force of the Act and the Rules. The suit was resisted by the respondents and their defence was that the term ' mining lease ' included a sub lease and that the Rules framed under Bs. 5 and 6 of the Act were applicable to all sub leases granted after the Act and the Rules had come into force. The High Court repelled the contentions raised by the appellant against the validity and constitutionality of the Act and the Rules. It further held that the term 'mining lease ' as defined in section 3(d) of the Act included a sub lease and therefore the Act and the Rules applied to sub leases granted after the Act and the Rules came into force and it was immaterial that the lease granted to the appellant was anterior in time to the coming into force of the Act and the Rules. On this view, the suit was dismissed. Thereupon the appellant applied for a certificate which was granted and that is how the matter has come up before us. The main question that falls for consideration is whether the term 'mining lease ' as defined in section 3(d) of the Act includes a sub lease. Clause (d) of section 3 is in these terms: " mining lease ' means a lease granted for the purpose of searching for, winning, working, getting, making merchantable, carrying away, or disposing of mineral oils or for purposes connected therewith, and includes an exploring or a prospecting licence; ". There is no specific mention of a sub lease in it. But if one takes the plain meaning of the words used in section 3(d), it is clear that the term 'mining lease ' means any kind of lease granted for the purpose of searching for, winning, working, getting, making merchantable, 448 carrying away or disposing of minerals or for purposes connected therewith. It is significant that the definition does not require that the lessor must be the proprietor; and so on a fair reading it would include a lease executed by the proprietor as much as a lease executed by the lessee from such a proprietor. If we turn to the definition of 'lease ' in section 105 of the , we find that a lease of immovable property is a transfer of a right to enjoy such property made for a certain time, express or implied or in perpetuity in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms. What a lease therefore requires is a transferor and a transferee and a transfer of immovable property on the terms and conditions mentioned in section 105. How the transferor gets his title to make a lease is immaterial so long as the transaction is of the nature defined in section 105. Applying therefore the plain words of section 3(d) of the Act and the definition of lease as contained in section 105 of the , it is perfectly clear that there is a transferor in this case, (namely, the appellant) and a transferee (namely, Bhagat Singh) who has accepted the transfer; the transaction is with respect to immovable property and creates a right to enjoy such property for a certain term and for consideration on the conditions mentioned in it. Though, therefore, the document may be termed a sub lease in view of the fact that the transferor is not the owner of the property transfer red but is itself a lessee, the transaction between the appellant and Bhagat Singh is nothing but a mining lease. The terms ' sub lease ', ' under lease ' and "derivative lease ' are used conveniently to indicate not only that the transfer is a lease but also that the transferor is not the owner of the property but is a lessee ; but the transfer as between a lessee and a sub lessee is nonetheless a lease provided it satisfies the definition of section 105. We may add that Ch. V of the , which deals with leases of immovable 449 property has nowhere made any distinction between a lease and a sub lease and all the provisions of that Chapter which apply to a lease also apply to a sublease. It is only when dealing with the rights and liabilities of the lessee that section 108(j) of the lays down that the lessee may transfer absolutely or by way of mortgage or sub lease the whole or any part of his interest in the property, and that is where one finds mention of a sub lease, namely, that it is a lease by a person who is himself a lessee. But the fact that the lessor is himself a lessee and the transaction between him and the person in whose favour he makes the transfer by way of lease is called a sub lease does not in any way change the nature of the transfer as between them. Therefore on the plain words of section 3(d) read with section 105 of the there can be no doubt that the term 'mining lease ' includes a sub lease. ' Learned counsel for the appellant referred in this connection to a number of statutes wherein a sub lease has been expressly stated to be included in the term 'lease '. In the Mines and Minerals (Regulation and Development) Act, LXVII of 1957, which has replaced the Act, the term 'mining lease ' has been defined in section 3(c) as meaning a lease granted for the purpose of undertaking mining operations and includes a sublease. The 1957 Act was enacted after the judgment of the High Court in this case and the legislature apparently thought it fit ex abundanti cautela to say that a sub lease is included within the term ' mining lease '. In the corresponding English Act also as well as the English Law of Property, 1925, a lease has been defined to include a sub lease. The fact however that in some laws a lease is defined to include a sub. lease, does not mean that a lease cannot otherwise include a sub lease. An example to the contrary is the , where the definition of the word 1 lease ' clearly includes a sub lease. Learned counsel for the appellant also relied on certain decisions in which it was held that a lease did not include a sub lease. Those decisions, however, turn on the particular terms of the enactment there under 450 consideration and are of no assistance in determining the question whether the term 'mining lease ' in the Act includes a mining sub lease. Ordinarily, a lease will include a sub lease unless there is anything to the contrary in the particular law. We may in this connection refer to the observations of Jessel, M. R., in Camberwell and South London Building Society vs Holloway (1) at p. 759: " The word `lease ' in law is a well known legal term of well defined import. No lawyer has ever suggested that the title of the lessor makes any difference in the description of the instrument, whether the lease is granted by a freeholder or a copyholder with the licence of the Lord or by a man who himself is a leaseholder. It being well granted for a term of years it is called a lease. It is quite true that where the grantor of the lease holds for a term, the second instrument is called either an under lease or a derivative lease, but it is still a lease. . .". We see nothing in the Act to indicate that the term ' mining lease ' as defined in a. 3(d) does not include a mining sub lease. On the other hand, looking to the purpose and object with which the Act was passed, it seems to us quite clear that a sub lease must be included within the term 'mining lease ' as it obviously is within the plain words of section 3 (d). That the Act was passed in the public interest is shown by the fact that it provides for the regulation of mines and oil fields and for the development of minerals. The intention was that the mineral wealth of the country should be conserved and should be worked properly without waste and by persons qualified in that kind of work. With that object in view section 5 inter alia provides for making rules as to the conditions on which mining leases may be granted and the maximum or minimum area and the period 'for which such lease may be granted as also the terms on which leases in respect of contiguous areas may be amalgamated, and the fixing of the maximum and minimum rent payable by a lessee (1) , 759 451 whether the mine is worked or not. Section 6 provides for framing of rules for the conservation and development of minerals, the manner in which any mineral or any area as respects which the grant of mining lease is prohibited may be developed and the development of any mineral resources in any area by prescribing or regulating the use of engines, machinery or other equipment, and so on. These provisions for the conservation, development and regulation of mining areas and minerals would be more or less completely frustrated if a mining sub lease was not included in the definition of the term 'mining lease ', for then all that would be necessary for a per. son who wanted to avoid the law would be to interpose an intermediary between himself and the owner and get a sub lease from him which would be free from the regulatory control of the Act and the Rules. 