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this appeal is preferred against the judgment dated 19 8 2011 passed by the high court of punjab and haryana in criminal appeal no 181 sb of 2000 whereby the high court partly allowed the appeal filed by the appellants thereby confirming the conviction of the appellants with certain modifications. briefly stated case of the prosecution is that on the fateful day i e 18 11 1994 at about 8 00 a m in the morning the complainant jagdish pw 5 along with his two sons namely sukhbir and mange ram pw 6 were busy in cutting pullas reeds from the dola of their field. at that time jage ram a 1 and his sons rajbir singh. raju a 2 rakesh a 3 and madan a 4 armed with jaily pharsi and lathis respectively entered the land where the complainant was working with his sons and asked them not to cut the pullas as it was jointly held by both the parties. wordy altercations ensued between the parties and jage ram insisted that he would take away the entire pullas. in the fight the accused persons started inflicting injuries to the complainant and his sons rajbir. raju a 2 gave a pharsi blow on the head of sukhbir jage ram a 1 caused injury to jagdish pw 5 with two jaily blows. additionally madan and rakesh attacked the complainant with lathi blows on shoulder and left elbow respectively and caused several other injuries to the complainant party. jagdish and his injured sons raised alarm hearing which rajesh and usha came to rescue them and on seeing them the accused persons fled away. the injured witnesses were taken to the primary health centre taoru where dr pardeep kumar medical officer medically examined the injured persons. injured sukhbir was vomiting in the hospital and later on he was referred to general hospital gurgaon as his condition deteriorated. a ct scan disclosed that large extra dural haematoma was found in the frontal region with mass effect and sukhbir needed urgent surgery and he was operated upon and the large extra dural haematoma was removed. dr pardeep kumar pw 2 also examined the other injured persons pw 5 jagdish and pw. 6 mange ram. statement of jagdish was recorded based on which f i r was registered at police station taoru gurgaon under sections 323 324 325 and 307 read with section 34 ipc. pw 8 ramesh kumar asi had taken up the investigation. he examined the witnesses and after completion of investigation challan was filed under sections 307 325 324 read with section 34 ipc. in the trial court prosecution examined nine witnesses including jagdish pw5 mange ram pw6 and dr prem kumar pw2 and dr hiiol kanti pal pw9. neuro surgeon pw8 investigating officer and other witnesses. the accused were examined section 313 cr. p c about the incriminating evidence and circumstances. first accused jage ram pleaded that on the date of occurrence complainant party jagdish and his sons mange ram and sukhbir forcibly trespassed into the land belonging to the accused and attempted to forcibly cut the pullas. jagdish further claims that he along with rakesh caused injuries to the complainant party in exercise of right of private defence of property. he has denied that rajesh and usha had seen the incident. raju a 2 and madan a 3 stated that they were not present on the spot and they have been falsely implicated. rakesh a 4 adopted the stand of his father jage ram. upon consideration of oral and documentary evidence the learned additional sessions judge vide judgment dated 17 2 2000 convicted all the accused persons sections 307 and 325 ipc and sentenced them to undergo rigorous imprisonment for five years and one year respectively and a fine of rs 500 each with default clause. aggrieved by the said judgment the accused appellants filed criminal appeal before the high court of punjab and haryana. the high court vide impugned judgment dated 19 8 2011 modified the judgment of the trial court thereby convicted jage ram a 1 section 325 ipc and sentenced him to undergo rigorous imprisonment for one year convicted second accused rajbir. raju section. 307 ipc and imposed sentence of imprisonment for five years as well the fine of rs 500 was confirmed by the high court. sentence section 325 ipc two counts was modified as the sentence section 323 ipc and he was sentenced to undergo six months rigorous imprisonment. both the sentences were ordered to run concurrently. high court modified the sentence of madan a 3 rakesh a 4 section 323 ipc and sentenced them to undergo rigorous imprisonment for six months two counts respectively. in this appeal the appellants assail the correctness of the impugned judgment. ms vibha datta makhija learned senior counsel appearing for the appellants contended that the evidence of the witnesses suffers from material discrepancy and is self contradictory. it was submitted that injured witness sukhbir was not examined in the court and neither ct scan nor x ray nor operational notes of sukhbir were produced before the court and in the absence of such material evidence courts below erred in convicting the second accused section. 307 ipc. additionally the learned counsel contended that the defence plea of private defence was not considered by the courts below in proper perspective. per contra learned counsel appearing for the respondent state contended that the evidence of all the witnesses satisfactorily establishes the overt act of the accused persons and jagdish pw 5 and mange ram pw 6 being the injured witnesses the veracity of these witnesses can not be doubted. it was submitted that the medical evidence sufficiently corroborated the oral evidence and the prosecution has established the intention of the 2nd accused in causing attempt to commit murder of sukhbir and in appreciation of the evidence courts below recorded concurrent findings convicting the second accused section 307 ipc and the same warrants no interference. we have carefully considered the rival contentions and gone through the impugned judgment and perused the materials on record. as it emerges from the evidence complainant jagdish pw 5 and his two sons sukhbir and mange ram were cutting pullas. the accused party went there and asked them not to cut the pullas. in the wordy altercation second accused rajbir. raju gave pharsi blows on the head of sukhbir. pws 5 6 have clearly spoken about the overt act of the accused that a 1 jage ram attacked and caused injury to pw 5 jagdish with jaily blows and that second accused rajbir. raju attacked on the head of sukhbir with pharsi. they have also stated that madan and rakesh caused injuries to pw5 jagdish with lathi on shoulder and left elbow respectively. 2 dr pardeep kumar in his evidence stated that he has examined pws 5 and 6 and noted the injuries on the body of pws 5 and 6 and issued wound certificates. evidence of pws 5 and 6 is amply corroborated by medical evidence. pws 5 and 6 being injured witnesses their evidence is entitled to great weight. cogent and convincing grounds are required to discard the evidence of injured witnesses. in the light of the fact that pws 5 and 6 were injured witnesses courts below tested their evidence for its credibility and recorded concurrent findings that pws 5 and 6 are trustworthy witnesses. we find no reason to take a different view. appellants have raised the contention that the prosecution failed to adduce evidence that a 2 rajbir attempted to commit murder of sukhbir. it was submitted that injured person sukhbir was neither examined nor medical evidence like ct scan x ray and operational notes and sukhbir were produced to corroborate the oral evidence and while so courts below erred in convicting second accused rajbir. dr pardeep kumar pw 2 who examined sukhbir found during his medico legal examination a lacerated wound in the middle of the top of the skull. injured sukhkbir was found vomiting in the hospital and he was examined by a neuro surgeon dr hilol kanti pal pw 9 of safdarjung hospital delhi on 19 11 1994 i e the day after the incident. pw 9 has stated that sukhbir was unconscious since 2 00 p m on 18 11 1994 and was deeply comatose with irregularity of pupils and a laceration was diagnosed on the right front parietal region. further pw 9 has stated that during the ct scan it was revealed that a large extra dural haemotoma was present in the frontal region with mass effect and to avoid further deterioration of his condition he was operated upon by frontal trephine craniopmy an haemotoma measuring about 125 ml was evacuated. pw 9 stated that had not the operation been conducted on sukhbir and had not the extra dural haemotoma removed by operation urgently the head injury caused to sukhbir would have caused his death. as noted by the high court it is thus brought on evidence that had not surgical assistance been given to sukhbir he would have definitely died. for the purpose of conviction section 307 ipc prosecution has to establish i the intention to commit murder and ii the act done by the accused. the burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. to justify a conviction section 307 ipc it is not essential that fatal injury capable of causing death should have been caused. although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused such intention may also be adduced from other circumstances. the intention of the accused is to be gathered from the circumstances like the nature of the weapon used words used by the accused at the time of the incident motive of the accused parts of the body where the injury was caused and the nature of injury and severity of the blows given etc. in the case of state of m p vs kashiram ors. air 2009. sc 1642. 2009 4 scc 26 2009 indlaw sc 92 the scope of intention for attracting conviction section 307 ipc was elaborated and it was held as under. it is sufficient to justify a conviction section 307 if there is present an intent coupled with some overt act in execution thereof. it is not essential that bodily injury capable of causing death should have been inflicted. the section makes a distinction between the act of the accused and its result if any. the court has to see whether the act irrespective of its result was done with the intention or knowledge and under circumstances mentioned in the section. therefore an accused charged section 307 ipc can not be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. this position was highlighted in state of maharashtra v balram bama patil 1983 2 scc 28 1983 indlaw sc 414 girija shanker v state of u p 2004 3 scc 793 2004 indlaw sc 78 and r prakash v state of karnataka 2004 9 scc 27 2004 indlaw sc 117. whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. the circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of section 307 ipc. the determinative question is the intention or knowledge as the case may be and not the nature of the injury. state of m p v saleem 2005 5 scc 554 2005 indlaw sc 413 undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. it is therefore the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. this position was illuminatingly stated by this court in sevaka perumal v state of t n 1991 3 scc 471 1991 indlaw sc 683. having regard to the weapon used for causing the head injuries to sukhbir nature of injures situs of the injury and the severity of the blows courts below recorded concurrent findings convicting the 2nd appellant section in our considered view the conviction of the second appellant rajbir. 307 ipc is unassailable. learned counsel for the appellants contended that the second appellant is in custody for more than three years and since the occurrence was in the year 1994 prayed for reduction of the sentence imposed on the second appellant to the period already undergone. placing reliance upon the judgment of this court in hari singh vs sukhbir singh ors 1988 4 scc 551 1988 indlaw sc 27 learned counsel for the appellants additionally submitted that in terms of section 357 3 cr. p c that the compensation may be awarded to the victim and the sentence be modified to the period already undergone. for the conviction section 307 ipc courts below imposed upon the 2nd appellant rigorous imprisonment of five years while imposing punishment courts have an obligation to award appropriate punishment. question of awarding sentence is a matter of discretion and the same has to be exercised by the courts taking into consideration all the relevant circumstances. what sentence would meet the ends of justice would depend upon the facts and circumstances of each case and the courts must keep in mind the gravity of the offence motive for the crime nature of the offence and all other attendant circumstances. vide state of m p vs bablu natt 2009 2 scc 272 2008 indlaw sc 2027 alister anthony pareira vs state of maharashtra 2012 2 scc 648 2012 indlaw sc 12 and soman vs state of kerala 2013 11 scc 382 2012 indlaw sc. in the light of the above considering the case in hand the occurrence was of the year 1994 when the complainant party was cutting pullas the accused asked them not to cut the pullas which resulted in the wordy altercation. in the heat of passion the accused have caused injuries to the complainant party. the second accused rajbir. raju is in custody. he surrendered on 5 1 2012 and is stated to be in custody since then for more than three years. having regard to the facts and circumstances of the case in our considered view the period of sentence of five years may be reduced to three years apart from directing the second appellant rajbir. raju to pay substantial compensation to injured sukhbir. as noticed above injured sukhbir sustained grievous head injuries and was deeply comatose and was in a state of shock and trauma. learned counsel for the injured witness submitted that for quite some time injured sukhbir was unconscious and thereafter suffering from mental trauma. having regard to the nature of injuries sustained by sukhbir and the period of treatment and other circumstances we are of the view that it would be appropriate to direct second appellant accused rajbir. raju to pay rs 750000 as compensation to the injured sukhbir. when the matter came up for hearing on 14 10 2014 learned counsel for the appellants informed the court that he had offered rs 500000 by way of demand draft towards compensation to the injured sukhbir in the presence of the sarpanch of the village which he has refused to receive the same. the said amount of rs 500000 is now kept in fixed deposit in the registry of this court. for inflicting blows on pw 5 jagidsh with jaily a 1 jage ram was convicted section 325 ipc and sentenced to undergo rigorous imprisonment for one year. a 3 and a 4 have also given lathis blows to pw 5 and were convicted section 323 ipc and sentenced to undergo rigorous imprisonment for three months by the high court. having regard to the fact that the occurrence was of the year 1994 considering the other facts and circumstances of the case the sentence of imprisonment imposed on jage ram a 1 madan a 3 and rakesh a 4 is reduced to the period already undergone by them. the conviction of a 1 section 325 ipc a 3 and a 4 section 323 ipc is confirmed and the sentence is reduced to the period already undergone by each of them. the conviction of second accused rajbir. 307 ipc is confirmed and the sentence of imprisonment of five years is reduced to the period already undergone and additionally the second accused shall pay a compensation of rs 750000 to the injured witness sukhbir. compensation amount of rs 500000 deposited in this court by the 2nd appellant shall be paid to the injured witness sukhbir. raju shall deposit the balance compensation amount of rs 250000 before the trial court within three months from the date of this judgment and on such deposit the same shall also be paid to the injured witness sukhbir. on failure to deposit the balance compensation the second appellant rajbir. raju shall undergo default sentence of one year. the appeal is allowed to the above said extent. second appellant rajbir. raju is ordered to be released forthwith if not required in any other case. bail bonds of accused a1 a3 and a4 shall stand discharged. appeal allowed.

FACTS this appeal is preferred against the judgment passed by the high court of punjab and haryana in criminal appeal no.181 sb of 2000, whereby the high court partly allowed the appeal filed by the appellants thereby confirming the conviction of the appellants with certain modifications. case of the prosecution is that on the fateful day i.e. 18.11.1994, at about 8.00 a.m. in the morning the complainant jagdish (pw-5) along with his two sons namely sukhbir and mange ram (pw-6) were busy in cutting pullas (reeds) from the dola of their field. at that time, jage ram (a-1) and his sons rajbir singh. raju (a-2), rakesh (a-3) and madan (a-4) armed with jaily, pharsi and lathis respectively, entered the land where the complainant was working with his sons and asked them not to cut the pullas as it was jointly held by both the parties. wordy altercations ensued between the parties and jage ram insisted that he would take away the entire pullas. in the fight, the accused persons started inflicting injuries to the complainant, and his sons rajbir. raju (a-2) gave a pharsi blow on the head of sukhbir, jage ram (a-1) caused injury to jagdish (pw-5) with two jaily blows. additionally, madan and rakesh attacked the complainant with lathi blows on shoulder and left elbow respectively and caused several other injuries to the complainant party. jagdish and his injured sons raised alarm, hearing which rajesh and usha came to rescue them and on seeing them, the accused persons fled away. the injured witnesses were taken to the primary health centre, taoru where dr. pardeep kumar, medical officer, medically examined the injured persons. injured sukhbir was vomiting in the hospital and later on he was referred to general hospital, gurgaon as his condition deteriorated. a ct scan disclosed that large extra-dural haematoma was found in the frontal region with mass effect and sukhbir needed urgent surgery and he was operated upon and the large extra-dural haematoma was removed. dr. pardeep kumar (pw-2) also examined the other injured persons, pw 5-jagdish and pw. 6- mange ram. statement of jagdish was recorded, based on which f.i.r. was registered he examined the witnesses and after completion of investigation, challan was filed under sections 307, 325, 324 read with s. 34 ipc. the accused were examined u/s. 313 cr. p.c. about the incriminating evidence and circumstances. ARGUMENT ms. vibha datta makhija, learned senior counsel appearing for the appellants contended that the evidence of the witnesses suffers from material discrepancy and is self- contradictory. it was submitted that injured witness sukhbir was not examined in the court and neither ct scan nor x-ray nor operational notes of sukhbir were produced before the court and in the absence of such material evidence, courts below erred in convicting the second accused u/s. the learned counsel contended that the defence plea of private defence was not considered by the courts below in proper perspective. per contra, learned counsel appearing for the respondent-state contended that the evidence of all the witnesses satisfactorily establishes the overt act of the accused persons and jagdish (pw-5) and mange ram (pw-6) being the injured witnesses, the veracity of these witnesses cannot be doubted. it was submitted that the medical evidence sufficiently corroborated the oral evidence and the prosecution has established the intention of the 2nd accused in causing attempt to commit murder of sukhbir and in appreciation of the evidence, courts below recorded concurrent findings convicting the second accused u/s. 307 ipc and the same warrants no interference. appellants have raised the contention that the prosecution failed to adduce evidence that a-2 rajbir attempted to commit murder of sukhbir. it was submitted that injured person sukhbir was neither examined nor medical evidence like ct scan, x-ray and operational notes and sukhbir were produced to corroborate the oral evidence and while so courts below erred in convicting second accused rajbir. learned counsel for the appellants contended that the second appellant is in custody for more than three years and since the occurrence was in the year 1994, prayed for reduction of the sentence imposed on the second appellant to the period already undergone. placing reliance upon the judgment of this court in hari singh vs. sukhbir singh &; ors (1988) 4 scc 551 1988 indlaw sc 27., learned counsel for the appellants additionally submitted that in terms of s. 357 (3) cr. p.c. that the compensation may be awarded to the victim and the sentence be modified to the period already undergone. ISSUE whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. ANALYSIS pws 5 &; 6 have clearly spoken about the overt act of the accused that a-1 jage ram attacked and caused injury to pw-5 jagdish with jaily blows and that second accused rajbir. raju attacked on the head of sukhbir with pharsi. they have also stated that madan and rakesh caused injuries to pw5-jagdish with lathi on shoulder and left elbow respectively. pw. 2- dr. pardeep kumar in his evidence stated that he has examined pws 5 and 6 and noted the injuries on the body of pws 5 and 6 and issued wound certificates. evidence of pws 5 and 6 is amply corroborated by medical evidence. pws 5 and 6 being injured witnesses, their evidence is entitled to great weight. cogent and convincing grounds are required to discard the evidence of injured witnesses. in the light of the fact that pws 5 and 6 were injured witnesses, courts below tested their evidence for its credibility and recorded concurrent findings that pws 5 and 6 are trustworthy witnesses. for the purpose of conviction u/s. 307 ipc, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. to justify a conviction u/s. 307 ipc, it is not essential that fatal injury capable of causing death should have been caused. in the case of state of m.p. vs. kashiram &; ors. air 2009. sc 1642. 2009) 4 scc 26 2009 indlaw sc 92, the scope of intention for attracting conviction u/s. 307 ipc was elaborated and it was held as under. it is sufficient to justify a conviction u/s. 307 if there is present an intent coupled with some overt act in execution thereof. it is not essential that bodily injury capable of causing death should have been inflicted. the conviction of the second appellant rajbir. 307 ipc is unassailable. for the conviction u/s. 307 ipc, courts below imposed upon the 2nd appellant rigorous imprisonment of five years, while imposing punishment, courts have an obligation to award appropriate punishment. in the heat of passion, the accused have caused injuries to the complainant party having regard to the fact that the occurrence was of the year 1994, considering the other facts and circumstances of the case, the sentence of imprisonment imposed on jage ram (a-1), madan (a-3) and rakesh (a-4) is reduced to the period already undergone by them.