'We are therefore of opinion that looking at the plain words of section 3(d) and the object and the purpose for which the Act was passed, it is clear that a mining sub lease is included within the definition of the term 'mining lease ' and there is nothing in the Act which militates against this. We therefore hold that a mining sub lease made after the coming into force of the Act and the Rules is included in the term 'mining lease ' as defined in section 3 (d) and is subject to the Act and the Rules. The argument in this connection is that a. 4 of the Act provides that no mining lease shall be granted after the commencement of the Act otherwise than in accordance with the rules framed under the Act and any mining lease granted otherwise shall be void and of 'no effect. Sections 5 and 6 give power to the Central Government to make rules for purposes already set out above and refer to mining leases granted under section 4 Then comes section 7, which lays down that the Central Government may by notification in the official gazette make rules for the purpose of modifying or altering the terms and conditions of any mining lease 58 452 granted prior to the commencement of the Act so as to bring such lease into conformity with the rules framed under Be. 5 and 6. It is urged that where a mining lease has been granted before the Act and the Rules came into force, it is only the rules framed under section 7 which will affect any sub lease granted by such a lessee even though the sub lease is after the date on which the Act and the Rules came into force. Section 7 in our opinion was enacted for an entirely different purpose, as sub section (2) thereof will show. It is however not necessary to go into this matter further, for once it is held that a, sub lease is included in the term 'mining lease ', the rules made under sections 5 and 6 would apply to such a sub lease, if it is made after the Act and the Rules came into force. In the present case, the sub lease was granted after the Act and the Rules came into force in the area with which the sub lease is concerned and therefore the sub lease would be governed by the Act and the Rules. There is no question in this case of modifying or altering the terms and conditions of any mining lease granted prior to the commencement of the Act, for the Act and the Rules are being enforced with respect to a sub lease which is a mining lease, within the definition of that term in section 3(d), made 'after the Act and the Rules came into force. No change is being made by the Rules in the terms and conditions of the mining lease granted to the appellant and all that has happened is that the appellant 's directors and secretary, are being prosecuted for granting a sub lease (which is a mining lease) against the provisions of the Act and the Rules after the Act came into force. There is no force therefore in this contention of the appellant and it must be repelled. There is no force in this appeal and it is hereby dismissed with costs. , One set of hearing costs only. Appeal dismissed.

The appellant company had been carrying on various classes of insurance business other than life insurance after its incorporation in 1941, but in 1956 the shareholders of the company passed a resolution by which all its insurance business was to be closed. Accordingly, on application made by the company to the Controller of Insurance, the certificate granted to it for carrying on insurance business was cancelled with effect from July 1, 1957. in the meantime, complaints against the company were being received by the Government of India, who, thereupon, passed an order on July 17, 1957, under section 33 of the , directing the Controller of Insurance to investigate the affairs of the company and to submit a report. The company challenged (1)(1923) L.R. 51 I.A. 129. (2) I.L.R. 858 the legality of the order on the grounds, (1) that as all its insurance business had been closed the Central Government had no jurisdiction to pass an order under section 33 of the Act, which only enables the investigation of the affairs of an insurer who, as defined in section 2(9), is one who is actually carrying on the business of insurance, (2) that such an order could not be sustained under section 2D of the Act as that section was applicable only to those cases where an insurer was carrying on different classes of insurance business and had closed some of them but not all of them, (3) that even if such order could be passed under section 33 read with s.2D it could not be done in the present case as the company 's liabilities did not remain unsatisfied or not otherwise provided for, and (4) that, in any case, the order in question was invalid because it did not show on the face of it that the Central Government was prima facie satisfied that the liabilities had remained unsatisfied or not otherwise provided for: Held, (1) that the word " insurer " in section 33 of the , refers not only to a person who is actually carrying on the business of insurance but also to one who has subsequently closed it. (2) that in section 2D of the Act an " insurer " means a person who was carrying on the business of insurance but has closed it. (3)that the word " class " in section 2D though used in the singular includes the plural also and the section is applicable to the case where an insurer who was carrying on different classes of insurance business closes all of them. (4) that the expression " not otherwise provided for " in section 2D refers to liabilities in the nature of claims against the insurer whether the insurer admits them or not and whether a decree has been finally passed in respect of them or not. (5) that under section 2D the satisfaction or " provision other wise " for the liabilities of insurance business which is closed, does not refer to the deposit made under section 7 and has to be over and above that deposit. (6) that though an order under section 33 read with section 2D of the Act should show on the face of it that the Central Government was prima. ' facie satisfied that the liabilities had remained unsatisfied or not otherwise provided for, the fact that the order does not on the face of it show that the Central Government considered this aspect of the matter would not make it bad, if in subsequent ,proceedings taken to challenge it, it is shown that there were materials before the Central Government which would justify its coming to the prima facie conclusion that the liabilities had not been satisfied or otherwise provided for, and therefore an investigation into the affairs was called for.

ivil Appeal No. 4080 of 1988. From the Judgment and Order dated 18.3.88 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED/SB/1201/84 C. V. Lakshmikumaran, N.M. Popli and V.J. Francis for the Appellant. A.K. Ganguli, K. Swamy, T.V.S.N. Chari and P. Parmeswa ran for the Respondent. The appellants at all relevant times were manufacturing agarbaties, dhoop sticks, dhoop coil, dhoop powder falling under Tariff Item No. 68 of the erstwhile Central Excise Tariff. The relevant period involved in the present Civil Appeal is from the year 1979 to 1983 84. The appellants claimed exemption under notification No. 55/75 dated 1st March, 1975. By the said notification, the Central Govern ment had exempted goods of the description in the Schedule annexed to the notification and falling under Tariff Item 68 of the First Schedule to the Act from the whole of duty of excise leviable thereon. In the serial No. 8 of the Schedule to the said notification, 'Handicrafts ' were listed. It is, therefore, clear that 'handicrafts ' were fully exempt from payment of duty of excise, according to the appellants. Under the notification No. 111/78 dated 9th May, 1978, the appellants were exempted from 876 licensing control. That is the case of the appellants. The provision requiring a manufacturer to take out a licence is controlled by Rule 174 of the Central Excise Rules, 1944. The relevant provision of Rule 174 at the relevant time provided, inter alia, as follows: "Rule 174. Persons requiring a licence: Every manufacturer, trader or person hereinafter mentioned, shall be required to take out a licence and shall not conduct his business in regard to such goods otherwise than by the authority, and subject to the terms and conditions of a licence granted by a duly authorised officer in the proper Form" It is the case of the appellants that by this notifica tion, all goods which were exempt from the whole of duty of excise leviable thereon unconditionally were exempted from the operation of Rule 174. The appellants were manufacturing dhoop sticks, coil and powder which the appellants contended before the Tribunal, were handicrafts under notification No. 55/75 and as such were exempt from licensing control under notification No. 111/78. It is, therefore, necessary at this stage, in view of the contentions raised in this appeal, to refer to the notifications. By first notification, i.e., notification No. 55/75, in exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government had exempted goods of the description specified in the Schedule annexed thereto and falling under Item No. 68 of the First Schedule to the Act from the whole of the duty of excise leviable thereon and, as mentioned hereinbefore, Item No. 8 of the Schedule annexed to the notification included among the exempted goods 'Handi crafts '. The second notification, i.e., notification No. 111/78 CE dated 9th May, 1978, the Central Government ex empted from the operation of rule 174 of the said Rules, inter alia, all goods that are exempt from the whole of the duty of excise leviable thereon. unconditionally. The effect of this notification, was that manufacture of such goods were exempt from the operation of rule 174 of the said Rules. As a result, it was not necessary to take out a licence as enjoined by rule 174. The appellants had indicat ed the process of manufacture of dhoop sticks, coil and powder before the Tribunal and the process was as follows: "1. The various ingredients/raw materials like perfumes, essential oils, natural oils and other raw materials are first mixed in specif ic proportions, by manual labour. 877 2. These raw materials along with jigget and saw dust after serving by hand are mixed in a barrel with a stirrer with hand and made into a paste. This paste is kneaded in the kneading machine operated by power. This paste is put by hand in the extruder. The extruder extrudes the paste in the form of needles with the aid of power. As the paste is extruded from the extruder it is collected on a wooden tray which is of a particular size. As it is collected on the tray it is cut on both sides to the accurate size by hand. The thin long incense is then transferred by hand from the individual trays of long big tray by hand. After transferring it is properly arranged by hand in a consolidated manner on the long big tray. Another tray which has four slits called the cutting tray is placed on top of the long tray with the incense. After placing the cutting tray a hand roller cutter is rolled along the slits of the cutting trays to cut the incense to the re quired sizes. The extra length or width of the incense on the tray is then removed by hand. The cut incense is then transferred to a drying tray by hand. The incense is dried by stocking the trays in the drying yard. The dried incense is broken at the cut ends. The ten incense sticks are inserted into the packet. 878 16. The incense packets are first punched with an eyelet. Then twelve packets are wrapped in a cellophone wrapper. " The revenue had issued trade notices indicating that agarbaties were handicrafts and were eligible to the exemp tion contained in the notification No. 55/75 dated 1st March, 1975. Our attention was drawn by Shri V. Lakshmi Kumaran appearing for the appellant to the trade notice issued on 10th October, 1977, which read as follows: "PUNE TRADE NOTICE NO. 258/1977, (NO. 3/T.I. 68/ 1977) DT. 18.10.77 Agarbaties are exempt under Notfn. 55/75 Attention of the trade is invited to this Collectorate Trade Notice No. 179/1975 (No. 4/T.I. 68/1975) dated 4.10.75 on the above subject. The issue has been reconsidered and it has been advised that Agarbaties are handicrafts and would be eligible to the exemption contained in the notification No. 55/ 75 CE dated the 1st March, 1975 (as amend ed). " He also drew our attention to the certificate furnished by the Basic Chemicals, Pharmaceuticals & Cosmetics Export Promotion Council, which stated as follows: "This is to certify that Dhoop Sticks, Incense Cubes and Cone, Coils, Joss Sticks, are agar baties in different physical forms. The ingre dients as well as end use for Agarbaties, Dhoop Sticks, Incense cubes and Cone, coils, joss sticks are one and the same. Government of India has therefore categorised Dhoop Sticks, Incense cubes and cone, .coils, joss sticks as agarbaties and thus eligible for the same rate of export incentives. " It was contended before the Tribunal on behalf of the appellants that dhoop sticks had been recognised by the Indian Handicrafts Board as handicrafts and that these were nothing else but agarbaties. 879 As indicated hereinbefore, Basic Chemicals, Pharmaceuticals and Cosmetics Export Promotion Council had also indicated that dhoop sticks, incense cubes and cone, coils joss sticks are agarbaties in different physical forms and that the end use of these and the ingredients used therein were one and the same and for that reason these had been made eligi ble for the benefit of export incentives as agarbaties. Learned counsel for the appellants submitted that in the report on the Marketing of Handicrafts under the title "Survey of Indian Handicrafts" sponsored by the All India Handicrafts Board, which was brought out by Indian Coopera tive Union, agarbaties were mentioned, which according to counsel, indicated that these were recognized as handi crafts. A letter was placed before the Tribunal which was issued by the Deputy Director, All India Handicrafts Board functioning under the Ministry of Commerce, Department of Export Production which had certified that the agarbaties were the products of the Indian Handicrafts Board, Ministry of Commerce. Certain notifications were also drawn attention to of the Tribunal which indicated that agarbaties were handicrafts eligible for exemption under notification No. 55/75. It was, therefore, contended that dhoop sticks, coil and powder were agarbaties and agarbaties were accepted as handicrafts by various authorities including the Central Government and mere use of power in the manufacture of these did not bar them from being called as handicrafts. It was further contended