FACTS on 18.11.1994, at about 8.00 a.m. in the morning the complainant jagdish (pw-5) along with his two sons namely sukhbir and mange ram (pw-6) were busy in cutting pullas (reeds) from the dola of their field. at that time, jage ram (a-1) and his sons rajbir singh @ raju (a-2), rakesh (a-3) and madan (a-4) armed with jaily, pharsi and lathis respectively, entered the land where the complainant was working with his sons and asked them not to cut the pullas as it was jointly held by both the parties. wordy altercations ensued between the parties and jage ram insisted that he would take away the entire pullas. in the fight, the accused persons started inflicting injuries to the complainant, and his sons raju gave a pharsi blow on the head of sukhbir, jage ram caused injury to jagdish with two jaily blows. additionally, madan and rakesh attacked the complainant with lathi blows on shoulder and left elbow respectively and caused several other injuries to the complainant party. jagdish and his injured sons raised alarm, hearing which rajesh and usha came to rescue them and on seeing them, the accused persons fled away. the injured witnesses were taken to the primary health centre. injured sukhbir was later on referred to general hospital, gurgaon as his condition deteriorated. a ct scan disclosed that large extra-dural haematoma was found in the frontal region with mass effect and sukhbir needed urgent surgery and he was operated upon and the large extra-dural haematoma was removed. statement of jagdish was recorded, based on which f.i.r. was registered at police station taoru, gurgaon under sections 323, 324, 325 and 307 read with s. 34 ipc. pw 8-ramesh kumar (asi) had taken up the investigation. he examined the witnesses and after completion of investigation, challan was filed under sections 307, 325, 324 read with s. 34 ipc. in the trial court, the accused were examined u/s. 313 cr.p.c. about the incriminating evidence and circumstances. first accused jage ram pleaded that on the date of occurrence-complainant party jagdish and his sons mange ram and sukhbir forcibly trespassed into the land belonging to the accused and attempted to forcibly cut the pullas. jagdish further claims that he along with rakesh caused injuries to the complainant party in exercise of right of private defence of property. ARGUMENT the evidence of the witnesses suffers from material discrepancy and is self- contradictory. it was submitted that injured witness sukhbir was not examined in the court and neither ct scan nor x-ray nor operational notes of sukhbir were produced before the court and in the absence of such material evidence, courts below erred in convicting the second accused u/s. 307 ipc. additionally, the learned counsel contended that the defence plea of private defence was not considered by the courts below in proper perspective. the medical evidence sufficiently corroborated the oral evidence and the prosecution has established the intention of the 2nd accused in causing attempt to commit murder of sukhbir and in appreciation of the evidence, courts below recorded concurrent findings convicting the second accused u/s. 307 ipc and the same warrants no interference. injured person sukhbir was neither examined nor medical evidence like ct scan, x-ray and operational notes and sukhbir were produced to corroborate the oral evidence and while so courts below erred in convicting second accused rajbir u/s. 307 ipc. ISSUE whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. ANALYSIS evidence of pws 5 and 6 is amply corroborated by medical evidence. pws 5 and 6 being injured witnesses, their evidence is entitled to great weight. cogent and convincing grounds are required to discard the evidence of injured witnesses. in the light of the fact that pws 5 and 6 were injured witnesses, courts below tested their evidence for its credibility and recorded concurrent findings that pws 5 and 6 are trustworthy witnesses. for the purpose of conviction u/s. 307 ipc, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. the burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. to justify a conviction u/s. 307 ipc, it is not essential that fatal injury capable of causing death should have been caused. although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. the intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc. in the case of state of m.p. vs. kashiram & ors. air 2009 sc 1642 = (2009) 4 scc 26 2009 indlaw sc 92, the scope of intention for attracting conviction u/s. 307 ipc was elaborated and it was held as under:- "it is sufficient to justify a conviction u/s. 307 if there is present an intent coupled with some overt act in execution thereof. it is not essential that bodily injury capable of causing death should have been inflicted. the section makes a distinction between the act of the accused and its result, if any. the court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. therefore, an accused charged u/s. 307 ipc cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. having regard to the weapon used for causing the head injuries to sukhbir, nature of injures, situs of the injury and the severity of the blows, courts below recorded concurrent findings convicting the 2nd appellant u/s. 307 ipc. the conviction of the second appellant rajbir @ raju u/s. 307 ipc is unassailable. for the conviction u/s. 307 ipc, courts below imposed upon the 2nd appellant rigorous imprisonment of five years, while imposing punishment, courts have an obligation to award appropriate punishment. question of awarding sentence is a matter of discretion and the same has to be exercised by the courts taking into consideration all the relevant circumstances. what sentence would meet the ends of justice would depend upon the facts and circumstances of each case and the courts must keep in mind the gravity of the offence, motive for the crime, nature of the offence and all other attendant circumstances. injured-sukhbir sustained grievous head injuries and was deeply comatose and was in a state of shock and trauma. having regard to the fact that the occurrence was of the year 1994, considering the other facts and circumstances of the case, the sentence of imprisonment imposed on jage ram (a-1), madan (a-3) and rakesh (a-4) is reduced to the period already undergone by them.