that in any event, there was no warrant in invoking longer time limit of five years for raising the demand and if at all demand should be raised it should be for a period of six months reckoned from the date of six months prior to the issue of the show cause notice. In those circumstances, it was submitted that the appellants should not be made liable beyond the period of six months from the date of issue of the show cause notice. The Tribunal, howev er, referred to the definition of the term 'handicrafts ' given in the Concise Oxford Dictionary; 7th Edition, which stated as follows: "Manual skill; manual art or trade or occupa tion; man skilled in a handicraft." Therefore, in order to be handicrafts, the Tribunal proceeded, on the basis that it should be the result of manual skill. But the respondent before the Tribunal pleaded that the raw materials for the dhoop are kneaded with the aid of power and after kneading the same, are extruded and the manual work that was done in the process was only in feeding of the raw materials by hand and later in the cut ting of the sticks to the desired length. The distinction between handicrafts and 880 those which are machine made, would be clear from the defi nition adopted by UNCTAD. The same reads as follows: "Some good may. be produced partly by machine and partly by hand: (i.e. a dress made up by hand from machine made cloth, perhaps with additional hand embroidery or other decora tions) . . in such cases a product should be regarded as hand made or handicrafts if the essential character of the product in its finished form is derived from the 'hand made ' aspect of its production." In the Import Policy of 1984 85, handicrafts and agar baties and dhoop figured under a Heading apart from handi crafts and stated that dhoop and agarbaties had been listed under traditional item in Appendix 17 at Serial No. V under Group Heading "Toiletry and Perfumery" while the handicrafts had been given separately in that Policy and this envisaged the handicraft to be manufactured by hand. General Note I against the entry 'Handicrafts ' in the Policy Book stated as follows: "Articles which are classifiable elsewhere in this policy will be deemed to be 'Handicrafts ' falling in this group only if such articles, besides being made by hand, have some artistic or decorative value; they may or may not possess functional utility value in addition. Artistic or decorative value of the article exported need not necessarily come out of any art work, engraving or decoration done on the article but the very form, shape or design of the article could also be artistic and sugges tive of the fact that the article is primarily meant for decorative and not for utility purposes. " After analysing the findings and the trade notices and relying on the decision oil this Court in M.S. Company Private Limited vs Union of India, SC, the Tribunal in the light of the definition of "handicrafts" in the Encyclopaedia Britannica, came to the conclusion that in the manufacture of a product skill of the worker and the use of hand are two pre requisites for a product to qualify as a handicraft. In the Encyclopaedia Britannica, handicraft has been defined as follows: "Occupation of making by hand usable products graced with visual appeal. Handicrafts encom pass activities that 881 require a broad range of skills and equipment, including needle work, lace making, weaving printed textile, decoration, basketry, pot tery, ornamental metal working, jewelling, leather working, wood working, glassblowing, and the making of stained glass. " It was found by the Tribunal that raw materials were mixed by hand and the first essential procedure in the manufacture of dhoop etc., is kneading of the raw materials and the next essential stage is the formation of the dhoop into sticks or coils. Both these processes were carried out by the aid of power. Only cutting of the sticks to the desired length was stated to be by hand. It was not the case of the appellant that the formation of the dhoop sticks or coils, etc., there had been use of the skill of the human hand to give the dhoop its essential character. But the Tribunal found that it was difficult to accept that these were handicrafts merely because some authorities have chosen to treat agarbaties as handicrafts. Therefore, the Tribunal agreed with the Collector that these were not handicrafts. In that view of the matter, the Tribunal upheld the order of the Collector on this point and held that these were dutia ble. In view of the evidence examined by the Tribunal and in the light of the well settled principle and the background of the definition of handicrafts, it appears to us that the Tribunal was right in coming to the conclusion that only a very small portion of required work was done by hand. The main part of the manufacture of agarbaties, etc. was done with the aid of power. It was the machine that produced predominantly the end product. In that view of the matter, we are of the opinion that the Tribunal was right in holding that agarbaties were not handicrafts. In coming to the aforesaid conclusion the tribunal had considered all rele vant materials and records and applied the correct princi ples of law. These findings of the tribunal on this aspect are unassailable. In the premises, when the appeal was filed and came up before this Court for hearing on 2nd March, 1989, on examination of these materials, this Court was satisfied that this contention of the appellant cannot be accepted and agarbaties were not handicrafts. It was, howev er, further held by the Tribunal that the revenue was enti tled to levy tax for a period of five years prior to the issue of show cause notice and not six months pursuant to rule 9(2) of the Central Excise Rules. The relevant portion of rule 9(2) provides as follows: "(2) If any excisable goods are, in contraven tion of subrule (1) deposited in, or removed from, any place specified therein, the produc er or manufacturer, thereof shall pay 882 the duty leviable on such goods upon written demand made within the period specified in section 11A of the Act by the proper officer, whether such demand is delivered personally to him, or is left at his dwelling house, and shall also be liable to a penalty which may extend to two thousand rupees, and such goods shall be liable to confiscation. " It may be mentioned that rule 9(1) of the said Rules stipulated that no excisable goods shall be removed from any place where they are produced, except in the manner provided in the rules. Therefore, the question that arises in this appeal is whether section 11 A of the Act applies or not. The relevant provisions of section 11 A are as follows: "11 A. Recovery of duties not levied or not paid or shortlevied or short paid or errone ously refunded. (1) When any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short levied or short paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts; or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub section shall have effect, as if the words "Central Excise Officer" the words "Collector of Central Excise", and for the words "six months", the words "five years" were substi tuted. Explanation. Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be." Shri V. Lakshmi Kumaran, learned counsel for the appel lant drew our attention to the observations of this Court in Collector of 883 Central Excise, Hyderabad vs M/s Chemphar Drugs and Lini ments, Hyderabad, [1989] 2 SCC 127 where at page 131 of the report, this Court observed that in order to sustain an order of the Tribunal beyond a period of six months and up to a period of 5 years in view of the proviso to sub section (1) of section 11 A of the Act, it had to be established that the duty of excise had not been levied or paid or short levied or short paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. It was observed by this Court that some thing positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or delib erate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liabil ity beyond the period of six months had to be established. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or sup pression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. The Tribunal, however, had held con trary to the contention of the appellants. The Tribunal noted that dhoop sticks are different products from agar baties even though they belonged to the same category and the Tribunal was of the view that these were to be treated differently. Therefore, the clarification given in the context of the agarbaties could not be applicable to dhoop sticks etc., and the Tribunal came to the conclusion that inasmuch as the appellant had manufactured the goods without informing the Central Excise authorities and had been remov ing these without payment of duty, these would have to be taken to attract the mischief of the provision of rule 9(2) and the longer period of limitation was available. But the Tribunal reduced the penalty. Counsel for the appellants contended before us that in view of the trade notices which were referred to by the Tribunal, there is scope for believ ing that agarbaties were entitled to exemption and if that is so, then there is enough scope for believing that there was no need of taking out a licence under rule 174 of the said Rules and also that there was no need of paying duty at the time of removal of dhoop sticks, etc. Counsel further submitted that in any event apart from the fact that no licence had been taken and for which no licence was required because the whole duty was exempt in view of notification No. 111/78, referred to hereinbefore, and in view of the fact that there was scope for believing that it was exempt under Schedule annexed to the first notification, i.e., 55/75, being handicrafts, the appellants could not be held to be guilty of the fact that excise duty had not been paid or short levied or short paid or erron 884 eously refunded because of either any fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder. These ingredients postulate a positive act. Failure to pay duty or take out a licence is not necessarily due to fraud or collu sion or wilful misstatement or suppression of facts or contravention of any provision of the Act. Suppression of facts is not failure to disclose the legal consequences of a certain provision. Shri Ganguly, appearing for the revenue, contended before us that the appellants should have taken out a licence under rule 174 of the said Rules because all the goods were not handicrafts and as such were not exempted under notification No. 55/75 and therefore, the appellants were obliged to take out a licence. The failure to take out the licence and thereafter to take the goods out of the factory gate without payment of duty was itself sufficient, according to Shri Ganguly, to infer that the appellants came within the mischief of section 11 A of the Act. We are unable to accept this position canvassed on behalf of the revenue. As mentioned hereinbefore, mere failure or negli gence on the part of the producer or manufacturer either not to take out a licence in case where there was scope for doubt as to whether licence was required to be taken out or where there was scope for doubt whether goods were dutiable or not, would not attract section 11 A of the Act. In the facts and circumstances of this case, there were materials, as indicated to suggest that there was scope for confusion and the appellants believing that the goods came within the purview of the concept of handicrafts and as such were exempt. If there was scope for such a belief or opinion, then failure either to take out a licence or to pay duty on that belief, when there was no contrary evidence that the producer or the manufacturer knew that these were excisable or required to be licenced, would not attract the penal provisions of section 11 A of the Act. If the facts are otherwise, then the position would be different. It is true that the Tribunal has come to a conclusion that there was failure in terms of section 11 A of the Act. Section 35 L of the Act, inter alia, provides that an appeal shall lie to this Court from any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. Therefore, in this appeal, we have to examine the correctness of the decision of the Tribunal. For the reasons indicated above, the tribunal was in error in applying the provisions of section 11 A of the Act. There were no materials from which it could be inferred or established that the duty of excise had not been levied or paid or short levied or short paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or 885 contravention of any of the provisions of the Act or of the rules made thereunder. The Tribunal in the appellate order has, however, reduced the penalty to Rs.5,000 and had also upheld the order of the confiscation of the goods. In view of the fact that the claim of the revenue is not sustainable beyond a period of six months on the ground that these dhoop sticks, etc. were not handicrafts entitled to exemption, we set aside the order of the tribunal and remand the matter to the tribunal to modify the demand by confining it to the period of six months prior to issue of show cause notice and pass consequential orders in the appeal on the question of penalty and confiscation. The appeal is allowed to the extent indicated above and the matter is, therefore, remand ed to the tribunal with the aforesaid directions. This appeal is disposed of accordingly. R.S.S. Appeal allowed.

This is defendant 's appeal by Special Leave. Respondents 1 to 5 alongwith one other person filed a representative suit on behalf of themselves and other members of Thousand Yadhava Community against the appellant No. 1 Defendant for an order directing him to render true accounts of the management of the properties of the Thou sand Yadhava Community including the Sri Ramasami Sri Navneetha Krishnasami Devasthanam Temples and their proper ties and pay to them the amount ascertained as payable on such rendition of accounts. The appellant was the Trustee of the said temples. The case of the plaintiffs respondents was that the said temples were private religious trusts and the appellant as trustee had committed several acts of misman agement in respect of the properties. The appellant defendant denied those allegations and contended that the suit as framed was not maintainable in view of the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The Trial Court dismissed the suit. It held that the said temples were not private temples belonging to the said community, and that both the temples were covered by the provisions of section 6(20) of the Act, and as such the suit was barred by the provisions of the Act and thus not main tainable. The plaintiffs preferred appeal to the High Court against the order of the Trial Court. The High Court allowed the plaintiffs appeal and passed a preliminary decree against the appellant No. 1 defendant for rendition of accounts while dismissing the suit in other respects. The High Court took the view that a party seeking relief of accounting cannot approach the Deputy Commissioner or any other authority under the Act and hence the Civil Court was not barred either expressly or by necessary implication from entertaining the suit so far 2 as it was for accounting. However the High Court did not decide the question as to whether the Temples were private temples or could be regarded as public religious endowments. Defendant No. 1 filed the appeal, by special leave. Dismissing the appeal, this Court, HELD: There is no doubt that in respect of a public trust, beneficiaries as a class can file a suit against the Trustee for rendition of accounts subject to the bar imposed by Section 92 of the Code of Civil Procedure 1908. [5H; 6A] Chapter VIII of the Act has no bearing on the question of the liability of a trustee to render accounts to the beneficiaries as a group or class and it does not provide for determining or deciding a dispute in respect of such rendition of accounts and hence, Section 108 of the said Act does not bar a suit like the one filed by Respondent No. 1. [6H; 7A B] Sri Vedagiri Laxmi Narasimha Swami Temple vs Induru Pattabhirami Reddy, ; , referred to.