this appeal is by special leave against the judgment of the high court of punjab and haryana confirming the conviction of the accused under section 51c of the prevention of corruption act 1947 as also the sentence awarded by the sessions judge of one year 's rigorous imprisonment and a fine of rs 2500 in default six months rigorous imprisonment. the facts of the case in brief are that in view of the chinese invasion air field at sirsa required to be extended for which purpose the ministry of defence govt. of india took steps to acquire some lands of agriculturists pursuant to which a notification dated november 27 1962 was issued under section 4 of the land acquisition act 1894 for acquiring 51 79 acres of land situated in the state of ahmedpur. on the next day another notification was issued under section 6 of the land acquisition act on november 28 1962 and in view of the emergency action under section 17 was taken for obtaining possession of the land with a view to its development. the lands which were acquired belonged to several land holders including moti ram and p w 12 kewal chand. the collector gave his award on 26 2 63 in respect of these lands which actually measured 49 47 acres at rs 1350 per acre amounting to rs 66784 50 np. apart from this amount compensation was also awarded for standing crop amounting to rs 11073 13. before the land was actually acquired the appellant who was a major in the military engineering service was working as a garrison engineer and was inching of the extension. he had in anticipation of acquisition and execution of the work appointed a b ranadive p w 14 as assistant garrison engineer who was to be responsible for all the matters connected with the acquisition of land demarcation of boundaries as an engineer inching for execution of the contract and responsible for the maintenance of the air field. the work of the extension of aerodynamic was entrusted to one telu ram p w 8 contractor with whom the trusted to m e s department entered into an agreement on december 3 1962. this agreement was signed both by the appellant and p w 14. the work according to that agreement was to be done in 2 phases first phase was to commence on 10th january 1963 and was to be completed by 9th october 1963. after the completion of the first phase the second phase was to start on 10th october 1963 and completed by 9th may 1964. pursuant to this agreement it is said that symbolic possession of the land which was acquired was taken over by the tehsildar on 1st february 1963 after which at any rate it appears from exhibit p 24 that actual possession of this land was handed over by the said tehsildar on 13th. february 1963 to the appellant. the receipt ex. 24 bears the signature of n l handa the tehsildar and of sukhchain lal jain p w 11 on behalf of the military estate officer and the appellant. from this receipt it is evident that possession of 50 12 acres was handed over by the tehsildar and taken over by the appellant and the military estate officer sukhchain lal jain. the case of the prosecution initially was that after the land so acquired with the standing crop was taken possession of by the appellant. he sold the crop to moti ram and kewal chand for rs 2500 and facilitated the cutting and taking away of the crop by postponing the handing over of the possession to the contractor till the 5th april 1963 and misappropriated the money. in respect of this allegation the first information report exhibit p 29 was issued on 14 1 64 in which the following statement is relevant. it is alleged that major som nath accused who is a garrison engineer sirsa air field subsequently sometime in the months of march and april 1963 permitted the removal of the standing crop valued at rs 11073 13 by shri moti ram and kewal chand etc. after accepting illegal gratification of rs 3000 from them. major som nath did not account for this amount in the govt. revenues. he thus. abused his position as a public servant and caused pecuniary advantage to said shri moti ram and kewal chand by giving them standing crops worth rs 13000 for a consideration of. rs 3000 only which amount he accepted for his personal use and thereby also abused his official position and obtained pecuniary advantage for himself in a sum of rs. the facts disclose the commission of the offence of criminal misconduct as defined in section 51d read with section 52 of the prevention of corruption act 1947 by major som nath accused. a regular case is therefore registered and entrusted to inspector baldev rai handa for investigation. after this f i r certain statements were recorded by the military authorities being da to de dm dm 1 dn dl of mani gain mulkh raj ganpat ram telu ram kewal chand and sukhchain lal jain. a chargesheet was filed against the appellant under section 5 1 c and 5 1 d read with 5 2 of the prevention of corruption act on 5 8 1966 after obtaining sanction from the govt. of india ministry of home affairs on llth april 1966 as per exhibit p 23. the special judge acquitted the appellant of the second charge namely that being a public servant he had by corrupt or illegal means or by otherwise abusing his position as a public servant obtained for himself a sum of rs 2500 from moti ram of sirsa for cutting the crops and thereby committed offence under section 51d punishable under section 52. the accused was however convicted under the first charge for an offence under section 51c in that he being a garrison engineer incharge of the air field. sirsa and in that capacity entrusted with standing crops of sarson gram and lusan on 30 acres of land a part of 49 acres of land acquired by the govt. and which had been valued at rs 11073 13 by the revenue authorities dishonestly or fraudulently allowed moti ram of sirsa to misappropriate the said standing crop and thereby contravened section 51c of the prevention of corruption act punishable with section 52 of that act. against that conviction and sentence he appealed to the high court which maintained the conviction and sentence. the learned advocate for the appellant has meticulously taken us through the entire documentary and oral evidence and commented at length upon the various contradictions and incongruities in the case of the prosecution with a view to establishing that when the appellant took possession of the land there was no crop standing on it that tile possession of the land was in fact delivered to telu ram contractor on 10 1 1963 that the said contractor had admitted that possession of the entire land was received by him that he carried on the construction work in extending the aerodrome that 200250 donkeys were also used for doing the work by reason of which the crop was damaged before tehsildar had put the appellant in possession of the land and as a matter of fact there was no crop thereon when he got the possession of the land. it was also contended that the high court had not considered the contradictions in the earlier statement made by some of the witnesses to the military authorities and that it relied on many of the documents for affirming the conviction of the appellant without their actually being put to him under section 342. before we consider these contentions it is necessary to determine another submission of the learned advocate for the appellant which goes to the root of the jurisdiction of the court to try the offence under section 51c. if this contention is valid then the conviction of the accused can not stand and therefore it is necessary to deal with this matter first. it may be mentioned that though a complaint was made in the application for a certificate for leave to appeal to this court that the learned single judge of the high court should have acquitted the appellant on the sole ground that there was no proper sanction for the prosecution of the appellant under section 51 c of the prevention of the corruption act this question does not seem to have been urged before the high court. in any case we do not think that there is any validity in the submission. that the sanction given by the govt. of india does not cover the trial of the charge under section 51c of the prevention of corruption act. for a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to be charged. though it is desirable that the facts should be referred to in the sanction itself nonetheless if they do not appear on the face of it the prosecution must establish aliunde by evidence that those facts were placed before the sanctioning authorities. it is therefore necessary to first examine the order of sanction to ascertain on what facts it has been accorded. the sanction that has been accorded is in the following terms 11th april 1966. whereas it is alleged that major som nath while functioning as garrison engineer m e s air field at sirsa from 13 2 63 to 54 1963 by corrupt or illegal means or by otherwise abusing his position as such public servant obtained pecuniary advantage of rs 2500 for allowing the standing crops to be cut from the land acquired for the extension of air field. sirsa and or he dishonestly or fraudulently realised and misappropriated rs 2500 during the aforesaid period as the value of the crops cut from the land acquired for the extension of air field. sirsa which crops had been entrusted to him as a public servant and he instead of depositing the said sale price into the govt. treasury converted it to his own use and whereas the said acts of major som nath constituted offences punishable under section 52 of the prevention of corruption act read with section 5 1 c and d act No 11 of 1947 of the said act and section 409 of the i p c and whereas the central govt. after fully and carefully examining the materials before it in regard to the said allegations and circumstances of the case consider that major som nath should be prosecuted in a court of law for the said offences. now therefore the central govt both hereby accord sanction under section 197 code of criminal procedure act No 5 of 1898 and section 61a of the prevention of corruption act 1947 act ii of 1947 for the prosecution of maj. som nath for the said offences and for any other offences punishable under the provision of law in respect of the aforesaid acts by the court of competent jurisdiction. by order and in the name of the president. sd a p veera raghavan. deputy secretary to the govt of india. from the above order it is apparent that the facts which the central govt. considered for the purposes of according sanction were a that the appellant as a public servant was entrusted with crops situated on the land acquired for the extension of air field sirsa b that by abusing his position as a public servant he allowed the standing crops to be cut from the said land. c that by corrupt or illegal means and by abusing his position as a public servant he obtained pecuniary advantage of rs 2500 as the value of the crops to be cut from the land andor he dishonestly or fraudulently misappropriated that sum by converting it into his own use instead of depositing the said sale price in the govt. treasury. on these facts and after applying its mind as spoken to by p w 10 kalra the government accorded its sanction for prosecution of the offences punishable under section 52 read with section 51c and 51d. the question therefore would be whether these facts were sufficient to sustain the sanction under 51c even if the charge under 51d had failed. this question in turnwill depend upon what are the ingredients of the offences under 51c and d read with section 52. under 51c a public servant is said to commit the offence of misconduct in the discharge of his duty if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do and under d if he by corrupt or illegal means or by otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. it would be seen therefore that under section 51c a public servant will be said to commit the offence of misconduct in hi duties if he dishonestly allows any other persons to convert to his own use property which is entrusted to the said public servant the facts which have been set out in the order granting the sanction certainly are sufficient to indicate that the authorities granting the sanction had the offence under section 51c also in their contemplation. in fact the order specifically mentions thisprovision while granting sanction. we should have thought this was an obvious conclusion but the learned advocate for the appellant strenuously contended that the charge against the appellant was of a motiveless offenceand in any case the facts as disclosed show that not only at thetime when the first information report was given but even at the time when sanction was accorded that the prosecution wag merely concerned with the charge that the appellant bad allowed the crops to be cut on the condition that rs 2500 will be paid and received the money and misappropriated or converted it tohis own use by not paying it into the govt. treasury. there is therefore no basis for sanction for a charge under section 51c. it is further contended that the stand taken by the prosecution was that the persons who we re permitted to cut the crops bad not committed any offence. if so a charge under section 51c would implicate those persons also in the commission of an offence which certainly would not have been in the contemplation of the authorities granting the sanction. in support of this contention three decisions have been cited before us namely bhagat ram v state of punjab 1954 indlaw sc 188 madan mohan singh v state of u p privy council 82. and gokulchand dwarkadas mordrka v the king 1948 indlaw pc 39. bhagat ram 's case was not concerned with the sanction but only with the question whether the offence could be altered to one of abetment of an offence of section 409 i p c from one under section 409 simpliciter. it was held that an alteration of the appellant 's conviction under section 409 i p c into one of abetment thereof would imply a definite finding against the subordinate judge who is not before the court and as such it would be unfair to make such an alteration. we do not see how this case can assist the appellant because in the first ace there is no question of an alteration of the charge and secondly the circumstance that someone who is not a public servant abetted the appellant is hardly relevant. but even so the offence with which the appellant is charged under section 51c does not necessarily involve an abetment with the person whom he had dishonestly allowed to cut and take away the crop. for instance it is quite possible that the person whom he allowed to cut the crop may be his own relation or friend in whom he may be interested and who may however not know that the accused was doing something dishonest in permitting him to cut the crop. in any case the facts which have been stated in the sanction clearly indicate that the appellant has dishonestly allowed the crops to be cut so that there is no question of any inference or implication that the persons cutting the crops were abetting him in the offence. even if it were so the sanction can not be held to be had on that account. gokulchand dwarkadas 's case also is of no assistance to the appellant because in that case the sanction did not disclose the facts on which it was given but merely sanctioned the prosecution for a breach of certain provisions sir john beamont delivering the judgement of the judicial committee observed at page 84 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. nor in their lordships view is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of cl. under that clause sanction has to be given to a prosecution for the contravention of any of the provision of the order. a person could not be charged merely with the breach of a particular provision of the order he must be charged with the commission of certain acts which constitute a breach and it is to that prosecution that is for having done acts which constitution breach of the order that the sanction is required. in the present case there is nothing on the face of the sanction and no extraneous evidence to show that the sanctioning authority knew the facts alleged to constitute a breach of the order and the sanction is invalid. the case of jaswant singh v the state of puniab. 1957 indlaw sc 59 was also cited by the respondent 's advocate in support of the contention that the trial of two offences requiring sanction was not valid. in that case sanction was given under section 6 of the prevention of corruption act 47 for the prosecution of the appellant for having received illegal gratification from one pal singh. he was charged with and tried for two offences under section 51 a of the act for habitually accepting or obtaining illegal gratification and under section 51d for receiving illegal gratification from pal singh. the session judge had found that both charges were proved. while in appeal the high court held that the appellant could neither be tried nor convicted of the offence under 51a as no sanction had been given in respect of it but upheld the conviction under section 51d for which sanction had been given. a perusal of the sanction would show that the sanctioning authority had applied their mind to only one instance but the prosecution were seeking to make the sanction cover the offence of a habitual bribe taker which clearly implies that the sanctioning authorities must consider the number of instances when the accused took bribes and on what occasions as would justify a charge of his being a habitual bribe taker. sinha j as he then was while dismissing the appeal observed at page 766. 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 61 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 51d 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. these cases instead of supporting the contention of the learned advocate amply demonstrate that the facts which formed the basis of the sanction and which was accorded after the sanctioning authority had fully applied its mind to them should be correlated to the particular offence or offences with which the accused is charged or convicted. in our view there is no justification for holding that the conviction under section 51c read with 52 is bad for want of the requisite sanction. now on the merits of the case as we said earlier the learned advocate for the appellant has referred to the evidence in meticulous detail and has commented thereon at length but this court ordinarily does not reappropriation the evidence with a view to arriving at its own finding as if it was a court of fact and does not ordinarily upset the findings of the high court which has on an evaluation of the evidence affirmed the trial court 's conviction and sentence. it has been contended firstly that the high court was in error in relying on certain evidence for convicting the accused which was not put to him. secondly the evidence that was necessary to unfold the story of the prosecution has not been produced by the prosecution but the trial court and the high court ignored this lacunas in the prosecution case. thirdly the judgments show that there was utter confusion in respect of the date on which possession of the acquired land was given to the appellant and the date on which it was given to the contractor for carrying on the work as also in respect of the fact whether there was any crop standing when the appellant took possession of the land and at what period of time the crop was cut and the work commenced. before we deal with the contentions urged on behalf of the appellant it is necessary to have a clear picture of certain broad features of the case. the air strip which was being extended is in one straight line with taxi ways. p w 14 ranadive tells us that if one were to go from the entrance of air field to the acquired land one would have to pass through rd 4500 to 1200. the acquired land extended from rd 1200 to rd 00. according to p w 8 telu ram he acquired possession of the land of the length from rd 4500 to rd 1200 on 10th january 1963 and that tile possession of the acquired land was not delivered to him as it had not been acquired by that time. exhibit do review report which is headed technical administration contract shows that the date of review was 9th february 1963. in this document the date of the conclusion of the contract is given as 3rd december62 and date of commencement of work as 10th january63 date of completion of 1st phase 9th october 63 and second phase 9th may 1964. to the question have all sites been handed over on due date the answer shown was an affirmative yes. there is however nothing in this document to show what is the site of which possession was handed over to and taken by telu ram on 10th january 63. it is not the case of the appellant that acquisition of the land on which the crop was standing had taken place nor could possession of it been handed over to him because he denies that there was any crop on the land when the possession of the land was handed over to him. that there was crop on the land is amply born out by a letter of the appellant dated 12th february 1963 addressed to mr g l nagpal sub divisional magistrate sirsa. in this letter he says 12th feb 1963. my dear mr nagpal i am writing to you with regard to. acquisition of land for sirsa airfield. as you know. the additional deputy commissioner hissar will be visiting his location on 13th feb 1963. the military estates officer delhi mr k k gamkhar will also be here on 13th morning. it is desirable that entire proceedings with regard to acquisition of land and determining compensation for standing crops for the total area of 39 58 acres in mirpur and ahmadpur villages tire finalised an this date. as i have told you personally we are keen to finalise the proceedings for the total area to be acquired by us and not by phses. this is interest of the project. i therefore request you to issue suitable instructions to your staff so that all the relevant papers may be suitably prepared. even if exhibit dq gave a correct picture it could be in relation to the airstrip already in existence as this would be necessary for a contractor who is charged with duty to carry out extension work to go on the site collect materials and get everything ready to execute his contract. in fact as we have noticed earlier this is what telu ram says in his evidence namely that on loan january63 no delivery of possession of the remaining land other than rd 4500 to 1200 the land in which there is the existing run way was given. it was then that he wrote on 23 1 1963 as per exhibit 8 to the assistant garrison engineer complaining that the possession of the whole of the land had not been delivered to him. a copy of this letter was sent to the garrison engineer the appellant. this letter shows two things a that complete site 4500 to 0 ft has not yet been handed over as it was presumed that the possession of the land could not be had so for and b that as levels have not been given the final excavation of the foundation can not be done and all subsequent operations are therefore withheld. this letter clearly indicates that some excavation was being done as otherwise there is no meaning in saying that final excavation can not be done. this is also consistent with the other evidence that some work was in progress which gain is in accord with the evidence of telu ram p w 8 that he got the possession of rd 4500 to rd 1200. the extension of the airstrip would mean that the existing airstrip is being extended so that the initial work can be started and continued on the existing airstrip. it is not as if the existing airstrip ends at the boundary of rd 4500 to rd 1200 so that the work of extension can go on in the existing airstrip even before possession of the acquired land was given. this is further confirmed by a perusal of the letter written by the appellant to telu ram p w 8 in reply to his letter dated 28th february63 not produced that necessary possession of the runway and taxi track has already been given to you. you are therefore requested to set out the work and get the same approved by the engineerin charge before starting the work. this shows that no work had in fact been undertaken on the land acquired and also that possession of the existing runway and track had already been given. nothing is specifically mentioned about possession of the acquired land being given to him on that date. the work on that land is only at the stage of getting approval. now the next question is when was the possession of the acquired land obtained by the appellant and when did he deliver it to p w 8. p w 14 says that symbolic possession was delivered to him in respect of the acquired land on the 1st february63. it would however appear from exh. p 24 that actual possession was delivered to the appellant on 13th february 63 as per the delivery receipt executed by him the tehsildar and p w 11 a representative of the military estate office and that even according to his letter already referred to exhibit p 13 there wag standing crop on the land. as otherwise there is no meaning in the appellant saying therein that it is desirable that entire proceedings with regard to acquisition of land and determining compensation for standing crops for the total area of 39 58 acres are finalised on the 13th february. there is also credible evidence that possession of the acquired land was not handed over to the contractor till late in march 63 though it was handed over to and taken over by the appellant on 13 2 63. the khasra girdawari exhibit p 3 would show that there was a crop of sargon mustard gram and lusan at any rate on 20th march 63 at a time when the land has been shown therein to have been in possession of the military authorities. p 2 is a certified copy by the tehsildar dated 18 9 63 which shows that as per the girdawari on 20 3 63 crops were standing on the lands in the village ahmedpur acquired by the military authorities for sirsa 3 airfield construction the details of which were that the total land acquired for airfield 49 acres the land on which crops were standing in good condition 23 acres and the land on which crops were standing in damaged condition 7 acres and uncultivated land 19 acres. mani ram patwari had stated that by the 20th march 1963 some ground had been cleared. sukhchain lal jain p w 11 who had also come to obtain possession on behalf of the military estate officer had said that he had seen some part of the crops had been cut by 13 2 1963 but was not aware who had cut them. this evidence however does not assist the accused. at the most it shows that a small portion of the crops were cut but it is apparent that that has not been taken into account by the collector in assessing the value of the crop because it is on that day that crops were inspected for that purpose and subsequently the agricultural officer also had in his letter dated 18 2 63 which has been cited in the award exhibit p 26 intimated that on inspection the crops were found to be very good. he had also given the approximate yield and the rate at which the crop can be valued with which the collector agreed and awarded compensation. it is therefore clear that in estimating the crop the small portion of the land where crops were stated to have been cut by the 13 2 63 even if true could not have been taken into account. it may also be stated that the contractor had written to the garrison engineer on 28 2 63 requesting him to hand over immediately the possession of the remaining portion of the land so that excavation work is not held up. he also inform in that letter that the excavation in all available portions of the taxi track and runway has been completed. this again does not specifically refer to the land which is being acquired. at any rate on the 23rd march 1963 p w 8 has again written to the garrison engineer namely the appellant that the excavation of the taxi track could not be proceeded with for want of alignment to be given which was pending for want because of standing crops in the land the possession of which has not been given so far. thereafter the following pertinent statement appears namely now today i find that the crops have been completely cut and as such it is requested that further necessary action in the matter of giving the alignment and possession of land may please be taken at your end. on the 6th april 1963 he has again written to the garrison engineer saying as follows. you have verbally asked me now to take the site after the crop is cut and the necessary marking of the alignment has been taken in hand but this handing over has not been shown on the site order book by the a g e b r despite my request. he may please be asked to complete this formality without any loss of time. in reply the appellant states in his letter exhibit p 12 dated the 10th april. the matter has already been discussed with you and finalised. no further action is required to be taken. it can be seen from the above that the appellant is reluctant to reply in writing as to what he is asking the contractor to do under verbal orders while the contractor for safeguarding his position is insisting on having it in writing. the trial court as well as the high court are in our view justified in holding that crops of sarson gram and lusan were standing on the land acquired by the military for extension of the aerodrome. it will also justify the conclusion that they were there at any rate till the 20th march 1963 and according to the letter of the contractor p w 8 on 23 3 63 they were completely cut. in so far as handing over of the possession of the land to the contractor p w 8 is concerned the trial court and the high court are equally justified in coming to the conclusion that the accused had not delivered the possession of the land to the contractor till quite late as would appear from the letter of p w 8 dated the 5th april 1963. we are aware of the argument addressed before us that some of the witnesses had said that the water channels had been closed in february 1963 and therefore no crop could thereafter have been standing on the land and must have been destroyed. there is also the further argument that some of the statements recorded by the military authorities were not taken into account as the high court had thought that since the deponents denied the contents the officers who recorded the statement might have been called to show that they were properly recorded. the learned advocate for the respondent also tried to support the stand taken by the high court. it 1is true that when a witness has admitted having signed his previous statements that is enough to prove that some statement of his was recorded and he had appended his signature thereto. the only question is what use can be made of such statements even where the witness admits having signed the statements made before the military authorities. they can at best be used to contradict in the cross examination of such a witness when he gives evidence at the trial court of the accused in the manner provided under section 145 of the evidence act. if it is intended to contradict the witness by the writing the attention of the witness should be called before the writing can be proved to those parts of it which are to be used for the purpose of contradicting him. if this is not done the evidence of the witnesses can not be assailed in respect of those statements by merely proving that the witness had signed the document. when the witnesses are contradicted by their previous statements in the manner aforesaid then that part of the statements which has been put to the witness will be considered along with the evidence to assess the worth of the witness in determining his veracity. the whole of the previous statement however can not be treated as substantive evidence. we do not find that the assessment of the evidence by the trial court and the high court even in the light of such of those previous statements that have been put to the witnesses in the manner stated above is in any way unjustified. it is said that some of the documents i e exhibit 8 10 and 11 have not been put to the witnesses even though the court relied upon them. as already noticed is the letter of telu ram jain to the assistant garrison engineer and p 10 is the letter of telu ram jain to the garrison engineer. both these related to possession of the acquired land not being given to him. in the examination of the accused under section 342 the special judge in our view did put all the circumstances against the accused which formed the basis of the conviction. he was asked about the symbolic delivery of possession the handing over of the actual possession of the land on 13 2 63 and the existence of crops on the date when possession was delivered on 16 2 63. he was asked about telu ram 's evidence and also that he had given possession of the land rd 1200 to rd 00 to the contractor after the crop had been cut. the letter exhibit p 13 was also put to him and he was asked about the existence of the crops. it can not therefore be said that circumstances appearing against the accused which have formed the basis of the conviction had not been put to him. the appellant has denied that there was any standing crop on the land acquired on any date after 13 2 63. on the other hand he emphatically asserted that at the time when the possession was delivered to him on 13 2 63 there was also no crops standing on the acquired land. this statement is clearly false as it is against credible documentary evidence at a time when there was no possibility of any charge being levied against the appellant. it is also incorrect because the contractor did not work on the acquired land since 1 2 63 that position is reflected in the review report initiated by the a g e on 9 2 63 vide exhibit dq. the appellant 's statement is therefore belied by the documentary evidence which shows unmistakably that there was on 13 2 63 bumper crops of different varieties standing on the land which was valued thereafter and compensation assessed. we do not therefore think that there is any justification in the criticism that circumstances appearing in the several documents have not been put to him. it is lastly contended that certain witnesses who would be necessary to unfold the prosecution story have not been called and in spite of the court directing the production of the usufruct register it was not produced. these omissions it is submitted by the learned advocate has prejudiced the accused. as the learned advocate for the respondent rightly pointed out with reference to each one of the persons who it was claimed should have been called that there was already evidence relating to the particular matter about which the person specified was sought to be called. for instance it is said that gamkhar military estate officer was not produced to prove the receipt exhibit p 24. but this was not necessary because gamkhar was not present nor did he sign the receipt. the person who had signed the receipt is sukhchain lal jain and he was examined as p w 11. similarly it is said that the tehsildar n l handa has not been produced. but when the prosecution relies upon the proof of exhibit p 24 as also to establish that there was standing crops on the land when the possession was delivered on 13 2 63 on certain witnesses who were present on the respective occasions. the nonexamination of other witnesses without anything more can not be treated as defect in the prosecution. before the high court also this grievance was aired but that court also likewise found no justification in it. we are therefore not impressed with this argument. on a careful consideration of the evidence both oral and documentary it is established that the appellant who was in charge of the expansion work on the air strip was given possession of the land acquired for that purpose on 13 2 63 that there was standing thereon a bumper crop of sarson gram and lusan on that day that he was therefore entrusted with this crop that he postponed giving delivery of the land to the contractor till at any rate after the 23rd march 1963 and before the 6th april 1963 and that he allowed the crop to be cut and taken away without in any way accounting for it which shows that it was done dishonestly and raudulently. the fact that otwithstanding overwhelming evidence particularly of his own admission at the time he denies that there were ever any crops when delivery of possession of the land acquired was taken by him further reinforces the conclusion that he allowed the crops to be cut away with dishonest or fraudulent motive. we do not think in these circumstances there is any justification whatever for interfering with the concurrent findings of the trial court and the high court that the appellant is guilty of an offence under section 51c read with section 52 of the prevention of corruption act and consequently the appeal is dismissed. appeal dismissed.