Appeal No. 30 of 1957. Appeal by special leave from the judgment and order dated September 1, 1955, of the Bombay High Court in Income tax Reference No. 37 of 1952. N. A. Palkhivala and I. N. Shroff, for the appellant. K. N. Rajagopala Ayyangar and D. Gupta, for the respondent. December 7. The Judgment of the Court was delivered by HIDAYATULLAH, J. The Raghuvanshi Mills Ltd., Bombay (a public limited Company), has filed this appeal by special leave against the judgment and orders of.the High Court of Bombay dated March 10, 1953, and September 1, 1955. By the first order, the Bombay High Court directed the Income tax Tribunal to submit a supplementary statement in the case in the light of its judgment, giving the parties liberty to lead further evidence, if any. By the second order, the High Court re framed the question, and answered it against the assessee. The assessee Company 's issued and subscribed capital was, at the material time, Rs. 10,00,000 divided into 10,000 shares of Rs. 100 each. Prior to 980 November 14, 1941, one Maganlal Parbhudas, who was a Director of the Company, held 6,344 shares. On November 14, 1941, he made a gift of 1,000 shares to each of his five sons, Ravindra, Surendra, Bipinchandra, Hareshchandra and Krishnakumar. We are concerned with the account year of the Company, April 1, 1942, to March 31, 1943, the assessment year being 1943 44. In that year, the dividend which was declared at the Annual General Meeting held on December 17, 1943, was less than what was required under section 23A of the Indian Income tax Act. The question, therefore, arose whether the Company could be said to be one to which section 23A(1) of the Act was applicable, regard being had to the third proviso and the Explanation under it. During the accounting period, the Company had eight Directors, whose names along with the shares respectively held by them are given below: Shares (1) Shri Maganlal Parbhudas 1,344 (2) Ravindra Maganlal 1,168 (3) Surendra Maganlal. 1,100 (4) Amritlal Chunilal (jointly with Babulal Chunilal). 833 (5) Babulal Chunilal. 100 (6) Bhagwandas Harakchand. 50 (7) Haridas Purshottam. 50 (8) Sir Chunilal B. Mehta (jointly with Lady Tapibai Chunilal) 50 Total 4,695 Out of the balance of the shares, 4,754 shares were held by the relatives of some of the above named Directors, as stated below: Shares (1) Shrimati Kantabai Maganlal (wife of a Director) 771 (2) Shri Bipinchandra Maganlal 1,000 (3) Shri Hareshchandra Maganlal (son of a Director) 1,000 (4) Shri Krishnakumar Maganlal (do) 1,000 981 (5) Shrimati Dhanlaxmi Mohanlal (6) Srimati Prabhavati Nanalal Harilal (5 and 6 daughters of a Director) 50 (7) Shri Hirjibhai Purshottam and Haridas Purshottam (brothers of a Director) 25 (8) Shri Dhanjibhai Purshottam and Haridas Purshottam (brothers of a Director) 25 (9) Shri Chimanlal Vithaldas (cousin of a Director) 833 Total 4,754 The remaining 551 shares were held by the members of the public, who were not connected with the Directors of the Company in any way. Before March, 1942, Messrs. Ravindra Maganlal and Bros. were the Managing Agents of the Company. Maganlal Parbhudas was the sole proprietor of that firm. On March 7, 1942, the Company appointed Ravindra Maganlal & Co. Ltd. as the Managing Agents for. a period of 20 years. The Managing Company had a total issued and subscribed capital of Rs. 5,000 and the five sons of Maganlal Parbhudas who have been named before had subscribed that capital equally. During the account year, Maganlal Parbhudas and two of his sons, Ravindra Maganlal and Surendra Maganlal, were three of the Directors of the Company. Ravindra, Surendra and Bipinchandra were Directors of the Managing Company. On these facts, the Income tax Officer applied section 23A (as it stood prior to its amendment by the Finance Act, 1955) to the Company, holding that this was not a Company in which the public were substantially interested. The order of the Income tax Officer was confirmed on appeal, both by the Appellate Assistant Commissioner and the Tribunal. The Tribunal also refused to state a case under section 66(1) of the Incometax Act, but the High Court of Bombay acting under section 66(2) called for a statement of the case on the question: "Whether on the facts and circumstances of the 124 982 case the provisions of section 23A of the Indian Income tax Act (XI of 1922) are applicable to the petitioners?" In stating the cases the Tribunal pointed out that probably the question ought to have been: "Whether on the facts and circumstances of the case 1,000 shares each held by Bipinchandra, Haresh chandra and Krishnakumar in the capital of the assessee Company are held by members of the public within the meaning of the Explanation to the third proviso to section 23A?" The members of the Tribunal in deciding the appeal before them, gave slightly different reasons. According to the Accountant Member, the shares held by persons interested in the Managing Company were under the control of the Directors of the appellant Company, and those persons could not be considered to be members of the public. The Judicial Member held that the Directors were controlling the shareholders of the Company, that their relatives were mere nominees, whose voting power was controlled by the Directors, and that the public could not, therefore, be said to be substantially interested, as required by the Explanation to the third proviso to the section. When the High Court heard the case, the learned Judges addressed themselves to the question, what was the proper meaning of the expression "held by the public" in the Explanation. They came to the conclusion that the object of the third proviso and the Explanation was that the voting power to be exercised by the public should be independent of the control of the Directors, and that the word "Public" was used in contradistinction to the Directors. They apparently thought that a holding by a Director could not be described, in any event, as a holding by the public. The High Court came to the tentative opinion that both the tests stated by the Accountant Member and the Judicial Member were incorrect, and held that what the law required was de facto control, 4 c a control which is, in fact, exercised," and that no finding appeared to have been given on that point by the Tribunal. The case was accordingly remitted to 983 the Tribunal for submission of a fresh statement of the case whether the Directors were exercising de facto control. over any of the other shareholders, who belonged to the second category mentioned by us above. The Tribunal thereupon re stated the case, and after examining further evidence, gave the finding that the Directors, particularly the three sons of Maganlal Parbhudas who formed the Directors of the Managing Company were under the de facto control of their father. At no stage in the case did the Tribunal alter the finding reached by the Department that the shares of the Company were not, in fact, freely transferable by the holders to members of the public. The High Court then reheard the case, and came to the conclusion that there was evidence on which the Tribunal could hold that Maganlal Parbhudas exercised de facto control over his three sons. In view of this finding, the High Court held that the order made by the Tribunal was correct, and answered the question in the negative, re framing it as follows: "Whether on the facts and circumstances of the case the shares held by Bipinchandra, Harishchandra and Krishnakumar can be considered to be shares held by members of the public within the meaning of the explanation to the third proviso to Section 23A?" The High Court refused to grant a certificate; but the Company has obtained special leave from this Court, and has filed this appeal. It is first contended that the test that the shares held by the Directors of a company are not shares in which