FACTS this appeal is by special leave against the judgment of the high court of punjab and haryana confirming the conviction of the accused. the facts of the case in brief are that in view of the chinese invasion air field at sirsa required to be extended for which purpose the ministry of defence, govt. of india took steps to acquire some lands of agriculturists pursuant to which a notification dated november 27, 1962 was issued under section 4 of the land acquisition act 1894 for acquiring 51.79 acres of land situated in the state of ahmedpur. on the next day another notification was issued under section 6 of the land acquisition act on november 28, 1962 and in view of the emergency action under section 17 was taken for obtaining possession of the land with a view to its development. the lands which were acquired belonged to several land holders including moti ram and p.w. 12 kewal chand. the collector gave his award on 26-2-63 in respect of these lands, which actually measured 49.47 acres, at rs. 1350 per acre amounting to rs. 66,784.50 np. apart from this amount compensation was also awarded for standing crop amounting to rs. 11,073.13 np. the case of the prosecution initially was that after the land so acquired with the standing crop was taken possession of by the appellant. he sold the crop to moti ram and kewal chand for rs. 2500 and facilitated the cutting and taking away of the crop by postponing the handing over of the possession to the contractor. a chargesheet was filed against the appellant under section 5 (1) (c) and 5 (1) (d) read with 5 (2) of the prevention of corruption act on 5-8-1966 after obtaining sanction from the govt. of india, ministry of home affairs. ARGUMENT the learned advocate for the appellant has meticulously taken us through the entire documentary and oral evidence and commented at length upon the various contradictions and incongruities in the case of the prosecution with a view to establishing that when the appellant took possession of the land there was no crop standing on it-that tile possession of the land 'was in fact delivered to telu ram, contractor on 10-1-1963; that the said contractor had admitted 'that possession of the entire land was received by him; that he carried on the construction work in extending the aerodrome; that 200/250 donkeys were also used for doing the work by reason of which the crop was damaged before tehsildar had put the appellant in possession of the land and as a matter of fact there was no crop thereon when he got the possession of the land. it was also contended that the high court had not considered the contradictions in the earlier statement made by some of the witnesses to the military authorities and that it relied on many of the documents for affirming the conviction of the appellant without their actually being put to, him under section 342. it is further contended that the stand taken by the prosecution was that 'the persons who we're permitted to cut the crops bad' not committed any offence. ISSUE whether the facts were sufficient to sustain the sanction under 5(1)(c) even if the charge under 5(1)(d) had failed. this question in turnwill depend upon what are the ingredients of the offences under 5(1)(c) and (d) read with section 5(2). there was utter confusion in respect of the date on which possession of the acquired land was given to the appellant and the date on which it was given to the contractor for carrying on the work, as also in respect of the fact whether there was any crop standing when the appellant took possession of the land and at what period of time the crop was cut and the work commenced. ANALYSIS though it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it, the prosecution must establish aliunde by evidence that those facts were placed before the sanctioning authorities. it is therefore necessary to first examine the order of sanction to ascertain on what facts it has been accorded. it is apparent that the facts which the central govt. considered for the purposes of according sanction were (a) that the appellant as a public servant was entrusted with crops situated on the land acquired for the extension of air field, sirsa ; (b) that by abusing his position as a public servant he allowed the standing crops to be cut from the said land. c. that by corrupt or illegal means and by abusing his position as a public servant he obtained pecuniary advantage of rs. 2500 as the value of the crops to be cut from the land and/or he dishonestly or fraudulently misappropriated that sum by converting it into his own use instead of depositing the said sale price in the govt. treasury. it would be seen therefore that under section 5(1)(c) a public servant will be said to commit the offence of misconduct in hi&; duties if he dishonestly allows any other persons to convert to his own use property which is entrusted to the said public servant the facts which have been set out in the order granting the sanction certainly are sufficient to indicate that the authorities granting the sanction had the offence under section 5(1)(c) also in their contemplation. no work had in fact been undertaken on the land acquired and also that possession of the existing runway and track had already been given. nothing is specifically mentioned about possession of the acquired land being given to him on that date. re no basis for sanction for a charge under section 5(1)(c. a person could not be charged merely with the breach of a particular provision of the order; he must be charged with the commission of certain acts which constitute a breach, and it is to that prosecution that is for having done acts which constitution breach of the order-that the sanction 'is required. in the present case -there is nothing on the face ,of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the order, and the sanction is invalid. the case of jaswant singh v. the state of puniab. 1957 indlaw sc 59 was also cited by the respondent's advocate in support of the contention that the trial of two offences requiring sanction was not valid. STATUTE the facts disclose the commission of the offence of criminal misconduct as defined in section 5(1)(d) read with section 5(2) of the prevention of corruption act 1947 by major som nath accused. under 5(1)(c)-a public servant is said to commit the offence of misconduct in the discharge of his duty if he dishonestly or fraudulently misappropriates or otherwise converts for' his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, and under (d) if he by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.

FACTS this appeal is by special leave against the judgment of the high court of punjab and haryana confirming the conviction of the accused. in view of the chinese invasion air field at sirsa required to be extended for which purpose the ministry of defence, govt. of india took steps to acquire some lands of agriculturists pursuant to which a notification dated november 27, 1962 was issued under section 4 of the land acquisition act 1894 for acquiring 51.79 acres of land situated in the state of ahmedpur. on the next day another notification was issued under section 6 of the land acquisition act on november 28, 1962 and in view of the emergency action under section 17 was taken for obtaining possession of the land with a view to its development. the lands which were acquired belonged to several land holders including moti ram and p.w. 12 kewal chand. the collector gave his award on 26-2-63 in respect of these lands, which actually measured 49.47 acres, at rs. 1350 per acre amounting to rs. 66,784.50 np. apart from this amount compensation was also awarded for standing crop amounting to rs. 11,073.13 np. the case of the prosecution initially was that after the land so acquired with the standing crop was taken possession of by the appellant. he sold the crop to moti ram and kewal chand for rs. 2500 and facilitated the cutting and taking away of the crop by postponing the handing over of the possession to the contractor. a chargesheet was filed against the appellant under section 5 (1) (c) and 5 (1) (d) read with 5 (2) of the prevention of corruption act on 5-8-1966 after obtaining sanction from the govt. of india, ministry of home affairs. ARGUMENT when the appellant took possession of the land there was no crop standing on it-that tile possession of the land 'was in fact delivered to telu ram, contractor on 10-1-1963; that the said contractor had admitted 'that possession of the entire land was received by him; that he carried on the construction work in extending the aerodrome; that 200/250 donkeys were also used for doing the work by reason of which the crop was damaged before tehsildar had put the appellant in possession of the land and as a matter of fact there was no crop thereon when he got the possession of the land. the high court had not considered the contradictions in the earlier statement made by some of the witnesses to the military authorities and that it relied on many of the documents for affirming the conviction of the appellant without their actually being put to, him under section 342. the stand taken by the prosecution was that 'the persons who we're permitted to cut the crops bad' not committed any offence. ISSUE whether the facts were sufficient to sustain the sanction under 5(1)(c) even if the charge under 5(1)(d) had failed. this question in turnwill depend upon what are the ingredients of the offences under 5(1)(c) and (d) read with section 5(2). there was utter confusion in respect of the date on which possession of the acquired land was given to the appellant and the date on which it was given to the contractor for carrying on the work, as also in respect of the fact whether there was any crop standing when the appellant took possession of the land and at what period of time the crop was cut and the work commenced. ANALYSIS though it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it, the prosecution must establish aliunde by evidence that those facts were placed before the sanctioning authorities. it is therefore necessary to first examine the order of sanction to ascertain on what facts it has been accorded. it is apparent that the facts which the central govt. considered for the purposes of according sanction were (a) that the appellant as a public servant was entrusted with crops situated on the land acquired for the extension of air field, sirsa ; (b) that by abusing his position as a public servant he allowed the standing crops to be cut from the said land. c. that by corrupt or illegal means and by abusing his position as a public servant he obtained pecuniary advantage of rs. 2500 as the value of the crops to be cut from the land and/or he dishonestly or fraudulently misappropriated that sum by converting it into his own use instead of depositing the said sale price in the govt. treasury. it would be seen therefore that under section 5(1)(c) a public servant will be said to commit the offence of misconduct in hi&; duties if he dishonestly allows any other persons to convert to his own use property which is entrusted to the said public servant the facts which have been set out in the order granting the sanction certainly are sufficient to indicate that the authorities granting the sanction had the offence under section 5(1)(c) also in their contemplation. no work had in fact been undertaken on the land acquired and also that possession of the existing runway and track had already been given. nothing is specifically mentioned about possession of the acquired land being given to him on that date. re no basis for sanction for a charge under section 5(1)( c) . a person could not be charged merely with the breach of a particular provision of the order; he must be charged with the commission of certain acts which constitute a breach, and it is to that prosecution that is for having done acts which constitution breach of the order-that the sanction 'is required. in the present case -there is nothing on the face ,of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the order, and the sanction is invalid. the case of jaswant singh v. the state of puniab. 1957 indlaw sc 59 was also cited by the respondent's advocate in support of the contention that the trial of two offences requiring sanction was not valid. with reference to each one of the persons who, it was claimed, should have been called, that there was already evidence relating to the particular matter about which the person specified was sought to be called. for instance, it is said that gamkhar, military estate officer was not produced to prove the receipt ex. p. 24. but this was not necessary because gamkhar was not present nor did he sign the receipt. STATUTE the facts disclose the commission of the offence of criminal misconduct as defined in section 5(1)(d) read with section 5(2) of the prevention of corruption act 1947 by major som nath accused. under 5(1)(c) of the prevention of corruption act 1947, a public servant is said to commit the offence of misconduct in the discharge of his duty if he dishonestly or fraudulently misappropriates or otherwise converts for' his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, and under (d) if he by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.

interpretation and or application of the provisions of the gujarat town planning and urban development act1976 for short the act and the rules framed thereunder known as the gujarat town planning and urban development rules1979. for short the rules is in question in this appeal which arises out of a judgment and order dated 27 12 2006 passed by a division bench of the high court of gujarat at ahmedabad in letters patent appeal no 1611 of 2006 arising out of a judgment and order dated 23 11 2006 passed by a learned single judge of the said court in sca no 7092 of 2001. before embarking upon the issue involved in this appeal we may notice the admitted fact of the matter. the government of gujarat in exercise of its power conferred upon it u s 65 of the act made a scheme in respect of the town of umra surat on 1 06 1999. plot nos 177 and 178 were owned by respondent no 4 herein. appellant was a tenant under the said respondent in respect of plot no 178 admeasuring 1067 sq m. he used to run a business of marble and stone therein. a road widening project was proposed in terms of the said scheme. notices therefor were issued both to the appellant as also the respondent No appellant objected thereto. he however did not pursue his case in regard to the proposal for widening of the road. for the said public purpose viz. widening of the road867 sq m of land was taken over leaving only 200 sq m of land. with a view to give effect to the provisions of the act and the rules framed thereunder proceedings were initiated for allotment of the said land in terms of the act 20 of the land was taken over without payment of any compensation. in respect of the proceedings initiated for the purpose of re allotment of the land despite a public notice the appellant did not file any objection. he did not take any part in the proceedings therefor. respondent no 4 was allotted a final plot bearing no 157 and the said 200 sq m of land of plot no 178 has merged in final plot no 165 owned by the respondent no 3. the scheme was notified in the year 1999 respondent no 1 herein which is the statutory agency in terms of the act for the purpose of implementation of the scheme issued a notice u s 67 of the act upon the respondent no 4 on or about 15 01 2000 as he did not respond thereto a notice u s 68 of the act was served on him on 31 03 2000 stating as per the said approved preliminary scheme the plot no 157 is allotted to you. and its pole demarcations were done by the town planning officer at site. the said final plot original plot is allotted in lieu of your no 177178 paiki land. and the said land is now vested in the municipal corporation from 1 7 1999and is of the ownership of the municipal corporation. thereafter the notice below s 67 for the change in occupation was issued on 15 1 2000 to you. in spite of this you have not handed over the possession. therefore as per the gujarat town planning and urban development rules1979 rule 33 the undersigned in exercise of powers conferred below s 681 and 82 of the bombay provincial municipalities act and below the s 68 notice under the gujarat town planning and urban development act this is to inform you that as shown in the sketch on the reverse the premises marked should be vacated within 7 days from receipt of the notice and had over the possession to the surat municipal corporation. if you fail to do so then on completion of the stipulated time limit as per the rule 33 of the gujarat town planning and urban development rules1979 the said land and the occupation on the same will be summarily evicted and your occupation will be removed and if you obstruct interfere on it after taking away the possession you trespass then as provided under rule 33 of the gujarat town planning and urban development rules1979. the action as per the s 188 of the indian penal code will be initiated against you before the criminal court pleased take note of the same. the validity and or legality of the said notice was questioned by the appellant by filing a writ petition in the high court of gujarat inter alia contending that the purported final allotment of plot no 165 in favour of the respondent no 3 and allotment of final plot no 157 in favour of the respondent no 4 were made without issuing any notice as envisaged u ss 52 and 53 of the act. in the said writ petition it was prayed on the facts and circumstances mentioned herein above the petitioner prays to your lordships that a be pleased to issue writ of mandamus or writ in the nature of mandamus or appropriate writ order or direction quashing and setting aside the impugned action of acquiring and demolishing the structures available on the land in question i e original plot no 17 a r s no 17 p situated at umra surat. a learned single judge of the high court dismissed the said writ petition inter alia opining that the interest of landlord and tenant being common and in absence of any inter se dispute between them even if any portion of the land which remained in possession of the tenant was included in the scheme the proper remedy would be to claim compensation to that extent holding it appears that in the said decision the apex court while considering the scheme on the touch stone of the mandatory procedure to be followed by the authority under the bombay town planning rules has given directions to provide alternative accommodation based on the earlier decision in case of jaswantsingh mathurasingh and upheld the scheme. such is not the issue in the present case nor there is any complaint by the tenant that any special notice was not served or that the mandatory procedure for finalization of the scheme is not followed. further it appears that if the interest of the landlord and of the tenant is common and in absence of any inter se dispute between the landlord and tenant even if any portion of the land which is in possession of the tenant is included in the scheme the proper remedy for the tenant would be to claim for compensation to that extent and if such compensation is not received by him he may resort to proper remedy available for recovery of the compensation to the extent of the area in his occupation. at least on ground that the tenant is in occupation it would not be a case for interference with the scheme which is sanctioned and made a part of the statute. suffice it to say that the tenant will be at liberty to resort to appropriate proceedings against the landlord for the inter se rights and also for entitlement of the compensation. but if the area of original plot no 178 is included in the final scheme and in exchange of the original plot held by keshav gramini of 178 and 177the final plot is already allotted and as observed earlier it was even otherwise in the ownership of the original holder and it is only on account of inter se dispute the other persons are lawfully occupying the land the tenant can not insist that his landlord must be allotted the land of final plot no 157 simultaneously when he is to be evicted or deprived of the portion of the land of original plot no 178 therefore in my view considering the peculiar facts and circumstances of the present case the decision of the apex court in case of mansukhlal1991 indlaw sc 975 supra can not be made applicable to the present case. a division bench of the high court dismissed an intra court appeal preferred thereagainst. mr u u lalit learned senior counsel appearing on behalf of the appellant in support of this appeal inter alia would submit i. the provisions of ss 52 and 81 being imperative in character no acquisition of land is permissible without service of any notice upon the persons interested which would include a tenant in occupation and carrying on business thereon. a tenant having regard to the provisions of the transfer of property act or otherwise having an interest in the property can not be deprived therefrom without following the procedure established by law and without initiation of any proceedings for acquisition of land. the tenant 's interest being distinct and separate could not have been held to be merged with the interest of the landlord either for the purpose of allotment of a final plot or otherwise in favour of the landlord. appellant having a right over the remaining 200 sq m of the land of original plot no 178 should be allowed to continue thereupon and final allotment made in favour of the respondent no 3 to that extent should be cancelled. lalit in support of his contention strongly relied upon a decision of this court in mansukhlal jadavji darji and others v ahmedabad municipal corporation and others 1992 1 scc 384 1991 indlaw sc 975 and jaswantsingh mathurasingh and another v ahmedabad municipal corporation and others 1992 supp 1 scc 5 1991 indlaw sc 972. prashant g desai learned counsel appearing on behalf of the respondent no 1on the other hand would submit. i public notices having been issued in terms of the rule 26 of the rules an objection which would nullify the scheme can not be entertained at this stage. ii respondent no 1 corporation merely being interested in the implementation of the scheme is entitled to obtain vacant possession from him so as to enable it to deliver it to the respondent no 3 in whose favour plot no 165 has been finally allotted. the scheme in terms of sub s 3 of s 65 of the act having become a part of the act validity thereof can not be questioned at this stage as modification of the scheme if any will have to undergo the entire process once over again which is not contemplated under the act. the act was enacted to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the state of gujarat. it is not necessary for us to delve deep into the statutory scheme. suffice it to say that chapter iv of the act deals with control of development and use of land included in the development plans. chapter v of the act provides for town planning schemes. s 40 of the act empowers the appropriate authority to make one or more schemes. a declaration of intention to make a scheme is to be notified whereafter a draft scheme may be published. s 45 provides for reconstitution of the plots sub s 2. whereof inter alia enables allotment of a final plot from an original plot by transfer of any adjoining lands. s 52 contemplates issuance of a notice in a prescribed manner and in the prescribed form. s 52 of the act provides for the contents of preliminary and final scheme. it inter alia provides for giving of a notice by the town planning officer as follows 1 in a preliminary scheme the town planning officer shall. i after giving notice in the prescribed manner and in the prescribed form to the persons affected by the scheme define and demarcate the areas allotted to or reserved for any public purpose or for a purpose of the appropriate authority and the final plots ii after giving notice as aforesaid determine in a case in which a final plot is to be allotted to persons in ownership in common the shares of such persons. further sub s 3 of section 65ss 67 and 68 of the act read as under 65 power of government to sanction or refuse to sanction the scheme and effect of sanction. 3 on and after the date fixed in such notification the preliminary scheme or the final scheme as the case may be shall have effect as if it were enacted in this act. 67 effect of preliminary scheme. on the day on which the preliminary scheme comes into force. a all lands required by the appropriate authority. shall unless it is otherwise determined in such scheme vest absolutely in the appropriate authority free from all encumbrances b all rights in the original plots which have been re constituted into final plots shall determine and the final plots shall become subject to the rights settled by the town planning officer. 68 power of appropriate authority to evict summarily on and after the date on which a preliminary scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme. shall in accordance with the prescribed procedure be summarily evicted by the appropriate authority. rules 261263 and 33 of the rules read as under 26 procedure to be followed by town planning officer u s 51 and under sub s 1 of s 52 1. for the purpose of preparing the preliminary scheme and final scheme the town planning officer shall give notice in form h of the date on which he will commence his duties and shall state the time as provided in rule 37 within which the owner of any property or right which is injuriously affected by the making of a town planning scheme shall be entitled u s 82 to make a claim before him. such notice shall be published in the official gazette and in one or more gujarati newspapers circulated within the area of the appropriate authority and shall be pasted in prominent places at or near the areas comprised in the scheme and at the office of the town planning officer. the town planning officer shall before proceeding to deal with the matters specified in section 52publish a notice in form h in the official gazette and in one or more gujarati newspapers circulating within the area of the appropriate authority. such notice shall specify the matters which are proposed to be decided by the town planning officer and state that all persons who are interested in the plots or are affected by any of the matters specified in the notice shall communicate in writing their objections to the town planning officer within a period of twenty days from the publication of notice in the official gazette. such notice shall also be posted at the officer of the town planning officer and of the appropriate authority and the substance of such notice shall be pasted at convenient places in the said locality. 33 procedure for eviction u s 68 1. for eviction under section 68the appropriate authority shall follow the following procedure viz. a the appropriate authority shall in the first instance serve a notice upon a person to be evicted requiring him within such reasonable time as may be specified in the notice to vacate the land. b if the person to be evicted fails to comply with the requirement of the notice the appropriate authority shall depute any officer or servant to remove him. c if the person to be evicted resists or obstructs the officer or servant deputed u cl b or. if he re occupies the land after eviction. the appropriate authority shall prosecute him under s 188 of the indian penal code. before embarking upon the rival contentions we may also notice that the provisions of the bombay town planning rules1955. for short the bombay rules are in pari materia with the rules. rule 21 of the bombay rules provides for the procedure to be followed by the town planning officer. it makes it obligatory on the part of the officer to give notice of the date on which he will commence his duties and shall state therein the time within which the owner of any property or rights which is injuriously affected by the making of the town planning scheme shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in prominent places at or near the area comprised in the scheme and at the office of the town planning officer. sub rule 3 of rule 21 of the bombay rules provides for serving of a special notice of at least three clear days upon the person interested in any plot or in any particular area comprised in the scheme before the town planning officer proceeds to deal in detail with the portion of the scheme relating thereto. sub rule 4 makes it imperative upon the town planning officer to give all persons affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations if any. sub rule 5 provides for recording a brief minute setting out the points at issue and the necessary particulars if during the proceedings it appears to the town planning officer that there are conflicting claims or any difference of opinion with regard to any part of the scheme. rules 26 of the rules do not contemplate service of individual notice. it prescribes service of notice in form h a copy of the notice in the said form is kept at the office of the town planning officer during office hours. any person affected by the proposal of the town planning scheme is entitled to inspect the scheme in the office where arrangements for explaining the scheme proposals are made. it furthermore provides that any person entitled to claim damages in terms of s 82 of the act should communicate the details of his claim to the town planning officer. s 81 of the act enables the state to transfer of right from original to final plot or extinction of such right. a town planning scheme therefore envisages calling for objection from the persons concerned for three purposes i in regard to draft scheme ii lodging of any claim for payment of compensation iii participation in the matter of allotment of final plots. we may however notice that rule 21 of the bombay rules provides for notice under sub rule 3 thereof and a reasonable opportunity of hearing under sub rule 5 thereof. sub rule 3 of rule 21 of the bombay rules provides for issuance of a special notice upon the person interested in any plot or in any particular plot comprised in the scheme. we may also take notice of the decision of this court in mansukhlal jadavji. darji1991 indlaw sc 975 supra wherein this court opined that sub rule 3 of rule 21 of the bombay rules was mandatory in nature subject of course to the condition that on the crucial date viz when the town planning scheme is notified in the official gazette he whether an owner or tenant or sub tenant must be in possession of the property. in jaswantsingh mathurasingh1991 indlaw sc 972 suprait was reiterated that a tenant or a sub tenant is a person interested and is entitled to notice. in that context it was held the question is whether the tenant or a sub tenant is a person interested and is entitled to notice. it is obvious that u s 105 of transfer of property act a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub tenant is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law. therefore a tenant or a sub tenant in possession of a tenement in the town planning scheme is a person interested within the meaning of rules 213 and 4 of the rules. but he must be in possession of the property on the crucial date i e when. the town planning scheme is notified in the official gazette. every owner or tenant or a sub tenant in possession on that date alone shall be entitled to a notice and opportunity. rule 213however of the bombay rules has been amended in tune with rule 26 of the rules. amended rules are in pari materia with rule 26 of the rules. appellant was a tenant in respect of plot no 178 plot no 177 was not a plot contiguous thereto. they were separated not only by a road but also by various other plots. it is also not in dispute that the appellant filed an objection in regard to the draft scheme but did not eventually pursue the same. the draft scheme was approved 867 sq m of land had been acquired for public purpose out of the said plot no 178 while the proceedings relating to allotment of final plot were in progress he even did not file any objection thereto. if he intended to claim any interest in a portion of plot no 178 either for the purpose of obtaining compensation for acquisition of a part of the land or to continue to have possession over 200 sq m of land in plot no 178it was obligatory on his part to take part in the proceedings. whether irrespective of rule 26 of the rules which prescribes for issuance of a general public notice any special notice upon the appellant was required to be served by the state or by the authority in our opinion cannot be gone into by us in these proceedings for the first time. validity of rule 26 of the rules had never been questioned. it had also not been contended that the said rule is ultra vires s 52 of the act. a person interested in continuing to keep possession over a property and or a part of the amount of compensation must lay his claim before the appropriate authority at the appropriate stage. if in absence of any such claim filed by the appellant the authorities have proceeded to finalise allotment of final plot in favour of the respondent nos 3 and 4 herein it is too late in the day to contend that the entire scheme should be re opened. we would consider the effect of sub s 3 of s 65 of the act a little later but we may at this juncture notice that the respondent no 3 in whose favour plot no 165 has been allotted which includes 200 sq m of land purported to be in possession of the appellant had nothing to do with the dispute between the appellant and his landlord the respondent no 4 respondent no 4 was in possession of a contiguous plot. respondent no 4 was owner of both plot. nos 177 and 178 he was therefore in his own right entitled to final allotment of some plot. we would however assume that it was obligatory on the part of the state to serve a special notice upon the appellant. the question however would be what would be the consequence of non compliance thereof vis vis the conduct of the appellant himself. a person may waive a right either expressly or by necessary implication. he may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation. different statutes provide for different manner of service of notice. the bangalore development authority act1976 provides that every person whose name appears in the assessment list or land revenue records shall be served with notice see sureshchandra c mehta v state of karnataka and others 1994 supp 2 scc 511 1993 indlaw sc 538. in west bengal housing board etc v. brijendra prasad gupta and others etc air 1997 sc 2745it was opined that the authority is not required to make a roaming enquiry as to who is the person entitled to notice. we have referred to the said decisions only to show that the requirements in regard to the manner of service of notice varies from statute to statute and there exists a difference between the bombay rules and the rules. we are however not unmindful of the fact that a statute of town planning ex facie is not a statute for acquisition of a property. an owner of a plot is asked to part therewith only for providing for better facilities of which he would also be a beneficiary. every step taken by the state does not involve application of the doctrine of eminent domain. in this case the appellant did not oppose the draft scheme. it accepted that the state had a right to do so. existence of a public purpose and increase in the valuation of the property was admitted. there exists a distinction in the action of the planning authority as regards vesting of a property in it and one so as to enable it to create a third party interest vis vis for the purpose of re allotment thereof. in the former case the vesting of the land may be held to be an act of acquisition whereas in the latter it would be distribution of certain benefits having regard to the purpose sought to be achieved by a statute involving town planning. it was on that legal principle this court in state of gujarat v shantilal mangaldas ors 1969 3 scr 341 1969 indlaw sc. 254opined that when a development is made the owner of the property gets much more than what would have he got if the same remained undeveloped in the process as by reason thereof he gets the benefit of living in a developed town having good town planning. s 67 of the act provides that all lands required by the appropriate authority shall unless it is otherwise determined in such scheme vest absolutely in the appropriate authority free from all encumbrances with effect from the date on which the preliminary scheme comes into force. what would be the quantum of payment of compensation therefor is also provided in s 82 of the act. it is in the aforementioned situation a claim is to be made before the authority whenever a notice in form h is published. if a claim is not filed the person who is said to be injuriously affected does so at its own peril. had such a claim been filed the authority before making final allotment could have considered the competing claims wherefor a large number of factors were required to be taken into consideration viz. the location of the land the area of the land the nature of right etc. when a statute makes an elaborate provision as regards the formalities required to be undergone at every stage by the local authority the state government and other authorities concerned in preparing and making the final town planning scheme the same should be considered to be exhaustively maneklal chhotalal. ors v. m g makwana ors 1967 3 scr 65 1967 indlaw sc 138. in maneklal chhotalal1967. indlaw sc 138 suprait was held therefore having due regard to the substantive and procedural aspects we are satisfied that the act imposes only reasonable restrictions in which case it is saved u art 195 of the constitution. the considerations referred to above will also show that the grievance of the petitioners that art 14 is violated is also not acceptable. see also bhikhubhai vithlabhai patel ors v. state of gujarat anr 2008 4 scale 278 2008 indlaw sc 527. we are however not oblivious that in a given situation a question may also arise as to whether the restrictions imposed by a statute are reasonable or not. it is not a case where the state by its acts of omissions and commissions was unjustly enriching itself. it was a dispute between two private parties as regards the right to obtain final allotment the principles underlying the same are not in dispute. what is in dispute is the distribution of quantum thereof between two competing claimants viz landlord and tenant. we do not mean to say that under no circumstances the appellant was entitled to allotment of a portion of the property or mandatory compensation in lieu thereof from the landlord. but we intend to emphasise that he has lost his right to enforce the same in a public law forum. he has no enforceable claim against the state at this juncture. he may pursue his claim only against the respondent no 4 in an appropriate proceedings wherein for certain purposes the state or the authorities may also be impleaded as a party. even if he had a claim he would be deemed to have waived the same for the reasons stated hereinafter. it is not in dispute that a appellant although filed an objection with regard to the draft scheme did not choose to pursue it. b he did not file objections for re allotment and did not participate in the proceedings following acquisition instituted by the authorities under the act. in view of the above the issue is whether it was open to him to assert his purported right to special notice in respect of the final allotment in the instant case given the fact that he did not pursue his objections to the draft scheme and subsequently did not object participate during the proceedings for re allotment. it has been noticed by us hereinbefore that under rule 26 of the rules applicable in the instant case as distinguished from the bombay rules wherein special notice is requiredno special notice is mandatorily required to be served. assuming however that it was obligatory for the state to issue notice to the appellant the question is whether the principle of waiver precludes him from claiming equitable relief in this case due to his earlier conduct which allowed the entire process of acquisition and allotment to become final. we are of the opinion that even if he had any such right he waived the same. in halsbury 's laws of england volume 1624th edition para 907it is stated the expression waiver may in law bear different meanings. the primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted and is either express or implied from conduct. it may arise from a party making an election for example whether or not to exercise a contractual right. waiver may also be by virtue of equitable or promissory estoppel unlike waiver arising from an election no question arises of any particular knowledge on the part of the person making the representation and the estoppel may be suspensory only. where the waiver is not express it may be implied from conduct which is inconsistent with the continuance of the right without the need for writing or for consideration moving from or detriment to the party who benefits by the waiver but mere acts of indulgence will not amount to waiver nor may a party benefit from the waiver unless he has altered his position in reliance on it. as early as 1957the concept of waiver was articulated in a case involving the late assertion of a claim regarding improper constitution of a tribunal in manak lal v dr prem chand air 1957 sc 425 1957 indlaw sc 159 in the following terms. it is true that waiver can not always and in every case be inferred merely from the failure of the party to take the objection. waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection. as sir johan romilly m r has observed in vyvyan v vyvyan. 1861 30 beav 65 54 e r 813817 waiver or acquiescence like election presupposes that the person to be bound is fully cognizant of his rights and that being so he neglects to enforce them or chooses one benefit instead of another either but not both of which he might claim. in the director of inspection of income tax investigationnew delhi and another v pooran mal sons and another 1975 4 scc 568 1974 indlaw sc 354 the issue was regarding waiver of benefits under a statute of limitation. it was stated we may in this connection refer to the decision in wilson v mcintosh. in that case an applicant to bring lands under the real property act filed his case in court under section 21more than three months after a caveat had been lodged and thereafter obtained an order that the caveator should file her case which she accordingly did. it was held that he had thereby waived his right to have the caveat set aside as lapsed u s 23 the privy council held that the limitation of time contained in s 23 was introduced for the benefit of the applicant to enable him to obtain a speedy determination of his right to have the land brought under the provisions of the act and that it was competent for the applicant to waive the limit of the three months and that he did waive it by stating a case and applying for and obtaining an order upon the appellant to state her case both which steps assumed and proceeded on the assumption of the continued existence of the caveat. they referred with approval to the decision in phillips v martin where the chief justice said here there is abundant evidence of waiver and it is quite clear that a man may by his conduct waive a provision of an act of parliament intended for his benefit. the caveator was not brought into court in any way until the caveat had lapsed. and now the applicant after all these proceedings have been taken by him after doubtless much expense has been incurred on the part of the caveator and after lying by and hoping to get a judgment of the court in his favour asks the court to do that which but for some reasons known to himself he might have asked the court to do before any other step in the proceedings had been taken. i think he is altogether too late. it is to my mind a clear principle of equity and i have no doubt there are abundant authorities on the point that equity will interfere to prevent the machinery of an act of parliament being used by a person to defeat equities which he has himself raised and to get rid of a waiver created by his own acts. the legal principle emerging from these decisions is also stated in craies on statute law 6th edn at page 369 as follows as a general rule the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. but if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves and that no public interests are involved such conditions will not be considered as indispensable and either party may waive them without affecting the jurisdiction of the court. emphasis supplied. applying the above principles to the present case it must be held that the benefit of notice provided under the act and rules being for the benefit of the appellant in which no public interests are involved he has waived the same. significantly a similar conclusion was reached in the case of krishna bahadur v purna theatre 2004 8 scc 229 2004. indlaw sc 681though the principle was stated far more precisely in the following terms the principle of waiver although is akin to the principle of estoppel the difference between the two however is that whereas estoppel is not a cause of action it is a rule of evidence waiver is contractual and may constitute a cause of action it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. a right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. statutory right however may also be waived by his conduct. emphasis supplied see also bank of india v o p swarnakar 2003 2 scc 721 2002 indlaw sc 1562. in ramdev food products pvt. ltd v. arvindbhai rambhai patel and ors 2006 8 scale 631 2006 indlaw sc 786this court observed the matter may be considered from another angle. if the first respondent has expressly waived his right on the trade mark registered in the name of the appellant company could he claim the said right indirectly. the answer to the said question must be rendered in the negative. it is well settled that what can not be done directly can not be done indirectly. the term waiver has been described in the following words waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted and is either express or implied from conduct. a person who is entitled to rely on a stipulation existing for his benefit alone in a contract or of a statutory provision may waive it and allow the contract or transaction to proceed as though the stipulation or provision did not exist. waiver of this kind depends upon consent and the fact that the other party has acted upon it is sufficient consideration it seems that in general where one party has by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly then once the other party has taken him at his word and acted on it so as to alter his position the party who gave the promise or assurance can not afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him but he must accept their legal relations subject to the qualification which he has himself so introduced even though it is not supported in point of law by any consideration see 16 halsbury 's laws 4th edn para 1471. in this view of the matter it may safely be stated that the appellant through his conduct has waived his right to an equitable remedy in the instant case. such conduct precludes and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellant 's inaction. lalit submits that his client is ready and willing to pay some reasonable amount to the respondent no 3 in whose favour plot no 165 has been finally allotted. issuance of any such direction in our opinion is legally impermissible. we therefore are of the opinion that in this case no relief can be granted to the appellant. he may however take recourse to such remedy which is available with him in law including one by filing a suit or making a representation before the state. for the reasons aforementioned the appeal is dismissed. no costs. appeal dismissed.