the public are substantially interested is incorrect. According to learned counsel, all the authorities, the Tribunal and the High Court have proceeded on this wrong assumption, and have failed to apply the proper test laid down by the Explanation to the third proviso. It may be pointed out that there is no dispute that 551 shares, were, in fact, held by the public. The total shares of the Company being 10,000, the Company can only avoid the application of section 23A, if the public hold shares carrying not less than 25 per cent. of the voting power, that is to say, 2,500 shares. The Directors between them hold 4,695 shares. These 984 have been held by the High Court to be shares, which cannot be said to be beneficially held by the public. Even so, if the rest of the shares can be said to be held by the public, then the minimum 25 per cent. would still be reached. It was in this context that the shares of the sons of Maganlal, Bipinchandra, Harishchandra and Krishnakumar, were considered. If those shares can be said to fall outside the category of shares beneficially held by the public, then those shares along with the shares held by the Directors reduced the number of shares held by the remaining shareholders to less than 25 per cent. It was on this view that the case was remitted to the Tribunal by the High Court to obtain a further statement whether Maganlal Parbhudas was de facto controlling these three shareholders. Two questions, therefore, arise in this appeal. The first is whether the shares held by the Directors must always be regarded as not held by the public. The second is what is the meaning of the provision: "a company shall be deemed to be a company in which the public are substantially interested, if its shares carrying not less than twenty five per cent. of the voting power have been allotted unconditionally to, or acquired unconditionally by, and are at the end of the previous year beneficially held by the public. " In this connection, we may point out that a ruling of the Privy Council appears to take a different view from that taken by the High Court, in regard to an Uganda Ordinance in pari materia with the proviso and the Explanation. We shall refer to that case as also to a case of the House of Lords, where also a different conclusion in law from that of the High Court has been reached. Section 23A (as it stood prior to its amendment in 1955), omitting the portions not material, read as follows: "23A. Power to assess individual members of certain companies. Where the Income tax Officer is satisfied that in respect of any previous year the profits and gains distributed as dividends by any company up to the end of the sixth month after its accounts for that 985 previous year are laid before the company in general meeting are less than sixty per cent. of the assessable income of the company of that previous year, as reduced by the amount of income tax and super tax payable by the company in respect thereof he shall, unless he is satisfied that having regard to losses incurred by the company in earlier years or to the smallness of the profit made, the payment of a divi dend or a larger dividend than that declared would be unreasonable, make with the previous approval of the Inspecting Assistant Commissioner an order in writing that the undistributed portion of the assessable income of the company of that previous year as computed for income tax purposes and reduced by the amount of income tax and super tax payable by the company in respect thereof shall be deemed to have been distributed as dividends amongst the shareholders as at the date of the general meeting aforesaid, and thereupon the proportionate share thereof of each shareholder shall be included in the total income of such shareholder for the purpose of assessing his total income: . . . . . . . Provided further that this sub section shall not apply to any company in which the public are substantially interested or to a subsidiary company of such a company if the whole of the share capital of such subsidiary company is held by the parent company or by the nominees thereof. Explanation. For the purpose of this sub section a company shall be deemed to be a company in which the public are substantially interested if shares of the company carrying not less than twentyfive per cent. of the voting power have been allotted unconditionally to, or acquired unconditionally by, and are at the end of the previous year beneficially held by the public. and if any such shares have in the course of such previous year been the subject of dealings in any stock exchange or are in fact freely transferable by the holders to other members of the public. " It is clear from the third proviso that the sub section 986 does not apply to a company in which the public are substantially interested. The Explanation lays down, among the tests, the minimum interest which can be called substantial ' by saying that shares of the company carrying not less than 25 per cent. of the voting power must be allotted unconditionally to, or acquired unconditionally by, the public and they must be beneficially held by the public. The essence of the Explanation lies not in the percentage which only shows the limit of the minimum holding by the public, but lies in the words "unconditionally" and "beneficially". These words underline the fact that no person who holds a share or shares not for his own benefit but for the benefit of another and who does not exercise freely his voting power, can be said to belong to that body, which is designated 'public '. The word 'Public ' is used in contradistinction to one or more persons who act in unison and among whom the voting power constitutes a block. If such a block exists and possesses more than seventy five per cent. of the voting power, then the company cannot be said to be one in which the public are substantially interested. In Sardar Baldev Singh vs The Commissioner of Income tax, Delhi and Ajmer (1), this Court took the following view: "The section thus applies to a company in which at least 75 per cent. of the voting power lies in the hands of persons other than the public, which can only mean, a group of persons allied together in the same interest. The company would thus have to be one which is controlled by a group. The group can do what it likes with the affairs of the company, of course, within the bounds of the Companies Act. It lies solely in its hands to decide whether a dividend shall be declared or not. " judged from the test we have indicated, it is clear that such a group may be formed by the Directors of a company acting in concert, or by some Directors acting in concert with others or even by some , shareholder or shareholders, none of whom may be a Director. Such a group which may, for convenience, be (1) ; 987 designated a block, must hold a controlling interest, and if the voting power of the block is 75 per cent. or more, then obviously it can do anything at a meeting, whether general or special. When a company starts, the promoters may subscribe a portion of its capital and release the other unconditionally to the public. This is a case of unconditional allotment of shares to the public. The public may also unconditionally acquire a portion of the shares which were previously held by the group which promoted the company. If at the end of the previous year 25 per cent. or more of the voting power is so held by the public, the company can take the benefit of the third proviso. But if more than 75 per cent. of shares have again passed into the hands of a group which acts as a block, the third proviso ceases to apply. In deciding if there is such a controlling interest, there is no formula applicable to all cases. Relationship and position as Director are not by themselves decisive. If relatives act, not freely, but with others, they cannot be said to belong to that