FACTS the government of gujarat in exercise of its power conferred upon it u/s.65 of the gujarat town planning and urban development act,1976act made a scheme in respect of the town of umra,surat on 1.06.1999. plot nos.17/7 and 17/8 were owned by respondent no.4 herein. appellant was a tenant under the said respondent in respect of plot no.17/8 admeasuring 1067 sq.m. he used to run a business of marble and stone therein. a road widening project was proposed in terms of the said scheme. notices therefor were issued both to the appellant as also the respondent no. appellant objected thereto. he,however,did not pursue his case in regard to the proposal for widening of the road. for the said public purpose,viz.,widening of the road,867 sq.m.of land was taken over leaving only 200 sq.m.of land. with a view to give effect to the provisions of the act and the rules framed thereunder,proceedings were initiated for allotment of the said land in terms of the act.20% of the land was taken over without payment of any compensation. the validity and/ or legality of the said notice was questioned by the appellant by filing a writ petition in the high court of gujarat inter alia contending that the purported final allotment of plot no.165 in favour of the respondent no.3 and allotment of final plot no.157 in favour of the respondent no.4 were made without issuing any notice as envisaged u/ss.52 and 53 of the act. ARGUMENT mr.u.u.lalit,learned senior counsel appearing on behalf of the appellant,in support of this appeal,inter alia would submit: "(i. the provisions of ss.52 and 81 being imperative in character,no acquisition of land is permissible without service of any notice upon the persons interested which would include a tenant in occupation and carrying on business thereon. ii. a tenant having regard to the provisions of the transfer of property act or otherwise having an interest in the property cannot be deprived therefrom without following the procedure established by law and without initiation of any proceedings for acquisition of land. iii. the tenant's interest being distinct and separate could not have been held to be merged with the interest of the landlord,either for the purpose of allotment of a final plot or otherwise in favour of the landlord. iv. appellant having a right over the remaining 200 sq.m.of the land of original plot no.17/8 should be allowed to continue thereupon and final allotment made in favour of the respondent no.3 to that extent should be cancelled. ISSUE interpretation and/ or application of the provisions of the gujarat town planning and urban development act,1976 and the rules framed thereunder known as the gujarat town planning and urban development rules,1979. for short "the rules") is in question in this appeal which arises out of a judgment by a division bench of the high court of gujarat . ANALYSIS the act was enacted to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the state of gujarat. it is not necessary for us to delve deep into the statutory scheme. rule 21 of the bombay rules makes it obligatory on the part of the officer to give notice of the date on which he will commence his duties and shall state therein the time,within which the owner of any property or rights which is injuriously affected by the making of the town planning scheme shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in prominent places at or near the area comprised in the scheme and at the office of the town planning officer. a town planning scheme,therefore,envisages calling for objection from the persons concerned for three purposes: "(i) in regard to draft scheme; (ii) lodging of any claim for payment of compensation; (iii) participation in the matter of allotment of final plots. rule 21 of the bombay rules provides for notice under sub-rule (3) thereof and a reasonable opportunity of hearing under sub-rule (5) thereof. sub-rule (3) of rule 21 of the bombay rules provides for issuance of a special notice upon the person interested in any plot or in any particular plot comprised in the scheme. take notice of the decision of this court in mansukhlal jadavji. darji1991 indlaw sc 975 (supra) wherein this court opined that sub-rule (3) of rule 21 of the bombay rules was mandatory in nature,subject,of course,to the condition that on the crucial date,viz.,when the town planning scheme is notified in the official gazette,he,whether an owner or tenant or sub-tenant,must be in possession of the property. in jaswantsingh mathurasingh1991 indlaw sc 972 (supra),it was reiterated that a tenant or a sub-tenant is a person interested and is entitled to notice. in that context,it was held: "the question is whether the tenant or a sub-tenant is a person interested and is entitled to notice. it is obvious that u/s.105 of transfer of property act,a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub-tenant is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law. therefore,a tenant or a sub-tenant in possession of a tenement in the town planning scheme is a person interested within the meaning of rules 21(3) and (4) of the rules. but he must be in possession of the property on the crucial date i.e.when. the town planning scheme is notified in the official gazette. every owner or tenant or a sub-tenant,in possession on that date alone shall be entitled to a notice and opportunity. it is also not in dispute that the appellant filed an objection in regard to the draft scheme but did not eventually pursue the same. it had also not been contended that the said rule is ultra vires s.52 of the act. a person interested in continuing to keep possession over a property and/ or a part of the amount of compensation must lay his claim before the appropriate authority at the appropriate stage. if in absence of any such claim filed by the appellant,the authorities have proceeded to finalise allotment of final plot in favour of the respondent nos.3 and 4 herein,it is too late in the day to contend that the entire scheme should be re-opened. a person may waive a right either expressly or by necessary implication. he may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation. different statutes provide for different manner of service of notice. the bangalore development authority act,1976 provides that every person whose name appears in the assessment list or land revenue records shall be served with notice.[see sureshchandra c.mehta v. state of karnataka and others 1994 supp (2) scc 511 1993 indlaw sc 538. in west bengal housing board etc.v. brijendra prasad gupta and others,etc.[air 1997 sc 2745],it was opined that the authority is not required to make a roaming enquiry as to who is the person entitled to notice. there exists a distinction in the action of the planning authority as regards vesting of a property in it and one so as to enable it to create a third party interest vis-'-vis for the purpose of re-allotment thereof. when a statute makes an elaborate provision as regards the formalities required to be undergone at every stage by the local authority,the state government and other authorities concerned in preparing and making the final town planning scheme,the same should be considered to be exhaustively.[maneklal chhotalal. ors.v. m.g.makwana &; ors.[(1967) 3 scr 65 1967 indlaw sc 138. it is not a case where the state by its acts of omissions and commissions was unjustly enriching itself. it was a dispute between two private parties as regards the right to obtain final allotment; the principles underlying the same are not in dispute. what is in dispute is the distribution of quantum thereof between two competing claimants,viz.,landlord and tenant. the legal principle emerging from these decisions is also stated in craies on statute law (6th edn.) at page 369 as follows: "as a general rule,the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. but if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves,and that no public interests are involved,such conditions will not be considered as indispensable,and either party may waive them without affecting the jurisdiction of the court. emphasis supplied. “ applying the above principles to the present case,it must be held that the benefit of notice provided under the act and rules being for the benefit of the appellant in which no public interests are involved,he has waived the same. in this view of the matter,it may safely be stated that the appellant,through his conduct,has waived his right to an equitable remedy in the instant case. such conduct precludes and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellant's inaction. lalit submits that his client is ready and willing to pay some reasonable amount to the respondent no.3 in whose favour plot no.165 has been finally allotted. issuance of any such direction, ,is legally impermissible. STATUTE suffice it to say that chapter iv of the gujarat town planning and urban development act,1976 deals with control of development and use of land included in the development plans. rule 21 of the bombay rules provides for the procedure to be followed by the town planning officer. rule 21(3) of the bombay rules has been amended in tune with rule 26 of the rules. amended rules are in pari materia with rule 26 of the rules. s.67 of the act provides that all lands required by the appropriate authority shall,unless it is otherwise determined in such scheme,vest absolutely in the appropriate authority free from all encumbrances with effect from the date on which the preliminary scheme comes into force.

FACTS plot nos.17/7 and 17/8 were owned by respondent no.4 herein. appellant was a tenant under the said respondent in respect of plot no.17/8 admeasuring 1067 sq.m. he used to run a business of marble and stone therein. a road widening project was proposed in terms of the said scheme. notices therefor were issued both to the appellant as also the respondent. appellant objected thereto. he,however,did not pursue his case in regard to the proposal for widening of the road. for the said public purpose,viz.,widening of the road,867 sq.m.of land was taken over leaving only 200 sq.m.of land. with a view to give effect to the provisions of the act and the rules framed thereunder,proceedings were initiated for allotment of the said land in terms of the act. 20% of the land was taken over without payment of any compensation. in respect of the proceedings initiated for the purpose of re-allotment of the land,despite a public notice,the appellant did not file any objection. he did not take any part in the proceedings therefor.respondent no.4 was allotted a final plot bearing no.157 and the said 200 sq.m.of land of plot no.17/8 has merged in final plot no.165 owned by the respondent no.3. the validity and/ or legality of the said notice was questioned by the appellant by filing a writ petition in the high court of gujarat inter alia contending that the purported final allotment of plot no.165 in favour of the respondent no.3 and allotment of final plot no.157 in favour of the respondent no.4 were made without issuing any notice as envisaged u/ss.52 and 53 of the act. a division bench of the high court dismissed an intra-court appeal preferred thereagainst. ARGUMENT (i) the provisions of ss.52 and 81 being imperative in character,no acquisition of land is permissible without service of any notice upon the persons interested which would include a tenant in occupation and carrying on business thereon. (ii) a tenant having regard to the provisions of the transfer of property act or otherwise having an interest in the property cannot be deprived therefrom without following the procedure established by law and without initiation of any proceedings for acquisition of land. (iii) the tenant's interest being distinct and separate could not have been held to be merged with the interest of the landlord,either for the purpose of allotment of a final plot or otherwise in favour of the landlord. (iv) appellant having a right over the remaining 200 sq.m.of the land of original plot no.17/8 should be allowed to continue thereupon and final allotment made in favour of the respondent no.3 to that extent should be cancelled. ISSUE interpretation and/ or application of the provisions of the gujarat town planning and urban development act,1976 (for short "the act") and the rules framed thereunder known as the gujarat town planning and urban development rules,1979 (for short "the rules") is in question in this appeal which arises out of a judgment and order passed by a division bench of the high court of gujarat at ahmedabad. ANALYSIS the court noticed that the provisions of the bombay town planning rules,1955 (for short "the bombay rules") are in pari materia with 'the rules'. a town planning scheme,therefore,envisages calling for objection from the persons concerned for three purposes: "(i) in regard to draft scheme; (ii) lodging of any claim for payment of compensation; (iii) participation in the matter of allotment of final plots. in jaswantsingh mathurasingh1991 indlaw sc 972 (supra),it was reiterated that a tenant or a sub-tenant is a person interested and is entitled to notice. in that context,it was held: "the question is whether the tenant or a sub-tenant is a person interested and is entitled to notice.it is obvious that u/s.105 of transfer of property act,a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub-tenant is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law. therefore,a tenant or a sub-tenant in possession of a tenement in the town planning scheme is a person interested within the meaning of rules 21(3) and (4) of the rules. whether irrespective of rule 26 of the rules which prescribes for issuance of a general public notice,any special notice upon the appellant was required to be served by the state or by the authority,in our opinion,cannot be gone into by us in these proceedings for the first time. validity of rule 26 of the rules had never been questioned. it had also not been contended that the said rule is ultra vires s.52 of the act. respondent no.4 was owner of both plot nos.17/7 and 17/8. he was,therefore,in his own right entitled to final allotment of some plot. a person may waive a right either expressly or by necessary implication. he may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation. different statutes provide for different manner of service of notice. when a statute makes an elaborate provision as regards the formalities required to be undergone at every stage by the local authority,the state government and other authorities concerned in preparing and making the final town planning scheme,the same should be considered to be exhaustively. the following are not in dispute. (a) appellant although filed an objection with regard to the draft scheme,did not choose to pursue it. (b) he did not file objections for re-allotment and did not participate in the proceedings following acquisition instituted by the authorities under the act. in view of the above,the issue is whether it was open to him to assert his purported right to special notice in respect of the final allotment in the instant case given the fact that he did not pursue his objections to the draft scheme and subsequently did not object/participate during the proceedings for re-allotment. under rule 26 of the rules applicable in the instant case,as distinguished from the bombay rules (wherein special notice is required),no special notice is mandatorily required to be served. assuming,however,that it was obligatory for the state to issue notice to the appellant,the question is whether the principle of waiver precludes him from claiming equitable relief in this case due to his earlier conduct which allowed the entire process of acquisition and allotment to become final. the court of the opinion that even if he had any such right,he waived the same. it is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection. waiver or acquiescence,like election,presupposes that the person to be bound is fully cognizant of his rights,and,that being so,he neglects to enforce them,or chooses one benefit instead of another,either,but not both,of which he might claim. the legal principle emerging from these decisions is also stated in craies on statute law (6th edn.) at page 369 is that as a general rule,the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction.but if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves,and that no public interests are involved,such conditions will not be considered as indispensable,and either party may waive them without affecting the jurisdiction of the court. it must be held that the benefit of notice provided under the act and rules being for the benefit of the appellant in which no public interests are involved,he has waived the same. it may safely be stated that the appellant, through his conduct, has waived his right to an equitable remedy in the instant case. such conduct precludes and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellant's inaction. STATUTE s.52 of the gujarat town planning and urban development act,1976 provides for the contents of preliminary and final scheme. it inter alia provides for giving of a notice by the town planning officer as follows: (1) in a preliminary scheme,the town planning officer shall,- (i) after giving notice in the prescribed manner and in the prescribed form to the persons affected by the scheme,define and demarcate the areas allotted to,or reserved for,any public purpose,or for a purpose of the appropriate authority and the final plots; (ii) after giving notice as aforesaid,determine in a case in which a final plot is to be allotted to persons in ownership in common,the shares of such persons. section 65 of the gujarat town planning and urban development act,1976-power of government to sanction or refuse to sanction the scheme and effect of sanction. section 67 of the gujarat town planning and urban development act,1976 -effect of preliminary scheme on the day on which the preliminary scheme comes into force- (a) all lands required by the appropriate authority shall,unless it is otherwise determined in such scheme,vest absolutely in the appropriate authority free from all encumbrances; (b) all rights in the original plots which have been re-constituted into final plots shall determine and the final plots shall become subject to the rights settled by the town planning officer. section 68 of the gujarat town planning and urban development act,1976 -power of appropriate authority to evict summarily on and after the date on which a preliminary scheme comes into force,any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme shall,in accordance with the prescribed procedure,be summarily evicted by the appropriate authority. rule 21 of the bombay rules provides for the procedure to be followed by the town planning officer. it makes it obligatory on the part of the officer to give notice of the date on which he will commence his duties and shall state therein the time,within which the owner of any property or rights which is injuriously affected by the making of the town planning scheme shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in prominent places at or near the area comprised in the scheme and at the office of the town planning officer.sub-rule (3) of rule 21 of the bombay rules provides for serving of a special notice of at least three clear days' upon the person interested in any plot or in any particular area comprised in the scheme,before the town planning officer proceeds to deal in detail with the portion of the scheme relating thereto. sub-rule (4) makes it imperative upon the town planning officer to "give all persons affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations,if any". sub-rule (5) provides for recording a brief minute setting out the points at issue and the necessary particulars if during the proceedings,it appears to the town planning officer that there are conflicting claims or any difference of opinion with regard to any part of the scheme. rules 26 of the rules do not contemplate service of individual notice. it prescribes service of notice in form h.a copy of the notice in the said form is kept at the office of the town planning officer during office hours. any person affected by the proposal of the town planning scheme is entitled to inspect the scheme in the office where arrangements for explaining the scheme proposals are made. it furthermore provides that any person entitled to claim damages in terms of s.82 of the gujarat town planning and urban development act,1976 should communicate the details of his claim to the town planning officer. s.81 of the gujarat town planning and urban development act,1976 enables the state to transfer of right from original to final plot or extinction of such right.