body, which is described as 'public ' in the Explanation. But it would be otherwise if they were free. Similarly, if Directors or some of them do not act as a body or in concert with others, the fact that they are Di rectors is of no significance. The case of Tatem Steam Navigation Co., Ltd. vs Commissioners of Inland Revenue (2) illustrates the first proposition. There, the assessing Commissioners had made directions under section 21 of the Finance Act, 1922, against which the Company appealed on the ground that it was a Company in which the public were substantially interested, inasmuch as shares of the Company carrving not less than 25 percent. of the voting power had been allotted unconditionally to or acquired unconditionally by, and were, at the end of the relevant periods, beneficially held by the public and the decision of the Special Commissioners that 16,000 shares given by Lord Glanely to his niece were not allotted to or acquired by the public and that the Company was, therefore, not (1) 988 a Company in which the public were "substantially interested" was erroneous. It was held by Lawrence, J., that merely because she was a niece of Lord Glanely did not make her cease to be a member of the public. The Court of Appeal agreed with Lawrence, J. No doubt, there were other provisions which laid down the kind of relationship which would lead to the inference that the holder was controlled by another, and a niece was not such a relative. The Act we are considering did not lay down the kind of relationship which would show such a control, and the same principle will apply. Mere relationship thus is not of consequence, unless control of the voting power held by such a relative, by another relative, is proved. The other test adopted in the case by the Bombay High Court that Directors stand outside the 'public ' is also not decisive. In Commissioner of Income tax vs H. Bjordal (1), the Judicial Committee dealt with section 21(1) of the Income Tax Ordinance No. 8 of 1940 (Uganda), as amended by section 5 of the Income Tax (Amendment) Ordinance, 1943. That provision of law is completely in pari materia with section 23A. Two brothers, H. Bjordal and section Bjordal, held 73.96 and 25.09 per cent. of the voting power. Five others held 04 per cent. of the voting power. The shares held by section Bjordal were purchased for full value by him from his brother. There was no suggestion that he was a nominee of the respondent or that he was acting in concert with his brother. Both brothers were Directors of the Company. It was held by the Judicial Committee that shareholders in a company who are members of the 'public ' do not cease to be so, because they become Directors. In the Uganda Ordinance also, like our Act, there was no guidance as to the meaning of the word 'public ', as there was in the English statute considered in Tatem 's case (2). It is significant that in Jubliee Mills Ltd. vs Commissioner of Income tax (3), Chagla, C. J., and section T. Desai, J., speaking of the judgment under appeal and (1) (2) (3) , 41. 989 taking into consideration the Privy Council case, observed: "It may be that our view is erroneous; and it may be and very probably it is that the view taken by the Privy Council is the right one. " In our judgment, the test is first to find out whether there is an individual or a group which controls the voting power as a block. If there be such a block, the shares held by it cannot be said to be "unconditionally" and "beneficially" held by members of the public. In the category of shares held by the public, only those shares can be counted which are unconditionally and beneficially held by the public, or, in other words, which are uncontrolled by the group, which controls the affairs. The group itself may be composed of Directors or their nominees or relations in different combinations, but none can be said to be.long to that group, be he a director or a relative unless he does not hold the shares unconditionally and beneficially for himself. It is only such a person, who can fall properly outside the word 'public '. Judged from this point of view, the judgment and orders of the High Court cannot be upheld. Directors cannot, by reason of being Directors, be said not to be members of the public. To that extent, the judgment is erroneous. There is a finding by the Tribunal in the supplementary statement of the case that the shares held by Bipinchandra, Harishchandra and Krishnakumar were under the control of their father, Maganlal Parbhudas. Their holding was 3,000 and with Maganlal 's holding of 1,344 shares, makes up a total of 4,344 shares. Though the question as framed by the High Court appears to have been correctly answered in the negative, it does not dispose of the matter. The, question to be determined still is whether more than per cent. of the shares are not beneficially held by the public. We accordingly set aside the judgment and orders of the High Court, and direct the High Court to decide the question originally framed by it, viz.: "Whether on the facts and circumstances of the 125 990 case the provisions of section 23A of the Indian Income tax Act, XI of 1922, are applicable to the petitioners?" The High Court may call for a supplemental statement of the case from the Tribunal, if it finds it neces sary. The appeal is allowed. The respondents shall bear the costs of this appeal. The costs in the High Court shall abide the result. Appeal allowed.

By article 20(2) of the Constitution "No person shall be prose cuted and punished for the same offence more than once. " Section 26 of the , provides, "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. " The respondents were both convicted and sentenced by the Magistrate under section 409 Of the Indian Penal Code and section 105 Of the Insurance Act. The Sessions judge on appeal upheld the conviction and sentence under section 409 of the Indian Penal Code, but set aside the conviction and sentence under section 105 of the Insurance Act on the ground that no sanction under section 107 of the Insurance Act had been obtained. Sanction was thereafter obtained and a fresh complaint was filed against the respondents under section 105 of the Insurance Act. The trial ended in an acquittal by the Magistrate who held that article 20(2) Of the Constitution and also section 26 of the were a bar to conviction. The State appealed to the High Court against the 108 order of acquittal but the appeal was dismissed. On further appeal by the State, Held, that the crucial requirement to attract article 202) Of the Constitution is that the two offences should be identical. it is, therefore, necessary to analyse and compare the ingredients of the two offences, and not the allegations made in the two complaints, to see whether their identity is established. So judged, there can be no doubt that in spite of the presence of certain common elements between the two, the offences under section 409 of the Indian Penal Code and section, 105 of the Insurance Act are distinct in their ingredients, content and scope and cannot be said to be identical. Om Prakash Gupta vs State of U. P., ; and State of Madhya Pradesh vs Veereshw ar Rao Agnihotry; , , referred to. A similar view of the scope of the rule as to double jeopardy has always been taken by the American Courts. Albrecht vs United States, ; 71 Law Ed. 505, referred to. In section 26 of the also the emphasis is not on the facts alleged in the two complaints but on the ingredients of the two offences charged. This construction of article 20(2) of the Constitution and section 26 of the , is precisely in line with section 403(2) of the Code of Criminal Procedure. Consequently, it could not be said, in the instant case, that the respondents were being sought to be punished for the same offence so as to attract either article 20(2) Of the Constitution or section 26 of the .