twelve accused persons were tried for offences under section 302307149324147148 and section 3 of terrorist and disruptive activites. prevention act1987 hereinafter referred to as tada by the learned designated judge pune. out of the said twelve accused6 accused were acquitted of all the charges while the five appellants herein namely bonkya alias bharat shivaji mane a 5mandu baliba dombe a 8ashok baloba dombe a 9ranjar bhausaheb dombe a 10 and kaka alias pandurang baloba dombe a 11 were convicted for offences under section 302307149 ipc and section 3 of tada and sentenced to suffer life imprisonment and to pay a fine of rs 5000 each for the offence under section 302149 ipc. 10 years ri and a fine of rs 5000 each for the offence under section 307149 ipc 2 years ri for the offence under section 324149 ipc and life imprisonment and fine of rs 5000 each for the offence under section 3 of tada in default of payment of fine on each of the counts the appellants were to undergo further ri for two years each. the substantive sentences of imprisonment were however directed to run concurrently. one accused died during the pendency of the trial. through this appeal under section 19 of tada the appellants have called in question their conviction and sentence. for the sake of convenience the accused shall be referred to hereinafter by the number assigned to them in the trial court judgment as accused i e a 5a 8a 10 etc. according to the prosecution case on 11th august1990 at about 3 00 p m anna shety band patte mukesh ramesh and prakash band patte had gone to the vrindavan video parlour for watching a movie. the accused a 6a 10 and a 11 alongwith one other person were also present at the video parlour. there was an altercation between the accused and the complainant party when the leg of kaka dombe a 11 dashed against the leg of anna shety band patte. pw both the prosecution witnesses as well as. the accused party left the video parlour threatening each other. the complainant party went towards jagdamba hotel owned by waman band patte pw at that time baban karpe bajrang band patte sanjay mane ramesh pawar were also present near the hotel. at about 4 00 p m the appellants and other accused persons allegedly armed with swords satturs and sticks arrived there in two auto rickshaws and one jeep. out of the accused a 5a 6a 8a 10 and a 11 were carrying swords while a 7 and a 9 had satturs and the remaining accused were armed with sticks. on the arrival of accused party anna shetty ran away. appellants a 5a 10 and a 11 thereafter assaulted bajrang band patte pw 14 on his head in front of the hotel. they also assaulted baban karpe pw 9 and popat deceased who had run away to the math after chasing them in the auto rickshaws and the jeep. it is alleged that a 5a 10 and a 11 assaulted popat deceased with the swords on his head and thighs and when baban tried to intervene he was also assaulted and he received a blow with the sattur near his knee. he ran away to conceal himself. bajrang pw 14 was taken to the hospital by waman pw 15ramesh pw 11 and prakash pw 2whereas popat deceased who was seriously injured and had fallen down unconscious after receipt of the injuries was removed to the hospital by the police when it arrived at the spot a little later. all the injured persons were admitted to the hospital. while receiving the treatment popat succumbed to his injuries. on receipt of information asstt. police inspector joshi arrived at the hospital and baban karpe pw 9 narrated the occurrence to him which was reduced into writing. on the basis of the said report an fir for offences under section 302307149147148 ipc was registered vide cr no 101 of 1990 at about 6 00 p m the inquest on the dead body of popat was conducted and the body was sent for post mortem examination. bajrang pw 14 regained consciousness during the night intervening 11th and 12th august1990 and made a statement to the police in respect of the incident which took place in front of jagdamba hotel and on the basis of that statement cr no 10290 was registered. the jeep allegedly used by the accused party was later found in front of the house of accused baloba dombe a 1 who died subsequently one sword stained with blood and two blood stained sticks were recovered from the said jeep. an auto rickshaw bearing registration no mwq 5624 belonging to manik bhende gavali was found abandoned in a damaged condition with broken glasses. it was also taken into possession vide a panchnama. the accused were searched for but could not be traced. they were subsequently arrested on different dates. on a disclosure statement made by a 11 before the police and the panches under section 27 of the evidence act and on his pointing out a sword was recovered from the field at korti where it lay buried. a 10 also made a disclosure statement under section 27 of the evidence act to the effect that he had buried a sword behind yamai tukai temple and could get it recovered. on the pointing out by a 10the said sword was also recovered and taken into possession through a panchnama. during the investigation an identification parade was got conducted through the executive magistrate pw 32 when baban karpe pw 9 and other prosecution witnesses identified the assailants. samples of blood of the accused were collected for ascertaining their blood groups and sent for chemical analysis. the blood samples of bajrang pw 14 and baban karpe pw 9 were similarly collected. the blood stained clothes of the deceased and the injured persons as also the swords were sent to the chemical examiner for analysis. after completion of the investigation two charge sheets arising out of crime no 10190 and crime no 10290 were filed before the designated court. during the pendency of the two charge sheets the addl. public prosecutor through an application ex. p 35requested the court for holding trial in respect of both the chargesheets together which application was allowed by the designated court vide order dated 5 december 1992 and that is how both the cases were tried together by virtue of the provisions of section 220 1 cr. p c as the series of acts in both the cases were so inter connected as to form one transaction. at the trial the prosecution alleged that the accused party with an intent to commit terror in the wadar community had committed the murder of popat and injured pw 9 and pw 14by using lethal weapons and had thereby committed terror in the wadar community and thus committed an offence under section 3 of tada besides the other offences as already noticed. baloba a 1 died during the pendency of the trial and therefore the proceedings against him abated. the plea of the remaining accused in their statements under section 313 cr. p c was one of total denial and false implication. according to a 2a 3a 5a 6 and a 7 they had been identified by pw 9during the identification parade at the instance of the police. a 4 alleged false implication at the instance of pw 15 waman while a 8 alleged false implication at the hands of the police with a view to pressurise him to withdraw a complaint concerning the murder of his brother and 5 others allegedly committed by the police. a 9 also put forward a similar defence while a 10 alleged that the police had instituted a false case against him at the instance of narayan dhotare according to a 11also the witnesses had deposed falsely against him at the instance of narayan dhotare. the learned judge of the designated court acquitted a 2a 3a 4a 6a 7 and a 12 of the offences charged against them apparently influenced by the lack of identification of these accused persons by the prosecution witnesses at the identification parade conducted by the executive magistrate. the appellants however were convicted and sentenced in the manner as already noticed. we have heard learned counsel for the parties and perused the record. that the incident arose out of a petty altercation between a 11 and his three companions with pw 10 and his three companions at the video parlour and later on led in the homicidal death of popat band patte on 11 august 1990 and injuries to pw9 and pw14 was neither disputed before the learned designated court nor before us. from the post mortem report prepared by dr a p khiste. pw 22we find that the deceased had four incised injuries which had caused extensive damage to his internal organs also. according to pw 22the internal injuries on the deceased were a result of the following external injuries 1 incised wound transverse on left groin at centre medial to left public symphysis and left superior iliac crest all muscles vessels cut both femoral vessels vein artery cut dimension 4 x 2 x 5 cms. transverse incised wound on right parital region bone deep4 x 2 x 1 cms. cms above right ear fracture of right parietal bone with laceration of brain. 3 verticle incised wound 5 x 1 x 1 cms. bone deep at centre of vertex fracture of skull with laceration of brain. pw 22 opined that these injuries individually as well as collectively were sufficient in the ordinary course of nature to cause death. pw 9 was examined by dr khiste pw 22 who noticed the following two injuries on his person 1 transverse superficial incised wound 10x12 cm on posterior of left knee in popliteal. edges were clean out. 2 abraded contusion below right knee and front of right leg5 x 5 cm. pw 14 bajrang was also medically examined and the following injuries were found on him 1. transverse lacerated would on occipital region3 x 1 cm. bone deep. injury was bleeding fresh. 2 multiple abraded contusion all over the back. the defence plea of total denial and false implication has been rightly rejected by the designated court in view of the over whelming cogent and reliable prosecution evidence. the trial court for the purposes of consideration of the evidence divided the prosecution case into three parts namely i the incident at vrindavan video parlour ii incident near jagdamba hotel and iii the incident at the math. so far as the first incident is concerned that merely provided the motive for the assault near the jagdamba hotel and the math. the evidence regarding the first incident was given by pw10pw11 and pw12 these witnesses deposed that while they were watching a movie at the video parlour a 11a 6 and a 10 alongwith one other person had occupied the seats in the row behind them and when the leg of a 11 dashed against the leg of pw10who told him to keep his leg properly a 11 started abusing him in filthy language and threatened him that he would deal with him. in view of the altercation the complainants left the video parlour and went towards jagdamba hotel. some of the prosecution witnesses including the deceased pw9 and pw14 were already standing near the jagdamba hotel. pw10 narrated the incident of the video parlour to those persons and in the meantime the accused party arrived there in a jeep and two auto rickshaws and started assaulting the complainant party. however according to the prosecution evidence itself during the assault none out of the four prosecution witnesses with whom the altercation had taken place at the video parlour was injured. near the jagdamba hotel it was bajrang pw 14 who received the injuries at the hands of the accused. some of the other witnesses including popat deceased and baban pw 9 fled towards the math to save themselves. the evidence of pw10pw 11 and pw 12 has received ample corroboration from the testimony of pw 9pw 13pw 14 and pw 15who deposed that while the witnesses were narrating the incident of the video parlour to waman band patte pw 15 and other witnesses present there the accused party arrived in a jeep and two auto rickshaws variously armed and opened an attack on the complainant party with a view to teach them a lesson for the altercation which had taken place earlier at the video parlour. we do not find any force in the submission of the learned counsel for the appellant that since mohan lal pw 19who runs the video parlour has not fully supported the prosecution version regarding the cause of altercation at the video parlour the genesis of the occurrence gets shrouded in doubt. pw 19 was declared hostile by the prosecution and was cross examined by the addl. public prosecutor. we find from a careful analysis of the evidence that the testimony of pw9 to pw 15 regarding the incident at the video parlour is cogent and trustworthy and nothing has been brought out during the cross examination of these witnesses which may cast any doubt about the correctness of the version given by them regarding the incident at the video parlour. even from the evidence of the hostile witness pw 19 mohanlal it emerges that on the day of the incident there was an altercation at the video parlour though he has given the cause of the altercation to be somewhat different which explanation does not appeal to us. even if for the sake of argument we were to ignore the evidence of pw19it would not materially affect the prosecution case in so faras the incident at the video parlour is concerned. we are in agreement with the designated court that there is ample evidence led by the prosecution to establish the incident at the video parlour and also that the said incident was the origin for the subsequent assault. to connect the accused with the incidents near the jagdamba hotel and the math the prosecution has examined pw3pw4pw9pw10pw11pw12pw13 and pw14 besides pw7pw20 and pw21 the last three witnesses however turned hostile at the trial and were cross examined by the addl. public prosecutor with the permission of the court. out of the remaining witnesses mentioned above pw 9 and pw 14 are the injured witnesses. these are thus the stamped witnesses whose presence admits of no doubt and being themselves the victims they would not leave out the real assailants and substitute them with innocent persons. pw 15 waman band patte who is the owner of the jagdamba hotel has lent sufficient corroboration to the testimony of the other prosecution witnesses in general and pw9 and pw14 in particular. from the testimony of pw9it stands established that while mukesh pw 12 was narrating the incident which had taken place at the video parlour the appellants alongwith 78 other persons arrived in a jeep and two auto rickshaws armed with swords satturs and sticks and opened the assault on the prosecution witnesses and that a 11 and his two associates assaulted pw 14 with swords. his testimony receives ample corroboration from the testimony of pw10pw11pw14 and pw15 waman the proprietor of jagdamba hotel besides the medical evidence. these witnesses categorically deposed that a 5a 10 and a 11 were responsible for causing injuries to bajrang pw 14. these witnesses knew the accused from before by their names and had also identified them later when called upon to do so. they specifically described the roles played by a 5a 10 and a 11 pw 10pw 11pw 12pw 13pw 14 and pw 15 also spoke about the presence of a 1a 8 and a 9 with their respective weapons alongwith a 5a 10 and a 11 near the jagdamba hotel at the time of assault on pw 14. an identification parade had been held by shri shrikant chimanaji jahagirdar pw 32executive magistrate. at the identification parade a 5 was identified by pw 9pw10pw 11pw 14 and pw 15 a 10 by pws 10 to 15 a 11 by pw 3 and pws 9 to 15 a 1 by pws 10 to 15 a 8 and a 9 by pw 3 and by pws 10 to 15. so far as other accused are concerned none of the prosecution witnesses ascribed any role to a 2a 3 and a 12 and even though pw 15 deposed at the trial about the presence of a 4a 6 and a 7 and stated that they were present with the accused party but the trial court for good and sufficient reasons found that his testimony as regards their presence in the unlawful assembly had not received trustworthy corroboration from any other prosecution evidence. the learned designated court opined that though the identity of a 1 since deada 5a 8a 9a 10 and a 11 as the assailants had been established by the prosecution evidence beyond a reasonable doubt the same could not be said about the participation of the remaining accused. we agree. from our independent analytical appreciation of the evidence on the record we are of the opinion that the designated court rightly found the participation of a 1a 5a 8a 9 and a 11in the assault to have been positively established. however so far as a 10 is concerned we find that there is merit in the submissions of the learned counsel for the appellant that his identify and participation in the assault has not been established beyond a reasonable doubt. baban karpe pw 9himself an injured witness failed to identify a 10 at the time of the identification parade held by pw 32though he identified a 10 later on in the court during the trial. that apart the name of a 10 does not figure specifically in the statement of baban pw 9which formed the basis of the fir ex 77 pw 10pw 11 and pw 15 have tried to implicate a 10 by making tell tale improvements in their statements at the trial by ascribing a role to him in the assault by improving upon their statements earlier recorded during the investigation with which statements they were duly confronted. even bajrang pw 14 who is an injured witness himself and deposed about the incident at jagdamba hotel with sufficient details appears to have exaggerated the version when he stated that he had been assaulted by a 10 also besides a 5 and a 11 auite contrary to his earlier statement. there is only one injury which was received by pw 14 and according to the other prosecution witnesses that injury had been caused to him by a 11 the tendency to exaggerate the incident is not uncommon and that an innocent person may be roped in alongwith the guilty ones is a possibility which cannot in the facts and circumstances of this case be ruled out. in view of the improvement made by the prosecution witnesses at the trial from their earlier statements and the infirmities already noticed we are of the opinion that it can not be said with any amount of certainty that the participation of a 10 in the assault or even his presence in the unlawful assembly at the time of the assault near jagdamba hotel or the math has been substantiated. the prosecution has not been able to establish the case against a 10 beyond a reasonable doubt and is our opinion he is entitled to the benefit of the doubt. in so far as the remaining appellants are concerned the evidence of the eye witnesses and particularly of pw 3 and pws 9 to 14 unmistakably connects them with the assault on the complainant party near the jagdamba hotel and at the math resulting in the death of popat and injuries being caused to pw9 and pw14 despite searching cross examination nothing has been brought out in their cross examination from which any doubt may arise about the participation of a 1a 5a 8a 9 and a 11 in the assault or discredit the testimony of any of these witnesses. their evidence establishes the manner in which the assault originated as well as the role played by each one of them. the appellants other than a10 were as already noticed identified by various prosecution witnesses at the identification parade held by pw 32the executive magistrate also. besides the testimony of these prosecution witnesses has received ample corroboration from the medical evidence as well as the recoveries of the weapons of offence. from our independent examination of the material on the record we are satisfied that the prosecution has been able to establish its case against a 5a 8a 9 and a 11 and the deceased a 1 beyond a reasonable doubt. that takes us now to consider the nature of the offence committed by a 5a 8a 9 and a 11. the designated court as already noticed found all of them guilty and convicted them for the offences under section 3 tada302149307149 and 323149 ipc. the victims it appears from the record belong to the wadar community. the designated court after considering the evidence of the first incident and the manner of assault on the deceased and pw 9 and pw 14came to the conclusion that the appellants alongwith some others had intended to create terror in a section of the people wadar community and with that intention had assaulted pw 14the deceased and pw9 by lethal weapons and were therefore guilty of committing an offence under section 3 tada. in our opinion the designated court fell in error in holding that an offence under section 3 of tada had been committed by the accused appellants in the established facts and circumstances of this case. merely because the deceased and the two injured witnesses belong to wadar community no inference could be drawn that the attack by the appellants on them was intended to strike terror in a section of the society namely the wadar community. there is no basis for such an assumption. prosecution has led no evidence in that behalf either. it appears to be a mere coincidence that pw9pw14 and the deceased all belong to the wadar community. there is nothing on the record to disclose as to which community do the appellants belong to or what grievance they had against the wadar community. by no stretch of imagination. can it be said that the accused had the intention to strike terror much less in a particular section of the society when they entered into an altercation at the video parlour or even when they went after the complainant party and opened an assault on then opposite jagdamba hotel or at the math. none out of those who were present at the video parlour received any injury and there is no material on the record to show as to which community did they belong to either. prosecution has led no evidence nor brought any circumstances on the record from which any inference may be drawn that the appellants intended to strike terror amongst the wadar community. it was not proper for the designated court to draw an inference of intention from the mere consequence i e the victims belonging to the particular community. the learned trial court appears to have ignored to take into consideration the essential requirements for establishing an offence under section 3 of tada. in hitendra vishnu thakur and others vs. state of maharashtra. and others 1994 4 scc602. 1994 indlaw sc 1706 this court opined that the criminal activity in order to invoke tada must be committed with the requisite intention as contemplated by section 31 of the act by use of such weapons as have been enumerated therein and which cause or are likely to result in the commission of offences as mentioned in that section. it was observed thus keeping in view the settled position that the provisions of section 3 of tada have been held to be constitutionally valid in kartar singh case and from the law laid down by this court in usmanbhai and niranjan cases it follows that an activity which is sought to be punished under section 31 of tada has to be such which can not be classified as a mere law and order problem or disturbance of public order or even disturbance of the even tempo of the life of the community of any specified locality but is of the nature which can not be tackled as an ordinary criminal activity under the ordinary penal law by the normal law enforcement agencies because the intended extent and reach of the criminal activity of the terrorist is such which travels beyond the gravity of the mere disturbance of public order even of a virulent nature and may at times transcend the frontiers of the locality and may include such anti national activities which throw a challenge to the very integrity and sovereignty of the country in its democratic polity. thus unless the act complained of falls strictly within the letter and spirit of section 31 of tada and is committed with the intention as envisaged by that section by means of the weapons etc as are enumerated therein with the motive as postulated thereby an accused can not be tried or convicted for an offence under section 31 of tada. likewise if it is only as a consequence of the criminal act that fear terror or and panic is caused but the intention of committing the particular crime can not be said to be the one strictly envisaged by section 31it would be impermissible to try or convict and punish an accused under tada the commission of the crime with the intention to achieve the result as envisaged by the section and not merely where the consequence of the crime committed by the accused create that result would attract the provisions of section 31 of tada. emphasis supplied. thus keeping in view the background in which the occurrence took place namely the altercation at the video parlour which has a great relevance to determine the applicability of section 3 tada we are of the opinion that the finding of the designated court that the appellants have committed an offence punishable under section 3 tada is clearly erroneous. in fairness to the learned counsel for the state mr madhav reddy sr advocate we must also record that he conceded that in the facts and circumstances of the case and keeping in view the law laid down by the constitution bench in kartar singh 's case 1994. supp scale 1 1994 indlaw sc 525 and hitendra vishnu thakur 's case 1994 indlaw sc 1706 supra no offence under section 3 of tada could be said to have been committed by the appellants. the conviction and sentence of the appellants for the offence under section 3 tada can not therefore be sustained and is hereby set aside. appellants no 1 a 52 a 83 a 9 and. 5 a 11 had alongwith the deceased accused a 1 and some others about whose identity there has been some doubt formed an unlawful assembly and in furtherance of the common object of that assembly committed the murder of popat deceased besides causing injuries to pw9 and pw14. the designated court therefore rightly found the said appellants guilty of the offences under section 302149307149 and section 324149. ipc the conviction and sentence of appellants no 1 a 52 a 83 a 9 and 5 a 11 for the said offences as recorded by the learned designated court are well merited and calls for no interference. in the result the appeal succeeds insofar as a 10 appellant no 4 is concerned. he is given the benefit of doubt and acquitted of all the charges against him. he shall be released from custody forthwith if not required in any other case. the conviction and sentence of appellants no 123 and 5 for the offence under section 3 tada is also set aside but their conviction and sentence for the other offences as recorded by the designated court is upheld and to that extent their appeals fail. before we part with the judgment we would also like to deal with a submission made on behalf of the appellants by their learned counsel that since the offence under section 3 of tada is not made out the criminal appeal filed in this court may be transferred to the high court for its disposal in exercise of our jurisdiction under article 142 of the constitution of india for the reason that a first appeal against conviction and sentence recorded for various offences under the indian penal code by the sessions court lies to the high court. learned counsel submitted that the appellants should not be denied the opportunity to get the first hearing in the high court because in the event of their failure in the high court they still have a chance to approach this court under article 136 of the constitution of india. the argument is fallacious and runs in the teeth of the express provisions of section 19 of tada. section 19 1 and 2 of tada read as follows. 19 appeal 1 notwithstanding anything contained in the code an appeal shall lie as a matter of right from any judgment sentence or order not being an interlocutory order of a designated court to the supreme court both on facts and on law. 2 except as aforesaid no appeal or revision shall lie to any court from any judgment sentence or order including an interlocutory order of a designated court. a bare perusal of the above section shows that an appeal against the judgment sentence or order of the designated court except an interlocutory order shall lie on facts and on law to the supreme court and that no appeal or revision shall lie to any other court. in the face of this express provision there is no scope to urge that the appeal may be transferred to the high court because of the acquittal of the appellants for the offence punishable under section 3 tada by us. in a case where the designated court finds that no offence under tada is made out it is open to the said court to transfer the case to the regular criminal court under section 18 tada but once the charge is framed and the case is tried by the designated court an appeal against conviction sentence or acquittal lies only to the supreme court and to no other court. under section 12 of tada the designated court has the jurisdiction not only to try the cases under tada but also to try offences under the indian penal code if the offence under tada is connected with such other offences. the amplitude of powers available to this court under article 142 of the constitution of india is normally speaking not conditioned by any statutory provision but it can not be lost sight of that this court exercises jurisdiction under article 142 of the constitution with a view to do justice between the parties but not in disregard of the relevant statutory provisions. the transfer of the appeal to the high court after hearing the appeal on merits and finding that section 3 of tada on the basis of the evidence led by the prosecution was not made out is neither desirable nor proper nor permissible let alone justified. there can not be piece meal hearing of an appeal on merits first by this court to determine if an offence under tada is made out or not and then by the high court. the submission of the learned counsel is thus devoid of merits and is consequently rejected.

FACTS twelve accused persons were tried for offences under section 302,307/149,324,147,148 and section 3 of terrorist and disruptive activites. prevention) act,1987 (hereinafter referred to as 'tada') by the learned designated judge,pune. out of the said twelve accused,6 accused were acquitted of all the charges while the five appellants herein namely,bonkya alias bharat shivaji mane (a-5),mandu baliba dombe (a-8),ashok baloba dombe (a-9),ranjar bhausaheb dombe (a-10) and kaka alias pandurang baloba dombe (a-11) were convicted for offences under section 302/307/149 ipc and section 3 of tada and sentenced to suffer life imprisonment and to pay a fine of rs.5,000/-each for the offence under section 302/149 ipc. 10 years ri and a fine of rs.5,000/-each for the offence under section 307/149 ipc; 2 years ri for the offence under section 324/149 ipc and life imprisonment and fine of rs.5,000/-each for the offence under section 3 of tada. in default of payment of fine on each of the counts,the appellants were to undergo further ri for two years each. the substantive sentences of imprisonment were however directed to run concurrently. one accused died during the pendency of the trial. anna shety band patte,mukesh,ramesh and prakash band patte had gone to the vrindavan video parlour for watching a movie. the accused a-6,a-10 and a-11 alongwith one other person were also present at the video parlour. there was an altercation between the accused and the complainant party when the leg of kaka dombe (a-11) dashed against the leg of anna shety band patte. pw. both the prosecution witnesses as well as. the accused party left the video parlour threatening each other. the complainant party went towards jagdamba hotel owned by waman band patte pw.at that time baban karpe,bajrang band patte,sanjay mane,ramesh pawar were also present near the hotel. at about 4.00 p.m.,the appellants and other accused persons allegedly armed with swords,satturs and sticks arrived there in two auto-rickshaws and one jeep. on the arrival of accused party anna shetty ran away. appellants a-5,a-10 and a-11 thereafter assaulted bajrang band patte (pw-14) on his head in front of the hotel. they also assaulted baban karpe (pw-9) and popat deceased,who had run away to the math,after chasing them in the auto rickshaws and the jeep. it is alleged that a-5,a-10 and a-11 assaulted popat deceased with the swords on his head and thighs and when baban tried to intervene he was also assaulted and he received a blow with the sattur near his knee. he ran away to conceal himself. bajrang (pw-14) was taken to the hospital by waman pw-15,ramesh pw-11 and prakash pw-2,whereas popat deceased who was seriously injured and had fallen down unconscious after receipt of the injuries was removed to the hospital by the police when it arrived at the spot a little later. all the injured persons were admitted to the hospital. police inspector joshi arrived at the hospital and baban karpe pw-9 narrated the occurrence to him. the inquest on the dead body of popat was conducted and the body was sent for post-mortem examination. the jeep allegedly used by the accused party was later found in front of the house of accused baloba dombe,a-1 (who died subsequently). one sword,stained with blood and two blood stained sticks were recovered from the said jeep. an auto-rickshaw bearing registration no.mwq-5624 belonging to manik bhende-gavali was found abandoned in a damaged condition with broken glasses. the accused were searched for but could not be traced. they were subsequently arrested on different dates. on a disclosure statement made by a-11 before the police and the panches under section 27 of the evidence act and on his pointing out a sword was recovered from the field at korti,where it lay buried. ARGUMENT the prosecution alleged that the accused party with an intent to commit terror in the wadar community had committed the murder of popat and injured pw-9 and pw-14,by using lethal weapons and had thereby committed terror in the wadar community and,thus,committed an offence under section 3 of tada. according to a-2,a-3,a-5,a-6 and a-7 they had been identified by pw-9,during the identification parade,at the instance of the police.a-4 alleged false implication at the instance of pw-15 waman while a-8 alleged false implication at the hands of the police with a view to pressurise him to withdraw a complaint concerning the murder of his brother and 5 others allegedly committed by the police. a-9 also put forward a similar defence,while a-10 alleged that the police had instituted a false case against him at the instance of narayan dhotare,according to a-11,also the witnesses had deposed falsely against him at the instance of narayan dhotare. ISSUE the appeal under section 19 of tada,the appellants have called in question their conviction and sentence ANALYSIS that the incident arose out of a petty altercation between a-11 and his three companions with pw-10 and his three companions at the video parlour and later on led in the homicidal death of popat band patte on 11 august 1990 and injuries to pw9 and pw14 was neither disputed before the learned designated court nor before the present court. from the post-mortem report, the deceased had four incised injuries which had caused extensive damage to his internal organs the testimony of pw9 to pw-15 regarding the incident at the video parlour is cogent and trustworthy and nothing has been brought out during the cross-examination of these witnesses which may cast any doubt about the correctness of the version given by them regarding the incident at the video parlour. the designated court rightly found the participation of a-1,a-5,a-8,a-9 and a-11,in the assault,to have been positively established. however,so far as a-10 is concerned, there is merit in the submissions of the learned counsel for the appellant that his identify and participation in the assault has not been established beyond a reasonable doubt. the name of a-10 does not figure specifically in the statement of baban pw-9,which formed the basis of the fir. the prosecution has been able to establish its case against a-5,a-8,a-9 and a-11 and the deceased a-1 beyond a reasonable doubt. the designated court fell in error in holding that an offence under section 3 of tada had been committed by the accused-appellants in the established facts and circumstances of this case. merely because the deceased and the two injured witnesses belong to wadar community,no inference could be drawn that the attack by the appellants on them was intended to strike terror in a section of the society,namely,the wadar community. in hitendra vishnu thakur and others vs. state of maharashtra. and others [(1994) 4 scc,602. 1994 indlaw sc 1706 this court opined that the criminal activity in order to invoke tada must be committed with the requisite intention as contemplated by section 3(1) of the act by use of such weapons as have been enumerated therein and which cause or are likely to result in the commission of offences as mentioned in that section. appellants no.1 (a-5),2 (a-8),3 (a-9) and. 5 (a-11) had alongwith the deceased accused a-1 and some others,about whose identity there has been some doubt,formed an unlawful assembly and in furtherance of the common object of that assembly committed the murder of popat deceased besides causing injuries to pw9 and pw14. in the result,the appeal succeeds insofar as a-10 (appellant no.4) is concerned. he is given the benefit of doubt and acquitted of all the charges against him. he shall be released from custody forthwith if not required in any other case. the conviction and sentence of appellants no.1,2,3 and 5 for the offence under section 3 tada is also set aside but their conviction and sentence for the other offences as recorded by the designated court is upheld and to that extent their appeals fail. section 19 of tada shows that an appeal against the judgment,sentence or order,of the designated court (except an interlocutory order) shall lie on facts and on law to the supreme court and that no appeal or revision shall lie to any other court. in the face of this express provision,there is no scope to urge that the appeal may be transferred to the high court because of the acquittal of the appellants for the offence punishable under section 3 tada. under section 12 of tada the designated court has the jurisdiction not only to try the cases under tada but also to try offences under the indian penal code if the offence under tada is connected with such other offences. the amplitude of powers available to this court under article 142 of the constitution of india is normally speaking not conditioned by any statutory provision but it cannot be lost sight of that this court exercises jurisdiction under article 142 of the constitution with a view to do justice between the parties but not in disregard of the relevant statutory provisions. the transfer of the appeal to the high court,after hearing the appeal on merits and finding that section 3 of tada on the basis of the evidence led by the prosecution,was not made out,is neither desirable nor proper nor permissible let alone justified. final judgment the submission of the learned counsel is devoid of merits and is consequently rejected. STATUTE the court found the said appellants guilty of the offences under section 302/149,307/149 and section 324/149. ipc. provisions of section 19 of tada. section 19 (1) and (2) of tada read as follows. 19.appeal - (1) notwithstanding anything contained in the code,an appeal shall lie as a matter of right from any judgment,sentence or order,not being an interlocutory order,of a designated court to the supreme court both on facts and on law. 2) except as aforesaid,no appeal or revision shall lie to any court from any judgment,sentence or order including an interlocutory order of a designated court.

FACTS twelve accused persons were tried for offences under section 302,307/149,324,147,148 and section 3 of terrorist and disruptive activites. prevention) act,1987 (hereinafter referred to as 'tada') by the learned designated judge,pune. out of the said twelve accused,6 accused were acquitted of all the charges while the five appellants herein namely,bonkya alias bharat shivaji mane (a-5),mandu baliba dombe (a-8),ashok baloba dombe (a-9),ranjar bhausaheb dombe (a-10) and kaka alias pandurang baloba dombe (a-11) were convicted for offences under section 302/307/149 ipc and section 3 of tada and sentenced to suffer life imprisonment and to pay a fine of rs.5,000/-each for the offence under section 302/149 ipc. 10 years ri and a fine of rs.5,000/-each for the offence under section 307/149 ipc; 2 years ri for the offence under section 324/149 ipc and life imprisonment and fine of rs.5,000/-each for the offence under section 3 of tada. in default of payment of fine on each of the counts,the appellants were to undergo further ri for two years each. the substantive sentences of imprisonment were however directed to run concurrently. one accused died during the pendency of the trial. the accused a-6,a-10 and a-11 alongwith one other person were also present at the video parlour. there was an altercation between the accused and the complainant party when the leg of kaka dombe (a-11) dashed against the leg of anna shety band patte. pw. both the prosecution witnesses as well as. the accused party left the video parlour threatening each other. the appellants and other accused persons allegedly armed with swords,satturs and sticks arrived there in two auto-rickshaws and one jeep. on the arrival of accused party anna shetty ran away. appellants a-5,a-10 and a-11 thereafter assaulted bajrang band patte (pw-14) on his head in front of the hotel. they also assaulted baban karpe (pw-9) and popat deceased,who had run away to the math,after chasing them in the auto rickshaws and the jeep. it is alleged that a-5,a-10 and a-11 assaulted popat deceased with the swords on his head and thighs and when baban tried to intervene he was also assaulted and he received a blow with the sattur near his knee. he ran away to conceal himself. bajrang (pw-14) was taken to the hospital by waman pw-15,ramesh pw-11 and prakash pw-2,whereas popat deceased who was seriously injured and had fallen down unconscious after receipt of the injuries was removed to the hospital by the police when it arrived at the spot a little later. all the injured persons were admitted to the hospital. the inquest on the dead body of popat was conducted and the body was sent for post-mortem examination. the jeep allegedly used by the accused party was later found in front of the house of accused baloba dombe,a-1 (who died subsequently). one sword,stained with blood and two blood stained sticks were recovered from the said jeep. on a disclosure statement made by a-11 before the police and the panches under section 27 of the evidence act and on his pointing out a sword was recovered from the field at korti,where it lay buried. ARGUMENT the prosecution alleged that the accused party with an intent to commit terror in the wadar community had committed the murder of popat and injured pw-9 and pw-14,by using lethal weapons and had thereby committed terror in the wadar community and,thus,committed an offence under section 3 of tada. according to a-2,a-3,a-5,a-6 and a-7 they had been identified by pw-9,during the identification parade,at the instance of the police.a-4 alleged false implication at the instance of pw-15 waman while a-8 alleged false implication at the hands of the police with a view to pressurise him to withdraw a complaint concerning the murder of his brother and 5 others allegedly committed by the police. a-9 also put forward a similar defence,while a-10 alleged that the police had instituted a false case against him at the instance of narayan dhotare,according to a-11,also the witnesses had deposed falsely against him at the instance of narayan dhotare. ISSUE the appeal under section 19 of tada,the appellants have called in question their conviction and sentence. ANALYSIS that the incident arose out of a petty altercation between a-11 and his three companions with pw-10 and his three companions at the video parlour and later on led in the homicidal death of popat band patte on 11 august 1990 and injuries to pw9 and pw14 was neither disputed before the learned designated court nor before the present court. from the post-mortem report, the deceased had four incised injuries which had caused extensive damage to his internal organs the testimony of pw9 to pw-15 regarding the incident at the video parlour is cogent and trustworthy and nothing has been brought out during the cross-examination of these witnesses which may cast any doubt about the correctness of the version given by them regarding the incident at the video parlour. the designated court rightly found the participation of a-1,a-5,a-8,a-9 and a-11,in the assault,to have been positively established. however,so far as a-10 is concerned, there is merit in the submissions of the learned counsel for the appellant that his identify and participation in the assault has not been established beyond a reasonable doubt. the name of a-10 does not figure specifically in the statement of baban pw-9,which formed the basis of the fir. the prosecution has been able to establish its case against a-5,a-8,a-9 and a-11 and the deceased a-1 beyond a reasonable doubt. the designated court fell in error in holding that an offence under section 3 of tada had been committed by the accused-appellants in the established facts and circumstances of this case. merely because the deceased and the two injured witnesses belong to wadar community,no inference could be drawn that the attack by the appellants on them was intended to strike terror in a section of the society,namely,the wadar community. appellants no.1 (a-5),2 (a-8),3 (a-9) and. 5 (a-11) had alongwith the deceased accused a-1 and some others,about whose identity there has been some doubt,formed an unlawful assembly and in furtherance of the common object of that assembly committed the murder of popat deceased besides causing injuries to pw9 and pw14. in the result,the appeal succeeds insofar as a-10 (appellant no.4) is concerned. he is given the benefit of doubt and acquitted of all the charges against him. he shall be released from custody forthwith if not required in any other case. the conviction and sentence of appellants no.1,2,3 and 5 for the offence under section 3 tada is also set aside but their conviction and sentence for the other offences as recorded by the designated court is upheld and to that extent their appeals fail. section 19 of tada shows that an appeal against the judgment,sentence or order,of the designated court (except an interlocutory order) shall lie on facts and on law to the supreme court and that no appeal or revision shall lie to any other court. in the face of this express provision,there is no scope to urge that the appeal may be transferred to the high court because of the acquittal of the appellants for the offence punishable under section 3 tada. under section 12 of tada the designated court has the jurisdiction not only to try the cases under tada but also to try offences under the indian penal code if the offence under tada is connected with such other offences. the amplitude of powers available to this court under article 142 of the constitution of india is normally speaking not conditioned by any statutory provision but it cannot be lost sight of that this court exercises jurisdiction under article 142 of the constitution with a view to do justice between the parties but not in disregard of the relevant statutory provisions. the transfer of the appeal to the high court,after hearing the appeal on merits and finding that section 3 of tada on the basis of the evidence led by the prosecution,was not made out,is neither desirable nor proper nor permissible let alone justified. STATUTE the court found the said appellants guilty of the offences under section 302/149,307/149 and section 324/149. ipc. section 19 of the tada- appeal - (1) notwithstanding anything contained in the code,an appeal shall lie as a matter of right from any judgment,sentence or order,not being an interlocutory order,of a designated court to the supreme court both on facts and on law. 2) except as aforesaid,no appeal or revision shall lie to any court from any judgment,sentence or order including an interlocutory order of a designated court.

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"FACTS\nthe price which the manufacturer of barlagan kotone, reported to the central government in 1(...TRUNCATED)

"FACTS\nthe price which the manufacturer of barlagan kotone, reported to the central government in 1(...TRUNCATED)

"challenge in this appeal is to the order of a division bench of madras high court allowing the appe(...TRUNCATED)

"FACTS\nthe deceased is one mayurani,a sri lankan student,who was residing in the first floor of the(...TRUNCATED)

"FACTS\nthe deceased is one mayurani,a sri lankan student,who was residing in the first floor of the(...TRUNCATED)

"the state of manipur is in appeal before us questioning the judgment and order dated 29 07 2005 pas(...TRUNCATED)

"FACTS\none shri a.j.tayeng was the revenue commissioner of government of manipur.\nthe state of man(...TRUNCATED)

"FACTS\none shri a.j.tayeng was the revenue commissioner of government of manipur.\nthe state of man(...TRUNCATED)

"this is an appeal on a certificate article 1331 of theconstitution from a judgment and decree passe(...TRUNCATED)

"FACTS\none dwarka nath was the owner of considerable moveable and immoveable properties.\nhe made a(...TRUNCATED)

"FACTS\none dwarka nath was the owner of considerable moveable and immoveable properties.\nhe made a(...TRUNCATED)

"this appeal is directed against the judgment and order of the high court of gujarat dated 28 2 1986(...TRUNCATED)

"FACTS\nthe respondent joined service as technical assistant with the gujarat state electricity boar(...TRUNCATED)

"FACTS\nthe respondent joined service as technical assistant with the gujarat state electricity boar(...TRUNCATED)

"these appeals arising out of a judgment and order dated 26 4 2000 passed in writ petition no 1188 o(...TRUNCATED)

"FACTS\nthe appellant nos.1 and 2 are degree holders in civil engineering and appellant nos. 3 and 4(...TRUNCATED)

"FACTS\nthe appellant nos.1 and 2 are degree holders in civil engineering and appellant nos. 3 and 4(...TRUNCATED)